Warlord's conviction gives hope to victims of his crimes
The International Criminal Court has a historic opportunity to redress the masses of victims of convicted Congolese warlord Thomas Lubanga, writes Seattle University law professor Thomas Antkowiak.
Special to The Times
AFTER 10 years, the International Criminal Court finally obtained its first verdict. On March 14, the ICC convicted Congolese warlord Thomas Lubanga of recruiting and using children as soldiers. Still, for the masses of victims, the quest for restoration has only begun. UNICEF has indicated that many thousands of children have fought — and continue to serve — with warring factions in the Democratic Republic of the Congo (DRC). In the next weeks, the ICC will have a historic opportunity to redress this beleaguered population and to establish a critical international precedent.
With the ICC's Rome Statute of 1998, a milestone for victims' reparations was reached. For the first time, an international criminal court could order remedies for victims, "including restitution, compensation and rehabilitation." The ICC can make an order directly against a convicted person and through its Trust Fund for Victims (TFV). Subsequently, a U.N.-backed Cambodian tribunal was granted the competence to order "collective and moral reparations."
International law on remedies has rapidly expanded over the past dozen years. The Inter-American Court on Human Rights is the primary international body to redress rights violations with measures that surpass monetary compensation. As a result, its case law should serve as the preeminent source for the ICC's approach. The Inter-American Court, in response to victims' petitions, has ordered restitution, cessation of abuses, criminal investigations, rehabilitation (medical, psychological and vocational), public apologies, memorials, legislative reform and even community-development programs.
For its part, the TFV already has been active under its "general assistance" mandate, which is not limited to individuals participating in ICC cases. It currently conducts numerous projects in the DRC and Uganda. The initiatives, which are supported only by voluntary contributions, include rehabilitation, education, rebuilding of community infrastructure and job creation.
The ICC, through its trust fund, has fostered truly restorative remedies for victims of international crimes. Its projects have followed the Inter-American Court's approach, which goes far beyond cash compensation. Now, it is crucial that the ICC maintain this framework when it orders reparations in specific criminal proceedings, starting with the case of Lubanga.
Unsurprisingly, the case's participating victims have requested truth, restoration and accountability. In response, the ICC should order collective programs, through the TFV and building upon its fine work, that focus upon the needs of current/former child soldiers and their families in the DRC.
Second, the ICC should involve Lubanga personally in reparations. Even if convicted individuals have no economic resources, they may undertake actions that are routinely desired by victims. At the top of the list are direct and public apologies, whose benefits may very well surpass the restitution of assets.
It is true, however, that apologies cannot always be obtained. Depending upon the situation and the preferences of victims, other measures are possible, such as participation in commemorative events and traditional rituals.
In Timor-Leste, with the agreement of victims, perpetrators performed manual labor, contributed farm animals and offered symbolic gestures to victims and their communities. Furthermore, sharing knowledge about unknown crimes, clandestine graves and other relevant information would be essential for both individual victims and the public record — and perhaps used for future prosecutions.
This is a defining moment for international criminal and human-rights law. For decades, victims have rightly demanded more than just monetary compensation and prosecution. Accordingly, these needs for restoration have been incorporated into human-rights principles and even the Rome statute, ratified by 121 nations.
The Cambodian tribunal, as an internationalized criminal court, had the first opportunity to grant reparations. Its ruling, affirmed in February, refused nearly all of the victims' requests. Now, the ICC judges must prevent another bitter disappointment and unjust result. If the court implements the broader remedial principles requested in the Lubanga case, it will set a forceful precedent for the restoration of victims of international crimes.Thomas Antkowiak is a professor at the Seattle University School of Law. He specializes in international human-rights law.