Observations on Reparations in Response to the Trial
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ICC-01/04-01/06-2876 10-05-2012 1/34 CB T Original: English No.: ICC-01/04-01/06 Date: 10 May 2012 TRIAL CHAMBER I Before: Judge Adrian Fulford, Presiding Judge Judge Elizabeth Odio Benito Judge René Blattmann SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v. THOMAS LUBANGA DYILO PUBLIC Observations of the Women’s Initiatives for Gender Justice on Reparations Source: The Women’s Initiatives for Gender Justice No. ICC-01/04-01/06 1/34 10 May 2012 ICC-01/04-01/06-2876 10-05-2012 2/34 CB T Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Mr Luis Moreno-Ocampo Ms Catherine Mabille Ms Fatou Bensouda Mr Jean-Marie Biju Duval Legal Representatives of Victims Legal Representatives of Applicants Mr Luc Walleyn Mr Franck Mulenda Ms Carine Bapita Buyangandu Mr Joseph Keta Orwinyo Mr Paul Kabongo Tshibangu Unrepresented Victims Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Ms Paolina Massidda States Representatives Amicus Curiae REGISTRY Registrar Defence Support Section Ms Silvana Arbia Deputy Registrar Mr Didier Preira Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section Mr Pieter de Baan, Executive Director, Ms Fiona McKay Trust Fund for Victims No. ICC-01/04-01/06 2/34 10 May 2012 ICC-01/04-01/06-2876 10-05-2012 3/34 CB T I. Introduction 1. The Women’s Initiatives for Gender Justice (“the Women’s Initiatives”) respectfully submits its observations on reparations in response to the Trial Chamber’s “Decision granting leave to make representations in the reparations proceedings” of 20 April 2012. 2. For details about the Women’s Initiatives and its interest in the case, please see the request for leave to participate in the reparations proceedings submitted on 28 March 2012.1 II. Relevant procedural background 3. On 14 March 2012, Trial Chamber I issued a “Judgment pursuant to Article 74 of the Statute” (“Judgment”) convicting Thomas Lubanga Dyilo (“Mr Lubanga”) of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003.2 Judge Odio Benito issued a Separate and Dissenting Opinion. Judge Fulford appended a Separate Opinion. 4. On 14 March 2012, the Trial Chamber issued a “Scheduling order concerning timetable for sentencing and reparations” inviting other individuals or interested parties to apply in writing by 28 March 2012 for leave to participate in the proceedings should they wish to file observations.3 1 Women’s Initiatives for Gender Justice, Women’s Initiatives for Gender Justice request for leave to participate in reparations proceedings, ICC-01/04-01/06-2853, 28 March 2012, paras 37-41. 2 Trial Chamber I, Judgment pursuant to Article 74 of the Statute, ICC-01/04-01/06-2842, 14 March 2012 (hereinafter ‘Judgment’). 3 Trial Chamber I, Scheduling order concerning timetable for sentencing and reparations, ICC-01/04-01/06- 2844, 14 March 2012, para 10 (hereinafter ‘Scheduling Order’). No. ICC-01/04-01/06 3/34 10 May 2012 ICC-01/04-01/06-2876 10-05-2012 4/34 CB T 5. In response to this invitation, the Women’s Initiatives submitted a request for leave to participate in the reparations proceedings on 28 March 2012,4 which was granted by the Trial Chamber on 20 April 2012.5 6. In the decision granting leave, the Trial Chamber granted the Women’s Initiatives leave to make written observations in accordance with paragraph 8 of the Scheduling Order. The Scheduling Order invited submissions on the following issues: i. whether reparations should be awarded on a collective or an individual basis (see Rule 97(1) of the Rules); ii. depending on whether there should be individual or collective reparations (or both), to whom are they to be directed; how harm is to be assessed; and the criteria to be applied to the awards; iii. whether it is possible or appropriate to make a reparations order against the convicted person pursuant to Article 75(2) of the Statute; iv. whether it would be appropriate to make an order for an award for reparations through the Trust Fund for Victims pursuant to Article 75(2) of the Statute; and v. whether the parties or participants seek to call expert evidence pursuant to Rule 97 of the Rules.6 7. The Women’s Initiatives hereby submits its observations on questions (i), (ii), (iii) and (iv), above. 4 Women’s Initiatives for Gender Justice, Women’s Initiatives for Gender Justice request for leave to participate in reparations proceedings, ICC-01/04-01/06-2853, 28 March 2012 (hereinafter ‘Request for leave’). 5 Trial Chamber I, Decision granting leave to make representations in the reparations proceedings, ICC-01/04- 01/06-2870, 20 April 2012 (hereinafter ‘Decision granting leave’). 6 Scheduling Order, para 8. No. ICC-01/04-01/06 4/34 10 May 2012 ICC-01/04-01/06-2876 10-05-2012 5/34 CB T III. Observations 8. The Women’s Initiatives prefaces its observations by noting that the Rome Statute includes unique provisions among international courts and tribunals, requiring it to provide gender-inclusive justice. The Rome Statute not only includes gender-based crimes within the jurisdiction of the Court as war crimes, crimes against humanity and acts of genocide,7 but also contains specific provisions requiring the Court to apply and interpret law consistent with internationally recognised human rights and without any adverse distinction founded on grounds such as gender.8 The Rome Statute, Rules of Procedure and Evidence, and Regulations of the Court also provide specific provisions for women victims/survivors of gender-based crimes.9 We further note that gender discrimination is deeply rooted in most social and cultural contexts, including those giving rise to these reparations proceedings. In addition, women and girls experience conflict differently from men and boys,10 and often bear a disproportionate burden in situations of armed conflict. For these reasons we submit that it is necessary for the Trial Chamber to include specific gender-responsive methodologies in the process of consulting with victim/survivor communities as well as in the development of 7 See Rome Statute Article 6; Article 7(g); Article 8(2)(b)(xxii); Article 8(2)(e)(vi); and the corresponding articles of the Elements of Crimes (EoC). 8 Article 21(3) provides that the Court shall apply and interpret law consistent with internationally recognised human rights and without any adverse distinction founded on grounds such as gender as defined in Article 7(3) of the statute, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth, or other status. 9 Rule 86 of the Rules of Procedure and Evidence provides that “a Chamber in making any direction or order, and other organs of the Court in performing their functions under the Statute or the Rules, shall take into account the needs of all victims and witnesses in accordance with article 68, in particular, children, elderly persons, persons with disabilities and victims of sexual or gender violence”. See also Article 68(1) and (2), Rules 16-17, 70-72, 88(1) and (5) of the Rules of Procedure and Evidence, and Regulation 34(2) of the Regulations of the Office of the Prosecutor. Pursuant to Article 54(1)(b), the Prosecutor is under the obligation to “[t]ake appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court… and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children”. The Rome Statute also underscores the need for specific expertise and training on gender-based violence, including in the appointment of experts. See for instance Rome Statute Articles 36(8)(b), 42(9), and 43(6), Rule 17(2)(a)(iv) of the Rules of Procedure and Evidence, and Regulations 6 and 12 of the Regulations of the Office of the Prosecutor. 10 See also Trust Fund for Victims, Observations on Reparations in Response to the Scheduling Order of 14 March 2012, ICC-01/04-01/06-2872, 25 April 2012, para 74 (hereinafter ‘Trust Fund observations on reparations’). No. ICC-01/04-01/06 5/34 10 May 2012 ICC-01/04-01/06-2876 10-05-2012 6/34 CB T reparative programmes. The Rome Statute further provides that the Court’s establishment of principles on reparations, as well as any reparations orders or awards, should not prejudice the rights of victims under national and international law,11 which would include principles applicable to victims of sexual violence. Ultimately, reparation strategies and initiatives themselves must effectively recognise and integrate gender issues in order for the particular needs of girls and women to be addressed and satisfied. A. Whether reparations should be awarded on a collective or individual basis; and to whom reparations (individual and collective) are to be addressed 9. Rule 97(1) of the Rules of Procedure and Evidence allows the Court to award reparations on an individualised or collective basis, or both, taking into account the scope and extent of any damage, loss or injury. 10. The Women’s Initiatives submits that in this case, the Court should order both collective and individual reparations, with an emphasis on collective reparations.