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ICC-01/04-01/07 Date: 14 May 2015 ICC-01/04-01/07-3550 15-05-2015 1/39 NM T Original: English No.: ICC‐01/04‐01/07 Date: 14 May 2015 TRIAL CHAMBER II Before: Judge Marc Perrin de Brichambaut, Presiding Judge Judge Olga Herrera‐Carbuccia Judge Péter Kovács SITUATION IN THE DEMOCRATIC REPUBLIC OF CONGO IN THE CASE OF THE PROSECUTOR v.GERMAIN KATANGA Public Document United Nations Joint Submission on Reparations Source: The United Nations 01/04‐01/07 No. ICC‐01/04‐01/07 1/39 14 May 2015 ICC-01/04-01/07-3550 15-05-2015 2/39 NM 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 Ms Fatou Bensouda Mr David Hooper Mr James Stewart Mr Éric MacDonald Legal Representatives of the Victims Legal Representatives of the Applicants Mr Fidel Nsita Luvengika Unrepresented Victims Unrepresented Applicants (Participation/Reparation) The Office of Public Counsel for The Office of Public Counsel for the Victims Defence States’ Representatives Amicus Curiae REGISTRY Registrar Counsel Support Section Mr Herman von Hebel Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section Mr Pieter de Ban Ms Fiona McKay (Trust Fund for Victims) 01/04‐01/07 No. ICC‐01/04‐01/07 2/39 14 May 2015 ICC-01/04-01/07-3550 15-05-2015 3/39 NM T TABLE OF CONTENTS INTRODUCTION AND SUMMARY I. A. Adequate and effective reparations: forms and modalities B. Reparations should be guided by consultations with the victims C. Reparations should be gender sensitive D. Reparations should seek to have a transformative potential II. A. Reparations for victims in Katanga case should be comprehensive and combination of individual and collective, and material and symbolic reparations should be considered B. Reparations for victims of sexual violence C. Considerations relating to the administration of reparations D. Reparations should be a part of broader efforts to combat impunity in DRC 01/04‐01/07 No. ICC‐01/04‐01/07 3/39 14 May 2015 ICC-01/04-01/07-3550 15-05-2015 4/39 NM T 1. The United Nations (UN) respectfully submits on behalf of the following offices and representative of the United Nations its observations in accordance with the Trial Chamber’s Order on reparations on the issues addressed in the Registry’s Report on applications for reparations in accordance with Trial Chamber II Order of 27 August (Registry Report): i. The United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO); ii. The Office of the United Nations High Commissioner for Human Rights (OHCHR); iii. United Nations Entity for Gender Equality and the Empowerment of Women (UN Women); and iv. The Special Representative of the United Nations Secretary-General on Sexual Violence in Conflict (the Special Representative). 2. On 15 January 2015, the Trial Chamber in its “Scheduling order for interested States or other interested persons to apply for leave to file submissions pursuant to Article 75 of the Statute” (the Trial Chamber’s Order) invited representations, from or on behalf of, the convicted persons, victims, and other interested persons or interested States on the issues specifically addressed in the Registry's ‘Report on applications for reparations in accordance with Trial Chamber II Order of 27 August”. 3. On 2 February 2015, the Trial Chamber issued its “Order extending the deadline for interested States and other interested persons to apply for leave to file submissions pursuant to Article 75 of the Statute” granting the Registry’s request for an extension and setting a new deadline of 13 February 2015. 01/04‐01/07 No. ICC‐01/04‐01/07 4/39 14 May 2015 ICC-01/04-01/07-3550 15-05-2015 5/39 NM T 4. On 13 February 2015, the United Nations filed its Joint Application for leave to submit observations pursuant to Article 75 of the Statute. 5. On 1 April 2015, the Trial Chamber issued its « Ordonnance autorisant le dépôt d'observations en application de l'article 75-3 du Statut », by which it granted the United Nations leave to submit observations pursuant to Article 75 of the Statute. The Trial Chamber invited the United Nations and others to submit their observations not exceeding 50 pages no later than 4pm on 30 April 2015. 6. On 17 April 2015, the United Nations requested an extension of the deadline for filing its observations pursuant to Article 75 of the Rome Statute. 7. On 24 April 2015, the Trial Chamber granted the request for extension and invited the United Nations and others to submit their observations no later than 4 pm on 15 May 2015. 01/04‐01/07 No. ICC‐01/04‐01/07 5/39 14 May 2015 ICC-01/04-01/07-3550 15-05-2015 6/39 NM T INTRODUCTION AND SUMMARY 8. The United Nations’ submission outlines the relevant international norms and standards as well as jurisprudence and lessons learned with regard to forms and modalities of distribution of reparations. It also draws on the United Nations’ experience in the Democratic Republic of Congo. Given the seriousness of the harm inflicted on victims in the Katanga case, the United Nations submits that comprehensive reparations which include an appropriate combination of material, symbolic, individual and collective reparations as well as priority access to services, should be considered. 9. Ensuring that reparations are adequate and effective also requires a participatory, gender-sensitive and transformative approach, while also anticipating issues of security for and protection of victims. Taking into account that rape and sexual slavery occurred as part of the attack on Bogoro, it is proposed that consideration be given to sexual violence victims being able to either claim reparations directly from Mr. Katanga, or participate in some other form of relief under the Trust Fund for Victim’s assistance mandate. I. 01/04‐01/07 No. ICC‐01/04‐01/07 6/39 14 May 2015 ICC-01/04-01/07-3550 15-05-2015 7/39 NM T A. Adequate and effective reparations: forms and modalities 10. The right to an effective remedy is enshrined in international human rights law and international humanitarian law as established in various international and regional instruments1 and elaborated upon in subsequent jurisprudence.2 This right was reaffirmed in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious 1 In particular, provisions on a right to a remedy for victims of violations of international human rights law are found in article 8 of the Universal Declaration of Human Rights (hereinafter “UDHR”), article 2 of the International Covenant on Civil and Political Rights (hereinafter “ICCPR”), article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (hereinafter “CERD”), article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “CAT”), article 39 of the Convention on the Rights of the Child, articles 8 and 24 of the International Convention for the Protection of All Persons from Enforced Disappearances (hereinafter “CPED”), and article 83 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (hereinafter “ICRMW”). Regional instruments also include relevant provisions, such as article 7 of the African Charter on Human and Peoples’ Rights, article 25 of the American Convention on Human Rights (hereinafter (“ACHR”), and article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “ECHR”). The obligation of States to pay compensation in case of violations of international humanitarian law is reflected in article 3 of the Hague Convention respecting the Laws and Customs of War on Land of 18 October 1907 (Convention IV), and article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, which are only applicable to international armed conflict. The ICRC's publication Customary International Humanitarian Law (Cambridge, Cambridge University Press, 2005, p. 537) states that a customary rule exists whereby a State responsible for violations of international humanitarian law is required to make full reparation for the loss or injury caused, which is indicated as a rule that is applicable to both international and non-international armed conflicts. In addition to these specific provisions and rules concerning reparation, including compensation, the International Law Commission's draft articles on the responsibility of States for internationally wrongful acts provide in general terms, in article 31 (1), that the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. See General Assembly resolution 56/83 of 12 December 2001, Annex. 2 The Human Rights Committee, in its General comment No. 31, stated: “Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non- repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.” (Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, para.
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