ICC-01/04-01/06-3466-Red 18-07-2019 1/137 NM A7 A8 Statute Original: English No. ICC-01/04-01/06 A7 A8 Date: 18 July 2019 THE APPEALS CHAMBER Before: Judge Piotr Hofmański, Presiding Judge Chile Eboe-Osuji Judge Howard Morrison Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v. THOMAS LUBANGA DYILO Public redacted Judgment on the appeals against Trial Chamber II’s ‘Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’ No: ICC-01/04-01/06 A7 A8 1/137 ICC-01/04-01/06-3466-Red 18-07-2019 2/137 NM A7 A8 Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to: Legal Representatives of V01 Victims Counsel for the Defence Mr Luc Walleyn Ms Catherine Mabille Mr Franck Mulenda Mr Jean-Marie Biju-Duval Legal Representatives of V02 Victims Trust Fund for Victims Ms Carine Bapita Buyangandu Mr Pieter de Baan Mr Joseph Keta Orwinyo Office of Public Counsel for Victims Ms Paolina Massidda REGISTRY Registrar Mr Peter Lewis No: ICC-01/04-01/06 A7 A8 2/137 ICC-01/04-01/06-3466-Red 18-07-2019 3/137 NM A7 A8 J u d g m e n t ................................................................................................................... 4 I. Key findings ........................................................................................................... 5 II. Introduction to the appeals ..................................................................................... 6 III. Preliminary issues ............................................................................................... 8 A. OPCV’s standing to participate in these appeals ............................................ 8 B. Admissibility of the OPCV’s Consolidated Response to the Appeal Briefs in respect of Mr Lubanga’s Appeal Brief .................................................................... 11 C. OPCV’s request for rejection of the appeals ‘outright’................................. 12 D. Mr Lubanga’s request for suspension of the Decision of 7 February 2019 .. 13 IV. Standard of review ............................................................................................ 15 V. Merits ................................................................................................................... 17 A. System for the award of reparations .............................................................. 20 1. Procedural background and relevant parts of the Impugned Decision ...... 20 2. Mr Lubanga’s first ground of appeal ......................................................... 27 3. Mr Lubanga’s fourth ground of appeal ...................................................... 39 4. Victims V01’s first ground of appeal ........................................................ 48 5. Victims V01’s second ground of appeal .................................................... 57 B. Assessment of the individual applications .................................................... 68 1. Mr Lubanga’s second ground of appeal .................................................... 68 2. Mr Lubanga’s third ground of appeal ........................................................ 94 3. Victims V01’s third ground of appeal ..................................................... 115 C. Other grounds of appeal .............................................................................. 117 1. Mr Lubanga’s fifth ground of appeal ...................................................... 117 2. Mr Lubanga’s sixth ground of appeal ...................................................... 130 VI. Appropriate relief ............................................................................................ 136 No: ICC-01/04-01/06 A7 A8 3/137 ICC-01/04-01/06-3466-Red 18-07-2019 4/137 NM A7 A8 The Appeals Chamber of the International Criminal Court, In the appeals of the legal representatives of the V01 group of victims and of Mr Thomas Lubanga Dyilo against the decision of Trial Chamber II entitled ‘Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’ of 15 December 2017, to which a corrigendum was issued on 21 December 2017 (ICC-01/04-01/06-3379-Red-Corr-tENG), After deliberation, Unanimously, Delivers the following JUDGMENT 1) The ‘Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’ of 15 December 2017 (ICC-01/04- 01/06-3379-Red-Corr-tENG) is confirmed, subject to sub-paragraph 2) to follow. 2) The ‘Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’ of 15 December 2017 (ICC-01/04- 01/06-3379-Red-Corr-tENG) is amended such that the victims whom Trial Chamber II found ineligible to receive reparations, and who consider that their failure to sufficiently substantiate their allegations, including by supporting documentation, resulted from insufficient notice of the requirements for eligibility, may seek a new assessment of their eligibility by the Trust Fund for Victims, together with other victims who may come forward in the course of the implementation stage and as envisaged by Trial Chamber II in paragraphs 292 – 297 and the disposition of the aforementioned decision; any recommendations as to eligibility made by the Trust Fund for Victims shall be subject to the approval of Trial Chamber II. 3) The ‘Defence Application for Suspension of the “Décision approuvant les propositions du Fonds au profit des victimes portant sur la procédure No: ICC-01/04-01/06 A7 A8 4/137 ICC-01/04-01/06-3466-Red 18-07-2019 5/137 NM A7 A8 visant à localiser et décider de l’admissibilité aux réparations des nouveaux demandeurs” Issued on 7 February 2019 by Trial Chamber II’ (ICC-01/04-01/06-3447-Red-tENG) is dismissed in limine. REASONS I. KEY FINDINGS 1. The second sentence of article 75(1) of the Statute concerns, inter alia, the trigger for reparations proceedings: upon conviction of a person by the Court, the trial chamber will enter into the reparations phase of proceedings (i) if it has received requests for reparations by individuals identifying themselves as victims, or (ii) on its own motion, if exceptional circumstances exist. 2. It would be incorrect to assume that the number of victims may only be established based on individual requests for reparations received by the Court. It would be undesirable for the trial chamber to be restrained in that determination simply because not all victims had presented themselves to the Court by making a request under rule 94 of the Rules of Procedure and Evidence. In making that determination, the trial chamber should consider the scope of damage as it is in the current reality, based on the crimes for which the convicted person was found culpable. 3. In deciding what reparations are ‘appropriate’, a trial chamber must take into account the rights of the convicted person. The reparations order must not go beyond the crimes for which he or she was convicted. The convicted person must be given a sufficient opportunity to make submissions on the scope of reparations, the scope of victimhood to be repaired, the type of reparations, etc., so as to comply with the requirements of fairness. To that end, the trial chamber must give notice to the parties of the manner in which it intends to conduct the reparations proceedings before it, especially where it does not intend to make individual determinations with respect to each victim who has filed a request. In this regard, it must ensure that the convicted person is adequately on notice as to the information on which it will rely in making its order, so that he or she has a meaningful opportunity to make representations thereon, and it must give notice as to the manner in which it intends to assess that information No: ICC-01/04-01/06 A7 A8 5/137 ICC-01/04-01/06-3466-Red 18-07-2019 6/137 NM A7 A8 – e.g. does it intend to assess each request individually? The Trial Chamber must also ensure that the parties are on notice as to the standard of proof that will be applied in the proceedings so that they are aware of the manner in which the information will be assessed. [...] If the trial chamber resorts to estimates as to the number of victims, such estimates must be based on a sufficiently strong evidential basis; any uncertainties must be resolved in favour of the convicted person (for instance, by assuming a lower number of victims, or by discounting the amount of liability). 4. The amount of the convicted person’s liability should be fixed taking into account the cost of reparations considered to be appropriate and that are intended to be put in place (which can include reparations programmes) and the different harms suffered by the different victims, both individual victims (direct and indirect) in addition to, in particular circumstances, the collective of victims. In setting the amount, the trial chamber must also ensure that it takes into account the convicted person’s rights and interests. 5. It is important for trial chambers to provide a clear indication to victims who have already been authorised to participate in proceedings, and to other victims seeking reparations, as to the standard of proof that will apply to the assessment of their eligibility for reparations. II. INTRODUCTION TO THE APPEALS 6. Mr Lubanga was convicted, on 14 March 2012, of the crimes of conscripting and enlisting children under the age of fifteen years into the FPLC1 and using them to participate actively in hostilities. On 7 August 2012, Trial Chamber