CYIL 2013

AGATA FOKSA CYIL 4 ȍ2013Ȏ significant achievements in providing reparations, the ICC has proven to be much more effective. Moreover, by ordering reparations, establishing a clear framework and applying the theory of restorative justice in practice one can argue that the ICC has established its authority as a decision-making body of real influence. Restorative justice, despite its rather elusive definition, is used here as ‘a process where all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implication for the future’. 20 Furthermore, the Lubanga judgment constitutes a departure from common practice where it was typically the responsibility of the states to devise, fund and implement reparations. This can be considered a positive development, due to the fact that, as the practice has shown in the cases of East Timor, Rwanda, or South Africa, domestic courts are usually lacking capacity and/or political will to afford appropriate reparations. 21 Irrespective of the fact that the decision is claimed to be a ‘cornerstone of transitional justice’, it needs to be remembered that it should not be celebrated as a success until the victims get compensated and the process is completed. As Mr. Ruben Carranza, director of ICTJ’s Reparative Justice program stated, ‘the recognition of the right to reparations is one thing ’, and ’how that is fulfilled, is another’ . As regards the way the ordered reparations are to be implemented, the Chamber supports the TFV’s Five Step Plan, 22 based on the establishment of the appropriate localities which are to be involved in the reparation process, carrying on consultations with them, appropriate assessment of the harm by experts, conducting public debates in the region, and gathering proposals for collective reparations. There was heated discussion on whether the reparations should be individual or, rather, collective. 23 Since Mr. Lubanga was found to be indigent, meaning that he does not have enough means to contribute financially to the reparation process, it will be financed through the Trust Fund for Victims, which tends towards a rather collective approach. There is another issue which needs to be stressed owing to thematerial situation ofMr. Lubanga and his inability to contribute financially; his mere conviction is arguably a form of justice for the victims. The Trial Chamber has decided that Mr. Lubanga may issue an apology either to individuals or to group of victims, private or public, but only on a voluntary basis. 24 This was decided despite the suggestions made by, inter alia, the OPCV that Mr. Lubanga should be ordered to provide a public apology, including an acknowledgment of the material facts and an acceptance of responsibility. 25 The same approach was supported by the prosecution, which claimed that reparations 20 R. Marshall, ’The Evolution of Restorative Justice in Britain’ , European Journal on Criminal Policy Research 4 (1996): pp. 21-43; p. 37. 21 Peter G. Fischer, The Victims’ Trust Fund Of the International Criminal Court- Formation of a Functional Reparations Scheme , Emory International Law Review, Spring 2003, p. 191. 22 last accessed 28 January 2013, 12 14 . 23 ibid. 24 ICC-01/04-01/06-2904 para. 241. 25 ICC-01/04-01/06-2863, para. 128, accessible at < http://www.icc-cpi.int/iccdocs/doc/doc1396831.pdf>.