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The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict Situations under investigation by the ICC. The Women's Initiatives for Gender Justice works in Uganda and the Democratic Republic of the Congo. Offices 
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Dear Friends,Welcome to this issue of the Legal Eye on the ICC. It is nice to be back! Over the past year, the Women’s Initiatives for Gender Justice has continued to monitor the developments at the International Criminal Court (ICC) and to work in countries affected by conflict. The world of gender justice is always busy and we relish working with our partners and being part of a global movement trying to meet the ever-evolving challenges! We are strengthening our country-based programmes by further connecting our work for gender justice with the lives and realities of local communities most affected by armed conflict, but also by reinforcing the link between our programme work in these countries and the ICC-related work we conduct in The Hague. Our aim is to strengthen the access of victims of armed conflicts, including of sexual and gender-based crimes, to domestic justice, reconciliation and peace-building opportunities. Our programmes are also focusing on supporting the recovery, healing and reintegration of women and girls, including women formerly abducted by militia groups, many of whom are rejected by their families and communities as a result of being victims of sexual and other forms of violence. Currently, we have active and long-standing programmes in Uganda and the Democratic Republic of the Congo (DRC). See the description of these programmes on our website under ‘What we do’. Alongside this focus, we are continuing our case-by-case gender justice monitoring and advocacy with the ICC as well as our monitoring of key developments in the 11 Situations currently under investigation by the Court: Uganda, the DRC, Darfur (Sudan), the Central African Republic (CAR), Kenya, Libya, Côte d'Ivoire, Mali, CAR II, Georgia and Burundi. We further continue our strategic monitoring of ICC Preliminary Examinations. We launched a new publication last December titled The Compendium: An overview of Situations and cases before the International Criminal Court, and will be producing a new Gender Report Card on the ICC this year which we expect to launch during the upcoming Assembly of States Parties. We will also be continuing with our eLetters: Legal Eye on the ICC and Women’s Voices. The Legal Eye on the ICC is an eLetter that includes summaries and gender analysis of judicial decisions and other legal developments at the ICC, and discussion of legal issues arising from victims’ participation before the Court. In particular, we review how these issues relate to the prosecution of sexual and gender-based crimes in Situations under investigation or preliminary examination by the ICC. This and the next two issues of the Legal Eye on the ICC highlight reparations proceedings at the ICC. Monitoring reparations proceedings provides an opportunity to note the development of ICC jurisprudence on the issue, which will have far reaching impact for future cases, including those with sexual and gender-based crimes. With four cases before the Court at the reparations stage, this issue of the Legal Eye on the ICC focuses on the important developments in the reparations proceedings in the cases of The Prosecutor v. Jean-Pierre Bemba Gombo (Bemba case) and The Prosecutor v. Ahmad Al Faqi Al Mahdi (Al Mahdi case). The second issue will examine reparations in the case of The Prosecutor v. Germain Katanga (Katanga case). The third issue of the Legal Eye on the ICC will focus on the reparations proceedings in the case against the first person convicted by the ICC, Thomas Lubanga Dyilo (Lubanga case). Overview of the four ICC cases at the reparations stageIn the Bemba case, the Chamber is in the process of considering observations and submissions on reparations by parties and participants including external bodies, as well as an expert report on reparations before issuing its Reparations Order in this case. In the Al Mahdi case, a Reparations Order was issued on 17 August 2017, inclusive of individual, collective and symbolic reparations. The Trust Fund for Victims (TFV) is due to submit its Draft Implementation Plan by 6 April 2018. Although not the first case before the ICC, the Katanga case was the first in which a comprehensive Reparations Order was issued. This historic Order was handed down by Trial Chamber II on 24 March 2017. Lastly, in the Lubanga case, the first ICC case to have reached the reparations stage, an Order for symbolic reparations was issued on 21 October 2016, a first before the ICC. Most recently, on 15 December 2017, Trial Chamber II issued an additional decision on reparations, setting the amount of Lubanga's liability for collective reparations and determining the eligibility of victim applications. The Prosecutor v. Jean-Pierre Bemba Gombo
CaseOn 21 March 2016, Trial Chamber III[1] of the International Criminal Court (ICC) unanimously[2] convicted Jean-Pierre Bemba Gombo (Bemba) as a military commander for two counts of crimes against humanity including murder and rape, and three counts of war crimes including murder, rape and pillaging. He was convicted in his capacity as President and Commander-in-Chief of the Mouvement de libération du Congo (MLC).[3] The crimes were committed by the MLC between 25 October 2002 and 15 March 2003 in the territory of the Central African Republic (CAR).[4] Bemba was sentenced to 18 years’ imprisonment on 21 June 2016, in the third Sentencing Judgment issued by the ICC.[5] This was the first conviction and sentence before the ICC for crimes of sexual violence as well as the first conviction of an individual charged with command responsibility under Article 28 of the Rome Statute.[6] Reparations proceedingsOn 6 July 2016, Trial Chamber III was reconfigured by the ICC Presidency prior to the start of the reparations proceedings. This followed a request by Judge Steiner that the extension of her mandate come to an end for personal reasons after the Sentencing decision, as well as a request by Judge Ozaki to be excused from ‘any involvement in future proceedings in the case, following the Sentencing decision’ due to the intensive workload resulting from the trial schedule with respect to the case against Bosco Ntaganda to which she had been assigned, and her work as the Second Vice-President of the Court.[7] The Presidency noted that ideally the judges who conducted the trial proceedings and rendered the Conviction and Sentencing decisions would ‘also address reparations to victims, as those judges have extensive knowledge of the case and its context’, it granted, on an exceptional basis, the Judges’ requests ‘in light of the particular circumstances of the case’.[8] Of note, in the first two cases involving convictions before the ICC, none of the Judges on the bench of the Trial Chambers in the Lubanga and Katanga cases remained on the bench of the Chambers which subsequently considered and determined reparations-related decisions and orders. Submissions on reparationsOn 22 July 2016, the recomposed Trial Chamber[9] issued an order requesting submissions relevant to reparations.[10] In this context, the Chamber ordered the Legal Representative of Victims, the Defence, the Prosecution, the Registry and the Trust Fund for Victims (TFV), and invited interested organisations to submit observations on the following issues in light of the particular circumstances of the Bemba case: 1 The necessity to amend or supplement the principles on reparations identified in the Lubanga case; 2 The adequacy of the criteria and methodology to determine and assess the eligibility of victims, the relevant harms and the scope of Bemba’s liability (including the monetary obligations to be imposed on him); 3 The appropriate types and modalities of reparation (including whether reparations should be awarded on an individual and/or collective basis); 4 Whether experts may be usefully appointed at this stage to assist the Chamber; and 5 Any other issue that the parties and participants wish to bring to the attention of the Chamber.[11] The Chamber further requested the Registry to provide a list of experts available to ‘assist the Chamber in its determinations’ of the issues outlined above and to provide an update on the security situation in the CAR.[12] After having sought[13] and been granted[14] leave by the Chamber, on 17 October 2016, the Queen’s University Belfast Human Rights Centre, the Redress Trust, the United Nations (joint submission by the OHCHR, MINUSCA, UN Women and OSRSG-SVC) and the International Organization for Migration (IOM) submitted amicus curiae observations on reparations. See the following links for the individual observations. ■ Observations by the Queen’s University Belfast Human Rights Centre: ■ Observations by the Redress Trust: ■ Observations by the United Nations: ■ Observations by the IOM: On 31 October and 1 November 2016, the Prosecution, the Office of Public Counsel for Victims (OPCV), the TFV, the Defence and the Registry also submitted their observations on reparations in the Bemba case. Observations by the OPCV: ■ Observations by the TFV: ■ Observations by the Defence: ■ Observations by the Prosecution: ■ Observations by the Registry: Call for experts on reparationsIn order to comply with the Chamber’s order of 22 July 2016 and provide a list of experts on reparations in this case, the Registry launched a call for experts on 2 November 2016.[15] It subsequently submitted a list of 27 proposed experts to the Chamber on 22 December 2016.[16] On 21 February 2017, the Chamber ordered the Defence and the Legal Representative of Victims, as well as the OPCV, to provide observations on these experts and to provide proposed instructions for them. It also invited the Prosecution, the Registry and the TFV to file observations on the proposed instructions.[17] The Defence and the Legal Representative of Victims, jointly with the OPCV, submitted their views on the list of experts, as well as proposed instructions on 3 and 4 April 2017, respectively.[18] Observations on these submissions by the Defence, the Legal Representative of Victims and the OPCV were not available on the ICC website at the time of writing. ■ Observations by the Defence on the proposed experts: ■ Observations by the Legal Representative of Victims and the OPCV on the proposed experts: Request for suspension of the reparations proceedingsIn its submission of 3 April 2017, the Defence requested the Chamber to suspend the reparations proceedings until the Judgments on the appeals against the Conviction and Sentencing decisions are delivered.[19] The Defence argued that the Chamber cannot operate under the assumption that his conviction will remain completely undisturbed on appeal, and that an accused should not have to remedy harms that are not the result of the crimes for which he was convicted.[20] More concretely, the Defence argued that if the Chamber were to continue the reparations proceedings before the rendering of the Appeals Judgments: (1) the process would operate under an ‘effective presumption of guilt’ and place a ‘burden’ on Bemba’s ‘minuscule’ resources at a time when he is fighting appeals; (2) the process would represent the pursuit of a potentially misguided process; and (3) the process would be against prior practice of the Court.[21] The Defence further argued that there is no reason to suppose that any period of suspension would be lengthy or prejudicial to victims, as the briefing schedule on appeals has concluded and the Appeals Chamber is in deliberation.[22] On 13 April 2017, the Prosecution responded to, and opposed, the Defence request to suspend the reparations proceedings, and requested the Chamber to reject this request.[23] It argued that (1) the presumption of innocence does not apply to convicted persons pending the resolution of their appeals; (2) the Appeals Chamber has already found that reparations proceedings may continue pending appeal proceedings against a Conviction decision in the Lubanga case, and that only the execution of a reparations order must be suspended pending the Appeals Chamber’s confirmation of the conviction; (3) appellate proceedings regarding the Conviction decision are yet to be finalised in this case; (4) reparations proceedings require numerous and diverse interim measures and decisions and, as a result, can be lengthy; and (5) suspending all reparations proceedings would substantially and unnecessarily delay victims’ access to reparations, and, additionally, there is no risk of irreparable harm since in the ‘unlikely event’ of reparations proceedings finalising prior to the completion of the appeals, the order would not be executed.[24] On 5 May 2017, the Chamber noted that reparations proceedings may commence in parallel to a pending appeal and that it is established practice at the ICC that preparatory steps to facilitate and expedite the reparations proceedings commence following the conviction.[25] The Chamber highlighted that it is only the implementation of the Reparations Order that requires a final Conviction decision.[26] The Chamber found that the suspension of the reparations proceedings, including the appointment of experts, would create a substantial delay and thus negatively impact on the expeditiousness of the reparations proceedings, as well as substantially impact on the victims’ ability to access reparations in a timely manner.[27] The Chamber further found that the continuation of the reparations proceedings despite the pending appeals does not violate Bemba’s right to be presumed innocent, given that he has already been convicted and sentenced.[28] According to the Chamber, the preparation of the reparations proceedings does not impact the Defence’s resources, as both of Bemba’s appeals have already been filed and are awaiting an Appeals Chamber decision.[29] The Chamber added that, although it is mindful that unnecessary costs should be avoided, the Chamber ‘needs to balance its duty to make use of the Court’s resources appropriately, with its obligation to promote efficient and expeditious proceedings’, in particular victims’ rights.[30] Appointment of experts on reparationsOn 2 June 2017, the Chamber appointed four experts to assist it on issues relevant to reparations.[31] On 12 June 2017, the Defence requested leave to appeal the Chamber’s decision appointing the selected experts on reparations.[32] The Defence noted that rather than taking ‘preliminary or preparatory’ steps on reparations as the Chamber intended to take prior to an Appeal Judgment being rendered, Bemba ‘is now being ordered to submit his observations on the reparations order prior to an Appeals Chamber judgment being rendered’.[33] According to the Defence, the timeframe for these submissions ‘have left him with no opportunity to instruct experts of his own or, more importantly, to know the scope of his own conviction’.[34] The Defence identified three appealable issues: (1) whether the Trial Chamber’s order that Bemba file his submissions on the Reparations Order prior to receipt of an Appeals Judgment is consistent with its ruling that it was only taking ‘preparatory steps’ in this ‘preliminary phase’; (2) whether the Trial Chamber erred in requiring Bemba to file his submissions on the reparations order prior to knowing the scope of his conviction; and (3) whether the Trial Chamber erred in setting a timetable which would prevent Bemba from filing meaningful submissions on reparations by e.g. instructing experts of his own.[35] The Chamber rejected the Defence request for leave to appeal on 29 June 2017, as it found that none of the issues raised by the Defence constituted appealable issues under Article 82(1)(d) of the Rome Statute.[36] Addressing the grounds of appeal, the Chamber found that the Defence: (1) incorrectly assumed that the order to make submissions is not within the preparatory framework of the reparations proceedings, as any steps taken during the reparation stage up until the issuance of a Reparations Order are of preparatory nature; (2) put forward a re-litigation of matters it had already settled in its decision of 5 May 2017, which the Defence did not seek to appeal; and (3) merely disagreed with the Chamber’s exercise of discretion, noting that the Defence failed to provide any explanation as to why the length of the timeframes set prevents Bemba from filing ‘meaningful’ submissions on reparations.[37] The Chamber further highlighted that, ‘should the Conviction Decision be amended by the Appeals Chamber, Mr Bemba will receive the opportunity to make submissions on the amendments, as relevant to the reparations order’.[38] On 20 November 2017, the experts appointed by the Chamber submitted a confidential ex parte version of their joint report,[39] and a public redacted version thereof on 30 November 2017.[40] ■ Public redacted version of the ‘Expert Report on Reparation’: On 22 December 2017, the Chamber directed the experts to file an addendum to their report, in which they calculate the scope of Bemba’s liability, including an amount for the sum-total of the harms caused by Bemba and for the corresponding recommended reparations, ‘or a range thereof’.[41] Although the extended deadline was 16 February 2018,[42] at the time of writing, the joint addendum has not yet been made available on the ICC website. Final submissions to be considered in the Reparations OrderIn addition to having appointed the experts on reparations in this case on 2 June 2017, the Chamber also requested the Legal Representative of Victims, the OPCV and the Defence to submit ‘any additional information they wish to be considered in the reparations order’.[43] The Chamber also invited the Legal Representative of Victims, the OPCV, the Defence and the TFV to file submissions on the expert report and ‘any other last arguments they wish for the Chamber to consider before rendering its reparations order’.[44] Due to competing deadlines including simultaneous appeals proceedings, the Chamber extended the deadline to 28 February 2018 for consolidated final submissions.[45] The TFV is to file its final submissions on 7 March 2018.[46] On 1 December 2017, the OPCV and the Legal Representative of Victims filed joint additional submissions to be considered in the Reparations Order.[47] At the time of writing, these are the only submissions available on the ICC website arising from the 2 June 2017 decision. ■ Joint Submissions by the OPCV and the Legal Representative of Victims: At the time of writing, the next step of the reparations proceedings in the Bemba case is the rendering of a Reparations Order, after having considered the submissions by parties and participants as well as the expert report and addendum thereto. Concurrently, the Appeals Chamber is yet to render its Judgments on the appeals against the Conviction and Sentencing decisions. The Prosecutor v. Ahmad Al Faqi Al Mahdi
CaseOn 27 September 2016, Trial Chamber VIII convicted Ahmad Al Faqi Al Mahdi (Al Mahdi) of the war crime of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali, in June and July 2012 and sentenced him to nine years’ imprisonment.[48] The trial began on 22 August 2016, with Al Mahdi becoming the first accused to plead guilty before the International Criminal Court (ICC). Consequently, the Al Mahdi trial is the shortest ICC trial to date, lasting only three days and concluding on 24 August 2016.[49] Reparations proceedingsOn 29 September 2016, the Chamber issued its Reparations Phase Calendar in this case and invited the Legal Representative of Victims, the Prosecution, the Defence, the Registry, the Trust Fund for Victims (TFV) and the Malian authorities to make general submissions on reparations.[50] Interested organisations were also invited to request leave to submit amicus curiae observations on reparations related issues.[51] After having sought[52] and been granted[53] leave by the Chamber, on 2 December 2016, the Queen’s University Belfast Human Rights Centre together with the Redress Trust, Fédération internationale des ligues des droits de l’homme (FIDH) together with Association malienne des droits de l’Homme (AMDH), and the United Nations Educational, Scientific and Cultural Organization (UNESCO) submitted amicus curiae observations on reparations. ■ Joint observations by the Queen’s University Belfast Human Rights Centre and the Redress Trust: ■ Joint observations by FIDH and AMDH: ■ Observations by UNESCO: In December 2016 and January 2017, the Legal Representative of Victims, the TFV, the Prosecution, the Defence and the Registry submitted their observations on reparations in the Al Mahdi case. ■ Observations by the Legal Representative of Victims: ■ Observations by the TFV: ■ Observations by the Prosecution: ■ Observations by the Defence: ■ Observations by the Registry: On 19 January 2017, the Chamber appointed four experts,[54] who filed their reports to the Registry on 28 April 2017.[55] These expert reports were to cover three topics previously identified by the Chamber as relevant for reparations proceedings in this case: (1) the importance of international cultural heritage generally and the harm to the international community caused by its destruction; (2) the scope of the damage caused, including monetary value, to the ten mausoleums and mosques at issue in the case; and (3) the scope of the economic and moral harm suffered, including monetary value, to persons or organisations as a result of the crimes committed.[56] On 20 March 2017, the Chamber granted a request from the Legal Representative of Victims for authorisation to submit new applications for reparations as well as supplementary information obtained during his mission in Mali.[57] Reparations OrderOn 17 August 2017, Trial Chamber VIII unanimously rendered its Reparations Order in this case, awarding individual, collective and symbolic reparations to the community of Timbuktu.[58] The Chamber found Al Mahdi to be liable for €2.7 million in expenses for reparations.[59] The Chamber identified three categories of harm in this case, namely damage to the protected buildings,[60] consequential economic loss,[61] and moral harm.[62] The Chamber ordered individual reparations, in the form of compensation, for the victims whose livelihoods exclusively depended upon the protected buildings and whose ancestral burial sites were damaged in the attack.[63]Collective reparations were ordered for the rehabilitation of the protected sites and for the community of Timbuktu as a whole.[64] Additionally, having found Al Mahdi’s apology to be ‘genuine, categorical and empathetic’, the Chamber ordered the Registry to produce a video excerpt of Al Mahdi’s apology to be posted on the ICC website as a symbolic measure and to ensure victims’ access to the apology.[65] Although the Chamber limited its assessment only to the community of Timbuktu, it also awarded nominal damages, in the form of one euro, as a symbolic gesture for the damages suffered, to the State of Mali and the international community, best represented by the UN Educational, Scientific and Cultural Organization (UNESCO) given the specific nature of the Al Mahdi case.[66] Noting Al Mahdi’s indigence, the Chamber encouraged the TFV to complement the individual and collective awards ‘to the extent possible’ and to engage in fundraising efforts ‘to the extent necessary’.[67] It was further encouraged to complement the reparations award with general assistance beyond the narrow scope of this case to a wider range of human rights violations alleged to have occurred in Timbuktu and elsewhere throughout Mali.[68] A total of 139 reparations applications, including 137 individuals and two organisations, were considered by the Chamber.[69] In the same Order, the Chamber set the deadline for the TFV to submit its Draft Implementation Plan to 16 February 2018.[70] On 22 January 2018, the TFV filed a request for an extension of time for the submission of the Draft.[71] The Single Judge of Trial Chamber VIII[72] noted that ‘[p]ractical difficulties beyond the control of the TFV were encountered’ and partially granted the request, postponing the deadline to 6 April 2018.[73] Appeal against the Reparations OrderOn 18 September 2017, the Legal Representative of Victims filed his Notice of Appeal ‘in part and limited’ against the Reparations Order of 17 August 2017[74] and his Brief in Support of the Appeal on 17 October 2017.[75] The Appeal did not intend to suspend the execution of the Order, which continues to have effect, and regarded only aspects in connection with three specific paragraphs of the ruling, namely 81, 83 and 146.[76] The Legal Representative of Victims did not agree with the wording of paragraphs 81 and 83 of the Reparations Order, which awards ‘individual reparations for those whose livelihoods exclusively depended upon the Protected Buildings’.[77] He argued that this provision ‘requires screening for an exclusive link between the consequential economic losses and the Protected Buildings’, risking to exclude relevant victims in the individual reparations process.[78] According to the Legal Representative of Victims, the use of the word ‘exclusively’ in the ruling by the Chamber dismissed most victims from reparations, such as those who suffered economic losses as a result of the destruction of the monuments but not strictly resulting in a loss of livelihood.[79] Furthermore, the Legal Representative of Victims challenged the ‘administrative role’ of the TFV in the screening of victims for individual reparations, as set out in paragraph 146 of the Order, arguing that the applications for reparations were made before the Chamber and that the power of adjudication of victim eligibility should not be upon the TFV but the Chamber itself.[80] For these reasons, the Legal Representative of Victims requested the Chamber to revise the use of the word ‘exclusively’ and the power assigned to the TFV regarding victim eligibility.[81] On 7 November 2017, the Appeals Chamber[82] invited the TFV to submit written observations on the Appeal Brief and gave the possibility to the Defence and the Legal Representative of Victims to respond to these observations.[83] The TFV submitted its observations on the Appeal Brief on 29 November 2017;[84] both the Legal Representative of Victims and the Al Mahdi Defence responded to these observations on 11 December 2017.[85] At the time of writing, no decision on the appeal has been made public yet. ■ Observations on the Appeal Brief by the TFV: ■ Response of the Legal Representative of Victims to the observations of the TFV: ■ Response of the Defence for Al Mahdi to the observations of the TFV: At the time of writing, the next step of the reparations proceedings in the Al Mahdi case is the submission of the TFV’s Draft Implementation Plan by 6 April 2018.
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Footnotes 1 At the time of the delivery of the Trial Judgment and Sentencing decision, Trial Chamber III was composed of Presiding Judge Sylvia Steiner (Brazil), Judge Joyce Aluoch (Kenya) and Judge Kuniko Ozaki (Japan).
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