06/04/2011

RE: MR ALAIN KONGOLO LUBAMBA

1. INTRODUCTION 1.1 Abstract This report outlines the legal implications arising from the unfortunate demise of the aforementioned, Mr. Alain Kongolo Lubamba. 1.2 Factual background On 4 April 2011, a MANUSCO aircraft crashed at Kinshasa airport in the Democratic Republic of Congo (DRC) resulting in the demise of Mr. Alain Kongolo Lubamba, hereinafter the deceased, who was an OTP Field Staff of the ICC based at the Courts Office in Kinshasa. 2. APPLICABLE REGULATIONS 2.1 Preliminary principle: Rule 106.9 Rule 106.9 reads as follows: Staff members shall be entitled to compensation in the event of illness or injury attributable to the performance of official duties on behalf of the Court, in accordance with the provisions established by the Registrar in consultation with the Prosecutor. In the case of a staff members death being attributable to the performance of official duties on behalf of the Court, the staff members beneficiaries shall be entitled to compensation, in accordance with the provisions established by the Registrar, in consultation with the Prosecutor. From the above are certain legal issues deserving of clarity. PRINCIPLES IN THE ICC STAFF RULES AND

2.1.1 Staff member The deceased was a locally recruited staff member of the Court, and specifically, a Field Operations Liaison Coordinator in Bunai, in the DRC, who belonged to the Operations Support Unit of the OTP, and therefore meets the requirement of a staff member in terms of Rule 104.9 of the Staff Rules and Regulations. 2.1.2 Whether the deceased was acting in the service of the Court at the time of demise The deceased was embarking on an ICC-authorized mission from Kinshasa to Kisangani in order to provide logistic support to the work of the ICC in the region. 2.1.3 Determining compensation In Rule 109.5 (a) to (d), provision is made for the method in which a death grant is to be determined. In terms of sub-paragraph (a), when a staff member dies while in service, a death grant shall be payable to the surviving spouse of the deceased, in respect of whom a death allowance is payable, and calculable in terms of the deceased persons completed period of service and months of base salary. In this regard, the deceased was appointed as a staff of the court on 06 May 2006, in terms of a fixed term contract, which had been extended from 08 May 2010 until 07 May 2012, and was in that capacity until his demise on 04 April 2011. He had been in the service of the court for 4 (four) years and 11 (eleven) months. Sub-paragraph (d) of Rule 109.5 states that for a staff member in the General Service category, the death grant shall be calculated on the basis of the staff members base salary as set out in staff rule 103.2, and language allowance, if any. Furthermore, sub-paragraph (c) provides that the death grant for staff members in the General Service category shall be calculated on the basis of staff members base salary as set out in Rule 103.2, which rule states that the

salary scales of staff members in the General Service category shall be calculated with due regard to each grade and step of the staff member in conformity with the United Nations common systems. In casu, the category/level of the deceased was G6/I and a level 5, and his base salary was USD 19, 762.00 net per annum. Reading jointly subparagraphs (a) and (d) shows that the completed period of service of the deceased is 4 (four) years and the months of base salary is 4 (four). Hence, the compensable amount would be USD 79, 048 (19, 762 x 4). Sub-paragraph (d) is worth noting, which states that the determined amount may be paid as a lump sum as soon as the pay accounts or related matters can be closed. Also worthy of note is the clause in Rule 106.9 which obliges the Registrar to consult with the Prosecutor in a matter such as this. A cross reference to Regulation 6.2 shows that this must be in conformity with the United Nations common system standards. 2.1.4 To whom compensation must be paid In terms of Rule 104.14(a), a staff members beneficiaries are those nominated by the staff member in writing., and in terms of sub-paragraph (b), all monies owed to the staff member, upon his/her demise must be paid to such named beneficiaries, and where the deceased has not named any beneficiary, his estate, in terms of sub-paragraph (c). The deceased had nominated his spouse, by name Meta Kalala, and daughter, by name Priscilla Mwaluke Lubamba, as equal beneficiaries. 2.2 Inapplicable principles 2.2.1 Transporting the remains of the deceased Given the fact that the deceased is a locally recruited staff member and not an international recruited staff member, and the fact that the incident occurred within the territory of the country in which the deceased is a national, the provisions of

Rule 109.5(e) pertaining to the transportation of a deceased staff members would not apply. 2.2.2 Repatriation grant and other entitlements in case of death of a staff member For the same reasons given in paragraph 2.1 above, the provisions of Rule 109.5(f) pertaining to repatriation grants and entitlements would not apply.

3. IMPORTANT COMPLEMENTARY ISSUES 3.1 Indemnity The deceased had signed an indemnity form provided by MONUSCO, dated 24 March 2011, which bares the following important provisions: Clause (b) of the agreement excludes the liability of the officials, employees and agents of the United Nations for any loss, damage, injury or death that may be sustained during travel. In clause (c), the deceased assumes all risks and liabilities arising out of the conditions under which the flight was operated referred to in subparagraph (a) as follows: (i.) (ii.) (iii.) That the flight is operated by an independent operator for the official business and purpose of the United Nations. That the flight is operated in possibly hazardous conditions including hostilities. That the operating conditions of the flight might not meet ICAO or other international or national standards which could pose special risks for the flight. Clause (d) states that in the event that the deceased passenger had sustained loss, damage, injury or death during travel for which the United Nations may be found to be liable, that such liability shall be

limited to the provisions of paragraphs 8 and 9 of the General Assembly resolution 52/247 of 17th July 1998.1

Paragraph 8 of the aforementioned resolution of the General Assembly deals with the issue of prescription, and states that third party claims submitted after six months from the time of damage, injury or loss, and in any event after one year from the termination of the mandate of the peace keeping operation, except in certain instances. Paragraph 9 states that all claims against the United Nations for injury, illness or death shall be limited to economic loss (e.g. medical and rehabilitation expenses, loss of earnings, loss of financial support, transportation expenses associated with injury, illness, medical care as well as punitive or moral damages. This paragraph also excludes compensation for home maker services, and states that the amount of compensation shall not exceed USD 50, 000, unless exceptional circumstances exists, where which the Secretary-General gives a recommendation to the General Assembly.