The ICC’s Reparations Decision in Prosecutor v. Katanga – Part 1

On March 24, 2017, the International Criminal Court, Chamber of the First Instance II issued a landmark ruling on reparations in Prosecutor v. Germain Katanga. This ruling is particularly significant since it was the first ICC reparations decision.

Katanga was convicted in 2014 of war crimes and as an accessory to a crime against humanity, stemming from an attack on the village of Bogoro in the Ituri region of the Democratic Republic of the Congo in 2003. Several types of damages were presented to the Chamber for consideration––material damages, physical damages, psychological damages and other damages. In total, 300 claimants made claims for reparations and the Chamber acknowledged 297 of these as valid.

Material damages

The material damage claims involved destruction of homes, annexes and office buildings, destruction/pillage of furniture, personal items and merchandise, pillage of livestock, crops and destruction of fields, and destruction of familial patrimony. For all material damage claims, the Chamber established a test of whether the harm was connected to the crimes for which Katanga was convicted, the evidence offered to support the allegations, and, if the damage was found to exist, the appropriate extent of reparations.

For claims involving destruction of homes, annexes and office/business buildings, the Chamber found that the damages were committed during the attack, the claimants provided proof that they had owned the buildings, and that reparations were appropriate. For claims involving destruction/pillage of furniture, personal items and merchandise, the Chamber asserted that there was a connection between the alleged damage and the attack. There were some questions as to the claimants’ ability to prove the items destroyed, but the Chamber recognized a presumption that those living in the destroyed structures had possessed such items. Still, the Chamber could not establish an individualized assessment of losses for each person, although reparations were appropriate.

For claims involving pillaging of livestock, crops and destruction of fields, the Chamber found a nexus between the damage and Katanga’s crimes. It recognized that agriculture was an important aspect of the personal and commercial survival of many in Bogoro. Although it was difficult to establish agricultural ownership at the individualized level, the Chamber recognized a presumption that when possession of a home was established there was an agricultural interest as well. Further, the Chamber decided that it was impossible to assess commercial agricultural interests but that there was sufficient evidence to find that the claimants used agriculture for individual consumption and to set reparations. However, the Chamber found that it lacked jurisdiction for the question of destruction of familial patrimony, as it was essentially a matter of Congolese law.

Physical & Psychological damages

In terms of physical damage, the trial court previously established that the infliction of physical damage was part of the plans for the Bogoro attack and that many who survived suffered lasting injuries. Since the majority of claims were substantiated by medical reports the Chamber found that reparations were appropriate.

The claimants asserted several forms of psychological damage––harm from the death of a parent in the attack, harm for those present at the attack, transgenerational harms, and sui generis claims for loss of way of life, loss of chance and forced exile.

The issue of harm from the death of parent in the attack (extended to other family members based on the societal structure in Bogoro) raised an essential issue for the Chamber––whether reparations could be awarded for indirect harms. Here, the Chamber found reparations appropriate, using jurisprudence from entities such as the Inter-American Court of Human Rights for guidance. In this context, the Chamber required that there be psychological harm to the claimant resulting directly from the death of a parent/family member, a direct familial connection between the claimant and deceased, the death was the result of the Bogoro attack, and a personal relationship between the claimant and the deceased. In Katanga, the Chamber found evidence of relationships between claimants and deceased, and established a presumption of a personal relationship between family members. Also, in the Chamber’s view, the death of a parent/family member in the circumstances of the attack would cause mental trauma.

In claims regarding individual psychological harms to those present at the attack, the Chamber recognized the brutality of the Bogoro attack, its potential to cause psychological harm, and that presence at the attack was in itself sufficient to establish a presumption of personal trauma. For transgenerational harms, the Chamber found an insufficient causal link between Katanga’s crimes and the allegations of psychological harms passed on to the children of Bogoro victims. Finally, in assessing the claims for sui generis harms, which were largely tied to damages to a parent causing a change in the status of the claimant, the Chamber found they were covered by other forms of psychological reparation.

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Write On! Devolved Nations and International Law Seminar, 16 June 2017 (Bangor Centre for International Law, Bangor University)

The complex inter-relationship between devolved nations in the United Kingdom (Scotland, Wales and Northern Ireland) and the nation state of the United Kingdom in the realm of international law is a highly significant area for analysis. The proposed seminar is particularly timely in light of devolved nations’ interventions in response to Britain’s exit from the European Union.

This one-day seminar seeks to explore the level of consultation that the UK Government has with devolved administrations before signing treaties that affect devolved powers, during the monitoring processes for international human rights treaties, and how international law feeds into devolved legislation, and impacts on such issues as independence and secession.

We welcome papers, from a wide range of disciplinary perspectives and from early career researchers as well as more established academics, that discuss any aspect of the impact of devolution on the UK’s international legal practices, and the influence of international law over the UK’s devolved administrations.

Please submit abstracts by email to: y.mcdermott@bangor.ac.uk or hayley.roberts@bangor.ac.uk by Friday 21 April 2017. If you would like to register to attend this seminar without presenting a paper, please register online here: http://shop.bangor.ac.uk/product-catalogue/ysgol-y- gyfraith-school-of-law/workshop/devolved-nations-international-law-seminar 

Kindly supported by the Socio-Legal Studies Association and Bangor Law School

Go On! KPBS Dead Reckoning: War, Crime & Justice From WWII to the War on Terror (New Series Premiere)

Go On! makes note of interesting conferences, lectures, and similar events.

logo.pngKPBS and ILG’s own Prof. Naomi Roht-Arriaza presents “Dead Reckoning”. A three-hour documentary series on PBS which follows war crimes investigators and prosecutors as they pursue some of the world’s most notorious criminals— notably Adolf Eichmann, Saddam Hussein, Radovan Karadzic, Charles Taylor, and Efraín Ríos Montt. The first episode “The General’s Ghost” airs Tuesday, March 28, 2017, at 8 PM on KPBS TV. Click here for details.

On the Job! Gender Project Consultant NYC, NY, Supervising Attorney/Clinical Fellow Durham, NC

On the Job! compiles interesting vacancy notices, as follows:

logoThe Global Coalition to Protect Education from Attack. Applications are welcome from Ph.Ds, Ph.D candidates or other advanced research training in fields such as gender, human right, humanitarian assistance or education for the position of GCPEA Gender Project Consultant.  The holder of this position will conduct research and develop gender-specific recommendations on protecting girls and women from attacks on education and military use of educational institutions. They will work approximately 65 days between April and November 2017, presenting research to the GC{EAGender Project Working Group and external reviewers. Applications will be reviewed as received until the position is filled; details here.

download► Duke University Law School. Applications are welcome from individuals with 2-5 years experience with international human rights for a supervising attorney/clinical fellow to join the international human rights program and clinic beginning in Summer 2017, led by Professor Jayne Huckerby. The holder of this position will primarily help supervise student fieldwork in Clinic projects and participate in the planning and teaching of the Clinic advocacy seminar, among other opportunities, supervised by the Director of the International Human Rights Clinic. Deadline is April 16, 2017; details here. 

Clinical Fellow/Supervising Attorney, International Human Rights Clinic at Duke Law

Sharing a position announcement from our colleagues at Duke Law:

Duke University Law School is searching for a supervising attorney/clinical fellow to join the international human rights program and clinic led by Professor Jayne Huckerby.  The position begins in summer 2017 with an initial term of appointment expected to be two years.  The position announcement with information and application instructions is available here.

Deadline for applications: April 16, 2017

Gender-Sensitive Reparations in the I.V. v. Bolivia Case: A Missed Opportunity?

 

woman-1022060_1280The human rights and feminist lawyers were hopeful. Finally a decision on forced sterilization from the Inter-American Court. Deprived of the remedial austerity of its Strasbourg equivalent, and with a harder legal force than the CEDAW Committee, this judgment was bound to be important. The I.V. v. Bolivia landmark decision on the forced sterilization of a refugee woman in Bolivia was delivered during the late days of 2016.

Inspired by the insightful earlier post by Lisa Reinsberg and Francisco Rivera Juaristi, I here discuss the specific reparations provided by the Inter-American Court and explain why the Court missed an opportunity to do something more transformative.

The reparations in I.V. v. Bolivia demonstrate the usual remedial richness of the Inter-American Court. The Court ordered personalized, specialized, and free medical rehabilitation, considering the direct victim’s sexual, reproductive, psychological and psychiatric health harms and needs. It also ordered the state to include I.V.’s family in the therapy and to pay 50,000 US Dollars in compensation to the direct victim for monetary and non-monetary damages. The Court recognized the encroachment of the applicant’s personal integrity, and the subsequent denial of justice, and commanded the state to publish the judgment and acknowledge its responsibility. As a guarantee of non-repetition, the Court stated that Bolivia needs to secure that consent to sterilization is always prior, free, informed, and full. Hence, all public and private hospitals ought to be equipped with printed, succinct information about the reproductive and sexual health rights of women: for the patients and the personnel. Finally, Bolivia should adopt permanent programs for medical students and professionals on informed consent, stereotyping, gender discrimination and violence.

The reparations ordered by the Court in I.V. v. Bolivia are plentiful, but not groundbreaking. They are largely consistent with existing, cited supranational practice. Indeed, also the CEDAW Committee (in the 2006 case A.S. v. Hungary) highlighted the importance of educating and monitoring medical staff in public and private health centers, and “naming and shaming”-awareness-raising through publication of supranational decisions. Moreover, the 50,000 US Dollars for damages is not that much more than the approximate 30,000 US Dollars that the Strasbourg Court has ordered the state to pay victims of involuntary sterilization (in 2011–12 cases V.C. v. Slovakia; N.B. v. Slovakia; and I.G. and Others v. Slovakia). In comparison to compensation amounts normally figuring in the IACtHR’s decisions, the figure in I.V. v. Bolivia is relatively low. Overall, the Court’s remedial approach is similar to the Inter-American Commission’s recommendations in the same case two years earlier. The landmark nature of I.V. v. Bolivia, in combination with the substantial references to earlier cases, seems to have made the Court self-conscious, adopting a cautious approach.

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Introducing Daniela Alaattinoğlu

PicsArt_03-14-09.54.22It is our great pleasure to welcome our new IntLawGrrls contributor Daniela Alaattinoğlu!

Daniela Alaattinoğlu (née Åkers) is a PhD Candidate at the European University Institute (EUI) in Florence, Italy. Her PhD project, financed by the Academy of Finland, explores involuntary sterilization and castration as a question of human rights and state responsibility, focusing on international rights development and on international-national rights dialogues in three case studies: Sweden, Norway and Finland. Since 2015, Daniela is one of the coordinators of the EUI Fundamental Rights Working Group.

Before starting her doctorate, Daniela worked as a legal researcher for the human rights NGO TOHAV in Istanbul, as a research assistant at the University of Helsinki, and as a lecturer in criminal law the Police College of Finland. Daniela holds an LLB and LLM from the University of Helsinki, an LLM from the EUI, and she has also studied courses at Istanbul Bilgi University.

Daniela’s research interests and earlier publications cover the topics of human rights, law and gender, gender violence, femicide, law and culture, socio-legal studies, international law, criminal law and comparative law.

Heartfelt welcome!