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.
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.