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.
The claimants brought two additional claims for damages. The first was related to physical and psychological damages stemming from rape and sexual violence during the Bogoro attack. While the Chamber recognized such occurrences, it found that reparations could not be awarded because Katanga was acquitted of these charges. The second was related to child soldiers but had not been alleged at the trial court, and, as such, reparations could not be awarded.
Valuation of damages
In terms of valuing damages, the Chamber determined that the date on which the valuation should be made was the date on which the ICC’s judgment was issued. For economic standards to be applied, the Chamber created a dual system in which material damages should be assessed in terms of the place where they occurred and physical and psychological damages should be assessed at a universal level because they relate to interests of humanity.
During the proceedings, Katanga declared his insolvency, presenting the Chamber with the question of whether insolvency should be part of the liability assessment. The Chamber found that this was irrelevant. In assessing Katanga’s financial liability, the Chamber noted that, despite his role in the attack, Katanga acted with others and did not exercise complete control. Since others had been involved, the Chamber was unwilling to place the entirety of the financial burden on him. The Chamber determined that Katanga’s financial liability at $1,000,000 USD out of the over $3,000,000 USD recognized as appropriate reparations for the Bogoro attack.
The Chamber endorsed the use of individual and collective reparations together. As a general rule, the Chamber found that reparations must be proportional to the harms suffered and include reconciliation between victims and the guilty person(s) as appropriate.
The Chamber found that individual reparations must benefit the claimant and attempt to repair the damages. This is an exclusive right for the individual victim. In Katanga, the Chamber found that a symbolic reparation payment of $250 USD to each claimant would recognize personal harms suffered but was not meant to indemnify them for damages to their integrity. Rather, the amount was intended to provide claimants the ability to purchase items for daily living or starting a small business.
In defining the parameters of collective reparations, the Chamber found that harm can be targeted at and experienced by a particular group comprised of individuals who also suffer particularized harms. In this context, the Chamber established that the group harmed can be constructed at the time of the events and do not have to exist as discreet groups prior to the events. In order to award collective reparations, claimants must conceive of themselves as crime victims.
According to the Chamber, collective reparations meant to benefit the community can be crafted so that specialized services are provided to the victims as well as the entire community. It also explained that symbolic reparations offer a collective benefit in allowing the transmission of a larger memory. In terms of individuals in a collective group, the Chamber explained that this would encompass reparations meant to benefit each member of the group targeted but with the understanding that assistance will be individualized.
In Katanga, the Chamber discussed potential methods of collective reparations with the claimant community, which said it was in favour of financial and economic development tools but not of forms of commemoration. With this in mind, the Chamber accepted suggestions that reparations be in the form of assistance with lodging, income-generating activities, educational facilities, and psychological services. The Chamber ordered that the claimants work with the Trust Fund for Victims to create a plan for implementing the reparations order and, where appropriate, for allowing Katanga to be involved in the reparations process as part of an attempt at reconciliation. While Katanga has declared insolvency, the Chamber noted that the Trust Fund for Victims could provide monetary assistance to ensure that the reparations payments are made.
Since there are currently several other cases at the ICC reparations stage, the Katanga reparation decision serves as potentially powerful precedent for the future and for guiding the effectiveness of the ICC reparations system overall.
Next week, Part 2 will provide a deeper analysis of the Katanga reparations decision.