As discussed in a previous post, in March 2017 the International Criminal Court (ICC) issued its decision on reparations in the Prosecutor v. Germain Katanga case, the first to elaborate on and award both individual and collective damages.
In itself, the Katanga reparations decision represents an important step for the victims of the Bogoro attack underlying Katanga’s criminal liability. The decision also provides a further framework upon which to predict the ICC’s potential award of reparations in future cases. In particular, the decision plays a key role in potential awards in the Prosecutor v. Ahmad Al Faqi Al Mahdi case, currently in the reparations phase, in which the crimes committed were cultural heritage crimes. The goal of this post is to posit the impact of applying the Katanga precedent to a potential reparations decision in Al Mahdi.
Al Mahdi Case Background
At issue in Al Mahdi was the defendant’s involvement in the destruction of 10 cultural and religious heritage sites in Timbuktu, Mali. The majority of these sites were essential to the religious beliefs and cultural identity of the Timbuktu community, the region and the world, as reflected in their UNESCO World Cultural Heritage site status (for more complete details see a previous post).
Al Mahdi pled guilty rather than proceeding to a full trial. Although the Chamber ultimately accepted Al Mahdi’s plea, it required the production of evidence in order to make a determination as to his involvement in the crimes and for use in crafting a criminal sentence. In the process of establishing the case, 9 victims were approved by the ICC––3 individuals and 6 representatives of victim organizations. Further, the Chamber heard the testimony of the designated counsel for the victims, Maitre Kassongo. Kassongo’s testimony included descriptions of how the acts of destruction impacted the local population.
Ultimately, the Chamber accepted Al Mahdi’s plea, determining him to be guilty under article 8(2)(e)(iv) of the Rome Statue in terms of harms.
Potential Application of Katanga to Al Mahdi
Several forms of damage were discussed in the Katanga case. Initially, there were claims for material damages – largely stemming from damage to/destruction of dwellings, commercial property and personal property. In these instances, there was a clearly established nexus between the defendant, the Bogoro attack and the victims’ losses.
Awarding material damages under these criteria may be more difficult in Al Mahdi since the Chamber could not verify the type and nature of material damage suffered by the victims as a result of the heritage site destruction. Indeed, a review of the proceedings before the Chamber indicates that neither it nor Kassongo could establish the type and amount of economic losses suffered by the victims.
Katanga recognized the potential for individual psychological damages in several instances. The first instance was psychological damages stemming from the loss of a parent (or member of family) as a result of the attack. This necessarily addressed the ability to award indirect damages – according to the Chamber, this could occur when there was sufficient evidence of a nexus between the criminal act, the direct victim and the subsequent victim(s). Although the victims in Al Mahdi have asserted a close spiritual and emotional connection to the saints associated with the heritage sites, it would be difficult to meet the nexus requirement for this form of psychological damage.
A stronger argument for awarding psychological damages in Al Mahdi could be for psychological damages to those present at the attack. In this instance, the Katanga Chamber found that the trauma of being present for the Bogoro attack qualified victims for psychological damages. While the violence in Al Mahdi was directed at the heritage sites rather than individuals, significant evidence was presented to and accepted by the Chamber to demonstrate that the intent behind the destruction was to inflict psychological damage on the local population by destroying its belief systems and community. The acts of destruction took place over several weeks, during which the local population was unable to stop it or to preserve essential elements of its religion. In these circumstances, it could be possible for the ICC to find that individual victims and the collective community of Timbuktu suffered psychological damage.
Additionally, in Katanga, the victims claimed transgenerational harms, however the Chamber found that there was an insufficient nexus between the Borogo attack and the harms that would be transmitted to the children of the victims. During the Al Mahdi proceedings, Kassongo highlighted the extent of damage to current and future generations caused by the destruction of the heritage sites that are intrinsically connected to the identity of their communities. With this in mind, the concept of transgenerational harms as a form of damages might be appropriate in Al Mahdi.
There are significant similarities between the assessed level of culpability for Katanga and that potentially assessed against Al Mahdi. Katanga, although a significant actor in planning the Borogo attack, was not the only person responsible for planning and implementing the attack. This was important to the Chamber when assessing the amount of damages attributed to Katanga. In Al Mahdi, the Chamber similarly found that a number of others were involved in authorizing, planning and executing the heritage site destruction. With this in mind, it is likely that any financial liabilities assessed as a result of the destruction would not be solely attributed to Al Mahdi.
The Katanga Chamber’s assessment of individual reparations focused on assisting the individual victim and directly repairing or attempting to repair the damages and harms caused. Katanga’s award of individual reparations was made possible due to a clearly identified group of individual victims of the Bogoro attack. At present, individuals have come forward as victims in Al Mahdi. Given the above discussion of the potential ways in which harms could be attributed to Al Mahdi, it seems likely that individual reparations would be appropriate.
In Katanga, the Chamber found that there can be damage and harm targeted at and experienced by a particular group that is comprised of individuals who also suffer particularized harms. This offers two different avenues of assessing reparations within the category. When examining harms to a particular group, the Katanga Chamber explained that collective reparations meant to benefit the community can be ordered so that specialized services can be provided to the victims. Additionally, the Chamber explained that symbolic reparations offer a collective benefit in allowing transmission of a larger memory. When examining individuals who are part of a group and suffer particularized harms, the Katanga Chamber explained that appropriate reparations would encompass measures meant to assist/benefit each member of the group. Essentially, this second type is considered collective and individual at the same time.
In Al Mahdi, it is likely that the ICC would award collective reparations since the impact of the destruction was widely felt by and severely impacted the community in and around Timbuktu on cultural, religious and identity-based levels. Indeed, Al Mahdi’s own statements at the time of the destructions and subsequent to them have evinced the intent to damage the community as well as the individuals living in it.