ICC Reparations post-Katanga – Part 2

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

Material damages

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.

Psychological damages

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.

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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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Guilt and Punishment for Cultural Crimes

As discussed in a previous IntLawGrrls post, the International Criminal Court recently heard the Prosecutor v. Ahmad Al Faqi Al Mahdi case. Al Mahdi was notable in that it was the first case where the defendant agreed to plead guilty to the charges brought against him. Thus, the issue reviewed by the Court related not to his guilt per se but rather to the assessment of his guilt in the context of the charges brought against him and the aggravating and mitigating circumstances that might apply.

Beyond this, however, the Al Mahdi case was of great importance because it was the first decision in which the Court was required to render a decision in relationship to cultural crimes committed under Article 8 (2)(e)(iv) of the Rome Statute (“Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, and of the following acts: (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”). In so doing, the Court was required to determine the weight of cultural crimes in the international and local contexts.

In determining the importance of cultural property related crimes, the Court provided a short history of cultural property protections as a matter of modern law to establish a framework for analysis. While determining guilt under Article 8(2)(e)(iv), the Court used both international and local/religious cultural standards as benchmarks for the mosques and other religious sites that were attacked by Al Mahdi and under his supervision. In terms of international cultural importance and standards, the Court placed heavy emphasis on these sites being designated as UNESCO World Heritage sites because “designation of these buildings reflects their special importance to international cultural heritage, . . . [a]ttacking these mausoleums and mosques was clearly an affront to these values.”(Al Mahdi 27 September 2016 para 46).

The concept of valuing cultural property played a significant role in the Court’s decision on the appropriate sentence for Al Mahdi’s crimes. Overall, the Court reiterated the three considerations that underlie sentencing decisions at the ICC level—retribution, deterrence, and culpability. As a necessary corollary to this, the Court found it necessary to explain the gravity of the crime committed by the defendant. In this case, the Court emphasized that its jurisdiction is over “the most serious crimes of concern to the international community as a whole, and that, as a consequence, the sentences should reflect that seriousness.” (Ibid. para 72). Further, the Court explained that not all crimes rising to this level of seriousness are the same and that it “has the duty to weigh each by distinguishing, for example, between those [crimes] against persons and those targeting property.”(Ibid.).

With this in mind, the Court established that “even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons.”(Ibid. para 77). However, against this the Court balanced the damages caused to local and regional religion, as well as culture, in the course of Al Mahdi’s acts of destruction. Implicit in this is a value base that places religion and the impacts of property damage on religion on a higher plane of gravity than cultural property and damage to it. This particularly appears to be the case where the acts of destruction to religious sites are carried out directly in front of the people who worshipped at the targeted sites.

In the end, the Court determined that the nature of the harms suffered as a result of Al Mahdi’s crimes merited a sentence of nine years in prison, including time already served. Al Mahdi is an important case from the standpoint of establishing how the ICC handles cases in which the defendant readily admits guilt. However, arguably the most important aspect of Al Mahdi is the way in which the Court handled issues of cultural property destruction, seeming to create a hierarchy of gravity in terms of crimes involving religious sites versus crimes involving strictly cultural sites. At the same time, the Al Mahdi judgment recognized the importance of international and national attachments to cultural property and the harms that can be suffered by each community when cultural property related crimes occur.

Balancing Interests in Cultural Crimes

The recent International Criminal Court case Prosecutor v Ahmad Al Faqi Al Mahdi was monumental for several reasons. The subject matter and charges alone were ground breaking. Based on the destruction of significant holy sites in Timbuktu that were also recognized UNESCO World Heritage sites, Al Mahdi was the first case to try an individual for cultural crimes under Article 8(2)(e)(iv) of the Rome Statute. It is also notable since it saw the defendant enter a categorical plea of guilty, causing the trial proceedings to continue largely for the purposes of informing the forthcoming sentencing decision.

On the face of it, Article 8 (2)(e)(iv) of the Rome Statute is flat in terms of dimension: “Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, and of the following acts: (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.“ And yet, as the pleadings of the Prosecutor and Defence, Legal Representative of Victims, and defendant acknowledge, there were two levels of harm under the statuteharm to the local community and harm to the international community that lost a world heritage site.

In opening statements and throughout the proceedings, the Prosecutor emphasized the duality of losses experienced as a result of Al Mahdi’s actions. On the one hand, the value of the sites was incalculable to the people of Timbuktu due to their religious and cultural relationship to the sites as places of worship, familial identity and past heritage at a deeply seated personal level. In this capacity, the sites constituted a personal and communal bond that was irreparably harmed through the acts of destruction at issue. As Prosecutor Bensouda noted, the crimes committed “are about the destructions of irreplaceable historic monuments and they are about a callous assault on the dignity and identity of entire populations and their religion and historical roots.” (P 13–14, Al Mahdi March 26 2015).

On the other hand, Prosecutor Bensouda argued that the sites were intrinsically valuable to the heritage of all mankind because they represented a link with history that cannot be and is not replicated elsewhere. In this context, the crimes committed went behind harms to the religious and cultural communities and were instead crimes committed at the international level. The connection here was less personaland in many ways less religiousbut still intense and imbued with reverence and emotion. As the Prosecutor explained “[o]ur cultural heritage is not a luxury good . . . [it] is a vital instrument of human development. To protect cultural property is to protect our culture, our history, our identity, and our ways of expressing faith and practising religion for current and future generations.”

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