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Why Judges Declined to Offer Reparations to Victims of Transgenerational Harm

Judges in the case of former Congolese militia leader Germain Katanga at the International Criminal Court (ICC) have declined to award reparations to five individuals who are said to have suffered transgenerational harm. This is the psychological harm that a parent who suffered trauma can pass on to their child.

In a ruling issued on July 19, Trial Chamber II determined that the applicants had not established to the required standard of proof, the causal nexus between the psychological harm they personally suffered and the crimes Katanga was convicted for.

The five individuals had argued that they deserved reparations because they suffered harm passed on to them by their parents, who suffered trauma arising from the February 2003 attack on Bogoro village over which Katanga was convicted. The ICC convicted Katanga, 40, as an accessory to murder, attacking a civilian population, destruction of property and pillaging, all committed during the attack on the village located in eastern Congo.

In the March 2017 reparations decision, judges Marc Perrin de Brichambaut (presiding), Olga Herrera Carbuccia, and Péter Kovács declined to authorize reparations to the five individuals. They noted that whereas these individuals probably suffered transgenerational psychological harm, the chamber had no evidence to establish the causal link between the trauma suffered and Katanga’s crimes.

Subsequently, the ICC Appeals Chamber found that the trial chamber erred in failing to properly reason its decision in relation to the causal nexus. That made it “impossible for the Appeals Chamber to assess the reasonableness of the Trial Chamber’s finding that the causal nexus had not been established to a balance of probabilities.”

The Appeals Chamber added that because the number of applications alleging transgenerational harm was low, it was appropriate that these applications be reassessed. It remanded the matter to the trial chamber that issued the reparations order to reassess the question of the causal nexus and to determine whether these individuals should be awarded reparations.

In the appeal, legal representatives of victims argued that judges committed an error of law in their application of the relevant standard of proof to the applications that claimed transgenerational harm and failed to take into account all the evidence pertaining to those applications. They stated that the failure by judges to take into account all evidence before them and their failure to provide adequate reasoning for rejecting the five reparation claims affected the fairness and reliability of the reparations decision.

Victims’ lawyers submitted that it was possible to deduce the direct link between the psychological suffering of the child and the psychological suffering of a parent who was a victim of the Bogoro attack. According to them, the causal link with the crimes could be established concomitantly with the case-by-case recognition of the phenomenon of transmission of trauma from parent to child.

However, the defense asked judges to dismiss the appeal, arguing that the applicants had not demonstrated any evidence of a causal link.

In their reassessment, judges explained that they examined claims for compensation on a case-by-case basis and relied on various evidence to determine whether the psychological harm suffered by each applicant resulted from Katanga’s crimes. They examined statements and exhibits submitted by applicants, including mental health certificates.

Moreover, the judges said they considered the current scientific debate on the phenomenon of transgenerational transmission of trauma. In view of this, they considered that the closer the date of birth of the claimant to when the Bogoro attack happened, the more likely that the attack could have had repercussions on the claimant. The judges also examined the discrepancies in the dates of birth that emerged from various documents provided by applicants.

Neuropsychiatrists who examined the applicants provided judges with information on their parents’ conditions before, during, and after the birth of the applicants, where such information was available. During the medical examination of one applicant, the neuropsychiatrist found that multiple factors explained the applicant’s illness. Details about the particular conditions of all applicants were redacted from documents made public.

Judges determined that it was possible that factors and events before the Bogoro attack contributed to the harm suffering by the applicants. They noted that, as found by other trial cambers, in 2001, tensions started to intensify between rival ethnic groups and that all militias in Ituri district between 2002 and 2003 launched attacks attacked civilians.

Furthermore, they noted that although it was the responsibility of the applicants to provide sufficient proof of the causal link, victims’ lawyers did not provided such proof.

Meanwhile, judges have also declined to grant a request by victims’ lawyers to amend the reparations order to add 10 victim to those to be awarded reparations. The judges said they lacked the power to reverse their conclusions that fixed the amount of reparations attributable to Katanga.

In March 2017, the judges ordered reparations to 297 victims of Katanga’s crimes, totalling US$ 1 million. This would be comprised of an individual symbolic compensation award of US$ 250 per victim and four collective awards in the form of housing assistance, education assistance, income-generating activities, and psychological rehabilitation. The majority of victims have chosen to receive support for housing or income-generating activities.

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