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COVID-19 Could Delay Ntaganda Reparations Proceedings

Measures put in place to combat the COVID-19 pandemic could affect the pace of reparations proceedings in the Bosco Ntaganda case, according to some parties to the proceedings. However, victims’ lawyers have suggested that, irrespective of the disruptions caused by the pandemic, judges should use the information currently at their disposal to expeditiously issue a reparations order.

According to the court’s Registry, measures taken in response to COVID-19 are likely to have a significant negative impact on its ability to travel to relevant areas in the Democratic Republic of Congo (DRC) to register potential new applicants for reparations. In April 21 submissions, the Registry said that field activities in the DRC and Uganda involving direct interaction with victims, partners, and leaders are on hold due to travel restrictions in those countries.

It added: “Without clear information on how long the travel restrictions will remain in place, it is impossible to know for certain whether, or for how long, the COVID-19 related measures will impact the Registry’s proposal with respect to registering potential new applicants in the field, let alone any other Registry field activities.”

Earlier this month, the Single Judge of Trial Chamber VI asked parties and participants in the proceedings to make submissions on the impact of COVID-19 measures on their ability to carry out their duties related to the reparations proceedings.

In response, the defense said because of COVID-19, all visits to the court’s detention center have been indefinitely suspended since March 16, 2020. As a result, while instructions could be sought from Ntaganda via privileged telephone conversations, such consultations “are inadequate for taking detailed instructions and having any meaningful form of discussion in relation to the provision of legal advice and strategy.” Moreover, the defense added, “language barriers are magnified, misunderstandings are more frequent, and windows for communication are impacted due to team members working in different time zones.”

Defense lawyer Stéphane Bourgon also stated that, in these circumstances, it is not possible to conduct team discussions and exchanges together with Ntaganda, who is only permitted to speak to one person at a time and only to team members who are entitled to privileged communications.

Bourgon said if the COVID-19 measures continue in their present form, they would affect defense work. For instance, the defense would need to conduct field missions, but this would only be possible when the DRC does not have a travel ban. Should field missions be delayed or cancelled, said Bourgon, the defense’s ability to provide submissions on reparations in October would be impacted.

As per the reparations calendar, the chamber is in the process of appointing experts who would have until August 28, 2020 to submit their reports on the nature of the reparations. All parties and participants must submit final observations by October 30, 2020.

For her part, victims’ lawyer Sarah Pellet has asked the trial chamber to conduct expeditious reparations proceedings, in spite of the challenges posed by Covid-19.  She submitted that the COVID-19 pandemic does not in any way impact on the chamber’s ability to issue the reparations order because judges have received submissions on the five key elements to be addressed in a reparations order, as set out by the Appeals Chamber in the Thomas Lubanga case.

The elements identified by the Appeals Chamber are:

  1. The order should be directed against the convicted person, and establish and inform him of his liability;
  2. The order should set out the type of reparations ordered (individual, collective, or both) and reasons underpinning said determination;
  3. The order should define the harm caused to direct and indirect victims;
  4. The order should identify the modalities of reparations; and
  5. The order should identify the victims eligible or set out eligibility criteria.

According to Pellet, the court should refer to the several reports on reparations received from organizations and experts in other cases instead of requesting new reports from experts. She said this would avoid litigation, streamline the proceedings, and ensure that the limited financial resources available are used for the benefit of victims, while also avoiding further delays in issuing the reparations order, particularly given the constraints related to the COVID-19 situation.

Pieter W.I. de Baan, Executive Director of the Trust for Victims, submitted that COVID-19 and the deteriorating security situation in Ituri province, eastern Congo, impact on the Fund’s ability to collect relevant data on the cost of reparations because no fieldwork is currently possible. However, the Fund was developing mitigation strategies to ensure that it submitted relevant information to the Chamber by October 30. 

Dmytro Suprun, also a victims’ lawyer, proposed that, given current travel restrictions, field activities should at this stage focus on the Registry’s mapping of the number and the location of potential beneficiaries of reparations. He suggested that said since entire village communities were targeted and victimized, all those who were residing or present at the locations of the crimes at the time of the events should be considered as potential beneficiaries of reparations.

Suprun suggested that an important step in the mapping exercise should be collecting information on the number of persons who resided at the relevant locations at the time of the crimes for which Ntaganda was convicted, and these figures should serve as the basis for estimating the number of direct victims.

The Registry reported that while activities that involve direct contact with victims cannot take place due to COVID-19 restrictions, staff can work remotely on training modules for intermediaries to be involved in registering new applicants and on designing documentation and registration methodology. However, the Registry added that if COVID-19 restrictions are lifted progressively, the overall timing of the registration exercise will need to be adjusted.