International Criminal Court (ICC) judges have set Bosco Ntaganda’s liability for reparations to victims of his crimes at $30 million USD. In the reparations order issued on March 8, 2021, judges decided that collective reparations with individualized components was the most appropriate way of addressing the harms caused by the crimes for which he was convicted. They tasked the Trust Fund for Victims (TFV) with devising a plan to implement the reparations order including determining the size and nature of awards that would be feasible to provide.
Article 75(2) of the court’s Rome Statute provides that the court may make an order against the convicted person specifying appropriate reparations to victims. In determining Ntaganda’s financial liability, judgestook into account the large number of victims of his crimes and the cost of repairing the harms they suffered. They described the amount as “fair and appropriate.”
The judges adopted underlying principles of reparations developed in previous cases and added six more, including to take into account the especially grave nature and consequences of sexual violence crimes. They also said that reparations should be gender-inclusive and strive to be transformative, and that a ‘do no harm’ principle should be adopted at every step.
Ntaganda was found by the court to be indigent, meaning he does not have the funds to pay for reparations, which prompted judges to encourage the TFV to make funds available and to try to raise additional funds to finance them. In the order, judges noted indigence is neither an obstacle to imposing liability for reparations, nor does it give the convicted person any right to benefit from reduced liability. Further, his financial situation will be monitored to ascertain whether assets become available for reparations.
Given the large number of victims and the sums needed to fund the reparations, the TFV was directed to prioritize victims who are particularly vulnerable or require urgent assistance. These include individuals who require immediate physical or psychological medical care, victims with disabilities, the elderly, victims of sexual or gender-based violence, victims who are homeless or experiencing financial hardship, children born out of rape and sexual slavery, and former child soldiers.
Within the next six months, the TFV must provide to judges a proposal describing the reparation projects that it intends to develop, including details of proposed collective awards and the individualized components of collective projects. The TFV must also submit an urgent plan for priority victims within three months. Due to the “substantial” fundraising required to fund the award, the TFV may consider phased implementation.
The reparations order was issued before the ruling on Ntaganda’s appeals against conviction and sentence because the mandate of two of the chamber’s three judges ends this week. Judges asked the Registry and victims’ lawyers to conduct “proper outreach and communication” so that victims’ expectations are not unduly raised before the outcome of the appeals. If Ntaganda is acquitted, the reparations order will be nullified.
Ntaganda’s liability is significantly higher than that of other persons convicted by the ICC. Thomas Lubanga’s liability was set at $10 million USD and judges ordered collective reparations to victims, namely psychological rehabilitation, physical rehabilitation, and socio-economic measures. Germain Katanga’s liability was set at $1 million USD, providing individual symbolic compensation awards of $250 USD per victim, as well as collective awards in the form of housing assistance, education assistance, income-generating activities, and psychological rehabilitation.
Suitability of Collective Reparations
Judges said collective reparations with individualized components were the most appropriate type of reparations to address the harm suffered by victims of Ntaganda’s crimes. Collective reparations benefit a group or category of persons who have suffered a shared harm. The occurrence of group victimization beyond individual levels of harm is a relevant feature of the nature of harm in the Ntaganda case, requiring reparations that are collective in character. This form of reparation was the most appropriate way to address the harm caused by rape and sexual slavery because of the potential reluctance of such victims to come forward if they were to be singled out for specific awards, due to their rejection and stigmatization at both family and community levels.
In the reparations order, judges stated: “Despite their collective nature, due to their individualized components, the collective reparations in this case will also focus on the individual members of the group and include individual benefits that respond to the specific needs and current situation of individual victims within the group.” These individual components are yet to be specified.
The experts who were appointed to advise the court on the nature of reparations in the case suggested a cash award to each victim, as well as collective reparations with individualized components, such as schooling and vocational training, medical and psychological care, and support for income-generating activities. Similarly, victims’ lawyers said victims expressed a preference for personal cash awards, but also identified a need for collective reparations.
Large number of victims
The judges said victims eligible to receive reparations would not be limited to individuals who requested reparations or those allowed to participate in the trial proceedings. Rather, the beneficiaries would include a much greater number of potential victims given the wide scope and widespread nature of Ntaganda’s crimes. According to the judges, thousands of victims may be eligible for reparations, but it was impossible to predict how many victims would come forward during the implementation stage, given the widespread, systematic, and large-scale nature of Ntaganda’s crimes.
The experts estimated that at least 3,500 direct victims are potentially eligible for reparations but they could not ascertain the number of indirect victims. Meanwhile, the Registry said 1,460 victims who participated in Ntaganda’s trial were eligible to receive reparations, and it expected around 1,100 additional victims to apply for reparations.
The chamber said its determination of the cost of repairing the harm was based on conservative estimates made by the TFV and the experts, as well as figures and assessments made by Trial Chamber II in the Katanga and Lubanga cases that are similar to the Ntaganda case, as they relate to crimes committed in Ituri during the same timeframe.
Judges noted nonetheless that victims in the Ntaganda case suffered different kinds of harm and in the context of collective reparations with individualized components, the cost of repairing the harm may substantially differ from one victim to another.
The judges specified that the TFV must include the following modalities in the implementation plan, which they will have to approve before it is put into effect..
- Restitution: with the aim, to the extent possible, to restore the victims to their circumstances before the crime was committed.
- Compensation: as a form of economic relief consisting of an award of money for an economically assessable damage. The judges endorsed the TFV’s request for sufficient flexibility to prepare an implementation plan that is responsive to the needs of the victims and adjusted to field realities. They instructed the TFV to include a recommendation as to compensation, including the amount, if any. The judges will then determine whether compensation for any harm may be appropriate.
- Rehabilitation measures: to facilitate victims’ reintegration into society, such as preventative, curative, and rehabilitative medical services; housing assistance; psychosocial rehabilitative services; and vocational training.
- Symbolic reparation:, which could include constructing a community center to be named after Abbe Bwanalonga, a priest who was shot dead by Ntaganda. Judges said any symbolic measures must also serve a practical purpose.
The judges added it was possible that not all the modalities would ultimately be included in the plan.