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Questions Remain on Determining Victims Eligible for Reparations in Ntaganda Case

With International Criminal Court (ICC) judges due to issue the reparations order in the Bosco Ntaganda case this month, the court’s Registry has given approximate numbers of victims that may qualify for reparations.However, victims’ legal representatives and defense lawyers have questioned the criteria the Registry has used in assessing who would be eligible for reparations.  Casting doubt on the Registry’s estimates.

ICC judges delivered their guilty verdict on July 8, 2019. Among others crimes, Ntaganda was convicted of murder, persecution, rape and sexual slavery against child soldiers, as well as enlisting, conscripting, and using children in active hostilities in eastern Congo’s Ituri province during 2002 and 2003. At the time,  he served as deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC) the armed wing of the Union of Congolese Patriots (UPC). Ntaganda is appealing the conviction and the 30-year prison sentence. Meanwhile, the chamber has announced that the reparations order will be issued on March 8, 2020.

In December 2019, the chamber instructed the Registry to carry out an assessment of how many victims who had participated in the Ntaganda case, as well as those eligible for reparations in the case of Thomas Lubanga, may potentially be eligible for reparations, and to continue its mapping of potential new beneficiaries.

According to the Registry report issued on January 15, 2021, 1,460 of the victims already participating in the proceedings are eligible for reparations. This includes all 284 former child soldiers previously authorized to participate in the case. However, of the 1,837 victims of attacks participating in the proceedings, only 1,176 are eligible for reparations.

The Registry subsequently reported that all former child soldiers participating in the proceedings qualified for reparations, since they often cited numerous locations where they participated in active hostilities and locations where they were enlisted or conscripted.

In February 15, 2021 submissions, Ntaganda’s lawyers said the Registry’s final assessment of victims authorized to participate in the proceedings that were potential beneficiaries of reparations was conducted before judges ruled on the system for determining eligibility. Moreover, the defense lawyers argued that the assessment was conducted without granting the defense access to the victims’ application forms, which would have allowed Ntaganda to challenge the eligibility of some applicants.

“The defense doesn’t have the victim applications and was not consulted at all by the Registry yet it opposes the methodology being used by the Registry to determine the eligibility of participating victims,” stated lead defense lawyer Stéphane Bourgon. He questioned the credibility of the Registry’s assessment, saying the Registry had encountered difficulties in applying the judges’ guidelines.

Meanwhile, victims’ lawyer Dmytro Suprun also raised questions about the Registry’s figures, particularly its estimate of 1,100 potential new beneficiaries. The new beneficiaries are those not previously authorized to participate in the proceedings. Suprun said the Registry appears to have erroneously assessed the eligibility of victims solely based on their residence or presence in villages during the UPC/FPLC attacks.

Suprun said this approach would go against guidance given by the judges in December 2020. The chamber said “victims alleging to have suffered harm in the forest or bush surrounding locations for which positive findings were included in the Judgment may be eligible for reparations for any of the crimes for which the Chamber entered convictions on the basis of the relevant corresponding conduct having occurred in the forest or bush surrounding those locations.”

According to victims’ lawyers, after the UPC/FPLC attacked villages, civilians massively fled throughout the Banyali-Kilo and Walendu-Djatsi regions, many taking refuge in hills, forests, and bushes. While fleeing or in hiding, the victims were exposed to continuous violence, danger and threats that resulted in harm. The lawyers submit that it would therefore be unsound to deem ineligible for reparations the victims from areas such as Djuba, Katho, Dyalo, who stayed in difficult conditions in forests or bushes near Lipri town after fleeing UPC/FPLC violence.

In February 12, 2021 submissions, Suprun said such victims assessed by the Registry as ineligible should be given an opportunity to clarify their account at a later stage of the reparations process, so as to prevent injustices that may occur if the Registry’s assessment was inaccurate.

The Registry stated that the major factor affecting participating victims’ eligibility to receive reparations is the location where they suffered harm. Those based in villages where the conviction judgement did not determine that Ntaganda committed crimes have been excluded from eligibility.

Suprun said while he did not wish to question the effectiveness of the Registry’s mapping exercise, he found it “striking” that in a case where 13 villages throughout Ituri were affected, the number of new potential reparations beneficiaries was so low compared to the population size of the area,  locations where Ntaganda committed the crimes, and the estimated number of civilians affected by those crimes.

According to Suprun, the figure of 1,100 cannot serve as an accurate estimate of the number of new potentially eligible victims, and judges should treat it with caution. Meanwhile, Bourgon stated that since the Registry had conducted limited consultations, it was premature for it to draw any conclusions as to the number of eligible new victims, and he asked judges to disregard the Registry’s submissions on the numbers. The defense also said it was essential to establish a deadline for the Registry to cease looking for new victims.

The Registry has explained that constraints related to Covid-19 and the complex security situation in Ituri made it difficult to reach out to potential new beneficiaries while applying all necessary health and security precautions.

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