Legal representatives of victims have proposed that the International Criminal Court (ICC) should first issue a reparations order before it contacts victims that wish to benefit from reparations in the Bosco Ntaganda case.
In submissions to judges who will determine the nature of the reparations, victims' lawyer Dmytro Suprun suggested that no application-based process should be carried out to establish the victims entitled to reparations. "Prior to the reparation order, nothing more than a preliminary mapping exercise of the number of potential beneficiaries should be carried out for the purposes of assessing the cost of repair and thus fixing a reparation award," he said. "To be clear, there should not be any collection of forms for reparations at any stage."
Suprun said once a reparations order is issued, it should set out the relevant eligibility criteria for assessing beneficiaries during the implementation phase. He said launching an application-based process as was done in previous cases should be avoided because given the "extremely high number of beneficiaries" in the Ntaganda case, "a detailed, heavy application process would be disproportionally time-consuming, costly and contrary to principles of judicial economy."
This position is supported by another lawyer for victims, Sarah Pellet, who argues that contacting victims at this stage may cause security risks, including exposure of their status as victims. She said minimizing contact with victims reduces this risk. Hence, contacting victims at the implementation stage once they come forward to receive reparations would reduce the need for repeated contacts.
According to Pellet, individuals tend to come forward once they know the potential content of the reparations programs, due to the psychosocial and security implications of identifying as reparations beneficiaries. She warned that attempting to identify and screen victims prior to issuing a reparations order that specifies the types and modalities of reparations would fail to take this into account.
Pellet said, in particular, victims of rape and sexual slavery, who are often highly traumatized and rejected by their communities, are not likely to come forward before having knowledge on the projects envisaged.
Ntaganda was convicted last July over crimes committed in Ituri, eastern Democratic Republic of Congo, in 2002 and 2003. Ntaganda is appealing the conviction and the 30-year prison sentence.
Last December, Trial Chamber VI directed the court's Registry to map the potential new beneficiaries of reparations. Although 2,132 victims were authorized to participate in Ntaganda's trial, at the reparation stage of the proceedings the court needs to identify victims who may benefit from the reparations. They may include those already authorized to participate and others who did not participate in the trial phase. In addition, the chamber asked parties and participants in the case to submit views on the nature of the reparations.
Suprun argued that before the Appeals Chamber affirms Ntaganda's conviction, including the exact extent of the crimes and their geographical scope, the trial chamber should refrain from identifying all beneficiaries at this stage. He said if victims are identified now, there would be a risk of severe disappointment if aspects of Ntaganda's conviction are not upheld on appeal. He noted that Trial Chamber III recognized the seriousness of such a situation when it terminated the reparations proceedings following Jean-Pierre Bemba's acquittal on appeal.
Meanwhile, Pellet proposed that victims who were authorized to participate in Ntaganda's trial should be considered eligible to receive reparations. She also suggested that individuals eligible for reparations in the Lubanga case should automatically be eligible for reparations in the Ntaganda case.
Pellet argued that, contrary to the defense's submission, the willingness of already participating victims to receive reparations should be presumed, even if not expressly indicated in their application forms, unless there are specific reasons to believe they might not be interested. She said should they be unwilling to receive reparations, they may simply decide not to come forward during the implementation stage of the reparations.
Victims' lawyers have also proposed that individuals who have not yet contacted the court may be eligible for reparations, upon screening at the implementation stage. Over the coming months, judges will receive views of the defense, prosecution, and independent experts before issuing the reparations order.