Last week, Trial Chamber VI at the International Criminal Court (ICC) issued a decision on the reparations process in Bosco Ntaganda's case. The chamber directed the court's Registry to identify victims who are potentially eligible for reparations.
According to the June 26 decision, the information collected during the identification process may inform the approach to be taken in the reparations order. The information will also facilitate timely implementation of the reparations order and possibly assist the Trust Fund for Victims (TFV) in preparing the reparations implementation plan.
The first category of victims to be identified are those eligible for reparations in the Thomas Lubanga case who may also be eligible for reparations in the Ntaganda case. The second category are victims who are not connected to the Lubanga case. Ntaganda and Lubanga were convicted over crimes committed during the same conflict in Ituri, eastern Congo, during 2002 and 2003, while they commanded a militia known as the Patriotic Forces for the Liberation of Congo (FPLC).
Judges said it was not necessary at this stage to contact beneficiaries in the Lubanga case to ask whether they wished to be considered for reparations in the Ntaganda case. Rather, they would be treated as potential beneficiaries, subject to their consent at the implementation stage, should the chamber determine that they may benefit from reparations in the Ntaganda case.
The judges considered it appropriate for victims already authorized to participate in the proceedings to be presumed willing to be considered as potential reparations beneficiaries. They added, however, that it would be more appropriate to seek the victims' consent at the implementation stage, when the victims are able to make an informed decision based on the types and modalities of reparations.
Trial Chamber VI judges also instructed the Registry to identify as many new potential beneficiaries as possible before the reparations order is issued, in order to expedite the implementation stage. A mapping exercise by the Registry has estimated that there are at least 1,100 potential new beneficiaries while victims' lawyers estimated a minimum of 100,000 victims of attacks in all locations affected by Ntaganda's crimes.
The judges asked the Registry to expedite the finalization of the ongoing mapping exercise given its usefulness in identifying the beneficiaries. They said the Registry should aim to obtain relevant first-hand information and include displaced victims and marginalized or vulnerable victims who may have particular difficulties in making themselves known.
Judges further directed the Registry to consult parties to the case and the TFV on the application form to be used because it may be able to register new beneficiaries during the mapping exercise. The form should be tailored for reparations purposes, taking into account that the nature of reparations has not been determined and that some forms of collective reparations do not require any form of victim screening. However, any victim who wishes to be considered as a potential reparations beneficiary may do so without having to fill in the application form, provided they provide the relevant information.
The chamber said it recognized that not all potential victims may be identifiable at this stage because some may choose to come forward only after the types of reparations have been established. For this reason, additional beneficiaries would be identified during the implementation stage.
Meanwhile, judges also asked the Registry to prepare a small but representative sample of potential beneficiaries with updated information on the harm experienced by victims and the victims' current needs. This would inform the reparations order and present an opportunity to engage with victims before the reparations order is issued.
The TFV has previously warned against recurrent interviews with victims and suggested that any contact with them related to reparations should be very close to the delivery of the awards.
Legal representatives of victims have also previously proposed that victims that wish to benefit from Ntaganda reparations should not be contacted before the reparations order is issued. They 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. The lawyers 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.
However, judges considered it appropriate for the Registry to contact some victims at this point to register them as potential new beneficiaries identified during the mapping exercise or for purposes of preparing the sample requested by the chamber.
Nonetheless, the judges instructed the Registry to minimize the number of interviews it conducts with victims, take measures to avoid re-traumatization, minimize security risks that may arise for victims due to their interaction with the court, and adequately inform victims of the expected duration and possible outcomes of Ntaganda's appeal for acquittal and that appeal's potential impact on the reparations.
The judges also asked the Registry to consider alternative procedures for reaching out to the most vulnerable victims and victims of sexual and gender-based violence, who may not wish to provide information concerning their victimization to intermediaries and other contact persons. The Registry should also endeavor to reach out to victims who may have been displaced from their homes in Ituri.
The Registry will submit its assessment report to judges by September 30 and continue to provide updates on potential beneficiaries every three months.