1
THEY ARE VICTIMS TOO:
AWARDING REPARATIONS FOR TRANSGENERATIONAL HARM AT THE INTERNATIONAL CRIMINAL COURT
A thesis submitted for the degree of LLM in
International and Transnational Criminal Law
By Ciara Dinneny
Supervisor: Dr. Sergey Vasiliev University of Amsterdam
2
Table Contents
List of Abbreviations ... 4
Abstract ... 5
Chapter One: Introduction ... 6
I. Background to this research ... 6
II. Research question ... 8
III. Research methods ... 9
Chapter Two: Transgenerational harm at the International Criminal Court ... 11
I. Introduction ... 11
II. The Substantive Elements for Reparations ... 12
A. Identifying eligible victims ... 13
B. Types of possible harm ... 14
C. The necessity for an order to be directed against the convicted person... 17
D. The causal nexus between the harm suffered by the victims and the crimes for which the person was convicted... 18
E. The Standard of Proof ... 20
F. Assessment ... 21
III. The rationale behind rejecting transgenerational harm in the Katanga case ... 21
A. Procedural background relating to transgenerational harm in the Katanga case ... 21
B. The Standard of Proof ... 23
C. Causal Nexus ... 25
IV. Conclusion ... 27
Chapter Three: Resolving the issues encountered at the ICC ... 28
I. Introduction ... 28
II. Chain of causation... 28
3
B. How have other international tribunals dealt with chain of causation ... 31
III. Presumption of harm as a result of a family relationship ... 34
A. Attachment Theory ... 35
D. Mental Suffering ... 37
C. Failure on the part of the State ... 39
IV. Conclusion ... 41
Chapter Four: Scientific Investigations on the Transmission of Transgenerational Trauma... 43
I. Introduction ... 43
II. Background to the Transmission of Transgenerational harm ... 44
III. Case Studies ... 45
A. Rwanda Genocide 45 B. Holocaust 48 C. World Trade Centre Attacks 49 IV. Implications 51 V. Conclusion ... 51
Conclusion ... 53
4
List of Abbreviations
CV Co-Efficient of Variation
DNA Deoxyribonucleic acid
ECtHR European Court of Human Rights
HPA Axis Hypothalamic-Pituitary-Adrenal Axis
IACHR Inter-American Court of Human Rights
ICC International Criminal Court
ICJ International Court of Justice
LRV Legal Representative for Victims
OPCV Office of Public Counsel for Victims
PCIJ Permanent Court of International Justice
PIR Peruvian Comprehensive Reparation Plan
PTC Pre-Trial Chamber
PTSD Post-traumatic stress disorder
RPE Rules and Procedure of Evidence
TFV Trust Fund for Victims
UN United Nations
UNESCO The United Nations Educational, Scientific and Cultural Organization
VCLT Vienna Convention of the Law of Treaties
5
Abstract
This paper examines the Court’s decision to reject the applicant’s alleged to be suffering from transgenerational harm in the Katanga case. It explores the rationale for rejecting these applicants and considers whether the issues faced by the International Criminal Court relating
to transgenerational harm could have been resolved through interpretations on similar issues in different courts. This paper will delve into the significant amount of scientific research on the existence of transgenerational harm, to show that the International Criminal Court should
6
Chapter One: Introduction
The essential principle contained in the actual notion of an illegal act … is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.
The Factory at Chorzów, PCIJ 1
I. Background to this research
The international community resisted the incorporation of reparations into criminal courts for a long period.2 Therefore, the introduction of reparations at the International Criminal Court (hereinafter: ICC) was seen as one of the most innovative features of the Court.3 It demonstrated a move towards a victim-centred approach in international criminal law.4 The
raison d’être of the ICC has been expressed as justice for victims.5 Commentators have stated
that the ICC offers a “high-water mark”6 for victims and places them at the “heart of
international criminal justice.”7 However, after 20 years since the adoption of the Rome Statute, there have been only three orders for reparations.8 Therefore, the novelty of reparations at the
1 Germany v. Poland (Case Concerning The Factory At Chorzow Claim For Indemnity), Merits, P.C.I.J. Rep. 1927 pg. 47.
2 Carla Ferstman ‘Reparations, Assistance and Support’ in Kinga Tibori-Szabó and Megan Hirst (ed) Victim
Participation in International Criminal Justice Practitioners’ Guide (Springer 2017) pg. 387.
3 Christine Evans The Right to Reparation in International Law for Victims of Armed Conflict (Cambridge University Press 2012) pg. 99.
4 Christoph Sperfeldt, ‘Rome’s Legacy: Negotiating the Reparations Mandate of the International Criminal Court’ (2017) 17 International Criminal Law Review 351. pg. 366
5 Opening Speech by French Justice Minister Elisabeth Guigou at the International Meeting on ‘Access of Victims to the International Criminal Court’, Paris, 27 April 1999 cited from Emily Haslam, ‘Victim Participation at the International Criminal Court: A Triumph of Hope over Experience?’ in McGoldrick, Dominic and Rowe, Peter and Donnelly, Eric (eds.) The Permanent International Criminal Court: Legal and
Policy Issues (Hart Publishing 2004) pg. 325.
6 Christine Chung, ‘Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’ (2008) 6 Northwestern Journal of International Human Rights 459 pg. 516.
7 Paolina Massidda and Sarah Pellet, ‘Role and Practice of the Office of Public Counsel for Victims’, C. Stahn and G. Sluiter, The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) pg. 692.
7
ICC is beginning to wear off as the inability to award meaningful reparations is beginning to set in.
Last year, the ICC rejected applications made by five victims claiming to be suffering from transgenerational harm.9 Despite rejecting these applications, the Court stated that the victims “are, in all likelihood, suffering from transgenerational psychological harm.”10 This raises
questions about the ICC’s victim-centred approach as the Court acknowledged that these applicants were suffering but failed to give any meaningful support to these victims. The Court offered vague and inadequate reasoning for this rejection, which is unfortunate as this was the Court’s first opportunity to make a ruling on transgenerational harm. Further, there is very little jurisprudence on this issue across domestic and international courts. The ICC could have been at the forefront of establishing the guiding principles for transgenerational harm. In light of the Court’s vague rationale and the limited jurisprudence on this issue, it is important that this issue is examined further to see whether it is possible to establish victim status for reparations at the ICC as a result of transgenerational harm.
Transgenerational harm is the process in which trauma is transposed from the first generation who were directly exposed to the trauma to second and third generations who were not directly exposed to the trauma.11 There are two theories to explain the transmission of transgenerational
harm. Firstly, the attachment theory, according to this theory, unresolved trauma affects the quality of parenting and leads to secondary traumatization in offspring.12 The ability to
self-regulate in response to stress arises from the caregiver-child relationship in the early years of life. Disruption in this relationship will impede the child’s self-development.13 This theory will
9 The Prosecutor v Germain Katanga (Order for Reparations pursuant to Article 75 of the Statute), ICC-01/04-01/07-3728-tENG, TCII (24 March 2017) para. 176.
10 ibid para. 134.
11 Peter Fonagy, ‘The transgenerational transmission of holocaust trauma’ (1999) 1 Attachment & Human Development pg. 94.
12 Nigel Field, ‘Intergenerational transmission of trauma stemming from the Khmer Rouge Regime an attachment perspective’ in Beth Van Schaack, Daryn Reicherter, Gillian Reierson, Cambodia’s Hidden Scars:
Trauma Psychology and the Extraordinary Chambers in the Courts of Cambodia (2nd Edition Documentation
Centre of Cambodia 2016) pg. 101.
13Bosquet Enlow M, Egeland B, Carlson E, Blood E, Wright RJ, ‘Mother-infant attachment and the
intergenerational transmission of posttraumatic stress disorder’ (2014) 26(1) Development and Psychopathology pg. 43-44.
8
be further explained in Chapter three (Chp. 3, Sect. III, Part A). Secondly, the epigenetic transmission theory, according to this theory, biological alterations occur when a parent is exposed to trauma, which results in the child re-experiencing that trauma as if it is their own.14 This occurs due to an increased amount of methyl in the glucocorticoid receptor, which affects the bodies’ natural response to stress. The scientific research supporting this theory will be explored further in Chapter 4. The objective of this research is to examine whether suffering from transgenerational harm should give rise to reparations at the ICC. An examination of the restrictive interpretation taken in the Katanga decision will shed light on whether a more flexible approach should have been taken. In light of the theories for transgenerational harm and interpretation in other international courts, such as the International Court of Justice (hereinafter: ICJ), the European Court of Human Rights (hereinafter: ECtHR), and the Inter-American Court of Human Rights (hereinafter: IACHR), this research aims to propose other possible interpretations and approaches that the ICC should have taken.
II. Research question
This research will discuss the possibility of extending the ICC’s reparations scheme to be inclusive of those suffering from transgenerational harm. The main research question is the following: Whether the ICC should award reparations to victims who are suffering from
transgenerational harm? This research will focus on the Katanga decision as this is the first
and only time the Court has ruled on transgenerational harm. The Chapter following this will address the question of whether transgenerational can fulfil the general requirements for reparations at the ICC and what was the rationale behind rejecting the applicants alleged to be suffering from transgenerational harm. In the third chapter, the focus will be on whether interpretations from other international courts (ECtHR, ICJ, and IACHR) could have enriched the ICC own understanding and result in a more flexible outcome. The fourth chapter will examine whether there is a scientific basis that this harm exists and what are the implications of this scientific evidence for the ICC.
14 Fiona Gardner ‘Transgenerational processes and the trauma of sexual abuse’ (1999) 2:3 The European Journal of Psychotherapy, Counselling & Health pg. 297.
9
III. Research methods
This research will employ classic legal research methods to determine what is the law in relation to transgenerational harm at the ICC. Firstly, the current practice for reparations will be assessed to determine the parameters for reparations. This will be informative of whether transgenerational harm can in practice lead to reparations at the ICC. Then an annotation of the Katanga decision will be provided in order to establish what is the current practice at the ICC regarding transgenerational harm. Then the rationale for rejecting the applicants alleged to be suffering from transgenerational harm will be critically analysed.
In light of the issues faced in the Katanga decision, approaches in other international courts (ECtHR, IACHR and ICJ) will be consulted to provide a normative interpretation in order to help enrich the understanding at the ICC. This guidance can then be used to alter the current mindset at the ICC.
This research will contain interdisciplinary elements as results found in the scientific field will be used to offer a supplementary perspective for the legal analyse and evaluations. The scientific research consulted will be studies conducted showing the impact of trauma on the offspring of survivors. This data is instrumental to this research as it illustrates the existence of transgenerational harm and the effects that this harm has.
IV. Structure of the Research
The following Chapter outlines the practice at the ICC for reparations. Chapter two will examine the substantive elements that need to be fulfilled for an order for reparations to be made. This Chapter will then critically analyse the Katanga judgment. Chapter three will discuss approaches taken in other international courts in relation to the issues the ICC faced in the Katanga decision. This will involve assessing how these courts have dealt with issues surrounding the chain of causation and a presumption that the harm suffered by a direct victim can result in harm to family members due to a close relationship. This chapter will also deal with the attachment theory, as this is important for understanding the parallel between transgenerational harm and harm suffered by indirect victims. The fourth chapter will be examining the scientific research conducted in this area to determine the existence of this harm. This will be achieved through an assessment of case studies done on the offspring of survivors
10
of the Holocaust, the Rwanda genocide, and babies of mothers exposed to the World Trade Centre attacks. The implication of this scientific research will then be assessed in the context of reparations at the ICC.
11
Chapter Two: Transgenerational harm at the International Criminal Court
I. Introduction
The ICC addressed transgenerational harm for the first time in the Katanga reparation judgment.15 The Court rejected the request for reparations by five applicants alleged to be suffering from transgenerational harm. The Legal Representative for the Victims (hereinafter: LRV) and the Office of Public Counsel for Victims (hereinafter: OPCV) appealed this decision; however, the Court remained firm in its decision.16 This chapter seeks to address the question of whether transgenerational can fulfil the general requirements in practice for reparations at the ICC and what was the rationale behind rejecting the applicants alleged to be suffering from transgenerational harm.
Firstly, section II of this chapter will examine the substantive requirements for reparation at the ICC. These substantive requirements will be examined to get a better understanding of what needs to be proven and established by applicants in order to receive reparations at the ICC. This will lead to better insight on whether transgenerational harm can fall within the purview of this Court as a matter of law. The requirements that will be examined are: (A) identifying eligible victims; (B) types of possible harm; (C) the necessity for an order to be directed against the convicted person; (D) causal nexus between the harm suffered by the victims and the crimes for which the person was convicted; and, finally, (E) the standard of proof.
Secondly, section III will analyse the current approach taken to transgenerational harm at the ICC. The Court has only made one ruling on transgenerational harm; therefore, the scope of this analysis will be limited. However, this ruling set out different elements that need to be established to receive reparations, and the Court set out reasons for rejecting reparations for transgenerational harm. Therefore, we will explore these in more detail and analyse the decision.
15 Katanga (Order for Reparations), supra note 9, para. 132.
16 The Prosecutor v. Germain Katanga (Decision on the Matter of the Transgenerational Harm Alleged by Some Applicants for Reparations Remanded by the Appeals Chamber in its Judgment of 8 March 2018), ICC-01/04-01/07-3804-Red-tENG, TCII (19 July 2018) para. 142.
12
II. The Substantive Elements for Reparations
The Court is empowered to award reparations to victims through Article 75. This procedure is further elaborated in Rule 94 to 99 of the ICC Rules and Procedure of Evidence (hereinafter: RPE). The Court has held that there are five essential elements that must be part of any reparations order. These five essential elements are:
1. It has to be directed against the convicted person, even if they cannot pay for the reparations.
2. The convicted person is obliged to remedy the harm caused by the crimes for which they are convicted. So, the order must establish and inform the convicted person of their individual liability.
3. The order must specify the type of reparations ordered—either collective, individual or both. It must also outline the reasons for ordering the type of reparations.
4. The order must define the harm caused to direct or indirect victims as a result of the crime for which the person was convicted.
5. The reparation order must identify eligible victims. Eligibility of the victims is based on the link between the harm suffered by the victims and the crimes for which the person was convicted.17
In light of the requirements set out above, this section will examine: (A) identifying eligible victims; (B) types of possible harm; (C) the necessity for an order to be directed against the convicted person; (D) causal nexus between the harm suffered by the victims and the crimes for which the person was convicted; and finally (E) the standard of proof.
17 The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the Appeals against the “Decision Establishing the Principles and Procedures to Be Applied to Reparations” of 7 August 2012 with Amended Order for
13
A. Identifying eligible victims
The Court can make orders for reparations to victims and also in respect of victims pursuant to Article 75(2).18 In accordance with Rule 85 RPE, victims are defined as natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court, and it includes organizations or institutions that have sustained direct harm.19 Therefore, Rule 85 does not explicitly mention indirect victims. However, the wording of Article 75(2) allows for reparations in respect of indirect victims. According to Dwertmann, the use of the wording ‘in respect of’ was done to widen the scope of potential victims who can benefit from reparations at the ICC by encompassing those who may have been indirectly affected. The objective of using the words in respect of was to ensure that as many individuals as possible who can be affected by the crime can benefit and this would contribute to restoration in the broader sense.20 Further, the Court has taken a flexible approach in the application of Rule 85.21 This was embraced by the PTC II whereby the requirements for Rule 85 were outlined in very broad and general terms and were not limited to individual victims but were applied to a broader category of victims encompassing ‘affected groups.’22
The wide interpretation of the concept of victims can be found in the preparatory works for reparations. A proposal made by France and the United Kingdom indicated that reparations will not be limited to direct victims but shall encompass all victims who fall within the definition in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.23 This Declaration recognises that victims of crime include their families, witnesses,
18 The Rome Statute of the ICC (adopted 17 July 1998, entered into force 1 July 2002). 19 Rules of Procedure and Evidence of the ICC (2002) UN Doc PCNICC/2000/INF/3/Add.3. 20 Eva Dwertmann, The Reparation System of the International Criminal Court: Its Implementation,
Possibilities and Limitations (Martinus Nijhoff Publishers 2010) pg. 111-113.
21 Tatiana Bachvarova, ‘Victims’ Eligibility before the International Criminal Court in Historical and Comparative Context’ (2011) 11 International Criminal Law Review 665 pg. 667.
22 The Situation in the Republic of Kenya (Order to the Victims Participation and Reparations Section Concerning Victims' Representations Pursuant to Article 15(3) of the Statute), ICC-01/09-4, PTC II (10 December 2009) para. 9.
23 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of the ICC, UN Doc. A/CONF.183/C.1/WGPM/L.28. 26 June 1998. pg. 5.
14
and those who aided the direct victim.24 This is further exemplified in a footnote in which the
Special Working Group stated that “such a provision refers to the possibility for appropriate reparations to be granted not only to victims but also to others such as the victims' families and successors.”25
In order to determine who can be classified as an indirect victim for the reparations scheme, the Court needs to assess whether there is a close relationship between the direct and indirect victim.26 The Court has recognised that the meaning of “family” can vary depending on different cultural and social backgrounds and, the Court ought to have regard for the applicable cultural and social variations in a given case.27
Hence, the wording of Article 75 is sufficiently broad to include those who allegedly suffer from transgenerational harm. They would fall into the category of victims covered by the term “in respect of victims,” i.e., they would be classed as indirect victims.
B. Types of possible harm
Harm is not specifically defined by the Rome Statute or the RPE. Pursuant to Article 21(1), the Court can apply where appropriate other legal instruments. In accordance with the Court’s jurisprudence, the sources in Article 21(1)(b) and 21(1)(c) is applicable when there is a lacuna in the written law.28 The Court has stated in conformity with Article 21(3) harm should be
interpreted in light of internationally recognized human rights standards and have made
24 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc. A/RES/40/34 1985. Para. A (2).
25 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC, supra note 23, pg. 5.
26 The Prosecutor v. Thomas Lubanga Dyilo (Decision establishing the principles and procedures to be applied to reparations), ICC-01/04-01/06-2904, TCI (18 January 2008) para. 195.
27 ibid para. 195.
28 The Prosecutor v. Germain Katanga (Judgment pursuant to article 74 of the Statute), ICC-01/04-01/07-3436-tENG, TCII (7 March 2014) para. 39 and 47.
15
reference to international instruments that contain a more detailed definition.29 The Court held
that in accordance with Principle 8 of the Basic Principles and Guidelines on Remedy and Reparation harm includes: physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights.30
Furthermore, the Court has affirmed that material, physical or psychological harm, if suffered personally by the victims falls under the scope of Rule 85.31 This is consistent with the approach adopted in international law, where reparations for various types of non-pecuniary injury is readily available.32 Although this type of loss can be difficult to assess in economic or financial terms, this does not exclude reparations for this type of loss.33 This was asserted in the Lusitania arbitration, where the Commission stated that “the mere fact that [these forms of harm] are difficult to measure or estimate by money standards makes them nonetheless real and affords no reason why the injured person should not be compensated therefore as compensatory damages.”34
However, it is of essential importance that in order to satisfy the harm criteria, the harm suffered must be a result of a crime within the jurisdiction of the Court.35 Another critical element in establishing harm suffered is that harm must be personally suffered by the victim. The Court
29 The Prosecutor v. Thomas Lubanga Dyilo (Decision on victims' participation), ICC-01/04-01/06-1119, TCI (18 January 2008) para. 92.
30 United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law
UN Doc. A/C.3/60/L.24 (16 December 2005) para. 8.
31 The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008), ICC-01/04-01/06-1432, AC (11th July 2008) para. 32.
32 Some Examples: Gage (United States v. Venezuela) 9 RIAA 226; Lusitania Cases (United States v. Germany) 7 RIAA 32, pg. 35; Chevreau (France v. Royaume Uni) 2 RIAA 1113.
33 Conor McCarthy, Reparations and Victim Support in the International Criminal Court (Cambridge University Press 2012) in Reparations and Victim Support in the International Criminal Court pg. 110.
34 Lusitania Cases (United States v. Germany) 7 RIAA 32, pg. 40.
35 The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008) Partly Dissenting opinion of Judge G.M. Pikis, ICC-01/04-01/06-143210, AC (11 July 2008) para. 3.
16
has stated that harm to direct victims can result in harm being suffered by an indirect victim.36
The loss, injury, or damage suffered by the former gives rise to harm being suffered by indirect victims.37
The Court has elaborated on the different types of harm and damages that would warrant reparations pursuant to Article 75. They include: (1) physical harm; (2) moral harm or non-material damage; (3) non-material loss; (4) lost opportunities; and (5) costs.38 The Court has clarified what these types of harms can encompass. Firstly, physical harm includes inflicting any physical injury, including causing an individual to lose the ability to carry a child. Second, moral harm and non-material damage is harm resulting in physical, mental, and emotional suffering. The Court further stated that moral harm should be estimated without taking the economic situation of the local population into consideration.39 Third, material damage includes the loss of earnings and the opportunity to work; the loss of, or damage to, property; unpaid wages or salaries; other forms of interference with an individual's ability to work; and the loss of savings.40 Fourth, lost opportunities encompass things relating to employment, education, social benefits, loss of status, and interference with an individual’s legal rights.41 The fifth relates to the cost of legal or other experts, medical expenses, and psychological and social assistance.42
Therefore, transgenerational harm can be regarded as psychological and emotional harm. If this harm is suffered by indirect victims, this can result in reparations once it is suffered personally by the victims.
36 Prosecutor v. Thomas Lubanga Dyilo (Redacted version of "Decision on 'indirect victims'"), ICC-01/04-01/06-1813, TCI (8April 2009) para. 49.
37 ibid para. 49.
38 Lubanga (Decision establishing the principles), supra note 26, para. 230.
39 The Prosecutor v. Ahmad Al Faqi Al Mahdi (Reparations Order), ICC-01/12-01/15, TVIII (17 August 2017) para. 43.
40 Lubanga (Decision establishing the principles), supra note 26, para. 230. 41 ibid para 230.
17
C. The necessity for an order to be directed against the convicted person
Reparation orders are intrinsically linked to the individual whose criminal liability has been established and whose culpability has been determined during the proceedings.43 Reparations are dependent on a criminal conviction and can only be granted if there is a judgment against an accused person.44 This restriction on the Court’s ability to order reparation only after a conviction has been handed down is due to the ICC’s nature as a criminal court.45 This can be considered problematic given the standard for fairness and equality as victims whose offender has not been prosecuted before the Court or where the offender has not been convicted for the particular harm caused to them will not be eligible victims.46 For example, in Lubanga, civilians targeted by Lubanga’s troops were not officially recognised as victims because he was only convicted of enlisting and using child soldiers.47
The principle of accountability of the offender applies in all cases.48 This interpretation is supported in Article 82(4) which states that a convicted person may appeal against the order for reparations without any conditions and in Rule 98 which requires an award against a convicted person for the purpose of both individual and collective reparations.49 Furthermore, the drafting history of the Statute, especially the Zutphen Draft of the Preparatory Committee,
43 Lubanga (Appeals against the “Decision Establishing the Principles”), supra note 17, para. 65
44 William Schabas, The Rome Statute of the International Criminal Court. A Commentary, (2nd Edition Oxford University Press 2016 pg. 1140; M Cherif Bassiouni, Introduction to International Criminal Law (Transnational Publishers Inc 2003) pg. 528; Mikaela Heikkila, International Criminal Tribunals and Victims of Crime (Turku 2004) pg. 282.
45 Dwertmann, supra note, 20 pg. 68-70. 46 ibid pg. 68-70.
47 The Prosecutor v. Thomas Lubanga Dyilo (Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A) and public annexes 1 and 2), ICC-01/04-01/06-3129, AC (3 March 2015) para. 197.
48 Carsten Stahn, ‘Reparative Justice after the Lubanga Appeal Judgment’ (2015) 13 Journal of International Criminal Justice 801 pg. 805.
18
shows that the drafter’s intention was to hold the accused responsible for their crimes.50 This
is evident as the Zutphen draft makes reference to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which states that “offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants.”51
Moreover, the Court held that a convicted person’s liability must be proportional to the harm that they have caused and be inter alia for their involvement in the commission of the crimes which they have been found guilty of by the Court.52
Hence, it can be concluded that with respect to transgenerational harm, the alleged harm must have occurred as a result of the crime the person was convicted.
D. The causal nexus between the harm suffered by the victims and the crimes for which the person was convicted
In accordance with Rule 85(a) RPE, a victim is a person who has suffered as a result of the commission of a crime. If the alleged harm is not a result of the subject-matter of the particular criminal proceedings, a causal nexus cannot be established, and the alleged victims will not be granted victim status.53 The reparations scheme at the ICC requires a link between the harm
suffered and the crime that the accused has been convicted.54 However, neither the Statute nor
the RPE has specifically set out what the standard of causation is.55 The Court follows the view
50 General Assembly Report of The Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The
Netherlands, A/AC.249/1998/L.13 (4th February 1998) pg. 117.
51 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc. A/RES/40/34 1985 Section A (8).
52 Lubanga (Appeals against the “Decision Establishing the Principles”), supra note 17, para. 6 53 Bachvarova, supra note 21, pg. 703.
54 Situation in the Democratic Republic of Congo (Decision on the Applications for Participation in the
Proceedings of VPRS 1-6), ICC-01/04-101-tEN-Corr, PTC 1 (19 January 2006) para. 79.
19
that causal link between the crime and the harm suffered need to be determined based on the specifics of a given case.56
In the Lubanga decision, the defendant argued that international courts had taken a restrictive approach with regard to causation.57 However, this argument was rejected by the Court. The Appeals Chamber stated that the standard of causation is a but-for relationship between the harm and the crime. It was further held that the crimes of which the person was convicted were the “proximate cause” of the harm for which reparations are sought.58 This approach has been
endorsed in subsequent reparation orders.59 When assessing “proximate cause,” the Court will consider inter alia whether it was reasonably foreseeable that the acts and conduct which the accused was convicted of would cause the resulting harm.60
The standard of causation is assessed on a case-by-case basis. However, reparations are not limited to “direct” harm or the “immediate effects” of the crime.61 This indicates that the Court
takes a flexible approach to causation. Therefore, to establish causation for transgenerational harm, the harm need not be an immediate effect of the crime but rather result from a proximate cause.
56 Lubanga Dyilo (Appeals against the “Decision Establishing the Principles”), supra note 17, para. 80. 57 The Prosecutor v. Thomas Lubanga Dyilo (Mr Thomas Lubanga’s appellate brief against the Decision establishing the principles and procedures to be applied to reparations issued by the Trial Chamber on 7 August 2012), ICC-01/04-01/06-2972-tENG, AC (5 February 2013) para. 174.
58 The Prosecutor v. Thomas Lubanga Dyilo (Order For Reparations (amended)), ICC-01/04-01/06-3129-AnxA, AC (3rd March 2015) para. 59.
59 Katanga (Order for Reparations), supra note 9, para. 162; Al Mahdi (Reparations Order), supra note 39, para. 44
60 ibid Al Mahdi para. 44.
20
E. The Standard of Proof
The evidentiary standard during reparation proceedings requires the applicant to provide sufficient proof that there is a causal link between the crime and the harm suffered based on the specific circumstances of the case.62
The Court has applied a less exacting standard of proof for reparations than what is applied in the trial stage, where the commission of the crime must be proven beyond a reasonable doubt.63 The reasons behind this can be attributed to the difficulties that victims can face when trying to obtain evidence to support their claim due to the destruction or the unavailability of evidence.64 The Court has recognised this difficulty in finding that the available proof of identity may not be of the same type as they would be in other less tumultuous areas.65 Attempts by the Court to resolve such issues can be seen in a number of sources. For example; Rule 94(1)(g) states that any relevant supporting documentation, including names and addresses of witnesses, can be used to make a request for reparations.66
Furthermore, when reparations are awarded through the Trust Fund for Victims (hereinafter: TFV), the Court will take a flexible approach to determine what factual matters are appropriate, taking into consideration the nature of the crime and the number of victims.67
The Court has affirmed that the standard of proof required is on the balance of probabilities.68
Therefore, it needs to be established on the balance of probabilities that the alleged transgenerational harm is a result of the crime that the perpetrator was convicted of.
62 Schabas, supra note 44, pg. 114.
63 Lubanga (Decision establishing the principles), supra note 26, para. 251. 64 Bachvarova, supra note 21, pg. 669.
65 The Situation in Uganda (Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06), ICC-02/04-101, PTC II (10th August 2007) para. 15.
66 RPE, supra note 19.
67 Lubanga (Decision establishing the principles) supra note 26, para. 253. 68 Al Mahdi (Reparations Order), supra note 39, para. 44.
21
F. Assessment
Parts A to E has outlined the different elements required for an order for reparations. It has been established that relevant applicants can, in principle, meet all of the requirements, transgenerational harm. This can be concluded for the following reasons: (1) indirect victims have been recognised by the court; (2) emotional suffering can qualify as a type of harm for the purposes of reparations; (3) transgenerational harm can be the result of a crime that a person is convicted of; (4) causation need not be direct but rather that of proximate cause; and finally, (5) the causal link needs to be established on the balance of probabilities. Since transgenerational harm can, in practice fulfil the five essential elements for reparations set out by the ICC. It is now necessary to examine the rationale for rejecting the applications by those who alleged to be suffering from this type of harm in the Katanga case.
III. The rationale behind rejecting transgenerational harm in the Katanga case
This section will now examine the reparation order made in the Katanga case whereby the Court denied reparations for applicants alleged to be suffering from transgenerational harm.
Germain Katanga was convicted of one count of crimes against humanity and four counts of war crimes. Subsequent to a conviction at the ICC, an order for reparation is to be made. In this case, there were five applicants who alleged to be suffering from transgenerational harm and sought reparations. The Court ultimately rejected these five applications.69
This section will now examine the rationale behind rejecting these applications.
A. Procedural background relating to transgenerational harm in the Katanga case
Trial Chamber II held that on the balance of probabilities the causal nexus between the trauma suffered by the children of the direct victims and the attack on Bogoro could not be
22
established.70 The Chamber found that there had been insufficient evidence to establish the link
between the crimes which Mr. Katanga was convicted of and eventual harm suffered by the children of direct victims.71 Nonetheless, despite finding that there was insufficient evidence to determine on a balance of probabilities the causal nexus between the trauma suffered and the attack on Bogoro, the Court stated that “those applicants are, in all likelihood, suffering from transgenerational psychological harm.”72
This decision was ultimately appealed by the LRV. The LRV submitted that the Trial Chamber erred in two ways:
1. The Trial Chamber erred in its application of the relevant standard of proof.
2. The Trial Chamber failed to take into account all the evidence in respect of findings of harm attributed to the five applicants and failed to provide reasons for rejecting the report.73
The OPCV responded in agreement with the grounds of appeal raised by the LRV and further stated that the Trial Chamber failed to provide sufficient reasoning for its rejection of transgenerational harm.74
The Appeals Chamber made two important findings. Firstly, it held that the correct standard of proof had been applied.75 Secondly, it found that the Trial Chamber erred by failing to provide
proper reasoning for its decision in relation to the causal nexus between the attack on Bogoro and the harm suffered by the Five Applicants.76 The Appeals Chamber reversed the Trial
Chamber's findings in relation to the five applicants and held that it was appropriate for the
70 ibid para. 176.
71 ibid para. 134. 72 ibid para. 134.
73 The Prosecutor v Germain Katanga (Judgment on the appeals against the order of Trial Chamber II of 24 March 2017 entitled “Order for Reparations pursuant to Article 75 of the Statute”), ICC-01/04-01/07-3778-Red, AC (9 March 2018) para. 221.
74 ibid para. 232. 75 ibid para. 236. 76 ibid para. 259.
23
Trial Chamber to reassess the causal nexus between the crimes for which Mr. Katanga was convicted and their psychological harm.77 The subsequent section will now examine in detail
the Court’s rulings on the standard of proof and the causal nexus.
B. The Standard of Proof
On the first ground of appeal, the LRV argued that if the Chamber had applied the correct standard of proof, on the balance of probabilities, it would have determined that there was a causal link between the harm suffered by five applicants and the attack in Bogoro.78
The LRV based its argument on the fact that the Court predominantly accepts that when a person has died as a result of crime within the Court’s jurisdiction, indirect victims can claim harm, provided they can establish that a close relationship existed between themselves and the direct victim.79
The LRV further pointed out that for three of the five applicants, the Court had found that emotional harm had been caused by the attack against one of their parents. For the fourth applicant, the Court should have taken into account the mother’s trauma and its link to the child’s trauma. For the fifth applicant, the Chamber should have given consideration to a medical certificate, which mentions his mother’s trauma.80
Therefore, the LRV argued that the Trial Chamber should have looked at whether on the balance of probabilities the harm suffered by the children was a result of the parents’ suffering which would then qualify the children as indirect victims of the attack.81 The LRV submitted
77 ibid para. 260. 78 ibid para. 227. 79 ibid para. 227. 80 ibid para. 228. 81 ibid para. 230.
24
that such harm should be “presumed” to exist by virtue of the close relationship, drawing from the principle that the death of a close person can warrant reparations.82
The Appeals Chamber held that the LRV needed to demonstrate that based on the evidence before the Court, no reasonable trier of fact could have refused to draw such a presumption. The Appeals Chamber found that the LRV did not argue for such presumption, but instead, they focused on the idea that it was possible to establish a link once trauma and the conditions necessary for its transmission had been established in a parent. Therefore, the Appeals Chamber held that the LRV failed to prove that such presumption existed.83 Moreover, the Chamber noted that the applicant must provide sufficient proof of the causal link between the harm suffered and the crime of which the person is convicted. The Court held the LRV failed to provide exactly how this reasoning had any bearing on the applications other than the fact that some of the parents have suffered psychological harm as a result of the attacks on Bogoro.84
Despite finding that the LRV had failed to prove that such presumption existed, the Appeal Chamber declined to elaborate on how such presumption could have been proven. This is unfortunate as this would have been useful for future cases. As the Court has accepted this presumption in relation to the death of a close person, there are sufficient grounds to believe that this can also be used with regard to transgenerational harm. As in accordance with the attachment theory, a disruption in the relationship between the child and the primary caregiver can impede the child’s self-development. A parallel can be drawn between a disruption due to death or trauma. As both can affect the child’s relationship with their primary caregiver, which interferes with the child’s emotional development and their ability to react to stress. From a moral standpoint, it would be unsatisfactory if the death of a parent was necessary to meet the threshold for reparations. When trauma to a direct victim occurs as a result of a crime that adversely affects the direct victim’s child, this should merit reparations. Moreover, as previously discussed, the standard of proof for reparations is to be proven on the balance of probabilities. This means that the harm does not need to be a direct cause of the crime but can
82 The Prosecutor v. Germain Katanga (Document in Support of the Appeal against the Order for Reparations under Article 75 of the Statute with its Annex II), ICC-01/04-01/07-3745-tENG, AC (27 June 2017) para. 47. 83 Katanga (Appeals against the “Order for Reparations) pursuant to Article 75 of the Statute”), supra note 74, para. 236.
25
be of proximate cause. Therefore, it seems inconceivable that when a parent’s trauma has evidently impacted on their child’s life that this would not meet the low standard of proof. The presumption of harm as a result of a close relationship will be further examined in the following chapter, assessing how this presumption has been established in other international courts. This chapter will also further explain the attachment theory. This will demonstrate the parallel between close family relationships and transgenerational harm.
C. Causal Nexus
Trial Chamber II set out the parameters for establishing the requisite causal nexus for the
Katanga case. The Court recalled that it is necessary to set out the causal nexus between the
crime and the harm in light of the specific case at hand. The Court stated that Mr. Katanga was convicted for having a part in the design of the attack on Bogoro and for providing weapons to the Ngiti combatants.85 The Court held that where the applicants have established that the harm was a consequence of the attack on Bogoro, they have established the requisite causal nexus to be awarded reparations.86
The LRV ultimately appealed the Trial Chamber’s finding that it could not establish a causal link between crimes Mr. Katanga was convicted of and the transgenerational harm suffered by the victims. As a result, the Chamber made several determinations to establish the requisite causal nexus.
First, the Chamber found that with regard to transgenerational harm, the closer the date of birth of the applicant to the attacks that were carried out in Bogoro, the more likely it is that transgenerational harm exists as it is more likely that the attack impacted the applicant.87 This is accepted if there were no other traumatic events between the attack and the date of birth. However, if the date of birth is farther away from the 24th of February 2003, the more likely it
85 ibid para. 166.
86 ibid para. 166.
26
is that other factors have contributed to psychological harm suffered by children of the direct victims.
Second, the Chamber considered that the parents suffered from combined anxieties such as those triggered by the insecurity of the region as well as other contextual factors.88 Therefore, the Chamber found that this affects the proximate cause standard, which requires that the crime must be sufficiently related to the harm to be the cause of the harm.
Third, the Chamber held that it is possible that factors and events predating the attack on Bogoro may have also contributed to the suffering of the applicants.89 This conclusion could be reached as the tension between the Hema and Lendu escalated in 2001. Furthermore, all the militias which were present in the district of Ituri between 2002 and 2003 launched an attack and assaulted unarmed civilians.
The Trial Chamber II was of the opinion that other factors such as the insecurity in the area and other armed attacks that occurred in the region made it difficult to establish the causal link as it was possible that other factors contributed to the harm. However, most of the crimes before the Court take place in unstable regions whereby several attacks take place in short periods. Therefore, this could be true for all reparation claims before the Court.
The difficulty of determining a direct link was recognised in Tadić case which stated that international crimes “do not result from a single propensity of a single individual but constitute manifestations of collective criminality: the crimes are often carried out by groups of individuals acting in pursuance of a common criminal design.”90 Moreover, the harm caused
to victims is oftentimes the result of several combined actions committed by more than one person.91
The proximate cause approach is taken by the Court because it means that it is not necessary to prove direct harm but rather whether the harm is closely related to […], and it was reasonably
88 ibid para. 30.
89 ibid para. 31.
90 The Prosecutor v. Tadić (Judgement), Case No. IT-94-1-A, AC (15 July 1999) para. 191. 91 Malin Åberg, ‘The Reparations Regime of the International Criminal Court’ (2005) pg. 19.
27
foreseeable that the commission of the crime could result in such harm. Therefore, when conceiving an attack on an already unstable region, it is not unforeseeable that the crime will have a psychological impact on the victims. Furthermore, if the general criminal law maxim is applied that the defendant must “take their victims as they find them,”92 it should be held
that economic and contextual factors of the region should not preclude an applicant from claiming reparations.
IV. Conclusion
The Court rejected the applications for reparations from those who alleged to be suffering from transgenerational harm. The rationale for this rejection was because the applicants failed to show on the balance of probabilities that the necessary causal nexus had been proven. The Court further held that the presumption of harm as a result of a family relationship argued by the LRV was not sufficient to meet the standard of proof. The Court did not set out criteria or propose potential factors that could be used to illustrate the causal nexus between transgenerational harm and the crime in which the defendant is convicted. Instead, the Court provided vague reasons for their decision such as that the pre-existing insecurity in the region and attacks predating the Bogoro attack contributed to the applicants suffering. This reasoning is inadequate as the standard of proof for reparations is the balance of probabilities and the causal nexus is of proximate cause, not a direct cause. Therefore, this is a low threshold to be satisfied, which can be met in relation to transgenerational harm.
Despite the Court’s dealing with transgenerational harm in three different decisions when ruling on reparations for the purpose of the Katanga case, the requisite causal nexus is still ambiguous. The Court’s failure to establish a clear set of guidelines that could be used in future cases is unfortunate as this was the Court’s first chance to rule on transgenerational harm. The next chapter will examine approaches taken by different international courts with the intention of resolving the issues faced by the ICC.
92 R v. Robert Konrad Blaue [1975] 61 Cr. App. R. 271. pg. 3 The Court of Appeal held that the refusal by a Jehovah’s witness for a blood transfusion after being stabbed was not a novus actus intervenviens for the purpose of legal causation despite evidence showing she would not have died if she had the blood transfusion.
28
Chapter Three: Resolving the issues encountered at the ICC
I. Introduction
This chapter seeks to address the problems encountered by the ICC when making an order for reparations with regard to transgenerational harm by examining approaches taken in other international courts. The central purpose of this chapter is to resolve the issues that arose in the
Katanga decision.
Firstly, an issue encountered by the ICC was that due to other contextual elements, the chain of causation could not be proven. The Court held that due to ongoing conflict and instability in the region, the causal nexus between the harm suffered by the victim’s children could not be established. Therefore, section II will assess how the chain of causation has been dealt with at the ICJ and ECtHR specifically looking at how a causal link is established and when it can be broken. This section will also look at the difference between “cause” and “mere condition” through consulting legal philosophy.
Secondly, the ICC held that the standard of proof could not be established as it had not been proven on the balance of probabilities that it can be presumed that harm exists due to a family relationship. Hence, we will delve into the jurisprudence of the ECtHR and IACHR on this particular issue; the goal will be to demonstrate how one proves harm as a result of a family relationship. This section will first discuss the attachment theory as this will demonstrate the parallel between victims of transgenerational harm and indirect victims who have suffered as a result of injury to family members.
The purpose of this chapter is to consult other court’s jurisprudence for a normative interpretation in order to enrich the ICC’s understanding. The different courts’ jurisprudence will be used to determine whether the ICC should have reached a different conclusion in the
Katanga case.
II. Chain of causation
In the Katanga decision, it was held that due to the insecurity in the area, the Court could not prove the chain of causation as other factors may have contributed to the harm. In order to
29
establish whether or not transgenerational harm can exist at the ICC, we need to examine when causation can exist and when this chain can be broken. Firstly, section A will look at the legal philosophy differentiating between a cause and a mere condition. Secondly, section B will examine the case law of other international courts to determine when the chain of causation can be broken.
A. Differentiating between Causes and Mere Conditions
When examining causation, it can be broken down into cause and mere conditions. The cause is what brings about the actual event, whereas the mere conditions are other factors that are present. Hart and Honoré use the example of a fire, or a train accident, a dropped cigarette or a bent rail would be the cause.93 Then “mere conditions” would be factors such as the presence of oxygen in the air, the presence of material or the dryness of the building. For the railway accident, the factors would include speed, the load, the weight of the train, and the routine stopping or accelerating of the train.94 These factors would be present if an accident occurred or not, which leads us to reject them as the cause of the accident even though the accident would not have happened without them.95 The mere conditions will not be universal features of our environment; instead, they are normal features of the particular thing in question.96 It is
departures from the normal course of events, described as abnormal features, that determine the cause of the thing in question.
Stapleton indicated that Hart and Honoré declined to elaborate on the normative basis for courts refusing liability.97 Stapleton asserts that such normative basis can be established.98 For example, if someone is speeding and hits a pedestrian who then has to be brought to the hospital
93 H. L. A. Hart and Tony Honoré., Causation in the Law (2nd Edition, Oxford University Press 1985) pg. 34. 94 ibid pg. 34.
95 ibid pg. 34. 96 ibid, pg. 34.
97 Jane Stapleton ‘Causation in the law’ in Helen Beebee, Christopher Hitchcock and Peter Menzies (eds), The
Oxford Handbook of Causation (First Edition, Oxford University Press 2009) pg. 759.
30
by ambulance. If the ambulance were hit by lightning on the way to the hospital, the person would not be liable for injuries as a result of the lightning as this was a coincidental consequence. Speeding did not increase the probability of lightning. However, if the damages were due to the lightning igniting inflammable vapour, this would not be coincidental. This indicates that refusal of liability should be based on whether or not the harm caused was coincidental.
According to Wright, the basic concept for causation is formalized in the NESS test. Which states “a condition C was a cause of a consequence E if and only if it was necessary for the sufficiency of a set of existing antecedent conditions that was sufficient for the occurrence of E.”99 If we take the fire example from earlier, the oxygen, the presence of the materials or the dryness of the walls are sufficient for the occurrence of a fire, but the cigarette is necessary.
When assessing this philosophy in light of conflict areas such as Bogoro, it can be argued that predating conflicts and contextual instability are conditions rather than causes. Contextual instability and predating tensions or conflicts that occurred before the crime are standard features when assessing areas of conflict. These can be held to be conditions while the cause is behaviour that departs from the current situation in the region. Furthermore, psychological harm to both direct and indirect victims would not be coincidental to warrant the refusal of liability. Finally, if we apply the NESS test for causation, pre-existing conflicts and insecurity in the region would be the existing antecedent conditions which would be sufficient for the occurrence of the consequence. However, the intentional killing and pillaging of a village would be necessary for transgenerational harm.
The Court ascertained that the link could not be drawn between the crime and transgenerational harm suffered by the victims. This was due to other factors being present, which meant that a direct link could not be made. If these other factors are “mere conditions” rather than the cause, these conditions should not negate an applicant's ability to claim reparations.
99 Richard W Wright ‘The NESS Account of Natural Causation: A Response to Criticisms’ in Richard Goldberg (eds.), Perspectives on Causation (Hart Publishing 2011) pg. 289.
31
B. How have other international tribunals dealt with the chain of causation
When a multitude of crimes and events are occurring, it is difficult to determine the exact cause of the harm or whether these other events have broken the chain of causation. To reconcile these issues, we will examine approaches taken in relation to the chain of causation by different international courts. This will help us formulate a conclusion as to whether other conditions, such as those mentioned in the Katanga decision, regional insecurity, and ongoing conflict, can prevent an order for reparation concerning transgenerational harm. Slaughter stated that through looking abroad, judges could approach a problem more creatively or with more significant insights as a broader range of ideas and experiences will be provided.100 The reason for assessing different courts’ jurisprudence in the following section will not be for authoritative interpretation but rather to help provide a broader range of ideas that can establish the most meaningful understanding of the chain of causation.
When establishing that the commission of a crime leads to transgenerational harm, difficulty can arise in determining the direct causal link. It is challenging to ascertain the prime cause of this harm. The ICJ requires that “for the purposes… of reparation, it must specify the nature of the injury and establish the causal link with the initial wrongful act”.101 However, the Court
has established that all types of damage that are linked to the wrongful act, regardless of how “remote the causal link between the acts and the damaged concerned”102 can give rise to
reparations. While the ICJ and the ICC differ in primary function,103 when questions of general
international law arise at the ICC, the Court should be guided by any relevant pronouncement
100 Anne-Marie Slaughter ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal pg. 201.
101 Congo v. Uganda (Case Concerning Armed Activities on the Territory of the Congo), Judgement (2005) I.C.J. Rep. (19th December 2005) para. 258.
102 ibid para. 24.
103 The ICJ’s function is to decide in accordance with international law disputes between states that are brought before it and to give advisory opinions on any legal questions at the request of whatever body may be authorized by or in accordance with the Charter… to make such a request. The ICC’s function is to exercise its jurisdiction over persons for the most serious crimes of international concern as referred to in the Statute and shall be complementary to national criminal jurisdictions.
32
of the ICJ.104 Furthermore, as the ICJ is an organ of the UN, the relationship agreement means
both courts have mutual recognition for the other.105 As the chain of causation is a general
principle of law, the ICJ can guide the ICC’s interpretations. The ICJ’s interpretations are relevant to transgenerational harm as the ICJ has taken a more liberal interpretation in comparison to the ICC in Katanga.
The chain of causation was further examined in the Reports of International Arbitral Awards. These awards are seen as a subsidiary source of law and are essential for the progressive development of international law. These reports can further supplement the ICC’s understanding of the chain of causation in international law. In these Reports, it was stated that the causal connection could be broken when there is negligence on the part of the one suffering, his agent or by some other intervening cause.106 However, they held that since the damage was a direct consequence of the hostilities, it was not the result of the negligence of another party.107 Further, the Report stated that while damage may be remote in time when the damage caused is the result of a particular thing carrying out its intended function effectively reparations can be ordered.108
When harm suffered is a coincidental consequence of the defendant’s action, then the chain of causation is broken, and they cannot be held liable. In order to break the chain of causation according to the ECtHR, “the intervening cause must… be so powerful and so unexpected that the conduct of the person concerned cannot be seen as the cause.''109 In this case, the Court had
to examine whether the chain of causation was broken due to the alteration of the trajectory of
104 Shabtai Roseanne ‘The International Criminal Court and the International Court of Justice: Some points of Contact in Jose Doria, Hans-Peter Gasser and M. Cherif Bassiouni (eds) The Legal Regime of the International
Criminal Court (Nijhoff 2009) pg. 1004.
105 Negotiated Relationship Agreement between the International Criminal Court and the United Nations ICC-ASP-3-Res1_English Article 3 pg. 2.
106 United States v. Germany (Mixed Claims Commission) Rep. of International Arbitral Awards Vol. VII (1939) pg. 203. The Court was referring to mines planted by belligerents during a period of belligerency. After signing the Armistice Declaration, the mines then caused damages to ships. The Court held that the lapse in time or the signing of the declaration did not alleviate liability as the mines carried out their intended function. 107 The damage suffered by the American national was caused by the mines which was a direct result of the initial conflict. Therefore, Germany was obligated to pay compensation.
108 United States v. Germany supra note, 108, pg. 202. 109 Giuliani and Gaggio v. Italy, 23458/02 (2009) pg. 86.
33
the bullet as a result of striking a stone. Ultimately the Court decided that this did not break the chain of causation as it was foreseeable that even if the bullet did not directly strike off one the protestors, it was likely to ricochet off something, and this would result in death or serious injury to one of the protestors. If the intervening factor is reasonably foreseeable, then it cannot be regarded as a novus actus interveniens. The ECtHR’s interpretations can be influential on the ICC as international criminal law discourse presumes human rights jurisprudence to be highly authoritative.110 Furthermore, the ICC frequently refers to the ECtHR’s jurisprudence without stating any reasons.111 This compliance with the case law of the ECtHR is because it can be regarded as evidence of the contents of that customary rule.112 The ECtHR’s interpretation of breaking the chain of causation can be used to offer the ICC a different perspective on the concept.
The interpretation mentioned above can be important for the ICC’s own interpretation of the chain of causation. These interpretations can offer guidance to the ICC on this principle. In the
Katanga decision, the Court took a restrictive interpretation of the chain of causation by finding
that other factors can readily break the chain of causation. If the Court were to take guidance from the case law mentioned above a different outcome could have occurred. As when international crimes are carried out in an unstable region, this instability will not reach the threshold of being “so powerful or so unexpected” as it would be presumed that ongoing
110 Sergey Vasiliev ‘International Criminal Tribunals in the Shadow of Strasbourg and Politics of Cross-fertilisation’ (2015) 84 Nordic Journal of International Law pg. 373.
111 The Prosecutor v. Harun and Al-Rahman, (Decision on the Prosecution Application under Article 58(7) of the Statute), 02/05-01/07-1, PTC I (27 April 2007) para. 28; The Prosecutor v. Katanga and Ngudjolo Chui, (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial State of the Case), 01/04-01/07-474, PTC I (15 May 2008) para. 32; The Prosecutor v. Lubanga, (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application of stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”), 01/04-01/06-1486, AC (21 October 2008) paras. 47–48; The Prosecutor v. Katanga, (Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”), 01/04-01/07-475, AC (12 May 2008) para. 57; The Prosecutor v.
Bemba Gombo, (Judgement on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of PreTrial
Chamber iii entitled “Decision on application for interim release”), 01/05-01/08-323, AC (16 December 2008) paras. 28–33.
112 The Prosecutor v. El Sayed, (Order assigning Matter to Pre-Trial Judge), ch/pres/2010/01, (15 April 2010) para. 26.
