1. Introduction
The International Criminal Court (ICC or the Court) is the first international(ized) penal jurisdiction with the authority to award reparations to victims.Footnote 1 This competence, set down in Article 75(1) of the Rome Statute,Footnote 2 is one of the most praised features of the ICC system.Footnote 3 Despite its significance, the statutory framework of the Court on reparations is very rudimentaryFootnote 4 and the practice of the ICC in this area remains scarce,Footnote 5 with only five reparation orders issued in approximately two decades: in the Lubanga,Footnote 6 Katanga,Footnote 7 Al Mahdi,Footnote 8 Ntaganda,Footnote 9 and Ongwen Footnote 10 cases. As Luke Moffett claimed, ‘there has yet to be a shared understanding on how reparations should look at the ICC’.Footnote 11
Arguably, the most consequential of those five cases in the realm of reparations was Lubanga, in which, in March 2015, the Appeals Chamber established the general principles on reparations that the Court has been using ever since (Lubanga principles).Footnote 12 Although some developments were introduced in Katanga Footnote 13 and Al Mahdi Footnote 14 to adapt and expand the framework put in place by the Appeals Chamber, the reparations order issued in Ntaganda stands out as the ruling in which for the first time, the Lubanga principles were expanded more substantially.Footnote 15 Besides other innovations,Footnote 16 the Ntaganda Trial Chamber may have instituted a shift in the ICC towards seeing financial liability for reparations solely through compensatory lenses. This shift materialized in two main aspects. First, the Trial Chamber determined that the primary factors in determining the convicted person’s monetary liability are the harm caused to victims and the costs to repair it, excluding from the analysis factors pertaining to the convicted person’s degree of participation and culpability in the crimes that gave rise to the harm and the potential monetary liability of others for the same offenses.Footnote 17 Second, if there is a plurality of perpetrators, all of them are jointly and severally responsible in solidum for the damages,Footnote 18 meaning that ‘the victim can recover the full amount of reparations from one of the responsible actors, which can, in turn, require compensation from the other responsible actors that may have contributed to the damage’.Footnote 19
This article evaluates the new approach to financial liability for reparations asserted in Ntaganda, presenting a critical analysis of those two main aspects the case introduced. As the methodological setting for this evaluation, the present piece ratifies the assertion by Tomas Hamilton and Göran Sluiter that the legal regime on reparations at the ICC has been developed mostly on the basis of ‘shaky doctrinal foundations’ instead of a rigorous assessment of legal sources.Footnote 20 As they argued, while Article 75(1) of the Rome Statute provided the judges of the Court with significant latitude to establish principles relating to reparations, this provision should not be interpreted as granting the Court carte blanche to exercise this competence.Footnote 21 Rather, Article 75(1) should be applied with due deference to Article 21 of the Statute,Footnote 22 the provision listing the sources of law the Court must rely on.Footnote 23
After presenting in more detail the two innovations on monetary liability for reparations the Ntaganda case brought (Section 2), the article will assess this new approach in three steps. First, in line with Article 21(2) of the Rome Statute, it will discuss how these innovations should be seen in light of the ICC’s case law prior to the Ntaganda reparations order (Section 3). Second, taking a systemic perspective, the article will compare the developments in Ntaganda with the jurisprudence of the hybrid criminal courts with competence to grant reparationsFootnote 24 (Section 4). Third, it will evaluate whether those two innovations could be considered general principles of law derived from the national legal systems of the world, in the sense of Article 21(1)(c) of the Rome Statute (Section 5).
2. The Ntaganda reparations order: A new approach on financial liability for reparations in the ICC
On 8 March 2021, the Ntaganda Trial Chamber issued its reparations order, finding Bosco Ntaganda (Ntaganda) liable for USD 30,000,000.Footnote 25 After the Appeals Chamber partially reversed the decision,Footnote 26 the Trial Chamber published an addendum to its original order on 14 July 2023, enhancing parts of its reasoning and increasing Ntaganda’s liability to USD 31,300,000.Footnote 27 The Appeals Chamber upheld the addendum on 1 November 2024.Footnote 28 This section aims at presenting the innovative method the Ntaganda Trial Chamber laid down to determine the monetary liability for reparations in the ICC, with focus on two aspects: (Section 2.1) the exclusion of factors other than the harm suffered by the victims and the costs to repair it; and (Section 2.2) the explicit recognition of joint and several liability.
2.1 The exclusion of factors other than the extent of the harm and the costs to repair it
According to the Ntaganda Trial Chamber, to ascertain the quantum of reparations to which a convicted person is liable, ‘the primary consideration should be the extent of the harm and the costs to repair it. Other criteria, such as modes of liability, gravity of the crimes, or mitigating factors are not relevant to this determination’.Footnote 29 The amount of liability ‘must be proportionate to the harm caused, in the specific circumstances of the case. The responsibility of other persons, organizations, or State responsibility is irrelevant to this determination’.Footnote 30 The convicted person’s financial situation, including their destitution, and the availability of funds of the Trust Fund for Victims (TFV) are also immaterial.Footnote 31
The Ntaganda Trial Chamber replicated the Lubanga principle which states that ‘[r]eparation orders are intrinsically linked to the individual whose criminal liability is established in the conviction and whose culpability for the criminal acts is determined in a sentence’.Footnote 32 Yet, the sole focus on the harm caused and the cost to repair it entails an important resignification of this principle. In this new paradigm, the conviction and sentence operate exclusively as the factual boundaries for identifying the crimes covered by the conviction and the resulting harm, as a person continues to be liable exclusively for the damage derived from the crimes for which they were found guilty.
The conviction and sentence should have no other impact on how the monetary responsibility of the convicted person is determined. In particular, the mode of liability that the conviction was based on and the degree of culpability that informed the sentence have no bearing on the monetary quantum of reparations to be imposed. This approach is consistent with the understanding that ‘the goal of reparations is not to punish the person but indeed to repair the harm caused to others, the objective of reparation proceedings being remedial and not punitive’.Footnote 33 It is also more in line with the rationale that causation for reparations refers to the causal link between the crime and the harm suffered by the victims rather than between the individual conduct of the convicted person in the commission of the crimes and the harm resulting from this conduct.Footnote 34 Accordingly, Ntaganda was found liable for the totality of the harm caused by the crimes he was convicted of, with the Trial Chamber making no inquiry or reference to Ntaganda’s personal degree of contribution and participation in the harm.
Nevertheless, the conclusion that a person’s culpability is inconsequential to determining their monetary liability does not mean that factors taken into account to mitigate or aggravate their sentence will necessarily be irrelevant in the context of reparations as a whole.Footnote 35 These factors could be given weight in the reparations proceedings when they reduce or increase the level of harm suffered by the victims.Footnote 36 Therefore, pursuant to the Ntaganda case, these elements may play a role in the Trial Chamber’s factual assessment of the victims’ harm but not in determining the convicted person’s financial liability for the totality of such harm.Footnote 37 The same could be said about the gravity of the crime: although this factor shall not impact the person’s liability for reparations as such,Footnote 38 the Ntaganda Trial Chamber stated that the severity of the offences could be considered to assess the harm suffered, especially when the latter is unquantifiable in financial terms.Footnote 39
The Appeals Chamber found no error in the Trial Chamber’s reasoning and conclusions concerning monetary liability.Footnote 40 Accordingly, this matter was not addressed in detail in the addendum to the Ntaganda reparations order, with the Trial Chamber simply ratifying its previous legal findings.Footnote 41
2.2 Joint and several liability
The applicability of joint and several liability became a pressing issue in the Ntaganda case due to the overlapping victims for crimes regarding child soldiers between this case and the Lubanga case, as Ntaganda and Lubanga, both members of the same armed group, were found guilty of these same crimes, referring to some of the same victims.Footnote 42 It was, thus, necessary to determine the relationship between the monetary liability of the two convicted persons, in particular whether the previously established liability of Lubanga and the ongoing implementation of his reparations order regarding some of the same victims and harm could reduce Ntaganda’s amount of liability.Footnote 43
In response to this legal question, the Ntaganda Trial Chamber ruled that, if two or more offenders committed the same crimes, they have a shared responsibility for the harm derived from their common offences.Footnote 44 All co-offenders are jointly responsible in solidum to pay reparations for the full extent of the victims’ harm.Footnote 45 Therefore, one co-perpetrator could be found liable for the total amount necessary to repair the harm caused by the crimes they were convicted of, regardless of whether others persons contributed to the harm or were already convicted for the same crimes at the ICC or elsewhere.Footnote 46 Similarly, the ongoing implementation of a reparations order previously issued against one of the co-perpetrators and encompassing the same harm and victims is immaterial in the determination of the financial liability of the other co-perpetrators.Footnote 47 At most, a future Trial Chamber could consider the reasoning and the amounts in such a prior reparations order only for the sake of consistency and to avoid confusion among the victims, despite not being bound by the previous award.Footnote 48 In conclusion, the previously established financial liability of Lubanga for some of the same victims and harm is immaterial in the subsequent determination of Ntaganda’s liability.Footnote 49
As a corollary to the application of joint and several liability, any co-perpetrator who repairs, in whole or in part, the harm caused to the victims may seek to recover from the other co-perpetrators their proportionate share.Footnote 50 In addition, all co-perpetrators ‘remain liable to reimburse the funds that the TFV may eventually use to complement the reparation awards for their shared victims’.Footnote 51 The above-mentioned right of recovery also applies to reimbursement to the TFV.
Even though the convicted person is responsible for the total harm caused to all victims of the crimes for which they were found guilty,Footnote 52 according to the ‘no over-compensation’ principle, when numerous persons are jointly liable in solidum, victims are not allowed to be financially compensated multiple times for the same harm.Footnote 53 However, the Ntaganda Trial Chamber stressed that this principle is relevant only during the implementation phase of the reparations order, having no bearing on the quantification of the award.Footnote 54
The Appeals Chamber confirmed the application of joint and several liability,Footnote 55 but instructed the Trial Chamber to clarify two points.Footnote 56 The first one was how the imposition of this type of liability impacts the overall amount of reparations. The addendum to the Ntaganda reparations order elucidated that, as a result of Ntaganda and Lubanga being jointly and severally liable in solidum for the harm from the crimes pertaining to the same child soldiers, ‘both individuals are liable for the full amount of reparations owed to the victims of the crimes for which they were convicted’.Footnote 57 Thus, to determine the liability of Ntaganda, the Trial Chamber had to calculate the total damage of his crimes and the costs to repair such harm. The fact that Lubanga was convicted of some of the same offenses, impacting some of the same victims, had no bearing in the determination of the quantum of reparations for which Ntaganda was liable. The allotment of the proportional cut of monetary liability between Ntaganda and Lubanga for their shared harm is immaterial and does not need to be specified in the context of reparation determination, as this issue will become relevant only eventually, if one of the paying co-perpetrators intends to claim reimbursement from the other co-perpetrator(s).Footnote 58 This recovery between the multiple persons responsible for their shared harm ‘is an issue to be dealt with by the co-perpetrators among themselves and does not impact on the liability to be imposed by the Court’.Footnote 59 In summary, the imposition of joint and several liability implies that the overall amount of reparations in one specific case must represent the total sum of costs to repair all harm derived from the crimes of the conviction in question, regardless of the eventual recovery of the proportional shares of liability between the multiple co-perpetrators.
The second point the Appeals Chamber flagged up was how liability in solidum impacts the apportionment of the award of reparations between the victims. The addendum to the reparations order divided the victims in the Ntaganda case into four groups: (i) overlapping victims of crimes against child soldiers between the Ntaganda and the Lubanga cases;Footnote 60 (ii) additional Ntaganda-only victims of crimes against child soldiers;Footnote 61 (iii) victims of the attacks;Footnote 62 and (iv) victims of the attack on the Sayo health centre.Footnote 63 The Trial Chamber separately calculated the costs to repair the total harm suffered by the victims of each of these groups, and subsequently, it summed up all the per-group amounts.Footnote 64 Therefore, other than the understanding that Ntaganda is liable for the totality of harm endured by the victims of each of these groups, the application of liability in solidum had no bearing in the determination of the overall quantum of reparations imposed on Ntaganda. Regarding the overlapping victims of Ntaganda and Lubanga in specific, they were both found liable for USD 10,000,000, an amount that, as indicated above, reflects the total harm suffered by their shared victims. There was no apportionment between Ntaganda and Lubanga concerning their overlapping victims.Footnote 65
3. The ICC’s case law prior to the Ntaganda case
3.1 The evolving jurisprudence on monetary liability in the ICC
This section will assess the development of the ICC’s case law on liability for reparations before the Ntaganda case. It evaluates the jurisprudence in three parts: (Section 3.1.1) the Lubanga principles of 2015; (Section 3.1.2) the reparations orders issued by the Trial Chambers in the Katanga, Al Mahdi, and Lubanga cases; and (Section 3.1.3) the appeal judgments regarding the orders in Katanga and Lubanga.
3.1.1 The Lubanga principles
The Lubanga principles dictated that the amount for which the convicted person is liable should be ‘proportionate to the harm caused and, inter alia, his or her participation in the commission of the crimes for which he or she was found guilty, in the specific circumstances of the case’.Footnote 66 The Appeals Chamber added that ‘the scope of a convicted person’s liability for reparations may differ depending on, for example, the mode of individual criminal responsibility established with respect to that person and on the specific elements of that responsibility’.Footnote 67
In contrast to the Ntaganda case, the Lubanga principles tied the assessment of the quantum of reparations to the personal degree of participation and culpability of the defendant in the crimes, to the effect that the harm to the victims and the costs to repair it are not the sole factors to be considered in determining the convicted person’s financial liability. Furthermore, apart from the conclusion that the reparations orders issued by the Court ‘do not interfere with the responsibility of States to award reparations to victims under other treaties or national law’,Footnote 68 the Lubanga principles did not address the possibility of multiple persons being concurrently liable for the same crimes and harm, including the application of joint and several liability.
3.1.2 The Trial Chambers in the Katanga, Al Mahdi, and Lubanga cases
The year 2017 was particularly enriching for the ICC’s case law on reparations, as it was the year in which the Trial Chambers issued the awards in the three cases before Ntaganda (Katanga, Al Mahdi, and Lubanga). In March 2017, the Katanga Trial Chamber released its reparations order, which followed the Lubanga principles regarding financial liability. Although the total monetary amount of the extent of the harm was USD 3,752,620,Footnote 69 Katanga’s conviction as an accessory,Footnote 70 and the fact that many other persons contributed to the crimesFootnote 71 led the Trial Chamber to set his liability at USD 1,000,000.Footnote 72 The Chamber expressly stated that, if the crimes had multiple perpetrators, the convicted person should not be liable for the totality of the harm suffered by the victims, as joint responsibility ‘cannot be imported into the particular context of cases before this Court’.Footnote 73 Deciding otherwise would require a Trial Chamber to go beyond the confirmed charges and the evidence submitted by the parties during the trial.Footnote 74 Thus, liability in solidum was unequivocally rejected in Katanga.Footnote 75
In August 2017, the Al Mahdi Trial Chamber also ratified the Lubanga principles in its reparations order. In determining Al Mahdi’s financial liability, the Chamber stressed that he was convicted as a co-perpetrator and personally organized and participated in the attack against the protected buildings in Timbuktu.Footnote 76 He was found liable for EUR 2,700,000.Footnote 77 Yet, different from the Katanga case, the Al Mahdi Trial Chamber did not consider it necessary to specify whether this figure constituted the sum-total of the harm caused by the crimes.Footnote 78 The Chamber stated that this amount ‘is specific to Mr Al Mahdi and what [the Chamber] considers to be a fair assessment of his liability alone’.Footnote 79
Although no explicit or specific determination was made in the Al Mahdi case on whether the quantum of reparations reflected the totality of harm from the crimes or only a part of it, the reasoning of the decision provides some insights. Although other persons contributed to the crimes, Al Mahdi was found liable for the totality of the costs the United Nations Educational, Scientific and Cultural Organization (UNESCO) incurred in the restoration of the ten protected buildings for whose destruction he was convicted.Footnote 80 This finding has been interpreted as an implicit endorsement of liability in solidum,Footnote 81 even though the Chamber did not explicitly state so. Lastly, the calculation of economic loss and moral harm derived from Al Mahdi’s crimes was not spelt out in specific terms in the decision,Footnote 82 preventing any conclusion for this study.
In December 2017, the Trial Chamber published the award of reparations against Lubanga, the ICC’s first convicted person. The Chamber endorsed the Lubanga principles by stating that ‘the scope of liability for reparations may differ depending on the mode of individual criminal responsibility established vis-à-vis the convicted person and on the specific elements of that responsibility’.Footnote 83 The Chamber proceeded to examine Lubanga’s degree of responsibility in the criminal enterprise and other factors, in particular his role as the military and political leader of his armed group, his conviction as a co-perpetrator, his essential contributions in implementing the common plan shared with other co-perpetrators, and the severe and widespread nature of the crimes.Footnote 84 The Lubanga Trial Chamber clarified that its findings were ‘confined to determining Mr Lubanga’s individual liability for reparations’.Footnote 85 Accordingly, similar to Al Mahdi and different from Katanga, the Chamber did not stipulate the global amount of damages suffered by all victims eligible for reparations in the case and then apportion Lubanga’s share of liability from this global amount in light of the multiplicity of co-perpetrators and his personal degree of participation.
Notwithstanding the lack of specific and explicit findings on the quantum of total harm and the apportionment of liability, the reasoning of the Lubanga reparations order indicates that, despite the plurality of co-perpetrators, the Trial Chamber found Lubanga liable for the totality of the harm, at least with regard to the damage suffered by the 425 identified victims.Footnote 86 It seems that the Chamber adopted this approach due to Lubanga’s leadership position, his conviction as a co-perpetrator, and the gravity of the crimes. This conclusion derives from the Chamber’s indication that it took ‘into account the above considerations and factors pertaining to Mr Lubanga’s individual responsibility’ in determining the award.Footnote 87 This finding is also corroborated by the fact that, previously, Katanga’s accessorial mode of liability was considered to mitigate his financial liability.Footnote 88 As a co-perpetrator, Lubanga was convicted as a principal,Footnote 89 which could justify his greater responsibility for reparations in comparison to Katanga. Similar to Lubanga, Al Mahdi was also convicted as a principal.Footnote 90 It appears that, according to the Trial Chamber, Lubanga’s central role in the criminal enterprise and the gravity of his offences justified his full financial liability for reparations. Analogous to the Al Mahdi case, this outcome in Lubanga has been interpreted as an application of liability in solidum,Footnote 91 irrespective of the fact that the Lubanga Trial Chamber did not explicitly state so.
In conclusion, the scarce case law in the first instance prior to the Ntaganda case considered that the convicted person’s degree of culpability and participation, including the mode of criminal liability and its elements, remained an important component of financial liability for reparations, alongside causation and the costs to repair the harm suffered. However, the Al Mahdi and Lubanga Trial Chambers (and the Appeals ChamberFootnote 92 ) rejected the initial position from the Katanga case that the existence of a multiplicity of persons responsible for the crimes necessarily prevents finding one of them liable for the total quantum of reparations required to fully repair the harm derived from all the crimes of the conviction. The Al Mahdi and Lubanga reparations orders indicate that if the defendant is convicted as a perpetrator and had a prominent role in the criminal enterprise, the Trial Chambers seem willing to find that person liable for the totality of the harm resulting from the crimes, notwithstanding the plurality of persons who had jointly or separately contributed to such offences. An a contrario reading of the Al Mahdi and Lubanga reparations orders also seems to endorse the Katanga Trial Chamber’s reliance on Katanga’s accessorial contribution to the crimes as a basis for reducing his financial liability for reparations, given that other persons had a much greater degree of culpability than Katanga for the crimes in question.
Lastly, despite the explicit rejection of liability in solidum in Katanga, subsequent decisions in Al Mahdi and Lubanga seem more inclined to accept this modality of responsibility, even though joint and several liability was never explicitly acknowledged. One could speculate that the Trial Chambers’ willingness to categorically affirm the irrelevance of the existence of multiple perpetrators but, at the same time, their reluctance to openly embrace joint and several liability could be a strategy to avoid the difficulties pertaining to the scope of application of this modality of responsibility and the implementation of recovery among the co-perpetrators. Unlike its predecessors, the Ntaganda Trial Chamber rose to the occasion and addressed some of these issues, although not fully.Footnote 93
3.1.3 The Appeals Chamber in the Katanga and Lubanga cases
The Appeals Chamber issued judgments on the three reparations orders prior to the Ntaganda case (Katanga,Footnote 94 Al Mahdi,Footnote 95 and Lubanga Footnote 96 ). Considering that the financial liability of the convicted person was not addressed in the Al Mahdi appeal judgment, the latter will not be assessed in this article.
The 2018 appeal judgment regarding the Katanga reparations order could be seen as an endeavour to shift the ICC’s jurisprudence on liability for reparations, even though the Appeals Chamber arguably adopted a conflicting position.Footnote 97 On the one hand, the Appeals Chamber reaffirmed the understanding from the Lubanga principles that financial liability for reparations should be proportionate to the harm caused and, inter alia, the convicted person’s degree of participation and culpability.Footnote 98 On the other hand, the Chamber innovated by adding that this legal finding ‘does not mean … that the amount of reparations for which a convicted person is held liable must reflect his or her relative responsibility for the harm in question vis-à-vis others who may also have contributed to that harm’.Footnote 99 Different from the Katanga Trial Chamber,Footnote 100 the Appeals Chamber deemed as ‘irrelevant’ the question of whether other individuals may also have contributed to the harm,Footnote 101 establishing that ‘it is not, per se, inappropriate to hold the person liable for the full amount necessary to repair the harm’.Footnote 102 The Chamber concluded that ‘the focus in all cases should be the extent of the harm and cost to repair such harm, rather than the role of the convicted person’.Footnote 103
The appeal judgment could be read as an endorsement of joint and several liability, and a reversal of the Katanga Trial Chamber’s rejection of this notion. Yet, the legal significance of the convicted person’s degree of participation and culpability in this new paradigm brought by the Appeals Chamber in Katanga, seemingly centred on the harm and the cost to repair it, remained unclear. The Appeals Chamber avoided openly overturning its previous findings on financial liability in the Lubanga principles, which had been used in all three reparations orders up until that point (Katanga, Al Mahdi, and Lubanga). Instead, the Appeals Chamber attempted to re-signify its principle on financial liability via a new understanding but without setting aside its original wording. To quote Marina Lostal, the result was a contradictory reasoning, in which ‘the Appeals Chamber both endorsed and rejected the principle’.Footnote 104
The legal position of the Appeals Chamber became clearer the following year, in its 2019 judgment on the award of reparations in the Lubanga case. The Appeals Chamber replicated its legal findings from Katanga,Footnote 105 concluding that Lubanga could be found liable for the victims’ total harm, notwithstanding the existence of other co-perpetrators who contributed to such harm.Footnote 106 However, the Appeals Chamber saw no error in the fact that the Trial Chamber took Lubanga’s criminal responsibility and the gravity of the crimes into account to determine the sum of reparations for which he was liable.Footnote 107 Thus, the same apparent contradiction that Lostal identified in the Katanga appeal judgment was replicated in the Lubanga judgment.
The critical difference in the Lubanga appeal judgment, however, was that the Appeals Chamber qualified in more detail the meaning of its previous legal findings in Katanga. The Chamber explained that its Katanga judgment should not be interpreted as restricting the flexibility of trial judges in deciding their methodology to fix the award of reparations.Footnote 108 The Appeals Chamber’s conclusion in Katanga that it is correct for a Trial Chamber to centre its assessment primarily on the cost to repair the harm, simply means that:
it is appropriate for the trial chamber to focus on the cost to repair. How much the trial chamber is able to focus on the cost of repair will depend on the circumstances of a given case. Importantly, a trial chamber’s failure to do so does not necessarily constitute an error.Footnote 109
The Appeals Chamber added that, in setting the quantum of reparations:
the trial chamber must also ensure that it takes into account the convicted person’s rights and interests. The goal is to set an amount that is fair and properly reflects the rights of the victims, bearing in mind the rights of the convicted person.Footnote 110
Seen together, the Katanga and Lubanga appeal judgments indicate that the Appeals Chamber’s current position is that both approaches are legally valid: (i) focusing exclusively on the harm and the costs to repair it, setting aside as immaterial any other factor; and (ii) materially considering, in the determination of the quantum of reparations, the convicted person’s degree of participation and additional factors besides the costs to repair the harm. In the eyes of the Appeals Chamber, permitting these two approaches does not entail an unwarranted contradiction. Instead, it arguably reflects a deliberate legal position aimed at ensuring the appropriate degree of discretion to the Trial Chambers in establishing the financial quantum of reparations for which a convicted person is liable in light of the concrete circumstances of each case. Accordingly, the Trial Chambers can choose, depending on the specific facts of the case, either of the two approaches described above. The Appeals Chamber will a priori not interfere with these choices because, as far as this Chamber is concerned, they do not constitute legal errors that should be corrected via appellate review.
In conclusion, although the Appeals Chamber highlighted the importance of not losing sight of the compensatory function of the ICC’s reparations process, stressing that the Trial Chambers should have due regard to the extent of the harm and the cost to repair it, this was not presented in absolute terms by the Appeals Chamber. The latter’s ambivalent position, granting margin for the Trial Chambers to continue relying on the convicted person’s degree of contribution or culpability, may lead to discrepancies and uncertainties in the ICC’s jurisprudence. Persons convicted of similar crimes, perhaps even in the same situation, may be found liable for different amounts of reparations because of the distinct legal approaches on monetary liability adopted by their respective Trial Chambers. Consequently, the Appeals Chamber could have relied on the law-ascertaining powers granted by Article 75 of the Rome Statute and its inherent role as the ultimate umpire of the law at the ICC, to settle the applicable principle on financial liability, similar to what it had originally done in the Lubanga principles. In fact, the distinctive approach to liability that emerged in the Ntaganda case is evidence of the disparities that may emerge in the Court’s case law to the detriment of both the convicted person and the victims.Footnote 111
3.2 Assessment considering the Ntaganda case
Different from the previous jurisprudence in the first instance, the Ntaganda case explicitly indicated that the primary factors in determining monetary liability should be the harm caused and the costs to repair it,Footnote 112 excluding other elements that Trial Chambers had considered in the past, such as the modes of liability, the responsibility of other persons, and the gravity of the offences.Footnote 113 In one sense, the Ntaganda case could be seen as unoriginal, as its rationale on monetary liability had already been introduced, to some extent, by the Appeals Chamber in the Katanga case three years earlier.Footnote 114 However, the most important contribution of Ntaganda was the affirmation of such rationale in unequivocal terms, bringing about an explicit amendment to the Lubanga principles with regard to financial liability for reparations.Footnote 115 The same could be said about the pioneering explicit recognition of joint and several liability in Ntaganda.
The Al Mahdi and Lubanga Trial Chambers had imposed, at least to a certain extent, full financial liability in their respective cases, having the same outcome as that espoused in Ntaganda. The key difference in those two cases, however, was that the degree of participation by the defendants, among other factors, substantiated the Trial Chambers’ decision to apply full monetary liability, at least to part of the harm. Al Mahdi’s and Lubanga’s leading role in their respective criminal enterprises was one of the main grounds that their full liability was based upon. The legal approach proposed in the Ntaganda case is fundamentally different, centring the determination of the award of reparations on the harm caused and the cost to repair it. Any other factor, including the mode of liability and degree of participation, should not be part of a Trial Chamber’s assessment in determining the award.
For instance, the application of the approach from Ntaganda to the Katanga case would likely lead to the conclusion that Katanga should be responsible for the full extent of the harm caused by all crimes in his verdict, notwithstanding his conviction as an accessory.Footnote 116 In addition, the Al Mahdi and Lubanga Trial Chambers refused to make explicit findings on whether the award of reparations they imposed reflected the totality of harm caused by the crimes.Footnote 117 This would be inadequate under the approach from the Ntaganda case since a Trial Chamber must set the convicted person’s liability at no less than the total harm derived from all crimes of the conviction.
4. External jurisprudence
4.1 Comparative jurisprudential review
Besides the ICC, the Extraordinary Chambers in the Courts of Cambodia (ECCC),Footnote 118 the Extraordinary African Chambers (EAC),Footnote 119 the Kosovo Specialist Chambers (KSC),Footnote 120 and the Special Criminal Court in the Central African Republic (SCC)Footnote 121 also have jurisdiction to award reparations. The present section compares the case law on financial liability of these four hybrid courts. As a preliminary disclaimer, their jurisprudence on reparations is very scarce, with a body of decisions even smaller than that of the ICC: except for the ECCC, which issued rulings on reparations in three separate cases,Footnote 122 the other three assessed courts had only one case each that reached the reparations phase.Footnote 123 Unlike the KSC and the SCC, which continue in operation and will likely issue new reparation orders, the EAC and the ECCC have already delivered their final judgments. Therefore, the findings in this section must be seen accordingly.
4.1.1 Extraordinary Chambers in the Courts of Cambodia
The ECCC had a unique reparations regime.Footnote 124 First, the Chambers recognized ‘a severely limited right to reparations’,Footnote 125 confined to collective and moral reparations only.Footnote 126 Although the Civil Parties could be granted benefits that addressed their harm,Footnote 127 individual awards, whether or not of a financial nature, and monetary payments regarding material damages were not allowed.Footnote 128 Second, the determination of reparations at the ECCC was intrinsically linked to the availability of funds, whether of the convicted person or of external sources.Footnote 129 Given that all three convictions by the ECCC referred to indigent persons (Kaing Guek Eav, Nuon Chea, and Khieu Samphan),Footnote 130 the Chambers did not find any of them personally liable for reparations. All reparations were awarded through projects externally funded by third parties.Footnote 131
4.1.2 Extraordinary African Chambers
On 30 May 2016, the EAC Trial Chamber convicted Hissein Habré, former President of Chad, for war crimes, torture, and crimes against humanity.Footnote 132 On 29 July 2016, the same Chamber issued its decision on reparations, indicating that, to determine the quantum of reparations, it should consider the totality of harm suffered by the victims in order to award no less than full reparations.Footnote 133 No other factor than the harm and the costs to repair it was mentioned in the ruling.Footnote 134 Habré was found liable for the totality of these costs,Footnote 135 with his degree of participation in the crimes, the existence of other responsible persons, and the gravity of the offences not being discussed. On 27 April 2017, the EAC Appeals Chamber confirmed the Trial Chamber’s approach.Footnote 136
4.1.3 Kosovo Specialist Chambers
On 6 April 2023, a Trial Panel of the KSC pronounced the reparation decision in Specialist Prosecutor v Mustafa.Footnote 137 Similar to the Ntaganda reparations order in the ICC, issued two years earlier, the Panel explicitly stated that, ‘[i]n determining the amount of the convicted person’s liability for reparations, the primary consideration should be the scope and extent of the harm suffered by the victims’.Footnote 138 It also ruled that the convicted person is liable to repair the whole amount of harm caused by all crimes they were found guilty, ‘regardless of the different modes of liability relied on in the conviction, and regardless of whether others may have also contributed to the harm’.Footnote 139 The convicted person’s indigence was also considered irrelevant, for being an issue pertaining solely to the subsequent enforcement of the award.Footnote 140 Mustafa was found financially liable for the totality of the harm caused by the crimes for which he was convicted.Footnote 141
4.1.4 Special Criminal Court in the Central African Republic
On 31 October 2022, in Special Prosecutor v. Issa Sallet, Yahouba and Mahamat, the Trial Chamber of the SCC issued its first judgment, convicting the three defendants as perpetrators of war crimes and crimes against humanity.Footnote 142 Additionally, Issa Sallet was found guilty as a military commander of acts of rape carried out by his subordinates.Footnote 143 On 16 June 2023, the same Chamber issued the decision on reparations.Footnote 144
Regarding the assessment of monetary liability, the ruling determined that ‘the reparation must be proportionate to the harm as far as possible. Reparations for such a harm must be full, without loss or profit for any of the parties’.Footnote 145 Yet, the Trial Chamber qualified the duty to impose full reparations. Reparative measures whose implementation would require state involvement were not included in the award for lack of jurisdiction, as the Central African government was not a party in the proceedings.Footnote 146 Although the Chamber did not address the degree of participation of the defendants and the existence of a plurality of perpetrators, the decision indicated that the availability of funds to implement the reparations, whether by the convicted persons or by external funders,Footnote 147 should be considered to determine the award. The Trial Chamber ruled that ‘the monetary amounts requested [by the victims were] excessive in view of the financial capabilities of the institutions or bodies responsible for compensating the victims instead of the defendants, who are in a situation of total indigence’.Footnote 148 As a result, ‘these amounts should be reduced to a more reasonable proportion’.Footnote 149
Regarding the concurrent financial responsibility of the three co-defendants, the Trial Chamber followed the same approach as the Ntaganda case. It ruled that ‘[the defendants] are jointly and severally liable to repair the harm caused to the direct and indirect victims of [their] crimes, regardless of the different modes of liability used to conclude that they are guilty’.Footnote 150 Each defendant was found liable for the total sum of the harm caused by the common crimes all three of them were convicted of.Footnote 151 However, given that only Issa Sallet was found guilty of the crime of rape committed by his subordinates, he was solely responsible for bearing the costs to repair the harm resulting from this specific offence.Footnote 152
On 23 October 2023, the Appeals Chamber of the SCC confirmed the approach of the Trial Chamber on financial liability, emphasizing two particular points. First, although specific issues of participation and culpability were not discussed, the Appeals Chamber stressed the general assumption that the monetary liability for reparations of a person is limited to the specific crimes in their conviction.Footnote 153 Second, while the indigence of a convicted person will not necessarily prevent the awarding of reparations,Footnote 154 the appeal judgment highlighted that the Trial Chamber was correct to consider the financial situation of the convicted person and the availability of funds by third parties to enforce the award.Footnote 155 These are necessary factors to be taken into account, the Appeals Chamber noted, due to the need to grant effective rather than hypothetical reparations to the victims.Footnote 156 The Chamber stressed that awarding remedies that likely will never be implemented ‘would run counter to the objective of imposing reparations that are effective and would be a source of confusion and frustration for the victims’.Footnote 157 Hence, the Trial Chambers must pay due regard to the availability of funds in order to award only reparations whose enforcement is ‘probable’.Footnote 158 Lastly, the Appeals Chamber ratified the application of liability in solidum.Footnote 159
4.2 Assessment considering the Ntaganda case
Although limited, the judicial practice on reparations by the ECCC, EAC, KSC, and the SCC gave rise to diverse outcomes in determining financial liability. While the availability of funds to implement the reparation decision impacted the awards in the ECCC and the SCC, this factor was not addressed or was explicitly declared irrelevant in the EAC and KSC, establishing a clear separation between the assessment of the monetary liability of a convicted person and the subsequent enforcement of the reparation decision. The Ntaganda reparations orderFootnote 160 and the ICC’s jurisprudence as a wholeFootnote 161 align with that of the EAC and KSC.Footnote 162
Concerning the elements to be considered in determining the amount of monetary liability besides the availability of funds, in particular the degree of contribution or fault of the convicted person and the existence of multiple contributors to the harm, the ECCC’s case law is of no significance to this inquiry, as the Chambers did not address the individual financial liability of any of their convicted persons. In line with the Ntaganda case, the EAC, KSC, and SCC considered solely the costs to repair the harm caused to the victims of the crimes, rendering inconsequential the convicted person’s mode of liability and individual contribution to the offences. The KSC and the SCC made explicit statements to this effect in their decisions.Footnote 163 While the EAC did not enter a similar explicit assertion in their judgments, their reasoning appears to affirm the irrelevance of these other factors.
The SCC was the only court to unequivocally recognize the application of liability in solidum. The use of joint and several liability by this tribunal could be explained by the fact that the Issa Sallet, Yahouba and Mahamat case had three co-defendants, making it necessary to determine whether proportionate liability or liability in solidum should apply. The latter was the chosen approach, although the SCC gave no specific reason for selecting this alternative. As for the EAC and the KSC, while they did not mention the principle of joint and several liability explicitly, both courts found the defendants liable for the totality of the harm. Therefore, it was in the Ntaganda case that liability in solidum was for the first time explicitly recognized in international criminal justice, soon followed by the SCC in Issa Sallet, Yahouba and Mahamat.
5. General principles of law derived from national legal systems of the world
The law-ascertaining methodology in Article 21(1)(c) of the Rome Statute replicated, mutatis mutandis, the traditional two-step analysis for the identification of general principles of law derived from the domestic jurisdiction of states.Footnote 164 First, it is necessary to evaluate whether the principle may be ‘derived … from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime’.Footnote 165 It is not required, under this step, to consult every single national legal system in the world, being rather sufficient to carry out a ‘wide and representative comparative analys[i]s, covering different legal families and regions of the world’.Footnote 166 It is also important to measure the degree of worldwide uniformity and coherence of the principle in question.Footnote 167 The second step under Article 21(1)(c) of the Statute, as informed by the methodology used by other international tribunals,Footnote 168 is determining the viability of transposing the principle in foro domestico to the ICC. This step usually encompasses a two-prong evaluation: (i) whether the principle is compatible with the legal and institutional framework of international law in general and of the ICC in specific;Footnote 169 and (ii) whether the Court contains the procedural framework for the proper application of the transplanted principle.Footnote 170 The present section will apply these two general steps under Article 21(1)(c) of the Rome Statute to the two main innovations on financial liability brought by the Ntaganda case.
5.1 Exclusion of factors other than the extent of the harm and the costs to repair it
5.1.1 A principle common to the legal systems of the world
The methodology for determining the amount of financial liability under national tort laws varies worldwide. Some states uphold the Ntaganda Trial Chamber’s approach, adopting a form of objective basis of quantification that excludes all elements other than the harm and the costs to repair it.Footnote 171 In contrast, other states espouse a different method, based on an equitable assessment that often takes into account, particularly when dealing with non-material damages, the individual degree of culpability and contribution of the offender as well as the social and economic situation of the victims and the offender.Footnote 172 This cursory comparative analysis indicates that the determination whether the Ntaganda Trial Chamber’s approach to establish financial liability for reparations constitutes a principle common to the legal systems of the world is not a simple undertaking. Further scrutiny is necessary to assess the degree of worldwide acceptance and uniformity of such an approach.
5.1.2 Transposition to the international legal system and the ICC
Although a priori there is support for the compatibility between the fundamental principles of international law and the claim that the determination of the quantum of reparations should be limited to the harm suffered and the costs to repair it,Footnote 173 the application of such claim to the specific context of the ICC is particularly intricate. The issue is as theoretically complex as practically relevant due to the apparent ‘mismatch’Footnote 174 between, on the one hand, the elements and logic inherent to the criminal nature of the Court, such as accountability and punishment, and, on the other hand, the goal of delivering restorative justice to the victims via meaningful and timely reparations. This internal tension within the procedural framework of the Court triggered an intense and ongoing scholarly debate on the degree of detachment that the reparations process should have from the criminal prosecution.Footnote 175 More specifically, the discussion has been whether monetary liability for reparations should lean more towards the criminal nature of the ICC, taking into account the convicted person’s degree of culpability and individual contribution to the harm,Footnote 176 or more towards a victim-centred compensatory function, focused exclusively on the determination of the harm suffered by the victims and the costs to repair it.Footnote 177 Luke Moffett and Clara Sandoval contented that this fundamental disagreement on how reparations should be perceived and calculated has led to an ‘existential crisis’Footnote 178 within the restorative framework of the ICC.
It was with this backdrop that the Ntaganda Trial Chamber decided that the financial liability of the convicted persons should be determined considering primarily the extent of the harm and the costs to repair it. The decision could be viewed as an attempt by the Chamber to overcome the existential crisis diagnosed by Moffett and Sandoval by unequivocally turning to the compensatory perspective. This is evinced by the Chamber’s apparent goal of expunging any criminal law mindset from the reparations process in the ICC and defining such process as a victim-centred and reparative function.Footnote 179
While the resolve of the Ntaganda Trial Chamber to meaningfully incorporate the interests of the victims is commendable, one could question the legal strength of the resulting approach to determine monetary liability.Footnote 180 Hamilton and Sluiter indicated that the proposed primary focus on the harm and the costs to repair it, as articulated by the Ntaganda Trial Chamber, ‘is based too much on doing justice to victims as a normative objective in itself, [running the risk of] being detached from a proper legal construct of individual liability for damages’.Footnote 181 Allowing the Trial Chambers to enforce, in each individual case, their own subjective view of what they perceive is best for the victims, without reference to a solid legal basis for financial liability, might trivialize the reparations process, transforming it into a charitable endeavour.Footnote 182 The open-ended wording of Article 75(1) of the Rome Statute should not be interpreted as a justification for the ICC to free itself from the responsibility to approach its reparations process as a legal and judicial system.Footnote 183
In this regard, there is support in state practiceFootnote 184 and other sourcesFootnote 185 for the claim, somehow casually rejected in Ntaganda, that financial liability for reparations should be linked to the convicted person’s degree of culpability and participation in the commission of the harm. Accordingly, in its attempt to eradicate the remnants of a criminal law mentality from the reparation proceedings at the ICC, pursuant to the ultimate goal of ensuring a victim-driven system, the Ntaganda Trial Chamber may have set aside a component of civil liability that is important for the fairness of the reparations process, that is, the calibration of the quantum of reparations to the convicted person’s individual fault and contribution to the harm. In fact, the approach in the Ntaganda case is arguably more defendable in the context of convicted persons such as Ntaganda, who occupied key positions of leadership, offered a fundamental contribution to the criminal enterprise as a whole, and were convicted as perpetrators under Article 25(3)(a) of the Rome Statute.Footnote 186 On the other hand, the appropriateness of disregarding the convicted person’s degree of fault and participation becomes more questionable if they were convicted under accessorial modes of liability encompassing weaker control over the crimes and less instrumental forms of contribution to the harm.
In addition, some commentators have expressed doubts about the utility and appropriateness of imposing huge monetary awards upon single individuals who will likely never be able to pay or reimburse the TFV. Haydee Dijkstal argued that, besides making the social reintegration of former detainees more difficult,Footnote 187
[a] convicted person who continues to have a large reparations award due for repayment, with no ability to repay that debt, might be fixed into a position which prevents any ability for the convicted person and the victims to work towards reconciliation.Footnote 188
Dijkstal concluded that, if reparations are truly intended to constitute a balance between the rights of the convicted person and victimsFootnote 189 as well as not to punish the former,Footnote 190 ‘a more practical approach’ that meaningfully considers the legitimate interests of the convicted person is necessary in the determination of their monetary liability.Footnote 191 Indeed, references to the rights of the convicted person in the reparations orders at the ICC are often en passant and abstract, with no clear indication of which rights were considered and how they concretely impacted the final award.Footnote 192
Moffett turned to the perspective of the victims, noting that the challenges and frustrations of translating reparations orders into meaningful redress ‘stem from loading reparations for numerous victims on the back of the conviction of a single person’.Footnote 193 Marieke Wierda also cautioned that ‘[t]he Court’s processes on participation and reparations, as currently being implemented, risk constituting only a nominal recognition of victims’ rights’.Footnote 194 The experience in the Democratic Republic of the Congo (DRC) may offer some insights to the ICC. In the context of trials for international crimes at the domestic military courts in that state, numerous reparation awards were issued, often with the application of liability in solidum vis-à-vis the Congolese government.Footnote 195 Yet, the widespread non-implementation of these awards has led to questions about the concrete utility of having the reparation process as well as whether the risk of reprisals and stigmatization that the victims were exposed to after engaging with such process were worth it.Footnote 196 In the same vein, some recent rulings at the ICC and SCC have shown greater sensitivity towards the practical enforcement of the reparations orders, tailoring their content accordingly.Footnote 197 This outcome aligns with the understanding that judges should adopt ‘a holistic and integrated approach which views the reparations proceedings in their entirety, including the post-reparations order implementation stage’.Footnote 198
Despite these significant considerations, the Ongwen reparations order, issued in February 2024, unceremoniously replicated the approach on monetary liability from the Ntaganda case.Footnote 199 The Ongwen Trial Chamber added no significant development or specification to the reasoning previously introduced in Ntaganda.
5.2 Joint and several liability
5.2.1 A principle common to the legal systems of the world
The domestic laws of numerous states, across different regions and legal systems, apply joint and several liability to deal with collective tortious conduct.Footnote 200 In addition, as noted above,Footnote 201 the SCC and military courts of the DRC have applied liability in solidum in trials dealing with international crimes. Roger Alford concluded that ‘joint and several liability is the accepted standard for apportioning liability, at least when the defendants act in concert’, to the effect that such standard can be described ‘as a general principle of law, embodied in the major systems of the world’.Footnote 202
5.2.2 Transposition to the international legal system and the ICC
Joint and several liability a priori seems compatible with both international law and the ICC. As for the former, although the recognition of liability in solidum in international law, particularly for state responsibility, has been the object of resistance and extreme caution,Footnote 203 one can find decisions (although only a few),Footnote 204 treaties,Footnote 205 individual judges,Footnote 206 and scholarsFootnote 207 supporting such recognition. Thus, joint and several liability appears compatible with the fundamental principles of international law.
Regarding the compatibility with the ICC’s system, especially its reparation proceedings, liability in solidum seems suitable for this process. Some features of international criminal justice favour the application of this type of liability,Footnote 208 in particular the fact that the jurisdiction of international penal courts is generally limited to the most responsible persons and that international crimes are often committed jointly by a vast number of individuals through the activities and infrastructure of a collective organization or group. In this context, ‘[a]ttempting to assess the individual liability of a perpetrator for a mass crime in which many bear responsibility may become a quagmire for the Court’.Footnote 209 It is unreasonable to expect that a Trial Chamber will be able to have a global view of all concurrent offenders of the large-scale crimes under its jurisdiction, as a necessary step to accurately determine the convicted person’s proportionate share of liability for reparations vis-à-vis all these other offenders.Footnote 210 Even if feasible, it would be problematic to require a Trial Chamber to speculate about or presume the concurrent criminal and monetary responsibility of others, including persons not even charged by the Court.Footnote 211
The use of liability in solidum is also consistent with the remedial function of the reparation process and with the victim-centred approach promoted by the Court, in particular the effectiveness of the victims’ right to receive reparations.Footnote 212 In the context of international criminality, in which hundreds or thousands of individuals often contribute to the offenses, the application of several or proportionate liability could severely hinder the prospects of the victims receiving full redress, as they would have the enormous burden of judicially pursuing all of these numerous offenders, some of them unknown or residing outside their country, in order to claim full reparation for their harm.Footnote 213 Joint and several liability may provide an adequate tool to overcome this challenge, as any one of the offenders may be ordered to pay the entire amount of damages for which they are liable, even when the other offenders are not parties in the proceedings, were not convicted by the ICC, or are unable to pay the award.Footnote 214 Thus, the shared responsibility of each of the offenders to provide full reparation may maximize the prospects of the victims receiving redress.Footnote 215 Juan Pablo Calderón Meza pointed to another factor: in the case of indigent convicted persons, a common occurrence at the ICC, liability in solidum would allow the TFV to subrogate and recoup its expenditures in the implementation of the reparations orders, including from responsible actors outside the Court’s jurisdiction, such as corporations.Footnote 216
However, even in domestic jurisdictions, finding defendants jointly and severally liable remains a complex technical endeavour. Such complexity was not duly acknowledged or tackled in Ntaganda.Footnote 217 In some jurisdictions, this type of liability is limited to cases of indivisible damages,Footnote 218 the impossibility to identify the particular offender who caused the harm,Footnote 219 or damages arising from a concerted or joint action among a multiplicity of offenders.Footnote 220 Although in the context of mass atrocity crimes some of these limitations may a priori not be difficult to demonstrate, they may become pertinent at the ICC, especially if the defendant was convicted under a mode of liability in which at least part of their individual conduct is severable from the collective criminal enterprise of the group and, thus, from the whole body of harm. Commission as an individual pursuant to Article 25(3)(a) of the Rome Statute could be an example, since this mode of liability requires that the perpetrators ‘personally carry out the material elements of the crime’.Footnote 221
It is precisely due to the novel nature of using joint and several liability in international criminal justiceFootnote 222 that the Trial and Appeals Chambers could have offered more detailed reasoning in the Ntaganda case to justify and explain the scope of application of this type of civil liability at the ICC. Future case law could elucidate and add further finesse to the matter. It is regrettable that the Ongwen Trial Chamber merely recognized joint and several liability without offering any additional explanation or guidance, simply replicating the general statements from Ntaganda.Footnote 223
As for the second requirement for the transposition of joint and several liability to the ICC – the existence of the procedure for the application of the transplanted principle – Conor McCarthy argued that the practical realities of the Court prevent the application of liability in solidum, in particular, the absence of a ‘mechanism that would enable a perpetrator to take action against other perpetrators to recover their share of any joint liability’.Footnote 224 McCarthy ultimately concluded that the transposition of liability in solidum to the ICC is not viable and ‘[a]n alternative approach … is therefore necessary under the Rome Statute’.Footnote 225
However, domestic legal systems contain diverse approaches for recovery among the co-perpetrators in the context of joint and several liability. The laws of some states, in particular those from the common law tradition, prohibit recovery under the argument that all joint perpetrators are equally culpable.Footnote 226 In states that recognize such a right, the mechanisms for its enforcement vary significantly.Footnote 227 In a more analytical assessment, John Noyes and Brian Smith asserted that the absence of a system for recovery among the co-perpetrators does not necessarily prevent the application of liability in solidum.Footnote 228 While the latter aims at ensuring the effectiveness of the compensatory function of reparations in favour of the victims, recovery aims at preventing the unjust enrichment of one perpetrator at the expense of another.Footnote 229 Due to their unrelated purposes, scopes and procedures, a regime of joint and several liability does not depend on the availability of a legal or procedural framework for recovery.Footnote 230 Noyes and Smith concluded that, at most, a system for recovery makes the imposition of responsibility in solidum ‘more palatable’.Footnote 231
Arguably, the Ntaganda Trial Chamber espoused this understanding. Although the Chamber recognized, in the context of joint and several liability, the right of the paying co-perpetrator to recuperate from the other co-perpetrators their proportionate share of damages,Footnote 232 the Trial Chamber adopted a hands-off approach concerning the enforcement of such recovery. In response to the Appeals Chamber’s call for more clarity on this matter,Footnote 233 the Trial Chamber simply stated that recovery is immaterial in determining monetary liability for reparations and this issue should be ‘dealt with by the co-perpetrators among themselves’.Footnote 234 The Chamber appears to implicitly agree that recovery is fundamentally disconnected from the question whether joint and several liability should be applied in the reparation proceedings before the Court.Footnote 235 As a result, the lack of an established procedural framework for implementing recovery at the ICC is not per se an obstacle to relying on liability in solidum at the Court. In this scheme, recovery among the persons responsible for the crimes will likely be adjudicated by domestic courts,Footnote 236 primarily those in the state where the requested person has assets.
The Ntaganda Trial Chamber’s hands-off approach concerning recovery is appropriate. First, this approach aligns with the tendency in the Court’s jurisprudence to refuse to adjudicate patrimonial matters pertaining to the defendants, delegating this competence to the states’ domestic authorities.Footnote 237 Second, given the Court’s limited (criminal) mandate and its scarce budgetary and institutional resources, it is reasonable not to exercise jurisdiction over civil claims beyond (the statutorily foreseen) reparations to victims and compensation to an arrested or convicted person under Article 85 of the Rome Statute. Third, the possibility of recourse to domestic courts means that the paying co-perpetrators have judicial remedies at their disposal to seek recovery. Thus, deciding that the ICC lacks, and should not have, jurisdiction over this matter does not entail a denial of justice to the offenders.
6. Conclusion
As part of the seemingly perpetual ‘state of flux’Footnote 238 of the legal framework for reparations at the ICC, the Ntaganda case introduced a new approach to the mix, explicitly recognizing joint and several liability and centring the determination of the quantum of reparations primarily on the harm suffered by the victims and the costs to repair it. This approach should not be taken for granted for three main reasons.
First, concerning the victims, the method laid down in Ntaganda could be seen as an easy way out for the ICC that might fail to truly consider the interests of the victims, despite being presented as a victim-friendly approach.Footnote 239 In its benevolent attempt to foreground the magnitude of the victims’ suffering via the imposition of huge monetary awards, the Ntaganda Trial Chamber’s method may transform the reparations process into a mere game of numbers that overlooks the most pressing challenge of actually ensuring timely and practical (not only symbolic) redress to the victims on the ground.Footnote 240 In fact, some recent decisions adopted a more pragmatic and experience-driven approach, focusing on the practical effectiveness of the reparations and the real prospects of the victims receiving timely and concrete redress.Footnote 241 Although there is no denying that reparations should have ‘a strong principled component’,Footnote 242 awarding remedies without also taking experience and pragmatism into account, at least to some extent, runs the risk of not serving the victims bestFootnote 243 or even turning the ICC’s reparations process into an end in itself.Footnote 244 Any of these two outcomes will challenge the assumption that such process is anchored in the adequate application of appropriate principles.
Second, regarding the convicted person, it seems legitimate to question the fairness of proposing that an individual should be found liable for reparations at the ICC without taking into account their contribution or culpability for the harm.Footnote 245 In this respect, the Ntaganda case echoes the long-lasting critique of the inherent reductionism of international criminal justice as a project aimed at singling out particular persons to whom individualized responsibility for unimaginable violence and harm is assigned, leaving out of scrutiny the structural and systemic political-social-economic forces implicated in this violence.Footnote 246 The approach for financial liability from Ntaganda could lead to simplistic representations to the detriment of one or a few individuals, failing to express the factual and legal complexity of the circumstances that caused the immense suffering of the victims.Footnote 247
Third, from an institutional and legal perspective, future decisions of the Court could address the issues raised in this article, giving due regard to Article 21 of the Rome Statute, as a means to ensure that monetary liability is determined at the ICC on the basis of a foreseeable and solid legal basis. Otherwise, the credibility and utility of the reparations process as a whole could be questioned, and the victim-centred approaches proposed by the Court would appear weaker than they actually are.
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