JURIST’s Sarisha Harikrishna interviews Megumi Ochi, Associate Professor at the College of International Relations, Ritsumeikan University, Japan, about the International Criminal Court (ICC)’s expansion of its framework to include intergenerational harm in providing reparations for victims of atrocities against humanity. The topic of intergenerational reparations at the ICC has generated significant discourse over the years, with the Appeals Chamber in The Prosecutor v. Bosco Ntaganda directing a new reparations order, citing insufficient reasoning for the concept of transgenerational harm due to questions of causality.
As a general rule, the specific parameters that need to be met in providing reparations to victims is that the crimes were the “proximate cause” of the harm, which includes the performance of an assessment into whether it was “reasonably foreseeable” that the acts and conduct underlying the conviction would cause the resulting harm (as set out in the Addendum to the Reparations Order in Ntaganda). Recent scholarship, such as the monumental work of Professor Megumi Ochi, which recognizes the lingering effects of trauma that extends beyond the world of the immediate survivor, argues that such a causal link can, in fact be established.
Professor Megumi Ochi’s work on international criminal justice takes a nuanced, multifaceted, and empathetic view, critically examining the limitations of conventional legal frameworks while advocating for the integration of transformative justice principles within proceedings at the ICC. Her work emphasizes not only the pursuit of accountability but also the importance of addressing the social, cultural, and psychological dimensions of justice, as true reparation cannot be achieved if the voices, experiences, and needs of affected communities are not meaningfully acknowledged and addressed.
JURIST: The Appeals Chamber in The Prosecutor v. Thomas Lubanga Dyilo stressed that reparations must be proportionate to the harm caused by the specific crimes of the convicted person. How can a framework requiring reparations for future generations, which are a potentially infinite class of beneficiaries, be reconciled with this fundamental principle of proportionality, without rendering the perpetrator’s liability perpetual and essentially unfulfillable?
Professor Megumi Ochi: There is obviously a practical limitation on the scope of possible reparation. It is a matter of realization, but not of theoretical justification. Theoretical justification is for setting the maximum frame of reparations order. Limiting this widest frame depends on other types of justice (such as ensuring the minimum standard of living to the perpetrators). Proportionality in Lubanga Principles may include two types of proportionalities: theoretical proportionality and material proportionality. The three types of accounts the article explained the former. For the latter, the ICC can draw the line by setting a critical moment to make a reparations order. In other words, victims who are in the world at the time of the reparations order (not at the time of the commission of the crime) should receive reparations (This is more of the consideration of procedural justice). Considering that the reparations order is a Court’s mechanism, limiting the beneficiaries to the moment of reparations order might be a legal solution to navigate the issue in the circumstances of the ICC and the core crimes. Alternatively, ordering reparations in a perpetual format may serve the inter-generational reparative justice perspectives. Establishing memorials has become the main format of reparations to the core crimes.
JURIST: For “dependent future victims,” the causal link is the failure to repair the trauma of their ancestors. Given that trauma is not a tangible asset but a complex psychological state, how can a court possibly measure what “adequate repair” of a parent’s trauma would have looked like, and thus quantify the harm caused to the child by its absence?
Ochi: This issue will be formulated as a matter of evidence and standard of proof. The applicant for this type of reparations will be required to prove that their personal suffering is caused by the trauma that was not cured and there was not an adequate reparation given to cure the trauma. The answer to the first comment partly answers the question though. It is again about the practical limitation of the reparation and not of theoretical justification. I guess to achieve justice in this regard, the reparations are dependent on the improvement of medical expertise of trauma. That is why collaboration with psychological, sociological and anthropological expertise is necessary and that is what the ICC is attempting to promote.
JURIST: By legally categorizing individuals born decades after as “victims” of a past crime, does the framework risk imposing a specific, court-defined identity upon them, potentially contradicting the very principle of restorative justice which seeks to restore a victim’s autonomy and self-determination?
Ochi: To answer this question, we need to cite socio-legal research. In the article, I carefully prefaced my discussion by reminding that ‘victim’ is a ‘subject position’ that is given by the ICC’s procedure, and I agree that giving such position unilaterally is a problem. While it might be inevitable that certain communities that experienced core crimes will be labeled as ‘victim community’ and being a member to such community will impact autonomy and self-determination, victim application process of the ICC might function as giving individuals the chance to choose whether to accept the ‘subject position’ or not. If you do not believe in the ICC’s system in bringing justice to them, they choose not to be ‘registered’ as victims by not applying to reparations.
JURIST: What specific institutional mechanisms would the ICC need to develop to responsibly manage and adjudicate claims that span generations, given that such a task extends far beyond the temporal and administrative scope of a criminal trial?
Ochi: The answer to the first question partly answers this question. Setting the time limit for victim application will be the practical solution, considering that the mechanism at hand is the ICC and it is a physical court that has limited jurisdiction. In this respect, as mentioned in the conclusion of the article, “justice delayed, justice denied” might not be applicable. The number of future victims can increase as time passes by, and the burden of repairs will also increase. Speedy justice will benefit the perpetrator, and this might function as giving incentive to the perpetrator to appear at the Court sooner.
