Collective Reparations and Individual Criminal Responsibility: Causation, Proof of Harm, and the Limits of Reparative Justice in International Criminal Law

Source abstract

Reparations occupy an increasingly important position in international criminal justice, where the recognition of victims' harm must be reconciled with the individual responsibility of convicted persons. The challenge becomes particularly acute when international crimes produce widespread, intergenerational, or community-level consequences that cannot be reduced to discrete injuries suffered by individually identified claimants. Collective reparations offer a practical and morally significant response to such harm, but they also raise difficult questions concerning causation, evidentiary sufficiency, eligibility, valuation, and the relationship between collective injury and individual liability. This article examines the legal architecture of reparations under the Rome Statute, with particular attention to the International Criminal Court's jurisprudence in Prosecutor v. Thomas Lubanga Dyilo and Prosecutor v. Bosco Ntaganda. It argues that the central challenge is not simply how to quantify damage, but how to preserve a defensible chain of legal attribution when remedies operate at a collective scale. The article distinguishes proof of the underlying crime, proof that a category of harm resulted from that crime, identification of eligible beneficiaries, and determination of the convicted person's proportionate liability. It proposes a four-layer framework that separates causal attribution, harm classification, beneficiary eligibility, and remedial allocation. The framework seeks to prevent two opposing errors: imposing an inadequately justified burden on the convicted person and excluding victims whose injuries are difficult to document through conventional individualised evidence. It concludes that collective reparations are most legitimate when courts explain the inferential steps connecting adjudicated crimes to recognised harms, establish transparent eligibility criteria, justify their treatment of uncertainty, and distinguish the convicted person's liability from any supplementary assistance provided by a trust fund. The article contributes a structured account of causal and evidentiary reasoning in reparative adjudication without treating collective harm as either presumptively proven or inherently incompatible with individual criminal responsibility.