12 03 14 IWPR – Congolese Rebel's Conviction Only a Qualified Success

Justice
experts say the conviction of a former Congolese rebel at the
International Criminal Court (ICC) last week highlights challenges that
face the court.

Germain Katanga was found guilty of committing murder as a war crime
and as a crime against humanity for his role in a 2003 attack on the
village of Bogoro in the eastern Democratic Republic of Congo (DRC).

He was also found guilty of charges of attacking a civilian population, pillage and the destruction of property.

But Katanga, a senior member of the Patriotic Forces of Resistance of
Ituri (FRPI), was acquitted on other counts including rape, sexual
slavery and using child soldiers.

Prosecutors also failed to prove that he was a principle perpetrator
of the violence in Bogoro. The three-judge panel ruled by a majority of
two to one that Katanga bore responsibility for the attack only as a
peripheral figure.

The nature of last week’s conviction derives from a November 2012
decision by ICC to change the charges against Katanga from those which
the Office of the Prosecutor (OTP) brought, and which pre-trial judges
confirmed in September 2008.

In their 2012 decision, the bench invoked a court rule which allows
judges to alter the “mode of liability” under which a suspect is
charged, based on the evidence that has been presented at trial.

The revision also saw Katanga’s case severed from that of his co-accused, Mathieu Ngudjolo Chui, who was subsequently acquitted.

Judges found that a paramilitary group called the “Ngiti militia”
surrounded Bogoro, whose residents were mostly ethnic Hema, in the early
hours of February 24, 2003 and attacked it with heavy gunfire as its
inhabitants slept.

When the militia entered the village, they hunted down surviving Hema
residents and murdered them with machetes and firearms. Some victims
were mutilated before being killed.

The militia later enslaved and raped women whom they caught fleeing the village.

According to prosecutors, up to 200 people were killed in Bogoro.

In the March 7 judgement, judges ruled that Katanga helped members of
the Ngiti militia to plan the attack. and thereby made a significant
contribution to the crimes committed.

But they concluded that it had not been proven beyond reasonable
doubt that Katanga held sufficient authority to give orders or to punish
commanders.

Judges unanimously acquitted the defendant of rape and sexual slavery
because they concluded that these crimes were not part of the common
purpose of the attack.

Katanga was also acquitted of the charge of using child soldiers.
Although child soldiers were found to have been used by the Ngiti
militia from 2002 onwards, including in the Bogoro attack, judges ruled
there was not enough evidence to link them to Katanga.

Judge Christine Van den Wyngaert, disagreeing with her two colleagues
on the bench, argued in a dissenting opinion issued alongside the
judgement that she would have acquitted Katanga because the 2012
decision to re-characterise the charges violated his rights.

She said that Katanga’s lawyers did not receive proper notification
of the new charges and were not given a reasonable opportunity to
conduct their own investigations.

The judgement was originally expected to be issued in late 2012, but
following the judges’ decision of November that year, it was delayed by
more than a year.

Some experts in international criminal law argue that the re-characterisation of the charges is a real cause for concern.

Dov Jacobs, assistant professor of international law at Leiden
university, told IWPR that after the judges altered the charges they
essentially “took on the prosecutor’s role”.

“As a result, Katanga was essentially judged by his accusers,” Jacobs said.

Other commentators say that all in all, the conviction is only a qualified success for the prosecution.

Kevin Jon Heller, a professor of criminal law at London’s School of
Oriental and African Studies (SOAS), pointed out that the Office of the
Prosecutor (OTP) was essentially unable to prove any of the charges that
it originally brought against Katanga, and which judges confirmed
before the start of the trial.

“Had the trial chamber not been willing to substitute an uncharged
and unconfirmed mode of participation for the charged and confirmed one,
Katanga would have simply walked,” Heller wrote on his blog.

Phil Clark, a close follower of the ICC and an expert in
international politics at SOAS, told IWPR that the conviction was only a
partial success for the OTP.

“[OTP] will be relieved that Katanga – unlike his co-accused Mathieu
Ngudjolo – was convicted, but disappointed that the most serious charges
were dismissed,” he said. “This finding will be met with disbelief in
Ituri, where Katanga is widely considered a key figure in the violence
of 2002-03.”

Clark also expressed concerns over what the judgement said about the
ICC as a whole, and suggested that the approach adopted by judges
reflected the struggle to secure convictions during the court’s earlier
years.

Aside from the acquittal of Ngudjolo Chui, the OTP has failed to get judges to confirm charges against a long list of suspects.

In 2011, judges at the ICC ruled that in another case relating to
warfare in eastern DRC, there was insufficient evidence to try Callixte
Mbarushimana, a senior figure in the Democratic Forces for the
Liberation of Rwanda.

The following year, judges declined to confirm charges against two
senior Kenyan officials. Prosecutors have subsequently dropped charges
against a third suspect due to a lack of evidence. In December 2013,
they announced that they needed to find further evidence to enable them
to put Kenyan president Uhuru Kenyatta on trial, after a succession of
witnesses had pulled out.

Clark says that past cases of this kind form the context in which Katanga was convicted.

“The fundamental concern here is that some ICC judges may feel a need
to guide the prosecution by the hand in order to protect the court as a
whole, not wanting to see early cases fall apart, which would discredit
the entire institution,” Clark said. “This raises critical questions
about the role of the ICC judges, especially in the early years of the
court’s work.”

As well as voicing concerns about the change in liability, campaign
groups are frustrated by the failure to convict Katanga for crimes of
rape and sexual slavery.

Brigid Inder, the executive director of Women’s Initiatives for
Gender Justice, said the acquittal was “a devastating result” for
victims of the attack.

“We are extremely disappointed that the judges appeared to expect a
different level of proof regarding Katanga’s contribution to these
crimes than they required to convict him on the basis of his
contribution to the crimes of directing an attack against a civilian
population, pillaging, murder, and destruction of property, which were
committed at the same time as women in the village were being raped,”
Inder said in a statement.

The court will hold a sentencing hearing in due course. Both
prosecutors and the defence have 30 days to appeal against the
judgement.

Stewart McCartney is an IWPR contributor in The Hague.