The ICC conviction of Congolese militia leader Germain Katanga earlier this month has been broadly welcomed as an important step forward for justice in the Democratic Republic of Congo. However, the judges’ decision to find him guilty as an accessory and to acquit him of sexual and child soldier charges has proved controversial. Meanwhile, civil society insists that there remains much demand for justice in the country.
Guilty as an accessory in split decision
On 7 March, two of three judges of ICC Trial Chamber II found Katanga guilty of the crime against humanity of murder and the war crimes of wilful killing, intentional attack against a civilian population, pillaging and destruction of property, committed during an attack on a village called Bogoro in the DRC’s troubled eastern district of Ituri in February 2003.
The judges said that the prosecution did not prove beyond a reasonable doubt that Katanga was present, but they found that his provision of logistical and military support contributed to the “strike capacity” of a militia from the Ngiti ethnic group during the attack on Bogoro – whose population consists of mostly ethnic Hema – during which over 200 were killed.
Although the trial chamber said the prosecution had not proven its original charge that Katanga was a principal perpetrator as a commander who could issue orders or punish troops, the judges decided to use their powers to change his criminal responsibility to being liable as an accessory.
Evidence of the Court’s impartiality could be seen through Judge Christine Van den Wyngaert’s partially dissenting opinion opposing this change. Van den Wyngaert said that Katanga had not received a fair trial as a result, particularly since he had testified during the trial that he was an accessory. This aspect of the decision has been the subject of much debate.
Katanga was originally charged alongside another militia leader, Mathieu Ngudjolo Chui, in a trial that started in November 2009. However, in late 2012 the cases were split and Ngudjolo Chui was acquitted due to a lack of evidence. This decision has since been appealed. Meanwhile, Ngudjolo Chui has been released from detention, and has since applied for asylum in the Netherlands.
At the point that the case was split, judges said they were considering changing Katanga’s criminal liability. Litigation on this issue delayed the trial for most of 2013. In their judgment of 711 pages, judges said that the defense had had adequate time to conduct further investigations. (An English summary of the judgment is also available.)
A qualified welcome
The Court’s third verdict has been broadly welcomed by victims and civil society organizations, as well as by the UN secretary general, the European Union, Belgium and others.
However, many qualified their welcome, saying the verdict should be the beginning of renewed efforts to end impunity in eastern DRC, where civilians continue to suffer daily at the hands of armed groups.
Coalition Convenor William Pace said the verdict was a victory for the victims and their families. He called on the DRC government to build on the legacy of the case through greater national accountability for grave crimes, and on the ICC to learn lessons to reduce the length of future trials.
Eloi Urwodhi Uciba of the DRC League for Peace, Human Rights and Justice applauded the verdict, asserting that the decision came at the right time for the people of Ituri and surrounding areas.
Bukeni Waruzi, senior program manager for Africa and the Middle East at WITNESS and founder of the AJEDI-KA/Child Soldiers Project, insisted the verdict should be “a catalyst and an inspiration to establish local courts and to prosecute the low-level perpetrators.”
Fidel Nsita, the legal representative of the main group of victims in the case, stated that “[i]n their heart, many victims want to believe that, somehow, this judgment will contribute to peace and reconciliation.”
In a joint declaration, 140 Congolese and international civil society organizations, while thanking ICC Prosecutor Fatou Bensouda for her contribution to the fight against impunity in the country, urged the Court to continue its investigations and the government to take concrete steps to improve domestic accountability mechanisms.
Karim Lahidji of the International Federation for Human Rights also welcomed the conviction while calling on the Court to make concerted efforts to engage in a communication and outreach strategy in the DRC.
Amnesty International’s Stephanie Barbour said that the verdict would bring some measure of justice to the victims of violence in the DRC and hoped that the case would spur the government to tackle other cases that have escaped justice.
Jean-Philippe Kot of Avocats San Frontières acknowledged that while the judgment was a step forward in the fight against impunity, the trial was unable to establish who was truly behind the attack on Bogoro village.
Acquitted of sexual and child soldiers crimes
In what was the first case before the ICC to involve charges of sexual and gender-based violence, Katanga was acquitted of charges of sexual slavery and rape. The judges were not convinced that the commission of these crimes, unlike the other crimes committed, formed part of the common purpose of the Bogoro attack and hence, could not find Katanga responsible as an accessory.
Katanga was also acquitted of the crime of using child soldiers to participate actively in hostilities. The judges said that although children were present in the armed forces and provided military and logistical support, there was not enough evidence to prove beyond reasonable doubt that Katanga was responsible.
Coalition Convenor Pace expressed concern over the failure to bring those responsible for these sexual crimes and using child soldiers to justice. Brigid Inder of Women’s Initiative for Gender Justice expressed her disappointment with the failure to prove the sexual charges, stating that it was a devastating result for victims. Kelly Askin from the Open Society Justice Initiative concurred, stating that the ICC’s failure to convict anyone of rape, sexual slavery or other sexual crimes was unacceptable.
However, Karen Naimer at Physicians for Human Rights wrote that the case had “moved the needle forward” on sexual and gender-based crimes, demonstrating the Court’s commitment to accountability for these crimes.
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