Voices from the ground: Reactions from Ituri on recent ICC judgments

ICC judges visit Ituri during the trial of Mathieu Ngudjolo Chui and Germain Katanga. © ICC-CPI

ICC judges visit Ituri during the trial of Mathieu Ngudjolo Chui and Germain Katanga. © ICC-CPI

In this post from the International Justice Monitor, people from Ituri, Democratic Republic of Congo give their reactions to and ask questions about the confirmation of the acquittal of Mathieu Ngudjolo Chui and other recent ICC decisions.

The below transcript is from a program on Radio Canal Révélation, a radio station based in Bunia, Democratic Republic of Congo (DRC), which aired between March 6 and 11, 2015. The program is part of the radio station’s Interactive Radio for Justice and Peace Project, which promotes discussion on critical issues around justice in DRC. This transcript has been edited to remove non-relevant information.

In part one of the program International Criminal Court (ICC) officials take questions from listeners about the ongoing investigations and cases in the DRC. Part two of the program specifically addresses the recent ICC Appeals Chamber decision upholding the acquittal of Mathieu Ngdujolo Chui. 

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Part I

Presenter (Didyne Uweka): Welcome Radio Canal Révélation listeners to the fourth show in the “Crossroads of Justice” series of the Interactive Radio project for Justice and Peace, with the support of Open Society.

As you know, the International Criminal Court is continuing its investigations in the province of Ituri. Several judgments have been handed down. Thomas Lubanga was sentenced to 14 years in prison in December 2014, and Germain Katanga received a 12-year sentence on May 23, 2014. Mathieu Ngudjolo was acquitted.

Several people reacted throughout Ituri, in particular in Lagabo where there is a larger displaced persons’ camp, the result of confrontations between DRC Armed Forces and militants from Cobra Matata’s Front for Patriotic Resistance in Ituri [FRPI]. Lagabo is 30 km south of Bunia, near Bogoro.

We also went to the mining area north of Bunia, which is a stronghold of Thomas Lubanga’s Union of Congolese Patriots militants. And finally, we compiled other questions through a radio talk show with open phone lines.

For all of these concerns, we contacted the office of the ICC prosecutor in The Hague, the ICC outreach unit coordination office in Kinshasa, and the ICC field office in Bunia.

Let’s begin this show with questions for the ICC Prosecutor Fatou Bensouda. Pascal Turlan will answer these questions. He is an adviser to the prosecutor’s office.

Listener Question:  Did the ICC give the order to arrest Cobra Matata [leader of Germain Katanga’s FRPI]? We want an explanation because he surrendered voluntarily to the government, like the others, and [was] abruptly arrested.

A: His arrest was not made at the request of the ICC. There is currently no arrest warrant for Cobra Matata. DRC judicial officials are entirely responsible for this arrest. As you know, under the Rome Statute, the Congolese government is responsible, in this specific case, for investigating and prosecuting the perpetrators of this crime. The ICC is a court of last resort, which intervenes when national judicial officials do not. It is what we call the “principle of complementarity.”

In the context of the situation in the Democratic Republic of the Congo, there are arrest warrants. They were carried out against Thomas Lubanga Dyilo, who was convicted, Germain Katanga who was convicted, and Mathieu Ngudjolo, who was acquitted. There was an arrest warrant for Bosco Ntaganda whose trial will begin in a few months. And then an arrest warrant for Sylvestre Mbarushimana, the FDLR commander, for the crime committed in North Kivu. Moreover, Congolese officials are responsible for arresting Silvestre Mbarushimana. The proceedings against Cobra Matata are a purely Congolese matter. His arrest was requested and decided upon by Congolese judicial officials.

Listener Question: In the Bogoro matter, the ICC only arrested Germain Katanga. Are there other accomplices? Should it return for new inquiries?

Pascal Turlan: In this Bogoro matter, two people were prosecuted by the ICC. Germain Katanga and as we said a little earlier; he was sentenced to 12 years in prison on May 23, 2014. He did not appeal and therefore admitted the facts of the Bogoro attack. He admitted his responsibility in this matter. He expressed his sincere regret to all those who suffered because of him, including the victims of Bogoro.

I believe this is a crucial moment in the battle against impunity in East Congo. There is now recognition by the law, by the court, that a crime was committed in Bogoro, that several crimes were committed in Bogoro.

The other person who was prosecuted in the Bogoro attack was Mathieu Ngudjolo. And as you know, he was acquitted of his charges. There was an appeal against this acquittal and the appeal decision will be handed down next week, on February 27 to be precise [by the Appeals Chamber]. We are awaiting this decision.* There was also the judge’s role in the decision to acquit Mathieu Ngudjolo. This decision does not mean that the crimes were not committed. Therefore, I believe that the work of the ICC courts, relative to this attack, was a big step forward. It meets many of the expectations of the victims.

Listener: Didn’t the ICC find that Germain Katanga was released so that he could regroup his FRPI elements and thereby put an end to the proliferation of armed groups in Ituri?

Pascal Turlan: As you know, Germain Katanga was declared guilty of war crimes and crimes against humanity. Mr. Germain Katanga is now serving his sentence in the court’s detention center. He will continue to serve it in a country that can agree to receive him. He was convicted because the judges decided and confirmed that Katanga had committed the crime against humanity of murder [and] four war crimes: murder, attacking a civilian population, destruction of property, and pillaging. He acknowledged it himself justice must be delivered for this crime. The question then of demobilization, action in the field, must be carried through to a successful conclusion by people who are not convicted of crimes.

Listener Question: We want the ICC to investigate as well in the Hema areas north of Bunia following the example of what was done south of Bunia, in Bogoro, in Walendu Bindi, etc.

Pascal Turlan: We have been investigating in the Democratic Republic of the Congo for over ten years now, since 2004. We have conducted investigations primarily in Ituri and Kivu. We are continuing to work in the DRC on analysis, details of allegations of crimes committed. Investigation teams are still in the field. There is the Bosco Ntaganda case, which will begin. We are continuing to assemble the elements that could be useful in the framework of this trial. And then, as I already mentioned several times, there are the decisions by the victims concerning Thomas [Lubanga], Germain Katanga, and Mathieu Ngudjolo.

Very advanced work has been carried out to investigate and recognize the crimes that were committed in Ituri. The ICC has not met the expectations of all the victims of all the crimes committed in the Ituri district and in the eastern province or in the DRC. Justice takes its time and has its own pace. International courts cannot do everything either. It is important that, in parallel, in support of, as a complement to international justice, the national legal system be developed, be realized, be able to judge for itself crimes that are not prosecuted by the ICC.

You mentioned, and we have heard about it, the Cobra Matata case, which is a case in the national courts. I believe it is important for the population of Ituri to ask their court system to tackle these crimes and provide a judicial response. We think that everyone should pursue the same goal so that the national courts prosecute the other perpetrators of the crime currently unknown in the rest of Ituri.

Presenter: We have addressed other questions to Margot Tedesco, the coordinator of the ICC outreach unit in the DRC.

Listener Question:  We heard the news about Mathieu Ngudjolo’s release by the ICC. We did not even know he was still alive. We have no true information on this subject.

Margot Tedesco:  Mathieu Ngudjolo Chui was released following his acquittal by the ICC judges on December 21, 2012. Since he is not under the responsibility of the court, he is under his own responsibility. Therefore, we have no information concerning his residency. However, Mr. Chui is represented by an attorney. Chui will be in the court room for the reading of the judgment on Friday, February 27, by the appeals chamber.

Listener Question:  When Germain Katanga and the others are released, will they stay at The Hague, or return here, to Ituri? Will his wife and children join him or wait for him here in Ituri?

Margot Tedesco: So, Germain Katanga was sentenced to 12 years in prison. The time he was detained by the ICC will be deducted from this. In October 2007, he was transferred to The Hague and sentenced. Therefore, he will serve five more years. He is currently still in detention in the custody of the ICC. The court is seeking a government to take him so that he can serve the remaining five years of his sentence. His sentence will concern Mr. Katanga alone, and not those close to him.

Listener Question (repeated by the Presenter): The listeners shouldn’t expect that he will return here, to Ituri?

Margot Tedesco: When he has served his sentence, it will be up to him to decide where to live. The sentence does not concern his wife or children.

Listener Question: Will the ICC be able to make reparations to the over 300 victims of the Bogoro massacre?

Margot Tedesco: ICC judges are responsible for deciding on the principles and terms of reparations to victims in this case. Reparations could take on various forms, including restitution, compensation, or rehabilitation. In all cases, once the judges have established the terms, the ICC awareness unit will not fail to keep the institutions informed.

Listener Question: Who is involved in the Bogoro reparations case? Is it those who testified at The Hague or everyone who lives in Bogoro?

Margot Tedesco:  The victims’ participation in the proceedings and witness testimony before the court are two different processes before the court. The judges will determine the reparations procedures.

Listener Question: We are asking the court to put its satellite offices in the locations where the crimes were committed, specifically Ituri, and to bring in police squads for their safety. Stop the big chiefs who are moving about. Stop the big chiefs who are moving about; we don’t want to arrest some and leave others.

Margot Tedesco:  The court is headquartered in The Hague, but the Rome Statute provides that the court may be headquartered elsewhere if the judges deem it feasible. The court also has offices in the areas where it conducts investigations in order to facilitate its work in the field. The court has two offices in the DRC, one in Kinshasa and the other in Bunia, in Ituri. The outreach unit has a presence in both offices. Its mission is to bring the court closer to the community, keeping it informed of judicial developments and the court’s mission.

Listener Question: Finally, after its verdict, which country will take Thomas Lubanga? Why not serve his sentence in the DRC?

Margot Tedesco:  Lubanga is currently in the custody of the ICC, and the court is looking for a country that can take him for the remainder of his sentence. When this country is named, the court will also take into consideration the viewpoint of the person convicted.

However, be aware that those who are convicted serve their sentences in a country designated by the court, and which appears on the list of countries that informed the court that they are willing to accept convicts. The detention conditions are approved of by the legislation of the government responsible for carrying out the sentence, and must comply with the generally accepted rules of international law governing the treatment of detainees.

Listener Question: And if the former warlords of Ituri ever come back home after their sentence, what guarantee does the ICC provide that they will not be apprehended again by Congolese authorities?

Margot Tedesco:  According to the principles of law, no one can be judged twice for the same crimes. Once a person has been judged by the ICC and served his sentence, he cannot be judged a second time for the same crimes tried before the ICC.

Part II

Presenter: When Mathieu Ngudjolo was acquitted [by the Appeals Chamber on February 27, 2015], we organized an interactive radio show at the end of which the listeners sent questions via text messages. Richard Pituwa gave these questions to Nicolas Kuyaku, who is responsible for ICC outreach at the field office in Bunia.

Richard Pituwa (presenting questions from listeners): There is a listener who asked: We prosecuted Thomas Lubanga for enlisting children although he committed other crimes [too]. He possessed arms, raped.

Nicolas Kuyaku: The ICC prosecutor who conducted the investigations in Ituri believed that he had sufficient proof with respect to the enlistment [of children]. He did not overlook the other aspects. That was the motivation.

Richard Pituwa: Don’t the victims of the other crimes lose out that way? How will they receive reparations?

Nicolas Kuyaku: As I said the other time, according to the Appeals Chamber judges, reparations will be collective. I think that as they will be collective, everyone will win.

Richard Pituwa: Will Thomas Lubanga not be prosecuted once again?

Nicolas Kuyaku: He will not be further prosecuted for the enlistment [of children]. Not by the court, even by the other jurisdictions. However, he could be [prosecuted] for other crimes, for example, rape…and sexual slavery.

Richard Pituwa: There is still another question about Lubanga because you announced once that if he behaved very well, he could be released before he finishes serving his sentence.

Nicolas Kuyaku: Yes, I said that. Every 120 days, the judges examine the detention conditions. So, in July 2015, Thomas Lubanga will have completed two thirds of his sentence. On this date, the court’s judges will examine the detention conditions, the detainee’s behavior. There are other factors involved. They are the judges who may decide to release Thomas Lubanga. It is on July 15th of this year.

Richard Pituwa: Another listener says that “the prosecutors at The Hague are weak.” Why were they not able to arrest Ngudjolo when they had proof concerning Lubanga?

Nicolas Kuyaku: Our listener must understand that there were two different chambers in charge of the two cases. It is not stated [anywhere] that when a person is brought before the International Criminal Court they must lose their case. Even here in the DRC, proceedings may be brought against you in court, but you may win the case. Mathieu Ngudjolo won the case because the prosecutor did not present sufficient elements to enable the judges to establish beyond a reasonable doubt Mathieu Ngudjolo’s criminal responsibility. We did not say that Ngudjolo did not commit the crimes. Of course, he was in Bogoro. He committed crimes. However, the ICC arrests people who bear a heavy responsibility in committing crimes.

Richard Pituwa: Ngudjolo did not commit crimes. Germain Katanga was judged, and it was found that he was not the real perpetrator. The question, then, is how to know who the real perpetrator of the Bogoro massacres was.

Nicolas Kuyaku: So that is the big question that always comes up when I meet with partners. The judges believed that Katanga was only an intermediary. When someone is accused of being an accomplice, there is a real perpetrator somewhere. So, they said it’s Kinshasa, the capital. However, the court does not convict States, but rather individuals. Who are these individuals? As of now, I don’t know, Richard. Let’s wait and we will find out.

Richard Pituwa: Last question: Isn’t the ICC trying to create conflicts like that? It frees a Lendu and convicts a Hema.

Nicolas Kuyaku: No, no. The court has no ethnic bias. In other words, when it hands down a judgment, it does not take into account the ethnicity of Richard or Nicolas. No. It hands down judgments according to the evidence presented by the prosecution and the grounds of defense presented by the accused. The judges who decided to acquit Mathieu Ngujolo are not the judges who convicted Thomas Lubanga. They are two different chambers.

At this point, I ask the listeners to have faith in the ICC. There is no favoritism. The judges hear and determine cases in a completely independent manner and are not subject to pressure. And the ICC is not a political institution but a purely judicial institution.

Richard Pituwa: Nicolas Kuyaku, thank you very much for answering these listener questions.

Nicolas Kuyaku: You are welcome.

Presenter: That concludes this fourth show in the “Crossroads of Justice” series, which is part of the RIJP project. This show was produced in collaboration with Justin Joël Maraeki and Didyne Uweka, who was also the presenter, under the supervision of Richard Pituwa.

Peace and justice to all.

*Editor’s note: The Appeals Chamber of the ICC upheld the acquittal of Mathieu Ngudjolo. For more information, see here.

This post originally appeared on the International Justice Monitor.

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