About the author(s):
Jennifer Easterday is a Trial Monitor and Consultant for Open Society Justice Initiative and a PhD Researcher at the Grotius Centre for International Legal Studies at Leiden University. These comments are made in her personal capacity and do not reflect the opinions of her employers.
Last week, a majority of Trial Chamber II of the International Criminal Court (ICC) sentenced Germain Katanga to 12 years of imprisonment for aiding and abetting war crimes and crimes against humanity. His sentence is to be reduced by the nearly seven years he spent at the ICC Detention Center during his trial, meaning that effectively he could be released in about five years, assuming the sentence is not changed on appeal.
Germain Katanga is the alleged former leader of the Force de Résistance Patriotique en Ituri (FRPI, Patriotic Resistance Forces in Ituri), a primarily ethnic Ngiti armed militia from the Ituri region of the Democratic Republic of the Congo (DRC). He first appeared before the ICC Pre-Trial Chamber I in October 2007. In March 2008, the pre-trial chamber joined Katanga’s trial with the trial of Mathieu Ngudjolo Chui, the alleged commander of another militia group, the primarily ethnic Lendu Front des Nationalistes et Intégrationnistes (FNI, National Integration Front).
Katanga and Ngudjolo allegedly planned an attack on Bogoro, a village in Ituri held by Thomas Lubanga’s largely ethnic Hema Union of Congolese Patriots (UPC). The prosecution argued that the two accused used their armed militias to carry out crimes in Bogoro and wipe out the predominantly Hema population living there. Katanga and Ngudjolo were charged with seven war crimes (using children under the age of fifteen to take active part in hostilities; directing an attack against civilians; willful killing; destruction of property; pillaging; sexual slavery; and rape) and three crimes against humanity (murder; sexual slavery; and rape).
However, about six months after the parties had made their closing arguments, a majority of the trial chamber decided to split the cases and suggested they might change the charges against Katanga. In the final judgment, relying on Regulation 55, a majority of the chamber altered the charges against Katanga, finding him guilty under “accessory” liability (Article 25(3)(d)(ii)) as opposed to the originally charged “principal” liability (Article 25(3)(a)).
The majority convicted Katanga largely on the basis of his testimony that he had collected and distributed arms and ammunition to local combatants that were later used in the attack on Bogoro. The majority found that this constituted a significant contribution to the crimes, and that Katanga knew the combatants intended to commit crimes during the attack. Therefore, Katanga was convicted of aiding and abetting one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property, and pillaging). He was acquitted of charges of using child soldiers, rape, and sexual slavery.
Growing Pains at the ICC
The Regulation 55 decision created a heated debate about the role of the judges and the prosecutor and the protection of fair trial rights at the ICC (see, for example, here). In many ways, this decision and the trial as a whole highlight the growing pains of the ICC as an institution, but especially of the Office of the Prosecutor (OTP).
The Katanga/Ngudjolo trial was only the second at the ICC. The first, of Thomas Lubanga, was smaller in scope, as might be expected of a fledgling international court operating under the auspices of a tenuous cooperation regime. The trial against Katanga and Ngudjolo was slightly more ambitious in scope: two accused, numerous charges, and co-perpetration as a mode of liability. However, it was still a testing ground for the OTP and its investigative and trial strategy, which is reflected in the verdict and sentence.
Katanga is only the second accused to be convicted and sentenced by the 12-year-old institution. Ngudjolo was acquitted by the same trial chamber after the charges were split. The judges found that the prosecution had not sufficiently proven the link between Ngudjolo and the FNI. However, they seemed keen to focus on the lack of evidence as opposed to the existence of their reasonable doubt. Indeed, the judges stated “To declare that an accused is not guilty does not imply that the Chamber finds him innocent” (para 36).
The majority made a similar comment in the Katanga judgment (para 70). This, as Yvonne McDermott Rees points out, raises a number of questions about the majority’s understanding of the concept of “innocent until proven guilty.” However, it is also a reflection of the chamber’s strong condemnation of the prosecution’s lack of evidence.
In both the Ngudjolo and Katanga judgments, the trial chamber chastises the prosecution for its poor investigations. The chamber acknowledged the difficulty of conducting investigations in Ituri, which experiences frequent security problems, and the challenges of finding witnesses who are willing to testify. However, the chamber considered that the prosecution should have conducted investigations closer in time to the attack in Bogoro, and should have travelled to the region to visit key locations in the case (as the chamber did in 2012). The prosecution also should have secured testimony from higher level insider witnesses, including commanders and military officials that participated in the planning and execution of the attack, the chamber considered. These criticisms reflect Trial Chamber I’s similar comments about the prosecution’s investigation in Lubanga.
The chamber also conducted an extensive review of prosecution witnesses. It found that the prosecution’s key witnesses gave unreliable testimony. In the Ngudjolo case, these witnesses had provided the core evidence about his authority over the FNI, and their unreliability led to his acquittal. In the Katanga trial, it was largely Katanga’s testimony that provided evidence of his guilt, which is unsurprising given the reliance on common witnesses in the joined trial.
While it is easy for commenters to criticize the performance of the OTP, it is much more difficult to take a step back and ask what can be done to improve the situation. To be sure, critical remarks are necessary and important for raising awareness about the shortcomings of the court and the OTP. Especially when it comes to the protection of fair trial rights for the accused. But in my opinion, it is equally necessary and important to try to improve the current state and strive for better trials in the future.
The OTP has seemed to take on the chambers’ comments and has taken steps to improve its investigation strategy. In its 2012 – 2015 Strategic Plan, the OTP has said it will change its investigation approach to a broader, open-ended, bottom-up strategy that will build blocks to prosecute higher-level perpetrators and focus on a larger crime-base. This new approach seems to express a willingness to take on some lessons learned by the ad hoc tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), which had previously been eschewed by the ICC. But by maintaining “focus,” the strategy aims to balance those broader investigations with a real need to reign-in unwieldy trials, which was a common criticism of the ad hoc tribunals.
This approach will of course require more time and resources. This means the OTP will have to strive to cut down on unnecessary expenses. But it also means the ASP will have to continue to make concessions to its “zero-growth” policy and help fund the OTP (it did increase the OTP’s budget in 2013). The OTP may also need to expand its reliance on external sources of evidence and analysis if that budget cannot cover all of the investigation expenses.
However, although these are laudable goals, there will be significant challenges in implementing them. Although the OTP is now under new leadership, that alone does not guarantee speedy or department-wide changes. The process will take time, and there will surely be setbacks and more criticism. However, hopefully the lessons from the Katanga trial will lead to improved trials for international crimes in the future.