Prosecutor Needs to Continue Investigations in Congo
March 7, 2014
Katanga’s conviction for the Bogoro massacre will hopefully bring a sense of justice to victims there, and send a clear warning to rights abusers throughout Congo.
Géraldine Mattioli-Zeltner, international justice advocacy director

(The Hague) – The guilty verdict against a Congolese rebel leader at the International Criminal Court (ICC) provides a measure of justice to victims of atrocities in the Democratic Republic of Congo (Congo), Human Rights Watch said today. The ICC prosecutor should build on this verdict by publicly committing to further investigations in Congo.

On March 7, 2014, two of the three judges of the court’s Trial Chamber II found Germain Katanga guilty as an accomplice in murders and an attack on civilians in the village of Bogoro, Ituri, on February 24, 2003. He was found not guilty of rape, sexual slavery, and the use of child soldiers. Katanga is the former chief of staff of the Patriotic Force of Resistance in Ituri (Front de Résistance Patriotique en Ituri – FRPI). Katanga can challenge this verdict before the appeals chamber of the court.

“Katanga’s conviction for the Bogoro massacre will hopefully bring a sense of justice to victims there, and send a clear warning to rights abusers throughout Congo,” said Géraldine Mattioli-Zeltner, international justice advocacy director at Human Rights Watch. “At the same time, the verdict highlights unresolved questions about the role of judges in modifying charges against the accused at the ICC.”

In the judgment against Katanga, the majority of judges found that the evidence presented at the trial – including Katanga’s own testimony – showed that he had made a significant contribution to the Bogoro attack knowing that crimes would be committed there, particularly through the delivery of firearms and ammunition. In their ruling, the judges redefined Katanga’s participation in the crimes – as permitted under a court regulation – to reflect his role as a “contributor” to, rather than as “perpetrator” of, the alleged crimes. The judges unanimously ruled that the evidence presented at trial did not establish beyond reasonable doubt that Katanga was criminally responsible for rapes, sexual slavery, and the use of child soldiers committed by FRPI troops.

One of the judges disagreed with the judgment and said that changing Katanga’s responsibility for the crimes violated his right to a fair trial, as he was not able to properly prepare against this accusation. The majority, however, concluded that Katanga’s defense team had been given sufficient notice about the change and sufficient time and resources to collect additional evidence and re-orientate its defense strategy. The majority found that Katanga’s rights to a fair and speedy trial had been upheld despite the modified accusation against him.

Congolese authorities arrested Katanga in 2005 and transferred him to the ICC in 2007 after the court issued an arrest warrant against him. In November 2009 his trial was joined with that of Mathieu Ngudjolo – the leader of an allied militia, the Front for National Integration (FNI) – which allegedly also participated in the Bogoro massacre. Their trial lasted until May 2012. Ngudjolo was acquitted in December 2012.

In November 2012, the trial chamber decided to separate Katanga’s case from Ngudjolo’s. At that point, it also gave notice to Katanga’s defense team that it was considering modifying the legal characterization of his participation in the alleged crimes. The ICC Appeals Chamber allowed this change in March 2013, stressing the responsibility of the trial chamber to ensure that it would not encroach on Katanga’s rights to a fair trial.

“The decision to convict Katanga was complicated by a late reframing of his role in the crimes charged,” Mattioli-Zeltner said. “Crucial questions are at stake in this decision and the change in Katanga’s individual responsibility, although permitted by court regulation, has been controversial. The ICC should draw lessons from this and other cases when it comes to charging and modifying charges against the accused.”

The trial against Katanga and Ngudjolo uncovered evidence matching findings by Human Rights Watch about the role of high-ranking military and political officials in Congo and in Uganda in providing strategic direction, and financial and military support to the FNI and FRPI militias during the Ituri conflict in 2002-2003. In particular, several witnesses described the existence of a secret military structure coordinated by the Congolese army that planned military operations and provided weapons and financial support to local militias in Ituri allied to the central authorities, such as Ngudjolo’s FNI and Katanga’s FRPI. Underlying facts in the Katanga case should influence the ICC prosecutor’s future strategy in Congo in investigating those who supported abusive local militias, Human Rights Watch said.

During the Ituri conflict from 1999 to 2005, all local armed groups had critical support from high-level military and political officials in Congo and neighboring Rwanda and Uganda, as they fought for control over the district’s mineral resources, including gold. These officials provided support to Congolese armed groups despite ample indication of their widespread violations of international humanitarian law. The concern about external support to local militias has frequently arisen in eastern Congo, most recently in North Kivu in 2012 and 2013 where Rwandan military officials provided support for a rebellion called the M23.

The ICC Office of the prosecutor has brought public arrest warrants against six people for crimes in Congo to date. Four were leaders of armed groups in Ituri: Thomas Lubanga, who was convicted in March 2012; his co-accused, Ntaganda, who later led the M23; and their opponents during the Ituri war, Ngudjolo and Katanga. The final two accused are leaders of the Democratic Forces for the Liberation of Rwanda, a largely Rwandan Hutu rebel group active in the Kivus, some of whose members participated in the Rwandan genocide of 1994. One was released from ICC custody after judges declined to confirm charges against him. The other is still in Congo, evading justice. The overall action of the ICC in Congo has been insufficient to date, Human Rights Watch said.

“The ICC prosecutor’s office needs to improve the quality of the investigations and choice of suspects in Congo,” Mattioli-Zeltner said. “To ensure that justice is done, the prosecutor should focus on senior officials in Congo, Rwanda, and Uganda who armed and supported local militias.”

Katanga’s case is the third to reach judgment at the ICC. Three other trials are under way, relating to crimes in the Central African Republic and Kenya. Decisions on the confirmation of charges against another Congolese rebel leader, Bosco Ntaganda, and the former Ivory Coast president Laurent Gbagbo are pending.