The Prosecutor v. Germain Katanga

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Court	International Criminal Court (Trial Chamber II), The Netherlands
Case number	ICC-CPI-20140307-PR986
Decision title	Judgment
Decision date	7 March 2014
Parties	The Prosecutor Germain Katanga
Categories	Crimes against humanity, War crimes
Keywords	Bogoro massacre, child soldiers, Ituri, murder, rape, Sexual slavery
Links	Judgment (original, in French) Judgment (summary, in English)
Other countries involved	Congo

Summary

Between 1999 and 2003, Ituri (Democratic Republic of Congo - DRC) was the scene of a violent conflict between the Lendu, Ngiti and Hema ethnic groups. The Hema-dominated Union of Congolese Patriots (UPC) seized control of Bunia, the district capital, in August 2002. On the road between Bunia and the border with Uganda lies the strategically important town of Bogoro, with a UPC military camp in the middle of the town. On 24 February 2003 a Ngiti militia attacked Bogoro, aiming to drive out or eliminate the UPC camp as well as the Hema population. Numerous civilians were murdered and/or raped and the town was partly destroyed.

During this time, Germain Katanga was President of the Ngiti militia and Commander or Chief of Aveba. As such, he formally exercised authority over the attackers; therefore he was indicted by the ICC for participating in the crimes against humanity and war crimes committed during the Bogoro attack.

The Trial Chamber found that Katanga, while formally President, did not have full operational command over all fighting forces and commanders. Therefore he was acquitted of some of the crimes committed. However, since he had provided indispensable logistical aid (providing arms and transportation), he had enabled the militia to commit the crimes. He knew of their intent and intentionally contributed to the perpetration of the crimes; as such, the Chamber found him guilty, as accessory, of the crime against humanity of murder and the war crimes of murder, attacking a civilian population, destruction of property and pillaging.

On 23 May 2014, the Court sentenced Katanga to 12 years' imprisonment with credit for time served in the ICC's detention centre, approximately 7 years.

Procedural history

An arrest warrant for Germain Katanga, alleged commander of the Force de résistance patriotique en Ituri (Patriotic Force of Resistance in Ituri: FRPI), was issued by the ICC's Trial Chamber II on 2 July 2007. Katanga was suspected of involvement in the crimes against humanity and war crimes, all allegedly committed during the Ituri conflict.

Congolese authorities surrendered Katanga for transfer to the Hague-based detention centre (in The Netherlands) on 17 October 2007; the trial commenced on 24 November 2009, and parties and participants delivered their closing statements from 15 to 23 May 2012. The Court's Trial Chamber II heard 25 witnesses and expert witnesses called by the Prosecution, 28 called by the defence teams for Germain Katanga and Mathieu Ngudjolo Chui (whose case was joined to Katanga’s during trial until severed on 21 November 2012) and two witnesses called by the legal representatives of the victims. The Chamber also called two further experts to testify. In addition, Katanga chose to testify under oath as a witness himself.

Related developments

Katanga originally signaled his intent to appeal, but on 25 June 2014 he dropped his appeal against the judgment rendered against him by a majority of the Court's Trial Chamber II. In response, the prosecution also discontinued its appeal regarding Katanga's acquittal on the charges of rape and sexual slavery.

Legally relevant facts

Between 1999 and 2003, Ituri was the scene of a violent conflict between the Lendu, Ngiti and Hema ethnic groups. The Hema-dominated Union of Congolese Patriots (UPC) seized control of Bunia, the district capital, in August 2002. Bogoro was a strategically important town (where mostly people from the Hema group lived) on the road between Bunia and the border with Uganda, with a UPC military camp in the middle of the town.

On 24 February 2003, hundreds of FNI and FRPI fighters including children under the age of fifteen circled Bogoro and attacked with machetes, spears, arrows, and heavy weapons including mortars, rocket-propelled grenades, rocket launchers and semi-automatic weapons. At least 200 civilians were killed and survivors were imprisoned in a room filled with corpses, while many women and girls were sexually enslaved. According to the UN, 173 of the victims were under the age of 18.

As reported by the UN, the attack aimed to drive the UPC from Bogoro, but also appeared to be a reprisal operation against the Hema civilian population for supporting the UPC; the attack was part of a plan by Lendu and Ngiti rebels to attack predominantly Hema villages in preparation for an assault on Bunia.

Germain Katanga and Mathieu Ngudjolo were believed to be linked to the attack and as such they were indicted for numerous crimes during the attack, jointly as well as in person, including:

wilful killing as a war crime under article 8(2)(a)(i) of the Statute;
murder as a crime against humanity under article 7(1)(a) of the Statute;
directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities, as a war crime under article 8(2)(b)(i) of the Statute;
destruction of property as a war crime under article 8(2)(b)(xiii) of the Statute;
pillaging as a war crime under article 8(2)(b)(xvi) of the Statute, in the knowledge that this crime would occur in the ordinary course of events;
the war crime of using children under the age of fifteen years to participate actively in the hostilities, under article 8(2)(b)(xxvi) of the Statute.
sexual slavery as a war crime under article 8(2)(b)(xxii) of the Statute;
sexual slavery as a crime against humanity under article 7(1)(g) of the
Statute;
rape as a war crime under article 8(2)(b)(xxii) of the Statute; and
rape as a crime against humanity under article 7(1)(g) of the Statute.

Core legal questions

What was Katanga's role in the attack on Bogoro?
What was Katanga's position in the Ngiti militia of Walendu-Bindi collectivité (community)?
Can Katanga be found criminally liable for the alleged crimes?

Specific legal rules and provisions

Rome Statute of the International Criminal Court:

Individual principal and accessory criminal responsibility (Art. 25(3)(a)/(d)).
Crimes against humanity (Art. 7(1)(a), Art.7(1)(g)).
War crimes (Art. 8(2)(a), Art. 8(2)(b)(i), Art. 2(b)(xiii), Art. 8(2)(b)(xvi), Art. 2(b)(xxii), Art. 8(2)(b)(xxvi)).

Court's holding and analysis

It was established that on 24 February 2003, Bogoro was attacked by the Ngiti combatants of Walendu-Bindi collectivité and the Lendu combatants of Bedu-Ezekere groupement, with reinforcements from the APC. The Chamber has not, however, been able to affirm that Katanga was present on this day, that he participated in the fighting, or that he took part in the victory celebrations in the village and/or claimed responsibility for that victory (summary, para. 16).

The Chamber did find beyond reasonable doubt that Ngiti combatants intentionally directly targetted the predominantly Hema civilian population of Bogoro on 24 February 2003 and established that numerous crimes against humanity and war crimes - murders, rapes and destruction of property - had been committed (paras. 30-38). Furthermore, it was established that child soldiers were used during the attack (para. 41). However, no nexus could be identified indicating that Katanga used these children to participate in the hostilities.

Considering Katanga's role in the attack, the Chamber found that he - bearing the titles President of the Ngiti militia and Commander or Chief of Aveba – was a seasoned and well-known soldier with undeniable military authority over the collectivité, authority over administration, oversight, security and public order, and with close ties to priests in the Walendu-Bindi collectivité (paras. 44-46). Nevertheless, the effectiveness of his authority over the supply and distribution of weapons and ammunition to the militia, his duties as facilitator and negotiator did not, however, allow the Chamber to find beyond reasonable doubt that Katanga had effective hierarchical power over all the commanders and combatants of the Ngiti militia in Walendu-Bindi collectivité.

Although Katanga's individual responsibility as principal perpetrator could, as such, not be vested, the Chamber did find him responsible as an accessory to a number of the crimes. Since he had not only been part of the attacking group which had the common purpose of eliminating the Hema population of Bogoro but also significantly (through logistical aid, provinding weapons and transportation, enabling the militia to operate) and intentionally contributed to the commission of the crimes, knowing of the group's intent, he was found guilty of one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging). The Chamber acquitted him of the other charges that he was facing.

The Court sentenced Katanga to 12 years' imprisonment with credit for time served in the ICC's detention centre, approximately 7 years.

Instruments cited

Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998.