Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists. The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.
The verdict in the case against Germain Katanga, the alleged commander of the Forces de Résistance Patriotique en Ituri (FRPI), for war crimes and crimes against humanity in relation to an attack on the village of Bogoro in Ituri, Democratic Republic of the Congo (DRC) is being awaited with impatience in Ituri. Having followed trials at the International Criminal Court (ICC) for years (the verdict against Katanga will be the third in cases relating to the conflict in Ituri), much of the population are seasoned spectators of the ICC and are well aware of the impending verdict. Not surprisingly, there are mixed feelings regarding the possible outcome of the trial.
Some in Ituri are awaiting the verdict against Katanga with apprehension. They have lost faith in the credibility of the court and are already making accusations of bias, even before the decision is delivered. Some of this criticism is, as might be expected, coming from members of Katanga’s community, but it is also coming from activists and other community leaders.
The Katanga case has encountered a number of thorny legal issues and the manner in which the court has addressed these has raised concerns on the ground. Members of the Lendu and Ngiti communities, in particular, have used these concerns to argue that the court is biased against their communities.
The first legal issue that has caused consternation was the treatment of three of Katanga’s defense witnesses. These witnesses gave evidence at trial that implicated current Congolese President Joseph Kabila in the attack on Bogoro for which Katanga stands accused. The court has wrestled to balance its responsibility to protect witnesses with its obligations to return the witnesses to the DRC under the court’s cooperation agreement with that county. Finally, the Appeals Chamber ruled in January that the individuals should be returned provided that arrangements could be made to ensure their security.
The decision, however, caused consternation among many activists who see the threat against the witnesses as credible. Although acknowledging that the situation is complicated, they are concerned that the court has not done more to address this need for protection. Members of the Lendu and Ngiti communities, however, are alleging double standards. One community leader interviewed for this piece asked why these individuals should have remained in detention for more than two years since the conclusion of their testimony, especially when they had been invited by the court to contribute to establishing the truth. Why have other witnesses been protected while these witnesses are left in detention? The same community leader went on to argue that the community should stop cooperating with the court as a result of this incident.
Another issue that has raised eyebrows has been the severing of the Katanga and Mathieu Ngudjolo Chui trials following on the conclusion of the evidence portion of the trial and the consideration of a change of the mode of criminal liability in the case of Katanga. Although the full legal intricacies are poorly understood, it has raised concerns about the conduct of the court. People ask why Katanga is still in custody when Ngudjolo, who was a subject of the same trial since 2009, has already been acquitted.
Civil society activists have raised due process concerns, questioning whether Katanga’s defense team has had enough time to respond to the new modes of criminal responsibility alleged by the judges. Others, such as the Association of Auxiliaries for Justice and Human Rights, see the ICC judges as trying to force the case in order to secure a conviction.
Calls for Conviction
Despite concerns about the conduct of the court, there are many on the ground who are hoping for a conviction. For example, one civil society leader said, “A conviction would be a good thing for him, because he should reap what he has sown so that this can offer a moral lesson to other executioners.” A lawyer at the appeals court in Kisangani said, “Katanga deserves a very severe condemnation so that others can understand and abandon the spirit of this massacre… [a conviction] would be a great relief to the communities in the Irumu territory.” A teacher said, “He really deserves a conviction as do his acolytes. Unfortunately, Mathieu Ngudjolo Chui was set free because the ICC did not carry out its investigations well.”
One civil society activist interviewed noted that in the eyes of some, in particular those who identify as ethnically Hema, the Ngudjolo acquittal was a total failure on the part of the court. In this context, some see the Katanga verdict as an opportunity for the court to redeem itself. One Hema leader interviewed for this piece argued that Katanga should be convicted “because he is guilty and the victims must get reparations.”
Regardless of what they hope the verdict will be, Iturians are reflecting on its potential impact. Will those associated with Katanga be spurred to retaliatory action in the event of a conviction? Or would a conviction help to reassure victims and counter the culture of impunity in Ituri? Interestingly, few speculated on the possible impact of an acquittal.
Some are fearful of retaliation. For example, one analyst has suggested that others, such as the commander Cobra Matata, whose role in these crimes are well known, will be entrenched in their position in the bush, fearful of being delivered to justice as well. A women’s rights activist from Katanga’s region said, “We are fearful of a conviction…we don’t know how his people will react. Germain Katanga is a man very much admired in Aveba…the population will not accept it.”
Others are concerned that it might negatively impact the relationship between the aligned Ngiti and Lendu communities, if Katanga is convicted while Ngudjolo is acquitted. One civil society activist said, “We regret the manipulation of communities in these cases, because both of the sister communities are concerned that a conviction in the Katanga case will poison the accord between the youth of these communities.”
Others saw more positive potential, particularly in relation to the impact on victims. For example, one civil society activist interviewed for this piece said, “The most important thing is that the victims can see that the justice system has done its work.” A student said, “Those who were injured and those who suffered acts of genocide caused by Germain Katanga will be re-established in their rights.” A pastor remarked that if Katanga were convicted, “the victims could find their smiles again after the long painful period that they have gone through.”
Others expressed hope that the decision could help to promote peace. In the words of a businessman, the impact of a conviction could be that, “the population would be happy and a spirit of peaceful cohabitation between the Hema and Ngiti communities would be established.” A political party member speculated that “impunity could be diminished and the two collectivities could make peace because on one side and the other the authors of crimes have been punished.”
Others expressed concern that such potential could be undermined by concerns about the credibility of the court as outlined above. One Hema leader noted that a conviction would be good, but “as people no longer have confidence in the ICC, the decision could pass unnoticed, that is, people will not take it into account.”
The actual, as opposed to anticipated, reaction remains to be seen. In the meantime, some are calling on the court to be proactive. The human rights organization Justice Plus, an NGO based in Ituri, has called on the court to offer clear reasons for their decision. At the same time, the court must conduct outreach to ensure that this decision is clearly explained to affected communities. The court cannot leave confusion about the decision in its wake.