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Katanga and Ngudjolo Chronicle #1: The Congolese people are waiting for justice

Please find Katanga and Ngudjolo Chronicle #1, which was originally published on the Aegis Trust website.  The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

It´s 9.15 in the morning and the visitors are taking their seats in the Public Gallery. Although there are still 15 minutes left until the hearings start, there are no seats spare. It is a remarkable day in the short life of this permanent court, and in the history of international justice. Today, the International Criminal Court starts its second trial since its creation: The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui.

The blinds remain down while an ICC officer makes a brief introduction about the case. This is the second trial in the context of the situation in the Democratic Republic of Congo, referred to the Court by the Congolese Government on 3 March 2004. The suspects, Mr. Katanga and Mr. Ngudjolo, were surrendered by the Congolese authorities and transferred to The Hague in October 2007 and February 2008 respectively.

Germain Katanga, of Ngiti origin, alleged commander of the Force de Résistance Patriotique en Ituri (FRPI), and Mathieu Ngudjolo Chui, of Lendu ethnicity, alleged former leader of the Front des Nationalistes et Intégrationnistes, (FNI), are accused of three crimes against humanity (murder, sexual slavery and rape) and seven war crimes (using children under the age of 15 to take an active part in hostilities; deliberately directing an attack on a civilian population as such; willful killing; destruction of property; pillaging; sexual slavery and rape). The Prosecution submitted that those crimes were committed during and in the aftermath of the assault on Bogoro village on 24 February 2003, as part of a widespread and systematic attack carried out jointly by the FNI and the FRPI against the Hema population in Ituri.

The blinds that hide the courtroom are now pulled up, but the judges are not present yet. Trial participants take their positions. On the right, the Prosecution bench is filled by Deputy Prosecutor Fatou Bensouda, Senior Trial Lawyer Eric MacDonald and the Prosecutor, Luis Moreno Ocampo, who make the most of the last minutes to leaf through the statements with which they will open their second case. “All rise! The International Criminal Court is now in session,” announces the court officer. The judges of Trial Chamber II enter the room. A few minutes of silence follow – to allow a photographer to take pictures of this moment. In the words of Presiding Judge Bruno Cotte, these pictures will contribute to the public nature of this trial.

The court officer announces the commencement of the trial. The Presiding Judge starts by reminding us of the composition of the Chamber: Judge Fatoumata Dembele, from Mali, Judge Christine Van den Wyngaert, from Belgium and himself, Judge Bruno Cotte, from France. He invites the participants to introduce themselves. The Lead Counsels for the Defence of Germain Katanga and Mathieu Ngudjolo Chiu, David Hooper and Jean Pierre Kilenda Kakengi respectively, take the floor to present their colleagues to the audience. They are followed by the Legal Representatives of Victims, led by Jean-Louis Gilissen and Fidel Nsita Luvengika, who represent 345 victims participating in the proceedings.

Presiding Judge Cotte announces that at the commencement of the trial, the Chamber will read to the accused the charges previously confirmed, and guarantee that the accused understands the nature of the charges. Thereafter, the Court shall afford Germain Katanga and Mathieu Ngudjolo Chui the opportunity to plead guilty or not guilty.

Without interruption, the courtroom officer reads out the ten charges against the Accused. Their plea to each of these counts is not guilty. Katanga and Ngudjolo affirm their innocence.

After a thirty minutes break, the Prosecution addresses the Court to present its case. “Mr President, your Honours. The Office of the Prosecutor alleges that Germain Katanga and Mathieu Ngudjolo Chui are responsible for some of the most serious crimes of concern to the international community as a whole. They are criminally responsible for crimes against humanity and war crimes committed in Bogoro, in the Democratic Republic of Congo, on 24 February 2003. They used children as soldiers. They killed more than 200 civilians in a few hours. They raped women, girls and elderly. They loot[ed] the entire village and they transform[ed] women into sexual slaves.”

The Prosecutor uses a map to explain to the judges where Bogoro is and why Katanga and Ngudjolo decided to target this village. According to the Prosecution, Mr. Katanga and Mr. Ngudjolo were the leaders of militias composed of members of the Lendu and Ngiti communities. They were involved in an armed conflict with the UPC, a militia predominantly composed of members of the Hema community and led by Thomas Lubanga, whose trial before the ICC commenced on 26 January 2009. “Mr. Katanga and Mr. Ngudjolo planned to attack Bogoro so as to open the Bunia-Kasenyi route and at the same time prevent UPC attacks on neighbouring Lendu and Ngiti villages,” explains the Prosecutor. “The UPC had a military camp in the centre of Bogoro. But Mr. Ngudjolo and Mr. Katanga’s plan was more than just disabling the UPC. The plan was to wipe out Bogoro, destroying not only the UPC camp but the whole civilian village. This is the plan and this is the position of the Prosecutor’s office.”

The Prosecution´s intervention comes to an end with this statement: “the Prosecution will prove beyond all reasonable doubt that Germain Katanga and Mathieu Ngudjolo jointly planned and executed the attack against Bogoro and must be declared guilty of the crimes charged against them,” said Senior Trial Lawyer Eric MacDonald.

The legal representatives of victims now take the floor. Mr. Jean Louis Gilissen addresses the Chamber on behalf of his clients. He represents former child soldiers who participated in the attack on Bogoro, “children who are now young adults, young women, who try to understand what happened to them.” he says. These are victims who seek understanding and recognition of their physical and psychological suffering. “Your Honours, believe me, this is a great moment of hope for the victims who, for more than six years, have been waiting for justice to be served.”

His colleague, Mr. Fidel Nsita, also wants to intervene in order to remind the audience that most of the victims live as internally displaced persons within their own region in the DRC. Traumatised by the events, they have not returned to Bogoro. They do not know what happened to their families. They do not know the way in which they were killed and if they were buried. They have not had any kind of support or guidance to overcome their trauma. “They hope that the proceedings which will take place before this Court will make it possible for them to understand what really happened and to have their dignity restored,” says the Counsel.

After the lunch recess, the Counsels of the two Accused make their opening statements. The Defence team of Mr. Germain Katanga has the floor. “Undoubtedly, there was an attack on Bogoro that day and excesses were committed,” says Mr. Hooper, “but we say those excesses were not committed by Germain Katanga.”

The Defence Counsel tells the judges that when he met Germain Katanga for the first time, what most surprised him was his age. Born in 1978, at the time of the Bogoro attack, Mr. Katanga was only 24 years old. “This makes him the youngest person ever to be charged before an international criminal tribunal or court. That raises a question as to why such an institution as this, that is fighting impunity.” says Mr. Hooper, in “an international armed conflict that leaves five million dead, with the involvement of many plundering states … puts in the dock a man who is only 24 years of age at the time when these allegations are allegedly rooted and whose essential role in [that] time was merely to defend his own people against dreadful excesses.”

Mr. Hooper makes the audience think about the responsibility borne by foreign powers and authorities in Kinshasa. “Where are those who inflicted on the poor people of Ituri all this misery? Where are the Ugandans and the Rwandans?” asks the Counsel. “Mr President, in the course of the submissions from the Prosecution this morning, I don’t think I heard the word ‘Kinshasa’ mentioned. It’s a strange omission.” He continues: “Bogoro was attacked, and he [Katanga] is charged with planning it. That is the heart of the case against him. But who planned the attack? Who benefitted from the attack? Who provided the arms that the Ngiti people were incapable of buying? Who provided the military knowledge necessary to conduct such a relatively sophisticated operation?” These are questions with which Katanga´s Defence team will probe the Prosecution’s case over the coming months.

Similarly, the Defence of Mathieu Ngudjolo stresses the responsibility of foreign countries – namely, Uganda and the Congolese state in the case of Bogoro. They also highlight the right of the Lendu community to self-defence. “Let us say simply that it is both the absence and the incapacity of the Congolese state at the time to ensure the collective security of the inhabitants of Ituri which has justified the proliferation of self-defence groups as well as the presence of foreign countries, such as Uganda, which has established a veritable military government,” says Counsel Jean Pierre Kilenda. “This is called the instinct of preservation. They were defending themselves against obvious plans to exterminate the Lendu population.” He concludes: “Instead of trying to find the real people responsible for this tragedy, who should be found within the Ugandan army or among the people in power in Kinshasa, the Prosecutor takes these two young people, Katanga and Ngudjolo.”

The trial commences with a clear objective: the establishment of the truth regarding what happened on 24 February 2003 in a tiny village in the province of Ituri: Bogoro. The Congolese people are waiting for justice.

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