This summary inludes events that took place from May 2-13, 2011.
Upon returning from the ICC’s annual spring judicial recess, the Court heard from several witnesses who testified in defense of Germain Katanga. Katanga’s third witness, Pierre Célestin Mbodina Iribi (also known as Pichou), finished his testimony and three other witnesses were called to the stand: Sharif Manda Ndadza Dz’Na, witness 176 and witness 134.
These witnesses testified about the February 24, 2003 attack on Bogoro, a village in the Ituri region of the Democratic Republic of the Congo (DRC). Katanga and Mathieu Ngudjolo Chiu each face crimes against humanity and war crimes charges before the ICC for crimes committed during the attack. Both accused deny the charges against them.
Pierre Célestin Mbodina Iribi (witness 228)
Iribi, an Ngiti, was a high-ranking member of the FRPI (Front for Patriotic Resistance of Ituri), the armed militia allegedly led by defendant Germain Katanga. Iribi testified about the FRPI and other armed groups operating in Ituri during the conflict. In his testimony, Iribi underscored role of the DRC government in the attack on Bogoro.
Iribi has been detained in Kinshasa since 2005. He and two other defense witnesses have indicated that they intend to apply for political asylum in The Netherlands. This issue is discussed in more depth below.
The Court noted its concern that due to the pause in the witness’ testimony over the spring recess, Iribi was effectively placed in solitary confinement to avoid interactions between him and other witnesses in the detention center who had either completed their testimony or not yet begun their testimony.
The Chamber noted that it had made efforts to alleviate the situation. However, while Iribi was allowed to have phone calls from his family, he was not allowed to take part in open-air exercise with detainees from the International Criminal Tribunal for the former Yugoslavia.
Sharif Manda Ndadza Dz’Na (witness 351)
Sharif Manda Ndadza Dz’Na was also a high-ranking officer in the FRPI who was arrested and has been detained in Kinshasa. Manda testified about the creation of the FRPI in December 2002, which he claimed was a response to the threat of attacks by Thomas Lubanga’s Union of Congolese Patriots (UPC). Thomas Lubanga, the alleged leader of this Hema rebel group, also faces charges before the ICC.
Like previous defense witnesses, Manda testified that the Integrated Operational Head Command (EMOI) was created by the Kinshasa government to combat rebel forces and liberate eastern DRC. The witness said that he attended several EMOI meetings, and that occasionally, Colonel Aguru came from Kinshasa to give instructions and tell them what the next armed operations would involve. Local commanders of armed groups operating in the Ituri region would attend these meetings, the witness testified.
Manda also testified about the attack on Bogoro.
“In Beni, they were preparing themselves to go and fight in Bunia, and not in Bogoro, but they had to pass through Bogoro to arrive where they were going. … The preparation of the battle done in Beni was to attack Bunia and not Bogoro,” Manda said.
The witness claimed that different leaders from villages in the area were called upon to fight, including Germain Katanga, who was responsible for the village of Aveba. The witness did not hear of Katanga referred to as “President,” however, until the time of Katanga’s arrest.
The witness was also asked about his account of the attack by the prosecution and the judges. Manda stood by his testimony about the attack on Bogoro during cross-examination by the prosecution. The judges sought clarification on whether recovering Bogoro was ever specifically discussed at EMOI meetings, or whether the discussions only dealt with recovering Bunia. The witness said that the Colonel Aguru had discussed the strategy for recovering Bunia that included a discussion of Bogoro and positions occupied by the enemy.
“When Aguru showed us the map he indicated all the positions that were occupied by the enemy, the UPDF and the UPC and Kpandroma was indicated and Bogoro, and these are the areas that had to be recovered before going to Bunia,” Manda said.
The witness also told the judges that Aguru was the commander of all operations to recover Bunia. During EMOI meetings, Manda said, Colonel Aguru would frequently tell them that civilians must be protected and not attacked during battle.
Witness 176 was a UPC soldier located in Bogoro during the attacks that took place during February 2003. Large portions of his testimony were given in closed session.
The witness testified that the first attack on Bogoro occurred on February 10, and the second attack occurred on February 24, 2003. It is only the February 24 attack that is the subject of the charges against Katanga and Ngudjolo.
Witness 176 claimed that there were about 130 UPC soldiers in Bogoro on the 24th of February. Since they knew that a second attack was coming, they had warned the families to leave.
On cross-examination, the witness claimed that there were several ethnic groups present in Bogoro during the time of the attack, including Ngiti and Lendu. The Hema were the majority, he said.
Testifying about the February 24 attack on Bogoro, the witness confirmed that the attackers were Ngiti, coming from the Geti and Medhu routes, and Lendu from Zumbe. He also confirmed that at the time of the attack, Ngudjolo was the most senior commander at Zumbe.
He said that he could hear the attackers shouting, “Capture them.” The UPC fled the camp in Bogoro at the end of the attack, he said, while the attackers stayed behind in the village.
When questioned by the legal representative for victims, witness 176 admitted that many inhabitants of Bogoro died during the attack and that houses were burnt.
He said that while many inhabitants fled to the military camp in Bogoro where the UPC soldiers could protect them, others, located farther away from the center of the village, hid in the bush. He said that among those who fled to the military camp, there were men, young people, women and elderly people.
Witness 176 testified that the Ngiti attackers behaved like civilians. They were dressed in civilian clothes, he said, and included both men and women.
“When they arrived, they were shooting at all civilians who tried to leave their homes, and some of them would hack down their victims. Even women had machetes, and they started cutting down people,” he testified.
Witness 176 said that when he joined the UPC, there was an inter-ethnic conflict between the Hema and the Lendu/Ngiti groups. As have previous defense witnesses, witness 176 testified that the conflict originated as a conflict over land, between those who grow crops (the Lendu/Ngiti) and those who farm livestock (the Hema).
Witness 134, who worked for an NGO in Ituri, testified about his relationship with Germain Katanga’s family as well as Katanga’s role in Aveba. Much of this witness’ testimony was conducted in closed session.
Legal and Procedural Issues
Close of the Katanga Defense Case
Katanga’s defense team indicated that it would likely close its case in June and that it had reduced the number of witnesses it would call by up to four.
Katanga Witnesses to Request Asylum in The Netherlands
In an interesting turn of events, three Katanga defense witnesses (Floribert Njabu, Iribi, and Manda) have indicated that they will apply for political asylum in The Netherlands. The witnesses are all detainees who were transferred from a Kinshasa prison to the Netherlands solely for their testimony before the ICC. The witnesses argue that they face serious risks if they return to detention in Kinshasa because of the nature of their testimony.
The Chamber stressed that it does not have the jurisdiction to decide on an asylum application, which can only be decided by the appropriate Dutch authorities. However, the Chamber held a status conference to hear from the witnesses’ legal representative, the parties and the Dutch authorities on the legal status of the witnesses and the measures that should be taken by the Court in response to the witnesses’ request.
The issue seemed to focus on the dual obligation of the Court to return the witnesses to the DRC immediately after their testimony, and the obligation of the court to protect witnesses.
According to the legal representative for the witnesses, Counsel Mabanga, the witnesses risk reprisals from the DRC authorities because their testimony implicated the government in the attack on Bogoro. The protective measures proposed by the ICC’s Victims and Witnesses Unit (VWU) to deal with these risks once the witnesses are returned to the DRC are “glaringly insufficient,” he claimed, due to limitations of the unity to impose measures on the penitentiary system in the DRC. The VWU measures would require the intervention of the Red Cross in order to provide information on the situation of the witnesses once they have been returned to detention in Kinshasa. This was inadequate, Mabanga argued.
In order to avoid persecution upon their return to the DRC, the witnesses have requested that the Court turn them over to the Dutch authorities pending their applications for asylum. This transfer is necessary, Mabanga averred, because the witnesses were currently under the jurisdiction of the Court and therefore the Dutch authorities would have no legal basis to examine any application for asylum. Mabanga characterized the request as a necessary protective measure for these witnesses.
Mabanga stated that his clients never at any point envisaged the possibility that they would not face the accusations that have been made against them in the DRC.
Counsel for Katanga’s defense team noted that a Dutch law firm specializing in asylum applications has already consulted with the witnesses and will be submitting their requests for asylum to the appropriate Dutch authorities.
Katanga’s counsel also pointed out that the Court is obligated to protect international human rights of witnesses due to the legal personality of the Court as an international legal person. Counsel for Ngudjolo’s defense team also focused on the obligation of the Court with respect to protecting human rights of witnesses.
According to the prosecution, the witnesses were Congolese detainees temporarily transferred to the ICC by the DRC for the duration of their testimony. The witnesses, therefore, remain under the jurisdiction of the DRC, the prosecution averred. The prosecution also suggested that there was no objective evidence of risks or threats to the witnesses’ lives should they be returned to the DRC.
The Registry of the ICC, which is tasked with organizing the transfer of the witnesses from the DRC and their detention while in the Netherlands giving testimony before the Court, also offered its views on the situation. The Registry seemed to take the same position as the prosecution—that the witnesses were temporarily in the custody of the ICC, but were still within the jurisdiction of the DRC. According to the agreement with the DRC, the witnesses should have been returned to the DRC on May 13, 2011. Any delay meant that the Court would be violating this agreement, including if the Court were to turn the witnesses over to the Dutch authorities. The Registry did not consider that The Netherlands, as the host state of the ICC, had any jurisdiction over the witnesses. Although they are on Dutch soil, they remain under the authority of the DRC. The Registry also submitted that if the Court were to grant this request, it may mean that in the future states would be unwilling to accept ICC requests for the temporary transfer of detained witnesses for testimony.
The Court also heard from the legal advisor for the Ministry of Foreign Affairs. She explained that the Dutch government considered that the Court would provide necessary protective measures for the witnesses, and that Dutch government was in no way responsible for this. The Dutch authorities would rely on the Court’s decisions concerning the witness’ safety assessment. Moreover, the witnesses were under no circumstances under the authority of the Dutch government. Any request for asylum received by the appropriate Dutch authorities would be decided on the merits in due course.
Based on these oral and other written submissions, the Court will have to decide how to act upon the witnesses’ request.