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DRC President Joseph Kabila is to Blame for the Bogoro Attack, Defense Argues

This week, defense teams for Germain Katanga and Mathieu Ngudjolo Chui presented their closing arguments before Trial Chamber II of the International Criminal Court (ICC). The two are accused of war crimes and crimes against humanity allegedly perpetrated during an attack on the village of Bogoro in eastern Democratic Republic of the Congo (DRC).

They deny all charges against them and this week argued before the ICC judges that the prosecution had failed to prove their guilt beyond a reasonable doubt. Highlights from their arguments are described below.

Crimes Against Humanity

Both defense teams argued that the prosecution had failed to prove that there had been a widespread or systematic attack against a civilian population, which is necessary to prove the crimes against humanity charges of murder, rape and sexual slavery.

The defense teams argued that the attack on Bogoro was not, nor was it part of, an attack on a civilian population. Both teams emphasized that the target of the attack was a military base, not the civilian population. The Ngudjolo defense argued that the civilians who were in Bogoro took active part in the hostilities. There is no evidence in this case to the contrary, he argued. Therefore, any victims should fall under the protection of the 1949 Geneva Conventions, the Ngudjolo defense contended.

The Katanga defense also argued that the attack was not widespread or systematic. The Pre-Trial Chamber had characterized the “attack” as an attack against the Hema population in the district of Ituri. Therefore, the defense contended, the Bogoro attack itself could not be considered a “widespread” attack. Nor was the attack on Bogoro part of any larger attack against Hema in the region, the defense argued. The Katanga defense distinguished the Bogoro attack from other regional attacks relied on by the prosecution to establish the widespread or systematic nature of the crimes. For example, the defense argued that the Nyankunde attack was directed against the Bira population, in response to an attack on Songolo. This, the defense submitted, created reasonable doubt that the alleged crimes in Bogoro were committed as part of a larger regional attack on the Hema.

Reclassifying the Conflict

The prosecution originally alleged, and Pre-Trial Chamber I confirmed, charges relating to an international armed conflict. However, following the recent Lubanga trial judgment in which the same Ituri conflict was considered non-international by that Chamber, the prosecution changed its approach. The prosecution argued during closing arguments that the conflict was non-international—but that the distinction was irrelevant because it would not alter the crimes charged.

The Katanga defense disagreed. In its view, the Chamber could not rely on a special rule at the ICC, Regulation 55, to re-classify the legal characterization of the conflict as a non-international armed conflict. The defense argued that the elements of the crimes charged, such as willful killing, are different depending on the nature of the conflict. Where an application of Regulation 55 would involve a change in the essential nature of the charges, such as distinct elements, it must be accompanied by an amendment to the charges, the defense argued.

The Ngudjolo defense also characterized the conflict as an international armed conflict. It argued that both defense and prosecution witnesses had given evidence showing that the conflict was an international armed conflict involving foreign powers and struggles over territory and economic resources. For example, the Ngudjolo defense argued that the evidence showed that the Ugandan army and the Union of Congolese Patriots (UPC) conducted military operations together, such as the Bunia attack that drove out Lopondo and the Congolese People’s Army (APC). Moreover, Rwanda provided the UPC with weaponry, the Ngudjolo defense argued. Therefore, it would be an error to consider the conflict non-international.

Common Criminal Plan

The prosecution alleged that the two accused shared a common plan to wipe out the village of Bogoro. The Katanga defense argued that the common plan must be criminal, but that in this case the prosecution has conflated a legitimate military plan—to attack the UPC military base—with a criminal plan, to wipe out the village of Bogoro and its Hema civilian residents.

The plan, to remove the UPC military base in Bogoro, was orchestrated and formulated by the DRC government and the Congolese Rally for Democracy (RCD-KML), the Katanga defense argued. Even though the defense conceded that there were civilian casualties in this attack, it argued that there was a general perception among combatants that the civilians had left the village before the attacks. Therefore, the prosecution had not proven that the common plan involved attacking civilians, the Katanga defense posited.

Bogoro Attack Committed by Organized Group with Kabila at the Top

The Ngudjolo defense argued that the prosecution had failed to prove a link between Ngudjolo and the crimes. Rather, the Ngudjolo defense placed the blame for the attack squarely on DRC President Joseph Kabila. Kabila himself planned the Bogoro attack, the Ngudjolo defense contended, because Kabila wanted to regain control over Ituri.

The defense argued that he sat at the top of a hierarchical organization that included the Congolese Armed Forces, the Integrated Operational Head Command (EMOI), and others. Documentary evidence proved that they were part of a common plan to attack Bogoro, the defense argued. Kabila had control over these alleged co-perpetrators, and members of the organization followed his orders, the Ngudjolo defense argued. The defense also blamed Ugandan authorities, members of the APC, and other commanders who were “running the show in Ituri” during the relevant time.

Personal Criminal Liability of Ngudjolo

The Ngudjolo defense also argued that Ngudjolo was not a leader of the Lendu combatants at the relevant time. His previous military training did not prove that he controlled the local combatants, Ngudjolo’s defense team argued. The defense emphasized the leadership of Chief Manu, a key Ngudjolo witness, who traveled to Aveba and signed letters about the conflict on behalf of the Lendu. Ngudjolo never signed any such letters, the defense argued, and was working at the Kambutso Health Center during the relevant time. There is no proof linking him to the crimes, the Ngudjolo defense submitted.

Katanga’s Position as Coordinator

Germain Katanga testified that he was not a commander but was a coordinator, or like a coordinator, in Aveba. His defense team argued that this was not an official position but that the term was simply adopted by Katanga to describe his role as a liaison. At the time of the Bogoro attack, the the Ituri Patriotic Resistance Force (FRPI) was a “boneless” and “overblown” organization, the Katanga defense argued. It was only later, in anticipation of regional peace talks, that Katanga and others from Walendu-Bindi adopted the FRPI structure to give themselves more legitimacy among the other participants in the talks.

Statement By Germain Katanga

Germain Katanga began his submissions to the Court by acknowledging the victims of the conflict in Ituri and the attack on Bogoro.

“My thoughts go out to all those who have lost loved ones, their property, and their wealth. [To] all those whose pride and dignity have suffered. I extend to them my compassion in regard to all the suffering they have suffered because of the foolishness and wickedness of human nature.”

He reiterated his innocence, arguing that he was not responsible for the attack. “Our greatest wish is that those who are truly guilty should be identified and punished while victims are recognized and rehabilitated,” he said. Katanga reminded the judges of his relative young age and modest upbringing. The charges against him hurt him deeply, he said, and he hoped that the “true perpetrators” would be arrested and tried.

Katanga also commended the fairness and impartiality of the proceedings and the judges and concluded by asking “for justice to be done in all fairness mindful of the truth and the facts and the solid nature of the evidence before you.”

Statement by Mathieu Ngudjolo

Mathieu Ngudjolo Chui also made a statement before the judges. He took the opportunity to go through his defense arguments once again: Joseph Kabila was responsible for the attack on Bogoro, and Ngudjolo was merely a nurse in Kambutso at the time of the attack.

Ngudjolo denied that fighters from Zumbe participated in the attack, and even if they had been, others would have been responsible as leaders of the combatants. Indeed, Ngudjolo named several people, from Kabila to Ugandan President Yoweri Museveni to commanders of Ituri armed groups, who he considered bore responsibility for the charges he faced.

He concluded by telling the judges, “I was never a member of any military group or militia within Ituri. I never had any soldiers under my command. My work is the work of a humanitarian, I was not a combatant, I was a nurse and I trained community health workers.”

Judges to Begin Deliberations

Now that the judges have heard final submissions from the parties and participating victims, it will retire to deliberate whether Katanga and Ngudjolo are guilty as charged. Considering that in Lubanga, a trial that involved only one accused and one count, the Trial Chamber deliberated for over six months before delivering a verdict. Therefore, a verdict in the Katanga and Ngudjolo case might not be delivered until early 2013.

 

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