This week, the second trial before the International Criminal Court (ICC) sat to hear closing arguments. Germain Katanga and Mathieu Ngudjolo Chui are accused of committing war crimes and crimes against humanity allegedly perpetrated during an attack on Bogoro, a village in eastern DRC, in February 2003. The accused, who deny all charges against them, spent two years listening to the prosecution bring evidence against them and rigorously arguing their respective defenses. A summary of the case can be found here.
This post covers the closing arguments made by the prosecution. Subsequent posts will discuss the judges’ questions for the prosecution, closing arguments made by the legal representatives for the two groups of victims, and each defense team.
The Bogoro Attack Was Not Isolated
ICC Prosecutor-elect Fatou Bensouda opened the prosecution’s closing arguments, which is the prosecution’s last opportunity to demonstrate to the Judges that it has proven beyond a reasonable doubt that the accused are guilty as charged. Bensouda submitted that the prosecution had met that burden.
She explained that the attack on Bogoro took place at the end of the Second Congo War, when political and territorial conflicts overlapped with ethnic tensions between Hema and Ngiti/Lendu armed groups from Ituri.
“The attack on Bogoro was not an isolated event,” she said. Rather, she argued, it was part of a larger armed conflict and of a widespread and systematic attack on Hema civilians.
Bensouda focused on evidence presented by victims of the attacks, including women who had suffered sexual violence. In particular, she noted the lasting harm suffered by these victims of sexual violence, including stigmatization and rejection by their families and communities. This is the first time sexual violence crimes have been charged at the ICC, and the Trial Chamber’s determination on this count will be an important milestone for the court.
Ngudjolo’s Authority Over the Lendu Fighters
In order to show that Katanga and Ngudjoloare guilty of the crimes charged, the prosecution had to prove that they had authority over the FRPI (Patriotic Resistance Forces in Ituri) and FNI (National Integration Front), respectively.
In addressing Ngudjolo’s authority over FNI, the prosecution confronted defense arguments that it had failed to prove that the name of the group he allegedly commanded was the FNI. The prosecution argued that proving the name of the militia was irrelevant—that proving the name of the group as the FNI is not an essential element to the guilt of the accused. More important than this label, the prosecution contended, is the composition of the group, allegations over that did not change during the trial. It was the same group of people—Lendu combatants from Bedu-Ezekere—that were in Bogoro during the attack, the prosecution submitted. To support these allegations, the prosecution relied on evidence about Ngudjolo’s military background and training as well as testimony from multiple prosecution and defense witnesses that he was the leader of combatants from Bedu-Ezekere.
The prosecution argued that Ngudjolo commanded this group and was in Bogoro on the day of the attack. This was confirmed by video evidence, the prosecution submitted.
Ngudjolo’s testimony on his location the day of the attack was not true, the prosecution alleged. In particular, the prosecution directly refuted Ngudjolo’s claim that he was helping a woman give birth on the day of the Bogoro attack. He said that Ngudjolo’s testimony was directly refuted by contradictions in the testimony of his own witnesses, such as another worker from the health center and the husband of the woman who supposedly gave birth that day.
The prosecution also addressed evidence related to Katanga’s authority over Ngiti fighters from Walendu-Bindi, or the FRPI. The prosecution refuted Katanga’s defense that he was the coordinator of Aveba at the time of the attack and only became commander afterwards, on March 3, 2003. The prosecution argued that the evidence proved that Katanga had authority and control over the militarized Ngiti combatants in the Walendu-Bendi area, called the FRPI, at the time of the attack.
The prosecution submitted that its witnesses, including P-28, P-219 and P-12, all testified to this effect. For example, according to the prosecution, P-28 testified that when he arrived in Aveba in November 2002, Katanga was known as the “Colonel” and was the “President” or chief of the camp. This is corroborated by documentary evidence, the prosecution claimed.
As the leader of the FRPI, the prosecution alleged, Katanga planned and organized the attack on Bogoro. The prosecution also claimed that evidence demonstrated that Katanga was in Bogoro on the day of the attack, contrary to what Katanga has argued on defense. The prosecution characterized his evidence as incoherent, inconsistent, and contradictory to what the prosecution had demonstrated through its evidence.
The Attack Was Ethnically Motivated
Senior Trial Attorney Eric MacDonald discussed the background to the conflict, which he said pitted the Lendu and Ngiti against the Hema. MacDonald directly refuted defense arguments, particularly from the Ngudjolo defense, that the conflict was not ethnic.
Although the conflict started over land disputes, MacDonald explained that it later degenerated into an armed conflict between ethnic groups. Civilians from both ethnicities were victimized, he claimed. MacDonald focused on testimony about the various attacks by the Hema UPC on Lendu and Ngiti communities. Because of these attacks, the Lendu and Ngiti communities grew to hate the Hema, the prosecution argued. In particular, MacDonald submitted, Katanga and Ngudjolo were driven by this hatred. The prosecution claimed that according to witness testimony, in the battles that ensued, civilians were targeted based purely on their ethnicity.
A Common Plan to Attack Bogoro
Another central allegation of the trial is that Katanga and Ngudjolo had a common plan to attack Bogoro. However, the defendants both argued that they had not met each other prior to the attack and that they did not share such a common plan.
However, according to the prosecution, testimony of various prosecution witnesses and one defense witness proved that the cornerstone of the common plan was laid when Bedu-Ezekere’s Chief Manu visited Aveba and stayed in the home of Germain Katanga. During this trip, the prosecution said, Chief Manu met with civilian and military authorities, who together drafted a letter that confirmed the two communities had ties.
Moreover, the prosecution contended that witness testimony proved that Chief Manu’s meeting led to arms and munitions being provided to Ngiti and later Lendu combatants through airlifts of supplies and war materiel. The prosecution noted that Chief Manu, a witness for Ngudjolo, testified that he received munitions from Katanga.
Evidence of this common plan to attack Bogoro was also provided through testimony by P-250 and P-28, the prosecution contended. The prosecution relied heavily on a document that it claims corroborates testimony about the presence of a delegation from Zumbe in Aveba in January 2003. This evidence, the prosecution suggested, proves beyond a reasonable doubt that Katanga and Ngudjolo shared a common plan to destroy the village of Bogoro and its Hema population.
Turning to the events of the day of the attack, the prosecution argued that the fact that combatants from both Walendu-Bindi and Bedu-Ezekere surrounded Bogoro at the time of an attack demonstrates the existence of premeditation and a common plan. There was a military strategy, the prosecution argued, and it was impossible for the UPC combatants and Bogoro civilians to get away.
The prosecution also addressed defense suggestions that the civilian deaths were collateral damage from being caught in the crossfire. This theory does not explain the many deaths by machetes, the prosecution alleged.
Moreover, according to the prosecution, civilian deaths cannot be explained by the defense argument that these crimes were the result of soldiers who got “carried away.” Rather, the prosecution argued, the soldiers engaged in a brutal massacre that intentionally targeted civilians.
Katanga and Ngudjolo saw the horror unfold, but sat under the mango trees and failed to intervene, the prosecution argued. The prosecution maintained that the deaths were not accidents but were intentional and widespread attacks against the Hema, perpetrated because Ngudjolo and Katanga were driven by a thirst for vengeance.
Sexual Violence Crimes
The prosecution also made detailed submissions on sexual violence crimes. In particular, the prosecution responded to Katanga defense arguments about one victim—a woman they claimed was not raped because testimony about a marriage ceremony with an Ngiti at the military camp where she was held was evidence of her consent.
The prosecution claimed these arguments were irrelevant and that the key issue with proving rape is whether she is being held coercively. No suggestion of consent matters if she is held in a coercive environment, the prosecution submitted. According to the prosecution, this coercive environment was demonstrated by the woman’s abduction at gunpoint from Bogoro and the fact that she was kept under surveillance and unable to escape.
Non-International or International Armed Conflict
A major issue before the Trial Chamber is whether the armed conflict that existed in Ituri was an international armed conflict or a non-international armed conflict. In the recent Lubanga verdict, Trial Chamber I took advantage of a special rule at the ICC (Regulation 55) that allowed them to change the legal characterization of the conflict. The Lubanga Trial Chamber held that the conflict was of a non-international character, even though the Pre-Trial Chamber had held in the Confirmation of Charges—contrary to prosecution arguments—that it was an international armed conflict.
In the Katanga and Ngudjolo trial, however, the prosecution alleged and Pre-Trial Chamber I confirmed charges relating to an international armed conflict. However, since the Lubanga decision, this position appears to have changed its position, and is suddenly arguing that there was a non-international armed conflict in Ituri.
In its closing arguments, the prosecution noted that there is no dispute there was an armed conflict and contended that it was a non-international armed conflict. However, they claim it makes no difference to the crimes charged. Moreover, making the change pursuant to Regulation 55 was within the Chamber’s power and would not prejudice the defense.
Hearings to Continue
Over the coming days, the Court will hear from the victims legal representatives and each defense team before retiring to deliberate. Both Katanga and Ngudjolo will also make statements to the court.
Sentencing will not be discussed at this point, but if there is a guilty verdict, will be discussed later together with reparations.