Last week, the prosecution made its closing arguments in the trial against Germain Katanga and Mathieu Ngudjolo Chui. The prosecution argued that it had proven, beyond a reasonable doubt, that the two accused were guilty for committing war crimes and crimes against humanity. The crimes were allegedly committed during an attack on the village of Bogoro in Ituri, Democratic Republic of the Congo.
Legal representatives for victims (LRVs) of this attack also made closing arguments. The victims who are participating in this trial are split into two groups: child soldiers, who were part of the Nationalist and Integrationist Front (FNI) and the Ituri Patriotic Resistance Force (FRPI), the armed militias that allegedly carried out the attack, and victims of the attack itself.
This is only the second trial at the International Criminal Court (ICC), which as created a new system of victim participation in trials. Therefore, many aspects of victim participation are new and still subject to debate in the courtroom, as seen in their closing arguments.
Highlights of the LRVs submissions are discussed below.
Victim Representative for Child Soldiers
The first to present closing arguments was the legal representatives for the child soldier victims. The LRV argued that victims’ participation in the proceedings should be significant, as they are in a position to contribute to the ascertainment of the truth. Although victims may take positions similar to the prosecution, this does not make them an alternative prosecutor, the LRV noted. This unique position was evident in the positions taken by the LRV, which in part concurred with the prosecution but disagreed with respect to the nature of the armed conflict.
It Was an International Armed Conflict
The victims’ representative concurred with the prosecution that the armed conflict was not accidental but was the result of years of growing problems in the region. However, the LRV characterized the conflict as international, arguing that Uganda had occupied territory in the eastern DRC in connection with a rebellion staged by the Congolese Rally for Democracy (RCD-KML). The conflict targeted the DRC government, and the Ugandan People’s Defense Force (UPDF) played a role in creating local armed groups and delegated functions—such as the occupation of Bogoro—to its auxiliary group, Thomas Lubanga’s Union of Congolese Patriot (UPC).
The attack on Bogoro was part of the DRC government’s attempt to regain control of its territory by using local stakeholders. These local groups, such as the FRPI and FNI, had been transformed from local self-defense groups into “true armed groups” through the help of DRC army officers the LRV argued. They had received logistical assistance, training, weapons, munitions and more, the LRV contended. The international aspect of the conflict was “integral,” the LRV for child soldiers argued.
This was the framework within which child soldiers were used by the FRPI and FNI, the LRV argued. This was a distinct case from what Trial Chamber I dealt with in the Lubanga trial. The LRV argued that the conflict was international but also involved ethnic issues. Drawing on interviews with his clients, child soldiers from these groups, he argued that during the attack they were thinking about beating the Hema and the Ugandans. He noted that while many people were perceived as enemies—such as Ugandans, the UPC, and Hema civilians—the conflict should be characterized as international.
They Were Child Soldiers, Not Pygmies
The LRV also addressed Katanga defense arguments that there were no child soldiers in the FRPI but that people may have confused pygmy adults, who are short in stature, with children. This was untrue, the LRV claimed. He argued that various witnesses had testified about children as young as ten years old taking part in the hostilities.
The LRV also addressed witnesses’ hesitancy in giving precise ages and their difficulty in determining their age. The witnesses did not guess at ages, he said, but relied on other indicators to determine that they were obviously under 15, such as voices that had not broken, physical characteristics, and mental and physiological characteristics.
Legal Representative for Victims of the Attack
The LRV for victims of the Bogoro attack made lengthy arguments defending the importance of the role of victims in the trial. The LRV also addressed arguments that the probative value of victim witnesses should be low since they only testified so as to obtain compensation through reparations. The LRV submitted that this argument was insulting, and argued that the victims sought recognition for the crimes they had suffered.
Considered an Ethnic Conflict
The LRV also submitted that his clients considered the conflicted an ethnic conflict between the Hema and Lendu/Ngiti, countering defense arguments to the contrary. To support this position, the LRV referenced defense witnesses who characterized the conflict as ethnic and pointed to Ngudjolo’s testimony that acknowledged inter-ethnic strife, although he claimed it was not related to Bogoro. Other witness testimony supported the contention that the conflict was ethnic, the LRV argued.
Widespread or Systematic Attack against Civilians
The LRV also dealt with defense submissions that 200 victims are not enough to demonstrate a “widespread” or “systematic” attack for the purposes of crimes against humanity. The LRV noted that according to ICTY Appeals Chamber jurisprudence, it is not required that an entire population be targeted by an attack. On the contrary, the LRV argued, a “sufficient” portion must be targeted or it must be shown that the civilians were targeted in a way that demonstrates it was intended to be an attack on a civilian population.
The LRV argued that the evidence shows that it was a civilian population that was targeted, and that the perpetrators considered any Hema as the “enemy,” whether they be a man, woman, or baby. The LRV further argued that the same perpetrators can target military and civilian populations.
The LRV also argued, contrary to defense submissions, there were civilians in Bogoro and not everyone had fled because of the violence. The LRV argued that the civilians were used to live in conflict situations and thought the UPC would protect them if there was an attack.
The evidence from witnesses who were among the attackers demonstrated that there was a method and that the attack was organized, the LRV submitted. This disproves the Katanga defense argument that civilian deaths were the result of random soldiers who got out of control.
The LRV also mentioned that the destruction, burning, and looting of homes was part of a war technique. First homes were torched so the civilians would have to come out and then they would be shot, the LRV claimed the testimony proved. One witness testified that the main reason for joining the militia for many combatants was to loot, and also explained that looting was a technique of the attackers, the LRV noted. The LRV said there was no evidence that it was only the property of the UPC that was taken, but argued that on the contrary, the evidence showed it was the civilians’ property that was stolen.
Defense Teams to Present Closing Arguments
Now that the LRVs have made their submissions the defense teams for each accused will also have the opportunity to present closing arguments and answer questions from the Judges. Mathieu Ngudjolo, and perhaps Germain Katanga, will also make a statement to the court before the trial concludes and the judges retire to deliberate.