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The Prosecution Responds to Questions from the Judges

This week, judges from the International Criminal Court (ICC) heard closing arguments from the prosecution in the trial against Germain Katanga and Mathieu Ngudjolo Chui. The prosecution’s main arguments are discussed here. The following section briefly summarizes additional questions from the judges.

How Did Katanga Exercise Authority Over the Ngiti Combatants?

Katanga exercised his authority by attacking and burning camps of commanders who did not follow his orders, the prosecution argued. Documentary evidence supported this, including a letter describing the collection of “taxes” saying that no one could be absent from a meeting he called.  Presiding Judge Bruno Cotte asked whether this evidence demonstrated that Katanga was obeyed in an almost automatic manner. The prosecution responded “yes.” This is an element of the indirect co-perpetration mode of liability the prosecution must show to demonstrate Katanga’s guilt under Article 25(3)(a) of the Rome Statute.

The prosecution argued that reporting procedures and a system of punishment showed how he held authority over the other camp commanders. The prosecution referred to testimony by witness P-28, who testified that he went with Katanga to visit the other Ngiti camps to see how they were operating. The prosecution suggests this trip was made because Katanga was the authority and “President” of all Ngiti commanders. This was an inspection trip to make sure the commanders were following his commands and instructions, the prosecution said. Witness P-219 also testified that there was a procedure whereby combatants would come to Aveba to discuss problems in other camps, the prosecution noted. While there was no written reporting system, the prosecution suggested that Katanga would follow an oral reporting procedure about problems at other camps.

How Did Ngudjolo Exercise Authority Over the Lendu Combatants?

The prosecution contended that witnesses testified that Ngudjolo was the top commander of the Lendu fighters, that he was the “number one,” or “chief.” He gave orders, they claimed the testimony proved, and even if the orders were not issued directly to the soldiers, combatants understood that their commanders’ orders “came from above,” from Ngudjolo. The prosecution argued that his authority was also proven by the fact that he had deputies and staff, made sure that new recruits were committed to obedience, used a hierarchical structure of reporting, and because there was a disciplinary system in place.

Organized Armed Group: War Crimes v. Indirect Co-Perpetration?

The prosecution argued that to prove the degree of organization and the existence of an armed group relies on the military capabilities of the group and its ability to plan and carry out military operations.

For indirect co-perpetration, the level of organization is completely different, the prosecution submitted. To attribute liability to a “perpetrator behind the perpetrator” as under indirect co-perpetration is focused on the common plan tying together the actors and the role of the accused in that organization. The relevant elements of an organization for this issue revolves around the internal structure and methodology of the group and commission of the crime, which may not be military in nature and could be completely removed from the context from an armed conflict.

Although the same facts could be used to prove both issues, the prosecution submitted that it was important to keep the two legal issues separate.

Overlapping International and Non-International Armed Conflicts?

The relevant armed conflict was a non-international armed conflict in Ituri involving local armed groups divided largely along ethnic lines, the prosecution submitted. This conflict existed both before and after the Bogoro attack, and in particular, from August 2002 to at least mid-2003.

Whether any other armed conflicts existed simultaneously, even if involving foreign actors, is irrelevant, the prosecution submitted. Although there is evidence of Ugandans fighting in Ituri during the relevant time, their involvement did not internationalize the conflict as the battles involved Uganda against local armed groups, not the government of the DRC.

Organizational Policy to Commit Crimes Against Civilians?

In particular, the judges wanted to know which attacks, beyond Bogoro, involved both the FNI (National Integration Front) and FRPI (Patriotic Resistance Forces in Ituri). The prosecution responded that the relevant attacks that demonstrate the organizational policy include the attack on Nyankunde by Ngiti combatants from Walendu-Bindi, Lendu forces under the control of Ngudjolo and the APC, the attack on Mandro and the May 2003 Bunia attack, amongst others.

The prosecution repeatedly argued that even though the armed groups were not called the FRPI and FNI throughout the conflict, these groups of Ngiti and Lendu fighters were the same organized groups, comprised of same combatants from same locations, even if they later used a different name. The prosecution considered that the relevant question is not whether the organization is identical over time in all of its aspects, but whether in its “essence” it remained the same. Otherwise, the prosecution argued, an organization could defeat liability simply by changing its name every day.

Turning to the policy element of crimes against humanity, the prosecution argued that the groups had a clear policy to direct an attack against the civilian population. According to the prosecution, insiders of both armed groups testified about a policy of revenge and targeting all Hema as the enemy, with no distinction between civilians and combatants. The prosecution referred to testimony that they were to “show no pity,” and how during military training they were instructed that “all Hema were the enemy.” Before the Bogoro attacks, songs targeting the enemy, including women, were sung in front of the commanders, including Katanga and Ngudjolo. Moreover, the modus operandi used in all of the attacks demonstrates the clear organizational policy.

The judges also asked the prosecution to clarify whether in all of the attacks the primary target were the civilians. The prosecution argued that the civilians did not have to be the “primary” targets. The motive or primary purpose could be to take territorial control or frighten the enemy, they contended, but this does not detract from the essential element that civilians were targeted.

Who Among the Lendu Were Consumed by Ethnic Hatred and Helped Spread It?

Witness testimony demonstrated that hatred for the Hema was widespread among the Lendu and Ngiti combatants, the prosecution argued. The prosecution submitted that Katanga and Ngudjolo shared this hatred because they were the supreme leaders of the Ngiti and Lendu groups.

The judges intervened to clarify whether Katanga and Ngudjolo were factors in sustaining the ethnic hatred or whether they contributed to spread that hatred. Presiding Judge Cotte also wanted to know whether the accused were in a position to stop the expression of this hatred. The prosecution answered yes—in light of their authority and the structure of the two groups and their chains of command, the two accused did have an opportunity to block what happened. The judges pressed the prosecution for specific evidence of the hatred allegedly motivating the attacks and suggested there were differences of opinion on this matter and it was an important one.

APC Presence During the Bogoro Attack?

The defense have blamed the Bogoro attack on the APC (Congolese People’s Army). The prosecution acknowledged that although the testimony suggests it was possible APC soldiers were present in Bogoro, this does not detract from the authority Katanga and Ngudjolo over their troops. However, the number would be fewer than 25, they argued.

Judge Cotte noted that it was important to understand who did what on the day of the attack. The prosecution responded that if there was a third co-perpetrator, it was not someone appearing before the court and did not detract from the crimes being charged. The APC might have helped, the prosecution said, but even if the Chamber concluded that this third party was part of the common plan, this does not diminish the responsibility of the accused who were in charge of the Ngiti and Lendu who attacked Bogoro.

Did Katanga and Ngudjolo Order the Attack on Bogoro?

The judges asked specifically to whom, and when, the two accused ordered the attack. The prosecution responded that witness P-279 testified that Ngudjolo had said “let us go to war” and another witness testified that Katanga ordered the attack. However, the issue of direct orders is not important, the prosecution claimed, because orders can be implicit. The prosecution maintained that in light of the entire body of evidence, which shows the authority and chain of command, it is clear these two were the leaders of their respective groups.

The prosecution argued that the combatants who went to attack Bogoro—which had previously been attacked by the Ngiti and Lendu—required a large force to dislodge the UPC group. Those two forces could not have attacked Bogoro without the consent of the two accused, the prosecution maintained.