The Prosecutor of the International Criminal Court (ICC) has submitted additional observations about evidence that she claims proves Germain Katanga is guilty of war crimes and crimes against humanity, even if the charges against him are changed. The prosecutor originally charged Katanga and his co-accused Mathieu Ngudjolo with three crimes against humanity and seven war crimes allegedly committed during an attack on Bogoro, a village in eastern Democratic Republic of the Congo (DRC). They were accused under Article 25(3)(a) of having committed the crimes through “indirect co-perpetration,” where the Katanga and Ngudjolo allegedly used hierarchical organizations (the Ituri Patriotic Resistance Force (FRPI) and the Nationalist and Integrationist Front (FNI), respectively) to carry out the crimes according to Katanga and Ngudjolo’s common plan to wipe out Bogoro.
Acting under Regulation 55 of the Regulations of the Court, the trial chamber majority, Judge Van den Wyngaert dissenting, notified the parties that it would likely change Katanga’s mode of liability to “common purpose” liability under Article 25(3)(d)(ii). Due to this development in the case against Katanga, the judges severed the two cases and acquitted Ngudjolo on December 18, 2012. The prosecution has appealed his acquittal.
Recently, the majority of Trial Chamber II provided additional information about the potential change. Judge Van den Wyngaert also submitted a dissenting opinion. Both opinions are available here.
In its latest submissions, the prosecution focused on two accusations: 1) the Ngiti combatants from Walendu-Bindi intended to commit the crimes charged; and 2) Katanga was aware of the crimes charged during the Nyankunde attack, which supports the allegation that he intentionally and knowingly contributed to the crimes later committed in Bogoro. Evidence heard at trial about these two issues supports a guilty verdict under the potential new mode of liability, the prosecution argued.
Ngiti Combatants Intended to Commit Crimes Against Hema Civilians
The prosecution recalled that in its closing brief, it did not go into the identity of the physical perpetrators of the crimes. This is because, under the original mode of liability, joint co-perpetration, Katanga and Ngudjolo were allegedly guilty for crimes committed by both Lendu and Ngiti combatants, the prosecution explained. Therefore, it did not matter which group committed which crimes in Bogoro, the prosecution stated. However, with the proposed change, the trial chamber majority has said that it will rely only on evidence that establishes that some of the crimes were allegedly committed by Ngiti combatants from Walendu-Bindi, including where there is evidence the crimes were allegedly committed by both Lendu and Ngiti combatants.
The prosecution agreed that evidence that both Lendu and Ngiti combatants allegedly committed crimes should be used against Katanga. To do otherwise would distort the evidence and limit the chamber’s ability to determine the truth, the prosecution claimed. There is evidence that both groups are responsible for the crimes charged, the prosecution argued. For example, P-323 testified that both Ngiti and Lendu combatants killed at random, with no distinction between Union of Congolese Patriots (UPC) soldiers or civilians, the prosecution submitted. This, it claimed, makes it clear that both Lendu and Ngiti jointly committed murders.
The chamber should also consider circumstantial evidence, such as motive, the prosecution argued. Both Lendu and Ngiti combatants were driven by hatred and an intent to “wipe out” Bogoro, the prosecution claimed. The prosecution argued that, based on evidence of this motive, the chamber can infer that the Ngiti combatants committed the alleged crimes. Other circumstantial evidence the chamber should rely on includes that the Ngiti combatants assembled at Medhu and Kagaba before launching the attack on Bogoro, which suggests they later participated in the attack, the prosecution maintained.
Other evidence on the record demonstrates the combatants’ intent to target and kill Hema civilians, the prosecution argued. The prosecution pointed to evidence from Witness P-132, who testified that she was found by a group of combatants who raped her and then brought her to an Ngiti camp. This demonstrates that the combatants who raped her were also Ngiti, the prosecution claimed.
Witness P-268 also testified that he was detained by combatants in a room full of dead bodies at the Bogoro Institute, the prosecution recalled. P-268 testified that the next day he was forced by a group of both Lendu and Ngiti combatants to lure other civilians out of their hiding places by speaking Hema, the prosecution submitted. This witness testified that the mixed group of combatants then started shooting and took the civilians away, the prosecution noted. Witness P-233, who knew the attackers were Lendu and Ngiti, corroborated this evidence, the prosecution argued. This evidence shows that Ngiti combatants were responsible for the alleged crimes committed in Bogoro, the prosecution submitted. It also shows that the combatants intended to attack Hema civilians, the prosecution argued.
Katanga Knew of Crimes Committed in Nyankunde Attack
The prosecution contended that there is evidence that Katanga participated in the attack on Nyankunde. The attack on Nyankunde was the largest attack that took place during the conflict in Ituri, the prosecution noted. Witnesses testified that it was a well-known attack involving Ngiti combatants and the massacre of civilians, the prosecution submitted. Furthermore, the prosecution argued, Katanga, who had been involved in his community self-defense forces since 2002, had extended family in Nyankunde. Therefore, even if he did not participate in that attack, the prosecution claimed, he still must have known about it and about the crimes committed there.
The prosecution noted that one defense witness—who had participated in the Nyankunde attack—testified that it was done out of revenge for a UPC attack on Songolo. Katanga also testified that after the UPC attacked Songolo, combatants led by Ngiti commanders and the Congolese People’s Army (APC) attacked Nyankunde, the prosecution recalled. He admitted that women, children, and elderly were killed during the attack, although he denies participating in it, the prosecution submitted.
Nyankunde is relevant to the judges’ determination of Katanga’s responsibility for the Bogoro attack, the prosecution argued, because both attacks involved the same Lendu and Ngiti combatants. One defense witness testified that he had participated in both attacks, the prosecution noted. Other witnesses provided evidence that Cobra Matata had led forces in both the attack on Nyankunde and on Bogoro. Furthermore, the prosecution argued, the Ngiti hated, and targeted, Hema civilians in Nyankunde and the UPC forces that had attacked Songolo. This reflects the hatred of Hema that drove the Ngiti and Lendu to attack Bogoro, the prosecution argued.
According to the prosecution, the fact that Katanga knew that these commanders and combatants were involved in the Nyankunde attack, and that he knew about the kinds of crimes committed there, shows that he must have known that contributing to the attack on Bogoro would also involve the commission of crimes. Katanga clearly would have known that the combatants who attacked Bogoro intended to commit crimes there, the prosecution argued.
The prosecution submitted that this evidence is proof that Katanga is guilty of the crimes charged under the potentially new mode of liability.