Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists. The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.
On Friday March 7, 2014, Trial Chamber II at the International Criminal Court (ICC) convicted, by a majority, Germain Katanga as an accessory to four war crimes (murder, attacking a civilian population, destruction of property, and pillaging) and one crime against humanity (murder). While some welcomed the verdict, reactions to the decision focused as much on what had not been done, as what had. In particular, questions were raised about the failure of the prosecution to prove charges of recruitment and use of child soldiers, rape, and sexual slavery. Questions were also raised about the fact that Katanga was found guilty when his former co-accused, Mathieu Ngudjolo Chui, was acquitted, especially in the context of the judges’ last minute re-characterization of the mode of liability. Furthermore, Iturians are concerned about what the decision will mean in terms of the further search for accountability in the Democratic Republic of the Congo (DRC) and with regard to reparations.
Welcoming the Verdict
Some applauded the verdict. For example, Eloi Urwodhi Uciba, national coordinator of the DRC League for Peace, Human Rights and Justice said, “We welcome this second guilty verdict issued by the ICC as it brings hope of reparations to victims. The decision comes at the right time for the people of Ituri, as well as for all the affected communities in Irumu, Bunia, and the surrounding area, which unfortunately are still plagued by violence.” The Réseau National des ONGs des Droits de l’Homme de la République Démocratique du Congo (RENADHOC) “welcomed with satisfaction the conviction of 7 March.”
Likewise Justice Plus, a local NGO in Bunia, was quoted by Radio Okapi as welcoming the verdict and saying that they “wished that the sentence would be as heavy as possible.” On behalf of a network of human rights activists, Maitre Uzele declared on a local station, Merveille, that “what is important is that justice was done for the victims.” He went on to say that this was an important step against impunity, even though many other perpetrators remain at large.
A Flawed Verdict
Despite the fact that many welcomed the verdict, a shadow hangs over it. First, there was disappointment that Katanga was not convicted of the charges relating to rape, sexual slavery, and recruitment of child soldiers. Speaking to Radio Okapi, Guy Mushata, representative of the International Commission for Transitional Justice, regretted that despite the fact that it is well understood that sexual violence played a central role in the conflict in the DRC, the ICC has not managed to secure any convictions for these crimes. For their part, the Association of Women Lawyers in Congo said it was too bad that the court could not establish these charges against Katanga, even though many of the victims who took part in the trial had suffered from sexual violence: “We have the impression that the investigators have really shown through their incompetence.”Another women’s organization, Association Feminine AMANI, talked of how “everyone hoped that the victims of Bogoro would be compensated, but the court has ruled Katanga innocent for this…even though we helped at least four minors to participate who had been held as sexual slaves in Zumbe…Really we are very disappointed, and we don’t know what to do.”
Second, questions were raised about the fact that Katanga was only convicted after his case was split from that of Ngudjolo, who was tried alongside Katanga throughout the presentation of evidence, and why the re-characterization of the mode of liability only applied to Katanga. Legal scholars and, indeed, the dissenting judge on the case, even raised questions about whether this constituted a breach of fair trial rights. Very few people discuss the legal details on the ground, but there was at least some awareness of the dissenting judge’s critique. As it was put by Maitre Nziwa, of Justice Pour la Paix au Congo, “It is through this judge that we learned that Katanga deserved to be acquitted in the same way as Ngudjolo.”
Others focused only on the differential treatment of Katanga and Ngudjolo. Jean-Bosco Lalo, coordinator of Ituri’s civil society, told Radio Okapi he considered the verdict “fantastical,” saying that as the two were prosecuted together, Katanga also should have been acquitted with Ngudjolo. Mr. Baldo, a member of the Front des nationalistes et intégrationnistes (FNI) (Ngudjolo’s party) went further saying that the outcome could not really be known until the appeal, saying, “I know that if the court is really independent, he will be acquitted on appeal because there is no serious proof against him.” Mr. Juvenal Munubo, member of the national parliament, said that he could understand the frustration of Lalo and others on this point, but reminded listeners on Radio Okapi that suspects are given the benefit of the doubt.
In particular, the change in Katanga’s mode of liability raised questions about the need for accountability for the attack on Bogoro more broadly. If Katanga was not directly responsible, it was asked, then who was? In the words of Mr. Lalo, “We know that those facing trial at the ICC were instrumentalized by others.” Why, he questioned, were those other leaders not pursued by the ICC? A newspaper in Bunia, Haki Yetu, said, “The court’s judgment shows us that the court did not target those truly responsible for the massacre in Bogoro. Germain Katanga was only an accomplice.” For instance, the local NGO, l’Action Citoyenne contre Impunité, asked who provided the arms used by Katanga as “everyone knows” that he did not have the means to purchase them himself.
The Need to Continue the Fight against Impunity
Building on questions about further prosecutions raising out of the Katanga trial specifically, advocates recalled that much more needs to be done to address impunity in DRC. As noted by activist Maitre Uzele, “The majority of these criminals are still running unpunished in our streets, we urge our government to apprehend all those who are suspected of playing a part, directly or indirectly, in the Bogoro massacre.” RENADHOC recommended that, following the verdict, the ICC should “pursue in depth investigations across the entirety of the national territory.”
The frustration that those facing trial at the ICC were not the most responsible was further reinforced by the fact that three defense witnesses in the case offered testimony about the involvement of troops of the now government of DRC. Some have questioned why the ICC does not seem to be investigating these allegations fully. In the words of one activist who did not want to be named, “Why were these people not called to the bar…when everyone knows that Katanga was just carrying out orders?”
The verdict also sparked a reiteration of some old critiques of the court, one of the most commonly cited of which is the failure of the court to address the role of foreign powers in Ituri during the conflict. The same activist who preferred not to be named cited above pointed out that the International Court of Justice had already found that Uganda was, during at least part of the conflict, an occupying power in the DRC. With this fact already recognized, the activist asked, “Why has more not been done to pursue Uganda’s role?…Why has the court not sought out dissenters in the ranks of the Ugandan and Rwandan militaries to help to shed light on what happened in Ituri?” These questions are the source of real and enduring frustration on the part of a number of Iturians, who see regional actors in the region as those most responsible for the crimes committed.
Some see all these shortcomings in the ICC process as a good reason to look elsewhere in the continuing fight for accountability. In the words of Maitre Nziwa, a civil society activist, “This calls into question the effectiveness of an international justice that unfolds 6,000 km away from the site of the crimes…If these proceedings occurred in Ituri, in the site of the victims, the decisions would certainly not have been the same. That is the reason for which we are calling for the putting in place of a Specialized Chamber in the DRC.”
A critical part of the follow up to the verdict will be the reparations process, which is vital for victims. “We will do everything in our power to ensure that the victims receive the reparations to which they have the right,” said Jean Claude Katende, President of ASADHO.
There is frustration, however, that so far no reparations have been granted. As noted by one activist, the victims “have not yet benefited from reparations since the judgments in the Lubanga, Ngudjolo, or Katanga cases and neither in the Hague nor the DRC is there any policy with regard to reparations in place.” For their part, Justice Plus called for the rapid and effective provision of reparations and complained of the heavy bureaucracy that seemed to surround he process. They noted that victims have been asked to be patient waiting for reparations for a very long time, and now, with a verdict, there will be no further excuse to give to victims.
Looking at the reactions to the Katanga verdict from those on the ground living in the communities where the violence took place, one sees a clear appreciation of accountability efforts. However, this appreciation is mingled with a great deal of frustration. Too little justice has been done. Too many of those most responsible for serious crimes remain at large. Some of the crimes that are viewed as most critical to the communities affected have not been addressed. This frustration should be a signal to the court and the community of international justice advocates more broadly that more needs to be done so affected communities feel that justice has really been done.
 See International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) : Press Release, December 19, 2005.