ICC Judges to Consider Katanga’s Early Release

Next week, a panel of three appeals chamber judges at the International Criminal Court (ICC) will hear arguments about the early release of Germain Katanga. In March 2014, Trial Chamber II of the ICC convicted Katanga for crimes against humanity and war crimes committed in Bogoro, Democratic Republic of the Congo (DRC) in 2003. He was sentenced to ­12 years’ imprisonment. Katanga decided not to appeal his judgment, accepting the ICC’s verdict and sentence.

As of September 18, 2015, Katanga had served two-thirds of his sentence. He was arrested and detained in the DRC in February 2005 before being transferred to the ICC in 2007. He has been in the ICC detention center for eight years, most of that time awaiting the conclusion of his trial. The time in the ICC detention center counts as time already served on his sentence.

Notably, the ICC prosecutor does not object to Katanga’s early release. The prosecution noted that in accepting his verdict and sentence, Katanga publicly expressed his sincere regret to those who suffered because of his actions, including victims in Bogoro. He has also demonstrated exemplary conduct in the detention unit, the prosecution said. The prosecution submitted that these factors demonstrate “a genuine dissociation from his crimes.”

Victims and others from the affected communities in and around Bogoro seem to have mixed feelings about his return and its potential impact on the region. Katanga’s defense team has argued that his release would not destabilize the region. According to the defense, his release could assist in reconciliation, and would be welcomed in the region.

However, the ICC Registrar has submitted that some victims from Bogoro had a negative reaction to Katanga’s statements to them and may not welcome his return. The legal representative for victims argued that victims from Bogoro do not consider a 12-year sentence sufficient given the gravity of the crimes. A reduction in that sentence may increase the trauma of the victims, the legal representative for victims argued.

Under Article 110(3) of the Rome Statute, when a convicted person has served two-thirds of his sentence, the court must review the sentence to decide whether it should be reduced. This is the second time ICC judges will consider a sentence reduction. Earlier this year, ICC judges considered, and denied, a sentence reduction for Thomas Lubanga.

According to the Rome Statute and the court’s Rules of Procedure and Evidence, seven criteria must be taken into account to decide whether to reduce a person’s sentence. Under Article 110(4) of the Rome Statute, judges must consider:

  • The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
  • The voluntary assistance of the person in enabling the enforcement of the judgments and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or
  • Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.

The other factors listed under Rule 223 of the Rules of Procedure and Evidence, include:

  • The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime;
  • The prospect of the resocialization and successful resettlement of the sentenced person;
  • Whether the early release of the sentenced person would give rise to significant social instability;
  • Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release;
  • Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age.

According to the prosecution and the defense, Katanga’s conduct has shown a genuine dissociation from his crimes. In particular, the fact that he discontinued his appeal and publically declared his acceptance of the judgment and his role in the crimes is a strong indication of this factor, the prosecution and defense argued. In addition, according to the Registry, Katanga has contributed to the “smooth running of the detention wing and […] the well-being of the rest of the detention community” through his work cooking. However, the legal representative for victims suggested that this behavior could be simply a “survival strategy” for his time in prison.

Defense submissions also argued that Katanga could be re-socialized and reintegrated upon his release to the DRC. According to the defense, Katanga hopes to continue his army career and to play a role in peace and reconciliation in the DRC. If he cannot return to the Congolese army, he intends to farm in Ituri—in Aru, far from the Ngiti territory and Bogoro, the defense said. The defense noted that Katanga’s family and community would help him reintegrate and find a job.

The defense has also argued that it has interviewed a wide cross-section of people in Ituri, including community leaders among Lendu, Ngiti, and Hema communities. None of those interviewed oppose Katanga’s release, the defense submitted, and some even welcome it. Notably, the defense submitted that some members of the Hema community are positive about Katanga’s return to the region.

However, according to the victims’ legal representative, the defense did not include the views of the Hema community from Bogoro, which would be a more legitimate source of information on this point. Moreover, the legal representative cautions, the reconciliation between the Hema and Lendu communities is not deep, and much remains to be done to strengthen it.

Indeed, according to the registrar, affected communities and victims have a negative view of Katanga’s possible early release. The registrar submitted that victims had a very strong negative reaction to Katanga’s statement of remorse.

The defense has stated that Katanga intends to apologize in person to victims or to make a communal apology together with Ngiti community leaders. The defense recognized that many victims remain angry about the crimes Katanga committed, and are especially frustrated that the reparations procedure has not yet concluded. In their culture, the defense said, reparations need to come before forgiveness or pardon.

Katanga could be given the opportunity to make an apology during the sentence review hearing, the prosecution noted. However, if released, Katanga would be out of the court’s reach and could retract these promises, the prosecution noted.

The prosecution, defense, and registry have all stated that it is unlikely for Katanga’s former armed group, the Force de Résistance Patriotique en Ituri (FRPI) to reorganize around him or pose a threat if Katanga is released. The registrar also noted that the release of Mathieu Ngudjolo, Katanga’s one-time co-accused, did not trigger any social instability.

The Congolese government has also submitted confidential observations to the ICC about Katanga’s potential release, likely on the social stability in the region.

Judges from the ICC Appeals Chamber recently decided not to reduce Thomas Lubanga’s 14-year sentence. In their ruling, appeals judges determined that there was no indication that Lubanga’s conduct while in detention showed a genuine dissociation from his crimes. They also ruled that there was no indication of any significant action taken by Lubanga for the benefit of victims.

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