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National Prosecution of Katanga Can Proceed, Says ICC Presidency

On April 7, 2016, the Presidency of the International Criminal Court (ICC) issued a decision approving the Democratic Republic of Congo’s (DRC’s) request to prosecute Germain Katanga before the High Military Court in Kinshasa for war crimes and crimes against humanity. The Presidency concluded that the proposed domestic prosecution did not “undermine fundamental principles or procedures of the Rome Statute or otherwise affect the integrity of the Court.”

This decision is important because it is the first time the ICC has interpreted Article 108 of the Rome Statute. Article 108 requires a country that has custody of a sentenced person to seek approval from the court if it intends to prosecute that person for “any conduct engaged in prior to that person’s delivery to the State of enforcement.”

Trial Chamber II of the ICC, in a majority decision issued on March 7, 2014, convicted Katanga to the crime against humanity of murder and the war crimes of murder, attacking a civilian population, destruction of property, and pillaging. The crimes occurred during a February 2003 attack on the eastern DRC village of Bogoro, which targeted a rival militia as well as the predominantly Hema civilian population living in the village. At the time, Katanga was the leader of an armed militia that became known as the Force de Résistance Patriotique en Ituri (FRPI, Patriotic Resistance Forces in Ituri), which was comprised of troops primarily from the Ngiti ethnic group. Although Katanga had also been tried for the crimes of rape, sexual slavery, and the use of child soldiers in connection to the attack on Bogoro, he was acquitted of those charges.

In May 2014, Katanga was sentenced to 12 years in prison, but ICC judges reduced this sentence by three years and eight months due to his continuous cooperation with the court and his genuine dissociation from his crimes. With credit for his time served since his arrest in 2007, Katanga was scheduled to be released on January 18, 2016. Before his release date, the ICC and DRC signed an agreement permitting the remainder of Katanga’s sentence to be served in the DRC. He was handed over to the Congolese authorities on December 19, 2015, alongside fellow ICC convict Thomas Lubanga, who is serving a 14-year sentence for enlisting, conscripting, and using child soldiers.

After Katanga’s return to DRC, his lawyers received information that the Congolese military justice system was going to pursue national war crimes charges against him. A military prosecutor brought new charges against him on December 30, 2015. The crimes charged are for alleged conduct before his arrest by the ICC and unrelated to the Bogoro attack, which was the object of prosecutions at the ICC. As a result, the authorities did not release Katanga as scheduled on January 18 of this year.

On February 3, a trial began before the High Military Court in Congo’s capital, Kinshasa. Katanga’s lawyers argued that the military tribunal had no jurisdiction without proper approval from the ICC Presidency, as required under Article 108 of the Rome Statute and as per the agreement between the ICC and the DRC for enforcement of Katanga’s sentence.

Despite the pursuit of national war crimes charges against Katanga soon after his return to the country, the Attorney General only requested approval from the ICC on February 29.  Although the Presidency noted it was “concerned” about the progression of the domestic criminal proceedings in an order from January 27, 2016, this did not seem to have an impact on its final decision. Indeed, in its April 7 decision, the Presidency noted that the court’s approval of the prosecution of a sentenced person should only be denied when it “may undermine certain fundamental principles or procedures of the Rome Statute or otherwise affect the integrity of the Court.”

In its analysis of Article 108, the Presidency first considered whether there would be a violation of the principle of ne bis in idem, also known as double jeopardy. Article 20 of the Rome Statute sets out this principle, which states no person shall be tried by another court for a crime under the ICC’s jurisdiction if “that person has already been convicted or acquitted by the Court.” The Presidency said Congo’s indication that it is not prosecuting the same crimes Katanga was convicted and acquitted of is enough to satisfy that the principle of ne bis in idem will not be violated.

The Presidency next considered if the domestic prosecution would undermine other fundamental principles or procedures that could impact the integrity of the court. First, it noted that because Katanga himself asked to serve the remainder of his ICC sentence in the Congo there was no attempt by the country to “inappropriately” obtain custody over him.

Katanga also raised a number of other concerns in relation to his trial at the military tribunal, including that the DRC permits the use of the death penalty for war crimes and crimes against humanity; he does not have access to legal aid; and there is no provision to appeal judgments from the High Military Court. In response, the Presidency stated that the ICC was not created to ensure domestic legal systems comply with international human rights standards. Then it went on to recognize that the DRC is party to international treaties “recognising minimum guarantees in relation to the right to a fair trial,” such as the International Covenant for Civil and Political Rights and the African Charter of Human and Peoples’ Rights, which assures the right to legal aid and the right to appeal a conviction and sentence.

There have been major concerns about these developments. Broadly, as noted by Patryk Labuda in his analysis, future sentenced persons and those acquitted by the ICC may oppose returning to their country of origin if they fear a second prosecution. This could cause problems when the ICC is trying to designate states to enforce sentences. This could also impact the defense at the ICC negatively as arguments used by the accused themselves or their lawyers could be badly received by the local government and give way to persecution or reprisals, for example, when the defense points to the responsibility of members of the local government in the atrocities.

More specifically, there are questions about whether Katanga can receive a fair trial in Congolese courts. In an earlier factsheet, Avocats Sans Frontières (ASF), which is monitoring the domestic trial, stated that Congo will have to demonstrate that it can undertake complementarity with the ICC in practice. In particular, authorities “will have to demonstrate that they can provide all guarantees for a fair trial…including that they are not prosecuting Mr. Katanga for crimes for which he has already been convicted or acquitted by the ICC.”