International Justice Monitor

A project of the Open Society Justice Initiative

Background

Germain Katanga Portrait

© Michael Kooren / AFP / Getty Images

Mathieu Ngudjolo Chui Portrait

© Michael Kooren / AFP / Getty Images

Names: Germain Katanga and Mathieu Ngudjolo Chui
Nationality: Congolese
Arrested: Germain Katanga had been arrested on March 2005 and detained by the Congolese authorities in relation to another incident. He was still being held without charge when his International Criminal Court (ICC) arrest warrant was issued and was thus surrendered to the court directly. Mathieu Ngudjolo Chui was arrested on February 6, 2008.
Handed over to the International Criminal Court: October 17, 2007 (Katanga) and February 7, 2008 (Ngudjolo).
Charges: Seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery) allegedly committed in Bogoro, a village in the Ituri Province of eastern DRC, from January to March 2003.
Trial start date: November 24, 2009
Trial end date: May 23, 2012
Ngudjolo judgment: December 18, 2012; acquitted of all charges.
Katanga judgment: March 7, 2014; convicted of one crime against humanity and four war crimes.

The trial against Congolese warlords Germain Katanga, alleged commander of the Force de résistance patriotique en Ituri (FRPI) militia, and Mathieu Ngudjolo Chui, alleged former leader of the Front des nationalistes et intégrationnistes (FNI) militia, began on November 24, 2009. It was decided the two accused should be tried together as they faced the same charges of war crimes and crimes against humanity in connection with the same attack on the village of Bogoro, Ituri Province, DRC. The trial of Katanga and Ngudjolo was the second trial ever to be held at the ICC. The first trial also concerned crimes committed during the Ituri conflict in eastern DRC.

The following overview offers a look at how the case came about.

How the ICC became involved in the DRC

The Democratic Republic of the Congo became a state party to the founding treaty of the International Criminal Court, the Rome Statute, when it signed the treaty on September 8, 2000, and ratified it on April 11, 2002. This gave the ICC jurisdiction over war crimes, crimes of humanity, and genocide committed on Congolese territory or by Congolese citizens after July 1, 2002 – the date that the Rome Statute entered into force. However, the ICC only has jurisdiction in cases where the government proves unwilling or unable to investigate and prosecute those crimes. Thus the ICC investigation into crimes committed in the DRC began only after the Congolese government formally referred the situation in the country to the ICC on April 19, 2004. The ICC prosecutor chose to focus his investigation on the situation in Ituri due to the gravity of the crimes committed during the Ituri conflict.

The ICC Prosecutor’s investigation and the arrest of Katanga and Ngudjolo

The ICC Prosecutor’s investigation into the situation in the Ituri Province of eastern DRC officially began in June 2004. The investigation uncovered sufficient evidence to suggest that during the Ituri conflict, the FPRI and the FNI militias jointly carried out military operations targeting civilians of Hema ethnicity, and during an attack on the village of Bogoro in February 2003, FPRI and FNI members committed criminal acts that included the murder of civilians, pillage, and the sexual enslavement of women and girls, among other crimes. The FNI and FPRI also allegedly used children under the age of fifteen to participate actively in this attack. Such acts amount to war crimes and crimes against humanity.

An arrest warrant for the alleged FPRI commander Germain Katanga was first issued on July 2, 2007. Katanga had since been made a Brigadier-General of the national Armed Forces of the Democratic Republic of the Congo (the FARDC) in early 2004, but in March 2005, he was arrested in relation to another alleged crime. As Katanga was already in the custody of the Congolese authorities at the time his ICC arrest warrant was issued, he was surrendered to the ICC and transferred to The Hague directly on October 17, 2007; his arrest warrant was unsealed the next day.

An arrest warrant for the alleged former FNI leader Mathieu Ngudjolo Chui was issued on July 6, 2007. By then Ngudjolo and his FNI militia had been integrated into the national FARDC, and Ngudjolo was receiving military training in Kinshasa as an FARDC colonel at the time of his arrest on February 6, 2008. The arrest warrant, unsealed the following day, listed the same counts of war crimes and crimes against humanity as those in the warrant for Katanga. He was surrendered by the Congolese authorities and transferred to The Hague on February 7, 2008.

The arrival of Katanga and Ngudjolo at the ICC and why their trials were joined

Germain Katanga was transferred to The Hague on October 17, 2007, and he first appeared before Pre-Trial Chamber I on October 22, 2007. Mathieu Ngudjolo Chui was transferred on February 7, 2008 and appeared before Pre-Trial Chamber I on February 11, 2008.

On March 10, 2008, the Chamber issued a decision joining the cases against Germain Katanga and Mathieu Ngudjolo Chui, largely on the basis of their alleged shared responsibility for crimes committed during a joint attack on the village of Bogoro. All the evidence for these crimes related to both suspects. This joinder was deemed in the interests of the victims and witnesses, conducting the proceedings in a fair and efficient manner, and the protection of the rights of the defendants, including the right to be tried without undue delay. It would also ensure the judicial economy of the proceedings. The Chamber stated that joining the cases would not be prejudicial to the defendants, nor contrary to the interests of justice. It allowed that the cases could be separated at a later stage if necessary.

A confirmation of charges hearing was held for both defendants from June 27 to July 18, 2008. It had been postponed twice to allow all parties more time to prepare for the hearing. During this hearing, the judges heard arguments from the prosecution, defense and the legal representatives of 57 victims. The Chamber then issued its decision on the confirmation of charges on September 26, 2008. It approved seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). However, it declined three charges on the grounds of insufficient evidence: the charges of inhuman treatment and outrages upon personal dignity (war crimes), and inhumane acts (a crime against humanity). The Chamber then committed the defendants for a trial, which began after one postponement on November 24, 2009.

Why their cases were severed before judgment

On November 21, 2012, the majority of Trial Chamber II, Judge Christine Van Den Wyngaert dissenting, informed the parties that it was considering a re-characterization of the facts of the case concerning the mode of liability applicable to Germain Katanga. The majority recognized that these changes would prolong the trial of Katanga and decided that it was unnecessary to delay the judgment in the case of Ngudjolo. Therefore, in order to avoid potential violations of Ngudjolo’s right to a trial without undue delay, the majority severed the charges.

The Ngudjolo judgment

On December 18, 2012, Trial Chamber II acquitted Mathieu Ngudjolo of all charges. The judges found there was insufficient evidence to conclude beyond a reasonable doubt that Ngdudjolo was the commander of the FNI at the time of the attack on Bogoro. Ngudjolo was accused of having committed crimes through “indirect co-perpetration” by using the FNI to carry out the crimes. However, judges found that there was a lack of credible evidence provided by the prosecution to support the accusation, and testimony from key prosecution witnesses lacked sufficient credibility to prove Ngudjolo was the commander of the combatants.  In addition, Ngudjolo was charged directly with using child soldiers to participate in hostilities, but judges found insufficient evidence to link him to these crimes.

The Katanga judgment

On March 7, 2014, Trial Chamber II, by a majority, convicted Germain Katanga as an accessory to one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property, and pillaging). The chamber changed the characterization of the mode of liability against Katanga, who had initially been charged as a principle perpetrator. He was acquitted of charges of using child soldiers, rape, and sexual slavery.

The majority concluded that Katanga had made a significant contribution to the crimes committed by the Ngiti militia by collecting and distributing arms and ammunition to local combatants. These arms were then used in the attack on Bogoro. The majority found that Katanga knew the combatants intended to commit crimes during the attack and drew attention to the importance of the firearms in the attack. Katanga furnished weapons to local combatants in large quantities, which allowed the combatants to successfully take Bogoro in a matter of hours.

The majority found that while Ngiti combatants committed the crimes of using child soldiers in the hostilities, rape, and sexual slavery, there was insufficient evidence to find Katanga guilty of these crimes beyond a reasonable doubt.

Who is paying for the defense of Katanga and Ngudjolo?

The ICC bears the cost of the defense of Germain Katanga and Mathieu Ngudjolo Chui, in accordance with its legal assistance scheme. The defendants were provisionally judged to be indigent by the Registrar of the Court, pending verification of the information contained in their respective applications.

What is the background of the conflict in the DRC?

The conflict in the Ituri region of northeastern DRC, along the border with Uganda, involved the Hema and Lendu ethnic groups. Tension and fighting between the groups has occurred for many years because of competition for land. However in 1996, this long-standing competition became embroiled within a larger, complicated set of conflicts that escalated the violence.

Following the 1994 genocide in neighboring Rwanda, Rwandan Hutu fighters who had participated in the 1994 slaughter of Tutsis fled to eastern Zaire (now the DRC), and some of these fighters went to refugee camps. From eastern Zaire, these Hutu fighters launched attacks on Rwanda with support from Zaire’s president, Mobutu Sese Seko.

In 1996, troops from Rwanda and Uganda entered eastern Zaire to support an insurgency led by Laurent-Désiré Kabila. These troops swept across the vast country, killing not only Hutu fighters, but also 200,000 to 300,000 Hutu civilians as they went. In May 1997, the Rwandan and Ugandan forces and Kabila’s rebels defeated Mobutu’s forces and allied Angolan rebels. This put an end to Mobutu’s 32 year dictatorship. Laurent Kabila made himself president and changed the country’s name from Zaire to the Democratic Republic of the Congo.

Wanting to prove his independence, Kabila turned against the Rwandans who had helped him get to power in 1998. Rwanda immediately tried to remove Kabila, but Angola’s military beat back Rwandan troops in the capital, Kinshasa. Zimbabwe and Namibia joined the side of Kabila, while Rwanda was joined by Uganda and Burundi in opposing Kabila. Congolese Tutsis, called Banyamulenge, allied with Rwanda and its troops. Uganda backed different militias. Anti-Tutsi Congolese militias called Mayi-Mayi received the support of Kabila.

The conflict, which was most intense in the east of the DRC, became known as Africa’s First World War. In addition to ethnic divisions, the conflict was complicated by the DRC’s rich natural resources. The combatant forces sought to control land and exploit mineral wealth and timber. Conflict over the diamond center of Kisangani caused allied troops from Rwanda and Uganda to fight against each other. During the conflict, many fighting factions divided and formed complicated rivalries. Without any accountability, many atrocities were committed against civilians on all sides, including many killings and horrific levels of sexual violence. By 2004, around four million people had died as a result of the conflict, through disease, starvation, and directly through killings.

In 2000, the United Nations began a peacekeeping mission in the DRC. However, fighting continued. Laurent Kabila was assassinated in 2001, and his son Joseph Kabila became president. Peace negotiations advanced, and in April 2003, all neighboring countries agreed to withdraw their forces from the DRC. Congolese rebel representatives from many factions joined a government led by Joseph Kabila. With more international peacekeepers in the DRC, parliamentary and presidential elections were held in 2006. Joseph Kabila defeated Jean-Pierre Bemba in the final round of presidential voting and was officially elected president. Bemba’s supporters clashed with government troops in Kinshasa before peacekeepers could end the violence.

Throughout the course of this extended conflict, pre-existing tensions between Lendu and Hema peoples became much more deadly. As the Lendu began to identify with the Hutu, and the Hema with the Tutsi, the wider war became linked to, and helped fuel, the Lendu-Hema regional conflict in the east.

Early in the DRC war, Uganda had backed a Congolese militia that contained both Hema and Lendu. However, this militia split along ethnic lines and Lendu began to see Uganda as supporters of Hema. Six different militias ended up fighting over Ituri province, and Uganda remained deeply involved. Ituri is rich in minerals, especially gold, and the militias, along with the Ugandan army, fought to control the mining. The conflict made commanders rich and gave them a reason to keep fighting. They rallied their forces and people with ethnic hatred in order to continue the profitable war. There were horrific massacres of civilians in 2002.

French peacekeepers intervened in 2003 and UN peacekeepers increased their numbers in Ituri beginning in 2004. The UN mission arrested several militia leaders in March 2005, including Hema UPC militia leader Thomas Lubanga, who was transferred to the ICC in March 2006. The ICC has since issued an arrest warrant for one other Hema commander, Bosco Ntaganda, who remains at large. It then brought charges against two Lendu militia commanders, Germain Katanga and Mathieu Ngudjolo Chui. Most recently, the Rwandan Hutu FDLR militia leader Callixte Mbarushimana was arrested in France and extradited to the Court in January 2011.

The Ituri conflict is believed to have caused at least 50,000 deaths and displaced hundreds of thousands of civilians. A low level of violence in Ituri persists to this day, partly due to the operations of foreign armed groups in the province. Tensions also remain between the Hema and the Lendu, despite a range of efforts to promote peace and reconciliation between the groups.