Congo warlord verdict a test for flagging international court

AMSTERDAM Thu Mar 6, 2014 4:27pm EST

Congolese warlords Germain Katanga sits in the courtroom of the International Criminal Court in The Hague November 24, 2009. REUTERS/Michael Kooren

Congolese warlords Germain Katanga sits in the courtroom of the International Criminal Court in The Hague November 24, 2009.

Credit: Reuters/Michael Kooren

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AMSTERDAM (Reuters) - The International Criminal Court passes judgment on alleged Congo warlord Germain Katanga on Friday in a key test of the prosecutors' ability to bring solid cases and win convictions at the Hague-based tribunal.

The court, launched in 2002 to try crimes against humanity, has handed down only two verdicts so far - a conviction and an acquittal -- while at least five cases have collapsed for lack of sufficient evidence before or during trial proceedings.

Apart from accusations of slow justice, the court has also suffered from criticism that it has so far only brought charges against Africans while atrocities in conflicts in the politically-charged Middle East go unpunished.

Friday's case stems from a bloody conflict in the resource-rich Ituri region of northeast Congo in the early 2000s.

Katanga was charged with 10 counts of war crimes and crimes against humanity for an attack on a village there called Bogoro by a militia group he allegedly commanded, the Patriotic Resistance Force. He could face a life sentence if convicted.

He was charged alongside Mathieu Ngudjolo Chui, another militia leader who was acquitted for lack of evidence last year.

Judges separated Katanga's case before the verdict and gave prosecutors another year to gather more evidence that he had contributed to the crimes, not that he was central to them as originally charged.

"If they don't clear this lower bar, it will put a question mark over the organization of the trial," said Carsten Stahn, a law professor at Leiden University. "Even if they do end up with a conviction, it will remain a fragile basis for conviction."

QUESTIONS ABOUT EVIDENCE

The court, which has a budget of some 100 million euros, is now preparing to try Kenyan President Uhuru Kenyatta, accused of orchestrating clashes after 2007 elections in which 1,200 died.

Kenyatta denies the charges but will cooperate even as his government lobbies hard to have his trial dropped or postponed.

Although more than 100 nations have recognized the court's jurisdiction, brutal conflicts such as the one in Syria remain beyond its reach because Damascus didn't join the court before it descended into a civil war that has killed more than 140,000 and displaced millions more.

Some 200 people were killed in the attack on Bogoro in February 2003, when ethnic Lendu and Ngiti fighters destroyed the homes of the village's mainly Hema inhabitants.

Some testimony prosecutors used in this latest trial was criticized as faulty by the judges when it was presented in the case against Ngudjolo that ended in acquittal last year. So much will depend on prosecutors' reinvestigations over the past year.

In last year's verdict, judges criticized prosecutors for such lapses as failing to visit the site of the attack and not checking what witnesses would have been able to see from the vantage points that they claimed to have had.

Fatou Bensouda, appointed chief prosecutor two years ago, has since boosted the court's investigative teams and sought funds for forensic experts and other skilled investigators.

If the judges convict Katanga, it would lend badly needed support to her new approach.

"An acquittal would be a blow, but there's been a change in leadership and they've publicly acknowledged they need to take another look at their investigative strategies," said Jennifer Easterday of the Open Society Justice Initiative.

(Reporting By Thomas Escritt; Editing by Tom Heneghan)

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OSFJustice wrote:
For more details on the trial, the Open Society Justice Initiative has produced a 2-page fact sheet: http://www.opensocietyfoundations.org/fact-sheets/trial-germain-katanga

Mar 06, 2014 5:05pm EST  --  Report as abuse
Dear Mr. Escritt,

As member of Mr. Katanga’s defence team (who also figures on the picture attached to your article), I would like to point out a critical factual inaccuracy in your article on Mr. Katanga’s judgment.

You say that, when the judges separated the case of Katanga from the case of Ngudjolo, his former co-accused, they gave the prosecution another year to gather more evidence that Katanga “contributed to the crimes, not that he was central to them as originally charged”.

This is not true. The Prosecution was not given any time or opportunity to conduct further investigations. And Mr. Katanga’s case has nothing to do with Fatou Bensouda’s new approach to investigations. Katanga’s case is still very much the fruit of Louis Ocampo’s investigations, the lapses of which led to similar criticism by the judges as in Ngudjolo’s case. Bensouda has not been given an opportunity to rectify these lapses. The only relationship she has with this case is the fact that she was Ocampo’s Deputy Prosecutor at the relevant time.

In fact, the prosecution lost its case. It had charged Mr. Katanga as an indirect co-perpetrator, jointly with Mr. Ngudjolo, under article 25(3)(a). Like Ngudjolo, Katanga was acquitted of all charges under article 25(3)(a). As the Minority Judge put it in her dissent (para. 137), “the incriminating evidence did not pass muster”. This was a unanimous decision agreed to by both the Majority and Minority of the judges. However, on 21 November 2012, the Majority decided, on its own initiative and without any prior request from the prosecution, to sever Mr. Katanga from his co-accused and notified him that it may change the mode of liability to article 25(3)(d)(ii).

As of that date, the Prosecutor was at the sideline. The case was now one of the Majority of judges against Katanga.

At no time did the Majority give another opportunity to the prosecution to collect further evidence. It merely authorized all parties and participants to submit their observations on the factual and legal implications of such change of the mode of liability. The time for the prosecution to investigate this case was over.

It was the Majority of the judges who formulated the charges under this new mode and not the Prosecutor. This is why, as the Minority Judge points out (Dissenting Opinion, para. 143), “it is only appropriate to speak of the “Majority’s case” and not the Prosecution’s case on which the conviction is based.

In focusing erroneously on Bensouda’s new policies, this article misses out of the more interesting issue that this is the first time in the history of international criminal justice that judges have altered the mode of liability after completion of all the evidence.

Comment made on behalf of:
Caroline Buisman, Sophie Menegon, Laura Rousseau

Mar 12, 2014 10:14pm EDT  --  Report as abuse
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