On 7 March 2014, the International Criminal Court (ICC) found former Congolese militia leader Germain Katanga guilty as an accessory to one count of murder as a crime against humanity, and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging).
The charges relate to offences committed on 24 February 2003 in an attack on the village of Bogoro, in the Ituri district of the Democratic Republic of Congo (DRC). Over 200 people died as a result of the attack.
Katanga – infamously known as Simba (meaning 'lion' in Kiswahili) – was found to have acted in the knowledge of the criminal common plan devised by the Ngiti militia to target the predominantly Hema population of Bogoro.
The court found that Katanga had been the intermediary between the weapons and ammunition suppliers and those who had committed the crimes in Bogoro. This ensured that the militia were able to secure military superiority.
It should be noted that Katanga, who was initially charged as a direct co-perpetrator, was convicted as an accessory. This finding by the ICC on a lesser mode of liability is significant in that it suggests Katanga was either not as directly involved as initially charged; or that the prosecution was unable to ascertain his guilt as a direct perpetrator.
The ICC must explain the verdict to victims and affected communities in the DRC
While the court's decision to convict Katanga has been heralded as a triumph of international criminal justice, the ICC acquitted Katanga of other charges relating to sexual crimes and the recruitment of child soldiers.
The prosecutor’s inability to prove Katanga's guilt speaks to the inherent challenges in investigating and prosecuting sexual crimes. These include high evidentiary requirements, legally and factually insufficient indictments, victims as witnesses and the challenge of holding an accused criminally responsible for the actions of his or her subordinates.
While finding that there had been children within the Ngiti militia and among combatants during Bogoro attack, the evidence against Katanga for his role was insufficient. This is not the first time that such a finding has been made with respect to the Bogoro attack. In December 2012, the ICC acquitted Mathieu Ngudjolo Chui, the leader of another implicated militia group (then Katanga's co-accused), of these and other charges due to a lack of evidence.
Given the verdict in the Chui case, there were concerns that Katanga might also have been acquitted on all charges. Despite the convictions, the prosecution's inability to sufficiently demonstrate Katanga’s guilt for the other crimes brings into question whether justice for those specific crimes will ever be seen.
Brigid Inder, Executive Director of Women’s Initiatives for Gender Justice, lamented the decision to acquit Katanga on charges of rape and sexual slavery as 'a devastating result for the victims/survivors of the Bogoro attack, as well as other victims of these crimes committed … in Ituri.' William Pace, the Convenor of the Coalition for the ICC, also expressed concern over the acquittals. According to Pace, it means that 'those responsible for the crimes of rape and using child soldiers, which continue to blight the region, have yet to be brought to justice.' He believes the ICC must increase its outreach to explain the verdict to victims and affected communities.
Despite Katanga's conviction, conflict in the DRC continues, and members of his FRPI are still active
The remaining two cases linked to the DRC conflict relate to crimes committed in the neighbouring Kivu provinces. This makes it important for the DRC to seek ways to bring to justice other perpetrators who were involved in other attacks in Ituri and elsewhere, through domestic legal channels. It is worth noting that the cases prosecuted by the ICC relate only to a small fraction of the international crimes committed in the DRC since 2002.
Speaking on behalf of the victims in the Katanga case, legal representative Fidel Nista Luvengika said many hope the judgment will contribute to peace and reconciliation. However, it remains concerning that the conflict in the region continues, and that members of Katanga's Force de Résistance Patriotique en Ituri (FRPI – the Front for Patriotic Resistance in Ituri) are still active.
The rebels are said to conduct routine attacks against the local population and frequently clash with the military, resulting in large displacements of people. It can only be hoped that Katanga’s conviction serves to deter further crimes, and more importantly, that it encourages domestic prosecutions of other perpetrators.
Whether this will happen remains to be seen. The 2012 conviction of militia leader Thomas Lubanga Dyilo brought no dramatic changes in the DRC in terms of criminal justice reforms or in reducing violence. This is despite the fact that in 2011, the Congolese government seemed to be on track to establish specialised mixed courts to prosecute international crimes. Also, in October last year, President Joseph Kabila committed to identifying and prosecuting anyone who organised armed groups.
This is particularly important because the ICC, as a court of last resort that complements national jurisdictions, cannot be expected to address impunity on its own. That the ICC has only been able to convict two people confirms this. The ICC can realistically deal with very few cases and only with those perpetrators who are considered to be the most responsible, and who are often in positions of power.
Katanga's conviction is an important success for the ICC. But it will only be regarded as one for international criminal justice if it encourages further efforts to bring justice to the DRC. Until then, victims in Ituri and elsewhere will continue to wait.
Ottilia Anna Maunganidze, Researcher, Transnational Threats and International Crime Division, ISS Pretoria