SYMBIOSIS LAW SCHOOL, PUNE

SUBJECT : International Criminal Law

TOPIC : Prosecutor v. Germain Katanga

Names: Adhiraj Singh Chauhan (14010125102)

Richard Damien Bilung (14010125118)

B.A.LLB Division ‘B’ Year ‘IV’

Background
The Ituri conflict was a major conflict between the agriculturalist Lendu, Ngiti and pastoralist
Hema ethnic groups in the Ituri region of the north-eastern Democratic Republic of Congo
(DRC). While the two groups had fought since as early as 1972, the name 'Ituri conflict'
refers to the period of intense violence between 1999 and 2003.1 A low level armed conflict
continues to the present day.

The conflict was largely set off by the Second Congo War, which had led to increased ethnic
consciousness, a large supply of small arms, and the formation of various armed groups.
More long term factors include land disputes, the area's abundant natural resources, and the
existing ethnic tensions throughout the region. The Lendu & Ngiti ethnicity was largely
represented by the Nationalist and Integrationist Front (FNI) while the Union of Congolese
Patriots (UPC) claimed to be fighting for the Hema.

The conflict was extremely violent. Large-scale massacres perpetrated by members of both
ethnic factions. In 2006, the BBC reported that as many as 60,000 people had died in Ituri
since 1998.2 Hundreds of thousands of people were forced from their homes, becoming
refugees.

In June 2003, the European Union began Operation Artemis, sending a French-led
peacekeeping force to Ituri. The EU force managed to take control of the regional capital of
Bunia. Despite this, fighting and massacres continued in the countryside. In December 2003,
the Hema-backed UPC split and fighting decreased significantly.

Facts
 Between 1999 and 2003, Ituri was the scene of a violent conflict between the Lendu,
Ngiti and Hema ethnic groups.
 The Hema-dominated Union of Congolese Patriots (UPC) seized control of Bunia, the
district capital, in August 2002. Bogoro was a strategically important town (where
mostly people from the Hema group lived) on the road between Bunia and the border
with Uganda, with a UPC military camp in the middle of the town.
 On 24 February 2003, hundreds of FNI and FRPI fighters including children under the
age of fifteen circled Bogoro and attacked with machetes, spears, arrows, and heavy
weapons including mortars, rocket-propelled grenades, rocket launchers and semi-
automatic weapons.
 At least 200 civilians were killed and survivors were imprisoned in a room filled with
corpses, while many women and girls were sexually enslaved. According to the UN,
173 of the victims were under the age of 18.

1
Uppsala Conflict Data Program Conflict Encyclopedia, Conflict Name: Hema – Lendu, Conflict Summary, Non-
state Conflict
2
"Eastern DR Congo rebels to disarm", BBC, By Karen Allen, BBC News, Bunia
  As reported by the UN, the attack aimed to drive the UPC from Bogoro, but also
appeared to be a reprisal operation against the Hema civilian population for
supporting the UPC; the attack was part of a plan by Lendu and Ngiti rebels to attack
predominantly Hema villages in preparation for an assault on Bunia.
 Germain Katanga and Mathieu Ngudjolo were believed to be linked to the attack and
as such they were indicted for numerous crimes during the attack, jointly as well as in
person.

Issues
 Whether the persons, who committed the crimes, belonged to a group acting with a
common purpose?

 Whether Germain Katanga made a significant contribution to the commission of the

crimes?

 Whether Germain Katanga knew of the intention of the group to commit the crimes
which formed the common purpose, thus making him criminally liable for the alleged
crimes?

Rules
Rome Statute of the International Criminal Court:

 Individual principal and accessory criminal responsibility (Art. 25(3) (a)/(d)).

 Crimes against humanity (Art. 7(1)(a), Art.7(1)(g)).

 War crimes (Art. 8(2)(a), Art. 8(2)(b)(i), Art. 2(b)(xiii), Art. 8(2)(b)(xvi), Art.
2(b)(xxii), Art. 8(2)(b)(xxvi)).
Analysis
Issue 1

It was established that on 24 February 2003, Bogoro was attacked by the Ngiti combatants of
Walendu-Bindi collectivité and the Lendu combatants, with reinforcements from the APC.

The Chamber did find beyond reasonable doubt that Ngiti combatants intentionally directly
targeted the predominantly Hema civilian population of Bogoro on 24 February 2003 and
established that numerous crimes against humanity and war crimes - murders, rapes and
destruction of property - had been committed. It can be recalled that the Ngiti combatants and
commanders of Walendu-Bindi collectivité were part of a militia,3 which constituted an
organisation within the meaning of article 7(2)4 of the Statute and an armed group within the
meaning of the law of armed conflict.5 This militia harboured its own design, which, although
form a part of a wider design to reconquer territory, was to attack the village of Bogoro so as
to wipe out from that place not only the UPC troops but also, and, first and foremost, the
Hema civilians present.6

In this respect, it was found that the villagers were systematically targeted, the attackers
committed crimes against the civilians in accordance with a regular pattern and great
violence.7 It also observed that in the course of the attack, several witnesses testified that they
had heard the attackers uttering threats and the pleas of the victims, who were weeping and
begging for mercy. Lastly, it is established that the Ngiti attackers did not confine themselves
to seizing control of Bogoro by attacking the UPC, but that they also considered it necessary
during combat and after overrunning Bogoro, to pursue and kill the population, destroy its
houses and steal its property. In the aftermath of the assault, the village of Bogoro was
cleared of its predominantly Hema population.8

In the view of the researchers, the manner in which Bogoro was attacked and that Hema
civilians, who had no part in combat, were pursued and killed, confirms the existence of a
common purpose of a criminal nature vis-à-vis the population of the village. Thus, later the
Chamber considered it established that the crime of murder as a crime against humanity and
as a war crime and attack against civilians as a war crime were part of the common purpose.

It must also be remarked that the Ngiti combatants of Walendu-Bindi collectivité, together
with other attackers, demolished and/or set ablaze houses belonging to and occupied by the
predominantly Hema population of Bogoro. The acts of destruction took place throughout the
village and throughout the day, including once it had fallen into the grip of the attackers. The
Chamber also found that the village of Bogoro was extensively pillaged during the 24

3
Section VII, Judgment : Germain Katanga, Organisation of the combatants of Walendu-Bindi collectivité in
the immediate run-up to the attack against Bogoro
4
Section IX(A)(2)(ii), The Ngiti combatants of Walendu-Bindi constituted an organisation within the meaning of
article 7(2) of the Statute
5
Section IX(B)(3)(a)(ii), Presence of organised armed groups in Ituri
6
Section VII(E), Ethnic motives of the Ngiti commanders and combatants
7
Section IX(A)(2)(b), The attack on Bogoro was of a systematic nature
8
Section VIII(B(2)(h), Objectives of the attackers
February 2003 attack, both during and in the aftermath of the battle.9 The property thus
destroyed and pillaged − be it the roofing sheets of houses, livestock or any other animal −
belonged to the predominantly Hema civilian population of Bogoro and was essential to its
daily life.10 The destruction and pillaging of that property were therefore an integral part of
the operation, which consisted of wiping out Bogoro by attacking its Hema civilian
population.

In the light of that evidence and the evidence which establishes the contrivance of a design to
attack Bogoro through the elimination of the resident Hema population, it is apparent that the
Ngiti combatants of Walendu-Bindi collectivité harboured the intention to pillage the
property and livestock, and more specifically, that they knew that such acts of pillaging
would occur on 24 February 2003 in the ordinary course of events. Accordingly, the Chamber
was similar of the view that the crime of pillaging as a war crime was part of the common
purpose. Similarly, the crime of destruction of property as a war crime was also part of the
common purpose, which was specific to the militia, namely to eliminate from Bogoro the
predominantly Hema civilian population.

Thus, it is clearly that the persons, who committed the crimes, belonged to a group acting
with a common purpose.

9
Section VIII(C)(3)(b), Conclusions on the crime of pillaging
10
Section VIII(C)(3)(a), Conclusions on the crime of destruction of enemy property
Issue 2

Considering Katanga's role in the attack, the Chamber found that he - bearing the titles
President of the Ngiti militia and Commander or Chief of Aveba – was a seasoned and well-
known soldier with undeniable military authority over the collectivité, authority over
administration, oversight, security and public order, and with close ties to priests in the
Walendu-Bindi collectivité. It emerges therefrom, that ultimately as of November 2002; the
Accused helped the Ngiti militia of Walendu-Bindi collectivité, a militia of which he was the
President, to mount the operation against Bogoro. The operation was organised locally by the
Ngiti combatants, who regarded it as aimed at eliminating from the area the Hema civilian
population. In furtherance of that objective, Germain Katanga lent his assistance:

- by travelling to Beni, by forging, on behalf of the militia, alliances with the military
authorities there and by taking part, as the figure of choice, in the definition of a military
strategy in conjunction with such authorities;11

- thereby helping the militia as a group, by making the case to the military authorities in Beni
for its interest in the struggle against the “Hema” enemy, seen as synonymous with the UPC;

- by assuming, in Aveba, upon return from his first trip to Beni, and, by virtue of his position
of authority, the role of facilitator so as to establish smooth communication between the local
commanders, the authorities in Beni and the APC soldiers; by also settling any disputes
between, amongst others, local commanders and the APC;12

- by facilitating, and at times personally ensuring that the weapons and ammunition from
Beni were received, securely stored and distributed in an organised manner among the
various commanders of the collectivité, who came to take delivery of their allotted share in
preparation for the attack on Bogoro.13

- in the run-up to the attack, and as a key protagonist in the alliances which the militia had
forged, he contributed to reinforce the strike capability of the Ngiti militia which carried out
the crimes committed in Bogoro on 24 February 2003. He also contributed, by virtue of his
position in Aveba − the only place in the collectivité with an airport which could
accommodate aircraft transporting weapons − to equipping the militia and enabling it to
operate in an organised and efficient manner.

- throughout the preparatory period of the attack, he was the intermediary of choice in Aveba
between the suppliers of weapons and ammunition and the physical perpetrators of the crimes
who were to deploy such weaponry in Bogoro.14 Absent that considerable supply of weapons
to the Ngiti community, and absent the Accused’s contribution which entailed organising and
facilitating the supply of weapons at a local level, the commanders and combatants of

11
Section X(B)(4), Delegation leader and the Beni authorities’ figure of choice from November 2002
12
Section X(A)(7)(b)(i), Germain Katanga: facilitator for the local commanders and the APC
13
Section X(A)(5), Role of Germain Katanga in the receipt, storage and distribution of weapons and
ammunition
14
Section X(A)(4), ‘Germain Katanga: delegation leader and the Beni authorities’ figure of choice from
November 2002
Walendu-Bindi collectivité would not have had the same advantages or have been able to
commit so effectively the crimes which were perpetrated in Bogoro against the Hema civilian
population.

In this context, it is apparent, therefore, that Germain Katanga’s contribution proved to be of

particular relevance to the commission of the crimes which form part of the common
purpose, since that contribution had considerable influence on their occurrence and the
manner of their commission. His involvement allowed the militia to avail itself of logistical
means which it did not possess and which, however, were of paramount importance in
attacking Bogoro. His involvement, therefore, had a truly significant part in bringing about
the crimes. Germain Katanga’s contribution secured the military superiority of the Ngiti
combatants over their adversary, the UPC, and allowed them to see through their purpose of
eliminating from Bogoro the predominantly Hema civilian population. The effectiveness of
his authority over the supply and distribution of weapons and ammunition to the militia, his
duties as facilitator and negotiator made it clear that Katanga had effective hierarchical power
over all the commanders and combatants of the Ngiti militia in Walendu-Bindi collectivité,
thus he made a significant contribution to the commission of the crimes.
Issue 3

It has been seen that the Accused knew, as early as November 2002, that the Ngiti militia was
preparing an operation against Bogoro with the support of the authorities in Beni.15 The
evidence on record further establishes that he knew that the weapons and ammunition, whose
delivery and distribution he facilitated as of December 2002, were intended for the attack on
that area and that the combatants would use them to that end. Indeed, it should also be stated
that the delivery of weapons and ammunition to Aveba was affected in prospect of the attack
on Bogoro.16 Furthermore, Germain Katanga was fully aware of how war was being waged in
Ituri at the material time and of the ensuing suffering which the civilian population endured.
In fact throughout his testimony, he made a number of references to the violence which the
Ugandans meted out to the population.

Also, the Accused knew of the anti-Hema ideology which, in February 2003, drove and
mobilised the Ngiti commanders and combatants of Walendu-Bindi. In fact, he explained that
the threat of a Hima-Tutsi empire was discussed among the commanders in Aveba. He was,
moreover, aware that the authorities in Beni were playing the ethnicity card to rally local
combatants.

Thus, it can be said that Germain Katanga, in his capacity as President of the Ngiti militia of
Walendu-Bindi collectivité, knew that a military attack against Bogoro was being prepared
and that the weapons supplies were intended for that battle. He also knew that the methods of
warfare generally deployed in Ituri, and in Walendu-Bindi specifically, by all of the armed
groups entailed acts of violence against the civilian population. More specifically, he knew
that Ngiti combatants from Walendu-Bindi had already violently attacked the civilian
population and were driven by an ideology inimical to the Hema. Accordingly, it is found
that Germain Katanga knew that the attack on Bogoro would proceed as it did and that the
Ngiti militia would commit the crimes of murder, attack against civilians, destruction of
property and pillaging. Therefore, the view can be taken that as of December 2002, Germain
Katanga knew of the intention of the Ngiti militia, as a group, to commit, during the 24
February 2003 attack, each of the aforecited crimes, which formed part of the said group’s
common purpose. The Chamber considers that all these findings establish beyond reasonable
doubt that Germain Katanga’s intentional contribution to the crimes of murder (as a war
crime and as a crime against humanity), attack against civilians, destruction of property and
pillaging (as war crimes) was significant and made in the knowledge of the intention of the
group to commit the crimes.

Thus, it is correct that Germain Katanga knew of the intention of the group to commit the
crimes which formed the common purpose; therefore he is eligible to be held criminally
liable for the alleged crimes.

15
Section X(A)(4), ‘Germain Katanga: delegation leader and the Beni authorities’ figure of choice from
November 2002
16
Ibid
Conclusion
Although Katanga's individual responsibility as principal perpetrator could, as such, not be
vested, the Chamber did find him responsible as an accessory to a number of the crimes.
Since he had not only been part of the attacking group which had the common purpose of
eliminating the Hema population of Bogoro but also significantly (through logistical aid,
provinding weapons and transportation, enabling the militia to operate) and intentionally
contributed to the commission of the crimes, knowing of the group's intent, he was found
guilty of one count of crime against humanity (murder) and four counts of war crimes
(murder, attacking a civilian population, destruction of property and pillaging).

Therefore, the Court sentenced Katanga to 12 years' imprisonment with credit for time served
in the ICC's detention centre, approximately 7 years.

The Katanga trial verdict produced mixed reactions. Some human rights activists in the DRC
expressed satisfaction with the verdict as bringing a measure of closure to the victims and
their families, with one activist quoted as saying: "For those who lost their possessions, their
mothers, their homes, this judgment provides some relief. Today people here see some
satisfaction. In the end, everyone must answer for his actions."17 A lawyer for the victims in
the case stated: "In their heart, many victims want to believe that; somehow, this judgment
will contribute to peace and reconciliation".18 Also, some women's groups criticized the ICC
for acquitting Katanga of rape and sexual slavery charges, claiming that the court appeared to
demand higher level of proof for the sexual crimes than for other crimes.

Even the UN Secretary General Ban Ki-moon issued a statement welcoming the verdict and
saying: "This is an important verdict for the victims of these horrific crimes, for international
justice and for the fight against impunity in the Democratic Republic of the Congo."19
Contrary to this, Melbourne Law School Professor Kevin Jon Heller, an expert in
international criminal law, has strongly criticised the recharacterisation of the charges
Katanga faced, arguing that this violates the Rome Statute of the International Criminal Court
and the rights of the accused.

Further, recently in 2017, International Criminal Court (ICC) judges read a decision awarding
297 victims of crimes committed by former Congolese militia leader Germain Katanga a
symbolic compensation of USD 250 per victim. Victims were also awarded collective
reparations in the form of support for housing, support for income-generating activities,
education aid, and psychological support. In reaching their decision, judges took into account
the needs of all victims and consultations undertaken with them and sought to ensure their
safety, physical, and psychological well‑being and privacy.

17
Germain Katanga: Guilty of war crimes, the brutal warlord who terrorised the Democratic Republic of
Congo, The Independent, Accessed March 11, 2018
18
DRC: Katanga's ICC Conviction is One Small Step towards Justice, Think Africa Press, Accessed March 11,
2018
19
Secretary General welcomes International Criminal Court verdict convicting rebel leader for atrocities in
Democratic Republic of Congo, Newstime Africa, Accessed March 11, 2018.
This is significant because it is only the second time in the court’s history that an award for
reparations has been ordered, and it is the first time that the court has awarded reparations to
individual victims.

Judges assessed the extent of the physical, material, and psychological harm suffered by the
victims at a total monetary value of approximately USD 3,752,620. However, the judges
recalled that the convicted person’s liability must be established in accordance not only to the
harm suffered but also to his participation in the crimes. Thus, on that basis, the judges set the
amount of Katanga’s liability at USD 1,000,000.

Therefore, it can be concluded that this remarkable judgment on the famous Katanga’s case is
a landmark one, and the recent awarding of compensation to the victims of the crimes has
restored the faith of the people in International Criminal Court, thus safeguarding their
natural human rights.