Chapter 4: The ICC‟s contribution to war crimes trials in the DRC
4.4 ICC Prosecution of war crimes launched in the DRC
4.4.3. The Germain Katanga and Mathieu Ngudjolo Case
The Trial has entered its final stages following the hearing of closing statements that took place on 25 and 26 August 2011.438
4.4.2.3 Assessment
This is the first trial relating to the DRC; it is therefore of the utmost importance in terms of case law for trials to come. Currently the process before the Trial Chamber is almost at an end; the different parties have made their pleadings and are waiting for the deliberations and judgment of the Trial Chamber.439
crime against humanity”;445 4) “inhumane treatment as a war crime”;446 5) “the war crime of using children under fifteen years to participate actively in hostilities”;447 6)
“sexual slavery as a crime against humanity”;448 7) “sexual slavery as a war crime”;449 and 8) “the war crime of intentionally directing the attack against the civilian population as such or against individual civilians not taking direct part in hostilities”.450
Germain Katanga (general of a brigade in the FRDC until his arrest in March 2005) as the highest FRPI commander, inter alia planned and lead with other members of the FNI & FRPI), the armed attack on February 2003 of Bogoro village, without any distinction being made between combatant and non-combatant, or of children (under the age required to participate in hostilities),451 which resulted in the murder of roughly 200 civilians, sexual abuse or enslavement, looting, civilian injuries, and the arbitrary arrest and imprisonment of civilians.452
Because the charges against Mathieu Ngudjolo are very similar, they are not repeated here; rather he is introduced as an individual.
Mathieu Ngudjolo was born in Bunia, Orientale Province on 8 October 1970. An alleged warlord, he is the founder, leader, and the highest commander of FNI. Before his arrest on 6 February 2008 he was serving in Bunia as a Colonel in FRDC453 = Forces Armées de la République démocratique du Congo: the armed forces of the DRC. As with Germain Katanga he is being prosecuted for being responsible for war crimes and crimes against humanity (see details above related to Germain Katanga).
445 Article 7 (1) (k) of the Rome Statute.
446 Article 8 (2) (a) (ii) or article 8 (2) (c) (i) of the Rome Statute.
447 Article 8(2) (b) (xxvi) of Rome Statute or article 8 (2) (e) (vii) of the Rome Statute.
448 Article 7 (1) (g) of the Rome Statute.
449 Article 8 (2) (b) (xxii) or article 8 (2) (e) (vi) of the Rome Statute.
450 Article 8 (2) (b) (i) or article 8 (2) (e) (i) of the Rome Statute.
451 Children under the age of fifteen years as required in Article 8 xxvi of the Rome Statute.
452 Under seal Warrant of arrest for Germain Katanga (note 438 above) 5.
453 Under seal Warrant of arrest for Mathieu Ngudjolo Chui, No.: ICC-01/04-02/07 issued on 6 July 2007, 7 available at http://www.icc-cpi.int/iccdocs/doc/doc453054.PDF, accessed on 12 June 2011.
4.4.3.3 State of the process
The Prosecutor requested the issue of warrants of arrests for Germain Katanga and Mathieu Ngoudjolo Chui respectively on 22 and 25 June 2007.These were issued by the Chamber on 2 July 2007 for Germain Katanga and on 6 July 2007 for Mathieu Ngujdolo Chui.454 Germain Katanga was arrested and surrendered on 17 October 2007 to the ICC, where he was heard by the Chamber for the first time on 22 October 2007. The Chamber expressed itself satisfied with the steps taken in the process and confirmed the hearing on 28 February 2008.455
Mathieu Ngudjolo was arrested in the DRC and surrendered on 6 February 2008 to the ICC, where he was heard for the first time on 11 February 2008 and it was announced that the confirmation hearing would be held on 21 May 2008.456
Initially filed in two parts, on 10 March 2008, the Chamber decided to join Germain Katanga and Mathieu Ngudjolo‟s cases and confirmed charges against them on 30 September 2008.457 They are being charged with being responsible for crimes against humanity and war crimes. After declining to confirm other charges against them “The chamber, unanimously commits Germain Katanga and Mathieu Ngudjolo to a Trial Chamber for trial on the charges as confirmed, pursuant to article 61 (7) (a) of the Statute”.458
4.4.3.4 Assessment
Currently the case is under process before the Trial Chamber. It is necessary to await the decision of Chamber before commenting further.459
454 For commentary, seeProsecutor v Germain Katanga and Mathieu Ngudjolo Chui, Decision on the confirmation of charges, No.: ICC-01/04-01/07 of 30 September 2008 para 39 and para 40 available at http://www.icc-cpi.int/iccdocs/doc/doc571253.pdf, accessed on 12 June 2011.
455 Ibidem para 42 and para 44.
456 Ibidem para 45 and para 47.
457 Ibidem para 48 and para 279.
458 Ibidem para 279.
459 A Senier „Introductory note to International Criminal Court: Prosecutor v Katanga and Chui’ in American Society of International Law’ (2010) (4) (1) 45-47.
4.4.4 The Bosco Ntaganda Case
The case will be firstly presented, following which the state of the process will be examined and lastly, the case will be assessed.
4.4.4.1 Presentation
Of Rwandan origin,460 Bosco Ntaganda allegedly worked in different armed groups in Ituri and North Kivu as Former Deputy Chief of the General Staff of the FPLC
=Forces Patriotiques pour la Liberation du Cong (Patriotic Forces for the Liberation of Congo) (prior to 8 December 2003), Chief of Staff of FPLC (on 8 December 2003), Commander of MRC= Mouvement révolutionnaire du Congo (Congo Revolutionary Movement) (2005),461 and Chief of Staff of the CNDP = Congress National pour la Defense du Peuple (National Congress for People Defence) (current).462
4.4.4.2 State of the process
A warrant of arrest was requested for Bosco Ntanganda on 12 January 2006.463 He is being prosecuted for war crimes committed during the armed conflicts (2002-2003) in Ituri. As one of high-ranking Commanders of Staff of the FPLC, where Thomas Lubanga Dyilo was allegedly the highest Commander, he is being prosecuted on almost the same charges as Thomas Lubanga Dyilo. Details relating to crimes allegedly perpetrated by Bosco Ntaganda are to be found in the case details of Thomas Lubanga Dyilo presented above.
460 Under seal Warrant of arrest for Bosco Ntaganda, No.: ICC-01/04-02/06 issued on 22 August 2006, 5 available at http://www.icc-cpi.int/iccdocs/doc/doc305330.PDF, accessed on 10 June 2011.
461 Ibidem.
462 „Situation in the Democratic Republic of the Congo‟ Available at http://www.icc-
cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/, accessed on 10 May 2011.
463 Under seal Warrant of arrest for Bosco Ntaganda (note 460 above).
4.4.4.3 Assessment
Considering the nexus between Thomas Lubanga Dyilo and Bosco Ntaganda, it should have been possible for the cases to be joined, as in the case of Germain Katanga and Mathieu Ngudjolo. Unfortunately, the procedure triggered against Bosco Ntaganda remains paralyzed, due to political reasons.464
Although a warrant of arrest was issued for Bosco Ntanganda on 22 August 2006, he remains free and the Congolese authorities seem to have no intention of arresting him or surrendering him to the ICC.465