4.2 THE DEMOCRATIC REPUBLIC OF CONGO CASES
4.2.2 Germain Katanga and Mathieu Ngudjolo Chui’s Case
4.2.2.5 The need to investigate and formulate cases properly
The Ngudjolo and Katanga cases shows how ineffective investigation carried out by the OTP resulted in weak evidence from which acquittals of the accused for crimes of SGBV resulted.
The ICC judges expressed their displeasure at the OTP’s investigations. In Katanga’s case, the observations made by the Trial Chamber with respect to Ngudjolo were along the same lines.831
826 Prosecutor v Germain Katanga ‘Notice of discontinuance of prosecution’s appeal against the article 74 judgment of conviction of Trial chamber II dated 7 March 2014 in relation to Germain Katanga’ (25 June 2014) ICC-01/04- 01/07.
827 Global Justice ‘Victims disappointed as prosecution and defence drop Katanga appeals’ available at www.coalitionfortheicc.org/.../victims-disappointed-prosecution-and-defense-drop-ka (accessed on 25 July 2016).
828 Rome Statute, art 110 provides for the review by the ICC concerning a reduction of sentence. In Katanga’s case, since he had served two thirds of his sentence on 18 September 2005, his sentence had to be reviewed. Article 110(3) provides that:
[w]hen the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.
In such a situation, article 110(4) provides what factors the ICC judges should take into account, when considering a reduction in a convicted person’s sentence. Rule 223 of the Rules of Procedure and Evidence provides the criteria, which should be taken into account by the judges of the ICC.
829Prosecutor v Germain Katanga ‘Decision on the review concerning reduction of sentence of Mr. Germain Katanga’ (13 November 2015) ICC-01/04-01/07.
830 Yahoo News ‘Ex-warlord Katanga back on trial for war crimes in DR Congo’ (6 May 2016) available at https://www.yahoo.com/news/ex-warlord-katanga-back-trial-war-crimes-dr-192549793.html (accessed on 25 July 2016).
831Prosecutor v Mathieu Ngudjolo Chui ‘Judgment pursuant to article 74 of the Statute’ at paras 117 -120.
Prosecutor v Germain Katanga‘Judgment pursuant to article 74 of the Statute’ at paras 59 – 62.
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Therefore, Katanga’s acquittal of SGBV was not surprising, given that the prosecutor used the same evidence as in the case in which Ngudjolo was acquitted.832
Although the inclusion of gender-sensitive provisions in the Rome Statute was due to the lessons learnt from previous tribunals, such as the mistakes made by the ICTR in its investigation and prosecution of SGBV,833 the ICC repeated the mistakes of those tribunals. The flaws in the OTP’s investigation, for example, were due to insufficient planning834 and short-focused scrutiny.835 The OTP’s low-cost approach in its investigations in situation states resulting in its minimal field presence, and its preference for intermediaries over its own staff and failure to develop a partner-based relationship with them were problematic. Ultimately, staff were overburdened and the use of inexperienced investigators, who were nationals of these situation states, compounded the problem.836 In particular, sexual and gender-based cases such as in the Njudjolo case have highlighted the importance of obtaining forensic medical evidence to strengthen the prosecution’s case837 − not easily obtained due to the stigma attached to such crimes. The OTP’s concern for its safety in war-torn areas this has hindered it from obtaining quality evidence.838
The ICC’s nine strategic goals for 2016 to 2018 included the OTP improving the quality of its preliminary examinations, investigations and prosecutions, showing that it has taken into consideration previous mistakes made.839 The areas, which the OTP has given priority to, are:
1. Closing the time gap between events on the ground and the office’s investigations by creating partnerships with first responders, creating a gateway for crime reporting and working with partners to preserve relevant information on the internet.
2. Increasing its ability to collect different forms of evidence other than witness statements through continually enhancing its scientific and technology-related capabilities. Additionally, it
832DR Congo massacre may alter international law available at
http://www.Aljazeera.com/indepth/features/2014/02/dr-congo-massacre-may-alter-international-law- 2014215122427499229.html (accessed 17 March 2016).
833 Oosterveld ‘Gender-sensitive justice and The International Criminal Tribunal for Rwanda’ at 125-126.
834 Sacouto and Cleary ‘The Importance of effective investigation of sexual violence and gender-based crimes at the International Criminal Court’ at 341-342.
835 Christian M De Vos ‘Investigating from afar: The ICC’s Evidence Problem’ (2013) 26 Leiden Journal of International Law 1009 at 1011.
836 See generally Idem at 1009 - 1024
837 Sucharita S K Varansi and Kelly Blenhoff ‘Regardless of outcome, Katanga verdict will be a significant step forward’ available at http://www.physiciansforhumanrights.org>Blog (accessed 17 March 2016).
838 Vos ‘Investigating from afar: The ICC’s Evidence Problem’ at 1019.
839 ICC-OTP, Strategic Plan| 2016-2018 (6 July 2015) para 55 available at https://www.icc-cpi.int/.../070715- OTP_Strategic_Plan_2016-2018.pdf (accessed 11 November 2016).
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will develop further partnerships to support this strategic need, so that in-house capacity is only developed where it is justified.
3. Continuing to strengthen the Office’s analysis function through the further roll-out of the Factual Analytical Database, the upgrade of analytical software, the roll-out of the Gender Analysis, and though strengthening the use of analytical products in investigative decision- making for planning, case selection and case review.
4. Enhancing the financial investigative capabilities.
5. Continuing to review investigative standards and to develop certification possibilities for staff.
6. Continuing to increase the Office’s investigative field presence.’840 4.2.3 The Callixte Mbarushimana Case.
In contrast to the other cases relating to gender-based crimes in the Ituri region of the DRC, the case against Callixte was for crimes within the Kiva province of the DRC. A warrant was issued for Callixte’s arrest on 28 September 2010 by Pre-Trial Chamber I for six counts of war crimes and five counts of crimes against humanity which occurred in the Kiva province of the DRC between January 2009 and 20 August 2010, the date of the prosecution’s application for the warrant.841 These crimes; were committed by the Forces democratiques pour la liberation du Rwanda – Forces Combattantes Abacunguzi (FDLR), of which Callixte was their de facto leader and first vice president for a brief period in 2010.842 Callixte was charged with being criminally responsible for these crimes under article 25(3)(d) of the Rome Statute843 in that he ‘knowingly and intentionally contributed ‘in any other way’ ie in a way other than the ones listed in article 25(3)(a),(b) and (c) of the Statute, to the commission of the war crimes and crimes against humanity.’844 Both the war crimes and crimes against humanity counts contained charges of rape and other gender-based crimes such as torture in the form of genital mutilation.845 On 11 October 2010 Callixte was arrested French authorities in France, where he was a refugee.846 He was subsequently, transferred to the ICC detention centre on 25 January 2011.847 At the confirmation of charges hearing from 16 to 21 September 2011 a majority of the Pre-Trial Chamber, whilst concluding that whilst there were ‘substantial grounds to believe that acts amounting to war
840 Ibid.
841Prosecutor v Callixte Mbarushimana ‘Warrant of arrest for Callixte Mbarushimana’ ICC-01/04-01/10 (28 September 2010).
842 Idem at para 8.
843 Idem.
844 Prosecutor v Callixte Mbarushimana ‘Decision on the confirmation of charges’ ICC-01/04-01/10 (16 December 2011) para 8.
845 Idem at paras 123 and 129.
846 The warrant of arrest issued against Callixte was unsealed on 11 October 2010.
847Prosecutor v Callixte Mbarushimana ‘Decision on the confirmation of charges’ at para 15.
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crimes were committed on 5 out of the 25 occasions alleged by the Prosecution’, declined to confirm the charges against Callixte,.848 The Pre-trial Chamber declined to confirm the charges of rape as a war crime in Manje as based on hearsay evidence of a Human Rights Watch Report.849 Even though this was the only piece of evidence which could not be corroborated, the Chamber held that it was insufficient ‘to establish substantial grounds to believe that rape under article 8(2)(e)(vi) of the Statute was committed during the attack in Manje’.850 Charges of rape in Mianga were not confirmed for the same reason, namely that the evidence of the witness who testified to the commission of rape was hearsay and could not be corroborated.851
Furthermore, the contextual elements of crimes against humanity had not been satisfied, taking into account all the evidence and ‘the several discrepancies between the prosecution's allegations and the evidence submitted’.852 It then held that it was not satisfied that ‘the threshold of substantial grounds to believe that the FDLR pursued the policy of attacking the civilian population’ had been met.853 It also noted ‘that the policy alleged by the prosecution to create a
“humanitarian catastrophe” could not be inferred to the requisite threshold, of War Crimes’.854 Consequently, the evidence submitted was not sufficient for it ‘to be convinced, to the threshold of substantial grounds to believe, that such acts were part of a course of conduct amounting to
“an attack directed against the civilian population”, within the meaning of article 7 of the Statute’.855 The Pre-Trial Chamber noted the importance of the prosecution clearly stating the contents of the charges and statement of facts brought against an accused and the effect of failing to do so. ‘The charges and the statements of facts in the Document Containing the Charges’ had
‘been articulated in such vague terms that the Chamber had serious difficulties in determining, or could not determine at all, the factual ambit of a number of the charges’.856 For example the prosecution failed to clearly characterise certain SGBCs – crimes of violent attacks, which were charged as, ‘rape, torture and mutilation and other forms of sexual violence, forcing family members to witness the perpetration of rape, sexual violence and atrocities on their loved ones
848 Idem para 264.
849 Ibid.
850 Idem at para 194.
851 Idem at paras 220 -221.
852 Idem para 263.
853 Ibid.
854 Ibid.
855 Idem para 264.
856 Idem para 110.
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and an incident in which a number of women were allegedly captured, raped, tortured and killed by the FDLR’.857 The Chamber also expressed displeasure at the techniques used in the OTP’s investigations as being unprofessional and impartial when questioning witnesses, which affected the probative value of the evidence.858 The techniques were contrary to the provisions of the Rome Statute which provided for the use of appropriate measures ‘to ensure the effective investigation and prosecution of crimes’.859 This involved giving respect to ‘the interests and personal circumstances of victims and witnesses, including [their] gender’ and taking into account ‘the nature of the crime, in particular when it involves sexual violence, gender violence or violence against children’.860 In addition to this, there should be respect for the rights of such persons.861
In assessing Callixte’s criminal liability under article 25(3)(d) of the Rome Statute, the Chamber stated the importance of the accused making ‘a significant contribution to the crimes committed or attempted’.862 ‘The extent of the person’s contribution is determined by considering the person’s relevant conduct and the context in which this conduct is performed.’863 The Chamber also concluded that a ‘25(3)(d) liability can include contributing to a crime’s commission after it has occurred, so long as this contribution had been agreed upon by the relevant group acting in common purpose with the suspect prior to the perpetration of the crime.’864 The Chamber majority held that it was ‘unable to be satisfied to the threshold of substantial grounds to believe that the FDLR pursued the policy of attacking the civilian population’.865 It took the view that:
. . . based on the analysis of the evidence as a whole, there are likewise not substantial grounds to believe that the FDLR leadership constituted “a group of persons acting with a common purpose”
857 Ibid.
858Prosecutor v Callixte Mbarushimana ‘Decision on the confirmation of charges’ at para 51.
859 Rome Statute, art 54(1)(b).
860 Ibid. Also, Rome Statute, art 68(1). See also Rule 88 Rules of Procedure and Evidence which provides that:
‘Taking into consideration that violations of the privacy of a witness or victim may create risks to his or her security, a Chamber shall be vigilant in controlling the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying particular attention to attacks on victims of crimes of sexual violence.’
861 Rome Statute, art 54(1) (c).
862 Prosecutor v Callixte Mbarushimana ‘Decision on the confirmation of charges’ at para 285. See section 4.2.2.3 above where the five constituents elements which must be proved under article 25(3)(d)(ii) are spelt out.
863 Ibid.
864 Idem para 287.
865 Idem para 291.
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within the meaning of article 25(3)(d) of the Statute, in particular in light of the requirement that the common purpose pursued by the group must have at least an element of criminality. 866
Thus the prosecution was not able to prove that Callixte was individually responsible under article 25(3)(d) of the Rome Statute for crimes committed by the FDLR.867
The prosecutor appealed the impugned decision on four grounds, and the Appeals Chamber granted leave to appeal three of these grounds, the first two of which were ‘intrinsically connected’.868 In examining these grounds, the Appeals Chamber considered ‘whether the Pre- Trial Chamber erred in finding that it may evaluate the credibility of witnesses and that it may resolve inconsistencies, ambiguities or contradictions in the evidence for the purpose of determining whether to confirm the charges against a person’. The Appeals Chamber’s found that as an issue of law the Pre-Trial Chamber could ‘evaluate ambiguities, inconsistencies and contradictions in the evidence or doubts as to the credibility of witnesses’ when considering the application of article 61 of the Rome Statute.869 The third ground of appeal concerned the interpretation of article 25(3) (d) of the Rome Statute, under which the accused had been charged. The prosecutor submitted that the misinterpretation of this article by the Pre-Trial Chamber resulted in a misapplication of the correct legal standard which materially affected the outcome of the Pre-Trial Chamber’s decision.870 This resulted in an error of law.871 The Appeals Chamber held that even if it agreed with the prosecution’s submission, it would not reverse the decision, as the alleged error did not materially affect the decision.872 The Appeals Chamber confirmed the Pre-Trial Chamber’s decision. Judge Fernandez de Gurmendi appended a separate opinion on the third ground of appeal.