Jun
06

Katanga Witnesses Testify, then Seek Asylum

Three witnesses who testified for the defense in the International Criminal Court (ICC) cases against Germain Katanga and Matthieu Ngdolo Chui sought asylum in The Netherlands after their testimony.

According to the Katanga trial website,  the witnesses testified that the government of the Democratic Republic of Congo (DRC) was responsible for the Bogoro attack, one of the allegations against the accused.  The case raises difficult questions for the ICC and its obligations to protect witnesses.   The three claim that by testifying against the government of the DRC they have put themselves at risk, and cannot safely return to the DRC.  They have asked the court to keep them in The Netherlands until Dutch authorities rule on the asylum requests.

The court has an obligation to protect witnesses, but cannot provide asylum.  Returning the witnesses to the DRC if they would be harmed would clearly not be in keeping with the court’s obligation to protect witnesses, but there is a limit to how long the court could hold them in custody, and it has no place to put them that is not custody.

The registry and its Victim and Witnesses Unit is trying to determine whether the safety of the witnesses can be adequately guaranteed with a return to the DRC.  The witnesses were in DRC custody when brought to The Hague.  The question to be resolved is whether or not returning them to DRC custody puts them at greater risk.

The case against Katanga and Chui is the second ICC case to go to trial.  Katanga and Chui are accused of war crimes and crimes against humanity. Katanga is alleged to have been the commander of the Patriotic Resistance Force of Ituri, (FRPI) and Chui is alleged to have been the leader of the Nationalist Front of Integrationists (FNI) both fighting against the government of the DRC.

The indictment alleges that Germain Katanga and Mathieu Ngudjolo Chui allegedly jointly committed through other persons, within the meaning of article 25(3)(a) of the Statute:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

The trial began in November, 2009. The defense began presenting its case in April of 2011.

 

Apr
02

Katanga and Chui Begin Defense Case

Germain Katanga and Matthieu Ngdolo Chui began presenting their defense last week.  Katanga and Chui are alleged to have committed war crimes and crimes against humanity as the leaders of the Patriotic Resistance Force in Ituri (FPRI) in the Democratic Republic of Congo.

Katanga and Chui are accused in an indictment of the following crimes:

War crimes:

  1. using children under the age of fifteen to take active part in the hostilities, under article 8(2)(b)(xxvi) of the Statute;
  2. directing an attack against a civilian population as such or against individual civilians not taking direct part in hostilities under article 8(2)(b)(i) of the Statute;
  3. wilful killings under article 8(2)(a)(i) of the Statute;
  4. destruction of property under article 8(2)(b)(xiii) of the Statute;
  5. pillaging under article 8(2)(b)(xvi) of the Statute;
  6. sexual slavery under article 8(2)(b)(xxii) of the Statute.
  7. rape under article 8(2)(b)(xxii) of the Statute

Crimes against Humanity:

  1. murder under article 7(1)(a) of the Statute;
  2. rape under article 7(1)(g) of the Statute.
  3. sexual slavery under article 7(1)(g) of the Statute.

Katanga and Chui were brought before the court in February of 2008, their trial began in November of 2009.  The Katanga team has estimated that it would take 122 hours to present its defense witnesses and Chui team estimates 200 hours of court time.  According to the Katanga trial website, if the prosecution takes an equivalent amount of time to cross-examine the witnesses, then the defense case will require 644 hours of court time or about 16 months given the court’s schedule, roughly equivalent to the time the prosecution needed to present its case.

Katanga and Chui were the second case to go to trial at the International Criminal Court (ICC) in The Hague, Netherlands, following the case of Thomas Lubanga Dyilo.  The third case, Jean-Pierre Bemba Gombo from the Central African Republic, started trial in November 2010, another case, against Abdallah Banda and Saleh Jerbo from Darfur has completed confirmation of charges and is now headed for trial.  The latest case, against Callixte Mbarushimana is scheduled for confirmation of charges in July.

Mar
08

Pre-Trial Chamber Confirms Charge in Darfur Case

Pre-Trial Chamber I of the International Criminal Court (ICC) has issued a finding confirming the charges against Abdallah Banda and Saleh Jerbo.  The court statement said the court  found that Banda and Jerbo should stand trial for three war crimes:

  • violence to life and attempted violence to life;
  • intentionally directing attacks against personnel, installations, material, units and vehicles involved in a peacekeeping mission; and
  • pillaging.

The court included the following information supporting the charges:

These crimes were allegedly committed during an attack led by Abdallah Banda and Saleh Jerbo and other commanders and directed against the compound of the African Union Mission in Sudan at Haskanita on the evening of 29 September 2007. The Chamber found substantial grounds to believe that the attack was directed to personnel, installations, material, units and vehicles involved in a peacekeeping mission in accordance with the Charter of the United Nations which were entitled to the protection afforded to civilians and civilian objects.

Banda and Jerbo appeared voluntarily before the court, following the lead of Bahar Idriss Abu Garda who also appeared voluntarily, but won a dismissal at the confirmation of charges hearing.  The court has also issued indictments against the President of Sudan, Omar Al-Bashir, the Minister of Humanitarian Affairs, Ahmad Harun, and Janjaweed leader Ali Kushayab.  The situation in Darfur was the first case referred to the ICC by the United Nations Security Council.  The second, Libya, was referred last week.

To date, Sudan has refused to turn the indictees over to the court, so the only ones who have appeared are the three who have appeared voluntarily.

The seventy five page decision is available here. There are currently three cases in trial stage at the ICC, the case against Thomas Lubanga Dyilo, a joint case against Matthieu Ngdolo Chui and Germain Katanga, and the case against Jean Pierre Bemba Gombo.  Another accused, Callixte Mbarushimana has recently arrived in The Hague. In addition to the Sudan accused at large, there is one accused from the Democratic Republic of Congo still at large and three from Uganda who have not yet appeared before the court.

There may be other indictments that have not yet been made public.  Indictments in the post-election violence in Kenya case were also released today.

Jul
15

Trial Chamber I Orders the Release of Thomas Lubanga

Trial Chamber I of the International Criminal Court (ICC) has ordered the release of Thomas Lubanga Dyilo, based on the court’s order last week to stay the proceedings.  That order, blogged about here, found that the prosecutions refusal to obey court orders to disclose the identity of witnesses to the defense prevented a fair trial of Mr. Lubanga.  The International Criminal Law Bureau reported on the release order here. The court had previously admonished the prosecution for late disclosure as described here.

The order of release will not take effect until the 5-day appeal period expires, if the prosecution files its appeal within five days, the detention may continue pending the resolution of the appeal.  The ICC press release, available here, states: “According to the judges, an accused cannot be held in preventative custody on a speculative basis, namely that at some stage in the future the proceedings may be resurrected.”

Lubanga was the reputed leader of the Union of Congolese Patriots in the Democratic Republic of Congo.  He is charged with war crimes including the conscripting and using of child soldiers.  Lubanga was the first person to be brought before the court and made his first appearance in 2007.  His trial commenced in The Hague in January, 2009, and the defense began presenting its case in January, 2010. The Lubanga trial has previously been suspended several times, twice  for transcription errors, for the appeals chamber to consider adding additional charges, and for the prosecution to comply with disclosure orders.  It appears the court has no intention of lifting the current stay.

The other case currently in trial, Germain Katanga, and Matthieu Ngdolo,Chui also from the Democratic Republic of Congo has not been stayed.  It is not clear what effect the ruling will have on that case, or on the other case awaiting trial, Jean-Pierre Bemba Gombo from the Central African Republic.

Feb
26

Prosecution Asks to Declare its Witness as Hostile in Katanga and Chui Trial

At the trial of Germain Katanga and Matthieu Ngdolo Chui for war crimes and crimes against humanity at the International Criminal Court in The Hague, the prosecution asked that its witness be declared hostile.  The prosecutor reportedly noticed “inconsistencies” and asked the court to declare the witness as hostile.  The court determined that the inconsistencies could be resolved without declaring the witness as hostile and allowed questioning to continue.  A detailed report on the testimony is available here.

Katanga and Chui are the second case to go to trial at the International Criminal Court in The Hague, Netherlands.  They are charged with war crimes and crimes against humanity in the Democratic Republic of Congo.  They are accused of attacking civilian targets, rape, pillaging, using child soldiers and sexual slavery among other charges.  Katanga and Chui had led rebel armies in the Democratic Republic of Congo, but had signed peace agreements with the government of the DRC and had joined the Congolese army at the time they were arrested and brought to The Hague.  Their trial began on November 9, 2009.

The situation in DRC was referred to the ICC by the Congolese government.

Feb
21

Lubanga Trial Takes Two Week Break

The International Criminal Court trial of Thomas Lubanga Dyilo was suspended this week for a two week trip for the defense to the Democratic Republic of Congo for important “research,” presumably this means further investigation into the previous allegations that prosecution witnesses lied  or were paid to lie about being child soldiers.  The trial was earlier suspended on Tuesday because of noted differences in the official English and French transcripts.  The reporting from the Open Society Institute, available here, does not make clear whether or not the court had arrived at a resolution of the transcription problem.

The court also ruled that the Lubanga defense could share information on its investigation with the defense team of Germain Katanga, whose trial, along with co-defendant Matthieu Ngdolo Chui was the second trial to start at the ICC. The trial opened on November 26, 2009, and my summary of the case and its opening is available here. Lubanga is the first person to face a trial at the ICC.  Lubanga, Katanga, and Chui were rebel leaders in the Democratic Republic of Congo, and are charged with war crimes, and crimes against humanity.  There are four witnesses who are scheduled to testify for the prosecution in both cases, and the defenses wished to share the information they had collected in their investigations.  Judge Adrian Fulford ruled there was nothing to prevent such sharing between the teams.

Lubanga is accused of using child soldiers in his Union of Congolese Patriots, and Katanga and Chui are charged with  using child soldiers, attacking civilian targets, destruction of property, rape and sexual slavery as war crimes, they are also alleged to have committed crimes against humanity, including murder within the court’s jurisdiction, rape and sexual slavery. Another accused from the DRC, Bosco Ntaganda is still at large.

In the cases of the Sudan, one accused, Bahar Idriss Abu Garda voluntarily appeared at the court, and the charges against him were not confirmed.  A summary of that action is available here.  Three more accused from Sudan remain at large.  In the Uganda case there are four accused, all of whom are still at large.  In the case involving the Central African Republic, there is one accused, Jean-Pierre Gemba, whose trial is expected to begin April 27, 2010.

The International Criminal Court sits in The Hague, Netherlands and is intended to be a permanent court to hear cases of war crimes, crimes against humanity, and genocide when those cases are not resolved by national authorities.  Thomas Lubanga was the first person brought before the court, he was arrested in 2007, and his trial began in January 2009, the defense began presenting its case in January 2010.  There are also victims who have been given a limited right to participate in the case, and then to seek reparations if they can establish their right to do so.

Feb
08

International Criminal Court Finds For Abu Garda

The Interational Criminal Court, pre-trial chamber I today ruled that the Office of the Prosecutor had not provided sufficient evidence to continue the case against Bahar Idriss Abu Garda for trial.  Abu Garda was the first case from the Sudan to come before the court. He appeared voluntarily with counsel in May of 2009 and has been in The Hague, though not in custody since then.

Abu Garda was charged with three war crimes, violence to life, directing attacks against peacekeeping forces, and pillaging.  The court found there was not sufficient evidence presented at the confirmation of charges hearing to require a trial.

The International Criminal Court uses a three stage process, a warrant and indictment can issue if there are “reasonable grounds” to believe the person committed war crimes or crimes against humanity.  Once the accused is before the court, then there is a confirmation of charges hearing where the accused can participate and challenge the evidence, if after that hearing the court determines there is “substantial grounds” to believe the person is guilty of the crimes charged then a trial may be held where the prosecutor must prove the case beyond a reasonable doubt.

It was at this second stage where the court found for Abu Garda and essentially dismissed the charges.  This hearing, the equivalent of a probable cause hearing in an American court case may end the case against Abu Garda, although the prosecutor has the right to appeal the determination, and may ask to reopen if they can provide new evidence of Abu Garda’s involvement or command responsibility for the alleged war crimes.

The court’s press release regarding the decision is available here, the order itself is here, and the court’s fact sheet on the case is located here.  Abu Garda is the fifth person brought to the court to face charges of war crimes, and the first to win the confirmation of charges hearing.

The court has previously confirmed charges against Thomas Lubanga of the Democratic Republic of Congo and against Germain Katanga and Matthieu Ngdolo Chui also of the Democratic Republic of Congo.  Lubanga’s defense team is currently presenting its case, and Katanga and Chui are being tried together, their trial recently resumed.  The court has also confirmed the charges against Jean-Pierre Bemba Gombo of the Central African Republic who is awaiting the start of trial.

The president of Sudan, Omar Hassan Ahmad Al Bashir and a cabinet official, Ahmad Harun have also been indicted by the court for war crimes as has a rebel leader, Ali Kushayb.  None of them has yet appeared before the court to face the charges.

Jan
31

Nicholas Kristof on War Crimes in The Congo

Nicholas Kristof of the New York Times posted in his column today stories of the horrible war crimes being inflicted in the Democratic Republic of Congo.  The column, available here, describes the rape of young girls, their being abducted to serve as sex slaves for the rebel armies, and the terror the civilians live in because of the ongoing civil war.

Thomas Lubanga of the DRC is currently on trial at the International Criminal Court for using child soldiers in the conflict.  Charges of rape, abduction and child soldiers were considered, but the court determined the attempt to amend the case was too late and the prosecution was limited to the facts alleged at the confirmation of charges hearing.  Recently the trial resumed with the defense case, and some victims who are seeking reparations testified in support of their case.

The Germain Katanga and Matthieu Ngdolo Chui case from the DRC, the second ICC case to go to trial also arose from the Democratic Republic of the Congo.  Katanga and Chui are charged with directing attacks on civilian targets.

The girls attacked in these cases may be eligible to seek reparations from the warlords convicted at the ICC, and funded by the Association of State’s Parties.  Persons seeking reparations must make application to the court and have a right to legal counsel  at court expense to pursue their claims.

Jan
26

Second ICC trial resumes

The trial of Germain Katanga and Matthieu Ngdolo Chui resumed today at the International Criminal Court in The Hague.  This is the second ICC case to proceed to trial.  Katanga and Chui are charged with war crimes and crimes against humanity as part of the conflict in the Democratic Republic of Congo.  They are charged specifically with an attack on the Bagoro village.

War crimes include attacks by armed combatants on civilians, targeting civilians rather than other combatants is a focus of current war crimes prosecutions.  The Katanga and Chui trial was delayed in December when one of the three judges was injured in a car accident.  The court’s press release on the resumption is available here.

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