This week, Trial Chamber II at the International Criminal Court (ICC) heard arguments about an appropriate sentence following Germain Katanga’s conviction for war crimes and crimes against humanity in March. Three witnesses were called, and the parties and legal representative for victims presented their arguments.

The judges will issue the sentence on May 23, 2014 at 9:30 a.m.

Katanga is the former leader of an armed militia that became known as the Force de Résistance Patriotique en Ituri (FRPI, Patriotic Resistance Forces in Ituri). He was charged with war crimes and crimes against humanity committed during a February 2003 attack on Bogoro in the Ituri region of the Democratic Republic of the Congo (DRC).

The attack targeted a rival militia, the Union of Congolese Patriotics (UPC), as well as the predominantly Hema civilian population living in Bogoro. Ngiti soldiers—some of them children—descended on the village while most villagers were still sleeping. They proceeded to kill, rape, burn, and pillage, the chamber found.

Witness Testimony

A prosecution witness, the Chef de Groupment of Bogoro, testified that the community of Bogoro continues to suffer from the attack. The witness noted the presence of orphans who cannot attend school, physically handicapped people in the community, and people who are still traumatized from the attack. Some victims continue to live in physical pain from shrapnel that is still in their bodies, he said. The witness also testified that some of the infrastructure that was destroyed, including secondary schools, has not been rebuilt. This witness also testified that Hema and Ngiti are now living together in harmony in Bogoro.

The defense also called two witnesses. These witnesses testified about Katanga’s role in the peace process. The first witness testified that Katanga had helped with the demobilization process. Katanga took part in demobilization meetings and encouraged other combatants—including Hema soldiers—to demobilize in Aveba, Katanga’s village. Another witness described how Katanga assisted in efforts to free employees from an NGO who had been arrested and detained by a militia in Aveba. The witness, who met Katanga during meetings organized by the Commission for Peace in Ituri, told the judges that Katanga wanted Ituri to remain united and wanted all ethnicities, including Ngiti and Hema, to live together in peace.

Aggravating Circumstances

The prosecution requested a total sentence ranging from 22 to 25 years. The Prosecutor argued that the sentence needs to provide justice to the victims in Bogoro and serve as an effective deterrent for others.

The prosecution noted that the attack started in the early hours of the morning and targeted the civilian population, who were sleeping. The civilians were attacked with machetes and firearms, the prosecution said. The civilians were attacked and killed without distinction, the prosecution contended.

Katanga’s intervention made it possible for the militias to have the supplies they needed to successfully attack Bogoro, the prosecution argued. According to the prosecution, the manner of the attack meant that the civilians were bound to flee and leave their possessions. Without the strategy Katanga developed and without his provision of arms and ammunition, the Ngiti combatants would not have been able to successfully attack Bogoro, the prosecution argued.

The prosecution submitted the following aggravating circumstances:

• Abuse of power or official capacity: Katanga abused his power as the leader of the FRPI, the prosecution argued. In his capacity as a leader in Aveba, he received and distributed the weapons used in the attack. Beyond that, the prosecution submitted, his other actions in his capacity as a leader were carried out with the intent to wipe out the Hema.
• Defenselessness of victims: The prosecution noted the particular defenselessness of the victims, which included women, babies, and the elderly.
• Particular cruelty of the crimes: The prosecution argued that the particularly cruel nature of the crimes should be an aggravating factor. The prosecution pointed to the attackers encouraging the victims to come out of hiding before killing them as one example.
• Discrimination: The discrimination against the Hema should be considered an aggravating factor, the prosecution argued. The prosecution submitted that when discrimination is the basis of an action, it can impose a particular cruelty on the victims.

These factors should be considered by the judges as reasons to impose a more severe sentence on Katanga, the prosecution submitted.

The legal representative for victims made similar claims. He focused on the harm suffered by the entire community of Bogoro, which he said used to be a major commercial center that was thrown into poverty as a result of the attack. The legal representative for victims focused on three aggravating circumstances also raised by the prosecution: the vulnerability of the victims; the cruelty of the crimes; and the ethnic discrimination against the Hema.

Mitigating Circumstances

According to the defense, there are extensive mitigating factors that the chamber should rely upon in order to substantially reduce Katanga’s sentence. The defense focused on the fact that the chamber found Katanga guilty as an accessory to the crimes and found that he did not directly intend for the crimes to be committed. According to the defense, the finding of Katanga’s accessory role is very different from the theory of the case advanced by the prosecution during the trial (that Katanga was the mastermind behind the attack and participated in it himself). Being convicted as an accessory warrants a far less severe sentence than conviction as a principle, the defense argued. Indeed, the defense suggested, if the facts of the case had been known previously, it is unlikely the prosecution would have opened a case against Katanga.

The defense also argued that the judges should take into account the broader circumstances Katanga faced at the time. The defense focused on his relatively young age at the time of the attack, 24 years-old, and the ongoing conflict and need to protect his community from attacks.

Katanga’s active and sincere role in the peace process was also noted by the defense as a mitigating factor. The defense credited Katanga with the success of demobilization in Walendu-Bindi. The defense also highlighted witness testimony about the decency with which Katanga treated the local population.

The defense discussed the burden of the lengthy trial on Katanga and his family. The defense told the judges that Katanga supports a family of six children (three adopted, three biological), as well as his wife.

The time Katanga has spent in detention should be discounted from the sentence, the defense argued. This should include the two-and-a-half years he spent in detention in the DRC, on what the defense claims are spurious, but related, charges. Combined with the six-and-a-half years he spent in the ICC detention center, the defense argued, means he should have nine years reduced from his sentence.

Katanga also addressed the bench. He claimed that in providing arms and ammunition to the Ngiti militia, he had been helping the DRC “head of state” protect the population and physical integrity of the DRC.

“Who was I to keep the head of state from doing his duty to the country? We all know that he had a right to protect the safety of the population and the integrity of the state. […] If the majority found me guilty of being an accomplice, what is the prosecutor waiting for to bring the main perpetrator to justice?” Katanga stated.

Katanga also directly addressed the victims of the attack. He said he knows the pain endured by those that lost family members and friends and offered them his compassion.

“To the victims betrayed by those who we assisted in the past and who became their executioners: I think of them day and night,” Katanga concluded.