Three years after the designated date for his release after serving an International Criminal Court (ICC) sentence, former militia leader Germain Katanga remains in a Congolese jail. His trial by a Congolese military court on charges additional to those for which he was convicted in The Hague has stalled, and now his lawyer wants the ICC Presidency to order an end to his prosecution and to order his immediate release.

In May 2014, Katanga was sentenced to 12 years imprisonment following his conviction earlier that year. In November 2015, ICC appeals judges reduced his sentence by three years and eight months because of his continuous cooperation with the court and his genuine dissociation from his crimes. The new date for completion of his sentence was set to January 18, 2016. On December 19, 2015, Katanga was handed over to Democratic Republic of Congo (DRC) authorities in order to serve the remainder of his sentence from his home country, which the Presidency had designated as the state of enforcement of his sentence.

The ICC Presidency approved Congo’s request to prosecute Katanga before the High Military Court in Kinshasa for war crimes and crimes against humanity in an April 2016 decision. The Presidency concluded that the proposed domestic prosecution would not “undermine fundamental principles or procedures of the Rome Statute or otherwise affect the integrity of the Court” and would be consistent with the fair trial rights contained in Congo’s constitution and other relevant international instruments ratified by the country.

In a filing made on January 30, 2019, Katanga’s defense lawyer David Hooper says he wants the Presidency to revoke its permission to the DRC to prosecute Katanga and to order a discontinuation of proceedings against him. “Despite the subsequent lengthy passage of time there has been absolutely no progress in that prosecution,” argues Hooper. He adds, “No reasonable Presidency would have given its approval to the DRC to prosecute had it known the consequences of the decision.”

In response, Judge Chile Eboe-Osuji, who heads the Presidency, invited the Congolese government to provide views on all matters raised by Katanga’s lawyer.  These include whether the Presidency may reconsider a decision taken under Article 108 of the Rome Statute and providing the Presidency with information as to the progress and current state of the proceedings against Katanga, including the manner in which the fair trial rights of Katanga are being safeguarded.

The original decision allowing Congolese authorities to try Katanga was noted as important because it was the first time the ICC interpreted Article 108 of the Rome Statute. This article requires a country that has custody of a sentenced person to seek approval from the court if it intends to prosecute that person for “any conduct engaged in prior to that person’s delivery to the state of enforcement.”

However, Hooper says subsequent events demonstrate that this decision was “manifestly unsound and its consequences manifestly unsatisfactory,” as the DRC has shown itself incapable of providing Katanga with the basic elements necessary for a fair trial.

Katanga, a former leader of the Force de Résistance Patriotique en Ituri (Patriotic Resistance Forces in Ituri) armed militia, was convicted by the ICC in March 2014 for being an accessory to war crimes and crimes against humanity stemming from a February 2003 attack on civilians in Bogoro village in DRC. The crimes charged in Congo are for alleged conduct before his arrest by the ICC and are unrelated to the Bogoro attack.

The defense claims the military court handling the matter has not progressed the case and has convened irregularly without addressing the substance of the issues. No evidential hearings have been held, and the last convening of the military court, “where nothing of note was done,” was in February 2018. “For the past year there has not even been a constituted court as two of the judges have withdrawn from the case. The distinct impression is that the DRC is unable or unwilling to progress the case against him, preferring to leave him in custody without trial,” said Hooper.

According to him, while the allegations against Katanga concern events in Ituri similar to those charged at the ICC, to-date the Congolese prosecutor has not conducted proper investigation in Ituri to support the allegations. He added that Katanga’s case has been joined to those of Emery Goda Supka, Floribert Ndjabu Ngabu, and Mbodina Iribi Pitchou, who have been in detention for 13 years but remain untried.

Further, the defense says Katanga has not been provided with sufficient material that shows the nature of the charges and evidence against him. This, it contends, violates Article 67(1)(a) of the Rome Statute, Article 6(3)(a) of the European Convention on Human Rights, and Article 9(2) of the International Covenant on Civil and Political Rights.

“A purported ‘dossier,’ for which Mr. Katanga had to pay to gain access, does not relate to his involvement in the crimes charged but is composed of documents gathered in the past, largely by NGOs [Non-Government Organizations], and[is] unrelated to the DRC proceedings,” said Hooper. He added that this dossier constitutes no case and relates to events and people that do not concern Katanga.

Katanga’s lack of adequate representation has also been raised. Hooper said that in June 2016, Katanga informed military court judges that he did not have money to pay for a lawyer, and he applied for legal aid. However, to-date he has not received any legal aid.

Katanga’s lawyers attempted to appeal the decision to allow Congo to try the former militiaman in 2016, but their attempt failed when the ICC Appeals Chamber determined that it lacked jurisdiction over such decisions. Nonetheless, the Appeals Chamber said it considered that “there is merit in the Assembly of States Parties addressing whether the Court’s underlying legal texts should be amended so as to permit appellate review in relation to the decision taken under article 108 of the Statute.”

In the latest filing, Hooper contends that while the Rome Statute is silent on the matter, ICC chambers have recognized their inherent power to reconsider their own decisions at the request of one of the parties or on their own volition. He recalled that in the Lubanga case, Trial Chamber I noted that “the reason for permitting the exercise of this discretion is, not least, that it maintains public confidence in the criminal judicial system.”

In the Dominic Ongwen trial, he notes, Trial Chamber IX has repeatedly stated, “reconsideration is an exceptional measure which should only be undertaken if a clear error of reasoning has been demonstrated or if it is necessary to prevent an injustice. New facts and arguments arising since the issuance of the decision might be taken into consideration.”

Hooper argues that although the court’s rules explicitly state that certain decisions of the Presidency are final, no such reference of finality is made in respect of Article 108.  According to him, since there is no opportunity to appeal to the Appeals Chamber or elsewhere, the only remedy where a Presidency decision is shown by subsequent events to be manifestly unsound and its consequences manifestly unsatisfactory, lies in the Presidency’s ability to reconsider its own decision.