A bid by defense lawyers to stop the prosecution of former militia leader Germain Katanga by Congolese military authorities has suffered a setback after the Presidency of the International Criminal Court (ICC) ruled against ordering a stop to the domestic trial.

The court Presidency determined on June 26, 2019 that Article 108 of the Rome Statute allows it to reconsider its decisions on criminal proceedings initiated by a state where a convicted person is serving their sentence. However, the Presidency found that Katanga had failed to demonstrate that his prosecution in the Democratic Republic of Congo (DRC) had violated his rights to adequate representation, an expeditious trial, and notification of the charges and evidence against him.

The Presidency judges said for reconsideration to have been appropriate, they needed to be satisfied that new arguments or facts, which could not have been known when the Presidency approved Katanga’s prosecution in the DRC, now undermine the ICC’s fundamental principles or procedures or affect its integrity, and revocation of approval for his prosecution is necessary to prevent an injustice.

Katanga, 41, was convicted by the ICC in March 2014 over war crimes and crimes against humanity committed in eastern DRC while he led a militia group known as the Force de Résistance Patriotique en Ituri (Patriotic Resistance Forces in Ituri). However, although he completed serving the 12-year prison term three-and-a-half years ago, he remains jailed in the DRC as he undergoes trial by the military court.

Last January, defense lawyer David Hooper asked the Presidency to order an end to Katanga’s prosecution in the DRC, withdraw the permission it offered to the local prosecution back in 2016, and order his immediate release. In November 2015, Katanga’s prison term was reduced by three years and eight months due to his good behavior, cooperation with the court, and “genuine dissociation” from his crimes, which meant his sentence would end on January 18, 2016.

In December 2015, the former militia leader was transferred to the DRC to serve the rest of his sentence from his home country but was instantly slapped with charges in the High Military Court in the capital, Kinshasa. In April 2016, the ICC Presidency approved the DRC’s request to prosecute Katanga for war crimes and crimes against humanity after concluding that the proposed domestic prosecution would not undermine fundamental principles of the Rome Statute or otherwise affect the integrity of the court.

At the time, the Presidency also found that the prosecution would be consistent with the fair trial rights contained in the DRC’s constitution and other relevant international instruments ratified by the country. Attempts by Katanga’s lawyers to appeal this decision failed when the ICC Appeals Chamber determined that it lacked jurisdiction over such decisions.

Article 108(1) of the Rome Statute provides that a sentenced person in the custody of the state of enforcement of their sentence shall not be subject to prosecution or punishment for any conduct engaged in prior to that person’s delivery to that state, unless such prosecution or punishment has been approved by the court at the request of that state.

In seeking a stop to the ongoing prosecution, Hooper said the DRC government had shown itself incapable of providing Katanga with the basic elements necessary for a fair trial. According to him, despite the lengthy passage of time there had been absolutely no progress in Ntaganda’s prosecution. He added that no evidential hearings had been held, and the last convening of the military court, “where nothing of note was done,” was in February 2018.

In their determination this week, however, the Presidency judges said they were satisfied with the Congo government’s explanations of the delays in the proceedings. They added that the interruptions experienced were mostly caused by incidents that may arise in the ordinary course of criminal proceedings. Furthermore, the judges noted that the national proceedings against Katanga had resumed in April 2019, following their suspension in January this year.

The Presidency termed as mere speculation the argument by Katanga that the new government in the DRC may not honor the pledge to not impose the death penalty on him, should he become eligible for such sentence.

Nonetheless, the Presidency asked the DRC government to fully assess Katanga’s financial situation to determine his eligibility for legal aid and to ensure that his right to legal assistance is fully respected. In the application filed earlier this year, Hooper said that in June 2016, Katanga informed Congolese military court judges that he did not have money to pay for a lawyer, and he applied for legal aid. However, he had not received any legal aid.

According to the Presidency, in response to Katanga’s request for the revocation of approval for the trial in Kinshasa, the DRC government indicated that Katanga had the means to pay legal fees. The Presidency has directed the court’s Registry to make public the submissions by the government.