Beginning tomorrow and lasting into next week, Trial Chamber II at the International Criminal Court (ICC) will hear closing arguments in the case against Germain Katanga and Mathieu Ngudjolo Chui. This is only the second case to reach this stage at the ICC and presents many “firsts” for the court. A briefing on the closing arguments can be found here.

Germain Katanga is the alleged commander of the Force de Résistance Patriotique en Ituri (FRPI, Patriotic Resistance Forces in Ituri) and Mathieu Ngudjolo Chui is the alleged former leader of the Front des Nationalistes et Intégrationnistes (FNI, National Integration Front). These two armed militias, largely from the Ngiti (FRPI) and Lendu (FNI) ethnicities, fought in the Ituri region of the Democratic Republic of the Congo (DRC).  Katanga and Ngudjolo are charged with seven counts of war crimes and three counts of crimes against humanity allegedly committed during an FRPI/FNI attack on the village of Bogoro on February 24, 2003. They deny all counts against them.

Bogoro was home to many ethnic Hema and housed a base of the rival UPC (Union of Congolese Patriots, the armed group led by recently convicted Thomas Lubanga). The prosecution claims that the attack was ethnically motivated in addition to being part of a military strategy to gain control of a key crossroads in Ituri.

Legal Issues Argued by the Prosecution

This trial has presented many novel legal issues. For the first time before the ICC, the cases against two accused were joined into one trial. The Trial Chamber considered this would be more efficient because much of the evidence against them overlaps and would not violate their rights to a fair trial.

This case is also important because it involves a mode of liability known as “indirect co-perpetration.” The prosecution does not allege that Katanga and Ngudjolo themselves physically committed all of the crimes. Instead, the prosecution accuses them of using their respective armed groups to carry out a joint plan to “wipe out” the village of Bogoro. Therefore, the prosecution had to prove that the accused committed the crimes “through other persons” under their command.

This is also the first ICC trial to deal with charges of sexual violence. During the attack, members of the FNI/FRPI armed groups allegedly raped civilians.  It is also alleged that they forced civilians into sexual slavery by force, threat of violence or death and/or detention. Women were purportedly kidnapped from Bogoro and taken to FNI/FRPI camps, where they were forced to become the “wives” of combatants. These women allegedly had to cook for and otherwise obey the commands of the combatants.

In its closing arguments, the prosecution is expected to argue that its witnesses have demonstrated beyond a reasonable doubt that Katanga and Ngudjolo are jointly responsible for these crimes. The prosecution will likely highlight the leadership role of the two defendants in their respective organizations, and argue that the evidence shows they played essential roles in carrying out the attack on Bogoro. The prosecution will probably focus on the ethnic aspect of the conflict and the plan to “wipe out” Bogoro and its Hema population.

The Defense Case

Both accused deny all charges against them. The defendants do not deny that atrocities were committed in Bogoro. However, they deny that they commanded the forces during the attack and argue that they were not in Bogoro on the day of the attack.

They also deny that they had a joint plan to destroy Bogoro and both claim that they did not meet the other until after the attack had already taken place. They claim that other armed groups, supported by the DRC government, planned the Bogoro attack.

Moreover, they both claim that they did not personally witness sexual violence and contend that neither of their militia forces used child soldiers. Katanga has admitted that there was only one child soldier at his camp in Aveba, who he says they helped demobilize.

Katanga and Ngudjolo have also argued on defense that the attack was not ethnically motivated. They also both drew clear distinctions between grassroots local defense groups—such as the FNI and FRPI—and armed military groups (such as the APC), which were backed by the Ugandan, Rwandan, or Congolese armies. The local defense forces were only involved in self-defense, they claimed, not in larger overall military strategy.

How to Follow the Closing Arguments

During closing arguments, the defense teams will likely stress arguments that Katanga and Ngudjolo did not plan or have essential roles in the attack. Moreover, they will likely argue that civilians were not the target of the attack, which they both claim was undertaken for military purposes against a UPC military base.

The hearing schedule is as follows:

Video-streaming, with a 30-minute delay, will be available in English and in French.  We will publish updates on the closing arguments of the parties in the coming days.