Thursday, December 24, 2015

The Katanga Case: focus turns to domestic prosecution

Human Rights Watch's attention to military court proceedings continues to be highly impressive. The organization has just issued this statement concerning the prospect of domestic military justice proceedings against Germain Katanga, a former Democratic Republic of Congo officer, whose sentence in an ICC case is soon to expire. Also facing prosecution are three defense witnesses from the ICC case. But will the new DRC proceedings be fair? From the HRW statement:
Katanga’s lawyers said they understand that the Congolese military justice system intends to proceed with these outstanding criminal charges against him and recently requested the cooperation of the United Nations peacekeeping mission in Congo, MONUSCO, and the ICC in providing information. In accordance with the prohibition against “double jeopardy,” so long as the underlying allegations are not the same as those already litigated at the ICC, the national judicial system can pursue further charges, even if an individual has been tried at the ICC for other alleged crimes.
Given his military rank, Katanga will be tried before the High Military Court in Kinshasa. Three other men, Floribert Njabu, Sharif Manda, and Pierre-Célestin Mbodina, who appeared as witnesses in Katanga’s defense at the ICC, face charges in the same case and are waiting for their case to go forward before that court. There is no right to appeal High Military Court decisions, violating international fair trial standards under article 14 of the International Covenant on Civil and Political Rights, Human Rights Watch said.
The ICC trial against Katanga uncovered evidence similar to Human Rights Watch findings about the role of high-ranking military and political officials in Congo and Uganda in providing strategic direction, and financial and military support to the FRPI and other militias during the Ituri conflict in 2002 and 2003. Several witnesses described a secret military structure coordinated by the Congolese army that planned military operations and provided weapons and financial support to local militias in Ituri allied to the Congolese army. At least one of the three ICC witnesses testified about President Joseph Kabila’s role in backing rebel forces at the time of the Ituri conflict.
After completing their testimony at the ICC in May 2011, Njabu, Manda, and Mbodina applied for asylum in The Netherlands, citing risks for their safety and human rights in Congo because of their testimony. This created a host of complex legal problems for the ICC and the Dutch and Congolese governments.
 The three witnesses were returned to Congo in July 2014 after The Netherlands denied their request for asylum. Katanga did not request asylum in The Netherlands, his lawyers told Human Rights Watch.
“Important information came out in Katanga’s ICC trial about the role of senior Congolese officials in financing and supporting the militias in Ituri,” [HRW's Géraldine] Mattioli-Zeltner said. “It’s critical for national proceedings against those who revealed information at the ICC not to turn into a trial based on political vengeance.”
Before the deportation of the three witnesses, Human Rights Watch expressed serious concerns to the Dutch government that their right to due process and a fair trial had already been violated in Congo and that there was a real risk they would not receive a fair trial. The three men had been detained arbitrarily for several years before going to The Hague to testify before the ICC. During that time, they were never informed about the specific charges against them, nor taken before a judge. No steps were taken to move their case forward.
Close to 18 months after their return to Kinshasa, their situation remains worrying, Human Rights Watch said. Amended indictments were issued against them in October 2014, but their defense lawyer was not able to gain access to their file until October 2015, when a hearing was scheduled before the High Military Court. The hearing did not take place and no new date has been set. One of the accused, Mbodina, is now charged with taking part in an insurrection and the recruitment of child soldiers, in addition to the killing of the peacekeepers. Manda does not face war crimes or crimes against humanity charges. He is therefore eligible to receive a national amnesty that many other former combatants during the Ituri conflict received, yet he remains in detention.
A senior Congolese judicial official told Human Rights Watch that the case will move forward now that Katanga has returned to Congo. The Netherlands, as well as the ICC and its member countries, should closely monitor the situation of the witnesses and of Katanga, press for timely progress in the case and attend judicial hearings when they start, Human Rights Watch said.
Human Rights Watch documented widespread atrocities in Ituri between 1999 and 2005 by the armed groups to which the ICC witnesses and Katanga belonged. The role of leaders such as Katanga, Njabu, and Mbodina in the crimes should be investigated, but accountability demands fair, credible, and impartial trials, Human Rights Watch said.
“There are serious concerns regarding the national proceedings against Katanga and the ICC witnesses and respect for fair trial rights,” Mattioli-Zeltner said. “The ICC, the Netherlands, and other ICC countries should monitor their situation so that they receive a fair, credible, and impartial trial.”

1 comment:

  1. I don't have much insight into the national criminal laws of DRC and thus stay away from the debate whether the same would meet the minimum standards of fair trial. It would be a different set of argument that appellate Courts and Tribunals greatly differ on concept and standards of fair trial especially by military tribunals.
    While it is clear that separate domestic trial for different and unrelated charges than what he stood trial by ICC will not offend the principles of double jeopardy, another criminal law principle which it may transgress would be 'issue estoppel'. Now here comes the problem, will the decision of ICC particularly on the charges and their issues he was found Not Guilty giving reasonable doubt will operate Issue Estoppel in national prosecution.
    In criminal law jurisdictions bifurcation of trial is undesirable and when ICC decides to exercise jurisdiction they should be able to assume jurisdiction over all charges against him.


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