analysisBy Allan Ngari
On 25 June 2014, the defence team of Germain Katanga, former commander of the Force de résistance patriotique en Ituri (FPRI) in the Democratic Republic of Congo (DRC), withdrew its notice of appeal against his conviction by the International Criminal Court (ICC). On the basis of Katanga's withdrawal of appeal, the Prosecution also filed a notice of discontinuation of its appeal against the same judgment.
All that remains in the case is a decision on reparations for victims of the attack in the village of Bogoro on 24 February 2003 that Katanga was convicted of. There is, however, little promise for these victims, because most of them have now been barred from court-led reparations following the acquittal and conclusion of the case.
The Rome Statute of the ICC is clear that court-ordered reparations are available only to victims of crimes for which an accused has been convicted. The court will not make an order to award reparations to victims for crimes that the accused has been acquitted of.
In its March judgment, Trial Chamber II of the ICC found Katanga guilty on one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging). The ICC, however, acquitted him of rape and sexual slavery as crimes against humanity and war crimes, and the war crime of enlisting child soldiers.
Do apologies contribute at all to the reconciliation process in fragmented communities?
He was subsequently sentenced to 12 years imprisonment, but will serve a sentence of slightly less than six years as he has been in the ICC's custody since 18 September 2007. The ICC Prosecution argued in its appeal application that the sentence was erroneous and requested a revision to 22 years on the grounds of proportionality to the crimes. The ICC Prosecution also requested the Appeals Chamber to reverse or amend the judgment of Trial Chamber II, or order a new or partially new trial of Katanga before a different Trial Chamber.
Attached to the notification of discontinuation of appeal by the Katanga defence is a signed statement of regret by Katanga for the crimes he committed, and an apology to the victims in Bogoro. Since reparations for victims who participate in legal proceedings before the ICC depend on an accused being found guilty, the discontinuation of the Prosecutor's appeal extinguishes the quest for reparative justice for the victims of rape, sexual slavery and recruitment of child soldiers in Bogoro.
Besides the 'interests of victims' standard that is brought to question in this case, Katanga's apology revives the debate about the place of apologies by perpetrators in the international criminal justice system. Do apologies contribute at all to the reconciliation process in fragmented communities affected by international crimes?
The ICC Prosecutor expressed hope that the final resolution of the Katanga case will assist in reconciliation efforts and contribute to the healing process for the victims in Bogoro. This sentiment is, however, not shared by the legal representatives of two of the groups of victims in this case - the victims of rape and sexual slavery; and the child soldier victims. These representatives observe that their clients feel disappointed, dissatisfied and even betrayed by the ICC Prosecution's surprising decision to discontinue its appeal.
For victims to participate in ICC cases requires lengthy, expensive and administratively difficult processes
These victims had participated in the lengthy legal proceedings against Katanga, including the pre-trial phase, a right explicitly granted to them by the Rome Statute. Once their applications are accepted, victims of crimes within the jurisdiction of the ICC are allocated legal representatives, who appear before the court on their behalf at the pre-trial, trial and appellate phases. Victims are allowed to participate in legal proceedings at the ICC. However, the procedural right to appeal the judgment of a Trial Chamber is reserved for the accused and the prosecution, leaving victims with no further recourse.
It comes as no surprise, therefore, that the victims of rape, sexual slavery and recruitment as child soldiers in Bogoro would look to the ICC Prosecutor to back their plight on appeal. The ICC Prosecutor has indicated that, '[t]he decision to discontinue the Prosecution appeal took into account all of the relevant factors, including sensitivity to the interests of victims in the present case [and that] the decision [is] in conformity with her statutory obligations and in the responsible exercise of her prosecutorial discretion.'
Considering the number of victims - approximately 359 victims were granted leave to participate in the early days of the case - and the procedures for their participation, what is being brought into question is how effective and meaningful the participation of victims really is. In practice, the application and evaluation processes for victims to participate in the proceedings of ICC cases have, to date, been lengthy, cumbersome, expensive and administratively difficult to manage by court officers and victims' representatives.
In the Katanga case, the question of how meaningful and effective victims' participation is becomes even more pertinent. In this instance, the victims of the crimes that Katanga was acquitted of are unable to assert themselves outside of the Office of the Prosecutor following the withdrawal of her appeal.
Simultaneously, although not on par with the pain and suffering of the victims, the ICC failed to effectively pronounce itself on sexual and gender-based crimes. The much-awaited application and further development of the principles on reparations related to sexual and gender-based crimes - as established in the 2012 decision on reparations in the case against Thomas Lubanga Dyilo - also remain unimplemented.
The expediency in completing a case at the ICC does not outweigh the interests of victims to reparative justice. Hope deferred for the victims of rape, sexual slavery and the child soldiers in Bogoro is a poor reflection of the protection afforded to victims by the international criminal justice system.
Allan Ngari, Researcher, Transnational Threats and International Crime, ISS Pretoria