While recent attention has been focused on the drama that unfolded in the Lubanga trial, the Katanga/Ngudjolo trial quietly progressed, touching on what could be some of the most important ICC jurisprudence to date. Novel legal issues, amongst others, include the characterization of the conflict in Ituri, whether the judges can alter it under Regulation 55, and the application by four defense witnesses for asylum in the Netherlands (discussed on IntLawGrrls here). This will also be the first judgment involving charges of crimes against humanity and the indirect co-perpetration mode of liability, both unique features of the ICC. Equally important, the Katanga/Ngudjolo trial also highlights debate about policies of the ICC Office of the Prosecutor on positive complementarity (see IntLawGrrls post here), charging those most responsible for the crimes committed in the DRC, and local impact of ICC trials (as discussed by IntLawGrrls here and Human Rights Watch in this report.
In this post, I will elaborate briefly on the classification of the conflict, as it reflects consequences of OTP decisions and potential incoherence between Trial Chambers I and II on a key legal distinction—critical issues as the Court moves towards its second trial judgment.
A key issue raised during the recent closing arguments was whether, pursuant to ICC Regulation 55, the Trial Chamber could re-characterize the conflict in Ituri as a non-international armed conflict. The issue first arose in the recent Lubanga verdict. There, Trial Chamber I used Regulation 55 to change the legal characterization of the same conflict to a non-international armed conflict. In that case, Pre-Trial Chamber I had found in the confirmation of charges decision that in February 2003, the relevant time for the Katanga/Ngudjolo trial, the conflict was an international armed conflict, even though the prosecution had argued it was non-international (paras 227 – 237).
Possibly as a result of that decision, the prosecution argued in Katanga/Ngudjolo that the conflict was an international armed conflict and charged the accused accordingly. Pre-Trial Chamber I in Katanga/Ngudjolo confirmed the prosecution’s charges of war crimes committed during an international armed conflict. These are the charges the accused responded to during the course of the two-and-a-half year trial.
However, in its final trial brief and during closing arguments, the prosecution changed tracks and argued that the conflict was in fact a non-international armed conflict, but that the distinction made no difference to the crimes charged. The prosecution acknowledged evidence of Ugandan involvement, but claimed “its involvement in these battles did not internationalize the conflict as those battles didn’t involve two States fighting against one another but involved Uganda against local armed groups.” It did not address evidence relating to Kinshasa having proxy-militias, except to insinuate that the FRPI was “bent towards” Kinshasa, whereas the FNI was “more tilted to Uganda.” However, the other parties and participants disagreed, all arguing that the conflict was international and involved the governments of Uganda, Rwanda and the DRC, who were fighting for territorial control over eastern DRC through proxy militias.
The proposed change comes at the very last stage of the trial, after the Court has heard evidence about the role of regional governments in providing arms, ammunition, logistical support and, some witnesses claimed, planning the attack on Bogoro. According to the Katanga defense, the evidence pointed to a reasonable possibility that Thomas Lubanga’s UPC was under the overall control of either Rwanda or Uganda. The Katanga defense argued it was the prosecution’s responsibility to prove that those ties had been severed and barred the Chamber’s application Regulation 55. Moreover, the defense argued it would be prejudiced if the Chamber re-characterized the nature of the conflict, since some elements of the crimes are distinct based on the type of armed conflict and because the defense might have used different strategies if it knew the charges related to a non-international armed conflict.
In addition to questions about fair trial rights should the characterization be changed, it could also detract from the potential expressive value of the trial. The prosecution has attempted to narrowly frame the narrative of the attack as part of an ethnic conflict where the accused were driven by “vengeance” and hatred. However, victims of the Bogoro attack consider this framing of the conflict a disservice to the broader understanding of the political and economic aspects of the conflict, and one that does not capture the complex and volatile situation in Ituri, which encompassed both ethnic and international components.
The prosecution’s framing does little to address the bigger questions of who provided support, weapons and political leadership to the various militias. It does even less to hold those political leaders who commit or aid and abet the commission of such crimes—a counterpoint to the purported impact of the recent Taylor conviction (covered by IntLawGrrls here). Finally, it contradicts the Prosecutor’s intention to prosecute those most responsible for the crimes committed during the DRC conflict by targeting who many consider “small fish” in the conflict.
This demonstrates the limitations of any “judicial truth” that might be told by the proceedings before international courts, and the difficulty of forcing complex realities into neat, legal boxes. The decision to change the characterization, although perhaps it would bring only limited legal consequences, would have an expressive value that reflects larger issues facing the ICC, including prosecution policy and the “truth” that is expressed in ICC decisions. This is a larger debate in the international justice discourse, but one that is pronounced by these first two ICC cases and the potentially distinct interpretation of the issue by two Trial Chambers.
I have had the opportunity to follow as a trial monitor for Open Society Justice Initiative’s www.katangatrial.org, and wanted to share some observations here independent from my work there (so, to be clear, the post below is made in my personal capacity and do not necessarily reflect the position of OSJI).