Anthea van der Burg analyses how Congolese rebel leader Germain Katanga's fair trial rights were violated at the International Criminal Court. 

When prosecuting the most serious international crimes, notably war crimes and crimes against humanity, one of the challenges is the extent to which human rights of the accused are factored into the equation.

The International Criminal Court (ICC) has very noble aspirations and seeks to end impunity, uphold the fair trial rights of defendants and ensure victim participation in the proceedings of the court. Key fair trial principles are contained in Article 67 of the Rome Statute, which means that even though the nature of the crime is serious and affects communities, the accused is still entitled to a fair trial. Hence, the human rights of the accused person are of paramount importance and Article 21 of the statute makes reference to the application of international human rights laws by the ICC.

By way of illustration, the case of Congolese rebel leader Germain Katanga (also known as Simba) serves to demonstrate how the fundamental fair trial rights afforded to the accused by the Rome Statute can be violated. These rights include a person's right not to be tried and punished more than once for the same offence (double jeopardy), the right to an expeditious trial, the right to life and the right to legal representation. In Katanga's case, these rights were not adhered to at the ICC. Of particular importance is the fact that Katanga spent an additional four years imprisoned in the Democratic Republic of the Congo (DRC) after having been detained at the ICC for seven years. This was as a direct result of a decision by the presidency at the ICC.

Conflict in Ituri Province

In October 2007, the Congolese authorities surrendered and transferred Katanga to the ICC. The prosecutor alleged he led the attack by the Forces de Résistance Patriotique d'Ituri on the village of Bogoro in the Ituri Province of  the DRC. The conflict in this region involved tensions and fighting between the Hema and Lendu ethnic groups, mainly competing for land. By 2004, around four million people had died because of the conflict, through disease, starvation and killings.

On 7 March 2014, Katanga was convicted and found guilty of war crimes and crimes against humanity at the ICC. His sentence was reduced because of the time served and the ICC determined the date for completion of his sentence to be 18 January 2016. In December 2015, Katanga was transferred to a prison facility in the DRC where he had elected to serve the remainder of his sentence. 

On the 29 February 2016, the presidency of the ICC received a request from the DRC to approve the prosecution of Katanga in the DRC before the military court in terms of Article 108(1) of the Rome Statute. The DRC referred to offences allegedly committed by Katanga between 2002 and 2006. Article 108 limits the prosecution or punishment of other offences, unless the ICC (the presidency) has approved such request for prosecution.

Katanga defended his case on the basis of the double jeopardy principle and argued that the ICC is obliged to refuse authorisation to prosecute under Article 108 if the accused faces abuse of its own process. He also contended that the human rights conditions of detention as well as the imposition of the death penalty must be taken into account when the court makes such a decision. The DRC still has the death penalty in its legislation.

On 7 April 2016, the presidency found that the DRC's referral decision related to crimes other than those for which Katanga had been convicted and acquitted by the court and that the principle of double jeopardy had not been undermined.  The presidency also stated that it had received assurances from the DRC that the death penalty would not be imposed against Katanga.

Further prosecution

This decision and the approval for the further prosecution of Katanga undermines his fair trial rights. He was already tried by the ICC (even though it was argued that it was not for the same offences, something that still remains open to interpretation), and also served a lengthy sentence. In addition, more than that, his right to life was at stake in a country that still imposes the death penalty.  International human rights law as contained in the International Covenant on Civil and Political Rights of 1966, does not condone the situation faced by Katanga, as is evident from the Human Rights Committee pronouncement:

The presidency's decision did not consider this and instead relied on the 'assurances' by the DRC that Katanga would not receive the death penalty.

Katanga remained in prison in the DRC and on 30 January 2019, his defence attorney once again approached the presidency to reconsider the Article 108 decision. In essence, this application was based on the fact that there had been no progress in his case in the DRC, and his right to an expeditious trial and legal representation had been infringed. He applied for legal aid in the DRC, but it was denied.

In June 2019, the presidency found that Katanga had failed to demonstrate that his prosecution in the DRC had violated his fair trial rights. The presidency did, however, encourage the DRC to ensure that the right to legal assistance was fully respected. It also reiterated its previous stance in relation to the death penalty, relying on the written assurances from the DRC that the death penalty would not be sought against him. In a dramatic turn of events, Katanga was released in March 2020 with reports indicating that his release was aimed at ensuring reconciliation and to bring about peace within the DRC.  

Similar message 

The consequences of the presidency's decision send a clear message to future defendants who may be prosecuted at the ICC, that they too may be prosecuted again for similar offences and sent back to countries where the death penalty is still applicable. The decision in respect of the death penalty presented the ICC with an opportunity to uphold international human rights laws by refusing to send Katanga back to the DRC in light of the existing legislation on the death penalty.

Going forward, the ICC should approach Article 108 requests by taking into account the fair trial rights of defendants as well as the applicable international human rights laws in a particular case.  The ICC should consider utilising such requests to institutionalise a practice of reform within African countries, by advocating for those countries, which are not parties to international human rights agreements, to become parties thereto and to implement legislative reform that can help address potential gaps and ensure fair trial practices are upheld and fair treatment is adhered to.

 *This article is based on Dr Anthea van der Burg's recent doctorate in Public Law at Stellenbosch University.