Prosecutor v. Germain Katanga

Relevant Sections:

Art. 7(1)(g); 8(2)(b)(xxii); 8(2)(e)(vi); 8(2)(b)(xxii); 8(2)(e)(vi); 8(2)(c)(ii)

Charges (Gender Based Crimes):

▪ Rape as a crime against humanity and war crime

▪ Sexual slavery as a crime against humanity and war crime.


Facts:

▪ Katanga was acting with the Ngitu militia to carry out attacks in Bogoro, Congo against the Hema population and he facilitated procurement/storage of weapons. It was established that during these attacks, combatants raped, sexually enslaved and forcefully married women to obey them and to do household chores.

Trial Chamber’s Analysis:

▪ Elements of rape include any act of penetration taking advantage of a coercive environment. Under Art.30, The physical perpetrator must have intentionally invaded the body of the victim.

▪ Elements of sexual slavery include the subjective nature of such deprivation i.e the person’s perception of his/her situation as well as his/her reasonable fear and the victim’s ability to decide conditions in which he/she engages in sexual activity and wielding of powers by the perpetrator attaching to the notion of ownership.

▪ For rape/ sexual slavery to constitute a crime against humanity, it must be part of a widespread or systematic attack directed against a civilian population and for rape/ sexual slavery to be a war crime the conduct must’ve taken place in the context of an armed conflict not of an international character.

▪ Under rule 63(4) of the Rules of Procedure and Evidence there is no legal requirement that corroboration is required to prove crimes of sexual violence.


Conviction:

▪ Katanga was convicted by majority for war crimes such as murder and pillage and destruction of property but was unanimously acquitted of all sexual and gender based crimes’ charges against him.

▪ Quoting ICC “Whereas pillaging, destruction and the acts of rape and sexual slavery were not necessarily part of the common plan, they were, to his mind, certainly part of the combatants’ method of warfare and, in the light of their modus operandi during other attacks against civilian populations, the implementation of the plan necessarily entailed the commission of such acts.”

▪ Although the Court believed that such crimes were committed by the combatants, the Accused was not found guilty of these charges since it was not part of the common plan.

▪ The Pre Trial Chamber confirmed charges of sexual slavery, rape (as war crime and a crime against humanity) and using of children below 15 years to participate in hostilities. However, at trial he was acquitted of these charges relating to gender based crimes. The Prosecutor had filed for an appeal on this aspect of the Chamber’s decision only to withdraw it to the shock of the victims.

During the reparations stage, Katanga’s lack of funds made the ICC look towards the Trust Fund for Victims to make the payments and urged TVF to also account for any sexual violence suffered by the victims though this was beyond scope of Katanga’s case.


Read the full judgment here.