Institute for War and Peace Reporting | Giving Voice, Driving Change
International Criminal Court, ICC, prosecutors have dropped all sexual violence charges in relation to conflict in the Democratic Republic of Congo, DRC, because of an internal dispute over witness protection.
Prosecutors removed counts of sexual slavery from the indictments against militia leaders Germain Katanga and Mathieu Ngudjolo following disagreements with the court’s registry over how to protect two witnesses whose testimonies could have backed up the charges.
Prosecutors had been planning to add counts of rape to the charge sheet, but this has been scrapped too because of the protection issues.
The ICC has been investigating war crimes and crimes against humanity in the northeastern Ituri province of DRC since 2004, and more recently, the court has extended its investigations to the adjacent provinces of North and South Kivu, where civilians have been subject to rape by soldiers and militia fighters.
While four men have so far been indicted on charges of playing a leading role in interethnic violence in Ituri, where rape has been widely used as a weapon of war, only Katanga and Ngudjolo were charged with crimes of sexual violence.
Thomas Lubanga and Bosco Ntaganda are accused of conscripting and enlisting children to fight in their militia, the Patriotic Forces for the Liberation of Congo. NGOs and United Nations representatives have pushed for these charges to be widened to cover crimes of sexual violence.
The sexual slavery charges against Katanga and Ngudjolo were welcomed by human rights campaigners - who also welcomed prosecutors' plans to add rape charges. Many of the activists are now angry that all the charges have been dropped.
Problems in the case surfaced when prosecutors relocated witnesses without the consent of the court’s registry, in order to ensure their safety and guarantee that they would be able to testify about their experiences.
On April 28, deputy prosecutor Fatou Bensouda said in a written submission that “these witnesses have been preventively relocated due to the concrete risk that they are exposed to as a consequence of their cooperation with the prosecution”.
Adviser to the ICC prosecution Beatrice Le Fraper du Hellen said the security situation in Ituri is such that all witnesses are vulnerable.
“We consider that the agreement of witnesses living in Ituri to testify will put them at risk. In a region like Ituri, there are still influential members of militias, with contacts between former leaders and present leaders.
Le Fraper du Hellen said prosecutors felt compelled to step in to protect the witnesses in question.
“We rely on the registry, but understand that sometimes they don’t have time to take care of our witnesses. Sometimes we have taken measures ourselves to protect witnesses, and this is what we did in [the cases of] Ngudjolo and Katanga,” she said.
The registry responded by telling prosecutors not to intervene.
“We were told this was not something we should do, and that we were not allowed to protect our witnesses, and that we had to drop this protection,” she said.
In what they described as an “appropriate remedy for the prosecution's unauthorised preventive relocation”, judges then excluded the women’s statements, interview notes and interview transcripts from being used in the confirmation of charges hearing for Katanga and Ngudjolo, whose cases were joined on March 10.
This, in turn, led prosecutors to scrap the charges because they felt they were left with insufficient evidence to make them stick.
“The prosecutor said clearly that either we are entitled to protect those witnesses, or someone else in the court does it, or [the prosecutor] will not rely on their testimony at trial,” explained Le Fraper du Hellen.
“The conclusion is that the witnesses would not be protected, so the prosecutor dropped the charges.”
The head of the court’s services division, Mark Dubisson, criticised prosecutors for stepping in to protect witnesses, saying this could undermine the credibility of their testimony.
“When the prosecutor decided to develop his own system [to protect witnesses] we [regarded] this way of working as giving something to witnesses in order to get their testimony, which means that the credibility of the witness is completely affected,” he said.
Dubisson maintained that witness protection should be left to the ICC registry which, unlike the prosecution, is entirely neutral and also protects defence witnesses.
The registry has clear procedures in place to deal with protection of witnesses, he said. If prosecutors believe a witness is in danger, they should contact the victims and witnesses unit which will then carry out an assessment, after which the registry may decide to admit the person into the ICC protection programme.
Dubisson said that the registry’s witness protection measures include an initial response system, which provides means for a team to be sent to extract a witness and their family and bring them to safety.
“When a witness is referred to us, we bring a protection officer and a support officer to interview the person to see exactly what the threat is, and whether the person could fit into a specific protection programme,” explained Dubisson.
Under the ICC’s provisions, a person can be placed in a safe place for days or months, or resettled internally. If this is not enough, the court can also send them to another country which has signed a relocation agreement with the court.
The ICC currently spends 2.4 million euros a year on victim protection, and has applied to increase this to four million next year.
In an apparent turn-around, the registrar informed judges on May 19 that the two witnesses concerned had now been accepted into the court's witness protection programme, and had been relocated.
Then, in a May 28 submission, Judge Sylvia Steiner – one of the judges in the case – said that the security concerns that led her to exclude the evidence of the two witnesses as a result of their unlawful preventive relocation by the prosecution no longer existed.
Prosecutors now have until June 12 to file additional amendments to the charge sheets of Katanga and Ngudjolo, to include sexual slavery and rape.
"Since the witnesses concerned are now accepted into the ICC protection programme, the security issues regarding these witnesses are now resolved, and the prosecution can now rely on their evidence for the confirmation of charges hearing,” Bensouda told IWPR.
The confirmation of charges hearing is scheduled to begin on June 27.
But human rights groups in DRC are angry that the world’s first permanent war crimes court could drop sexual violence charges because of internal political factors.
Evariste Mabruki, president of the NGO Good Samaritan, BOSAM, and interim president of the Provincial Commission for the Fight against Sexual Violence in North Kivu, said that the ICC should never have retracted the sexual slavery charges.
“We do not agree with the prosecutor and never will,” he told IWPR.
NGOs on the ground are frustrated that while they continue to hear the testimonies of women suffering from brutal rapes and sexual violence crimes across the DRC, no suspects from the country are currently charged with crimes of sexual violence.
Two female rape victims who are being cared for by the charity Caritas in Goma told IWPR that they know the identity of their attackers, and would be ready to testify at the court.
In April, Mabruki registered 514 cases of rape in the Rutshuru region, which reportedly took place during battles between the DRC army and Mai Mai rebels.Victims told Mabruki that the majority of the rapes were carried out by armed men.
“Do you think that none of them will testify before the court? The ICC must take its responsibility and allow these victims to testify,” said Mabruki.
“We are waiting for the word from the ICC prosecutor to present the women who are ready to testify. There is no lack of courageous women from Ituri willing to testify. Rather the ICC lacks the responsibility to protect them.”
Mabruki told IWPR that “retracting charges of sexual violence from the accusations against Katanga and Ngudjolo is one way of discouraging [activists] on the ground and encouraging the perpetrators of these crimes.
“Sexual violence was used as a weapon of war not only to humiliate the enemy, but especially women. Why attack women, who had nothing to do with the war? The war belonged to the politicians. So we ask ourselves why the prosecutor can today annihilate the fight that we have been fighting since the start of the war in the region.”
Mariana Pena from the human rights group the International Federation for Human Rights, FIDH, is concerned that dropping the charges could dissuade more witnesses from testifying in future.
“The prosecutor is being blocked because of internal problems at the court. This will affect cases and investigations. There is a risk that other women might not feel like coming forward with their testimonies,” she said.
Pressure groups are also concerned about what precedent the scrapping of charges might set.
On May 24, Jean-Pierre Bemba was arrested by the court for crimes committed by his MLC rebel group in the Central African Republic, CAR, and charged with crimes of sexual violence.
Mabruki asked why, since prosecutors had not managed to uphold sexual violence charges in the DRC case, Bemba should be accused of similar crimes.
Amnesty International’s CAR expert Godfrey Byaruhanga is pushing for a solution for victim protection at the ICC. If one is not found, he said, the cancer of sexual violence in CAR, Chad and DRC and many other countries will never end.
He told IWPR that the ICC should have the legal, material, diplomatic and political means to protect victims and witnesses.
“If the ICC does not have the capacity, then who does?” he asked.
Byaruhanga is concerned that the failure of the ICC to charge suspects with crimes of sexual violence could lead to a culture of impunity.
“Indirectly, we are saying that other crimes can be prosecuted, but if you commit rape or other forms of sexual violence, you don’t have to worry because the international community does not want to touch them. This sends out a very negative message to victims, as well as current and future perpetrators,” he said.
Taylor Toeka Kakala is a reporter in Goma. Katy Glassborow is an IWPR international justice reporter in The Hague.
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