Katanga is sentenced, but does the ICC offer sufficient deterrence for war crimes and crimes against humanity?

By Joseph Kaifala

Published on May 29, 2014

On May 23, 2014, the Trial Chamber II of the International Criminal Court (ICC) sentenced Germain Katanga, former commander of the Patriotic Resistance Force of Ituri (FRPI), to 12 years imprisonment. Katanga was found guilty as an accessory in March 2014 of four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging) and one count of crimes against humanity under article 25(3)(d) of the Rome Statute. His conviction was mostly based on crimes committed by the Ngiti militia on February 24, 2003 in the town of Bogoro in the Ituri district of the Democratic Republic of Congo (DRC) in which more than 200 people were killed. Katanga was however acquitted on charges of Rape and Sexual Slavery and the use of child soldiers.

Justice was served for the people of Bogoro when Katanga was convicted; however, it is important to ask whether the sentence imposed is commensurate with the level of crimes committed and whether the punishment will achieve the sort of deterrence intended by the Rome Statute. The prosecutor asked the chamber for a jail term between 22-25 years, but having considered a few mitigating factors, the court settled for a joint sentence of 12 years within the provision of article 78(3) of the statute minus time already spent in detention with an order of the ICC between September 18, 2007 and the sentencing date of May 23, 2014 in accordance with article 78 (2). This deduction will drastically reduce Katanga’s actual jail time as a convicted accessory to war crimes and crimes against humanity.

Before imposing its sentence, the Chamber reiterated the gross violations committed in Bogoro for which Katanga was convicted. In addition to the people killed during the attack, the Court recognized through the testimony of the current village chief of Bogoro, the physical disability and psychological trauma inflicted on the people. The Chamber itself emphasized that while Katanga was convicted as an accessory, his participation “must not be underestimated, because the crimes were particularly cruel. In terms of the remorse required for mitigation, the Chamber was of the view that Katanga is having difficulties acknowledging the crimes perpetrated against the people of Bogoro. In this regard, Katanga has shown no genuine remorse for his role in the crimes committed in Bogoro and there was no evidence of measures undertaken by the convicted criminal to reconcile with or compensate his victims.

In imposing its sentence, the Chamber relied on the fundamental principles outlined in the preamble of the Rome Statute affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and the determination of member states to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes. Therefore, according to the Chamber, its sentence must serve the functions of both punishment and deterrence. Underpinning both functions is the requirement that the punishment must be proportionate to the crimes committed; but it is difficult to determine whether this nexus of proportionality was in fact established by the sentence imposed in the Katanga case.

Pursuant to article 77(1) of the Statute, the Chamber is authorized to render a maximum sentence of 30 years or life imprisonment if warranted by the extreme gravity of the crime and the individual circumstance of the convicted person. Katanga’s conviction as an accessory does not warrant the maximum sentence in this regard, but twelve years seems inadequate in the face of the gravity of the crimes committed against the people of Bogoro. Moreover, the intent of the Rome Statute to punish and deter the most serious crimes of international concern cannot adequately be achieved with a sentence some perceive as not rigid enough to further deterrence for war crimes and crimes against humanity. It might be acceptable to couple a sentence of this sort with specific measures of reconciliation or compensation, but the Chamber did not order a fine or forfeiture, which it is authorized to do under article 77 (2)(a) and (b) of the statute.

The principle of general criminal deterrence uses proportional punishment to generate adequate inhibition for potential criminals, but unless the punishment is commensurate with the crime, it could present a risk of hardened criminals balancing their intended action against its consequences and deciding that their criminal purpose outweighs the possibility of a paltry punishment. The ICC can use its sentencing to further the principles of punishing and deterring the most serious crimes of international concern, but that cannot be achieved if the punishment imposed is perceived as disproportionate to the crime of the convicted individual.

The Author

Joseph Kaifala is founder of the Jeneba Project Inc. and co-founder of the Sierra Leone Memory Project. He was born in Sierra Leone and spent his early childhood in Liberia and Guinea. He later moved to Norway where he studied for the International Baccalaureate (IB) at the Red Cross Nordic United World College before enrolling at Skidmore College in upstate New York. Joseph was an International Affairs & French Major, with a minor in Law & Society.

He holds a Master’s degree in International Relations from the Maxwell School at Syracuse University, a Diploma in Intercultural Encounters from the Helsinki Summer School, and a Certificate in Professional French administered by the French Chamber of Commerce.

Joseph was an Applied Human Rights Fellow at Vermont Law School, where he completed his JD and Certificate in International & Comparative Law. He is recipient of the Vermont Law School (SBA) Student Pro Bono Award, Skidmore College Palamountain Prose Award and Skidmore College Thoroughbred Award.

Joseph was a 2013 American Society of International Law Helton fellow. He served as Justice of the Arthur Chapter (Vermont Law School) of Phi Alpha Delta Law Fraternity International. He is a member of the Washington DC Bar.

Article picture: ICC building. Picture by Vincent van Zeijst. Source: Wikipedia