Congolese militia leader Germain Katanga was acquitted on two charges of rape and two charges of sexual slavery at the International Criminal Court (ICC) on Friday, even as he was convicted of other war crimes.
In its judgment summary, the ICC said that rape and sexual slavery "were intentionally committed" and acknowledged that three witnesses were held for several weeks at military camps in Ituri, a province in the northeast of the Democratic Republic of Congo (DRC), "where they were…repeatedly raped and allocated to combatants quartered in the camps."
But the court said there wasn't enough evidence to convict Katanga of having contributed to those crimes.
The verdict is the ICC's third since its inception in 2002, and its second conviction. It is also the second verdict in sexual violence-related charges; Mathieu Ngudjolo, a Congolese rebel leader who was initially charged alongside Katanga, was acquitted of all charges, including rape and sexual slavery, in 2012.
Katanga was found guilty of being "an accessory to" murder, property destruction, pillage and attacks on innocent civilians in Bogoro village.
"Today was a major victory on the conviction front but a devastating blow to the victims of sex crime," said Kelly Askin, the senior legal officer at the Open Society Justice Initiative. "After 12 years, the ICC has failed to convict anyone of rape, sexual slavery or other sexual crimes. This is wholly unacceptable."
The court's acquittal of Katanga, despite its acknowledgment that rape and sexual slavery occurred generally, is drawing the scrutiny of international justice experts. Katanga's case is the first time the ICC invoked its power to recharacterize charges brought against a defendant — a procedure that, in the Katanga case, simultaneously secured war crimes convictions and assured acquittal on sexual violence, observers say.
"Initially, he was accused of being a perpetrator of the crimes. Now, he's accused of having contributed to the crimes," Géraldine Mattioli-Zeltner, advocacy director of the international justice program for Human Rights Watch, said by telephone from Stuttgart, Germany. "Basically if they had not requalified his involvement with the crimes he would have been acquitted of all charges."
Katanga's convictions were largely based on his provision of weapons and ammunition to local combatants, according to Jennifer Easterday, a trial monitor based in the The Hague with the Open Society Justice Initiative. Easterday said the acquittals stemmed from the court's inability to "find enough of a link" between the weapons provision and the rape crimes "to find him culpable."
Brigid Inder, the Executive Director of the Women's Initiatives for Gender Justice, an ICC watchdog, called the verdict "inherently inconsistent."
"The Trial Chamber…found he contributed to all of the crimes associated with the attack as charged by the Prosecution, except for the acts of sexual violence," Inder said in a written statement. "This judgment on face value appears to be inherently inconsistent."
Observers also said the verdict reinforces the need to strengthen the investigations by the court's prosecutor of sexual violence cases.
"Sexual violence charges are notoriously difficult to prosecute," said Holly Dranginis, a policy associate of the ENOUGH Project in Washington D.C. "They're in a different realm than a lot of other crimes because physical evidence is so hard to come by and victims who offer testimony and information are at a higher level of risk."
Fatou Bensouda, prosecutor for the ICC, last month released a draft policy paper on gender-based violence investigations. Bensouda's office is currently reviewing public comments on the draft.
But Mattioli-Zeltner said that in the Katanga case, the prosecutor may have ultimately been hampered by the court's decision to recharacterize the charges, which happened only after both the prosecution and defense had presented their cases.
"To be honest," Mattioli-Zeltner said, "that's not what the prosecution initially set out to prove because this was not what Katanga was initially charged with."