On November 21, 2012, a majority of Trial Chamber II of the International Criminal Court (ICC), Judge Christine Van Den Wyngaert dissenting, informed the parties in the trial of Germain Katanga and Mathieu Ngudjolo Chui that it is considering a re-characterization of the facts of the case concerning the mode of liability applicable to Germain Katanga. Due to this development in the case against Katanga, the judges severed the two cases and will deliver the verdict for Ngudjolo on December 18, 2012.
Katanga and Ngudjolo have been charged with three crimes against humanity and seven war crimes. They were accused under Article 25(3)(a) of having committed the crimes through “indirect co-perpetration,” where the accused used hierarchical organizations Force de résistance patriotique en Ituri (FRPI) and Front des nationalistes et intégrationnistes (FNI) to carry out the crimes. Acting under Regulation 55 of the Regulations of the Court, the majority of the judges would change Katanga’s mode of liability to Article 25(3)(d)(ii), also called “common purpose” liability. The new mode of liability would apply to all crimes except for those relating to the use of child soldiers.
This potential change is significant. It would categorically change the nature of charges against Katanga, after the parties have closed their cases and six months after the Trial Chamber retired to deliberate and render a judgment. It also marks a new development in the jurisprudence of the ICC, which has only brought one other trial to this stage in its 10-year history. If such a change is allowed at this late stage in the proceedings, it could fundamentally shift the role of the judges, prosecutor, and the work of defense teams in future cases. The parties would then potentially have to prepare to argue for or against different modes of liability even if they are not charged or raised until after all evidence has been submitted. This could prompt parties to submit more evidence and lead to lengthier trials in the future. It could also lead to potential violations of the fair trial rights of ICC defendants, who arguably would not know the exact nature of the charges they face until after the case has closed.
This post explains the majority’s proposed change to the mode of liability and how it might apply in this case. It also discusses Judge Van Den Wyngaert’s dissenting opinion.
From Principle to Accessory Liability
The majority of the Chamber stated that it was proposing the change for the sake of establishing the genuine truth of the case against Katanga without being limited by the qualifications of the facts established by the Pre-Trial Chamber or presented by the Prosecution. The judges claimed that such a change would not violate Katanga’s rights to a fair trial.
Article 25(3)(d) is a residual accessorial mode of liability, as opposed to a principle mode of liability like Article 25(3)(a). Article 25(3)(d) is aimed at combating group criminality and seems to be a “lesser” form of liability than the others included in Article 25(3). Thus, Article 25(3)(d) captures liability for contributions to crimes that do not amount to ordering, soliciting, inducing, aiding, abetting, or assisting crimes, as provided for in Articles 25(3)(b)-(c).
An accused can be convicted under 25(3)(d) for contributing to the commission of crimes committed by a group of persons acting according to a common plan. The specific mode of liability that would be considered in this case, Article 25(3)(d)(ii), captures situations where an accused does not intend for his actions to facilitate the commission of crimes but where he knows that his contribution will help the crimes be committed. It also includes contribution to the commission of a crime after it has occurred, as long as the contribution was previously agreed to by the accused and the group committing the crime.
Article 25(3)(d)(ii) provides that:
In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: […]
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall […]:
(ii) Be made in the knowledge of the intention of the group to commit the crime.
The Prosecution must prove the existence of a common purpose between two or more persons that amounts to or involves the commission of crimes. In this case, the common purpose would likely involve the alleged plan to attack and “wipe out” Bogoro and its Hema civilians.
The Prosecution must also prove that Katanga intentionally contributed to the group’s commission of the crimes. The contribution does not have to be essential, unlike for conviction under Article 25(3)(a), but must be significant. Whether or not a contribution was significant depends on a case-by-case analysis and the effect of the contribution on the crimes.
The accused must have knowledge of the group’s criminal intentions to be found guilty under this mode of liability. This is distinct from 25(3)(a), which requires that the accused intends for each of the crimes to be committed. In this case, Katanga could be guilty if the Judges found that he contributed in some way to the attack on Bogoro and he knew his contribution would help facilitate the commission of crimes.
The Prosecution has argued that Katanga played a “coordination” role and distributed guns and ammunition to fighters who later attacked Bogoro. This could be seen as a significant contribution to the commission of the crimes in Bogoro. Whether or not he knew that the fighters intended to commit crimes could possibly depend on the ethnic elements of the conflict, the modus operandi of the fighters in previous attacks, or other circumstantial evidence indicating that he knew the group intended to commit crimes.
The majority decision noted that any reclassification would focus on the Bogoro attack, the role played by the Ngiti fighters located in Walendu-Bindi, the local commanders, members of the group, and Katanga’s contribution that led to the commission of the crimes. The judges stated that the facts that might be “re-qualified” have been debated on the merits during the trial, and thus Katanga had the opportunity to defend himself and be heard on these issues.
The material elements of participation in a crime under Article 25(3)(d) are part of the material elements for commission of a crime under Article 25(3)(a), the majority found. In particular, they opined that the requirement under Article 25(3)(d) that the accused’s contribution be “substantial or significant” is subsumed under the requirement for Article 25(3)(a) that the contribution be “essential” and leading to the realization of the objective elements of the crimes. Moreover, the majority considered that the mental element required for Article 25(3)(d) coincides with the facts and circumstances included in the confirmation of charges decision, in particular with the Pre-Trial Chamber’s description of the intent of the group of commanders and fighters that attacked Bogoro as well as Katanga’s knowledge that crimes were committed.
Dissenting Opinion of Judge Van Den Wyngaert
Judge Van Den Wyngaert dissented “in the strongest possible terms” from the majority’s decision. She considered that the change “goes well beyond any reasonable application of [Regulation 55] and fundamentally encroaches upon the accused’s right to a fair trial.” Rather than be acquitted under Article 25(3)(a), Katanga could now be convicted under Article 25(3)(d), she contended.
She stated, “I am of the view that it is impermissible to fundamentally change the narrative of the charges in order to reach to a conviction on the basis of a crime or form of criminal responsibility that was not originally charged by the prosecution.” She noted that the Prosecution has never proposed using Article 25(3)(d) as a mode of liability, restricting its submissions throughout the trial to either Article 25(3)(a) or 25(3)(b).
“If the Prosecution did not bring its charges on the modes of liability most likely to lead to a conviction, then the Chamber should be particularly wary of doing this work instead,” she argued.
As one example of an impermissibly re-characterized fact, Judge Van Den Wayngaert described how the hierarchical organization Katanga allegedly controlled, and which allegedly acted in blind obedience to his orders, would be transformed into a group of persons acting with a common purpose, and, arguably, with the agency that the group allegedly lacked under an Article 25(3)(a) theory of the case. Moreover, she argues, there is no mention of a “common purpose” in the confirmation of charges decision.
Judge Van Den Wyngaert also cautioned that the decision of the Majority risks giving the perception of partiality, which she claims would be sufficient for finding that the Chamber has violated its obligation of impartiality. She said:
The Majority’s decision creates the perception that: (i) they would have had to acquit Germain Katanga on the indirect co-perpetration charges which he is facing and (ii) that Article 25(3)(d)(ii) is seen as a provision which could sustain a conviction. This perception is created because, had the Majority been prepared to convict the accused under Article 25(3)(a), then it stands to reason that they would have just convicted on that basis, rather than resorting to a Regulation 55(2) notice decision.
She considered the majority’s approach a “fundamental misconstruction of the adversarial process.” The trial was intentionally conducted as a primarily adversarial trial, she stated. Whereas in inquisitorial systems all of the evidence of a case is collected by a neutral magistrate and provided to the parties before the trial, in an adversarial system, the parties decide what evidence to proffer or withhold. In adversarial processes, the defense will determine what evidence to present based on what the charges are, she observed. She argued that in this context, a re-characterization such as the one proposed by the majority would violate Katanga’s fair trial rights.
The mix of inquisitorial and adversarial legal systems is a unique feature of the ICC and other international tribunals. The outcome of this issue could significantly impact the balance of that mix in future ICC trials.
Charges Severed, Ngudjolo Judgment Imminent
The majority recognized that these changes would prolong the trial of Germain Katanga, and decided that it was unnecessary to delay the judgment of Mathieu Ngudjolo. Therefore, in order to avoid potential violations of Ngudjolo’s right to a trial without undue delay, the majority severed the charges.
The verdict for Mathieu Ngudjolo will be delivered on December 18, 2012. The Prosecutor and the victims’ representatives have been invited to submit observations about the potential change in Katanga’s charges before January 15, 2013. The defense has been invited to submit its observations before January 21, 2013.
The Chamber will then consider these motions and decide how to proceed. If the charges are changed, it is not clear whether the Chamber will hear additional evidence. Judge Van Den Wyngaert suggests that this might be a possibility in her dissenting opinion.
 Prosecutor v. Mbarushimana, Decision on the Confirmation of Charges, Case No. ICC-01/04-01/10-465-Red, Dec. 16, 2011, paras 278 – 9 [hereinafter “Mbarushimana Decision.”
 Prosecutor v. Lubanga, Decision on the Confirmation of Charges, Case No. ICC-01/04-01/06, Jan. 29, 2007, para 337.
 Mbarushimana Decision, para 297.
 Id., para 283.
 Prosecutor v. Katanga and Ngudjolo, Décision relative à la mise en œuvre de la norme 55 du Règlement de la Cour et prononçant la disjonction des charges portées contre les accusés, Dissenting Opinion of Judge Van Den Wyngaert, Case No. ICC-01/04-01/07, Nov. 21, 2012, para 1.
 Id., para 19.
 Id., para 54.