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Katanga Appeals Proposed Changes to His Case

Germain Katanga has appealed a decision to change the charges against him made months after the parties had closed their cases. The International Criminal Court (ICC) charged Katanga with crimes against humanity and war crimes allegedly committed during an attack on Bogoro, a village in the eastern part of the Democratic Republic of the Congo (DRC). Katanga was charged with “indirect co-perpetration” of the crimes—allegedly by using a militia, the Force de résistance patriotique en Ituri (FRPI), to carry out the crimes. His co-accused, Mathieu Ngudjolo, was also charged with indirect co-perpetration for using another militia, the Front des nationalistes et intégrationnistes (FNI), to commit crimes during the Bogoro attack. The prosecution claimed the two accused had jointly planned and executed the attack. In mid-December, Ngudjolo was acquitted of all charges and released; the prosecution has appealed.

The trial opened on November 24, 2009 and closed on May 23, 2012. Nearly six months later, on November 21, 2012, a majority of Trial Chamber II, Judge Christine Van Den Wyngaert dissenting, informed the parties that it is considering a re-characterization of the mode of liability applicable to Katanga. 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), a “lesser” form of liability called “common purpose” liability. It essentially means Katanga would be charged for unintentionally but knowingly contributing to the crimes instead of being directly responsible for them. The new mode of liability would apply to all crimes except for those relating to the use of child soldiers. Due to this development in the case against Katanga, the judges severed the two cases.

Katanga has appealed the decision and asked for it to be suspended. The trial chamber’s notification decision is not final, as it only notifies the parties that they are considering a change and asks for submissions about the proposed change. However, Katanga’s defense argued that the modification violated the Rome Statute and falls outside the scope of Regulation 55.

Specifically, the defense argued that the trial chamber did not have the discretion to give notice to re-qualify the charges. If the Appeals Chamber finds that the Trial Chamber did have that discretion, the defense argued, it should still be overturned because no reasonable tribunal would have exercised such discretion.

The Appeals Chamber has held that Regulation 55 is intended to fill any impunity gaps that might arise if the legal qualification confirmed by the pre-trial chamber turns out to be incorrect based on the evidence presented at trial. However, the Appeals Chamber has also held that changes under Regulation 55 cannot lead to an unfair trial.

The defense argued that the decision was given at an inappropriate time in the trial—after the parties had closed their cases and while the chamber was deliberating on the guilt or innocence of the accused. This violated Katanga’s fair trial rights, the defense argued. The defense claimed it would violate the right to a speedy trial. Moreover, the defense argued, the Chamber’s notice did not provide enough detail to give Katanga a clear idea about the new charges he would face. The defense also contended that the proposed change would be so fundamental that it would go beyond the decision on the confirmation of charges, which serves as the foundation of the case.

The defense also argued that the decision indicates that the trial chamber is biased. The chamber gave notice about the proposed change just a few weeks before it acquitted Ngudjolo, Katanga’s co-accused. This, the defense argued, shows that the trial chamber was trying to ensure that Katanga would be convicted. In proposing the change, the chamber was inappropriately taking the role of the prosecutor, which had not proposed any changes to the law or facts of the case, the defense claimed.

The notice decision be suspended, the defense submitted, arguing that it would be unfair to require submissions about the proposed change without the benefit of the Appeals Chamber decision on the matter. The prosecution has supported this request for suspending the decision. This would mean the parties would not have to make submissions on the change until after the Appeals Chamber has decided if it will move forward.

The prosecution has not responded to the defense appeal. Once all submissions have been received, the Appeals Chamber will make its decision.