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Changing Charges would Violate Katanga’s Fair Trial Rights, Defense Submits

The defense for Germain Katanga has made submissions regarding a potential change in the charges against its client. The timing and nature of the change would violate Katanga’s rights to a fair trial and would risk harming the reputation of the International Criminal Court (ICC), the defense argued.

The prosecutor of the ICC originally charged Katanga and Mathieu Ngudjolo with three crimes against humanity and seven war crimes allegedly committed during an attack on Bogoro, a village in eastern Democratic Republic of the Congo (DRC). They were accused under Article 25(3)(a) of the Rome Statute of committing the crimes through “indirect co-perpetration,” where Katanga and Ngudjolo used hierarchical organizations (the Ituri Patriotic Resistance Force (FRPI) and the Nationalist and Integrationist Front (FNI), respectively) to carry out the crimes.

Acting under Regulation 55 of the Regulations of the Court, the majority of the trial chamber notified the parties that it might 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.

Due to this development in the case against Katanga, the judges severed the two cases and acquitted Ngudjolo on December 18, 2012. The prosecution has appealed his acquittal.

The Katanga defense submitted that the timing and nature of the change would violate Katanga’s fair trial rights. The defense also argued that, even if the judges go ahead with the change, there is insufficient evidence to convict Katanga under Article 25(3)(d). These submissions are discussed briefly below; additional details can be found by consulting the defense submissions.

Insufficient Facts

The defense began by stating that it did not have sufficient knowledge of the facts the chamber intends to rely on if the charges are changed. The defense noted that originally, Katanga and Ngudjolo were charged with jointly planning to “wipe out” Bogoro and commit the alleged crimes. Both accused allegedly used militias to carry out the attack and commit the crimes. The defense contended that the defendants were charged as inter-dependent co-perpetrators. Since the trial chamber acquitted Ngudjolo, cutting out one of the two partners in the alleged agreement, then Katanga must also be found innocent, the defense claimed.

If the chamber does change the mode of liability, the prosecution will have to prove that a group, which shared a common criminal purpose, committed the alleged crimes. The defense complained that there was no detail of who exactly belonged to such a group, except to say that they were “Ngiti combatants and commanders.” This characterization is too imprecise, the defense argued. If the charges are changed, the identity of the members of the group is significant, the defense submitted—otherwise, any Ngiti fighter could be considered part of the group.

The defense also argued that there was no indication about what the new “common purpose” of this group would be if the charges were changed. The confirmation of charges decision specifically linked the common purpose to “wipe out Bogoro” to Katanga and Ngudjolo. Given that they are no longer allegedly part of the group that shared the common plan, the defense contended, then there needs to be additional evidence about the new alleged plan, including who formulated and orchestrated that plan, and how they did so.

The defense claimed that not having these facts made it difficult for it to properly respond to the potential changes. It could only speculate about what the trial chamber has in mind, the defense submitted.

The defense further noted that the vagueness of the proposed re-characterization was a contentious issue before the Appeals Chamber. In its decision, the Appeals Chamber majority indicated that it did not know the precise nature of the change or what evidence the Trial Chamber would rely on, especially related to the nature of the “group” acting with a common purpose. A dissenting opinion from the Appeals Chamber argued that this lack of clarity should have led to a reversal of the decision. Judge Tarfusser’s dissent argued that a decision giving notice of a possible re-characterization must be as specific and precise as possible, in particular to allow the defense to make meaningful submissions.

The Change was Unforeseeable

Katanga’s defense team argued that it could not have foreseen this potential mode of liability while it was conducting its case. The two modes of liability are mutually exclusive, the defense argued. Under the original mode of liability, Katanga was allegedly a “principle,” or directly responsible for the crime. Under the proposed change, he would be charged as an “accessory,” which means he allegedly assisted the crime but did not commit it himself.

According to the defense, an accused cannot be charged as a principle and as an accessory on the same set of facts. Therefore, it could not reasonably have anticipated this mode of liability when it investigated the case, questioned witnesses, or made its submissions.

Allowing the defense to have additional time to recall witnesses, call new witnesses, or investigate the case further would not remedy the considerable prejudice it would face if the charges were changed, the defense argued. However, the defense did request additional time to conduct further investigations and present additional evidence if the mode of liability is changed so that it can present a full defense to the potential new charges.

In addition to the opacity of the facts and nature of the potential new charges, the defense argued that the novelty and uncertainty of this mode of liability created significant obstacles to Katanga’s trial. The defense argued that neither a trial chamber nor the Appeals Chamber has ruled on this mode of liability, creating debate and controversy about how it can be proven. According to the defense, the proposed mode of liability is a “catch all” that appears to criminalize “other” contributions to crimes committed by a group of persons acting with a common purpose that do not fit into concepts such as ordering, soliciting, inducing, aiding, abetting, or assisting found elsewhere in Article 25.

Violation of Fair Trial Rights

Without further clarity, the re-characterization would violate Katanga’s fair trial rights, the defense argued. It would violate his right to timely, clear, and consistent information detailing the factual basis of the charges against him, the defense argued. According to the defense, the change also risks a violation of his fair trial rights not to be compelled to admit guilt. The defense submitted that much of the evidence the chamber would rely on arises out of the judges’ questioning of Katanga when he gave evidence. If Germain Katanga had not testified, or had simply denied everything, he would have been acquitted, the defense argued. Instead, the defense noted, Katanga decided to testify and provide a better understanding of the conflict and the context in which the crimes were allegedly committed. Because of this, the change in the mode of liability is especially prejudicial, the defense argued, and contradicts jurisprudence from the European Court of Human Rights.

Changing the charges would risk the legitimacy of the ICC and would lead to a distortion in the balance between “closing the impunity gap” and protecting the fair trial rights of accused, the defense submitted. Moreover, the defense contended, it would also risk the chambers improperly taking on a prosecutorial function.

The defense also argued that there is a risk that using this mode of liability will lead to “guilt by association.” This was explicitly rejected in drafting the Rome Statute, the defense noted, and would contravene the principles of “gravity” and prosecuting “those who bear the greatest responsibility,” pillars of the ICC.

Katanga Should be Acquitted

However, even if the mode of liability were to be changed, the defense submitted, the trial chamber should acquit Katanga. The defense contended that to convict Katanga under Article 25(3)(d), the prosecution would need to prove that Katanga made a “substantial” contribution that made or was capable of making a tangible difference to the successful commission of crimes. The prosecution submitted, however, that Katanga’s contribution needed to be “significant” and merely linked to the commission of a crime by the group. This distinction is critical and unsettled in the ICC jurisprudence, the defense argued.

However, according to the defense, there is not enough evidence to establish that Katanga made either a substantial or a significant contribution to the crimes.

According to the prosecution, the Ngiti combatants attacked Bogoro in a planned and coordinated manner, leading to the commission of war crimes and crimes against humanity. The prosecution contended that the evidence demonstrates that Katanga contributed to crimes committed in Bogoro by:

  1. Organizing and participating in discussions with other Ngiti commanders that led to the plan to attack the village; and
  2. Obtaining and distributing weapons and ammunition to the Ngiti combatants that committed the crimes in Bogoro.

However, the defense argued that Katanga made a contribution to a plan formulated and carried out by the DRC government (vis-à-vis the Integrated Operational Head Command (EMOI)), the Congolese People’s Army (APC), and the Congolese Rally for Democracy (RCD-KML) to regain control of eastern DRC.  The defense submitted that this group that does not appear in the charges against Katanga, either confirmed or proposed. The majority’s notice decision refers to the group as “Ngiti combatants and commanders,” the defense noted.

According to the defense, the EMOI/APC/RCD-KML group had a legitimate, non-criminal purpose to regain territories that had fallen to foreign states and their agents, including Thomas Lubanga’s Union of Congolese Patriots (UPC). If this purpose ever became criminal, the defense argued, Katanga was unaware. He believed the attack on Bogoro was against soldiers, not civilians, the defense submitted.

Katanga’s role as “coordinator” did not imply any military rank or official role, the defense argued. Rather, the defense said it was a title Katanga chose for himself that referred to his mediating role between the different local commanders and groups of combatants. The defense argued that Katanga was not in a position to make decisions about the EMOI/APC/RCD-KML plan to attack Bogoro and retake parts of eastern DRC. As a coordinator, his role was merely to negotiate, the defense claimed.

Moreover, he was not a leader of the Ngiti combatants at the time of the attack, the defense contended, and later became their leader in name only, but not in reality. According to the defense, it was only in 2004 that Katanga officially became President of the FRPI and had increased control over the group.

The defense also asserted that Katanga did not make a contribution to the commission of the crimes in Bogoro. The defense argued that according to the law, the contribution needed to be made to the commission of the crimes, not merely to members of the group. This type of contribution is not substantiated by the evidence, the defense argued. Any arms that were supplied or delivered to combatants that attacked Bogoro were provided by the DRC government and distributed by the APC, the defense asserted. There is no evidence the weapons distributed by Katanga were used in the attack on Bogoro, nor that Katanga was in Bogoro or controlled the attackers, the defense claimed.

Based on these and other legal arguments, the defense argued that the chamber should not change the charges against Katanga and that even if it did, Katanga should be acquitted. The judges will now consider the submissions made by the parties and issue a decision on this critical issue.