Responding to a request by Trial Chamber II of the International Criminal Court (ICC), the prosecution has submitted its observations on the proposed changes to the charges against Germain Katanga. Katanga, who faces charges of three crimes against humanity and seven war crimes, has been on trial before the ICC since November 2009. Nearly six months after the trial closed, a majority of Trial Chamber II, Judge Christine Van Den Wyngaert dissenting, informed the parties that it might change the mode of liability Katanga faces. According to the prosecution, Katanga should be found guilty of alleged war crimes and crimes against humanity, even if the trial chamber changes the nature of the charges he faces.
The ICC Prosecutor charged Katanga with crimes allegedly committed during an attack on Bogoro, a village in the eastern part of the Democratic Republic of the Congo. Katanga was originally charged with “indirect co-perpetration” of the crimes—allegedly by using a primarily Ngiti 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, primarily Lendu 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 and that the purpose of the attack was to “wipe out” the primarily Hema inhabitants of Bogoro.
Acting under Regulation 55 of the Regulations of the Court, the majority of the judges are considering changing Katanga’s alleged 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. In mid-December, Ngudjolo was acquitted of all charges and subsequently released; the prosecution has appealed his acquittal.
The trial chamber sought submissions from the parties on the proposed changes. After the defense appealed this proposed change and lost, the parties submitted their observations. The trial chamber will now determine whether it will change the charges, and if so, how.
In its recent submission, the prosecution argued that the evidence the chamber heard during the trial would support a conviction if the charges were changed. In order to prove Katanga is guilty under “common purpose” liability, the prosecution has to prove that Katanga made a significant contribution to crimes committed by a group acting according to a common criminal purpose. 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:
- Organizing and participating in discussions with other Ngiti commanders that led to the plan to attack the village; and
- Obtaining and distributing weapons and ammunition to the Ngiti combatants that committed the crimes in Bogoro.
The group does not need to have a “common plan” to specifically commit crimes, but its plan needs to include some element of criminality. The prosecution argued that the “common plan” can be implicit. The common plan can also be inferred from the concerted action of the group or from the intention of a leader who has played a major role in the group, such as by creating, leading or organizing the criminal activities of the group, the prosecution submitted. The common plan can also arise suddenly, and does not necessarily need to be pre-formed, the prosecution argued. The prosecution also maintained that the accused does not necessarily have to be a member of the group or share the common purpose, only the people who physically commit the crimes.
The prosecution argued that any contribution to the crimes would be sufficient for conviction, as long as it was linked to the commission of the crimes by the group. This contribution can be linked to the physical perpetration of the crimes, such as by providing weapons or ammunition, or it can be linked to the mental state of those who committed the crimes, such as by encouraging troop morale, the prosecution argued. Also, the prosecution claimed, the contribution can be linked to any members of the group, even if that member of the group did not physically commit the crime.
This means that the prosecution would have to prove that the combatants who committed the attack on Bogoro were part of a group that shared a common plan. However, it would not be necessary to prove that Katanga was a member of that group, just that he contributed to their commission of the crimes. The prosecution argued that the Ngiti combatants from the Walendu-Bindi collectivité, which eventually became known as the FRPI, formed the “group” that attacked Bogoro. The group acted according to a common plan to attack Bogoro and “wipe out” the predominantly Hema population living there, the prosecution argued.
The prosecution alleged that Katanga was the leader of this group and contributed to their crimes. According to the prosecution, Katanga intentionally made this contribution by organizing planning meetings with other leaders of the Ngiti combatants and distributing weapons and ammunition to them. The prosecution argued that Katanga knew these weapons were to be used to attack and “wipe out” the Hema population of Bogoro.
Therefore, if the trial chamber decides to change the charges, Katanga should be found guilty, the prosecution argued.