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Dissenting Judge Says Katanga’s Fair Trial Rights Not Protected

After the majority of Trial Chamber II at the International Criminal Court (ICC) provided additional information about a potential change in charges facing Germain Katanga, Judge Christine Van den Wyngaert submitted a dissenting opinion. The full decision with Judge Van den Wyngaert’s dissent is here.

The prosecutor originally charged Katanga and co-accused 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 having committed the crimes through “indirect co-perpetration,” where the Katanga and Ngudjolo allegedly used hierarchical organizations (the Ituri Patriotic Resistance Force (FRPI) and the Nationalist and Integrationist Front (FNI), respectively) to carry out the crimes according to Katanga and Ngudjolo’s common plan to wipe out Bogoro.

Acting under Regulation 55 of the Regulations of the Court, the trial chamber majority, Judge Van den Wyngaert dissenting, notified the parties that it would likely change Katanga’s mode of liability to “common purpose” liability under Article 25(3)(d)(ii). 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.

Katanga appealed the Regulation 55 decision and lost. The Appeals Chamber did not find any violations of his fair trial rights, but it did indicate that the trial chamber decision lacked detail about the factual basis for the new charges. The trial chamber majority recently issued a decision providing additional information about the factual and legal basis for the potential change.

Judge Van den Wyngaert disagreed with the majority’s position that communicating these factual allegations would help the defense effectively prepare for the potential change. She also disagreed with the argument that these factual allegations were all based on the confirmation of charges materials. Judge Van den Wyngaert did not think that the additional information was detailed or specific enough to protect Katanga’s right to be informed in detail of the nature, cause, and content of the charges against him. Katanga cannot effectively defend himself, she found. She also said she had “serious doubts” about whether the facts provided by the trial chamber majority were within the charges confirmed by the pre-trial chamber. Judge Van den Wyngaert called upon the majority to maintain the original charges and move forward with its judgment.

Facts and Circumstances

Under Regulation 55, the judges can make changes to the legal charges against an accused at any stage of the trial as long as the change does not exceed the “facts and circumstances” confirmed by the pre-trial chamber. Judge Van den Wyngaert considered that it was important to analyze exactly what the phrase “facts and circumstances” means when it comes to making changes under Regulation 55. Unlike the majority, Judge Van den Wyngaert does not think that every word of the confirmation decision qualifies for reconsideration under Regulation 55. She said a distinction needs to be made between the actual “facts and circumstances” of the confirmed charges and factual references made in the pre-trial chamber’s reasoning about the evidence.  According to Judge Van den Wyngaert, the majority should have explained why it relied on certain factual information contained in the confirmation of charges decision or whether it thought some information would be “out of bounds” from consideration.

She suggested a test to determine whether the additional information provided by the majority was within the “facts and circumstances” of the confirmation of charges. The test should be “whether the factual allegations, cited in support of a charge under article 25(3)(d), correspond to the ‘facts and circumstances’ as they were confirmed by the Pre-Trial Chamber,” Judge Van den Wyngaert considered (para 8).

She thought that under Regulation 55, the trial chamber could only change factual allegations confirmed by the pre-trial chamber but not new facts or references to evidence supporting a fact. Footnotes paraphrasing witness evidence was not part of the “facts and circumstances” of the case, she said. She argued that “the Pre-Trial Chamber does not confirm evidence; it only confirms allegations. Any reference to evidence therefore cannot be understood as being part of the “facts and circumstances” (para 13).

Katanga Faces Completely New Allegations

For example, Judge Van den Wyangaert noted that the first fact identified by the majority provided a new narrative and ignored key distinctions in the case. The majority identified an alleged fact that the group of persons acting with a common purpose was comprised of “Ngiti combatants of the collectivité Walendu Bindi, sometimes referred to under the denomination FRPI.” Van den Wyangaert noted, however, that the direct source of this fact, the confirmation of charges decision, referenced “FNI-FRPI combatants.” She laments the lack of the majority’s explanation for omitting a reference to the FNI/FRPI and notes that the pre-trial chamber treated them as a single group.

The distinction between these armed groups—whether they acted together or separately—was a central aspect of the case, she noted. “By simply ignoring this in the new narrative, the Majority essentially annuls all the Defense efforts and presents them with a new, fundamentally different case they must now answer – one year after closing arguments were heard,” Judge Van den Wyngaert argued (para 11).

She also complained that the majority has added “significant new elements” to what was confirmed by the pre-trial chamber. For example, she notes a “totally new” allegation that the group of commanders and combatants independently decided to attack Bogoro and commit crimes there. However, she notes that these are likely the same people who were originally alleged to have been Katanga’s “blindly obedient subordinates.” Now, she notes, they allegedly have a completely new role. The trial chamber’s methodology in determining the relevant factual allegations for the potential change in charges amounts to “cherry-picking random factual references,” she claimed (para 15).

The factual allegation that the members of the group were filled with hatred towards the Hema population is new, Judge Van den Wyngaert claimed. She maintained that it is based on factual claims taken out of context and “recycled” into something new and different. She argued that there is no mention of this hatred in the confirmation decision but was inferred by the trial chamber majority by references to combatants singing songs with hate-filled lyrics, an alleged desire for revenge against the Hema, and the portrayal of Hema as “enemies” of the Ngiti. This inference is unacceptable, Judge Van den Wyngaert argued.

According to Judge Van den Wyngaert, the trial chamber majority also introduced new factual allegations with its reference to the alleged fact that Katanga contributed to the group through facilitating communication between the group and local authorities. This role is simply not mentioned in the confirmation decision, the dissenting judge claimed. Moreover, there is no mention that Katanga’s facilitation would have assisted the crimes in Bogoro, she said.

The trial chamber also took factual allegations out of context when it derived the allegation that Katanga knew about the intention of the group’s commanders to commit crimes, Judge Van den Wyngaert argued. There was nothing in the confirmation of charges that relates to the mental state of the Ngiti commanders or their subordinates, she explained. Judge Van den Wyngaert said that the majority also introduced new factual allegations regarding Katanga’s participation in the attack on Nyankunde. A close reading of the source of this allegation in the confirmation decision shows that the pre-trial chamber concluded that Katanga and Ngudjolo were both involved “in some way” in other attacks, including on Nyankunde. There is a substantial difference between these two factual allegations, she maintained.

Judge Van den Wyngaert argued that the changes proposed by the majority of the trial chamber exceed the facts and circumstances of what was included in the confirmation of charges decision. She said that her position is not that all potential changes under Regulation 55 would be similarly inappropriate but that it comes down to a question of fact and degree. In this case, she maintained, the proposed change goes too far.

It is not simply a question of changing the narrative of a case, she argued. A fact that is seemingly unimportant to one narrative might be the essential fact of a different narrative, she said. Because the defense prepares its case on the basis of the narrative or narratives confirmed by the pre-trial chamber, it might decide to devote significant resources to one fact and not another. Therefore, if the narrative changes and that previously less-important fact becomes critical to the case, the defense would not have had the opportunity to effectively address it, the dissenting judge explained. This unfairness is also acute when important parts of the original narrative are deleted from the new narrative or where the relevance and significance of the evidence changes considerably between the two narratives, Judge Van den Wyngaert said.  According to Judge Van den Wyngaert, Katanga now faces a completely new case—and one that is not clearly explained.

Fair Trial Rights are Not Protected

The notice the majority provided is not enough to protect Katanga’s fair trial rights, Judge Van den Wyngaert maintained. For example, she noted that the majority relies on an alleged fact that Katanga contributed to the crimes by providing arms that were used in the attack. However, she pointed out, there was no explanation about whether and how these weapons were actually used on victims in Bogoro, which arms were obtained, and which were actually used. Without this additional detail, she said, the defense cannot adequately dispute this allegation. Judge Van den Wyngaert opined that while these and other similar details might not be necessary under the original “indirect co-perpetration” mode of liability, they take on additional significance under the proposed “common purpose” liability.

Judge Van den Wyngaert further stated that, in her opinion, the majority should have narrowed the charges that would be plausibly covered by the proposed new mode of liability. Specifically, she opined that Katanga’s alleged contributions to the crimes have little to do with the alleged crimes of pillaging, destruction of property, or sexual slavery and rape. This, she says, raises many questions about the limits of interpreting liability under Article 25(3)(d) and could “needlessly” prolong the trial.

Majority Appears Biased

Judge Van den Wyngaert reiterated her argument that the re-characterization of the facts so late in the case created a perception of the majority’s bias. She had previously argued that, by notifying the parties that they might change the mode of liability, the majority was suggesting that they would acquit Katanga for indirect co-perpetration of the crimes and considered common purpose liability as a way to convict him.

She acknowledged that the Appeals Chamber did not agree with her position when it held that the timing of the Regulation 55 notification decision did not give the perception of bias. However, Judge Van den Wyngaert argued, this view is only correct when Regulation 55 is applied correctly. Normally, she contended, the Trial Chamber would not need to give lengthy explanations to the accused about the “facts and circumstances” relevant to the new charges. Because the majority felt the need to do that in this case, Judge Van den Wyngaert noted, the majority had acknowledged that the accused needed additional information about the charges he faces. She maintained that:

By having to formulate what can only be described as new charges, the Majority finds itself in the uncomfortable position of being accuser and judge at the same time. The fact that judges have started these proceedings down a path so unclear that new charges had to be formulated at the end of a trial, after all the Prosecution’s evidence has been heard, inevitably creates an appearance of bias (para 39).

Based on the arguments described above, Judge Van den Wyngaert called upon the majority to refrain from considering any changes to the mode of liability against Germain Katanga and to proceed immediately to render its final judgment.