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Katanga Lacks Details about Possible Changes to His Case, Defense Argues

Germain Katanga still lacks sufficient information about a potential change in the charges against him, his defense team has argued. Katanga, who has been on trial at the International Criminal Court (ICC) since November 2009, is therefore uninformed about the case he faces, the defense claimed, which is a violation of his fair trial rights.

The prosecutor originally charged Katanga and his 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 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.

After the parties had made their closing arguments, the trial chamber majority, Judge Christine 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). The judges have the power to make this change under Regulation 55 of the Regulations of the Court. 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.

Recently, the majority of Trial Chamber II provided additional information (available here) about the potential change. Judge Van den Wyngaert also submitted a dissenting opinion and the prosecution has submitted additional observations as well.

However, in spite of the majority’s efforts, the defense still lacks sufficient information regarding the potential new mode of liability, it has argued. He lacks a clear picture of the potential allegations and evidence supporting those allegations if the charges are changed, the defense maintained. In order to meet its obligations to protect Katanga’s fair trial rights, the defense requested the trial chamber to provide specific references to witness testimony that supports the factual allegations that purportedly support the new mode of liability.

If the trial chamber majority does change the mode of liability, it would exceed the facts and circumstances contained in the confirmation of charges decision, the defense claimed. The defense also reiterated its previous arguments that the timing of the proposed change creates the appearance of bias against Katanga.

Alleged Factual Deficiencies

The defense highlighted several areas where it found deficiencies in the majority’s provision of additional information. For example, the defense pointed to the alleged fact identified by the chamber majority that Ngiti combatants intentionally committed crimes in Bogoro. The chamber majority had suggested the defense review evidence that indicated that Ngiti combatants, at times referred to as the FRPI, committed crimes in Bogoro. However, the defense argued, the majority did not include specific information about particular combatants, where they were from, what exactly they did or against whom they acted. The confirmation of charges decision mentions “FNI/FRPI” attackers as a general aggregate group, the defense argued. According to the defense, this makes it unclear how the alleged fact would hold up in court if the evidence indicated that FNI or Lendu attackers were independently responsible for particular crimes.

The defense also took issue with the lack of detail about the link between the alleged Ngiti perpetrators and the group of Ngiti commanders who allegedly shared a common purpose to “wipe out” Bogoro. The prosecution has lumped together Ngiti people, the defense complained, arguing that the fact that some Ngiti people may have committed crimes in Bogoro does not itself demonstrate a link between them and any of the people who allegedly planned the Bogoro attack. Just because they share the same language or ethnicity does not link the Ngiti perpetrators to the group who shared a common purpose, the defense argued. Without these details, the defense cannot address the alleged connection between these direct perpetrators and Germain Katanga.

Another factual element the majority identified was that the Ngiti combatants, who allegedly committed crimes in Bogoro, were from the Walendu-Bindi collectivité. The defense argued that this did not sufficiently identify the group, given that Walendu-Bindi is a 2,500 square kilometer area of tracks and hills. The alleged purpose of the plan, to “wipe out” Bogoro, is also insufficiently detailed, the defense maintained, as is the allegation that the Ngiti “felt hatred towards the Hema population.” The Ngiti “hatred” of the Hema is not a fact included in the confirmation of charges and the reference to hate songs is based on material provided by unreliable witnesses, the defense argued. Similarly, there is nothing to support the suggestion that this hatred extended to all members of the group or those that perpetrated the crimes, the defense claimed.

“While some Ngiti individuals may have hated the Hema, that is an insufficient basis for asserting that the entire group or a specific sub-group of Ngiti commanders and combatants felt a hatred towards the Hema,” the defense argued.

The defense also argued that it needed more information about Katanga’s alleged knowledge of the group’s criminal intent. Specifically, it called for more information on when Katanga allegedly became aware of the group’s intent to commit crimes in Bogoro and about how the Nyankunde attack is relevant to that awareness. According to the defense, the Nyankunde attack was a “unique event” that does not show a pattern of attacks sufficient to infer Katanga’s knowledge that crimes would likely be committed in Bogoro.

There were several other factual deficiencies with the trial chamber majority’s assertions, the defense argued, that made it difficult for Katanga to answer the possible new charges. In particular, the majority added facts that are not included in the confirmation of charges decision, the defense submitted. Moreover, the defense argued that the trial chamber majority refers to factual findings by the pre-trial chamber that are “entirely, or largely, drawn from statements made by witnesses that are now wholly discredited or ‘non-witnesses’ […] witnesses that the Chamber has held to be wholly discredited, or were withdrawn by the prosecution as being wholly discredited, or not relied upon by the prosecution and not called at trial, or dead and not relied upon.” These “defunct” references fail to sufficiently inform Katanga of the proposed change in the alleged mode of liability.

However, the defense concedes, “It is unsurprising that the Chamber has thus far been unable to provide the necessary level of clarity, given the disintegration of the prosecution’s original theory.”

Request for Further Investigations

According to the defense, the potential change under Regulation 55 would require it to make further investigations. If the charges are changed, it would need to focus on facts that were previously unimportant but are now crucial to the case, the defense submitted. For example, the defense said, it would not have focused on the absence of a relationship with Ngudjolo—important under the previous indirect co-perpetration theory—but would have focused on Katanga’s relationship with, and knowledge of, an Ngiti group that allegedly acted according to a common plan, which is critical under the proposed mode of liability.

The defense submitted that it cannot speculate about how the investigations will unfold or what evidence it might discover. The defense suggested that it might also recall prosecution witnesses to clarify certain points about who exactly committed the alleged crimes in Bogoro. The difficult task of re-opening the investigation is further exacerbated by the unstable security situation in Ituri and North Kivu, some areas of which are inaccessible. The defense submitted that it will require six months to conduct the investigations and three months to prepare the Congo-based investigations and address security issues.