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Trial Chamber Majority Grants Defense Leave for Further Investigations

Recognizing that additional facts may be needed to evaluate Germain Katanga’s criminal responsibility under a potentially different mode of liability, Trial Chamber II, by a majority, has granted the defense additional time to conduct investigations in Katanga’s trial at the International Criminal Court (ICC). Judge Christine van den Wyngaert dissented, maintaining her view that the trial chamber should not consider changing the charges and should move immediately to a judgment in the case.

Although the defense indicated that additional investigations could take six months, the Chamber majority asked the defense to provide lists of potential witnesses in July and September 2013. Then, the majority said, it will decide whether it is in the interests of justice to reopen the case under Regulation 55(3). The majority said that if it did decide to reopen the case, it would hold hearings in September and October 2013.

The prosecutor originally charged Katanga and his co-accused Mathieu Ngudjolo Chui 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.

After the parties had made their closing arguments, 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). 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.

The majority of Trial Chamber II provided additional information (available here) about the potential change.

However, the defense argued that it lacked sufficient information regarding the potential new mode of liability. In order to meet its obligations to protect Katanga’s fair trial rights, the defense requested time and resources to conduct additional investigations.

The defense has alleged that the proposed change is outside the scope of the confirmation of charges decision. The chamber did not make any findings on the merits of these. This stage of the proceedings, the majority said, is to ensure the defense can fully exercise its fair trial rights. However, to assist the defense in its investigations, the majority made observations on what it considered the most critical issues relevant to the potential change.

The trial chamber majority agreed with the defense on a number of points—but not all—where more information was needed. The majority’s observations are summarized below.

Trial Chamber Majority Observations on Need for New Evidence

Regarding the relationship between Katanga and members of the Ngiti group of that allegedly attacked Bogoro, the majority noted that the original charges focused on Katanga’s control over Ngiti combatants labeled as “FRPI” in the confirmation of charges. Therefore, the chamber majority noted, evidence focused on the FRPI as an organization and Katanga’s relationship with the FRPI. In particular, it focused on whether the FRPI was a hierarchical or military organization, if its members were organized into camps with commanders and whether Katanga commanded one of those camps in Aveba. The evidence also focused on whether the FRPI commanders could communicate with Katanga and whether Katanga had the rank and authority to judge and punish the combatants, the majority noted.

Indeed, the majority noted, the relationship between Katanga and the Ngiti combatants and commanders, how they carried out their activities and whether they were a homogenous group of fighters were central issues at trial and discussed in the final written and oral submissions of the parties. Therefore, it did not accept the defense argument that its observation about the close collaboration between the Ngiti camps and commanders in Walendu-Bindi is a “new fact” that does not appear in the Pre-Trial Chamber’s confirmation of charges decision. The defense had ample opportunity to address this issue at the end of trial, the majority considered.

The majority noted the defense request for more “formal” information about meetings between members of the Ngiti group and about whether Katanga was present at any meetings where the alleged criminal plan was discussed. However, the majority stated, Article 25(3)(d) of the Rome Statute does not require demonstration of the existence of a common plan between members of the group that acted according to a common purpose. The majority thus distinguished between a “common plan” and a “common purpose,” and noted that a common purpose could be shown through both direct and indirect evidence.  For example, the majority suggested that evidence about the dominant ideology of the group, how fighters were mobilized before the battle, the organization of the troops and how the attack took place could be evidence of a common purpose, even if it is not necessarily evidence of a common plan.

The defense had also argued that there was no basis in the confirmation of charges for the allegation that the Ngiti fighters had the intention to commit crimes when they attacked Bogoro. The chamber majority disagreed, recalling the pre-trial chamber’s analysis of the mental element of the FNI/FRPI as direct perpetrators of the crimes. Therefore, the majority considered, it was only logical for it to state that the FRPI combatants had the intent to commit each crime. Moreover, this intent was addressed in several instances in the prosecution’s final trial brief, the chamber majority noted.

Another contentious issue was Katanga’s knowledge of crimes committed in a prior battle in Nyankunde. This, the majority stated, is very important to determining Katanga’s criminal responsibility under the proposed new mode of liability. It is not only relevant to analyzing the common purpose of the group and the group’s intention to commit the crimes in Bogoro, but it is also important to assessing Katanga’s knowledge of this intent based on the previous activities of the group. Given its importance, the majority supported the defense’s investigation of this issue.

The majority also addressed the defense concern about the criminal behavior of Lendu and other groups of fighters being wrongly ascribed to Ngiti combatants. The majority noted that the issue was not particularly developed in previous proceedings. It therefore supported the defense request to recall prosecution witnesses to question them on this issue.

During his testimony, Katanga said that he had played a “coordinating” role among the different groups of combatants and militias operating in Walendu-Bindi around the time of the Bogoro attack. This has become an important aspect of the trial chamber majority’s possible change in the alleged mode of liability because this coordination could be considered enough of a contribution to the crimes to convict Katanga. Although the defense wants to investigate this issue further, the majority said that it had already been addressed at trial. In particular, the majority recalled the defense arguments that Katanga’s role was to liaise between the local combatants and militias that were controlled by the DRC government.

The defense has also taken issue with the lack of details about whether Katanga supplied weapons to the individual combatants who fought in Bogoro and whether those specific weapons were used to commit crimes in Bogoro. The trial chamber majority acknowledged that this topic was very important in assessing Katanga’s liability under the potentially new mode of liability and that it had not been thoroughly assessed at trial.

The majority noted that the defense has had notice of the potential change in mode of liability since November 21, 2012, at which time it could have begun developing its strategy for further investigations. The majority acknowledged that it must protect Katanga’s fair trial rights, including the right to a trial without undue delay. The majority therefore set two deadlines for the defense to provide new lists of witnesses, and said that under very exceptional circumstances it would entertain a request for an extension. The defense must provide a first list of witnesses at the end of July 2013, and a final list of witnesses and evidence in September 2013.

Once the Trial Chamber has a list of witnesses the defense intends to call or recall, the majority stated, it will decide whether or not to reopen the case and hear additional testimony. The majority emphasized reopening the case was not an automatic right of the parties and was based on the trial chamber’s discretion. It said the primary purpose of reopening the trial under Regulation 55(3) was to allow the defense to present its views on certain aspects of the case relevant to the proposed new mode of liability that were not sufficiently addressed at trial. The proposed change might substantially alter the narrative of the case, the majority acknowledged, and the defense should be afforded the opportunity to explore some areas of the facts that might now be of greater importance than before. The majority noted that if it decides to reopen the case, it would potentially hold hearings during the first and third weeks of September 2013 and in October 2013.

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