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Katanga Defense Notes Challenges in New Investigations

The defense team for Germain Katanga has encountered difficulties in conducting additional investigations, it has told Trial Chamber II of the International Criminal Court (ICC). Katanga faces charges of war crimes and crimes against humanity allegedly committed during an attack on Bogoro, a village in eastern Democratic Republic of the Congo (DRC) in 2003. Katanga was charged with leading a group of Ngiti combatants in the attack, together with Mathieu Ngudjolo, allegedly the leader of a Lendu group of combatants.

After the trial had ended, the trial chamber majority, Judge Christine Van den Wyngaert dissenting, notified the parties that it might alter the mode of liability charged against Katanga. The two cases were separated and Trial Chamber II acquitted Ngudjolo in December 2012.

The trial chamber granted Katanga’s defense permission to conduct further investigations in light of the possible change. If it decides it is necessary, the trial chamber may re-open the trial to allow testimony about the proposed new mode of liability.

On August 5, the defense was required to provide an initial list of witnesses it intends to recall to testify, including those prosecution or defense witnesses that have already given testimony. The defense told the trial chamber that it will not recall any prosecution witnesses and described difficulties it faces in conducting the post-trial investigations.

Interviewing Prosecution Witnesses

In July, the defense submitted, it conducted an investigation trip to the DRC in order to meet with three prosecution witnesses. The defense interviewed P-323, P-233, and P-268 about areas important to the potential new mode of liability. An OTP representative was present at these meetings, the defense said.

During trial, P-323, a former Union of Congolese Patriots (UPC) soldier, had testified that both Ngiti and Lendu combatants killed at random during the attack on Bogoro, making no distinction between civilians and UPC soldiers. Witness P-268 testified that he was detained by combatants in a room full of dead bodies at the Bogoro Institute. He testified that the next day he was forced by a group of both Lendu and Ngiti combatants to lure other civilians out of their hiding places by speaking Hema. This witness testified that the mixed group of combatants then started shooting and took the civilians away. Witness P-233, who testified that the attackers were Lendu and Ngiti, corroborated P-268’s evidence, the prosecution has argued. This evidence shows that Ngiti combatants were responsible for the alleged crimes committed in Bogoro, the prosecution submitted. It also shows that the combatants intended to attack Hema civilians, the prosecution argued. The defense likely asked these witnesses more about the specific identity of combatants who committed specific crimes and possibly about other details relevant to German Kantaga’s alleged contribution of arms used during the attack.

The defense stated that there was additional information the witnesses—in particular P-323—could provide that would be relevant to the trial. However, the defense stated it would not seek to recall any of these or any other prosecution witnesses.

Challenges to Investigations

Katanga’s defense listed several difficulties with conducting investigations after a trial has concluded. First, the defense noted, the questioning is far removed and isolated from the trial process. This makes it difficult to deal with issues about modes of liability that would normally be asked about during the course of the trial, the defense said. Secondly, it was not practical to deal with these significant issues by unplanned recall of particular prosecution witnesses, the defense complained. The defense was also concerned that, if it were to recall prosecution witnesses to testify, it would have no idea of what the prosecution might also ask of these witnesses. This would be a potentially unwise risk for the defense to take under these circumstances.

The defense also informed the trial chamber that it could not say for certain whether it would recall any defense witnesses. The defense said it has been handicapped by the extreme security challenges currently faced by its team operating on the ground in the DRC. The security situation has made investigations “extremely difficult or impossible to conduct,” the defense submitted.  In spite of having an investigator on the ground for several weeks, he has made only very limited contact with defense witnesses, the defense stated. This applies to defense witnesses that might be recalled or new witnesses that might be relevant to the change in mode of liability.

The trial chamber has required the defense to submit a final list of witnesses and other evidence it would like to tender in light of the proposed change in charges by September 17, 2013. The defense told the chamber that it will attempt additional investigation trips and will update the Chamber on its progress in due course.