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No Further Defense Investigations, Trial Chamber Moving Forward in Katanga

The trial of Germain Katanga seems to be moving forward after a stall of nearly one year. Trial Chamber II of the International Criminal Court (ICC) has asked Katanga’s defense team to submit observations on a new mode of liability based on the current facts of the case. It seems that the chamber will then move ahead in deliberations for a final judgment. It thus appears that the case will not be re-opened, and there will not be any additional testimony.

Katanga is being tried by the ICC for alleged crimes against humanity and war crimes committed during an attack on Bogoro, a village in eastern Democratic Republic of the Congo (DRC). In late 2012—after both parties had rested their cases—the Trial Chamber, by a majority, notified the parties that it might change the mode of liability in the case against Katanga. Whereas he had been tried for the crimes under “indirect co-perpetration” under Article 25(3)(a), the trial chamber has considered changing that to charges involving “common purpose” liability under Article 25(3)(d).

The chamber permitted the defense to conduct new investigations in order to offer a defense against the potential new charges. However, the defense submitted that it was unable to conduct the investigations because it has faced significant logistical and security challenges in conducting investigations in eastern DRC, which recently has experienced renewed violence. The defense was unable to find any additional evidence and asked the trial chamber to refrain from changing the charges against Katanga.

Challenging the Defense Submissions

The trial chamber requested the Registry to investigate the security and logistical situation in Ituri during the time of the defense investigations. The chamber wanted to know whether the security situation had indeed made it impossible for the defense to conduct investigations and whether it was likely to improve anytime soon.

The Registrar found that, without underestimating that such trips would be difficult, it would have been possible to conduct investigations in relevant villages and towns before August 23, 2013 – when the defense was investigating. The Registrar also noted that the defense had not been responsive to requests of the Registry’s safety and security division about updates on the defense’s investigation plans. However, the Registry concluded that as of late August 2013 the security situation has deteriorated and investigations will be impossible for the foreseeable future.

The prosecution also rejected the defense conclusion that investigations were not possible and argued that the defense had not taken sufficient steps to notify the trial chamber or the Registry of the difficulties it was facing. The legal representatives for victims made similar submissions, claiming that the defense had not shown that it had made every effort to conduct its new investigations.

The defense requested trial chamber authorization to respond to these submissions and to provide details about its investigative efforts.

Trial Chamber Majority Decides to Move Forward

In a decision about the defense investigations, the trial chamber majority, Judge Christine Van den Wyngaert dissenting, recalled the Appeals Chamber’s calls for the trial chamber to both respect the rights of the defense and to complete the trial within a reasonable time. The trial chamber concluded that it would therefore confine itself to taking note of the defense position. The chamber said it would take the defense submissions into consideration, as well as the submissions by other participants, when deciding in the final judgment whether re-characterizing the charges would violate Katanga’s rights. The chamber requested the defense to submit a reply to the arguments of the prosecution, legal representative for victims, and the Registrar.

The chamber also requested the defense to file observations based on the existing evidence about three key aspects of the potential change in mode of liability: attacks on other villages in the area (including Nyankunde); the identification of perpetrators; and the relationship between weapons delivered to Katanga’s alleged combatants and the crimes in Bogoro.

Dissenting Opinion of Judge Van den Wyngaert

Judge Van den Wyngaert dissented, arguing that before asking the defense to submit observations on Article 25(3)(d), it should first decide whether the defense could conduct effective investigations in the DRC. The chamber should then decide whether it would violate Katanga’s fair trial rights to re-characterize the charges without conducting additional investigations, she argued. If both questions are answered negatively, the chamber should not alter the charges against Katanga, she said.

Until these issues are resolved, Judge Van den Wyngaert considered, deciding on additional procedural steps is untimely. Otherwise, she said, the Majority is essentially – and prematurely – testing the defense argument that it cannot mount an effective defense without additional evidence.