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ICC Prosecutor Seeks to Amend Ntaganda’s Mode of Liability

Fatou Bensouda, the chief prosecutor at the International Criminal Court (ICC), has asked judges to issue a notice for the potential modification of facts of the charges against Congolese rebel leader Bosco Ntaganda.

According to Ms. Bensouda, judges should consider the legal characterization of facts in the Ntaganda case to change to an additional alternative mode of liability as “direct co-perpetrator”.

In her March 9, 2015 submission, Ms. Bensouda stated that all of the crimes for which Mr. Ntaganda is charged as a direct perpetrator form part of or were the consequence of a common plan between one or more persons. Accordingly, it would be possible for the trial chamber to consider and establish an alternative mode of liability “given the overlap between the elements of direct and indirect co-perpetration, and in view of the close proximity of the co-perpetrators to the crimes including by committing them themselves.”

Mr. Ntaganda is facing 18 counts of war crimes and crimes against humanity at the world court. The alleged crimes were committed during an ethnic conflict in Congo’s Ituri province in 2002 and 2003, when he allegedly served as deputy chief of staff of the Patriotic Forces of the Liberation of Congo (FPLC). In March 2012, the group’s leader, Thomas Lubanga, was convicted of conscripting, enlisting, and using children under the age of 15 in armed conflict and sentenced to 14 years’ imprisonment.

At the pre-trial stage, judges found sufficient evidence indicating that jointly with other persons, Mr. Ntaganda committed the 18 crimes through other persons including members of the FPLC and accordingly “bore criminal responsibility as indirect co-perpetrator and not as a direct co-perpetrator.”

Whereas the pre-trial chamber was also satisfied that Mr. Ntaganda as a direct perpetrator physically carried out some of the alleged crimes, the prosecution argued that pre-trial judges “did not set out the elements required for direct co-perpetration.”

In addition, the prosecutor argued that the chamber did not reconcile its approach with regard to the existence of an agreement or common plan between the accused and at least one other co-perpetrator. She said the chamber also did not consider that the accused contributed to the purported common plan; or his intention and awareness of the consequences of the common plan.

“Direct co-perpetration is not limited to instances of physical execution of any element of a crime,” argued Ms. Bensouda.

Although notice for possible re-characterization of the charges may be given at any time during the trial, the prosecution submitted that that providing it earlier would ensure that both the prosecution and the defense “present their evidence and examine witnesses with full knowledge of the possibility that the accused’s conduct could be re-characterized as direct co-perpetration.”

Furthermore, she said, it would allow the chamber to consider evidence in light of the additional mode of liability as it is tendered, as opposed to “retroactively.” The prosecutor also argued that earlier notice would avoid significantly extending the length of the trial due to adjournments, recalling of witnesses or calling new witnesses.

Regulation 55 of the Regulations of the Court provides for a trial chamber to change the legal characterization of facts of crimes accused or the form of participation of the accused without exceeding the facts and circumstances described in the charges. Notice of the possibility to change can be issued at any time during the proceedings. Parties and participants may be given the opportunity to make oral or written submissions as well as adequate time for preparation on matters relevant to the proposed change.

In the ongoing trial of Jean-Pierre Bemba, hearings were suspended for several weeks following the issue of judges’ notice of a potential change to the legal characterization of the accused’s mode of liability. The defense opposed any re-charaterization at what they called a late stage in the trial.

Mr. Ntaganda’s trial is scheduled to commence on June 2, 2015.