The prosecution and the legal representatives for victims have responded to Germain Katanga’s appeal against possible legal changes in the case against him. The International Criminal Court (ICC) charged Katanga with crimes against humanity and war crimes allegedly committed during an attack on Bogoro, a village in the eastern part of the Democratic Republic of the Congo (DRC). Katanga was charged with “indirect co-perpetration” of the crimes – allegedly by using a militia, the Force de résistance patriotique en Ituri (FRPI), to carry out the crimes. His co-accused, Mathieu Ngudjolo, was also charged with indirect co-perpetration for using another militia, the Front des nationalistes et intégrationnistes (FNI), to commit crimes during the Bogoro attack. The prosecution claimed the two accused had jointly planned and executed the attack.

The trial opened on November 24, 2009 and closed on May 23, 2012. Nearly six months later, on November 21, 2012, a majority of Trial Chamber II, Judge Christine Van Den Wyngaert dissenting, informed the parties that it is considering a re-characterization of the mode of liability applicable to Katanga. Acting under Regulation 55 of the Regulations of the Court, the majority of the judges would change Katanga’s mode of liability to Article 25(3)(d)(ii), a “lesser” form of liability called “common purpose” liability. It essentially means Katanga would be charged for unintentionally, but knowingly, contributing to the crimes instead of being directly responsible for them. The new mode of liability would apply to all crimes, except for those relating to the use of child soldiers. Due to this development in the case against Katanga, the judges severed the two cases. In mid-December, Ngudjolo was acquitted of all charges and released; the prosecution has appealed.

Katanga has appealed the decision and asked for it to be suspended. The majority’s notification decision is not final, as it only notifies the parties that they are considering a change and asks for submissions about the proposed change. However, Katanga’s defense argued that the modification violated the Rome Statute and falls outside the scope of Regulation 55 and violates his fair trial rights.

The prosecution argued that the trial chamber did not make any errors in its decision. The trial chamber majority acted properly when it gave its notice, the prosecution argued. Changing the mode of liability from the one charged, which the defense characterized as a “radical effect,” is simply the normal effect of Regulation 55, the prosecution argued.

In fact, the prosecution noted, the Appeals Chamber has held that there is nothing in the Rome Statute that prevents the chamber from making this change.  According to the prosecution, there is nothing in the ICC’s documents or rules that limits the scope of changes the chamber can make under Regulation 55, as long as the trial chamber:

1. Remains within the facts and circumstances described in the charges;
2. Gives the parties a chance to make arguments about the changes, time to prepare a new defense, and to recall or call new witnesses; and
3. Protects the fair trial rights of the defendant.

The prosecution also argued that there was nothing wrong with the timing of the majority’s notice. The defense had argued that giving notice of such legal changes must only be done at the “appropriate stage” of the trial and should be done before all of the evidence has been heard. The prosecution, however, argued that the chamber could change the legal nature of the charges any time until the trial has concluded, which, the prosecution argued, is when there has been a judgment, and, if appropriate, decisions on sentencing and reparations. What the chamber must do at an “appropriate stage,” the prosecution contended, was give the participants a chance to make submissions about the proposed change.

Moreover, the prosecution argued, the purpose of Regulation 55 is to close impunity gaps. According to the Appeals Chamber, Regulation 55 is meant to prevent acquittals based on legal qualifications determined at the pre-trial stage that turn out to be incorrect based on the evidence heard at trial. What the majority has done in this case, the prosecution argued, is perfectly in line with that goal—after evaluating all of the evidence, it has realized that the legal characterization determined at the pre-trial stage, when only some of the evidence was presented, was incorrect. This, the prosecution contends, is exactly the scenario Regulation 55 was designed to address.

The defense arguments that Katanga will be prejudiced by the majority’s decision are premature and speculative, the prosecution argued. The decision was only a notice of a possible change, and does not anticipate any concrete findings about changes to the alleged mode of liability. According to the prosecution, the defense arguments overlook the range of measures the chamber can take to make sure that Katanga receives a fair trial. Simply triggering Regulation 55 does not automatically infringe on his fair trial rights, the prosecution claimed. The prosecution argued that the impact of the majority’s actions on Katanga’s fair trial rights can only be evaluated based on what the chamber ultimately decides in its final judgment.

The prosecution also argued that it is too soon to evaluate whether the majority’s decision went beyond the facts and circumstances of the case. The prosecution claimed that because it was merely a notice decision about a potential change, the potential re-characterization cannot be evaluated.

The legal representatives for victims made arguments similar to those made by the prosecution.