The defense for Germain Katanga has submitted observations on a potential change in the mode of liability in his case. It is unclear whether this will be the final argument presented on this issue, with the trial chamber moving directly to deliberations and a final judgment, or whether litigation will continue.

The issue has sparked intense controversy and litigation that has spanned nearly one year. The prosecutor originally charged Katanga and his co-accused Mathieu Ngudjolo Chui with crimes against humanity and 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 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 Christine 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 later acquitted Ngudjolo. 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, and still maintains, 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.

Although it was granted time to conduct new investigations, it was unable to do so, the defense claimed. The defense submitted to the chamber that it faced significant difficulties, owing in part to the deteriorating security situation in eastern DRC.

Therefore, the chamber recently decided to move forward with the case and requested the defense to submit observations on how the existing evidence should be considered in light of the new mode of liability. The chamber also requested submissions from the defense about whether it exercised due diligence in its investigation. These submissions were filed confidentially earlier this month. This decision reflects the initial time frame indicated by the trial chamber, which previously held that if it were to re-open the trial, it would hold hearings in September and October 2013.

Timing and Process are Improper, Defense Argues

Although the defense complied with the request, it noted significant reservations about moving forward with the proceedings.

The timing and sequence of the procedure was improper, the defense argued. The defense considered that it was improper of the chamber to request its observations on the substantive legal issues before hearing and considering the defense response to arguments from the prosecution, Registrar, and legal representatives for victims about the defense investigations. The chamber should have considered that issue first, before requesting observations on Article 25(3)(d), defense submitted. Instead, the chamber made the requests at the same time.

The chamber’s decision to simultaneously request information on the investigations and observations on the law raised a number of questions, the defense said, such as:

Did it mean that it was irrelevant to the Chamber whether or not the defense acted with due diligence, or had the Chamber already taken a view on the issue of investigations without considering the defense further observations on this issue? Is the defense to understand that the Chamber appears to have changed its view as to the necessity of investigations? Is it now the position of the Chamber that it can re-qualify the mode of liability irrespective of whether the defense had a proper opportunity to investigate? (para 10).

Moreover, the defense maintained that the chamber should rule on its dual request to move ahead with the original mode of liability, or in the alternative, to allow the defense to conduct additional investigations (made in a confidential filing mid-September 2013, when the defense reported to the trial chamber on the difficulty of collecting evidence in the DRC).

The defense did not consider that its submissions on existing evidence could be considered in lieu of having found additional evidence during its renewed investigations. Making submissions on the existing evidence would not cure the negative effect of not being able to conduct the investigations and find new evidence, the defense argued.

Additional investigations would have enabled Katanga to challenge or supplement the evidence, the defense argued. According to the defense, the existing evidence was elicited on the basis of a separate mode of liability, so the evidence reflects a particular perspective that is completely different from that relevant to the possible new charges.

The Chamber Should Move to Judgment – on Original Charges

The defense also argued that any further delay in the proceedings would be unnecessary and would endanger Katanga’s right to a speedy trial. Therefore, especially given the continuing violence in the DRC, the defense requested that the Chamber move directly to judgment – on the original mode of liability.

This would be the only option to respect Katanga’s fair trial rights, the defense argued. According to the defense, Katanga’s fair trial rights would be violated if the change goes forward because the defense does not have enough detail about the evidentiary basis the Chamber intends to rely on if the mode of liability is changed.

However, the defense argued that if the chamber insisted on moving forward with the change, it would request additional time to conduct investigations.

“Caught between a rock and a hard place the accused would prefer to be accorded this additional time, despite the effects on the expeditiousness of the trial, than to be placed at an unfair disadvantage on the evidence and face a wrongful conviction,” the defense said (para 91).

The defense also argued that this procedure implicitly reverses the burden of proof. The prosecution bears the burden to prove beyond a reasonable doubt how the facts of the case prove this potential new mode of liability, the defense noted. However, the defense has been asked to articulate its case and arguments before the prosecution has laid out its case about how Katanga is guilty under the new charge, the defense noted. The defense argued that it must have the final word—and that the prosecution must not be allowed an advantage by using the defense submissions to develop its new case.

Under Articles 64(2) and 69(4) of the Rome Statute, the chamber could choose to exclude, or not rely on, evidence that is highly prejudicial to Katanga, the defense argued. The defense recalled that the apparent basis for the change in mode of liability was evidence elicited by the judges during Katanga’s testimony. When he testified, Katanga was unaware that the charges might be changed in ways that affected his right to not incriminate himself, the defense said. On this basis, the defense contended, the chamber should exclude or not rely on the evidence Katanga gave about his contribution to the attack on Bogoro.

Despite these issues raised by the defense, it did submit its observations to the court about Article 25(3)(d) based on current evidence, which largely reiterated its previous arguments. Those have been discussed previously, here, here and here. The most recent submissions can be found here.