The judges in Trial Chamber II of the International Criminal Court (ICC) have set a date for the trial judgment in the case against Germain Katanga. The final judgment will be delivered on February 7, 2014 at 9:30 a.m. at the ICC in The Hague.

The prosecutor originally charged Katanga and his then 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.

Which Charges Will Katanga Face?

Katanga will walk into the courtroom next February to hear the judgment against him without knowing exactly which charges he will face.

Although the majority of Trial Chamber II provided additional information (available here) about the potential change, the defense argued that it lacked sufficient information about the potential new mode of liability. In order to meet its obligations to protect Katanga’s fair trial rights, the defense requested and was granted time to conduct new investigations. However, the defense claimed it faced significant difficulties, owing in part to the deteriorating security situation in eastern DRC and was therefore unable to conduct its additional investigations.

By a majority, Judge Van den Wyngaert dissenting, the trial chamber has decided that it will move to the judgment phase without hearing additional arguments or making additional decisions about whether or not it will change the charges against Katanga. The majority held that it would take all of the evidence and the parties’ written submissions into account in the final trial judgment when deciding whether to change the charges against Katanga.

In making its final judgment, the majority will evaluate the parties’ submissions, including the defense arguments about its need—but inability—to conduct additional investigations. In the final judgment, the chamber will decide whether changing the charges would violate Katanga’s fair trial rights. If the trial chamber decides that such a change would indeed violate his rights, it will render its judgment on the basis of the original charges, the majority said.

The majority also agreed to exclude parts of Katanga’s testimony. The defense previously argued that it appeared that evidence elicited by the judges during Katanga’s testimony was the basis for the change in charges. 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 had contended, the chamber should exclude or not rely on the evidence Katanga gave about his contribution to the attack on Bogoro.