Clair Duffy is a Senior Legal Advisor International Bar Association. The views expressed herein are the author’s own views and do not necessarily reflect those of the International Bar Association or of the Open Society Justice Initiative.

On Friday at 9:30am The Hague time, Trial Chamber II of the International Criminal Court[i] will deliver its judgment in the case against Germain Katanga (in the ICC situation country of Democratic Republic of the Congo). It will be the third trial judgment to be delivered by the ICC since the court’s inception – all of them so far concerning crimes committed in eastern DRC. The same trial chamber acquitted Katanga’s former co-accused, Mathieu Ngudjolo Chui, in December 2012, about one month after splitting the cases from each other.  The only other trial judgment delivered so far by the ICC is in its first case—also emanating from events in eastern DRC—against Thomas Lubanga Dyilo. Various aspects of both Lubanga’s and Ngudjolo’s cases are currently pending appeal.

When the trial chamber delivers its verdict against Katanga, he will have been in ICC custody for some six years and four months, more than two of which have been since the last witness testified in the case, and some fifteen months since his former co-accused, Ngudjolo, was acquitted.

The trial raises many important legal and evidentiary issues as well as being an important milestone in the lifespan of a fledgling international criminal court with potentially global reach. Significantly, the subject matter of the joint trial concerned the massacre of up to 200 people during an attack on the village of Bogoro in February 2003, as well as allegations of sexual violence and other atrocities.  In the context of conflict in DRC, which has spanned a decade and resulted in the deaths of millions, left countless survivors of sexual assault, and still rages today, the call for justice is undoubtedly an urgent one. Not insignificantly, hundreds of victims with fully recognised legal rights have a direct stake in the outcome of the trial. The original joint charges against Ngudjolo and Katanga placed each of them at the head of two armed militia groups in the Ituri region of DRC—the Front des Nationalistes et Intégrationnistes and the Forces de Résistance Patriotique en Ituri, respectively. Originally, they were said to have acted jointly to carry out the attack in Bogoro via their subordinates.

Against this backdrop, however, the Katanga case also raises a number of fundamental fair trial issues that are of equal importance to all of these considerations, not least of all because even those who stand accused of the most heinous crimes must be afforded the fundamental guarantees of due process to which they are entitled under international law. This, of course, because it is their right, but also because the integrity of any criminal justice system—international or domestic—is always measured against the extent to which it convicts people on a balanced reading of the law and the facts.

In Katanga’s case, a number of fair trial questions stem from significant changes being proposed to the charges against him one year after the last witness testified in his case. That proposed change came after a one year confirmation of charges process (a legal process designed to weed out untenable cases before they go to trial); after a two year trial during which Katanga and Ngudjolo personally testified in their own defenses; after the judges visited crime sites in eastern DRC; and after closing briefs were filed and oral arguments were heard.

In fact, Katanga will go into the courtroom Friday morning not entirely sure if the trial chamber will proceed to rule on the charges against him on the basis of one narrative of the case, or another, since at this stage the proposed changes to the charges against him have still only been expressed as a “likelihood” (although certainly all evidence suggests that the majority will proceed on the new theory of liability). Katanga also still does not know if the testimony he provided in his own defense will be used to support a different case theory to that which was in place when he testified, albeit voluntarily and under the advice of counsel.

All of this is quite irregular, to say the least. So how did this come about, is it legal and has it happened before other international criminal tribunals?

The ICC has a legal provision in its Regulations (known as Regulation 55) that contemplates that in certain circumstances trial judges would be able to reformulate the description of an accused’s crimes, or the way he carried them out, “at any time during the trial.” This is subject to a number of fundamental fair trial considerations, some of which are explicitly mentioned in the Regulation itself, and the remainder of which are outlined in the ICC’s primary governing instrument, the Rome Statute.

Regulation 55 is unprecedented in the founding legal documents of other international criminal tribunals. Its purpose is to “close accountability gaps.” The whole procedural system upon which the ICC is based is designed (at least in theory) to better streamline cases from the outset by focusing the crimes and the theory or theories of responsibility according to which the accused is said to have committed the offences. At the other end of the system, Regulation 55 is there to make sure that accused persons to not evade criminal responsibility because of overly restrictive descriptions of their alleged conduct contained in the charge sheet.

There are a number of limits on the use of Regulation 55 expressed in the text of the regulation itself. Any proposed changes must not “exceed the facts and circumstances” described in the charges (and any amendments made to them). Additionally, if the trial chamber considers it might invoke Regulation 55 to make certain changes, it must give the prosecution, the defense, and any victims joined to the proceedings the opportunity to be heard on the issue. At the same time, the accused’s rights must be fully respected – especially his right to adequate time and facilities for the preparation of his case, and his right to present an effective defense (by allowing him an opportunity to call, or recall witnesses, or conduct further investigations if the case requires it). Additional fair trial considerations emanating from the Rome Statute (and the fundamental human rights norms it reflects) that must equally be respected include the right of an accused person to prompt and adequate notice of the charges against him, the right to be tried without undue delay, the right against self-incrimination, and the right to a fair hearing conducted by an independent and impartial arbiter.

It follows quite plainly from the text of Regulation 55 and the underlying fair trial norms that whether or not a particular use of Regulation 55 to alter the charges against an accused is fair and permissible will depend on the circumstances of the case. Obvious factors which are relevant to this kind of analysis are the point in the trial process at which the changes are made, the degree to which the proposed changes alter the case against the accused, and whether any prejudice to the accused can be remedied by permitting further investigation and/or calling of evidence, weighed against the potential delay caused by the changes. Each of these considerations, though, is not mutually exclusive and they will necessarily impact each other.

In Katanga’s case, looking at all of these factors highlights the extent of the fair trial concerns presented by the proposed changes to the theory of criminal liability by which he is now (likely) said to have committed the offences.

First of all, unusually, Katanga is going into his judgment hearing without truly knowing which version of the case he is facing (the original one with which he was charged, or the “likely” new one). Naturally, this lack of clarity raises questions about Katanga’s right to adequate notice of the charges against him but is perhaps not in and of itself determinative of the issue. Instead, it is better to look further to other factors, and the interplay between them, in combination.

Second, the Appeals Chamber has said that the timing of the invocation of Regulation 55 in Katanga’s case (i.e. very late in the trial and at least six months into the deliberations process) is not per se problematic provided the trial remains fair as a whole. This stands to reason because of the language of the provision itself (“at any time during the trial”) and also because when a trial chamber is contemplating a change to the charges under Regulation 55 it has at its disposal a number of other tools to remedy any prejudice to the accused (such as allowing the defense to conduct further investigations, adjourning the trial, and/or calling further evidence). Suffice to say, though, that the later in the process the Regulation 55 change is made, the more difficult it may be to use these other tools to lessen the impact of the changes because of their implications on the right to trial without undue delay. Additionally, the greater the proposed changes, the more significant the issue of timing may be.

Which leads to the third issue: whether the proposed change to Katanga’s mode of liability fundamentally alters the case against him. It should be noted that during the one year of  litigation surrounding the use of Regulation 55 in Katanga’s case, the trial chamber was strongly divided on this issue, amongst others. On the one hand, the majority (composed of Presiding Judge Cotte and Judge Dembele Diarra) said that it was “a relatively limited step.” On the other hand Judge Van den Wyngaert has described the majority’s proposed changes as an impermissible fundamental change in the narrative of the charges in order to reach a conviction. She said that by the proposed changes, Katanga went from being the supreme commander of a hierarchical organization (the FPRI) with almost total control over his subordinates who blindly complied with his orders, to being part of an unidentified subsection of that group. The result was a “drastic change” in the case against him. Her reasoning is convincing as to the impact of the proposed changes on the prosecution’s case theory. The Appeals Chamber has said that a change in the narrative of the case is not per se impermissible but will depend upon the articulation in the trial judgment. In other words, this issue remains open for determination.

Fourth, the trial chamber certainly seemed to recognize earlier on in the context of the Regulation 55 litigation in the Katanga case the likely need for further investigations and/or evidence to be called to limit the potential prejudice to Katanga, in accordance with Regulation 55 and the more general rights under the Rome Statute. In various filings over an eight month period (between April and December 2013) the defense has maintained a need for additional time and resources to conduct further investigations to prepare an adequate defense under the new mode of criminal responsibility. In October 2013, Judge Van den Wyngaert—while maintaining her position that the chamber should proceed to judgment under the original theory of criminal responsibility—said that the chamber needed to decide whether it was possible for Katanga to meaningfully defend himself under the new allegations without further investigations. She said that the majority seemed to have accepted this need in its decision of June 26, 2013 but subsequently backtracked from its position. In any case, it has been clear from both the defense[ii] and the Registry[iii] that certain proposed further investigations could not be carried out due to security problems in eastern DRC.

Fifth, concerning the right against self-incrimination and whether it is fair for the trial chamber to use the testimony Katanga gave in his own defense (and in respect of his original mode of liability) as a basis for a conviction (in respect of the later notified mode of liability), the defense has asked for Katanga’s testimony to be excluded from the chamber’s deliberations in respect of the new mode of criminal liability. The chamber has indicated its intention to rule on this in the course of its judgment. All indications though are that this is not problematic from the perspective of the majority of the trial chamber for the reason that Katanga testified voluntarily and (presumably) with knowledge of the existence of Regulation 55 and the possibility that the case against may change under that provision. On the other hand, Judge Van den Wyngaert said that the majority’s intention to rely on Katanga’s own testimony aggravated the unfairness of it changing the theory of liability in his case, especially if it decided to use his testimony as a basis (or even sole basis) for his conviction.

For a multitude of reasons, therefore, the Katanga trial chamber litigation on the use of Regulation 55 to potentially change the theory of criminal responsibility in his case leaves many questions to be answered in the judgment. This will include ruling on a defense request filed in December 2013 for a permanent stay of proceedings due to alleged irremediable unfairness.  The Katanga recharacterization issues are quite unique in international criminal justice because of the wide range of fair trial rights they engage. Most significantly perhaps, the ad hoc tribunals for Rwanda and the former Yugoslavia (ICTR and ICTY) have consistently ruled in favor of accused persons on issues of the absence of timely, clear, and consistent notice as to the charges they are facing. This has generally resulted in charges being read down or struck out where they were not contained in the original charging document (for example, as alternatives), including where attempts were made to remedy these failures via subsequent filings like prosecution pre-trial briefs and opening statements.

Undoubtedly, it is the combination of factors that make Katanga’s case such a difficult one from a fair trial rights point of view—the timing and substance of the changes, the fact that he may have incriminated himself under another (then uncharged) form of responsibility, and significantly, the fact that any prejudice could not be remedied via fresh investigations based on the new mode of liability. Not to mention the fact that this new litigation has resulted in a 15-month delay to his trial judgment. Judge Van den Wyngaert said that all of this may create “the unpalatable suspicion that the Chamber is intervening to ensure the conviction of Germain Katanga.” While the chamber’s judgment will be scrutinized with all objectivity, none of this bodes well from a fair trial point of view if he is convicted, and certainly the world is watching.