A majority of the Appeals Chamber of the International Criminal Court (ICC), Judge Cuno Tarfusser dissenting, has upheld a decision by a majority of Trial Chamber II giving notice that the trial chamber may change the nature of the case faced by Germain Katanga.

The ICC prosecutor 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. Katanga was originally 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 Chui, 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. In mid-December, Ngudjolo was acquitted of all charges and subsequently released; the prosecution has appealed his acquittal.

Nearly six months after the trial closed, a majority of Trial Chamber II, Judge Christine Van Den Wyngaert dissenting, informed the parties that it was 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 are considering changing Katanga’s alleged 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.

Katanga appealed the decision and asked for it to be suspended. The trial chamber’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. The defense argued that the trial chamber did not have the discretion to make such a decision, that the decision violated his fair trial rights, and that the decision indicated the majority was biased against him.

The prosecution and the legal representatives for victims argued that the trial chamber majority 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.

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 the majority’s decision was in line with the goal of Regulation 55 – to close impunity gaps. The prosecution contended that the purpose of the regulation is to prevent acquittals based on legal qualifications determined very early in the trial process before all of the evidence is heard. 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 majority of Appeals Chamber considered that the timing and scope of the decision fit within the framework of Regulation 55. According to the majority, the decision itself does not violate Katanga’s fair trial rights. However, it acknowledged that there was a risk that the trial chamber could violate Katanga’s fair trial rights depending on how it conducts additional proceedings. In particular, the Appeals Chamber majority was concerned about violating Katanga’s rights to a trial without undue delay, given the late timing of the trial chamber decision.

Trial Chamber II will now consider submissions from the parties on the potential change and decide how to proceed if it does indeed make a change to the charges against Katanga.