Germain Katanga now has additional information about the factual and legal basis for a potential change to the charges he faces before the International Criminal Court (ICC). The majority of Trial Chamber II issued the decision with the additional information in an effort to protect his fair trial rights and enable him to prepare an effective defense. The trial chamber majority also noted that the Appeals Chamber had argued such information was lacking in the trial chamber’s initial decision about the possible change. Judge Chrsitine Van den Wyngaert has indicated she will file a dissenting opinion.

The prosecutor originally charged Katanga and Mathieu Ngudjolo Chui with three crimes against humanity and seven 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 the 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.

Acting under Regulation 55 of the Regulations of the Court, the trial chamber majority, Judge 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). Due to this development in the case against Katanga, the judges severed the two cases and acquitted Ngudjolo on December 18, 2012. The prosecution has appealed his acquittal.

There are important differences between the original charges and the proposed change. The specific mode of liability the Judges are considering is Article 25(3)(d)(ii), which criminalizes intentionally contributing to a crime committed by a group acting with a common purpose, knowing that the group intended to commit the crime. The new mode of liability would apply to all crimes except for those relating to the use of child soldiers.

In its latest decision, the trial chamber majority provided an explanation of how it would interpret Article 25(d)(ii) of the Rome Statute. It also explained the factual allegations that it would rely on if the charges are changed.

Legal Interpretation of Article 25(d)(ii)

The trial chamber majority began by explaining how it would interpret Article 25(d)(ii) of the Rome Statute. The majority’s interpretation of the article includes the following elements:

1. A crime under the jurisdiction of the Court was committed;
2. The persons who committed the crime belong to a group with a common purpose which was to commit the crime or was involved in its commission, including in the ordinary course of events;
3. The Accused made a significant contribution to the commission of the crime;
4. The contribution was made with intent, insofar as the Accused meant to engage in the conduct and was aware that such conduct contributed to the activities of the group acting with a common purpose; and
5. The Accused’s contribution was made in the knowledge of the intention of the group to commit the crime forming part of the common purpose.

This is a different mode of liability than Katanga was originally charged with, so the facts used to evaluate his responsibility are different.     The chamber highlighted alleged facts it thought were important or relevant to the proposed mode of liability.

Alleged Facts Related to Possible New Charge

The trial chamber majority noted that the facts they highlighted and their underlying allegations are not new. They are all included in the pre-trial chamber’s confirmation of charges decision and the summary of charges. These are not facts the trial chamber has found proven beyond a reasonable doubt, but are facts in the charging materials that could support a change in the mode of liability.

The first alleged fact important to the chamber majority was that “Ngiti combatants intentionally committed crimes confirmed by the Pre-Trial Chamber, during and after the 24 February 2003 attack on Bogoro.” The judges said they would only rely on evidence that establishes Ngiti combatants from the Walendu-Bindi collectivité committed the crimes, including where witnesses testified that both Lendu and Ngiti combatants committed crimes.

Secondly, the chamber majority said it would rely on the alleged fact that “the Ngiti combatants who committed the crimes belonged to the Ngiti group of commanders and combatants from Walendu-Bindi collectivité, sometimes identified by the name FRPI, which acted with a common purpose. Ngiti combatants who committed the crimes shared the group’s common purpose.” The alleged common purpose was to attack UPC soldiers in Bogoro as well as to wipe out the village in an attack that targeted a mainly Hema civilian population, the chamber said. The chamber majority also noted that the alleged common purpose involved implementing a common policy as part of a larger campaign of reprisals directed at Hema civilians, a protest by Walendu-Bindi combatants against an alliance with the UPC and as a means to control the road to Bunia and facilitate the movement of goods between Bunia and Lake Albert. According to the judges, the Ngiti combatants and commanders, who were from various camps in Walendu-Bindi, including camps in Aveba (Katanga’s home), allegedly felt hatred towards the Hema population. The trial chamber majority named several commanders allegedly in the group, including Katanga, Garimbaya, Mbadu, Dark, and others mentioned throughout the trial.

A third alleged fact the chamber majority highlighted was that Katanga intentionally made a significant contribution to the commission of the crimes by:

• Seeking to contribute to the attack on the civilian population of Bogoro;
• Facilitating communication amongst members of the group;
• Providing the liaison between the members of the group and other local authorities;
• Enabling effective preparation of the attack through his authority the night before the attack; and by
• Obtaining and distributing arms and ammunition for the members of the group.

The judges said that Katanga’s position of authority over the commanders and combatants in Walendu-Bindi the night before the battle was particularly important. Referencing Katanga’s testimony that he was the “Aveba coordinator” on the eve of the Bogoro attack, the chamber majority said that the functions he played in that role were more important than the title he had. Katanga had testified that his job was to bring the Aveba combatants closer to the Congolese People’s Army and to transmit the instructions given by their allies. He was serving as a mediator between the soldiers in the camp and the people in the town, he claimed.

The judges also noted a fourth alleged fact, that “Germain Katanga’s contribution was made in the knowledge of the intention of the Ngiti commanders and combatants from Walendu-Bindi collectivité to commit the crimes confirmed by the Pre-Trial Chamber.” Allegedly, Katanga was fully aware that there was an armed conflict going on and knew that the attack on Bogoro—and the crimes committed there—were part of a common plan to secure control over the village, the chamber majority recalled. The judges highlighted the alleged fact that Katanga knew there would be an attack on the civilians living in Bogoro, and that the conduct of the combatants and commanders was part of a widespread or systematic attack committed against the Hema people living in Ituri. The chamber also recalled that allegedly, both and the Walendu-Bindi combatants and commanders intended to commit the alleged crimes in Bogoro. The chamber said that a critical fact was that Katanga was allegedly involved in another attack on Nyankunde, where Ngiti fighters also allegedly committed crimes.

The chamber restricted its decision to facts and law regarding the potential change in charges. To go beyond that and provide explanation and factual support for other areas of the case would be improper, the majority considered, because they had not yet entered the deliberations stage of the trial. The chamber also noted that it had already provided much of this information and that the Katanga defense had the benefit of the chamber’s evaluation of witness credibility and evidence in the Ngudjolo trial judgment.

The chamber invited the prosecution and legal representatives for victims to make submissions on this latest decision. It also ordered the defense to file a new submission, in which the defense might request additional time to carry out further investigations or recall witnesses.