Today, Trial Chamber II of the International Criminal Court (ICC) convicted Germain Katanga in the ICC’s third trial judgment.

Germain Katanga is the former leader of an armed militia that became known as the Force de Résistance Patriotique en Ituri (FRPI, Patriotic Resistance Forces in Ituri). He was charged with war crimes and crimes against humanity committed during an attack on Bogoro in the Ituri region of the Democratic Republic of the Congo (DRC).

The attack targeted a rival militia, the Union of Congolese Patriotics (UPC), as well as the predominantly Hema civilian population living in Bogoro. Ngiti soldiers—some of them children—descended on the village while most villagers were still sleeping. They proceeded to kill, rape, burn, and pillage, the chamber found. Women who survived the attack were then taken, raped, and used as sexual slaves Ngiti combatants.

The trial chamber, by a majority, changed the charges faced by Katanga from “principle” liability to “accessory” liability. On the basis of accessory liability, the majority found Katanga guilty of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property, and pillaging). He was acquitted of charges of using child soldiers, rape, and sexual slavery.

The majority concluded that Katanga had made a significant contribution to the crimes committed by the Ngiti militia by collecting and distributing arms and ammunition to local combatants. These arms were then used in the attack on Bogoro. Katanga knew the combatants intended to commit crimes during the attack, the majority found.

The majority drew attention to the importance of the firearms in the attack. Katanga furnished weapons to local combatants in large quantities, which allowed the combatants to successfully take Bogoro in a matter of hours, the majority said.

“From the outset of the attack, the combatants pursued the inhabitants of the villages with machetes and firearms even though they had no part in the fighting,” Presiding Judge Cotte noted.

The majority found that while Ngiti combatants committed the crimes of using child soldiers in the hostilities, rape, and sexual slavery, there was insufficient evidence to find Katanga guilty of these crimes beyond a reasonable doubt.

The judgment will certainly be controversial, especially with one judge strongly dissenting to the change in charges and the majority’s conviction. Judge Van den Wyngaert strongly dissented, stating that she would have acquitted Katanga alongside Ngudjolo. The change in charges violates Katanga’s fair trial rights, she said. She argued that Katanga had been “mislead” about how his testimony would be used.

Changing the Charges

Katanga was charged with seven counts of war crimes (using children under the age of fifteen to take active part in hostilities; directing an attack against civilians; willful killing; destruction of property; pillaging; sexual slavery; and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery) allegedly committed during an attack on Bogoro on February 24, 2003.

The prosecution did not allege that Katanga physically committed the crimes himself but argued that they were committed by his troops according to a plan hatched by him and his formerly co-accused, Mathieu Ngudjolo, to “wipe out” Bogoro.

Katanga pleaded not guilty to all charges. He did not deny that atrocities were committed in Bogoro, but he denied that he commanded the combatants during the attack. However, during his testimony, Katanga spoke about his role as a coordinator in preparing the attack on Bogoro.

For all of the crimes, except those involving child soldiers, Katanga was accused of having committed the crimes through “indirect co-perpetration.” That is, that he used his militia to carry out the crimes. The majority acquitted Katanga of the crimes on this basis but found him guilty as an accessory.

On November 21, 2012, a majority of Trial Chamber II, Judge Christine Van den Wyngaert dissenting, informed the parties that it was considering a re-characterization of the facts of the case concerning the mode of liability applicable to Germain Katanga. The judges have the power to make this change under Regulation 55 of the Regulations of the Court. This regulation allows trial chambers to change how they consider evidence from a legal point of view, even if that is not exactly how the accused was originally charged.

The majority decided to change the charges, finding that this did not violate Katanga’s fair trial rights. Instead, the majority found that he had an opportunity to conduct additional investigations and amend his case strategy. The trial chamber went to great lengths to ensure a speedy proceeding, Judge Cotte said, and did not violate Katanga’s rights to a trial without undue delay.

Under this charge, Katanga was found guilty for helping Ngiti combatants, knowing that they intended to commit crimes in Bogoro, even if he did not intend the crimes himself.

The decision over the change was hotly contested. Judge Van den Wyngaert strongly dissented to the majority’s decision, stating that to change the mode of liability applicable to Katanga at this stage of the trial “fundamentally encroaches upon the accused’s right to a fair trial.”

Katanga appealed these changes, but a majority of the appeals chamber, Judge Cuno Tarfusser dissenting, upheld the trial chamber decision. The appeals chamber acknowledged that there was a risk that the trial chamber could violate Katanga’s fair trial rights depending on how it conducted 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.

This issue is sure to arise on appeal of the final judgment. The defense has continuously argued that the change would violate Katanga’s fair trial rights. Although the trial chamber granted the defense time to conduct new investigations, it was unable to do so, the defense claimed, due in part to the deteriorating security situation in eastern DRC.

If the appeals chamber finds Katanga’s fair trial rights were violated by this change, it is possible they would send the case back for another trial. However, this is a fairly novel situation and therefore it is unclear what the likely outcome would be.

Impact of the Judgment

This judgment marks the first conviction by a credible court for the crimes committed in Bogoro. The recent acquittal of Katanga’s formerly co-accused Ngudjolo left many wondering whether anyone would be subject to a criminal conviction for the crimes committed there. Victims now have some answers about who was responsible for the attack on Bogoro. They may also have the opportunity to receive reparations from the ICC’s Trust Fund for Victims.

However, some commenters have noted that there are serious questions that need to be answered about the impact of the judgments on the fair trial rights of accused at the ICC.

In some ways, the decision today reflects ongoing challenges faced by the Office of the Prosecutor (OTP). This judgment follows a string of judgments that have been critical of the OTP’s investigation and prosecution strategy. The prosecution failed to prove the crimes as originally charged, and the trial chamber majority used its discretion to change the charges to a mode of liability that led to a conviction on some charges. Judge Van den Wyngaert noted in her dissenting opinion that she was concerned about the quality of the evidence in this case and the facts on the record.

Although this decision can be seen as yet another blow to the legacy of the first ten years of the ICC OTP, there are indications that the OTP, now under the direction of Prosecutor Fatou Bensouda, has taken a new direction. In particular, the new strategy and budget indicate that the OTP will strive to improve its investigations.

The ICC will need to ensure that its reasoning is clearly explained through robust outreach in Ituri. Because of the confusing change in charges and the conviction on the basis of accessory liability, people from the region will certainly have many questions. Members of civil society have stated that the judgment could have an impact on peace in the region—some fearing retribution from Katanga’s supporters, and others noting that a conviction could foster more peaceful co-habitation amongst the Hema and Ngiti.

Katanga’s trial was initially joined with the trial of Mathieu Ngudjolo Chui, the alleged commander of another militia group, Front des Nationalistes et Intégrationnistes (FNI, National Integration Front). However, the charges were severed in November 2012, six months after the closing arguments, due to proposed changes in the charges against Katanga. The trial chamber later acquitted Ngudjolo, finding that the prosecution had failed to prove a link between Ngudjolo and the FNI militia.

The full judgment and minority opinion in the Katanga case is available on the ICC website.