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Germain Katanga ICC:International Criminal Court, mode of liability can be recharacterized to prove accesoryship.

Summary of Trial Chamber II’ of the International Criminal Court

Judgment, pursuant to Article 74 of the Statute

The Prosecutor v. Germain Katanga

Before: Judges Bruno Cotte, Fatoumata Dembele Diarra and Christine Van den Wyngaert,

7 March 2014.

Reported by Linda Awuor and Diana Kerubo

Brief Facts.

The accused (Germain Katanga) was charged with various crimes within the meaning of article 25(3)(a) of the Rome Statute. The charges included, one count of murder as a crime against humanity under article 7(1)(a), five counts of war crimes under article 8 (wilful killing, directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities,destruction of property, pillaging and the use of children under the age of fifteen years to participate actively in the hostilities.)

He was also charged with other counts for crimes in the knowledge that would occur in the ordinary course of events, committed through other persons. Under Article 7, the crimes against humanity of sexual slavery and rape and under Article 8, war crimes of sexual slavery and rape.

On 24th February, 2003 a village in the Democratic Republic of Congo known as Bogoro in the District of Ituri was attacked by Ngiti combatants of Walendu-Bindi collectivité. This group later assumed the name “FRPI” (Force de résistance patriotique en Ituri [Patriotic Force of Resistance in Ituri]).The accused was the commander in chief and president of the group. During the attack, some women were raped and others killed. A death toll of 60 was registered including 30 civilian victims of murder within the meaning of articles 7(1(a) and 8(2)(c)(i) of the Statute and rape.

This attack was mainly influenced by ethnic differences previously evident between the two main ethnic groups, the Hema and the Lendu, the Hema population being the main target of attack due to its affiliation to the UPC which was Ngiti militia’s adversary.

The group that took part in the attack according to the prosecution was a structured military group with a hierarchical chain of command, which was centralized. In its view, the accused being the supreme leader, exercised authority over the collectivité in respect of both civilian and military matters. The prosecution contended that in February 2003, the accused effectively exercised his authority over the Ngiti militia which at the time constituted an apparatus of power, thus enabling him to exercise control over the crimes committed by the militia members.

It was also established that prior to the attack, in the early 2003, combatants of Walendu-Bindi were mastered in thousands and organized in a network of camps that could be moved throughout the collectivité. Children referred locally as ‘kadogos’ who in some cases were assessed to be under the age of 15 years also constituted part of the armed forces operating in Ituri. Military training and parades were held in some camps and that in the months towards the day of attack, there was delivery of weapons and ammunition in preparation of the imminent attack on Bogoro.

Aveba was the site where the ammunition supplies were centralized and where the commanders of the collectivité regularly went. There were also well established communication networks in place to aid the attacks.

The prosecution did not allege that the accused physically committed the crimes himself but argued that they were committed by his troops according to a plan hatched by him “wipe out” Bogoro.

The accused was originally charged under article 25(3)(a) of having committed the crimes through “indirect co- perpetration,” for using a hierarchical organization (the FRPI) to carry out the crimes. The prosecution however failed to prove beyond reasonable doubt that the accused had committed the alleged crimes within the meaning of article 25(3)(a) of the Statute thus the accused  had not incurred criminal responsibility on the basis of article 25(3)(a).They further failed to prove that the Ngiti militia was an organized apparatus of power; and the accused, at that time, wielded control over the militia such as to exercise control over the crimes within the meaning of article 25(3)(a) of the Statute.

 The trial chamber suggested the change of the charges against him to responsibility under article 25(3)(d)(ii).This criminalized intentional contribution to a crime committed by a group acting with a common purpose, knowing that the group intended to commit the crime.

Issue:

Whether mode of liability could be recharacterized to accord with article 25(3)(a) in the proof of accesoryship.

 International Criminal Law-charges – reframing of charges-legal characterization -elements that would constitute recharacterization in proving accesoryship-Rome Statute article25 (3)(a); Regulations of the Court regulation 55.

Rome Statute of the International Criminal Court.

article 25(3) (a)

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.

article 25(3)(d)

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime.

article 74(2)

The Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial.

Regulations of the Court,2004.

Regulation 55

  1. In its decision under article 74, the Chamber may change the legal characterization of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
  2. If, at any time during the trial, it appears to the Chamber that the legal characterization of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
  3. For the purposes of sub-regulation 2, the Chamber shall, in particular, ensure that the accused shall:
  •  Have adequate time and facilities for the effective preparation of his or her defence in accordance with article 67, paragraph 1 (b); and
  • If necessary, be given the opportunity to examine again, or have examined again, a previous witness, to call a new witness or to present other evidence admissible under the Statute in accordance with article 67, paragraph 1 (e).

Held:

1.The timing of the attack, the means and method used; use of machetes, shooting indiscriminately the sheer number of civilian victims including children, women and elderly people indicated that the combatants intended to directly target the predominantly Hema civilian population of Bogoro thereby committing murder as a crime against humanity and a war crime under articles 7(1)(a), 8(2)(c)(i) and 8(2)(e)(i) of the Rome Statute.

2.Houses belonging to the predominantly Hema population of Bogoro were destroyed, set on fire or had their roofs removed by the combatants. Bogoro was extensively pillaged. The Ngiti combatants thus committed the war crimes of destroying the enemy’s property under article 8(2)(e)(xii) of the Statute and pillaging under article 8(2)(e)(v) of the Statute.

3.Children were present among the militia members at the camp although it was impossible to determine whether or not they were under the age of 15 years. They took part in military parades and guarded the camp and its prison, thereby providing the Ngiti militia with logistical support during hostilities. The Chamber was however unable to identify a direct connection indicating that the accused used the children to participate in the hostilities. The accused was thus not found to have committed the crime of using child soldiers under article 8(2)(e)(vii).

4.The accused facilitated the receipt and storage of weapons and ammunition from Beni and had the power not only to allot them to the Walendu-Bindi commanders but also to decide the quantity of ammunition allocated, his instructions in this regard were followed.However, apart from his powers to receive, store and distribute weapons and ammunition, the Chamber was unable to find that the accused wielded, in all areas of military life and over all commanders and combatants in Walendu-Bindi collectivité, powers of command and control.

5.The accused’s titles as Commander or Chief of Aveba and “President” of the Ngiti militia, at times called “FRPI”, the effectiveness of his authority over the supply and distribution of weapons and ammunition to the militia, his duties as facilitator and negotiator did not, however, allow the Chamber to find the accused to have been vested with effective hierarchical power over all the commanders and combatants of the Ngiti militia in Walendu-Bindi collectivité.

6.In recharacterization, the Chamber did not exceed the facts and circumstances described in the charges. It was thus consistent with the requirements under Regulation 55 of the Regulations of the Court and articles 67(1) and 74(2) of the Statute. This however, could not apply to the crime of using child soldiers, as the charge of direct co-perpetration against the accused could not be modified to accessoryship within the meaning of article 25(3)(d) without violating the aforecited provisions.

7.The form of accesoryship defined under article 25(3)(d) needed to be proved beyond reasonable doubt  based on the constituent elements that;

  • the crime falling within the jurisdiction of the court had been committed;
  • the persons who committed the crime formed part of a group acting with a common purpose;
  • the accused made a significant contribution to the commission of the crimes;
  • his contribution was intentional and
  • that it was made in the knowledge of the intention of the group to commit the crimes.

8.Ngiti combatants were part of a militia which constituted an organisation within the meaning of article 7(2) of the Statute and an organized armed group within the meaning of the law of armed conflict. This militia harboured its own design, which albeit part of a wider design to reconquer territory, was to attack Bogoro and wipe out from that area the UPC soldiers, but also, to wipe out the Hema civilians who were there.

9.The conditions under which the attack was launched, then the manner in which it proceeded and the treatment of the civilian         population, in particular women, children and elderly persons, established the existence of a common criminal purpose against the population of Bogoro.

10.The crimes of murder, attack against civilians, destruction of property and pillaging which were committed at the time therefore formed part of the common purpose.

11.Regarding the crimes of rape and sexual slavery, the Chamber found that it could not conclude, on the basis of the evidence laid before it, that the criminal purpose pursued on 24 February 2003 necessarily included their commission or, therefore that such crimes were also part of the common purpose. The Chamber however, relied on its finding that the two crimes constituted crimes against humanity as they were part of the operation to wipe out the civilian population of Bogoro; it further determined that the rapes constituted the war crime of attack against civilians.

12.Although they were not alone at the scene of the crime, the physical perpetrators of the crimes were Ngiti combatants and members of the militia of Walendu-Bindi collectivité and they harboured the common purpose.

13The accused performed the powers he held. As of November 2002, he helped the Ngiti militia mount the operation against Bogoro and which the Ngiti commanders and combatants organised locally. The activities engaged in by the accused from November 2002 to 24 February 2003 had a significant effect or impact on the commission of the crimes, within the meaning of article 25(3)(d) of the Statute.

14. The geographical and temporal scope of the group’s common purpose was confined to the 24 February 2003 operation against Bogoro. Indeed, there was perfect concordance between: the attack and the operation against Bogoro; the group’s common purpose, which specifically was to wipe out from that area the UPC military elements and the Hema civilians there; and the  commission of the crimes by the Ngiti combatants. The activity which the accused engaged in respect of the preparation for the   attack on Bogoro constitutes a contribution to the commission of crimes by Ngiti combatants.

15.Not all assistance lent in preparation of the military operation perforce and as a rule constituted a contribution to crimes committed by the members of an armed group which take part in the operation. Nonetheless, the fact that the Accused’s conduct constituted a contribution to the military operation which was decided in Beni did not preclude that his conduct also constituted contribution to the commission of crimes by the Ngiti militia, within the meaning of article 25(3)(d) of the Statute.

16.The accused’s’ contribution proved to be particularly suited for the commission of the crimes which form part of the common     purpose, since that contribution had considerable influence on their occurrence and the manner of their commission. His involvement allowed the militia to avail itself of logistical means which it did not possess and which, however, were of paramount importance to attacking Bogoro. His involvement, therefore, had a truly significant part in bringing the crimes to pass.

17.The accused’s activities as a whole and the various forms which his contribution took, that, in the circumstances, had a significant influence on the commission of those crimes. He intended to make his contribution, which, he, moreover, had not contested. It was further established that he knew of the intention of the group to commit the crimes which formed the common purpose

18.These findings as a whole established beyond reasonable doubt that the accuseds’ contribution to the crimes of murder, attack     against the civilian population, destruction and pillaging committed in Bogoro on 24 February 2003 was significant and made in the knowledge of the intention of the group to commit the crimes.

Judge Van den Wygaert Dissenting

 19.It was not possible to recharacterise the charges of case from article 25(3)(a) to 25(3)(d)(ii) without fundamentally changing the facts and circumstances of the Confirmation Decision. The narrative of the charges were substantially amended contrary to article 74 of the Statute, an alteration that could not have been reasonably foreseen by the defence.

20.Recharacterisation rendered the trial unfair by infringing a series of the accused’s rights. The judges in particular believed that the accused did not receive adequate notice of the new charges under article 25(3)(d)(ii) and was not afforded a reasonable opportunity to conduct a meaningful investigation in response to those new charges. For these reasons, accused was prevented from defending himself appropriately.

21.The accused’s testimony could not be used against him as evidence for the charges under article 25(3)(d)(ii). The accused was not       forced to testify against himself. He was however misled about the scope of the permissible use of his testimony. Thus, the accused’s waiver of his right to remain silent could not be considered to have been made freely.

22.The actual charges under Article 25(3)(d)(ii),did not permit the making of any findings beyond reasonable doubt that would lead to the conviction of the accused. The quality and reliability of the evidence was in question and essential evidence was missing      from the case record, factors which would make it impossible to enter findings beyond reasonable doubt.

23.The elements of crimes against humanity were not fulfilled. No evidence was shown beyond reasonable doubt that the Ngiti fighters of Walendu-Bindi constituted a group acting with a common purpose to attack the Hema civilian population of Bogoro. Bogoro. On the contrary, it could not be excluded that he made his contribution to a legitimate military plan, which would exclude his criminal responsibility under article 25(3)(d)(ii).

24. The proceedings in the case were prolonged. This was in violation of the accused’s right to be tried without undue delay as well as the Chamber’s duty to conduct the proceedings expeditiously and to pronounce the judgment within a reasonable period of time after the Trial Chamber had retired to deliberate.

By Majority.

25.Pursuant to Regulation 55 of the Regulations of the Court, the legal characterization of the facts was modified such that the armed conflict connected to the charges was not of an international character between August 2002 and May 2003.

26. Pursuant to Regulation 55 of the Regulations of the Court, and with the exception of the crime of using children under the age of 15 years to participate actively in hostilities (article 8(2)(e)(vii)), the legal characterization of the mode of liability initially applied  to the accused under article 25(3)(a) of the Statute (indirect co-perpetration) was modified to apply to him under article 25(3)(d) (accessoryship through a contribution made in any other way to the commission of a crime by a group of persons acting with a common purpose).

Orders.

The Court by majority found the accused guilty within the meaning of article 25(3)(d) of the Statute, as an accessory to the crimes committed on 24 February 2003 of:

  1. Murder as a crime against humanity under article 7(1)(a) of the Statute;
  2. murder as a war crime under article 8(2)(c)(i) of the Statute;
  3. attack against a civilian population as such or against individual civilians not taking direct part in hostilities, as a war crime under article 8(2)(e)(i) of the Statute;
  4. destroying the enemy’s property as a war crime under article 8(2)(e)(xii) of the Statute; and
  5. pillaging as a war crime under article 8(2)(e)(v) of the Statute;

The court unanimously found the accused not guilty, within the meaning of article 25(3)(d) of the Statute, as an accessory to the crimes of:

  1.  Rape and sexual slavery as crimes against humanity under article 7(1)(g) of the Statute;
  2. rape and sexual slavery as war crimes under article 8(2)(e)(vi) of the Statute; and acquitted him of those charges.

Not guilty, within the meaning of article 25(3)(a) of the Statute, of the crime of:

  1. Using children under the age of 15 years to participate actively in hostilities as a war crime under article 8(2)(e)(vii) of the Statute; and acquitted him of that charge.

The court by majority decided that the accused remain in detention until the time when the sentence is passed.

The court ordered that reparations procedures be implemented.

 Relevance to Kenya.

This case has jurisprudential value considering that Kenya is a signatory to the Rome Statute and it allows for the application of a treaty or convention ratified by it under Article 2(6) of the Constitution.

The issue of recharacterization to prove accesoryship has also been brought out in the case. Such jurisprudence can be referred to and used in subsequent matters arising.

Kenya is also one of the African countries among DRC, Mali, Central African Republic that have referred their cases to the court in addition to the Sudan and Libya cases referred by the Security Council. The jurisprudence set in this case can inform the trend and dimension of the ongoing cases especially the Kenyan cases keeping in mind that some of the charges and situations dealt with in the case relate to the current case.

Public Interest.This case also elicits public debate as to the efficiency of the ICC in the prosecution of crimes under the Rome Statute. This case records the second conviction after the Thomas Lubanga Case (recruitment, enlistment and use of child soldiers) since its inception in 2002.

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