The ICC Katanga Judgment: A Commentary (part 1): Investigation, Interpretation and The Crimes

On 7 March 2014, Germain Katanga, a warlord from the DRC, was convicted as an accomplice for war crimes and crimes against humanity in the third Judgment issued by the International Criminal Court. The Judgment was rendered on a number of issues only by  majority, with a dissenting opinion by Judge van den Wyngaert and a concurring opinion by the other two judges.

One of the main reasons why this judgment was expected is that it is the final chapter (pending appeal) of a somewhat controversial process. Indeed, Katanga was initially tried as a co-perpetrator with Chui. However, in November 2012, a month before the judgment, during deliberations, a majority of the trial chamber 1) severed the cases  2) announced that the judgment for Chui would take place as planned (he was acquitted) and 3) informed the defense that there might be a legal recharacterization of the charges. This effectively prolonged the trial of Katanga by more than a year, ending with his conviction under the new legal characterization, whereas he would have been acquitted along with Chui had it not happened.

This is obviously the biggest difficulty with this judgment, but it features other considerations which merit some attention. I offered my first impressions of the judgment after the summary was read out in open court. In the next few days, I will suggest some more detailed considerations, based on plowing through the actual judgment and dissent. A few caveats. First, readers should note that the judgment itself is in French, so I do no reproduce the relevant parts that I discuss, nor did I have time to translate. I try, as much as possible, to indicate paragraph or page numbers so that you can check for yourselves. Second, what follows is obviously a mere selection of issues discussed in the judgment and there is no claim to exhaustivity.

So, let’s start. In this first post, I want to discuss the issue of the quality of the Prosecutor’s investigation, the rules of interpretation and the definition of the crimes.

  • The Deficiencies of the Prosecutor’s investigation

In an early section, the Chamber makes a list of all the ways in which the Prosecutor could have done a better job (p. 37). The few pages devoted to this are essentially copied and pasted from the Chui Judgment. The Prosecutor is told off for, among other things, not calling key witnesses to testify, not actually having visited some key locations, not having provided sufficient background information on certain prosecution witnesses which had an impact on their credibility (information that was provided for by the defense!), and more generally, not provided the Chamber with information that would have allowed it to get a more subtle picture of the situation (§67).

Later in the Judgment, the Chamber also reproduces the 100 or so pages of discussion from the Chui Judgment on the lack of credibility of a number of key OTP witnesses.

This is now a regular feature of most substantial decisions at the ICC (confirmation of charges, judgments): the investigative failures of the Prosecutor. Most notably, it took up considerable space in the Lubanga Judgment, where the judges criticized the OTP for its use of intermediaries or the lack of direction of the investigation. But you find similar pronouncements in many other decisions, such as Mbarushimana (where the charges were not confirmed) or Gbagbo (where the confirmation hearing was adjourned because the overuse of third party material was deemed by the PTC not to be the result of a proper investigation).

The result in Katanga is that, as Kevin Jon Heller points out, the Prosecutor essentially did not prove any of his allegations and the case was only saved by the legal recharacterization of the charges done by the Majority (more on this later). On the charges of rape and sexual violence, for which Katanga was acquitted, Brigid Inder, of the Women’s Initiatives for Gender Justice, said that:

From the early stages of this case, there were indications that some of the judges considered the evidence supporting the charges of rape and sexual slavery against Katanga to be insufficient. In the confirmation of charges decision, the sexual violence charges were the only crimes confirmed by a majority of judges and not by the full bench. This was an early and important indication that the evidence underpinning the charges of rape and sexual slavery would need to be reinforced at trial.

And yet, apparently, not much was done by the OTP in that respect.

I just cannot understand how the OTP can pursue this line of conduct, despite years of warning from Chambers at the ICC. Defense teams have systematically pointed out that the OTP seems to forget that it is meant to investigate both incriminating and exonerating circumstances. Methods of the OTP have been regularly criticized by both the Judges and external observers. And yet nothing changes from case to case. And it is not the Strategic Plan released at the end of last year by the OTP which really changes things. As I pointed out here, it doesn’t really acknowledge mistakes, blames Chambers for changing evidentiary requirements or lack of funds and, ultimately, is just a promise that the OTP will actually do its job.

Ocampo was the object (in most cases rightfully so) of a lot of criticism. But it has now been some years since he has left, and it is obvious that nothing has changed at the OTP. I fear that the problems there are more systemic and require a massive overhaul, from investigative to trial strategies, or the case law of the ICC will continue to be a series of embarrassing attempts from Chamber to “save” cases butchered by the OTP.

As an aside, I can only agree with Judge van den Wyngaert in her dissent (§148) when she finds it puzzling that, having considered that some key evidence relating to some issues was missing, the majority still makes findings in relation to these issues.

  • The Rules of Intepretation of the Rome Statute

I was quite happy to see a substantial section on the rules of interpretation of the Rome Statute. I have been working on this issue for some time now, and have argued that in fact, the Vienna Convention on the Law of Treaties should not be used to interpret the Rome Statute because some of its features are clearly incompatible with the principle of legality. Notably, there has been an abuse of the “object and purpose” criteria to use the “fight against impunity” to justify “interpretations” to justify inadmissible exercises of law creation by international criminal judges. My arguments can be found here,  with a summary here.

While the Chamber obviously does not follow my rather radical proposal, the judgment provides a full discussion of the way the Vienna Convention rules of interpretation must be applied in compliance with the respect of the legality principle (strict interpretation, prohibition of extension by analogy, in dubio pro reo) as provided for in Article 22 of the Rome Statute (pp. 34-36). More particularly, the Judges acknowledge, with a reference to yours truly, that the object and purpose of fighting impunity cannot be used to create law that would be contrary to the actual text of the Rome Statute (§55).

This is of course a welcome pronouncement in theory. However, it is rather unfortunate that it is present in a judgment that convicts a person on the basis of a judge-made provision, Regulation 55 of the Regulations of the Court, that is in clear contradiction with statutory provisions on the amendment of charges, but was deemed necessary to “fight impunity”…

Also, this pronouncement is not necessarily followed in the actual judgment, for example on the issue of the definition of an organisation under article 7(2) of the Rome Statute (more on this below).

  • The Crimes

The last issue I want to consider in this first post, is the discussion of the crimes in the Judgment. I obviously won’t discuss each crime charges and its elements. I just want to share some comments on what are some notable features of the judgment.

First of all, I do not understand the structure of the judgment. Section VIII discusses the “crimes committed” during the attack on Bogoro. It goes through, rather systematically, through each crime charged, listing the legal elements, the factual findings and concluding on whether the crime was committed. This seems rather logical. However, and this is where it becomes strange, the contextual elements of the crimes are NOT discussed in this section, but in section IX. This means that the Chamber finds that murder as a crime against humanity or as a war crime took place, BEFORE finding that there was a widespread or systematic attack against the civilian population or an armed conflict.

This reasoning is obviously flawed, as a murder only qualifies as a Crime against Humanity when the contextual element is established. Absent that, well, it is just a murder.

Second of all, I know this is common practice at the ICTY, but I remain amazed at the possibility there is to find that a murder or a rape was at the same time a war crime and a crime against humanity. The idea behind this apparently is that the legal requirements are not the same, and that if you can tick the boxes of the various legal elements of both crimes, in a somewhat mechanical way, then there is no reason not to conclude that both crimes were committed simultaneously.

But crimes, especially international crimes, are not just mechanical exercises in box ticking. They shape narratives of conflict, perceptions of situations and our understanding of the psychological state of mind of the perpetrators. In that sense, I just can’t get my head around the idea that a perpetrator has the intention both to target civilians in the context of an armed conflict (for whatever reason) and the intention to target civilians in furtherance of a state or organizational policy. These are simply for me two very different states of mind. I am aware that this would possibly somewhat challenge (or at least qualify) the accepted idea that crimes against humanity can be committed in war time, but this is not really the place to elaborate on this…

Third of all, I was particularly interested in the discussion of what constitutes an “organization” for the purposes of the contextual elements of crimes against humanity. The Judgment revisits the debate that was at the heart of the Kenya preliminary phase, notably in the decision to open an investigation in 2010, which I discussed at length here. Basically, the majority found that a key element was “whether a group has a capability to perform acts which infringe basic human values”,which is quite a low threshold, whereas Judge Kaul, dissenting, relying on the history of Crimes against Humanity, considered that the organisation had to have some state-like features.

In the Katanga Judgment, the judges side with the majority in the Kenya decision and find that to qualify under article 7(2) of the Statute, an organization must have the means and structure to effectively carry out the attack against a civilian population (§1119). I personally have a problem with this reasoning which I find slightly circular. Indeed, I think that the definition of an organization should not be linked to the actual commission of the crime, if not, it will always be satisfied, irrespective of the structure of the organization. Indeed, if a chamber finds that a widespread or systematic attack against a civilian population actually took place, any group of people that organized and planned it will necessarily be an organization for the purposes of the statute because the realization of the crime will be proof that that group had the means to commit the crime…

The definition should therefore be found somewhere else and the history of the crime is as good a place as any to start to require that there be something more than capacity to commit the crime.

As an aside, one can note that the Chamber, after having recognized (see above) the importance of the principle of legality, reverts to a “fight against impunity” argument to lower the threshold for what constitutes an organisation (§1122). This is rather unfortunate, as, once again, it removes, in my view and in practice any relevancy of the requirement that an organisation be involved, because the simple existence of the attack would be proof enough of the existence of the organisation. From there to reverting back to ICTY case law, where there is no policy requirement, there is a step that is just begging to be taken…

Finally, on the nature of the armed conflict, I don’t have an opinion on the preferred qualification, but I think the judgment illustrates once again why ICL should not be weighted down by discussions that belong to IHL. Indeed, the distinction between international and non-international armed conflict, imported from IHL, makes no sense in the ICL context when the elements of the crimes are basically the same under both, as seems to be the case in relation to Katanga. I therefore think that article 8 of the Rome Statute should be rewritten, with a common sub-section for all crimes which can be committed in any conflict, and sub-sections for IACs and NIACs, only when the crimes can only be committed in such context. This would avoid the interesting (both politically and from a public international law perspective) but ultimately irrelevant (from an ICL perspective) discussions on the nature of the armed conflict in the judgment.

The next post will feature a discussion on modes of liability and regulation 55, so stay tuned!

11 responses to “The ICC Katanga Judgment: A Commentary (part 1): Investigation, Interpretation and The Crimes

  1. Many thanks. As for your next post, I have two questions: Coming ftom a civil law country, I have no difficulties with Regulation 55 itself. However, I found seriously difficult the timing of the notification. If I am not mistaken, Judges in civil law countries have to immediately alert the accused that he might be convicted on grounds other than initially charged. Indeed, if I am not mistaken, if such notification has not taken place, he cannot be convicted for any other crimes or another mode of liability.
    (2): Having said that, I consider as serious and manifest failure from Counsel to let Katanga testify at all. At least, Counsel is presumed to have knowledge of the Regulation.. I look forward to reading your comments.

    • Jacob,

      As per your first question, while I know that this possibility for recharacterization is indeed a feature of civil lalw, I must admit that I am not familiar with specific procedural frameworks that exist in that respect, so your input is valuable.

      As per you second question, I see you point, and have heard it a number of times. It is often said that the worst enemy of a defense counsel can be his own client. However, I am weary of saying that simple knowledge of Regulation 55 is that relevant. If not, it means that defense lawyers should always prepare to defend themselves against all modes of liability, just in case. This clearly goes against the whole idea of specific charges, and specific modes of liability being confirmed in the pre-trial phase, as is the case at the ICC.

      • Friman and others have written a chapter on charges in “International Criminal Procedure” (OUP, 2013). On pages 467-468 there is a comparative overview concerning re-characterization of charges including Austria, Canada, Italy, Netherlands, Albania, Japan, Spain, Croatia, Germany, Estonia, Finland and France.

  2. Dov,

    As for your first response (and I am grateful for it), how about § 265 (1) of the Code on German Criminal Procedure (entitled: “Change in Legal Reference”):

    “The defendant may not be sentenced on the basis of a penal norm other than the one referred to in the charges admitted by the court without first having his attention specifically drawn to the change in the legal reference and without having been afforded an opportunity to defend himself.”

    Again, if I am not mistaken, failure to give such notice would invalidate a Judgement (§ 337, 338 of the aforementioned code).

    As for your 2nd response, I have to think about it and will reply later. However, in light of the regulation, and taking into account the general truth finding mission of the court, I think Counsel for Katanga (Hooper?, former standby Counsel for Seselj?) was indeed in charge of defending his client from any criminal conduct under any form that Art. 25 of the Rome Statute envisages…

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  4. Great post, Dov! Just to weigh in on the defence counsel point, I would say that this interpretation of Regulation 55 was completely unprecedented and counsel could not have been expected to know that the Regulation would be used to change the mode of liability charged.

    • Yvonne,

      Regulation 55 of the Regulations of the Court explicitly provide for the possibility of changes in modes of liability : ” In its decision under article 74, the Chamber may change the legal characterisation of facts to accord (…) with the form of participation of the accused under articles 25 and 28 (…)”.

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