The ICC has just delivered its third judgment and convicted Katanga for war crimes and crimes against humanity under Article 25(3)(d) of the Rome Statute. He was acquitted for the use of child soldiers, for rape and for sexual slavery.
Those who followed me on twitter, will know my first impressions of the judgment, but a few quick thoughts here, before possibly some more thorough developments when the judgment actually comes out:
1) There is no real surprise in this judgment. Regular followers of international criminal law will recall that over a year ago, during the deliberations stage, the Trial Chamber severed the case of Chui and Katanga, announced to the defense that the charges against Katanga might be requalified as accomplice liability under 25(3)(d) (with a strong dissent from Judge van den Wyngaert) and promptly acquitted Chui. Essentially, we already knew then what we heard today: a) Katanga acquitted under article 25(3)(a) for perpetration b) Katanga found guilty under 25(3)(d) as an accomplice and c) a strong dissent from van de Wyngaert.
2) Strangely, Judge Cotte read van Den Wyngaert’s dissent before reading the majority opinion on the requalification. This is the first I see this (if readers have seen this before, please direct me to the relevant case) and find this extremely bizarre, as if he didn’t want to end on the bad note that is the scathing critique of the majority judgement that seems to be the dissent.
3) This is the first judgment under article 25(3)(d) and it is interesting to see what level of knowledge and contribution are required. My first impression is that the majority was very vague and broad on both counts (apparently, it seems to be a crime to provide weapons to a group that might give it a military advantage over its opponents…), but I’ll wait for the judgment to comment further.
4) There are some disturbing pronouncements on the rights of the defense and the right to be tried without undue delay. As Clair Duffy from the IBA summarized here, the use of Regulation 55 raised a number of due process concerns which were essentially brushed aside by the majority. More on this with the judgment.
5) As noted already by a number of people:
— Dieneke (@DienekeTV) 7 Mars 2014
This obviously raises a number of questions on whether ICL culture has really changed on this and were the problem lies (investigation strategy, evidence gathering, judges, education, etc.).
6) I’m disappointed that Judge Cotte, having taken the time to explain in the Chui acquittal Judgment that the fact that he was not found guilty does not mean that Chui was innocent, did not do the same here, by clarifying that the fact that Katanga was convicted did not mean that he was in fact guilty…
Stay tuned for more comments later tonight.