The ICC Katanga Judgment: A Commentary (part 2): Regulation 55 and the modes of liability

This is the second post on the Katanga judgment. The first one, commenting on rules of interpretation of the Rome Statute, the Investigation and the definition of the crimes, can be found here.

In this post, I will discuss the issue of the legal recharacterization that was done by the Chamber and the definition of the modes of liability it adopted.

1. The legal recharacterization under Regulation 55

• Why Regulation 55 shouldn’t be there in the first place

For those who are not aware of this issue, a short summary of the problem. When drafting the Regulations of the Court, the judges inserted a provision by which:

1. In its decision under article 74, the Chamber may change the legal characterisation 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 characterisation 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.

The two main arguments for this provision, as summarized by Judge van de Wyngaert in her dissent, are (par. 10):

Regulation 55 of the Regulations of the Court is said to serve two broad purposes. The first is to allow more focused trials on clearly delineated charges. The second is to avoid “impunity gaps” that may be caused by technical acquittals in the “fight against impunity”.

I have always been a strong opponent of this provision. As I argued extensively here, the main challenge to this provision is that it was not within the powers of the judges to adopt it, thereby adding a new element to the Rome Statute framework on the amendment of charges. The Rome Statute is very clear on who can change the charges at what stage of the proceedings and this does not include the judges doing it proprio motu during the trial. Regulation 55 is therefore an intolerable act of judicial lawmaking and, whatever one thinks of its normative value, should purely and simply not exist.

It should be noted in that respect that arguments along the lines that Regulation 55 does not in fact lead to a modification of the “charges” are unconvincing. If anything, the case law of the Court itself contradicts this argument: in the Bemba confirmation of charges decision, it was clearly indicated that the modes of liability are an inherent aspect of the crime and the charge.

This being said, the Appeals Chamber of the ICC has said that the Regulation was not ultra vires on a number of occasions, so the next step is to consider the scope of its application.

• When can Regulation 55 be used?

This regulation has become a new go-to provision of ICC judges and has now been used in a lot of cases, and at most stages in the proceedings. Indeed, in was used in Lubanga pre-trial, during the Bemba and Kenya trials and in the course of the deliberations in the Katanga trial.

Kevin Jon Heller has convincingly argued that use at both the pre-trial phase and during deliberations is contrary to the text of the Regulation itself and that a contextual intepretation of the term “trial” in the Rome Statute clearly shows that it does not cover these other phases of the proceedings.

Again, however, the Appeals Chamber has approved of its invocation at the deliberation phase in the Katanga case, so we have to move on to the next stage: under what conditions can this provision be used?

• The conditions of the use of Regulation 55

This is one of the most contentious issues in the judgment and the dissenting opinion. Indeed, judge van den Wyngaert considers that the Trial Chamber violated both conditions for a valid use of Regulation 55: 1) not exceeding the facts and circumstances of the charges and 2) not violating the rights of the defense.

On the first aspect, I will let you make up your own mind on whether the findings made by the Trial Chamber were indeed contained in the confirmation of charges decision. Van den Wyngaert’s position is that because the elements of the new mode of liability are so different to those of the one originally charged, there is no indication of any finding in the confirmation decision in relation to these elements.

On the second aspect, the defense invoked the breach of a certain number of its rights: right to be informed of the charges, adequate time to prepare, right against self-incrimination, right to be tried without undue delay. There is merit to all these claims and I would like to highlight a number of problematic issues that arise from the proceedings.

First of all, in relation to notification, I just cannot see how the content of the initial decision on recharacterization in November 2012 or the clarification decision that was issued in May 2013 can decently be called a notice of the charges in any meaningful sense. Indeed, the charges are usually notified through lengthy confirmation of charges decisions which go into substantial discussions of both the applicable law (particularly the elements of the modes of liability) and the way the facts of the case relate to this applicable law. This is done in a less than precise manner by the Trial Chamber and clearly put the defense at a disadvantage.

Second of all, Judge van den Wyngaert expresses legitimate concern at the fact that the Trial Chamber systematically refused to render decisions on defense motions challenging the fairness of the proceedings (p. 67-71 of the dissent), thus depriving the defense of any chance of appealing before the final judgment.

Third of all, in relation to the length of the proceedings, Judge van den Wyngaert points out that, had the Trial Chamber done its job in its initial decision giving notice of the possible recharacterization, things would not have taken over a year longer (§127). This is most certainly correct and it is not normal that the clarification that came in May 2013 was only prompted by the Appeals Chamber decision and a defense motion.

Fourth of all, I find the discussion in the judgment on whether the defense was given enough time to investigate quite astonishing. It should be recalled that the defense claimed that it could not investigate in various parts of Ituri and could therefore not gather relevant evidence to challenge the recharacterisation. This difficulty was confirmed by a Registry report on the security situation in the country. However, while acknowledging these difficulties, the Chamber considers that this is the way things are in relation to ICC investigations and that the defense cannot really complain (§1564).

More, the Chamber finds that, while “access to information is an important component of a fair trial”, “the existence of certain limits to this access, whether circumstantial or of any other kind, is not intrinsically incompatible with the requirements of fairness” (§1585). This comes after a recognition that key places, such as Bogoro itself (!!!), and key potential witnesses, could not be accessed due to security concerns. I this this is definitely part of fair trial requirements. If the defense cannot properly investigate to challenge the charges that the judges came up with following no investigation whatsoever, there is a real concern for the fairness of the proceedings. Indeed, how can the judges pronounce themselves if key information is missing, irrespective of where it comes from?

The Chamber seems to have adopted the position that the use of Regulation 55 does not given the defense an automatic right to be able to proceed with additional investigations, which are authorized at the Chamber’s discretion (§1576) and that therefore any investigative steps that the defense wanted to take should have been specifically justified (§1586). I find this troublesome, especially in this particular case. For one, I don’t see that the text of Regulation 55 itself automatically means that the Chamber has full discretion to determine what investigative steps are “necessary” (Reg 55(3)(b)). In support of this claim, the Chamber refers to its own decisions (footnote 3492), and I don’t find it particularly convincing. Second, it is even more problematic in this case given the particular circumstances of the use of Regulation 55. Basically, having heard the whole case and reviewed all the evidence, the Chamber which has already made up its mind on the legal recharacterization gets to decide whether any further investigation is necessary… Also, it leads to ridiculous sentences like this one: “The Chamber was therefore never in a position to assess the relevancy of the information that these potential witnesses could have provided” (§1586), which follows a criticism of the defense trying to do “fishing expeditions”. But how can the defense know what it will find in advance to justify that it should go look for it in order to be allowed to go look for it? this would make Kafka proud. Moreover, what else is the defense expected to do in response to the few imprecise pages that the Chamber provided as clarification on the new charges? How can the defense be told off for not being able to build a comprehensive new defense in a few months, when it took the OTP years to build a deficient case and the majority judges three years to get around to thinking of using a new mode of liability?

Fifth of all, on the general fairness of the proceedings, there is an incredible pronouncement of the Trial Chamber, which states that it guaranteed that the defense could play its role in the “most equitable conditions possible” (§1590). What kind of standard of fairness is that? I can only concur with Judge van den Wyngaert, when she affirms that “it is not good enough that most of the trial has been fair. All if it must be fair” (dissent, §311).

The fact is that, given what has happened in the past year and a half, how can the process be seen as being at all fair or impartial? Katanga should have been acquitted in December 2012 and was convicted only on the basis of the recharacterization operated by the majority, which effectively took on the role of the Prosecutor. This compels van den Wyngaert, rather provocatively, to talk of the “Majority’s case”, like she would of the “Prosecutor’s case”. In essence, the notice of recharacterization of November 2012 reads like a draft of the summary of the judgment. Nothing that happened after that can be in any way be deemed impartial, as the opinion of the judges was obviously made. I find it particularly disturbing that the judges who basically wrote and notified the new charges are the ones to decide whether they were specific enough and notified adequately. There is clearly a conflict of interest. In essence, Katanga has been judged by his accusers, which is most unfortunate, to say the least.

All this being said, and taking a step back, while I obviously don’t agree with what happened, I do not find any of it surprising. Trials at international criminal courts have always taken years, been the scene of debatable convictions based on poor evidence, inexistent modes of liability and definitions of crime invented on the spot by judges. Why the big fuss about the use of Regulation 55? This is business as usual in international criminal tribunals. The problem is therefore not Regulation 55, the problem is the whole way in which ICL has been implemented since the ad hoc tribunals, in often clear disregard for the rights of the defense. This is therefore not so much a case of barking up the wrong tree, it is a case where barking up one tree is not enough, and we should be barking up the whole forest.

2. The modes of liability: 25(3)(d)(ii): JCE on Steroids?

Before discussing the definition given of article 25(3)(d) of the Statute, it is interesting to note that the Trial Chamber did a hidden recharacterisation under Article 25(3)(a) of the Statute. Indeed, while Katanga was initially charged under indirect co-perpetration, along with Chui, the mode of liability for which he is in the end acquitted by the Trial Chamber is indirect perpetration. The fact that Katanga is acquitted under this mode of liability does not remove the fact that technically it was not the Trial Chamber’s prerogative to consider it without prior notice. But apparently, this did not strike anyone in chambers as being a problem.

Also, in relation to 25(3)(a), while I won’t delve into this now, readers should note that 1) the Trial Chamber confirms the control theory over the crime and 2) the Trial Chamber affirms that there is no hierarchy between modes of liability. Possibly, they make the second point in anticipation of the sentencing proceedings.

On 25(3)(d), this is not the place to delve into detail in the definition of what constitutes a “contribution” for the purposes of finding someone criminally responsible, but one should not that the judgment raises some serious questions on this mode of liability.

In a nutshell, Katanga is found guilty for providing weapons to a group that had adopted a policy of targeting civilians during their attacks on villages, with simple knowledge of that policy. 25(3)(d) therefore has a very low threshold of both mens rea and actus reus for criminal responsibility, which of course raises, once again the spectre of the discussion of where the line of criminal conduct lies when providing help to criminal organisations.

In this respect, when hearing the summary, I had the following thought:

#katanga #icc am I the only one to have thoughts about “specific direction” when hearing this?

— Dov Jacobs (@dovjacobs) 7 Mars 2014

It turns out I was not far off the mark. Indeed, while the majority judgment does not discuss the whole Perisic/Sainovic specific direction issue, van den Wyngaert clearly mentions it in her dissent (§287), claiming that the specific direction test, while not necessarily an element under 25(3)(d), should be taken into account in assessing the responsibility of a person in the context of contribution.

However, the fact is that 25(3)(d) provides for residual accountability, with a very low threshold of knowledge and contribution. But the low threshold does not mean that anything flies and I think the judgment could have been more precise on a number of issues, of which here are two examples.

First of all, given these low thresholds, it is particularly important that the other requirement of the Article, the existence of a “group of persons acting with a common purpose” with a criminal purpose, be applied strictly. On this point, the judgment does not seem to be very precise on the composition of the group, their criminal intent, or their intent to commit the specific crimes that were charges. Reintroducing JCE through the backdoor, the Trial Chamber remains quite vague on this “common purpose”.

Second of all, there is some confusion relating to the knowledge requirement. It seems Katanga should have known that crimes might be committed by the militia, given their past practices. This hardly seems like actual knowledge of the commission of the specific crimes that were committed.

In sum, if 25(3)(d) is not to become the new JCE on steroids, it needs to be applied strictly.

3. A minor comment on dissent on facts

Reading the dissent, it appears that Judge van den Wyngaert not only dissent on the principle of using Regulation 55 or the manner it was used, she also believes that the facts are not established beyond reasonable doubt and disagrees with a number of factual findings of the majority.

I know it happens in international decisions, but I have always found it strange that judges could dissent on facts. For me, judges are by definition “reasonable”. Therefore, if one judge on the bench dissents on the facts, doesn’t that ipso facto mean that there exists reasonable doubt? This might be wrong, and I welcome comments on this from readers who have made it this far in the post!

The final post will deal with some broader considerations on the legacy of the judgment. Stay tuned!