The ICC Katanga Judgment: A Commentary (part 3): Some Final Thoughts on its “legacy”

Cross-Posted on Justice in Conflict

Having discussed some specific legal aspects of the judgment in my previous two posts (here and here) on the Katanga Judgement, it is now necessary, in this final post, to take a step back and discuss what is customary to call the Judgment’s “legacy”. This is a difficult term to use, because it is difficult to define. Indeed, it depends on multi-faceted (and sometimes contradictory) perceptions of legitimacy by a number of diverse interested communities (lawyers, diplomats, victims, NGOs, etc.), in a way that makes the concept difficult to pin down. Despite this, it is useful, I think to venture some thoughts on what this judgment shows in relation to the working of the ICC and more generally International Criminal Tribunals, before considering what effect this might have on the broader interested communities.

• Legacy from the perspective of the Court

This morning, I came across this remarkable title in an online publication: “Congo warlord’s conviction brings relief to international court”. Usually headlines point towards relief for victims, or broader political considerations. What this headline illustrates is the perception that the ICC might have an internal identity crisis which is deserving of attention. However, I’m not sure that the Katanga Judgment really does bring “relief” to the ICC.

First of all, the  Katanga verdict represents another failure for the Prosecutor, as pointed out by Kevin Jon Heller. The only thing that saved the case from total disaster was the Trial Chamber stepping in at the last minute. As a result, one can only continue to note that the record of the ICC’s Office of the Prosecutor (OTP) since the entry into force of the Rome Statute is bleak at best.

Indeed, it has been a rough few years for the ICC’s Prosecutor. A number of cases at the ICC have not gotten past the confirmation stages (Bahar Idriss Abu Garda, Callixte Mbarushimana, and two accused in the Kenya cases); the Laurent Gbagbo confirmation hearing was adjourned due to a lack of evidence; the Thomas Dyilo Lubanga trial was smeared by allegations of prosecutorial misconduct and evidence of OTP intermediaries influencing certain witnesses; the Jean-Pierre Bemba trial only went forward following a change in the mode of liability proposed by the Pre-Trial Chamber; Mathieu Ngudjolo Chui was acquitted and Germain Katanga only convicted due to the judges taking over a prosecutorial role. The fact is that little has changed since Luis Moreno-Ocampo has left office and there is something seriously wrong with the strategies adopted by the OTP.  These will need to be addressed because it is currently doing harm to the legacy of the Court.

Second of all, the Katanga judgment is a travesty of justice from the perspective of the rights of the defense. The notice of possible recharacterization in November 2012 was essentially a notice of conviction and the past year and a half pretending to be fair proceedings has been a waste of time. The only people who benefited from these prolonged proceedings are the two majority judges who got 18 extra months of international organisation salary and benefits because their mandate was meant to end with the Katanga and Chui verdict in December 2012.

The judges basically took over from the Prosecutor in a fashion that led the dissenting Judge, Christine van den Wyngaert, to express her disagreement in very strong terms, as I noted here.

But this travesty of justice can only be understood if it is set within the context of the general workings of international criminal law, with which, in fact, it appears to be perfectly in line.

Indeed, while the criticism of judicial involvement is certainly justified in the present case, it should be noted that judicial involvement in prosecutorial activities is nothing new. As I argued here, the adoption of Regulation 55 has shifted the balance of power from the Prosecutor to the Judges. More generally, judges have never shied away from taking on managerial roles in the cases. Some years ago, in the CAR and Darfur situations, faced with the Prosecutor’s delays in investigations, the pre-trial chambers in both instances made insistent enquiries in relation to this lack of progress. More recently, in the Laurent Gbagbo case, the Pre-Trial Chamber provided the Prosecutor with a detailed list of questions and issues that should be investigated further because they were inadequately handled in the document containing the charges.

Moreover, in relation to protection of the rights of the defense, while the use of Regulation 55 in this case to recharacterize the charges at such a late stage of the proceedings to guarantee a conviction and avoid an acquittal is a particularly egregious example of denial of fair trial rights, it is a common feature of international criminal trials generally. International criminal law is geared towards conviction, both in way the law is applied and interpreted (or created) by the judges as well as in the rules of procedure and evidence.

“Why is that a problem?”, one might ask. To answer this question, one needs to take a broader perspective and wonder why we have these international trials and what their purpose is.

• Legacy from a broader perspective

A couple of paragraphs from the dissent of Judge van den Wyngaert deserve to be quoted in full (§§310-311) :

While it is not for me to speculate about the reasons why my colleagues take such a different view on so many issues, I do want to offer some of my own reflections. Trials like these are difficult and complex matters, both from a legal and evidentiary point of view. Moreover, they are challenging on the human level. Sympathy for the victims’ plight and an urgent awareness that this Court is called upon to “end impunity” are powerful stimuli. Yet, the Court’s success or failure cannot be measured just in terms of “bad guys” being convicted and innocent victims receiving reparation. Success or failure is determined first and foremost by whether or not the proceedings, as a whole, have been fair and just.

This raises the question by which standard fairness and justice should be evaluated. My view is that the trial must be first and foremost fair towards the accused. Considerations about procedural fairness for the Prosecutor and the victims and their Legal Representatives, while certainly relevant, cannot trump the rights of the accused. After all, when all is said and done, it is the accused – and only the accused – who stands trial and risks losing his freedom and property. In order for a court of law to have the legal and moral authority to pass legal and moral judgment on someone, especially when it relates to such serious allegations as international crimes, it is essential, in my view, to scrupulously observe the fairness of the proceedings and to apply the standard of proof consistently and rigorously. It is not good enough that most of the trial has been fair. All of it must be fair.

 These sentiments make a fundamental claim about the centrality of the accused (and therefore of the respect of his rights) in international criminal proceedings. A criminal trial is first and foremost about the fair determination of the criminal responsibility of an individual. To take the dissent one step further, while fighting impunity, reconciliation, truth or closure for victims might be a valuable consequence of an international criminal trial, it is not its core function as an institution. These other goals can never “trump the rights of the accused”. International criminal trials should be fair to the defendants and international criminal judgments should be strictly and correctly reasoned in law and in fact. None of this was done in the Katanga trial and judgment, as noted in my previous posts on the Judgment (here and here).

Still, ultimately and unfortunately, Judge van den Wyngaert is probably wrong. The fairness of international criminal trials or the correct legal reasoning of international judgments are of interest to only a small epistemic community of which I am a part and which has a vested interest in these particular aspects of international trials. I think there is in fact no connection between the legal quality of what international criminal tribunals produce and the way their work is perceived by affected communities. I’ve seen a number of surveys done in regions where international or hybrid tribunals were in operation, where surprise or anger was expressed at the level of guarantees these “guilty” people were being given. A fair acquittal will be seen as a “disappointment” for victims while a conviction, irrespective of how it came about, will be seen as a “victory for justice“.

One can wonder whether and how the Katanga Judgment fits this logic.

First of all, from a fair trial perspective, while due process violations are usually hidden within the arcanes of procedure, in the Katanga trial it was very visible. Indeed, Katanga’s co-accused, who was charged with the same criminal conduct as his, was acquitted over a year ago. You don’t need 10 years of legal expertise to question why this is the case.

Second of all, even from the perspective of victims, it is not clear whether this is a “victory for justice”. For one, this judgment symbolically illustrates the continued and inadequate consideration of rape and sexual violence in armed conflict. Secondly, it must be said that Katanga wasn’t really found guilty of much. He provided weapons to a group with possibly some knowledge of their criminal intent and without even necessarily sharing it. This is clearly anti-climatic compared to the narrative of a criminal mastermind that was sold to us by the Prosecutor. In the meantime, the vaguely identified group acting with a common criminal purpose that Katanga helped is still out there.

In sum, it seems there is not much to salvage from the Judgment, whatever view one takes on the “legacy” of international justice. 1) The Judgment is new evidence that the ICC OTP is building the future on its past failures, which is good news for no one, not even the defendant because 2) the judgment illustrates in the bleakest fashion possible how international criminal courts can sometimes completely disregard defense rights and 3) the outcome of the judgment, even if it is a conviction, is a far cry from providing the level of justice to victims that one could have expected.

Which leads me to a final concluding thought. We often tend to address issues of “legacy” from the perspective of positive or negative effects on the considered communities (lawyers, victims, defendants, etc.). In that respect, the legacy of Katanga Judgment seems to be entirely negative. However, I wonder whether Judgments like this might not actually explode this positive/negative dichotomy by ultimately showing that international criminal tribunals will increasingly and ultimately become irrelevant. Irrelevant for lawyers because of the lack legal quality of the output. Irrelevant for defendants, because no pedagogic effect can result from such biased institutions. Irrelevant for affected communities, because they are no longer getting confirmation of what they think happened. Irrelevant for victims, who might finally see through the lie that was the promise of international justice, in the way that it was sold to them.

In the words of Oscar Wilde: “There is only one thing in life worse than being talked about, and that is not being talked about.”