Monthly Archives: March 2014

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. Continue reading

Breaking: Katanga found guilty in third ICC Judgment

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:

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.