Today, 7 March 2014, Trial Chamber II of the International Criminal Court (ICC), ruling in the majority, with Judge Christine Van den Wyngaert dissenting, rendered its judgment in the case The Prosecutor v. Germain Katanga. The Chamber was satisfied beyond reasonable doubt of Germain Katanga’s guilt as an accessory, within the meaning of article 25(3)(d) of the ICC’s founding treaty, the Rome Statute, to one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging) committed on 24 February 2003 during the attack on the village of Bogoro, in the Ituri district of the Democratic Republic of the Congo (DRC). Decisions on sentencing and victim reparations will be rendered later. The Prosecutor and the Defence may appeal the judgment within 30 days.

Presiding Judge Bruno Cotte delivered a summary of the judgment at a public hearing today. He explained that in light of the witness testimonies and the evidence presented before the Chamber, it had been established beyond reasonable doubt that Germain Katanga had made a significant contribution to the commission of the crimes by the Ngiti militia, which was acting with a common purpose, by assisting its members to plan the operation against Bogoro. The Chamber found that Germain Katanga acted in the knowledge of the criminal common plan devised by the militia to target the predominantly Hema population of Bogoro. The crimes of murder, attacking civilians, destroying property and pillaging were part of the common plan.

The Chamber found that Mr Katanga was the intermediary of choice between the weapons and ammunition suppliers and those who physically committed the crimes using those munitions in Bogoro. He contributed to reinforcing the strike capability of the Ngiti militia who carried out the crimes committed in Bogoro on 24 February 2003. He also contributed, by virtue of his position in Aveba – the only place in the collectivité with an airport which could accommodate aircraft transporting weapons – to equipping the militia and enabling it to operate in an organised and efficient manner. His involvement allowed the militia to avail itself of logistical means which it did not possess enabling it to secure military superiority over its adversary. However, the Chamber dismissed the mode of liability, as principal perpetrator, applied to Germain Katanga, since it was not proven beyond reasonable doubt that in respect of the collectivité he had the material ability to give orders or to ensure their implementation, or that he had the authority to punish camp commanders.

The Chamber changed the characterisation of the mode of liability against Mr Katanga – who had initially been charged as principal perpetrator – on the basis of article 25(3)(d) of the Rome Statute, which defines being an accessory as contributing “[i]n any other way […] to the commission […] of […] a crime by a group of persons acting with a common purpose”. Germain Katanga was found guilty, as an accessory within the meaning of article 25(3)(d) of the Rome Statute, of the crimes of murder constituting a crime against humanity and a war crime and the crimes of directing an attack against the civilian population as such or against individual civilians not taking direct part in hostilities, destroying the enemy’s property and pillaging constituting war crimes. The Chamber also decided that Germain Katanga shall continue to be detained pending sentencing.

The Trial Chamber acquitted Germain Katanga of the other charges that he was facing. With respect to these charges, the Chamber found that there was evidence beyond reasonable doubt that the crimes of rape and sexual slavery were committed. Regarding the crime of using child soldiers, it found that there were children within the Ngiti militia and among the combatants who were in Bogoro on the day of the attack. However, the Chamber concluded that the evidence presented in support of the accused’s guilt did not satisfy it beyond reasonable doubt of the accused’s responsibility for these crimes.

In her dissenting opinion, Judge Van den Wyngaert challenges the change in the characterisation of Germain Katanga’s mode of liability. She argues that the change in characterisation rendered the trial unfair and breached the rights of the Defence, as it did not receive proper notification of the new charges and was not afforded a reasonable opportunity to conduct investigations in order to mount a defence against them. Judge Van den Wyngaert maintains that there is no basis in the evidence for findings beyond reasonable doubt which can be relied on to establish Germain Katanga’s guilt.