Another Terrible Day for the OTP

by Kevin Jon Heller

Readers are no doubt aware that Germain Katanga was convicted by the ICC yesterday. What may be less obvious is that the verdict nevertheless represents the Trial Chamber’s complete rejection of the OTP’s case against Katanga. The OTP alleged that Katanga was responsible as an indirect co-perpetrator for seven counts of war crimes (using children under the age of fifteen to take active part in hostilities, directing an attack against civilians, wilful killing, destruction of property, pillaging, sexual slavery, and rape) and three counts of crimes against humanity (murder, rape, and sexual slavery). The Trial Chamber acquitted Katanga on all of the charges concerning rape, sexual slavery, and the use of child soldiers. And although it convicted him of one crime against humanity (murder) and four war crimes (murder, attacking a civilian population, destruction of property and pillaging), the Trial Chamber rejected the idea that he was responsible for those crimes as an indirect co-perpetrator, choosing to “recharacterize” the facts to support finding him guilty as an accessory under Art. 25(3)(d) of the Rome Statute (contribution to a group crime).

The OTP, in short, failed to prove any of its legal claims — just as it did with regard to Katanga’s co-defendant, Mathieu Ngudjolo, who was acquitted on all charges in 2012. Indeed, had the Trial Chamber not been willing to substitute an uncharged and unconfirmed mode of participation for the charged and confirmed one, Katanga would have simply walked, as well.

(Which is, by the way, exactly what should have happened. The Trial Chamber’s “recharacterization” of the facts in the case, which was motivated solely by the desire to ensure Katanga’s conviction — thereby saving the OTP from itself — was fundamentally inconsistent with Katanga’s right to a fair trial. But that will be the subject of my next post.)

All in all, another terrible day for the OTP.

16 Responses

  1. Did the Court recharacterise the facts or the charges filed by the OTP? Because I don’t even know what the former would mean. He’s an accessory or he’s not. Do you mean to say that the Court found a set of facts and then decided those facts justified a conviction as an accessory when they shouldn’t have?

  2. It says it legally recharacterized the facts, pursuant to Reg. 55 — but it really just substituted a different mode of participation (one not charged, not confirmed, and not litigated during the trial) for the one alleged by the OTP in order to ensure a conviction. Indeed, the PTC assured Katanga during the confirmation hearing that complicity was off the table. I will blog about the recharacterization issue tomorrow, I hope — but you can look at the relevant sections of my recent essay here.

  3. Ah, so the Court went ultra petita?

  4. Often the compendious indictments at the ad hoc tribunals allege criminal responsibility on multiple bases and in the end not all of them are made out beyond reasonable doubt. So the fact that the ICC Prosecutor was able to unable to do the same in respect of an Article 25(3)(a) case is not surprising. If such an outcome is ‘terrible’ well I guess we will have to expect that most if not all ICC prosecutions will end ‘terribly’ for the prosecutor unless the Court stops committing Article 25(3)(a) charges for trial altogether.

  5. In fact, on the subject of Article 25(3)(a), it would appear from my cursory reading of the judgment (bearing in mind I don’t read French), that the Trial Chamber has broadly followed the Lubanga’s judgment’s interpretation. Which is actually a significant win for the Prosecutor given that this is the interpretation they have always pushed, and on an important legal point.

  6. Rob,

    Your first comment misses the point. The PTC rejected complicity as mode of participation during the confirmation hearing, it assured Katanga complicity would not be at issue in the trial, and complicity was never litigated during the trial. That is completely different than what often happens at the ICTY.

  7. It does not miss the point. It merely doesn’t make the same point you make.
    The point am making is that experience at the ad hoc tribunals has shown that not infrequently, the case under one head of criminal responsibility will not be made beyond reasonable doubt. Seen in that light, failing to prove an Article 25(3)(a) case but succeeding in proving an Article 25(3)(d) is not a ‘terrible’ outcome forensically.
    And I might add that the state parties and other actors probably will not even notice anything beyond ‘convicted’. To a large extent the same will be true of Mr Katanga, who now faces the likely prospect of a lengthy gaol sentence. No one apart from academics and lawyers notices what paragraph of the treaty gets him here.

  8. The point you are making is based on a misunderstanding of the case. The OTP did not prove that Katanga was responsible for the crimes under Art. 25(3)(d), because it did not allege that he was responsible for those crimes under that provision. Nor did the OTP ever argue at trial that Katanga was complicit in the crimes. The decision to convict Katanga as an accomplice was made solely by the PTC, based on its own motion more than a year after trial had ended. The situation in Katanga thus bears absolutely no resemblance to anything that has ever happened at the ICTY — where, I might add, the judges specifically rejected the kind of legal recharacterization that the PTC has used to ensure Katanga’s conviction.

  9. Rob, given the sentence that Lubanga got as a principal under Article 25(3)(a), don’t get your hopes up about Katanga’s sentence since, in contrast, he was only convicted as an accessory.
    Kevin, no comment on what was said about the OTP’s investigation?

  10. Calling this judgement a “terrible day for the OTP” is cheap  sensationalism. An acquittal would have  been a terrible day. A conviction under 25(3)(a) would have been a great day. A conviction under 25(3)(d) is decent result – even amongst professionals who may differ in opinion on the details. 
    To say that the “PTC assured Katanga during the confirmation hearing that complicity was off the table” is legally incorrect. The PTC confirmed on 25(3)(a). However, it made no statement about whether re-characterization (or for that matter, amendment of charges) would or would not occur during trial. Such a statement would not be within its mandate. The PTC (and counsel for Mr. Katanga) knew full well of the existence of Regulation 55, and related case-law, and hence of the possibility of re-characterization. 
    To say “The OTP did not prove that Katanga was responsible for the crimes under Art. 25(3)(d)” is to make a  rather disingenuous  semantic point. The OTP did not charge 25(3)(d)  – but it led the evidence on the which the conviction is based. It also made submissions under Regulation 55 relating to Article 25(3)(d).
    There are genuine concerns to be discussed about 1) the timing of the deployment of regulation 55 2) how many modes of liability to charge at the beginning of a trial 3) the possibility of asking the TC to issue notice of the possibility re-characterization at the beginning of trial. However, these have to be discussed rationally and without sensationalism.  

  11. There was nothing remotely sensationalist about my post. I did not say that the verdict was a terrible day for the victims. I did not say it was a terrible day for the ICC. I did not say it was a terrible day for international criminal justice. I said it was a terrible day for the OTP, and it was. The TC rejected its case in its entirety — every legal allegation that was confirmed by the PTC. Had two judges in the TC not decided it was appropriate for them to act as prosecutors instead of as judges, Katanga would have walked.

    Nor is my statement about complicity being off the table incorrect, unless you want to rely on the empty formalism of R55’s existence. The PTC did not confirm any form of complicity, and even noted in the Confirmation Decision that its findings “render moot further questions of accessorial liability.” The TC’s willingness to ignore that finding quite literally renders moot the confirmation hearing — the crimes and modes confirmed by the PTC are now simply suggestions that the TC is free to ignore at will.

    Finally, my statement about the OTP not proving complicity is completely accurate. All the OTP did was introduce evidence that the TC wrongly concluded a year after trial was capable of being recharacterized to support complicity; it did not argue complicity and it most certainly did not “prove” it — unless you believe that the only function of the OTP is to prove facts. That is a profoundly desiccated understanding of the prosecutorial function.

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