JOSEPH KAIFALA CONSULTING (SL) LTD

Germain Katanga, former commander of the Patriotic Resistance Force of Ituri (FRPI) has been found guilty by the International Criminal Court (ICC) of four counts of war crimes and one count of crimes against humanity under article 25(3)(d) of the Rome Statute. He was however acquitted on charges of Rape and Sexual Slavery and the use of child soldiers. His conviction was mostly based on crimes committed by the Ngiti militia on February 24, 2003 in the town of Bogoro in the Ituri district of the Democratic Republic of Congo (DRC) in which more than 200 people were killed.

Mr. Katanga had initially been charged as principal perpetrator, but the chamber could not affirm whether the accused was present during the attack on Bogoro. Therefore, his charges were recharaterized to Accessoryship under 25(3)(d) of the Rome Statute. Article 25(3)(d) provides that a person shall be criminally responsible and liable for crimes within the jurisdiction of the court if the person in “any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.” To prove accessoryship, it must be established that the person committed a crime within the jurisdiction of the court, acted with a common purpose, accused made a contribution to said common purpose, his/her contribution was intentional, and the contribution was made with the knowledge of the intention of the group to commit the crime. In this case, the chamber found that absent Katanga’s contribution as an intermediary of choice, the militia would not have had the advantages or have been able to commit with such efficiency crimes committed against the civilian population of Bogoro. “It was therefore his activities as a whole under various forms which his contribution took that in the circumstances had a significant influence in the commission of those crimes.”

On charges of Rape & Sexual Slavery and the use of Child Soldiers, the chamber could not find any nexus of evidence under article 25(3)(a) linking Mr. Katanga to these crimes, even though it was established that the crimes were widely committed. The chamber stated that even though children fought and committed acts of violence, there was no evidence showing that Mr. Katanga engaged them in battle within the meaning of the article 25(3)(a). The prosecutor and the defense may appeal this judgement within 30 days.

Judge Van den Wyngaert dissented in the case and wrote an opinion concurring in part and dissenting in part. According to Judge Van den Wyngaert, the chamber cannot recharacterize charges without fundamentally changing the facts and circumstances of the confirmation decision in the case. She also argued that the recharacterization rendered the trial unfair, as it failed to provide adequate notice of new charges and did not afford the defense with reasonable opportunity to conduct meaningful investigation in response to the new charges. Moreover, she claimed that essential evidence was missing from the case and questioned the quality and reliability of remaining evidence. She also raised concerns pertaining to undue delays in the case.

Link to case file