Serious Fairness Issues Raised by New Ruling in Katanga Case

In mid-November, delegates to the Assembly of States Parties were told how the Court would conclude its second trial with a judgment before year-end (see the Report on the Activities of the Court, ICC-ASP/11/21, para. 10). This is the case of Katanga and Ngudjolo, dealing with a massacre that took place in the Democratic Republic of the Congo.

But the Assembly had not anticipated a ruling issued on 21 November that severs the case into two, and may have as a consequence the prolongation of the Katanga case by perhaps a year or even more. Judgment in Ngudjolo will be delivered on 18 December.

In a ruling based upon Regulation 55, the Trial Chamber decided to recharacterise the mode of liability upon which Katanga’s trial was based and to proceed on the basis of a different provision of the Rome Statute.

Nothing like this can take place at the ad hoc tribunals, because there is no equivalent to Regulation 55.

Regulation 55
Authority of the Chamber to modify the legal characterisation of
facts 

1. In its decision under article 74, the Chamber may change the legal
characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges.
2. If, at any time during the trial, it appears to the Chamber that the legal
characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.
3. For the purposes of sub-regulation 2, the Chamber shall, in particular,
ensure that the accused shall:
(a) Have adequate time and facilities for the effective preparation of
his or her defence in accordance with article 67, paragraph 1 (b); and
(b) If necessary, be given the opportunity to examine again, or have
examined again, a previous witness, to call a new witness or to present other
evidence admissible under the Statute in accordance with article 67,
paragraph 1 (e).

Most criminal lawyers in national systems will also be astonished that this can happen (well, perhaps it is possible in places like Iran, or Zimbabwe). The Regulations of the Court are crafted by the judges and then tacitly confirmed by the Assembly of States Parties, which may object if it is not content but which has not done so. Although the conformity of Regulation 55 with the Rome Statute itself has already been confirmed by the very judges who adopted it, it is not the idea of reframing the charges but rather the consistency of its interpretation with fair trial principles that is at the heart of the decision.

Judge Van den Wyngaert issued a very strong dissenting opinion that most persuasively protests the decision of her two colleagues to recast the legal debate because of the unfairness it creates for the defendant. The majority decision and the dissent represent one of the most profound debates about fairness in the Court’s proceedings to have taken place to date.

Reading between the lines, one may see that the majority judges concur that the mode of liability upon which both prosecutor and defendant have based their case, and on which evidence was led, is likely to lead to an acquittal. So they have found another mode of liability that they find more suitable and that will, presumably, result in a conviction. Of course, the parties can insist on making new submissions, and even on calling new evidence.

What is so astonishing about the decision is that it takes place not at the close of the prosecution’s case, or even in the midst of the defendant’s case, but more than a year after the evidentiary phase of the trial was completed and six months after the judges had received the final submissions from the parties.

Critics of the judgment will be tempted to point out that the two majority judges of the Trial Chamber, both of whom have already passed the expiration of their terms of office, have now extended their own employment contracts with the Court and, in the case of one of them, increased the pension entitlement. Two recently elected judges will have to wait still longer before taking office, and will have their own terms of office reduced accordingly.

As Judge Van den Wyngaert notes in her eloquent and compelling dissent, part of the unfairness is due to the fact that the recharacterisation of the liability of Katanga is based in part upon his own testimony. Katanga took the stand in his own defence on the belief that he was to answer upon one form of liability, but now finds himself charged based upon another form of liability that results in part from what he himself said in Court.

If this decision is allowed to stand, it will have a very significant impact upon defence strategies in future trials. Defence counsel will have to advise their clients that should they choose to testify, the evidence they give may be used not only in defence to the charges but also in what amounts to a new trial, on a new charge. For the Prosecutor, cross-examination of a defendant who chooses to testify will have the potential to become a fishing expedition where new charges and forms of liability will be explored. The notion of ‘relevance’ may take on a whole new meaning.

For the two majority judges, who come from a culture of inquisitorial proceedings, the idea of reframing a mode of liability in this way is perhaps not as unusual as it might be for a judge from a background in adversarial proceedings. They are more comfortable with procedure where it is the judge rather than the parties who drives the proceedings. But they may not have taken into account the unfairness that results when there are adversarial proceedings, like those prescribed by the Rome Statute, where the scope of the judicial debate is set at the outset of the trial and where the parties produce evidence pursuant to such an agreed understanding.

Regulation 55 allows the judges to intervene and propose changes to the charges, but this is not really that different from a situation where the prosecutor proposes an amendment to the charges. It is acceptable – within reasonable bounds – while the trial is underway, and especially before the defence has played its hand, but it becomes increasingly intolerable from the standpoint of fairness as the trial advances.

To allow this a year after the trial itself has concluded was surely not adequately contemplated by the judges when the adopted Regulation 55 or by the Assembly of States Parties when it confirmed the Regulations of the Court. Surely many of them believed at the time that this was something that would take place early in the trial, and in a manner fully respectful of the rights of the accused. If the majority of the Trial Chamber thinks this should be possible, it should proceed by proposing an amendment to the Regulations (which obviously could not apply in a pending trial in a manner designed to ensure conviction, as seems to be the case with Katanga) rather than ambush the defendant in this way.

The decision is available in French only at this point, which may explain why it is not getting the attention it deserves. But Judge Van den Wyngaert’s dissenting opinion, which is annexed to the ruling itself, is in English.