Readers of this blog will doubtless be aware that the ICC’s Trial Chamber II convicted Germain Katanga of murder as a crime against humanity and four counts of war crimes on Friday, 7 March. The judgment includes a 170-page 'minority opinion' from Judge van den Wyngaert, and a ‘concurring opinion’ from Judges Cotte and Diarra. It is unprecedented, and quite bizarre, for a majority of judges to issue a joint separate opinion concurring with themselves (this is something we can usually take as a given).
The Rome Statute introduces a requirement that crimes against humanity must be committed as part of a ‘state or organisational policy’. In a dissenting opinion in the Ruto et al. confirmation decision, Judge Kaul argued that an organisation, for these purposes, had to be ‘state-like’. The Katanga judgment, referring to the object and purpose of the Statute, held that a requirement that the organisation possess quasi-state characteristics would not enhance the aim of the Statute to punish those who have committed the gravest crimes (para. 1121). Instead, the sole requirement for an organisation in this context is the means and resources to carry out an attack on the civilian population. This reasoning essentially renders the requirement of a pre-existing organisational policy an irrelevance – once an attack has been carried out, it will suffice that the perpetrators had the ability to carry out such an attack for them to be considered an ‘organisation’.
Similarly circular reasoning is found in the judgment on the ‘policy’ requirement. The Chamber noted that, in most cases, the existence of a prior policy to carry out an attack on the civilian population will have to be inferred, after the fact, from an examination of the attack. It noted (para. 1110) that a policy in this context ‘may face an evolutionary process’ that might not be set in stone from the outset of the attack, or even when the attack against civilians has commenced. This means that the policy requirement will be met when the Chamber is convinced that an attack has in fact taken place. In effect, what had been seen as an additional burden for the prosecution to prove – the existence of a state or organisational policy to carry out an attack against a civilian population – has been relegated to a requirement to prove simply that an attack took place.
On the classification of the armed conflict as non-international, the Chamber determined that the Ngiti fighters in Walendu-Bindi were an organised armed group. This was despite the fact that the group did not have a single name that they acted under, or an identified leader, or a clear chain of command. The Chamber felt that it ‘could not adhere to the defence thesis’ (para. 680) that these were relatively autonomous groups. However, as Judge van den Wyngaert pointed out in her dissenting opinion, judges are not obliged to accept one party’s theory of the case over another, but rather consider whether an alternative explanation offers reasonable doubt on the guilt of the accused.
At trial, Katanga waived his right to silence and testified about his role as co-ordinator. This was relevant to his defence under the original charge under Article 25(3)(a), which required that he had control over the perpetrators. However, under the new mode of liability, precisely this testimony was used as a basis of his conviction because, the Chamber held, he had illustrated his ‘significant contribution’ for the purposes of Article 25(3)(d). This clearly raises issues on the right to freedom from self-incrimination and will have an immeasurable impact on defence strategies in future cases, given that it is now foreseeable that defence evidence may be used against the accused in amended charges.
Lastly, the rather shocking remark, at paragraph 70 of the judgment, must be noted. The Chamber stated that just because the accused has not been convicted of certain charges, it does not mean that he is actually innocent, just that there was insufficient evidence to prove him guilty beyond reasonable doubt. How any judge can reconcile such a statement with the presumption of innocence is a mystery.