The Women's Initiatives for Gender Justice is an international women's human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and through domestic mechanisms, including peace negotiations and justice processes. We work with women most affected by the conflict situations under investigation by the ICC.

The Women's Initiatives for Gender Justice works in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan.

Offices
■ Cairo, Egypt
■ Kampala and Kitgum, Uganda
■ The Hague, the Netherlands

Dear Friends,

Welcome to a Special Issue of Legal Eye on the ICC, a regular eLetter from the Women's Initiatives for Gender Justice. In the Legal Eye you will find summaries and gender analysis of judicial decisions and other legal developments at the International Criminal Court (ICC), and discussion of legal issues arising from victims' participation before the Court, particularly as these issues relate to the prosecution of gender-based crimes in each of the Situations under investigation by the ICC. The Court currently has nine Situations under investigation: Uganda, the Democratic Republic of the Congo (DRC), Darfur (Sudan), the Central African Republic (CAR I and CAR II), Kenya, Libya, Côte d'Ivoire and Mali.

In addition to the Legal Eye on the ICC, we produce Women's Voices, a regular eLetter providing updates and analysis on political developments, the pursuit of justice and accountability, the participation of women in peace talks and reconciliation efforts from the perspective of women's rights activists within armed conflict situations, specifically those countries under investigation by the ICC.

More information about the work of the Women's Initiatives for Gender Justice and previous issues of Women's Voices and Legal Eye on the ICC can be found on our website at iccwomen.org.

This Special Issue is the second in a series reporting on the ICC’s third Trial Judgment, in the case against Germain Katanga (Katanga).[1] In this second Special Issue, we discuss the Trial Chamber’s factual findings in relation to Katanga’s criminal responsibility as an indirect co-perpetrator, along with its interpretation of the elements of indirect perpetration under Article 25(3)(a) and accessory liability under Article 25(3)(d) of the Rome Statute of the ICC (Statute). The first Special Issue covered the Trial Chamber’s interpretation of the Statute’s provisions governing rape and sexual slavery, as well as its factual findings and legal conclusions on the evidence of sexual violence presented during the trial. In the third Special Issue we will focus on the Chamber’s assessment of Katanga’s liability as an accessory under Article 25(3)(d), including in particular, his acquittal for sexual and gender-based crimes. We will also cover Judge Van den Wyngaert's Dissenting Opinion.

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DRC :: Trial Chamber II’s findings on Katanga’s liability as an indirect co-perpetrator and interpretation of indirect perpetration and accessory liability

On 7 March 2014, Trial Chamber II[2] delivered the ICC’s third Trial Judgment in the case of The Prosecutor v. Germain Katanga.[3] The Trial Chamber unanimously acquitted Katanga as an indirect co-perpetrator under Article 25(3)(a) of the Statute of murder, rape, and sexual slavery as crimes against humanity, as well as wilful killing, directing an attack against the civilian population, pillaging, destruction of property, rape, and sexual slavery as war crimes. Katanga was also acquitted under Article 25(3)(a) of the Statute as a direct co-perpetrator for the war crime of using child soldiers.[4] The majority,[5] Judge Christine Van den Wyngaert dissenting, then recharacterised the mode of liability for all charges except using child soldiers, in order to consider Katanga’s responsibility as an accessory to the crimes under Article 25(3)(d) of the Statute. It subsequently convicted Katanga as an accessory for the crimes of wilful killing, attacks against the civilian population, pillaging, and destruction of property. However, the Chamber acquitted Katanga as an accessory for the crimes of rape and sexual slavery.[6] Judge Van den Wyngaert issued a Dissenting Opinion,[7] and Judges Fatoumata Dembele Diarra and Bruno Cotte issued a separate, Concurring Opinion.[8]

Katanga was tried jointly with Mathieu Ngudjolo Chui (Ngudjolo) in the Court’s second trial, as well as second case arising from the DRC Situation.[9] It was the first case in which crimes of sexual violence, including rape and sexual slavery, had been charged. The case centred on Katanga and Ngudjolo’s alleged indirect co-perpetration in orchestrating an attack on the village of Bogoro in the region of Ituri on 24 February 2003, as commanders of the Ngiti combatants from Walendu-Bindi and the Lendu combatants from Bedu-Ezekere, respectively.[10] On 21 November 2012, the majority of Trial Chamber II severed the case against Katanga and Ngudjolo[11] and notified the parties and participants, pursuant to Regulation 55 of the Regulations of the Court, of a potential recharacterisation of the facts underlying the form of criminal responsibility with which Katanga was charged, from indirect co-perpetration pursuant to Article 25(3)(a) of the Statute to accessory liability under Article 25(3)(d).[12] The Chamber indicated that the recharacterisation would not apply to the crime of using child soldiers, which had been confirmed by the Pre-Trial Chamber under direct co-perpetration.[13] On 18 December 2012, the Chamber acquitted Ngudjolo of all charges,[14] and on 27 February 2015, the Appeals Chamber, by majority, confirmed the acquittal.[15]

In the Katanga Judgment, the Chamber found Katanga guilty as an accessory pursuant to Article 25(3)(d) of the Statute after first examining his responsibility under Article 25(3)(a) as a direct co-perpetrator for the crime of using child soldiers, and as an indirect co-perpetrator for the remaining crimes, and considering whether recharacterising the mode of liability under Regulation 55 would exceed the facts and circumstances described in the charges or violate Katanga’s fair trial rights. The Chamber’s analysis of Katanga’s criminal responsibility as an indirect co-perpetrator, as well as its interpretation of the elements of indirect perpetration and accessory liability, are set forth below.

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Katanga’s criminal responsibility as an indirect
co-perpetrator under Article 25(3)(a)

Legal elements of indirect perpetration under Article 25(3)(a)

The Chamber first assessed Katanga’s criminal responsibility for the relevant crimes as an indirect perpetrator under Article 25(3)(a) of the Statute. It noted that according to this provision, a person will be criminally responsible as an indirect perpetrator when the person ‘commits a crime within the jurisdiction of the Court “through another person, regardless of the criminal responsibility of that other person”’.[16]

In line with previous jurisprudence of the Court, the Chamber applied the ‘control over the crime’ theory in its interpretation of Article 25(3)(a) of the Statute.[17] The Chamber determined that to be found criminally liable as an indirect perpetrator under this provision, the Prosecution must establish that an individual:

(i) exercised control over the crime for which the material elements are carried out by one or more persons;

(ii) met the mental elements referred to in Article 30 of the Statute, in addition to the mental elements specific to the crime in question; and

(iii) was aware of the factual circumstances enabling his or her exercise of control over the crime.[18]

The Chamber explained that indirect perpetration through control over the crime can take various ‘legal forms’, including: ‘exercise of control over the will of the physical perpetrators’; and exercise of ‘control over the organisation’. The Chamber found that establishing control over an organisation required an assessment of two factors, namely: (1) the nature of the organisation; and (2) the control exercised upon the organisation. The Chamber explained that the nature of the organisation must be one of ‘functional automation’, whereby ‘orders of superiors are automatically executed’. As for the control exercised upon the organisation, the Chamber explained that the indirect perpetrator must exercise ‘real authority’ and use ‘at least a part of the apparatus of power that is subordinated to him in order to give directions, intentionally, to the commission of a crime, without having to leave to one of his subordinates the power to decide whether or not to execute the crime’. The Chamber added that indirect perpetration through control over an organisation requires that the perpetrator 'knew, when he exercised his control, his position within the organization and the fundamental features of the latter ensuring functional automation’.[19]

In terms of Katanga’s criminal responsibility under this mode of liability, the Chamber found that although the Ngiti combatants were part of a militia that constituted an organisation, the Prosecution did not present sufficient evidence to determine ‘the existence of a centralised command’ within the militia. Furthermore, the Chamber found that although Katanga had been the President of the Ngiti militia during the relevant period, the evidence did not establish that he had ‘the material ability to give orders’ to the militia ‘and to ensure their execution’ or that ‘he had the authority to impose disciplinary sanctions on commanders’. On this basis, the Chamber concluded that the evidence did not demonstrate that the Ngiti militia constituted ‘an organised apparatus of power’ or that Katanga exercised ‘control over the militia so that he could exercise control over the crimes’. Having found that the first element of indirect perpetration had not been established, the Chamber did not find it necessary to analyse the remaining elements and unanimously acquitted Katanga of all crimes charged under this mode of liability.[20]

The Chamber also acquitted Katanga as a direct co-perpetrator under Article 25(3)(a) of the Statute for the war crime of using children under the age of 15 to actively participate in hostilities. Although the Chamber found that commanders of the Ngiti militia of Walendu-Bindi collectivité used child soldiers in the context of the hostilities linked to the Bogoro attack, it could not conclude that Katanga committed this crime.[21]

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Implementation of Regulation 55

Having acquitted Katanga of criminal responsibility under Article 25(3)(a) of the Statute, the Chamber considered whether the mode of liability could be recharacterised to accord with Article 25(3)(d) of the Statute. The Chamber concluded that, in line with Regulation 55 of the Regulations, such a recharacterisation would neither exceed the facts and circumstances described in the charges nor violate the rights of the accused under Article 67(1) of the Statute.[22] Accordingly, the Chamber proceeded to examine Katanga’s criminal responsibility as an accessory under Article 25(3)(d).

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Trial Chamber’s interpretation of accessory liability under Article 25(3)(d)

Legal elements of accessory liability under Article 25(3)(d)

Under Article 25(3)(d) of the Statute, a person will be found criminally responsible who:

In any other way contributes to the commission or attempted commission of [a crime within the Court’s jurisdiction] by a group of persons acting with a common purpose. Such purpose shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

Relying on previous jurisprudence from Pre-Trial Chambers I and II, the Chamber determined that to be found criminally liable as an accessory under Article 25(3)(d)(ii) of the Statute, the following five elements must be established beyond reasonable doubt:

(i) a crime under the jurisdiction of the Court was committed;

(ii) the persons who committed the crime belong to a group acting with a common purpose which was to commit the crime or involved its commission, including in the ordinary course of events;

(iii) the accused made a significant contribution to the commission of the crime;

(iv) the contribution was made with intent, insofar as the accused meant to engage in the conduct and was aware that the conduct contributed to the activities of the group acting with a common purpose; and

(v) the accused's contribution was made in the knowledge of the intention of the group to commit the crime.[23]

Regarding the first element, the Chamber found it necessary to establish the specific objective, subjective, and contextual elements of each crime charged, as well as the criminal responsibility of individual persons rather than the ‘group as such’.[24]

In terms of the second element, in interpreting the ‘action of a group acting with a common purpose’, the Chamber relied on the jurisprudence of the ICTY in relation to joint criminal enterprise (JCE) liability. The Chamber considered that JCE ‘is based on the notion of “common purpose”’ and that ‘Even if the modes of liability can vary from one tribunal to another … nothing prevents that the definition of the expression “common purpose”, as adopted by the ad hoc tribunals can, for the most part, be used’ insofar as it is based on customary international law.[25]

According to the Chamber, defining the group’s criminal purpose entailed an assessment of: the criminal goal pursued; its temporal and geographic scope; the type, origin and characteristics of the targeted victims; and the identity of the group, even if each person is not identified. It held that it is not necessary to demonstrate that the group was organised in a military, political or administrative structure, nor that the common purpose was pre-established. Rather, the group’s existence could be inferred from its concerted subsequent action.[26]

The Chamber explained that although the group's common purpose must be to commit a crime, or must entail its commission, it is not necessary that the commission of a crime within the Court’s jurisdiction be the principle objective of the group or that the common purpose be solely criminal. In this regard, it clarified that a group with a political objective that also involves acts of a criminal nature may constitute a group acting in furtherance of a common purpose within the meaning of Article 25(3)(d). It also clarified that the participants in the common purpose must share the same intent: namely, to cause the consequence resulting from the crime or know that it will occur in the ordinary course of events.[27]

The Chamber added that to establish responsibility as an accomplice to a crime under Article 25(3)(d), it must be shown that the indirect perpetrator shared the common purpose with those who physically carried out the crime, in any form listed under Article 25(3)(a). Furthermore, it must be demonstrated that the crime at issue formed part of the common purpose and did not result from ‘opportunistic action of members’ of the group. Finally, the Chamber determined that Article 25(3)(d) criminalises the contribution to the commission of a crime under the Court’s jurisdiction regardless of whether the accused is a member of the group or external to it.[28]

Concerning the third element, the Chamber determined that the accused’s contribution to each crime must be demonstrated, and not only a contribution to the general activities of the group. It found that for a contribution to be considered significant, it must have influenced the commission of the crime, the manner in which the crime was committed, or both. However, the commission of a crime does not have to depend on the contribution. The Chamber further clarified that it is not necessary to establish a direct link between the acts of the accomplice and those of the physical perpetrator or to prove the proximity of the accused to the commission of the crime.[29]

With regard to the fourth and fifth elements, the Chamber held that the intent requirement applied only to the actions of the accused that constituted his contribution and that it is not necessary to demonstrate that the accused shared the intent of the group to commit the crime.[30]

In the third Special Issue of the Legal Eye on the ICC reporting on the Trial Judgment in the case against Germain Katanga, we will analyse how the Trial Chamber applied the above criteria to the facts of the case in drawing its conclusion that while Katanga was criminally responsible for the crimes of attack on a civilian population, murder, destruction of property and pillage, he could not be held liable for the crimes of rape or sexual slavery.

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■ Read the Statement of the Women’s Initiatives for Gender Justice on the Katanga judgment

■ Read the Statement of the Women’s Initiatives for Gender Justice on the Katanga sentencing decision

■ Read the Statement of the Women’s Initiatives for Gender Justice on the withdrawal of the appeals in the Katanga case

■ Read the speech by Brigid Inder, Executive Director, Women`s Initiatives for Gender Justice, on an expert panel titled 'Prosecuting Sexual Violence in Conflict', during the Global Summit to End Sexual Violence in Conflict, containing an initial analysis of Katanga’s acquittal for rape and sexual slavery

■ Read the First Special Issue of Legal Eye on the ICC on the Katanga judgment

■ Read the trial judgment against Katanga (as of the publication of this eLetter, only the French version of the judgment was available)

■ For more background about the mode of liability charged against Katanga see the Women’s Initiatives Expert Paper on Modes of Liability

■ For more background about the case against Katanga see the Gender Report Cards 2014, 2013, 2012, 2011, 2010, 2009 and 2008

■ For summaries of witness testimony by victims/survivors of sexual violence given in the Katanga case, see the Gender Report Card 2010.

■ For a detailed description of the closing arguments in the case against Katanga and Ngudjolo see the Gender Report Card 2012

■ Read more about the trial judgment acquitting Mathieu Ngudjolo Chui in the Women’s Initiatives’ series of Special Issues of the Legal Eye on the ICC. First Special Issue; Second Special Issue ; Third Special Issue

■ Read the Statement by the Women’s Initiatives for Gender Justice on the opening of the trial against Katanga and Ngudjolo, 23 November 2009

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Footnotes

1   ICC-01/04-01/07-3436. As no English translation of the Judgment was available at the time of writing, this Legal Eye is based on an unofficial translation of the Judgment from French to English by the Women’s Initiatives for Gender Justice.
2   Trial Chamber II was composed of Presiding Judge Bruno Cotte (France), Judge Fatoumata Dembele Diarra (Mali) and Judge Christine Van den Wyngaert (Belgium).
3   ICC-01/04-01/07-3436.
4   ICC-01/04-01/07-3436, para 1421.
5   Henceforth, the term ‘Chamber’ will be used to reflect the opinion of the majority.
6    ICC-01/04-01/07-3436, p 709-710. The Women`s Initiatives for Gender Justice provided an initial analysis of the acquittals for rape and sexual slavery and the four indicators utilised by the Chamber in reaching this decision, during a panel organised by TMC Asser Institute, the CICC and the Grotius Centre for International Legal Studies of Leiden University, titled ‘First Reflections on the ICC Katanga Judgment’, held on 12 March 2014. Further analysis of these issues was provided in a speech by Brigid Inder, Executive Director, Women’s Initiatives for Gender Justice, on an expert panel held on 11 June 2014 titled ‘Prosecuting Sexual Violence in Conflict’, during the Global Summit to End Sexual Violence in Conflict, available here.
7   ICC-01/04-01/07-3436-AnxI.
8   ICC-01/04-01/07-3436-AnxII. See also Women’s Initiatives for Gender Justice, ‘Katanga Partial Conviction – Acquittal for Sexual Violence’, 7 March 2014, available here. On 9 April 2014, the Prosecution appealed Katanga’s acquittal for the sexual violence charges, indicating its intention to request the Appeals Chamber to reverse or amend the Trial Judgment and/or order a partial new trial before a different Trial Chamber. The same day, the Defence filed its notice of appeal, in which it contested the entire conviction. On 25 June 2014, both parties discontinued their respective appeals. ICC-01/04-01/07-3462, paras 3-4; ICC-01/04-01/07-3497; ICC-01/04-01/07-3498.
9   The cases were joined on 10 March 2008. ICC-01/04-01/07-257. The first case to arise from the DRC Situation was that against Thomas Lubanga Dyilo.
10   The Prosecution had charged, and the Pre-Trial Chamber had confirmed, that at the time of the attack, Katanga and Ngudjolo were the alleged commanders of the Force de résistance patriotique en Ituri (FRPI) and the Front de nationalistes et intégrationnistes (FNI), respectively.
11   ICC-01/04-01/07-3319, Judge Van den Wyngaert dissenting.
12   ICC-01/04-01/07-3319, Judge Van den Wyngaert dissenting. The recharacterisation of the charges was the subject of extensive litigation by the parties and participants. For more detailed information on the Regulation 55 proceedings, see Gender Report Card 2013, p 92-104; see also Modes of Liability: A review of the International Criminal Court's jurisprudence and practice, Women's Initiatives for Gender Justice, Expert Paper, November 2013, p 116-130, available here.
13   ICC-01/04-01/07-3319, para 7.
14   ICC-01/04-02/12-3-tENG, p 197. For more information on Ngudjolo's acquittal, see First, Second and Third Special Editions of the Legal Eye on the ICC.
15   ICC-01/04-02/12-271.
16   ICC-01/04-01/07-3436, para 1398.
17   For a description of the 'control over the crime' theory within the Court's jurisprudence, see Modes of Liability: a review of the International Criminal Court's jurisprudence and practice, Women's Initiatives for Gender Justice, Expert Paper, November 2013, p 27-29, available here.
18   ICC-01/04-01/07-3436, para 1399.
19   ICC-01/04-01/07-3436, paras 1401-1415.
20   ICC-01/04-01/07-3436, paras 1417-1421.
21   ICC-01/04-01/07-3436, paras 1087-1088.
22   ICC-01/04-01/07-3436, paras 1445-1595.
23   ICC-01/04-01/07-3436, paras 1620-1621. See also ICC-01/04-01/07-3371, para 16. For a detailed description of the Court's jurisprudence of Article 25(3)(d), see Modes of Liability: a review of the International Criminal Court's current jurisprudence and practice, Women's Initiatives for Gender Justice, Expert Paper, November 2013, p 77-86, available here.
24   ICC-01/04-01/07-3436, paras 1622-1623.
25   ICC-01/04-01/07-3436, para 1625.
26   ICC-01/04-01/07-3436, para 1626.
27   ICC-01/04-01/07-3436, para 1627.
28   ICC-01/04-01/07-3436, paras 1628-1631.
29   ICC-01/04-01/07-3436, paras 1632-1636.
30   ICC-01/04-01/07-3436, paras 1637-1638.

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