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 and Libya.

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■ Kampala and Amolatar, 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 third in a series reporting on the ICC’s third Trial Judgment, in the case against Germain Katanga (Katanga).[1] In this third Special Issue, we analyse the Trial Chamber’s assessment of Katanga’s criminal responsibility as an accessory under Article 25(3)(d) of the Rome Statute of the ICC (Statute), including his acquittal for sexual and gender-based crimes. We also cover Judge Van den Wyngaert's Dissenting Opinion. 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 second Special Issue we focussed on the Trial Chamber’s findings on Katanga’s criminal responsibility as an indirect co-perpetrator, including its interpretation of the elements of indirect perpetration under Article 25(3)(a) and accessory liability under Article 25(3)(d).

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DRC :: Katanga’s criminal responsibility as an accessory, his acquittal for sexual and gender-based crimes and the Dissenting Opinion of Judge Van den Wyngaert

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 liability as an accessory, his acquittal for sexual and gender-based crimes, as well as Judge Van den Wyngaert's Dissenting Opinion are set forth below.

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Katanga’s criminal responsibility as an accessory under Article 25(3)(d)

As described in greater detail in the second Special Issue of Legal Eye on the ICC on the Katanga trial Judgment, the Trial Chamber set forth the legal elements of accessory liability under Article 25(3)(d), namely, 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.[16]

In determining whether the elements of Article 25(3)(d) had been satisfied, the Chamber first recalled its findings that all of the crimes charged had been committed by the Ngiti combatants of the Walendu-Bindi collectivité.[17] The Chamber then assessed: (1) whether the Ngiti militia constituted a group acting with a common purpose at the relevant time; (2) whether each crime committed by the militia fell within the common purpose; and (3) whether the evidence established that the perpetrators of the crimes were members of the militia.[18]

The Chamber concluded that the Ngiti combatants and commanders of Walendu-Bindi were part of a militia that constituted an organised armed group, which had ‘a unique plan’, namely to attack Bogoro village and to ‘wipe out […] not only the UPC military elements but also, and mostly, the Hema civilians who were there’. It found that the manner in which Bogoro was attacked and the Hema civilians ‘were hunted down and killed’ confirmed ‘the existence of a common purpose of a criminal nature against the population of the village’.[19]

The Chamber also concluded that murder as a war crime and crime against humanity, as well as the war crimes of attack against civilians, destruction of property, and pillaging, each fell within the common purpose. The Chamber reasoned that such crimes were commonly committed by the Ngiti militia, including prior to the Bogoro attack, ‘which confirmed that they intended to commit those crimes’.[20] The Chamber further emphasised the scale of the crimes, recalling that Bogoro was ‘attacked from each side’, that ‘villagers were targeted in a systematic manner’, and that the crimes against civilians were committed with ‘great violence’.[21] The Chamber stressed that the acts of destruction of property, including the burning down of houses occupied mainly by Hema civilians, ‘occurred within the full locality and during the whole day’, and that Bogoro was pillaged ‘in great proportions’. The Chamber added that goods destroyed and pillaged, including sheet metal roof covering and livestock, belonged mainly to the Hema civilian population and were ‘essential to [their] daily life’.[22] Although the Chamber did not refer in its analysis to the number of murders committed by the Ngiti militia, it had previously found that at least 60 persons were killed during the attack, including at least 33 civilians, many of whom were women, children and the elderly.[23] The Chamber concluded that the Ngiti combatants intended to commit the crimes of attack on civilians and murder, and that they shared the intent to pillage or knew the crime would occur in the ordinary course of events. The Chamber did not explicitly address the intent of the Ngiti militia in assessing whether the crime of destruction of property formed part of the common purpose.[24]

Having found that these crimes fell within the common purpose, the Chamber next assessed Katanga's contribution to the commission of the crimes. It found that Katanga made a ‘truly significant’ contribution to the crimes of murder, pillage and destruction of property, by: traveling to Beni on behalf of the Ngiti militia, establishing military alliances and defining a military strategy there; expressing the group's struggle against the Hema, which was assimilated with the UPC; acting as a liaison between local combatants, the Beni authorities and the Congolese army; and receiving and distributing arms and munitions. In this regard, it underscored Katanga's contribution to the preparations for the attack, and the importance of the arms and munitions he obtained for the success of the attack.[25]

The Chamber further noted Katanga’s testimony, which it found demonstrated that he had intentionally contributed to the crimes.[26] Concerning Katanga's knowledge of the group's intent to commit the crimes, the Chamber found that the evidence demonstrated that he knew of the plan to attack Bogoro as of November 2002 and knew that the arms and munitions, the delivery of which he facilitated, would be used in that attack. It also found that Katanga was aware of the methods of war employed in Ituri during the relevant period, underscoring his knowledge of the massacre of civilians, pillage and destruction in a prior attack on Nyakunde, in which Ngiti combatants of Walendu-Bindi had participated.[27] The Chamber also found that Katanga knew about, and ‘fully shared’, the Ngiti's anti-Hema ideology.[28] Thus, the Chamber found beyond reasonable doubt that Katanga significantly and intentionally contributed to the crimes of murder as a war crime and a crime against humanity, as well as attacking a civilian population, destruction of property and pillage as war crimes, in full knowledge of the group's intention to commit the crimes.[29]

Katanga’s acquittal for sexual and gender-based crimes

The Trial Chamber dedicated two paragraphs of the Trial Judgment to discussing Katanga’s criminal responsibility for the crimes of rape and sexual slavery.[30] Its analysis centred on an examination of whether each of the crimes charged was part of the common purpose ascribed to the Ngiti militia of Walendu-Bindi, namely, ‘to attack Bogoro, which consisted of wiping out from this place not only the UPC military elements but also, and mainly, the Hema population that was there’.[31]

In contrast to its findings regarding the crimes of attack against civilians, murder, destruction of property and pillaging, the Chamber found that the evidence did not establish that the crimes of rape and sexual slavery fell within the common purpose of the Ngiti militia, and therefore acquitted Katanga as an accessory to these crimes.[32] The Chamber appeared to have relied upon four ‘indicators’ of whether a crime formed part of the common purpose, namely: (1) whether the crimes were numerous and committed repetitively (First Indicator); (2) whether the crimes were necessary to fulfilling the common purpose (Second Indicator); (3) whether the perpetrators of rape and sexual slavery had committed such crimes prior to the Bogoro attack (Third Indicator); and (4) whether the crimes were ethnically motivated, given the ethnic nature of the common purpose, as established by the Chamber (Fourth Indicator).[33]

In relation to the First and Second Indicators, the Chamber reasoned that the evidence did not demonstrate that rape and sexual slavery were ‘committed in large numbers or in a repetitive manner’ or that wiping out Bogoro ‘necessarily occurred through the commission of these crimes’. Regarding the Third Indicator, the Chamber determined that, contrary to its findings in relation to the other crimes, it had not been demonstrated that the Ngiti combatants had committed acts of rape or sexual slavery prior to the Bogoro attack.[34] This finding departed from the majority of the Pre-Trial Chamber’s finding in the Confirmation of Charges decision that the Ngiti militia had committed rape and sexual slavery against women and girls in Ituri in both previous and subsequent attacks against the civilian population.[35] Concerning the Fourth Indicator, the Chamber found that ‘women who were raped, abducted and turned to slavery had their life “spared” and escaped a certain death because they pretended to belong to an ethnicity other than Hema’.[36]

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Ethnicity and sexual violence

Witness 353 testified that her assailants questioned her about her ethnicity, that she denied being Hema, and responded that she was of Nande ethnicity. At that moment, one person recognised her and told her that she was Hema, to which she replied that she was not Hema but that she was living with a Hema. Two individuals then argued about whose ‘wife’ she would become and decided that she would become both of their ‘wives’.[37]

Witness 132 testified that when she was found by her assailants, they told her to take off her clothes. They then accused her of being Hema, which she denied. The combatants continued to inquire about her ethnicity and insist that she was Hema. They raped her, told her she had become their ‘wife’, and took her to a camp where she was interrogated, imprisoned in a hole and raped again repeatedly. She recounted that one day, when the ‘chief’ of the camp asked her about her ethnicity, she claimed she was Nande, and he replied ‘no, you are Hema’. According to the transcript, ‘[a]fter that, he decided that she would not be released’.[38]

Witness 249 also testified that she was asked about her ethnicity but only after she was repeatedly raped. She claimed not to be Hema but was told ‘that she was Hema because they smelled her odor’. She was also told that if she would not inform her captors of the location of the Hema, she would have to choose between her life and becoming their ‘wife’. She testified that she ‘told them to make that choice’. Witness 249 also testified that she ‘told [the combatants] that it would be better for them to kill me rather than treat me like that, like an animal’.[39]

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Judge Van den Wyngaert's dissent

Judge Van den Wyngaert issued a Dissenting Opinion, in which she expressed concurrence with the majority of the Trial Chamber’s conclusion that Katanga was not criminally responsible under Article 25(3)(a) of the Statute but indicated that she disagreed with ‘almost every aspect’ of the remainder of the Judgment.[40] In particular, she found that the recharacterisation of the mode of liability both exceeded the facts and circumstances set forth within the Confirmation of Charges decision in violation of Article 74, and violated numerous of the accused's fair trial rights.[41] She also found that the evidence failed to establish Katanga's guilt as either an indirect co-perpetrator or as an accessory, pursuant to Article 25(3)(a) and (d), respectively.[42] She would have accordingly acquitted Katanga.[43]

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Regulation 55

Judge Van den Wyngaert found that the majority's recharacterisation of the mode of liability resulted in 'a fundamental change in the narrative' of the case and 'introduced totally new factual elements into the charges', in violation of Regulation 55(1) and Article 74(2).[44] Judge Van den Wyngaert drew a clear distinction between the 'facts and circumstances' set forth in the Confirmation of Charges decision and ‘other factual references’ therein.[45] She explained, 'charges are not merely a loose collection of names, places and events which can be ordered and reordered at will'.[46] Rather, she observed that '[a] similar fact may be a mere detail in one narrative, but constitute the linchpin of another'.[47] She found in this regard that Katanga had gone from being the '(co)-architect' of the attack on Bogoro to merely having 'known about the criminal common purpose' of the Ngiti militia and having made a contribution to it.[48] She further stated that it was impermissible to ‘simply lift out a particular factual proposition and use this as part of a significantly different factual claim’, noting that the alleged events that took place in Beni[49] and the prior attack on Nyakunde were of ‘crucial importance’ to the majority’s reasoning, but 'were all but irrelevant' under the original charges.[50] She characterised as ‘inappropriate’ the majority’s reliance on the battle in Nyakunde as ‘a central pillar of its case under article 25(3)(d)(ii)’.[51] She opined that Regulation 55 was ‘not a licence to turn the entire factual and legal framework of a case upside down just in order to avoid an acquittal. Yet, this is precisely what has happened in this case’.[52]

Furthermore, Judge Van den Wyngaert found that the recharacterisation of the mode of liability pursuant to Regulation 55 violated 'several of the accused's most fundamental rights', namely: the right against self-incrimination; the right to be informed promptly and in detail of the nature, cause and content of the charges; the right to adequate time and facilities for the effective preparation of the defence; and the right to examine and have witnesses examined.[53]

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Katanga's guilt was not established beyond reasonable doubt

In her Dissenting Opinion, Judge Van den Wyngaert stated: ‘I am of the view that the charges—whether under article 25(3)(a) or (d)—have not been proven and the case should have been dismissed a long time ago.’[54] She further stated: ‘[w]hatever my colleagues may believe in their intime conviction, I fear it cannot stand up against the required standard of proof and the dispassionate rigour it demands.’[55] While she agreed with the majority that Katanga's criminal responsibility was not established under Article 25(3)(a) of the Statute, she found that with respect to Article 25(3)(d) of the Statute, the majority had applied the standard of proof erroneously, that significant evidence was missing, and that there were ‘serious credibility problems with crucial prosecution witnesses’, requiring an acquittal.[56]

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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 Second 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, 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 jurisprudence and practice, Women's Initiatives for Gender Justice, Expert Paper, November 2013, p 77-86, available here.
17   ICC-01/04-01/07-3436, para 1652, namely: murder as a war crime and a crime against humanity, attacking a civilian population as a war crime, pillage and destruction as a war crime and rape and sexual slavery as war crimes and crimes against humanity.
18   ICC-01/04-01/07-3436, para 1653.
19   ICC-01/04-01/07-3436, paras 1401-1415.
20   ICC-01/04-01/07-3436, paras 1658, 1661.
21   ICC-01/04-01/07-3436, para 1656.
22   ICC-01/04-01/07-3436, paras 1659-1660.
23   ICC-01/04-01/07-3436, paras 838-840, 869.
24   ICC-01/04-01/07-3436, paras 1658, 1662.
25   ICC-01/04-01/07-3436, paras 1671-1672, 1676, 1679, 1681.
26   ICC-01/04-01/07-3436, paras 1682-1683, citing ICC-01/04-01/07-T-318, p 13. Katanga stated under oath that if he had not been constrained to remain in Aveba, he would have personally participated in the attack, and that he considered it his duty to take part in this operation with the APC.
27   ICC-01/04-01/07-3436, paras 1684-1687.
28   ICC-01/04-01/07-3436, para 1688.
29   ICC-01/04-01/07-3436, para 1691.
30   ICC-01/04-01/07-3436, paras 1663-1664.

31   ICC-01/04-01/07-3436, para 1665.
32   ICC-01/04-01/07-3436, para 1664.
33   ICC-01/04-01/07-3436, paras 1663-1664.
34   ICC-01/04-01/07-3436, paras 1663-1664.
35   ICC-01/04-01/07-717, para 568(iii).
36   ICC-01/04-01/07-3436, para 1663.
37   ICC-01/04-01/07-T-213-Red-ENG, p 24-26, 48.
38   ICC-01/04-01/07-T-139-Red-FRA, p 9-13, 19-20, 22-23, 25, 28-30, 37, 40, 45, 48, 59, 61, 64.
39   Witness P-249, ICC-01/04-01/07-T-135-Red-FRA, p 40-43, 58-59.
40   ICC-01/04-01/07-3436-AnxI, para 1.
41   ICC-01/04-01/07-3436-AnxI, paras 17-132.
42   ICC-01/04-01/07-3436-AnxI, paras 277-308.
43   ICC-01/04-01/07-3436-AnxI, para 8.
44   ICC-01/04-01/07-3436-AnxI, paras 19, 27. On 27 March 2013, in its decision on the Defence appeal of the Severance decision, the Appeals Chamber determined that it was inevitable that a recharacterisation would result in a change in the narrative. ICC-01/04-01/07-3363, para 58.
45   ICC-01/04-01/07-3436-AnxI, para 18. The Appeals Chamber rejected this distinction between material and subsidiary facts in its decision on the Defence appeal of the Severance decision. ICC-01/04-01/07-3363, para 56.
46   ICC-01/04-01/07-3436-AnxI, para 32.
47   ICC-01/04-01/07-3436-AnxI, paras 19-26, 33. Specifically, Judge Van den Wyngaert found that the majority’s findings regarding the Ngiti militia's hatred toward the Hema, Katanga's knowledge of the group's common purpose, and the mens rea of the physical perpetrators were not factual elements to be found within the Confirmation of Charges decision. She noted that the mens rea of the physical perpetrators was irrelevant under the theory of indirect co-perpetration pursuant to Article 25(3)(a) of the Statute.
48   ICC-01/04-01/07-3436-AnxI, para 31(e).
49   According to Judge Van den Wyngaert , ‘[t]he only proposition related to Beni that is contained in the “facts and circumstances” as confirmed by the Pre-Trial Chamber is the allegation that Germain Katanga and Mathieu Ngudjolo went there to obtain weapons and ammunitions in preparation of the attack on Bogoro (article 25(3)(a)).’ ICC-01/04-01/07-3436-AnxI, para 42.
50   ICC-01/04-01/07-3436-AnxI, paras 41-49.
51   ICC-01/04-01/07-3436-AnxI, para 48.
52   ICC-01/04-01/07-3436-AnxI, para 314.
53   ICC-01/04-01/07-3436-AnxI, paras 51-132.
54   ICC-01/04-01/07-3436-AnxI, para 171.
55   ICC-01/04-01/07-3436-AnxI, para 172 (emphasis in original).
56   ICC-01/04-01/07-3436-AnxI, paras 133, 136.

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