doctype: arrest-warrant

identifier: ICC-01/04-01/07 (Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga)

chamber: Pre-Trial Chamber I

decisionType: arrest-warrant

title: Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga

text: Geneva Conventions

text: Geneva Conventions

text: Geneva Conventions

text: Geneva Conventions

text: Additional Protocol I, article 51

text: the Statute

text: the Statute, article 11

text: the Statute, article 12

text: the Statute, article 126

text: the Statute, article 13

text: the Statute, article 18

text: the Statute, article 19

text: the Statute, article 25

text: the Statute, article 28

text: the Statute, article 5

text: the Statute, article 58

text: the Statute, article 6

text: the Statute, article 60

text: the Statute, article 7

text: the Statute, article 8

text: Cour

text: Pénale

text: Internationale

text: International Criminal Court

text: Original: English No.: ICC-01/04-01/07 Date: 5 November 2007

text: PRE-TRIAL CHAMBER I

text: Before: Judge Akua Kuenyehia, Presiding Judge Judge Anita Usacka Judge Sylvia Steiner

text: Registrar: Mr Bruno Cathala

text: SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v. Germain Katanga Public Redacted Version

text: Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga

text: The Office of the Prosecutor Mr Luis Moreno-Ocampo, Prosecutor Ms Fatou Bensouda, Deputy Prosecutor Mr Eric MacDonald, Trial Lawyer

text: No. ICC-01/04-01/07 1/29 5 November 2007

text: TABLE OF CONTENTS

text: I. Introduction 4 A. Background 4 II. Whether the case against Germain Katanga falls within the jurisdiction of the Court and is admissible 5 III. Whether the requirements under

text: article 58

text: (1 ) of

text: the Statute

text: for the issuance of a warrant of arrest for Germain Katanga are met 9 A. Whether there are reasonable grounds to believe that at least one crime within the jurisdiction of the Court has been committed 11 1. Whether there are reasonable grounds to believe that the contextual elements of at least one crime within the jurisdiction of the Court exist 11 2. Whether there are reasonable grounds to believe that the specific elements of at least one crime within the jurisdiction of the Court exist 15 B. Whether there are reasonable grounds to believe that Germain Katanga is criminally responsible for the above-mentioned crimes 22 C. Whether the arrest of Germain Katanga appears necessary under

text: article 58

text: (l)(b) of

text: the Statute

text: No. ICC-01/04-01/07 2/29 5 November 2007

text: PRE-TRIAL CHAMBER I of the International Criminal Court ("the Chamber" and "the Court", respectively) issued on 2 July 2007 a warrant of arrest for Germain Katanga ("the Warrant of Arrest") pursuant to

text: article 58

text: (1) of the

text: Rome Statute

text: the Statute

text: "), and stated that the analysis of the evidence and information provided by the Prosecution in connection with its application for a warrant of arrest will be set out in a subsequent decision. In doing so, the Chamber

text: UNANIMOUSLY RENDERS THIS DECISION:

text: No. ICC-01/04-01/07 3/29 5 November 2007

text: I. Introduction

text: A. Background

text: On 14 June 2007, the Prosecution filed the "Notification to Pre-Trial Chamber I and Request for Extension of Page Limit" ("the Notification").1

text: On 19 June 2007, Judge Sylvia Steiner, Single Judge, held an ex parte hearing with the Office of the Prosecution in order to obtain the additional information in relation to the Notification.

text: On 25 June 2007, the Prosecution filed in two parts its Application for a warrant of arrest for Germain Katanga ("the Prosecution Application").2

text: On 25 June 2007, the Prosecution submitted supporting materials in relation to the Prosecution Application ("the Prosecution Supporting Materials").3

text: On 26 June 2007, Judge Sylvia Steiner, Single Judge, issued the "Decision concerning Supporting Materials in relation with the Prosecution's Application REDACTED under

text: article 58

text: of

text: the Statute

text: " ("the Decision concerning Supporting Materials"),4 in which she invited the Prosecution, inter alia, to submit additional supporting materials.

text: 'lCC-01/04-338-US-Exp. - ICC-OI/04-348-US-Exp and ICC-01/04-350-US-Exp. 11CC-01/04-349-US-Exp and Anxl-AnxlO and AnxA-AnxH. 4 ICC-01/04-352-US-Exp. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 4/29 5 November 2007

text: On 27 June 2007, the Prosecution filed its Response to the Decision concerning Supporting Materials ("the Prosecution Response"), providing additional witness statements and information.5

text: On 2 July 2007, the Chamber issued a Warrant of Arrest for Germain Katanga,6 in which the Chamber stated that the analysis of the evidence and information provided by the Prosecution in connection with the Prosecution Application will be set out in a subsequent decision.

text: On the same day, the Chamber issued the "Ordonnance relative à l'exécution du mandat d'arrêt à {'encontre de Germain Katanga".7

text: II. Whether the case against Germain Katanga falls within the jurisdiction of the Court and is admissible

text: As this Chamber has previously stated, [...] a case arising from the investigation of a situation will fall within the jurisdiction of the Court only if the specific crimes of the case do not exceed the territorial, temporal and possibly personal parameters defining the situation under investigation and fall within the jurisdiction of the Court.8

text: The situation under investigation, from which the case against Germain Katanga arises, has been defined as encompassing the territory of the Democratic Republic of the Congo ("the DRC") since 1 July 2002.9 The

text: 5ICC-01 /04-354-US-Exp and Anx 1 -Anx6 and Anx 10-Anx 14. 6

text: -US. 7ICC-01/04-01/07-2-US. 8

text: -Corr, para. 21. 9 In this regard, the Chamber recalls that in pages 2 and 3 of the "Decision to Hold Consultation under Rule 114" (lCC-01/04-18-Conf), filed on 21 April 2004: and paragraphs 65, 68 and 84 of the "Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6" (ICC-01/04- 100-Conf-Exp) of 18 January 2006, the Chamber concluded: PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 5/29 5 November 2007

text: Prosecution Application refers to a military operation which took place on or

text: about 24 February 2003 in the village of Bogoro (located in the district of Ituri,

text: on the territory of the DRC). According to the Prosecution, this operation took

text: place: (i) in the context of an armed conflict not of international character in

text: the district of Ituri, which had already started by July 2002 and continued

text: throughout 2003;10 and (ii) was part of a widespread or systematic attack

text: directed against the civilian Hema population of Ituri, which started after the

text: fall of Bunia in August 2002 and continued throughout 2003." The Chamber

text: therefore finds that the case against Germain Katanga falls within the DRC

text: situation currently under investigation.

text: As this Chamber has previously stated,

text: To fall within the Court's jurisdiction, a crime must meet the following three conditions: it must be one of the crimes mentioned in

text: article 5

text: of

text: the Statute

text: , that is to say, the crime of genocide, crimes against humanity and war crimes; the crime must have been committed within the time period laid down in

text: article 11

text: of

text: the Statute

text: ; and the crime must meet one of the two alternative conditions described in

text: article 12

text: of

text: the Statute

text: With regard to the first condition, the Chamber finds that there are reasonable

text: grounds to believe that the alleged crimes underlying the case against

text: Germain Katanga were committed in the context of, and in association with,

text: an armed conflict13 and as part of a widespread or systematic attack directed

text: against a civilian population.14 In addition, the Chamber observes that murder,

text: i. that the situation in the territory of the DRC since 1 July 2002 was referred to the Prosecutor on 3 March 2004 by the President of the DRC in accordance with

text: article 13

text: (a) and 14 of

text: the Statute

text: ' ii. that on receiving that letter, the Prosecutor decided, on 16 June 2004, to initiate an investigation into the DRC situation; iii. that the Prosecution states that it had sent letters of notification to States Parties and other States which within the terms of such provision could exercise jurisdiction over the crimes concerned; and iv. that, according to the Prosecution, no information pursuant to

text: article 18

text: (2) of

text: the Statute

text: was received 10 Prosecution Application, paras. 60-68 and 99. " Prosecution Application, paras. 95-101 12 ICC-Ol/04-lOO-Conf-Exp, para. 85. 13 See infra Section III.A.l. 14 See infra Section I I I . A . l .

text: No. ICC-01/04-01/07 6/29 5 November 2007 sexual slavery and other inhumane acts of a similar character constitute crimes against humanity under

text: article 7

text: (l)(a), (g) and (k) of

text: the Statute

text: , and that wilful killings, inhumane treatment, cruel treatment, using children to participate actively in hostilities, sexual slavery, directing attacks against a civilian population or individual civilians not taking direct part in hostilities and pillaging constitute war crimes under article 8(2)(a)(i), (ii) and 8(2)(b)(i), (xvi), (xxii) and (xxvi) of

text: the Statute

text: if the conflict is of an international character or article 8(2)(c)(i) and 8(2)(e)(i), (v), (vi) and (vii) of

text: the Statute

text: if the conflict is of a non-international character. Accordingly, in the Chamber's view, the first condition has been met.

text: Considering that "[t]he Statute entered into force for the DRC on 1 July 2002, in conformity with

text: article 126

text: (1) of

text: the Statute

text: , the DRC having ratified

text: the Statute

text: on 11 April 2002,"15 the second condition is met because the crimes underlying the case against Germain Katanga were committed after 1 July 2002.

text: Regarding the third condition, this Chamber has previously stated that: [...] under

text: article 12

text: (2) of

text: the Statute

text: one of the following two alternative criteria must be met: (a) the relevant crime was committed in the territory of a State Party or a State which has made a declaration under

text: article 12

text: (3) of

text: the Statute

text: ; or (b) the relevant crime was committed by a national of a State Party or a State which has made a declaration under

text: article 12

text: (3) of

text: the Statute

text: The Chamber notes that the crimes underlying the case against Germain Katanga were allegedly committed in the district of Ituri on the territory of the DRC, and therefore finds that the third condition has also been met.

text: 15 ICC-Ol/04-lOO-Conf-Exp, para. 88. 16 Ibid, paras 91 and 93. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 7/29 5 November 2007

text: The Chamber therefore finds, on the basis of the evidence and information provided in the Prosecution Application, the Prosecution Supporting Materials and the Prosecution Response, that the case against Germain Katanga falls within the jurisdiction of the Court.

text: Article 19

text: (1) of

text: the Statute

text: grants the Chamber discretion to make an initial determination of the admissibility of the case before the issuance of a warrant of arrest. Such discretion should be exercised only if warranted by the circumstances of the case, bearing in mind the interest of the person concerned.

text: In the present case, according to the Prosecution Application, Germain Katanga was arrested on or about 10 March 200517 and has been detained since 19 March 2005 pursuant to a warrant of arrest issued by the Congolese authorities which includes charges of crimes against humanity.18

text: The Chamber is of the view that the circumstances of the present case warrant an initial determination of the admissibility of the case prior to the issuance of a warrant of arrest.

text: When, as in the present case, the existence of national proceedings is the sole reason for a possible finding of inadmissibility, it is a conditio sine qua non for such a finding that national proceedings encompass both the person and the conduct which is the subject of the case before the Court.19 In this regard, the Chamber finds that, on the basis of the evidence and information provided in the Prosecution Application, the Prosecution Supporting Materials and the

text: 17 Prosecution Application, paras. 8 and 25. 18 Prosecution Application, paras. 8 and 25. 19 ICC-OI/04-01/06-8-Corr, para. 31. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 8/29 5 November 2007

text: Prosecution Response, the proceedings against Germain Katanga in the DRC do not encompass the same conduct which is the subject of the Prosecution Application.20

text: In conclusion, on the basis of the evidence and information contained in the Prosecution Application, the Prosecution Supporting Materials and the Prosecution Response, the Chamber finds that the case against Germain Katanga falls within the jurisdiction of the Court and is admissible. This is without prejudice to any subsequent determination on jurisdiction or admissibility concerning this case pursuant to

text: article 19

text: (1), (2) and (3) of

text: the Statute

text: III. Whether the requirements under

text: article 58

text: (1) of

text: the Statute

text: for the issuance of a warrant of arrest for Germain Katanga are met

text: The Prosecution requests that a warrant of arrest be issued for Germain Katanga. The Chamber notes that

text: article 58

text: (1) of

text: the Statute

text: provides that: At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person's appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.

text: 20 ICC-01/04-348-US-Exp, paras. 7-8. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 9/29 5 November 2007

text: As this Chamber has repeatedly stated, "[..] the term "committed" in

text: article 58

text: (1) of

text: the Statute

text: includes: (i) the commission stricto sensu of a crime by a person "as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (ii) any other forms of accessory, as opposed to principal, liability provided for in

text: article 25

text: (3)(b) to (d) of

text: the Statute

text: (iii) an attempt to commit any of the crimes provided for in

text: articles 6

text: to

text: of

text: the Statute

text: ; (iv) direct and public incitement to commit genocide (the only preparatory act punishable under

text: the Statute

text: ); and (v) the responsibility of commanders and other superiors under

text: article 28

text: of

text: the Statute

text: Therefore, in order for a warrant of arrest to be issued for Germain Katanga, the Chamber must be satisfied that the following three questions are affirmatively answered: (A) Whether there are reasonable grounds to believe that at least one crime within the jurisdiction of the Court has been committed (B) Whether there are reasonable grounds to believe that Germain Katanga has incurred criminal liability for such crimes under any of the modes of liability provided for in

text: the Statute

text: (C) Whether the arrest of Germain Katanga appears to be necessary under

text: article 58

text: (1 )(b) of

text: the Statute

text: Furthermore, the Chamber wishes to emphasize that, in reaching its conclusions on whether the "reasonable grounds to believe" standard and the appearance standard required by

text: article 58

text: (1) of

text: the Statute

text: have been met, it has relied not only on the evidence and information specifically discussed in the following sections. On the contrary, the Chamber has reached its 21 Décision on the Issuance of a Warrant of Arrest in the Lubanga case, para. 78. See also Decision on the Confirmation oj Charges in the Lubanga Case, para 320. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 10/29 5 November 2007 conclusions on the basis of the overall evidence and information contained in the Prosecution Application, the Prosecution Supporting Materials and the Prosecution Response.

text: A. Whether there are reasonable grounds to believe that at least one crime within the jurisdiction of the Court has been committed

text: According to

text: the Statute

text: and the Elements of Crimes, the definition of every crime within the jurisdiction of Court includes both contextual and specific elements.22 Hence, the Chamber will first determine whether there are reasonable grounds to believe that the contextual elements of at least one crime within the jurisdiction of the Court are present. Only if this question is answered in the affirmative, shall the Chamber turn its attention to the question of whether the specific elements of any such crime have occurred.

text: Whether there are reasonable grounds to believe that the contextual elements of at least one crime within the jurisdiction of the Court exist

text: According to the Prosecution Application, Germain Katanga is responsible for certain crimes against humanity and war crimes committed by members of la Force de Résistance Patriotique en Ituri ("FRPI") and thé Front Nationaliste et Integrationiste ("FNI") during and in the aftermath of the joint attack by the FRPI and the FNI on the village of Bogoro on or about 24 February 2003.23 The Prosecution submits that these crimes were committed:

text: 22 Decision on the Issuance of an Arrest Warrant in the Lubanga case, para. 80. See also the Decision on the Issuance of Arrest Warrants in the case The Prosecutor vs. Ahmad Muhammad Harun ("Ahmad Harun ") and Ali Muhammad Ali Abd-Al-Rahman (All Kushayb), ICC-02/05-01/07-1 -Corr (hereafter "Decision on the Issuance of Arrest Warrants in the Harun and Kushayb case"), para. 29. " Prosecution Application, pp. 5 to 7. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 11/29 5 November 2007

text: (i) in the context of an armed conflict not of an international character which had already started by July 2002 in the district of Ituri and continued throughout 2003, and in which several regional groups were involved;24 (ii) as part of a widespread or systematic attack directed against the civilian Hema population of Ituri, which started after the fall of Bunia in August 2002 and continued throughout 2003,25

text: The Chamber finds that there are reasonable grounds to believe that from July 2002 to the end of 2003, a protracted armed conflict, within the meaning of

text: article 8

text: (2)(f) of

text: the Statute

text: , occurred on the territory of Ituri involving a number of regional groups, including the FRPI, the FNI, l'Union de Patriotes Congolais ("UPC")/les Forces Patriotiques pour la Libération du Congo ("FPLC") and le Parti pour l'Unité et la Sauvegarde de l'Intégrité du Congo ("PUSIC").

text: In the Chamber's view, there are reasonable grounds to believe that, at the very least, the FRPI,26 the FNI,27 the UPC/FPLC28 and the PUSIC29 had a hierarchical structure which allowed them to act under responsible command with operational and disciplinary powers (sufficient level of internal organisation). The Chamber also finds that there are reasonable grounds to believe that those groups resorted to armed violence of a certain intensity

text: 24 Prosecution Application, paras. 60-68 and 99. 25 Prosecution Application, paras. 95-101. 26 Prosecution Application, paras. 77-80. See also Prosecution Supporting Materials, AnxF, para. 144 and MONUC, Special Report on the Events in Iluri, January 2002-December 2003, Anx I, p.49. 27 Prosecution Application, paras. 86, 89 and 91. See also Prosecution Supporting Materials, AnxF, paras. 13-14, 51, 53 and 144; Anx H, para.57; Prosecution Response, A n x l l , paras. 20, 24 and 37; and MONUC, Special Report on the Events in Ituri, January 2002-December 2003, Anx 1, p.48. 28 Prosecution Application, /. Summary of the Case, p.l; Prosecution Response, Anxl4, paras. 172-184; MONUC, Special Report on the Events in Ituri. January 2002-December 2003, Annex I, pp. 47 and 52. 29 Prosecution Response, Anx 14, paras. 187-200. See also MONUC, Special Report on the Events in Ituri, January 2002-December 2003, pp.47-48. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 12/29 5 November 2007 during a prolonged period.30 Furthermore, the Chamber finds that there are reasonable grounds to believe that those armed groups controlled part of the territory of Ituri, which enabled them to plan and carry out concerted military operations.31 Moreover, the Chamber finds that there are reasonable grounds to believe that Germain Katanga was aware of the factual circumstances that established the existence of an armed conflict.32

text: The Chamber finds that there are reasonable grounds to believe that the alleged crimes, which occurred during and in the aftermath of the joint attack by the FRPI and the FNI on the village of Bogoro on or about 24 February 2003, were committed in the context of and in association with the ongoing conflict in Ituri.33 In the view of the Chamber, the evidence and information submitted by the Prosecution also provides reasonable grounds to believe that the alleged crimes were closely related to the ongoing hostilities.34

text: The Chamber considers, on the basis of the evidence and information brought by the Prosecution, that there are reasonable grounds to believe that the Uganda People's Defence Force ("UPDF") may have directly or indirectly intervened in the conflict in Ituri in the context of which the crimes allegedly committed during and in the aftermath of the joint attack by the FRPI and the FNI on Bogoro took place. Consequently, the Chamber finds that there are reasonable grounds to believe that the conflict in Iruri may have had either a non international character or an international character.

text: 10 Prosecution Application, paras. 61 and 99. See also Prosecution Supporting Materials, Anx7; Prosecution Response, Anxl4, paras. 368-371; MONUC, Special Report on the Events in Ituri, January 2002-December 2003, Annex II, p. 51-61. 31 Prosecution Application, paras. 49, 77, 83, 86, 87; See also MONUC, Special Report on the Events in Ituri, January 2002-December 2003, paras. 84 and 89. 12 Prosecution Application, paras. 66-68. 33 MONUC, Special Report on the Events in Ituri, January 2002-December 2003, paras 64-67. 34 Prosecution Application, para. 60-68. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 13/29 5 November 2007

text: As the Chamber has previously stated,

text: "Pursuant to

text: article 7

text: (1) of

text: the Statute

text: , in order to constitute a crime against humanity, the acts must have been committed as part of a widespread or systematic attack against any civilian population. Pursuant to

text: article 7

text: (2)(a) of

text: the Statute

text: , an attack directed against a civilian population is defined as a " course of conduct involving a multiple commission of crimes referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such an attack."35

text: The Chamber recalls that the expression "widespread or systematic" in article

text: 7(1) of

text: the Statute

text: excludes random or isolated acts of violence.36 Furthermore,

text: the adjective "widespread" connotes the large-scale nature of the attack and

text: the number of targeted persons, whereas the adjective "systematic" refers to

text: the organised nature of the acts of violence and the improbability of their

text: random occurrence.37

text: The Chamber finds that there are reasonable grounds to believe that:

text: (i) prior to the creation of the FRPI and the FNI at the end of 2002, Ngiti

text: and Lendu militia, along with APC forces, killed at least 850 civilians,

text: mostly from the Hema and Bira ethnic groups, in Nyankunde;38

text: (ii) after the alliance between the FRPI and the FNI at the beginning of

text: 2003 and until the end of March/beginning of April 2003 at the latest,

text: around 700 civilians, predominantly from the Hema ethnic group, were

text: killed in Mandro,39 Kilo40 and Drodro41 by the joint action of the FRPI

text: and the FNI;

text: 35 ICC-02/05-01/07-l-Corr, para. 61. 36 Ibid, para. 62. 37 Ibid, para. 62. 38 Prosecution Application, para. 73 and Prosecution Supporting Materials Anx7. 39 Prosecution Supporting Materials, Anx7; see also MONUC, Special Report on the Events in Ituri, January 2002-December 2003, paras. 71 and 73. 40 Prosecution Supporting Materials, Anx7; see also MONUC, Special Report on the Events in Ituri, January 2002-December 2003, paras. 113. 41 Prosecution Supporting Materials, Anx7; see also MONUC, Special Report on the Events in Ituri. January 2002-December 2003, paras. 75 and 76.

text: No. ICC-01/04-01/07 14/29 5 November 2007

text: (iii) in the month following the fall of Bunia on 6 May 2003, which appears to have brought about the end of the alliance between the FRPI and the FNI, around 500 civilians, predominantly from the Hema ethnic group, were killed by the FNI in Bunia/Nyakasanza,42 Tchomia,43 Katoto.44

text: As a result, the Chamber finds that there are reasonable grounds to believe that, at the very least, between January and March 2003, the FRPI and the FNI jointly conducted a widespread or systematic attack directed against the civilian population, predominantly of the Hema ethnic group, in certain areas of the district of Ituri. Furthermore, the Chamber finds that there are reasonable grounds to believe that the crimes which allegedly took place during and in the aftermath of the joint military operation conducted by the FRPI and the FNI against the village of Bogoro on or about 24 February 2003 were allegedly committed as part of such a widespread or systematic attack,45 and that Germain Katanga was aware of it.46

text: Whether there are reasonable grounds to believe that the specific elements of at least one crime within the jurisdiction of the Court exist

text: The Prosecution alleges that in the early hours of 24 February 2003, members of the FRPI and the FNI, acting in concert, carried out a joint attack against the civilian population of Bogoro village in the Bahema Sud collectivité "as a means of driving out the largely Hema population of Bogoro", and against 42 Prosecution Supporting Materials, Anx7; see also MONUC, Special Report on (he Events in fturi, January 2002-December 2003, paras. 77-79. 43 Prosecution Supporting Materials, Anx7; see also MONUC, Special Report on the Events in fturi, January 2002-December 2003, para. 85. 44 Prosecution Supporting Materials, Anx7; see also MONUC, Special Report on the Events in Ittiri, January 2002-December 2003, para. 88. 45 Prosecution Application, para.106; Prosecution Response, A n x l , para.13 and Anx3, para.14. 46 Prosecution Application, paras. 105, 214 and 215; Prosecution Response, Anxl3, para.96. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 15/29 5 November 2007 individual civilians not taking direct part in hostilities.47 As a result, according to the Prosecution, the crime of "intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities" was committed.

text: The Chamber considers that the crime provided for under

text: article 8

text: (2)(b)(i) and (2)(e)(i) of

text: the Statute

text: does not require any harmful impact on the civilian population or on the individual civilians targeted by the attack, and is committed by the mere launching of the attack against a civilian population or individual civilians not taking direct part in hostilities, who have not fallen yet into the hands of the attacking party.

text: The Chamber finds that there are reasonable grounds to believe that the village of Bogoro, given its location at the junction of three major roads which lead to Bunia to the north, Kasenyi to the east and Aveba and Gety to the south, had a very important strategic value for the FRPI and the FNI. This is particularly so, in light of the fact that the UPC/FPLC presence in Bogoro prevented the FRPI and the FNI from effectively coordinating their forces based in the Irumu territory with those based in the Zumbe area and farther north.48 The Chamber therefore finds that there are reasonable grounds to believe that, according to the circumstances prevailing at the time, taking over such a village provided the FRPI and the FNI with a definitive and concrete military advantage.

text: The Chamber also finds that there are reasonable grounds to believe that: (i) the village was defended by a UPC/FPLC camp including some 150 uniformed soldiers located in the centre of the city, and by two or three 47 Prosecution Application, page 7 and para. 109. 48 Prosecution Application, para. 106. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 16/29 5 November 2007 additional small UPC positions in the north and south of the village;49 and (ii) the rest of the village was inhabited by civilians, including women, children and elderly, who were not taking a direct part in hostilities, as demonstrated by the fact that as soon as the attack started they fled unarmed to the woods or to the positions defended by UPC/FPLC soldiers.50

text: The Chamber finds that there are reasonable grounds to believe that the attack jointly launched by the FRPI and the FNI on the village of Bogoro on or about 24 February 2003 was neither specifically aimed at the civilian population of Bogoro nor at individual civilians not taking direct part in hostilities. The Chamber finds that there are reasonable grounds to believe that on the contrary Germain Katanga, and other senior FRPI and FNI commanders planned to launch an indiscriminate attack against the village of Bogoro which was to be targeted as a single military objective, instead of directing the attack to the clearly separated and distinct military objectives located in the village.51

text: The Chamber notes that: (i) paragraphs (b)(i) and (e)(i) of

text: article 8

text: (2) of

text: the Statute

text: only criminalise conduct consisting of "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;"

text: 49 Prosecution Application, para. 135; Prosecution Response, Anx2, paras.23-25. 50 Prosecution Application, paras. 115, 127, 134, 135 and 139. According to

text: article 51

text: (5)(a) of

text: Additional Protocol I

text: to the Geneva Conventions, "The following types of attacks are to be considered as indiscriminate: (a) An attack by bombardment or by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects" PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 17/29 5 November 2007

text: (ii) paragraph (b)(ii) of

text: article 8

text: (2) of

text: the Statute

text: only criminalises conduct consisting of "intentionally directing attacks against civilian objects, that is, objects which are not military objectives;" and (iii) paragraph (b)(iv) of

text: article 8

text: (2) of

text: the Statute

text: only criminalises violations of the proportionality rule when an attack is specifically directed against a military objective.

text: In this regard, the Chamber is of the view that, given the fact that this is not the only crime attributed by the Prosecution to Germain Katanga, the question of whether criminal liability can arise under

text: article 8

text: (2)(b)(i) or 8(2)(e)(i) of

text: the Statute

text: for the launching, or attempted launching, of an indiscriminate attack will be better dealt with at the confirmation hearing stage rather than at the stage of issuance of a warrant of arrest.

text: The Prosecution alleges that during and in the aftermath of the joint attack by the FRPI and the FNI on the village of Bogoro on or about 24 February 2003, members of the FRPI and the FNI: (i) murdered approximately 200 civilians;52 (ii) inflicted serious injuries upon civilians;53 (iii) detained civilians, threatened them with weapons and imprisoned them in a room filled with corpses;54 (iv) pillaged the village of Bogoro;55 (v) sexually enslaved women and girls;56 and

text: 52 Prosecution Application, page 5, para. 155. 53 Prosecution Application , page 5, para. 112. 54 Prosecution Application, page 6, para. 122. 55 Prosecution Application , page 7, para. 108. 56 Prosecution Application, page 6, para. 108. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 18/29 5 November 2007

text: (vi) used children under the age of fifteen to participate actively in hostilities.57

text: The Chamber finds that there are reasonable grounds to believe that during, and particularly in the aftermath of, the joint indiscriminate attack by the FRPI and the FNI upon the village of Bogoro on or about 24 February 2003, members of the FRPI and the FNI: (i) chased down civilians who were fleeing, notably in the direction of Mount Waka and shot at them;58 (ii) shot certain civilians in their houses, and killed others by setting their houses on fire;54 and (iii) killed civilians who had found refuge in the Hotel Lagura,60 as well as within the UPC camp, and in particular in the classrooms of the former Institute of Bogoro.61 The Chamber finds that there are reasonable grounds to believe that members of the FRPI and the FNI killed around 200 civilians, and that most of them were killed once they had fallen into the hands of the FRPI and the FNI.62

text: The Chamber finds that there are reasonable grounds to believe that during and in the aftermath of the joint indiscriminate attack by the FRPI and the FNI upon the village of Bogoro on or about 24 February 2003, members of the FRPI and the FNI inflicted serious injuries upon civilians, notably as a result of gun shots or machete blows.63

text: 57 Prosecution Application, page 6, para. 113. 58 Prosecution Application, paras. 114, 129 and 136. See also Prosecution Response, Anx3, paras. 46-47 and Anx2, para. 46. 59 Prosecution Application, para. 107. See also Prosecution Response, Anx5, para. 48 and Anxl 1, para. 51. 60 Prosecution Application, paras. 118 and 154. See also Prosecution Response, Anx2, para. 59. 61 Prosecution Application, paras. 107, 122, 197 and 212. See also Prosecution Response, Anx2, paras. 73-74, Anx4, paras. 28, 29 and 36. 62 Prosecution Application, paras. 147-150. See also Prosecution Response, Anx6, page 27-32. 63 Prosecution Application, paras. 112, 133 and 147. See also Prosecution Response, Anx4, para. 30. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 19/29 5 November 2007

text: The Chamber finds that there are reasonable grounds to believe that in the aftermath of the joint indiscriminate attack by the FRPI and the FNI upon the village of Bogoro on or about 24 February 2003, members of the FRPI and the FNI detained civilians, threatened them with weapons and imprisoned them in a room filled with corpses in the Bogoro Institute.64

text: The Chamber finds that there are reasonable grounds to believe that in the aftermath of the joint indiscriminate attack by the FRPI and the FNI upon the village of Bogoro on or about 24 February 2003, members of the FRPI and the FNI pillaged the village of Bogoro.65

text: The Chamber finds that there are reasonable grounds to believe that in the aftermath of the joint indiscriminate attack by the FRPI and the FNI upon the village of Bogoro on or about 24 February 2003, members of the FRPI and the FNI abducted women and girls to be used as their "wives" and serve as sexual slaves for them and other commanders."6

text: The Chamber finds that there are reasonable grounds to believe that during the joint indiscriminate attack by the FRPI and the FNI upon the village of Bogoro on or about 24 February 2003, children under the age of fifteen were used to participate actively in hostilities by members of the FRPI and the FNI.67 In the Chamber's view, there are also reasonable grounds to believe that those members of the FRPI and the FNI who used children under the age of

text: 64 Prosecution Application, paras. 121 and 122. See also Prosecution Response, Anx2, paras. 65-74. 65 Prosecution Application, paras. 108, 120 and 132. See also Prosecution Response, Anx2, paras. 61-64 and Anx4, para. 34. 66 Prosecution Application, paras. 108, 114 to 116. See also Prosecution Response, Anxl, paras. 19, 21, 28 and 29 and Anx5, para. 27. 67 Prosecution Application, paras. 112, 163, 173, 178, 182 and 206. See also Prosecution Response, An\3, paras. 63-64; Annex 7, para. 79; Anx8, para. 32 and Anxl 1, para. 26. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 20/29 5 November 2007 fifteen to participate actively in hostilities were aware that the children were under the age of fifteen.68

text: As the Chamber has previously stated in relation to the crime of using children under the age of fifteen years to participate actively in hostilities: [...] each individual instance of [...] use to participate actively in hostilities of children under the age of fifteen gives rise to a crime within the jurisdiction of the Court. However, the Chamber considers that it is advisable to treat [...] all instances of use to participate actively in hostilities of children under the age of fifteen by members of the UPC/FPLC as a continuous crime to use to participate actively in hostilities of children under the age of fifteen."69

text: In the view of the Chamber, this principle is applicable to all crimes committed after the launching of the joint indiscriminate attack by the FRPI and the FNI upon the village of Bogoro on or about 24 February 2003.

text: In conclusion, and without prejudice to any subsequent interpretation by the Chamber at the confirmation hearing stage of the definition of the crime provided for under

text: article 8

text: (2)(b)(i) or 8(2)(e)(i) of

text: the Statute

text: , the Chamber finds that there are reasonable grounds to believe that on or about 24 February 2003, members of the FRPI and the FNI committed a war crime under

text: article 8

text: (2)(b)(i) or 8(2)(e)(i) of

text: the Statute

text: by launching a joint indiscriminate attack against the village of Bogoro.

text: Moreover, the Chamber finds that there are reasonable grounds to believe that during and in the aftermath of the joint indiscriminate attack by the FRPI and the FNI on the village of Bogoro on or about 24 February 2003, the following crimes were committed by FRPI and FNI members:

text: 68 Prosecution Supporting Materials, AnxD, paras. 36 and 43; AnxE, paras. 10 and 11, AnxF, para. 66. 69Decision on the Issuance of an Arrest Warrant in the Lubanga case, para. 91. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 21/29 5 November 2007

text: (i) a continuous crime against humanity of murder under

text: article 7

text: (1 )(a) of

text: the Statute

text: ; (ii) a continuous crime against humanity of other inhumane acts under

text: article 7

text: (l)(k)of

text: the Statute

text: ; (iii) a continuous crime against humanity of sexual slavery under

text: article 7

text: (l)(g) of

text: the Statute

text: ; (iv) a continuous war crime of wilful killings under

text: article 8

text: (2)(a)(i) or 8(2)(c)(i) of

text: the Statute

text: ; (v) a continuous war crime of inhumane treatment under article 8(2)(a)(ii) or of cruel treatment under

text: article 8

text: (2)(c)(i) of

text: the Statute

text: ; (vi) a continuous war crime of using children under the age of fifteen years to participate actively in hostilities under

text: article 8

text: (2)(b)(xxvi) or 8(2)(e)(vii) of

text: the Statute

text: ; (vu) a continuous war crime of sexual slavery under

text: article 8

text: (2)(b)(xxii) or 8(2)(e)(vi) of

text: the Statute

text: ; and (viii) a continuous war crime of pillaging a town or place, even when taken by assault, under

text: article 8

text: (2)(b)(xvi) or 8 (2)(e)(v) of

text: the Statute

text: B. Whether there are reasonable grounds to believe that Germain Katanga is criminally responsible for the above-mentioned crimes

text: The Prosecution alleges that Germain Katanga is criminally responsible under

text: article 25

text: (3)(b) of

text: the Statute

text: for ordering the commission of crimes committed by the forces under his command during and in the aftermath of the joint FRPI and FNI attack on Bogoro on or about 24 February 20037° In this regard, the Chamber notes that:

text: 70 Prosecution Application, /. Summary of the case, p. 3-7. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 22/29 5 November 2007

text: (i) direct commission, indirect commission and co-perpetration based on joint control over the crime, within the meaning of

text: article 25

text: (3)(a) of

text: the Statute

text: , each gives rise to principal liability, whereas those modes of participation in the commission of the crime punishable under

text: article 25

text: (3) (b) to (d) of

text: the Statute

text: give rise to accessory liability;71

text: (ii) according to the Prosecution, Germain Katanga acted in concert with other senior commanders of the FNI and the FRPI when planning and ordering the commission of the crimes.

text: The Chamber finds that there are reasonable grounds to believe that at the beginning of 2003, after the creation of the FRPI and before the attack on Bogoro on or about 24 February 2003, Germain Katanga became the highest ranking commander of the FRPI.72

text: The Chamber finds that there are reasonable grounds to believe that in the weeks prior to 24 February 2003, a common plan to carry out an attack on the village of Bogoro was agreed upon by Germain Katanga and other FRPI and FNI commanders.73 The Chamber is also of the view that there are reasonable grounds to believe that the attack on Bogoro, as planned by Germain Katanga and other FRPI and FNI commanders, neither specifically targeted the civilian population of Bogoro nor individual civilians not taking direct part in hostilities. The Chamber finds that there are reasonable grounds to believe

text: 71 lCC-01/04-01/06-8-US-Corr, para.78. !CC-01/04-01/06-796-Conf-tEN, para. 320. 72 Several witnesses refer to Germain Katanga as being the "main leader" of the FRPI, "the head of the Lendu South" or "the chief of all Ngiti combatants", see Prosecution Application paras. 78 and 79 and Prosecution Supporting Materials, AnxD, paras 45-56. Besides, on 18 March 2003, Germain Katanga signed "on behalf of the FRPI" the "Agreement to cease hostilities in Ituri" promoted by MONUC, see Prosecution Application, para. 67. According to the MONUC, Special Report on the Events in Ituri, January 2002-Decemher 2003, when the MONUC investigators traveled to Bogoro on 26 March 2003, the commander in charge of the village at that time, who refused to grant the permission for an inspection of Bogoro, stated to be under the ordering of Germain Katanga; see Prosecution Application, para 216 and MONUC, Special Report on the Events in Ituri, January 2002-December 2003, para. 66. 71 Prosecution Application, para. 157 and Prosecution Supporting Materials, AnxF, paras. 19-35. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 23/29 5 November 2007 that on the contrary Germain Katanga and other senior FRPI and FNI commanders planned to launch an indiscriminate attack against the village of Bogoro which was to be targeted as a single military objective, instead of directing the attack to the clearly separated and distinct military objectives located in the village.74

text: The Chamber finds that there are reasonable grounds to believe that the crimes against humanity and the war crimes allegedly committed during and in the aftermath of the joint indiscriminate attack by the FRPI and the FNI upon the village of Bogoro on or about 24 February 2003, were either encompassed by the common plan75 or, at the very least, a likely consequence of the implementation of this common plan, which was mutually accepted by Germain Katanga and other FRPI and FNI commanders.76

text: The Chamber finds that there are reasonable grounds to believe that Germain Katanga and other FPRI and FNI senior commanders directed their respective subordinates in a coordinated manner in order to jointly implement the common plan. Furthermore, in the view of the Chamber, there are reasonable grounds to believe that the level of coordination in the implementation of the common plan was such that in a matter of a few hours: (i) the attack stricto sensu was over as members of FRPI and FNI overpowered the UPC soldiers and took control of Bogoro;77 and (ii) members of the FRPI and the FNI were already engaging in acts of murder and sexual slavery of civilians and in the pillaging and destruction of the village that had already fallen under their control.78 74 According to

text: article 51

text: (5)(a) of

text: Additional Protocol I

text: to the Geneva Conventions, "The following types of attacks are to be considered as indiscriminate: (a) An attack by bombardment or by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects" 75 Prosecution Application, para. 159 and Prosecution Supporting Materials, AnxF, paras. 40, 44, 80-87. 76 Prosecution Application, para. 160 and Prosecution Supporting Materials, AnxF, paras. 75-77. 77 Prosecution Supporting Materials, AnxH, para. 110. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 24/29 5 November 2007

text: The Chamber finds that there are reasonable grounds to believe that Germain Katanga played an essential role in the implementation of the common plan which led to the alleged commission of crimes during and in the aftermath of the joint indiscriminate attack by the FRPI and the FNI on the village of Bogoro on or about 24 February 2003. In this regard, the Chamber finds that there are reasonable grounds to believe that the role played by Germain Katanga in the planning of the attack was unique,79 that he provided weapons for the implementation of the common plan to the other FPRI and FNI senior commanders,80 and that he ordered his subordinates to execute the common plan.81 Furthermore, the Chamber finds that there are also reasonable grounds to believe that Germain Katanga was aware of his essential role and that such a role gave him joint control over the implementation of the common plan.82

text: Consequently, the Chamber finds that there are reasonable grounds to believe that Germain Katanga is criminally responsible under

text: article 25

text: (3)(a) of

text: the Statute

text: , as a principal to the crimes committed by members of the FRPI and the FNI during and in the aftermath of the joint indiscriminate attack by the FRPI and the FNI on the village of Bogoro on or about 24 February 2003. In the alternative, the Chamber finds that there are reasonable grounds to believe that Germain Katanga is criminally responsible under

text: article 25

text: (3)(b) of

text: the Statute

text: , as an accessory to the crimes committed by his subordinates during and in the aftermath of the attack.

text: 78 Prosecution Application, paras. 110-146 and Prosecution Supporting Materials, AnxH, paras. 104, 106, 110; Prosecution Response, Anxl, paras. 13-29; Anx2, paras. 61-64, 83-87; Anx3, para. 52. 79 Prosecution Application, para. 169; Prosecution Supporting Materials, AnxF, paras. 19-31; Prosecution Response, Anx3, paras. 44-50. 80 Prosecution Application, para 167. and Prosecution Supporting Materials, AnxH, para. 72. 81 Prosecution Application, para. 214; Prosecution Supporting Materials, AnxF, para. 44 and AnxE, paras. 38, 42, 56. 82 Prosecution Supporting Materials, AnxE, paras. 36-56. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 25/29 5 November 2007

text: C. Whether the arrest of Germain Katanga appears necessary under

text: article 58

text: (l)(b) of

text: the Statute

text: Under

text: article 58

text: (1 )(b) of

text: the Statute

text: , the Chamber may issue a warrant of arrest only if it is satisfied that the arrest of the person appears necessary: (i) to ensure the person's appearance at trial; (ii) to ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.

text: According to the Prosecution Application, Germain Katanga is currently in custody in the Centre Pénitentiaire et de Rééducation de Kinshasa ("CPRK").83 As the Chamber has previously indicated, detention "prevents [an individual] from willingly and voluntarily appearing before the Court."84 Therefore, the arrest of Germain Katanga appears necessary at this stage to ensure his appearance at trial pursuant to

text: article 58

text: (l)(b)(i) of

text: the Statute

text: Although the Chamber must be satisfied of only one of the conditions set forth in

text: article 58

text: (l)(b) of

text: the Statute

text: , the Chamber further notes that according to the Prosecution Application, Germain Katanga also has the means to obstruct or endanger the investigation within the meaning of

text: article 58

text: (l)(b)(ii) of

text: the Statute

text: . In this regard, the Prosecution indicates, and the Registry has confirmed,85 that the conditions in the CPRK do not prevent detainees from

text: 8' Prosecution Application, paras 7-9. 84 Decision on the Issuance of Arrest Warrants in the Harun and Kushayb case, para. 133. 85ICC-01-04-T-1 l-CONF-EXP-EN[19June2007Edited], page 17, lines 7 and 8. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 26/29 5 November 2007 speaking with outsiders, including by means of unmonitored phone calls.86 This, according to the Prosecution, provides Germain Katanga with the opportunity to, inter alia, influence potential witnesses or to arrange false testimonies with potential witnesses who are former members of the FRPI.87 Furthermore, according to the Prosecution, investigations by MONUC on the crimes allegedly committed in Bogoro have already been obstructed by members of the FRPI who were under the command of Germain Katanga.88

text: Accordingly, in the view of the Chamber, on the basis of the evidence and information contained in the Prosecution Application, the Prosecution Supporting Materials and the Prosecution Response, and without prejudice to any subsequent determination under

text: article 60

text: of

text: the Statute

text: and rule 119 of the Rules of Procedure and Evidence, the arrest of Germain Katanga appears necessary pursuant to

text: article 58

text: (l)(b)(i) and (ii) of

text: the Statute

text: , both to ensure his appearance at trial and to ensure that he does not obstruct or endanger the investigation or the court proceedings.

text: FOR THESE REASONS,

text: DECIDES that, on the basis of the evidence and information contained in the Prosecution Application, the Prosecution Supporting Materials and the Prosecution Response:

text: 86 Prosecution Application, para. 12. 87 Prosecution Application, para. 12. 88 Prosecution Application, para. 12. PURL: https://www.legal-tools.org/doc/37fdf3/ No. ICC-01/04-01/07 27/29 5 November 2007

text: (a) the case against Germain Katanga falls within the jurisdiction of the Court and is admissible; (b) the conditions required by

text: article 58

text: (1) of

text: the Statute

text: for the issuance of a warrant of arrest against Germain Katanga are met in relation to his alleged criminal responsibility under

text: article 25

text: (3)(a) and (b) of

text: the Statute

text: for:

text: (i) murder as a crime against humanity under

text: article 7

text: (l)(a) of

text: the Statute

text: ; (ii) other inhumane acts as a crime against humanity under

text: article 7

text: (l)(k) of

text: the Statute

text: ; (iii) sexual slavery as a crime against humanity under

text: article 7

text: (l)(g) of

text: the Statute

text: ; (iv) wilful killings as a war crime under

text: article 8

text: (2)(a)(i) or 8(2)(c)(i) of

text: the Statute

text: ; (v) inhumane treatment as a war crime under article 8(2) (a) (ii) or cruel treatment as a war crime under

text: article 8

text: (2)(c)(i) of

text: the Statute

text: ; (vi) the war crime of using children under the age of fifteen years to participate actively in hostilities under

text: article 8

text: (2)(b)(xxvi) or 8(2)(e)(vii) of

text: the Statute

text: ; (vii) sexual slavery as a war crime under

text: article 8

text: (2)(b)(xxii) or 8(2)(e)(vi) of

text: the Statute

text: ; (viii) the war crime of directing attacks against a civilian population as such or against individual civilians not taking direct part in hostilities under

text: article 8

text: (2)(b)(i) or 8(2)(e)(i) of

text: the Statute

text: No. ICC-01/04-01/07 28/29 5 November 2007

text: No. ICC-01/04-01/07 29/29 5 November 2007

title: The Prosecutor v. Germain Katanga


court: icc

doctype: appeal-interlocutory

identifier: ICC-01/04-01/07 (Judgment on the Appeal Against the Decision on Joinder rendered on 10 March 2008 by the Pre-Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Chui Cases)

caseName: The Prosecutor v. Germain Katanga

chamber: Appeals Chamber

decisionType: appeal-interlocutory

publisher: International Criminal Court

text: the Statute

text: the Statute, article 57

text: the Statute, article 64

text: the Statute, article 67

text: Rome Statute, article 82

text: Cour •Pénale Internationale International Criminal Court Original: English No.: ICC-01/04-01/07 OA 6 Date: 9 June 2008

type: stycke

text: THE APPEALS CHAMBER Before: Judge Georghios M. Pikis, Presiding Judge Judge Philippe Kirsch Judge Navanethem Pillay Judge Sang-Hyun Song Judge Erkki Kourula

text: SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO THE PROSECUTOR v. GERMAIN KATANGA AND MATHIEU NGUDJOLO CHUI

text: Public document Judgment on the Appeal Against the Decision on Joinder rendered on 10 March 2008 by the Pre- Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Chui Cases

text: No.: ICC-01/04-01/07 OA 6 1/8

text: Decision/Order/Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:

text: The Office of the Prosecutor Counsel for Mr Katanga Mr Luis Moreno-Ocampo, Prosecutor Mr David Hooper Ms Fatou Bensouda, Deputy Prosecutor Mr Goran Sluiter

text: Counsel for Mr Ngudjolo Chui Mr Jean-Pierre Kilenda Kakengi Basila Ms Maryse Allé

text: REGISTRY Registrar Ms. Silvana Arbia

text: No.: ICC-01/04-01/07 OA 6 2/8

text: The Appeals Chamber of the International Criminal Court,

text: In the appeal of Mathieu Ngudjolo Chui pursuant to the decision of Pre-Trial Chamber I of 9 April 2008, entitled "Decision on Application for Leave to Appeal by the Defence of Mathieu Ngudjolo Chui against the Decision on Joinder" (ICC-01/04-01/07-384),

text: Delivers unanimously the following

text: J U D G M E N T

text: The appeal is dismissed.

text: The decision of Pre-Trial Chamber I of 10 March 2008 entitled "Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI" (ICC-01/04-01/07-3071) is confirmed.

text: REASONS

text: I. In proceedings leading up to the confirmation of the charges against Mr. Katanga and Mr. Ngudjolo Chui, the Prosecutor "requested that the two cases against Germain Katanga and Mathieu Ngudjolo Chui be joined as soon as practicable on the basis that the Prosecution had always sought to prosecute the suspects for their joint participation in the same attack and for that purpose initially submitted a joint arrest warrant application"2. The Pre-Trial Chamber, in its decision, notes that the crimes allegedly committed by the two persons arise from the same facts, that is, a "joint attack of the village of Bogoro by the FNI and FRP1 on 24 February 2003"3 and that a joint application had been made by the Prosecutor for their arrest. The Pre-Trial Chamber, noting "...the crimes allegedly committed during and in the aftermath of the said attack on the village of Bogoro; that all supporting materials and evidence in the Prosecution's joint application relate to both alleged co-perpetrators; and that the Prosecution has requested that the Chamber join the

text: 1 In the document in support of the appeal, reference is made to ICC-01/04-01/07-257, which corresponds to ICC-01/04-01/07-307. 2 Prosecutor v Ngudjolo Chui "Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI" 10 March 2008 (ICC-01/04-01/07-307), page 3. 3 Ibid, page 6.

text: No.: ICC-01/04-01/07 OA 6 3/8 cases..."4, approved the joinder of the two persons in the same document of charges for the purpose of the confirmation hearing; holding that it had power to do so under the Statute5 and the Rules of Procedure and Evidence6 and that so doing is in the interests of justice, avoiding replication of the proceedings.

text: A neat question was certified by Pre-Trial Chamber I7 as the subject of this appeal8: "whether the Chamber erred in violation of the principle of legality in its interpretation of

text: article 64

text: (5) of

text: the Statute

text: and rule 136 of the Rules"9. In its decision giving rise to the definition of the sub judice issue, the Pre-Trial Chamber held: "the ordinary meaning of

text: article 64

text: (5) of

text: the Statute

text: and rule 136 of the Rules provides that there shall be joint trials for persons accused jointly, and establishes a presumption for joint proceedings for persons prosecuted jointly."10 The appellant challenges the correctness of this decision, allegedly issued in defiance of or in breach of the principle of legality, depicted as the foundation of criminal justice. Legality entails, in his submission, "the prior definition of the substantive and procedural rules laid down by the lawmaker in light of the issues at stake in criminal proceedings, the purpose of which is to sanction violations of the fundamental values of society while ensuring respect for the rights of persons suspected of having broken criminal laws. Criminal legality is 'the keystone of criminal law'. It presupposes that the definitions of crimes and their punishments are limitatively defined by the law. It is the law which is the source of crime and punishment."11 He disputes the applicability of the Vienna Convention on the Law of Treaties12, regarded as irrelevant to the interpretation of

text: the Statute

text: , or, at best, as subordinate to the principle of legality.

text: 4 Prosecutor v. Ngudjolo Chui "Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI" 10 March 2008 (ICC-0 1/04-0 1/07-307), page 6. 5

text: Rome Statute

text: [hereinafter "

text: the Statute

text: "]. 6 Hereinafter "the Rules". 7 Hereinafter "Pre-Trial Chamber". 8 Under the provisions of

text: article 82

text: (I) (d) of the

text: Rome Statute

text: . 9 Prosecutor v Katanga and Ngudjolo Chui "Decision on Application for Leave to Appeal by the Defence of Mathieu Ngudjolo Chui against the Decision on Joinder" 9 April 2008 (ICC-0 1/04-0 1/07-384), page 8. 10 Prosecutor v Ngudjolo Chui "Decision on the Joinder of the Cases against Germain KATANGA and Mathieu NGUDJOLO CHUI" 10 March 2008 (ICC-0 1/04-0 1/07-307), page 7. " Prosecutor v. Katanga and Ngudjolo Chui "Appeal Against the Decision on Joinder rendered on 10 March 2008 by the Pre-Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Cases" 21 April 2008 (ICC-01/04-01/07-42MENG), para 15. 12

text: Vienna Convention on The Law of Treaties

text: , United Nations Treaty Series 18232, vol. 1155, p 331, signed on 23 May 1969 and entered into force on 27 January 1980 [hereinafter "Vienna Convention"].

text: No.: ICC-01/04-01/07 OA 6 4/8

text: In sum, the appellant contends that power to authorise joinder, that is, the joining of two or more persons as the subjects of the same or related charges, is confined to the Trial Chamber. Neither

text: article 64

text: (5) of

text: the Statute

text: nor rule 136 of the Rules provides otherwise. The powers of the Pre-Trial Chamber, in his submission, are none other than those enumerated in

text: article 57

text: of

text: the Statute

text: . Joinder of offenders in the same context, document containing the charges, for the purposes of a confirmation hearing, is not amongst them. And no such power can be assumed by the Pre-Trial Chamber. By the logic of this submission, there is no room for the joining of two or more persons in the same document or holding a hearing for the confirmation of the charges laid down against them; even where the charges are common and the persons joined are accused as co-perpetrators in the commission of the same crimes. So to do would be, as the appellant asserted, "neither logical," and continued, "nor effective in proceedings before the International Criminal Court"13. What the logic of the matter warrants is not explained, nor is the source of its emanation. Joinder is a substantive matter, he argued, "subject to the legality principle"14.

text: In his response15, the Prosecutor informs that the person jointly accused with the appellant, in the charges preferred against them for confirmation, did not oppose the joinder. He submitted that

text: article 64

text: (5) of

text: the Statute

text: and rule 136 of the Rules, by reference to any rule of interpretation, lead to the unavoidable conclusion that it is permissible to join two or more persons in the same document of charges for the purpose of determining whether it should be confirmed.

text: RESOLUTION OF THE ISSUE BEFORE THE APPEALS CHAMBER

type: rubrik

text: 13 Prosecutor v Katanga andNgudjolo Chui "Appeal Against the Decision on Joinder rendered on 10 March 2008 by the Pre-Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Cases" 21 April 2008 (ICC-01/04-01/07-421-IENG), para. 23. 14 Ibid, para. 23(5). 15 Prosecutor v Katanga and Ngudjolo Chui "Decision on Prosecution Response to the Defence Document in Support of Appeal against Decision on the Joinder of Cases" 28 April 2008 (ICC-01/04-01/07-455).

text: No.: ICC-01/04-01/07 OA 6 5/8

text: Contrary to the submission of the appellant, the Vienna Convention provides the guide to the interpretation of

text: the Statute

text: and the Rules. This was affirmed in "Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal," where the following was stated:

text: "The interpretation of treaties, and the

text: Rome Statute

text: is no exception, is governed by the

text: (23 May 1969), specifically the provisions of articles 31 and 32. The principal rule of interpretation is set out in article 31 (1) that reads: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose"16. Thereafter it is explained in the same judgment: "The context of a given legislative provision is defined by the particular subsection of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty"17. 6. Following the writ of

text: the Statute

text: is the norm of legality and, to that the Appeals Chamber shall immediately turn.

text: Article 64

text: (5) of

text: the Statute

text: reads:

text: "Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused." 7. The power to sever charges against more than one accused presupposes that the charges levied against them are the subject of the same accusation. The next question is who approves the charges set out in the document containing the charges. The answer is the Pre-Trial Chamber in the context of a confirmation hearing. The view that charges can be joined is reinforced by the opening statement of rule 136 of the Rules, which reads, "Persons accused jointly shall be tried together..." unless the Trial Chamber

text: 16 Situation in the Democratic Republic of the Congo "Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal" 13 July 2006 (ICC-01/04-168), para. 33. 17 Situation in the Democratic Republic of the Congo "Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal" 13 July 2006 (ICC-01/04-168), para. 33.

text: No.: ICC-01/04-01/07 OA 6 6/8 decides otherwise.18 The phrase "persons accused jointly shall be tried together" is, founded on the premise that joinder of more than one person in the same document containing the charges, is the norm. No one is treated by or referred to in

text: the Statute

text: or the Rules of Procedure and Evidence as "the accused" prior to the confirmation of charges. Until that moment, the persons facing the charges are persons under investigation.

text: The interpretation accorded to

text: article 64

text: (5) of

text: the Statute

text: and rule 136 of the Rules tallies with the object of

text: the Statute

text: being, in this regard, the assurance of the efficacy of the criminal process, and promotes its purpose that proceedings should be held expeditiously. Proceedings should be held without delay, a course consistent with the rights of the accused, assured by

text: article 67

text: (1) (c) of

text: the Statute

text: , and the rights of a person facing charges at the confirmation hearing (rule 121 (1) of the Rules). This is what underlies the relevant provisions of

text: the Statute

text: and the Rules and founds the logic of the matter warranting joinder.

text: The Appeals Chamber resolves the issue posed for resolution by holding that the interpretation accorded to

text: article 64

text: (5) of

text: the Statute

text: and rule 136 of the Rules by the Pre-Trial Chamber in no way violates the principle of legality. What it does is give expression to it, a conclusion justifying the confirmation of the sub judice decision and, sequentially, the dismissal of the appeal.

text: In the document in support of the appeal19, the appellant moved the Appeals Chamber that suspensive effect be given to the appeal, a discretionary remedy provided for in

text: article 82

text: (3) of

text: the Statute

text: . As the Appeals Chamber examined the merits of the issue of suspension concurrently with the merits of the appeal and came to a conclusion as to its outcome, the Appeals Chamber decided that suspension would be a superfluous

text: 18 Rule 136 provides: ["I.Persons accused jointly shall be tried together unless the Trial Chamber, on its own motion or at the request of the Prosecutor or the defence, orders that separate trials are necessary, in order to avoid serious prejudice to the accused, to protect the interest of justice or because a person jointly accused has made an admission of guilt and can be proceeded against in accordance with article 65, paragraph 2. 2. In joint trials, each accused shall be accorded the same rights as if such accused were being tried separately."]. Prosecutor v. Katanga and Ngudjolo Chui "Decision on Appeal Against the Decision on Joinder rendered on 10 March 2008 by the Pre-Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Cases" 21 April 2008 (ICC-01/04-01/07-421-ŒNG).

text: No.: ICC-01/04-01/07 OA 6 7/8 measure and on that account should not be made the subject of any order. In the result, this sub judice decision is confirmed and the appeal is dismissed. Done in both English and French, the English version being authoritative.

text: Judge Georghios M. Pikis Presiding Judge Dated this 9th day of June 2008 At The Hague, The Netherlands

text: No.: ICC-01/04-01/07 OA 6 8/8

title: The Prosecutor v. Germain Katanga

type: avgorande