Regulation 55 and the Rights of the Accused at the International Criminal Court

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REGULATION 55 AND THE RIGHTS OF THE ACCUSED AT THE INTERNATIONAL CRIMINAL COURT

In nearly every case that has reached trial before the International Criminal Court (ICC) to date, a significant amount of time and litigation has been devoted to questions regarding the potential use by the Trial Chamber of Regulation 55 of the Regulations of the Court. This is a provision that permits the Chamber to convict an accused of a crime other than that with which he was originally charged by the Prosecution, or to base its conviction on a different mode of liability than originally charged, subject to certain conditions. Notably, one of the rationales behind the adoption of Regulation 55 by the ICC was that it would render the proceedings more efficient by obviating the need for the Prosecution to charge alternative or cumulative charges at the start of REGULATION 55 AND THE RIGHTS OF THE trial. However, as described in detail in this report, Regulation 55 has in fact resulted in substantial inefficiencies. Even more significantly, the use of the regulation under certain scenarios raises ACCUSED AT THE INTERNATIONAL CRIMINAL serious questions regarding the Trial Chamber’s ability to protect the rights of the accused to be informed of the charges against him, even with the safeguards spelled out in the regulation, as COURT seen in the Prosecutor v. Germain Katanga case described in this report.

In light of these concerns, this report offers recommendations aimed at limiting the availability of Regulation 55 so as to ensure that the rights of the accused to a fair and expeditious trial are safeguarded while maintaining the Trial Chamber’s authority to recharacterize in exceptional circumstances. In addition, the report advocates a more flexible approach to charging on the part of the Prosecution and the Pre-Trial Chambers in the hope that such changes may reduce the need for a Trial Chamber to invoke Regulation 55 after trial proceedings have commenced.

WAR CRIMES RESEARCH OFFICE International Criminal Court Legal Analysis and Education Project October 2013

WAR CRIMES RESEARCH OFFICE Washington College of Law 4801 Massachusetts Avenue, NW Washington, DC 20016

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ACKNOWLEDGMENTS

Susana SáCouto, War Crimes Research Office (WCRO) Director, and Katherine Cleary ORDERING INFORMATION Thompson, WCRO Assistant Director, prepared this report in collaboration with the International Bar Association’s (IBA) Hague Office. The WCRO is grateful to the IBA for its All our reports are available in PDF online at: substantive and editorial input in the preparation of this report, in particular to Clair Duffy and Lorraine Smith van Lin, for their respective contributions. The WCRO also received research assistance from Washington College of Law (WCL) J.D. student Christine Mitchell, as well as http://www.wcl.american.edu/warcrimes/icc/icc_reports.cfm. additional assistance from WCL J.D. Student Megan Race and WCL LLM Srinjoy Sarkar and WCRO Staff Assistant Adam Deutsch. We are grateful for the generous support of the Open Inquiries about obtaining print copies of reports may be sent to: Society Institute, the Swiss Federal Department of Foreign Affairs, and the WCL, without which this report would not have been possible. We also wish to thank all those who gave generously of War Crimes Research Office their time to this project, including Robert Goldman, Commissioner and Member of the Washington College of Law Executive Committee of the International Commission of Jurists (ICJ) and WCL Professor, and 4801 Massachusetts Avenue, NW the members of the WCRO’s ICC Advisory Committee: Mary McGowan Davis, former Acting Washington, DC 20016 New York State Supreme Court Judge and Member of the International Judicial Academy and of the American Association for the ICJ; Unity Dow, Commissioner of the ICJ, Member of the ICJ’s Executive Committee, and former Judge of the Botswana High Court; Siri Frigaard, Chief Tel.: 202 274-4067 Public Prosecutor for the Norwegian National Authority for Prosecution of Organized and Fax: 202 274-4458 Other Serious Crimes and former Deputy General Prosecutor for Serious Crimes in East Timor; Justice Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for E-mail: [email protected] the former Yugoslavia (ICTY) and Rwanda (ICTR); Chief Justice Phillip Rapoza of the Website: www.wcl.american.edu/warcrimes Massachusetts Appeals Court and Reserve Judge of the Extraordinary Chambers in the Courts of Cambodia (ECCC) Supreme Court Chamber and former Chief International Judge serving as Coordinator of the Special Panels for Serious Crimes in East Timor; and Juan Mendez, UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and former Special Advisor on Prevention to the Prosecutor of the International Criminal Court.

ABOUT THE WAR CRIMES RESEARCH OFFICE The core mandate of the WCRO is to promote the development and enforcement of international criminal and humanitarian law, primarily through the provision of specialized legal assistance to international criminal courts and tribunals. The Office was established by the Washington College of Law in 1995 in response to a request for assistance from the Prosecutor of the ICTY and ICTR, established by the United Nations Security Council in 1993 and 1994 respectively. Since then, several new internationalized or “hybrid” war crimes tribunals have been established under the auspices or with the support of the United Nations, each raising novel legal issues. This, in turn, has generated growing demands for the expert assistance of the WCRO. As a result, in addition to the ICTY and ICTR, the WCRO has provided in-depth research support to the Special Panels for Serious Crimes in East Timor, the Special Court for Sierra Leone, the ECCC, and the Special Tribunal for Lebanon. It has also provided similar assistance to mechanisms and institutions involved in accountability efforts for serious international crimes at the domestic level, including the War Crimes Section of the Court of Bosnia and Herzegovina, Argentina’s Assistance Unit for Cases of Human Rights Violations Committed under State Terrorism, Peru’s Instituto de Defensa Legal (dedicated to representing victims in serious crimes cases before Peru’s National Criminal Court), and the U.S. Department of State’s Office of Global Criminal Justice. The WCRO has also conducted legal research projects on behalf of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). However, in recognition of the urgent need for analytical critique at early stages of the Court’s development, in 2007 the WCRO launched a new initiative, the ICC Legal Analysis and Education Project, aimed at producing public, impartial, legal analyses of critical issues raised by the Court’s early decisions. With this initiative, the WCRO took on a new role in relation to the ICC. While past projects were carried out in support of the OTP, the WCRO is committed to analyzing and commenting on the practice and jurisprudence of the ICC in an impartial and independent manner. In order to avoid any conflict of interest, the WCRO did not engage in legal research for any organ of the ICC while producing this report, nor will the WCRO conduct research for any organ of the ICC prior to the conclusion of the ICC Legal Analysis and Education Project. Additionally, in order to ensure the objectivity of its analyses, the WCRO created an Advisory Committee comprised of the experts in international criminal and humanitarian law named in the acknowledgments above. 34066-war_report 17 Sheet No. 1 Side A 10/08/2013 07:52:44 FFICE IGHTS

ESEARCH R RIMINAL C AND THE RIMES RIMES C 55 AR International Criminal Court Court Criminal International Project Education and Analysis Legal October 2013 W CCUSED AT THE THE AT CCUSED A EGULATION OURT M K NTERNATIONAL C Y OF THE R I C 34066-war_report 17 Sheet No. 1 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 1 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 1 Side B 10/08/2013 07:52:44 M K

C Y , courtesy

, courtesy ICC Press , courtesy ICC (from left) courtesy Shane Bauer States of America Office All rights reserved All rights Aurora Hartwig De Heer 2007, courtesy Shane Bauer OVER PHOTOGRAPHS C Printed in the United American University Washington College of Law Narkaida, Darfur, Sudan, 2007, A village elder meets area. with people from the surrounding annual meeting of the Trust Fund for Victims The International Criminal Court building in The Hague in The Court building The International Criminal Archbishop Desmond Tutu and Minister Simone Veil at the second Archbishop Desmond Tutu and Minister Simone Veil at the second Copyright © October 2013 by the War Crimes Research Office A Darfuri rebel fighter sets aside his prosthetic legs. Abeche, Chad, A Darfuri rebel fighter sets aside 34066-war_report 17 Sheet No. 1 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 1 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 2 Side A 10/08/2013 07:52:44 3 1 5 5 5 7 38 13 24 28 33 36 14 14 17 24

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...... CONTENTS CONTENTS ...... Y PRUDENCE ...... Appeals Chamber Decision Overturning Trial Chamber’s Chamber’s Trial Overturning Decision Chamber Appeals Trial Chamber’s Decision Notifying the Parties of Potential Potential of Parties the Notifying Decision Chamber’s Trial 55 Regulation under Recharacterization Interpretation of Regulation 55 Regulation of Interpretation Trial Chamber’s Decision that Proposed Recharacterization Fell Fell Recharacterization Proposed that Decision Chamber’s Trial Document the in Described Circumstances and Beyond Facts ...... Charges the Containing Victims’ Request for a Modification of the Charges and the and Charges the of a Modification for Request Victims’ The Confirmation Process and Document Containing the the Containing and Document Process The Confirmation Charges Trial Chamber’s Notice Pursuant to Regulation 55 Regulation to Pursuant Notice Chamber’s Trial 55 Regulation under Notice Providing Decision Chamber Trial the Trial Upholding Decision Chamber’s The Appeals The Trial Court’s Decision Transmitting Additional Legal and Legal Additional Transmitting Decision The Trial Court’s Material Factual and Severing the Case Case the and Severing a Potential of Parties the Notifying Decision Chamber’s Recharacterization The Confirmation Process and Joint Trial of Germain Katanga Germain of Trial Joint and Process Confirmation The Chui Ngudjolo and Mathieu The Prosecutor v. Thomas Lubanga Dyilo Lubanga v. Thomas The Prosecutor 2. 3. The Prosecutor v. Germain Katanga v. Germain The Prosecutor The Prosecutor v. William Samoei Ruto and Joshua Arap Sang... Joshua Ruto and Samoei v. William The Prosecutor The Prosecutor v. Jean-Pierre Bemba Gombo Bemba v. Jean-Pierre The Prosecutor 1. 1. 2. 2. 3. 4. 1. A. INTRODUCTION B. C. D. RELEVANT JURIS M K C Y EXECUTIVE SUMMAR EXECUTIVE I. II. 34066-war_report 17 Sheet No. 2 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 2 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 2 Side B 10/08/2013 07:52:44 57 43 50 44 40 53 43 M K C Y ......

...... Application to the Katanga Case to the the ICC Before Katanga Application Limiting the Use of Regulation 55 to Exceptional Circumstances Circumstances to Exceptional 55 Regulation of the Use Limiting to “Curing” Approach Tribunal’s Ad Hoc to the by Analogy Indictments Defective The Prosecutor v. Uhuru Muigai Kenyatta Muigai v. Uhuru Prosecutor The Limiting the Use of Regulation 55 to Exceptional Circumstances Circumstances Exceptional to 55 Regulation of Use the Limiting an and Ensure the Accused of the Rights to Safeguard Trial Expeditious 2. Charging Approach to 1. Addressing Efficiency Concerns Through a More Flexible Flexible More a Through Concerns Efficiency Addressing CONCLUSION ANALYSIS AND RECOMMENDATIONS E. A. A. B. III. IV. 34066-war_report 17 Sheet No. 2 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 2 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 3 Side A 10/08/2013 07:52:44

efficient by

– the Trial Chamber has, to defend against the to defend against ed the closing statements in his Bemba the Kenya cases, the Prosecution has Trial Chamber, if the parties are given eed for alternative or cumulative charging.

Katanga, and nt time and facilities

UMMARY Lubanga, S M K XECUTIVE XECUTIVE C Y asked for Regulation 55 to be used to put the accused on notice that be may convictedthey pursuant to a variety of potential modes of not does 55 “backstop” that Regulation the meaning liability, the n eliminate necessarily E 55 of the Regulations that of the Court is a provision Regulation permits a Trial Chamber of the Criminal Court to convict International an accused of othera crime than that with which he was originally by thecharged Prosecution, different or to base its conviction on a than originally charged,mode of liability conditions. subject to certain not be does if it permitted will only the recharacterization particular, In exceed the facts circumstances and described in the charges as confirmed by the Court’s Pre- to respondthe opportunity to the proposed recharacterization, and if the Defense has sufficie legal the “change it may that on notice parties put the stage, some at characterization” of the facts the accused against pursuant to 55. Regulation another In cases two – the two Kenya cases – the Prosecutor has filed the Trialan application Chamber to invoke asking 55, but the ChamberRegulation to rule has onyet the request. oneNotably, of the rationales behind the adoption of Regulation 55 by was that it would render thethe proceedings ICC the need for theobviating to charge Prosecution alternative or cumulative charges at the start of a case. However, as described in litigation amount of detail in this report, a significant has been devoted the to issues surrounding regulation,the Trial both at Chamber level and before the Appeals fact, Chamber. trial proceedingsIn have been suspended for multiple weeks in two cases due to of an invocation 55, and GermainRegulation Katanga has been waiting more than deliver sixteen months since the parties trial for a judgmentto due the contemplated use of Regulation 55 in that case. At the sametime, in Even more significantly, the use of the regulation certain under the Trialscenarios raises serious questions regarding Chamber’s changes. Significantly,changes. in three out of the six cases to reach trial the at date – to ICC 34066-war_report 17 Sheet No. 3 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 3 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 3 Side B 10/08/2013 07:52:44 M K C Y

vel of evidence a charging strategythe from trial and the le e of Regulation e of Regulation 55 to exceptional the accused, particularly if the the accused, particularly tion will result in a significant a significant tion will result in the accused be informed of the to Katanga case describedKatanga in report. this 2 the rights to protect ability of in the out spelled safeguards with the him, even against charges seen in the as regulation, In light of these In concerns the of the regarding rights accused and the inefficiencies brought about the frequent use of by Regulation this 55, the us limiting report recommends circumstances. specifically, More we recommend that the provision not be used when a recharacteriza the transformation of case against ofaccused is not notified recharacterization the potential until after the Defense put on its case has beforethe Chamber. we In addition, ratherrecommend that, than relying the potential on use of Regulation limited 55 down the line to correct for too start, the Prosecution adopt flexible a more approach to charging where necessary the same from the outset. Along lines, we recommend that the Pre-Trial not insist on strictly Chambers narrowing the case theat as the confirmation stage, of standard proof is much lower at confirmation than at presented is significantly reduced. 34066-war_report 17 Sheet No. 3 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 3 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 4 Side A 10/08/2013 07:52:44

3 and and , and , and

the 2

The Prosecutor v. Thomas v. Thomas The Prosecutor

the Trial Chamber has, at the Trial Chamber 1 The Chamber may y and having heard and having the y . for effective preparation or, .

The Prosecutor v. William Samoei Ruto and Joshua Arap Sang Sang Arap Joshua and Ruto Samoei v. William Prosecutor The The Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui Ngudjolo Mathieu & Katanga v. Germain Prosecutor The ,

In its decision under article 74 [relating to the final its decision74 [relating article under In If, at anyduring time the trial, it appears to the If, NTRODUCTION I 1. of the Trial Chamber],judgment the [Trial] Chamber thechange may characterisation legal of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28, without exceeding the facts and circumstances described in the charges and any amendments to the charges. 2. Chamber characterisation that the legal of facts may be the Chambersubject to change, shall notice togive the participants of such a possibilit evidence, shall, at an appropriate of stage the proceedings, thegive participants the opportunityto make oral or written submissions. suspend the hearing to ensuresuspend the hearing that the participants have adequate time and facilities M K Specifically, these cases, discussed in detail below, are: detail below, discussed in cases, these Specifically, are cases These C Y Lubanga Dyilo Lubanga The Prosecutor v. Jean-Pierre Bemba Gombo Jean-Pierre v. The Prosecutor some stage, put the parties on notice that it may “change the legal legal the “change it may that notice on parties put the stage, some characterization” of the facts the accused, against Regulation invoking another two of the Court. 55 of the Regulations cases, In 1 2 I. six cases of the writing, At the time of this initiated at the International of proceedings. trial stage the reached have Court (ICC) Criminal Significantly, in three out these six of cases, Prosecutor has filed Trial the an application Chamber to invoke asking 55, but the ChamberRegulation to rule has onyet the request. 55 provides asRegulation follows: The Prosecutor v. Uhuru Muigai Kenyatta Muigai v. Uhuru Prosecutor The 34066-war_report 17 Sheet No. 4 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 4 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 4 Side B 10/08/2013 07:52:44 M K C Y d in the trials t, ICC-BD/01-01-04, Reg. 55, Reg. t, ICC-BD/01-01-04, 3

and facilities for the gulation 55 has assume gulation

Have adequate time If necessary, beIf to the opportunity given effective preparation of his or her defence in accordance with article 67, paragraph 1(b); and (b) examine again, or have examined a previousagain, new witnesswitness, to call a or to present other evidence the Statuteadmissible under in accordance with article 67, paragraph 1 (e). (a) For the purposes For of sub-regulationChamber 2, the if necessary, it may order a hearing to consider all all to consider order hearing it may a if necessary, matters relevant the proposed to change. 3. shall: accused the that ensure in particular, shall, 26 May 2004. 26 May International Criminal Court, the CourRegulations of 3 before thereport examines to date, this relevant the ICC jurisprudence offerson the provision issued thus far and recommendations as to how should be interpretedthe regulation forward.going Given the significant role that Re 4 adopted adopted 34066-war_report 17 Sheet No. 4 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 4 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 5 Side A 10/08/2013 07:52:44 5 4

Lubanga

these charges could In particular, the In Notifying the Parties of Notifying the Parties 6 , No. ICC-01/04-01/06-1891-tENG, ¶ 5 ¶ ICC-01/04-01/06-1891-tENG, , No. Trial Chamber “pertaining to the ude the crime of against humanity

, Joint, Application of the Legal Specifically, the Specifically, victims’ Legal 5 According to the victims, According URISPRUDENCE URISPRUDENCE 7 J . Regulations of the Court the of Regulations Victims’ Request for a Modification of the Charges and for a Modification of the Charges Victims’ Request Decision the Trial Chamber’s Potential Recharacterization Regulation 55 under

ELEVANT The Prosecutor v. Thomas Lubanga Dyilo v. Thomas The Prosecutor R 1. War Crimes Research Office, Defining Office, theResearch Case AgainstWar Crimes An Accused Beforethe

M K See Dyilo Lubanga v. Thomas Prosecutor 41. Id. ¶ 15, 41. Id. ¶¶ C Y (ICC Trial Chamber I, 22 May 2009). 2009). I, 22 May Trial Chamber (ICC Representatives of the Victims for the Implementation of the Procedure Under the Under Implementation of Procedure the the Victims for of Representatives Regulation 55 of the (November 2009), It? (November Is Responsibility Whose Court: Criminal International http://www.wcl.american.edu/warcrimes/icc/documents/WCRO_Report_on_Definin g_Case_Nov2009.pdf 4 5 6 7 Representatives requested that the Trial Chamber Regulation invoke “an additional55 to apply legal characterization” to the facts and circumstances described in the charging document, which only contained charges of conscripting, enlisting, and usingchildren to participate in armed conflict as a war crime. victims’ application argued the that the Trial Chamber should amend charges incl to Mr. against Lubanga sexual warand the slavery crimes of sexualand slavery cruel and/or inhuman treatment. the issue arose during the the trial course of against Mr. whenLubanga in the participating victims the of Representatives the Legal providedimplementation of the procedure for by [R]egulation 55 of the Court.” of the Regulations II. A. The first case in which the Trial Chamber sought to its power invoke 55 was under Regulation to bethe first case tried before the ICC, thenamely, case against Thomas Dyilo. Lubanga in As described drafteddetail in a 2009 report the War by Crimes Research Office, filed case a joint application with the 34066-war_report 17 Sheet No. 5 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 5 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 5 Side B 10/08/2013 07:52:44

M K

C Y

It 10

, so long without being view of the victims, the victims, view of the majority of Trial Chamber I Significantly, while the victims victims the while Significantly, 8 , Decision Giving, Decision Notice to the Parties

9 because, in the because,

in its final judgment on the guilt or on the guilt in its final judgment onsider adding the victims’ Legal During one stage, described in

During the second stage, accordingDuring to s the parties with the procedural 11 12

by the facts andwas not bound by circumstances

The Chamber went on to advise the then that it parties 13

¶ 27. ¶

¶¶ 27-32. 27-32. Id. ¶¶ Id. Id. Id. See generally id. See generally Dyilo Lubanga v. Thomas See Prosecutor and Participants that the Legal Characterisation of the Facts May Be the Facts Subject to May of the that Legal Participants Characterisation and ICC Court, the of Regulations the 55(2) of Regulation with in Accordance Change 2009). July I, 14 Chamber Trial (ICC 01/04-01/06-2049 had argued thathad argued the proposed charges the facts fell within and circumstances of the confirmed charges, the majorityTrial of the Chamber held that it described in the charges confirmed by the Pre-Trial Chamber. 8 9 10 11 12 13 reached by this conclusion finding that Regulation 55 creates “two distinct stages” at which the Trial Chamber the legalcould change characterization of the facts. 55(1), the changeRegulation Trial the Chamber determined that it may legal characterization of the facts lack of of the accused,guilt so long as the new charges do not exceed the “facts and circumstances described in the charges and any amendment to the charges.” the Chamberthe majority, change may the legal characterization of the facts against accused the theat any time during trial describedlimited to the facts or circumstances in charges the as the Trial Chamber provide 55(2) protections contained in Regulations and (3), such as notice to the parties. In a decision issued 14 JulyIn the same day 2009, that Prosecution the finished presenting its evidence in the case against Mr. as Lubanga confirmed by the Pre-Trial Chamber, that it would c notified the parties proposedRepresentatives’ charges. 6 properly be added under Chamber’s the Trial authority to “change the legal characterisation facts” of the the proposed additional charges fell the context within additional charges the proposed and of the facts circumstances described in the charges Mr.against as Lubanga confirmed by the Pre-Trial Chamber. 34066-war_report 17 Sheet No. 5 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 5 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 6 Side A 10/08/2013 07:52:44

Id.

e leave to appealgranted the , Decision adjourning the evidence evidence the adjourning , Decision , Clarification and Further Guidance Guidance Further and , Clarification In its submission, the Defense its submission, In characterization pursuant of facts 16 , Decision issuing a second corrigendum to corrigendum a second issuing , Decision ¶ 7. Furthermore, while the the majority while 7. Furthermore, ¶

Id.

the Chamber could recharacterize the

, pursuant to Regulation 55(2), suggesting that 55(2),, suggesting to Regulation pursuant i.e.

Appeals Chamber DecisionAppeals Chamber Overturning Trial Chamber’s Interpretation of Regulation 55 Judge Fulford Judge Fulford from the majority’sdissented decision, 14

15 2.

M K Prosecutor v. Thomas Lubanga Dyilo Lubanga v. Thomas Prosecutor Dyilo Lubanga v. Thomas Prosecutor See The ¶¶ 34-35. In a subsequent “clarification” to the 14 July 2009 decision, the the decision, 2009 14 July the to “clarification” a subsequent In 34-35. Id. ¶¶ C Y Trial Chamber I, 2 October 2009). 2009). I, 2 October Chamber Trial 15 16 first argued that, regardlessfirst argued Regulation of the interpretation, 55 is Both the Defense and the Prosecution wer Chamber’s 14 July 2009 decision. 14 was considering changing the legal creating 55 as of Regulation interpretation majority’s the challenging at whichtwo distinct stages charges. to the second stage, stage, to the second did not considerthe Chamber the itself bound by “facts and circumstances described charges in the and anyamendments the to charges.” in the case and consideration of Regulation 55, ICC-01/04-01/06-2143, ¶ 10 (ICC (ICC 10 ¶ 55, ICC-01/04-01/06-2143, Regulation of consideration and case the in majority of Trialmajority the Chamber seemed to step somewhat back its from holding that it Prosecution’s the in contained circumstances and the facts by bound in no way was Dyilo Lubanga v. Thomas Prosecutor charges. the “Minority opinion on the ‘Decision giving notice to the parties and participants in accordance with to change be subject characterisation the legal facts may that of ICC-01/04 2009,” of 17 July Court’ the of Regulations the 55(2) of Regulation 2009). July I, 31 Chamber Trial (ICC 01/06-2069-Anx-1 to Parties and Participants Relation to in the “Decision Giving Notice to the Parties Be the Facts Subject to May of the that Legal Participants Characterisation and ICC Court,” the of Regulations the of 55(2) Regulation with in Accordance Change the majority 2009). Specifically, I, 27 August Chamber (Trial 01/04-01/06-2093 held that it would only consider adding the charges proposed the by victims – which because charges confirmed the of circumstances the facts and fell within ostensibly on based were treatment inhumane and/or and cruel slavery sexual of allegations the acts committed against child soldiers – as opposed the case open towide throwing to, for example, charges of genocide. in described circumstances and the “facts by it that not bound to state was continued charges” sothe long as it provides parties to notice the the of charges, it added new additionalthat any incorporatedfacts the Trial case by into the Chamber “must in event the during procedural to build come the light a unity, have trial and from any the charges.” in described events of course the with view, of point 34066-war_report 17 Sheet No. 6 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 6 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 6 Side B 10/08/2013 07:52:44

M K

C Y 20

17 July 1998 by the the 1998 by July 17 cable at different nd the rights of the adopted on adopted , Prosecution’s Document in Support Support in Document , Prosecution’s 1 July 2002, U.N. Doc. 2002, July 1 , Defence Appeal against the Decision of against Appeal , Defence Mr of the appeals on Judgment , rily incompatible Rome with the The Appeals Chamber issued its 19 accused, the Appeals Chamber first

with the Rome Statute a with the an argument that was an argument by the made also entered into force The Defense also challenged the Chamber’s 18

17 According Appeals Chamber, to the the term although 21 The Prosecutor v. Thomas Lubanga Dyilo Lubanga v. Thomas Prosecutor The Court, Criminal the International of Statute Rome The Prosecutor v. Thomas Lubanga Dyilo Lubanga v. Thomas Prosecutor The 8-35. Id. ¶¶ Dyilo Lubanga v. Thomas Prosecutor See The Defence, 10 September 2009). 10 September Defence, 2009). 8 December Chamber, 20 21 dismissed the notion that the regulation was dismissed the notion that adopted in violation of Article 52(1) of the Rome Statute, which authorizes the judges to for the adopt regulations arecourt that “necessaryfor its routine functioning.” 17 18 19 decision to read Regulationdecision two stages creating 55 as at which it could recharacterize the facts, submission. Prosecution in its decision on 8 December Trial2009, overturning the Chamber’s 55 creates that Regulation “two distinct proceduresholding for changing legal the characterisation of facts,the appli of (with eachstages the trial respectively subject to separate refusingconditions),” but the provision to find that is “inherently rights Statute or the the Rome incompatible” with of the accused. Defense’s the Regarding in support of the claim that arguments 55 as Regulation a whole is necessa Statute of the and the rights 8 “inherently incompatible” accused to accused a fair trial. Diplomatic Conference of Plenipotentiaries on the Establishment of an Establishment on of the Plenipotentiaries Conference U.N. Diplomatic of International Criminal Court, 52(1). Art. (1998), A/CONF.183/9 14 July 200914 July Decision entitled giving notice to the parties and participants that the in accordance with to change of be subject the facts characterisation may legal 5 (ICC ¶ ICC-01/04-01/06-2112, Court, the of Regulations the 55(2) of Regulation of Appeal againstthe “Decision giving notice to the parties and participants that the in accordance with to change of be subject the facts characterisation may legal suspensive for request urgent and Court” the of Regulations the 55(2) of Regulation 2009). 14 September Prosecutor, of the Office (ICC ICC-01/04-01/06-2120 effect, 14 July I of Trial of Decision Chamber the against Prosecutor the and Dyilo Lubanga 2009 entitled “Decision giving notice to parties the and participants that the legal Regulation accordance in with to change be subject the may of facts characterization Appeals 37 (ICC ¶ ICC-01/04-01/06-2205, Court,” of the Regulations the of 55(2) 34066-war_report 17 Sheet No. 6 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 6 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 7 Side A 10/08/2013 07:52:44

and that as 27 Rome Statute, which,

The Defense argued that any Furthermore,the Chamber 25 22 Because such inconsistent 23 with Article 61(9) of the rent stages of the procedure, and the two The Appeals Chamber also therejected 24 n. 21, Art. 61(9). 61(9). 21, Art. n. supra supra n. 20, ¶ 75. 20, ¶ n. n. 20, ¶ 69 (citing H.-J. Behrens, C. Staker, Article 52 - Regulations of The Appeals Chamber disagreed, holding thatThe Appeals Chamber holding the provision disagreed, supra supra supra supra

M K ¶ 70. 70. Id. ¶ Id. Statute, Rome Prosecutor and the Dyilo Mr Lubanga of appeals the on Judgment , Lubanga 76. Id. ¶ , Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor Prosecutor and the Dyilo Mr Lubanga of appeals the on Judgment , Lubanga C Y jurisprudence would have had “a considerable impactthe day-to on trialsconduct of the day and the efficient use of judicial resources,” the Chamber reasoned, Regulationwas “necessary 55 Court’s for the routine functioning.” 23 24 25 26 27 Defense’s any 55 is, under interpretation, claim that Regulation incompatibleinherently modification to the charges amounted to an amendment, and thus be could only achieved through the process described in Article 61(9). of the Rome Statute and 55 “address differentRegulation powers of different entities at diffe provisions are therefore incompatible,”not inherently 22 “routine function” is not function” is not “routine anydefined in of the documents governing has been it describedthe as a ICC, “broad concept” concern that may of ‘practice“matters and procedure.’” whether judges the question of found that have the to authority recharacterize the charges was a question that was “left for the ofdetermination by by the Court” virtue judges the fact of that the Rules of Procedure and Evidence are on the silent issue, and that judges the matter, settling couldwithout a regulation have produced “inconsistent jurisprudence.” against the Decision Trial of Chamber I 2009 14 of July entitled “Decision giving the facts characterization the participants of legal thatmay parties and to the notice the of Regulations the 55(2) of Regulation accordance in with to change subject be Court,” against the Decision Trial of Chamber I 2009 14 of July entitled “Decision giving the facts characterization the participants of legal thatmay parties and to the notice the of Regulations the 55(2) of Regulation accordance in with to change be subject Court,” as noted above, describes by the process which the Prosecutor may amend the charges after confirmation. the Court, in: O. Triffterer (ed.) Commentary on the Rome Statute of the of Statute the Rome on (ed.) Commentary O. Triffterer Court, in: the International Criminal Court (2d edition, 2008)). 34066-war_report 17 Sheet No. 7 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 7 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 7 Side B 10/08/2013 07:52:44 M K C Y

trial phase that

quittals that are merely irmed in the pre- allenge to the Trial Chamber’s Lastly, the Appeals Lastly, Chamber rejected 29 t Regulation 55 is necessarily inconsistent t Regulation with Article 61(9) of the Statute, which which provides that the judgment of the Trial 31 n. 21, Art. 74(2). 74(2). 21, Art. n. supra supra

It also found that the Chamber’s interpretationIt of the In addition, the determined Appeals Chamber that the In 32

28 30 After the charges are confirmed and before the trial has the permission with the begun, Prosecutor may, of the Pre-Trial Chamberafter and notice to the accused, amend the charges. theIf Prosecutor seeks to add oradditional charges to substitute more serious charges, ¶¶ 77, 94. 77, 94. Id. ¶¶ 77. Id. ¶ 82-87. Id. ¶¶ Id. Statute, Rome 28 29 30 31 32 tum out to be incorrect, intum out to be incorrect, based particular on the presentedevidence at the trial” and that to the would be contrary “[t]his aim of the Statute impunity.’” to ‘put an end to afforded towith the rights the Defense under Article 67(1) of the the rightsStatute, including of an accused to be notified of the charges to right against him, the prepare a defense, and the to be tried right that such although it agreed without undue delay, could be rights implicated depending on the manner in which Regulation 55 is applied. Chamber at the end of exceed the trial “shall not the facts and circumstances described in the charges and anyamendments to the charges.” Statute was inconsistent provides as follows: the Defense’s tha argument the to Defense’sWith regard ch Defense’s interpretation the“bears risk of ac qualificationsthe result of legal conf interpretation of the regulation, the Appeals Chamber agreed that the lower court’s approach to 55 conflicted Regulation with Article 74(2) of the Rome Statute, 10 10 as the Trial Chamberlong adding was not new facts circumstances, or the role usurping it was not to investigate of the Prosecutor crimes the jurisdiction of under the Court select the and charges against suspects. 34066-war_report 17 Sheet No. 7 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 7 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 8 Side A 10/08/2013 07:52:44

11 11

The Appeals

ent of the trial,ent of the the 33 ] is tasked with the with ] is tasked 35 r the jurisdiction of the

Regulation 55 conflicted with this Regulation

] proffers charges against suspects. To give n. 21, Art. 54(1). 54(1). 21, Art. n. 36

supra supra n. 20, ¶ 37. 20, ¶ n.

investigation of crimes unde of crimes investigation Court and who, pursuant 61 (1) article to and (3) of the Statute,[ Prosecutor may, with the permission of the Trial the permission with may, Prosecutor withdraw the Chamber, charges. a hearing under this article confirm those charges to held. After commencemmust be [T]he of new incorporation facts and circumstances into trial of the the subject matter alter the would fundamental scope of the trial. The Appeals Chamber who, pursuantobserves that it is the Prosecutor to article 54 (1) of the Statute,[ Subject to the provisions of paragraph 2, within a reasonable a reasonable 2, within of paragraph provisions to the 1. Subject before appearance or voluntary surrender person's after the time supra supra

M K Article 61Article the of Rome Statute provides, in part: , Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor Prosecutor and the Dyilo Mr Lubanga of appeals the on Judgment , Lubanga 94. Id. ¶ 54(1)Article Rome the Statute of states: Prosecutor“The shall: (a) order to In C Y establish the truth, extend the investigation relevant all to to cover evidence facts and an assessment of responsibilitywhether there is criminal under this Statute, and, in Take equally; (b) circumstances exonerating incriminating and investigate so, doing crimes of and prosecution investigation effective the to ensure measures appropriate the jurisdictionwithin the of doingCourt, in and so, respect interests the and in defined as age,gender including and witnesses, of victims circumstances personal in the crime, of the account nature take into and health, 3, and article 7, paragraph against or violence violence gender sexual violence, involves it particular where respect and of rights children; (c) Fully persons the arising this Statute.” under Rome Statute, 36 33 34 35 The Trial Chamber’s reading of reading The Trial Chamber’s provision, according to the Appeals Chamber, because “new facts and circumstances not described charges in the only may be added under the procedure of [A]rticle 61 (9) of the Statute.” Chamber elaborated: against the Decision Trial of Chamber I 2009 14 of July entitled “Decision giving the facts characterization the participants of legal thatmay parties and to the notice the of Regulations the 55(2) of Regulation accordance in with to change be subject Court,” 34066-war_report 17 Sheet No. 8 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 8 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 8 Side B 10/08/2013 07:52:44 M K

C Y

37 proprio motu proprio

Waived his or her right to be present; or to right be present; or her his Waived containing document the a copy of with Be provided Fled or cannot be found and all reasonable steps have have steps all reasonable and be found Fled or cannot Prosecutor the on which evidence the of Be informed , ¶ 94. , ¶ (a) (b) Court the before or her appearance his to secure taken been to a and that hearing of the charges person the to inform and confirm those charges be will held. (a) charges onthe Prosecutorwhich the intends to the bring person to trial; and (b) intends to rely at the hearing. n. 20 The Pre-Trial Chamber may, upon request of the Prosecutor or Prosecutor the of request upon may, Chamber The Pre-Trial the Court, the Pre-Trial Chamber hold shall a hearing to confirm the Trial Chamber the powerthe Trial extend to of the scope to factsa trial and circumstances not alleged by the Prosecutor would be contrary to the the Statute.” of powers under distribution the charges onthe Prosecutor the which intends trial. The to seek the and Prosecutor the of presence the in be held shall hearing counsel. or her as his as well charged, person 2. on own its motion, hold a hearing in the absence of the person to intends the Prosecutor the charges on which to confirm charged has: the person trial when seek where counsel the be by shall represented the person case, that In Pre-Trial Chamber determinesit is in the that interests of justice. Within a reasonable time before the hearing, the person shall: person the hearing, the before time a reasonable 3. Within supra supra

, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor Prosecutor and the Dyilo Mr Lubanga of appeals the on Judgment , Lubanga 37 Finally, because the TrialFinally, Chamber’s interpretation of Regulation 55 55(1), to Chamber, if actingwould allow the Regulation pursuant to recharacterize the charges against the accused without the providing accused notice or anwith to respond, as the opportunity so long 12 12 against the Decision Trial of Chamber I 2009 14 of July entitled “Decision giving the facts characterization the participants of legal thatmay parties and to the notice the of Regulations the 55(2) of Regulation accordance in with to change be subject Court,” Art. 61. Id. Art. 34066-war_report 17 Sheet No. 8 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 8 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 9 Side A 10/08/2013 07:52:44

13 13

The Appeals Chamber The Appeals 39 38 amber held that the decision , Decision on the the on , Decision Representatives’Legal

n. 21, Art. 21(3). 21, Art. n. tion to facts andtion to facts circumstances

supra supra

tionally recognized human rights and thus tionally rights recognized human

40 Trial Chamber’s Decision that Proposed Trial Chamber’s Decision that Proposed Recharacterization Fell Facts and Beyond Circumstances Described in the Document Containing the Charges n. 20, ¶ 99. ¶ 20, n. 3. supra supra

M K , Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor Prosecutor and the Dyilo Mr Lubanga of appeals the on Judgment , Lubanga 100. Id. ¶ Dyilo Lubanga v. Thomas Prosecutor The ¶ 98. Article 21(3) Statute Rome Article 98. the Id. ¶ of states: “The application and C Y 39 40 41 violated Article 21(3) ofviolated the Rome Statute. 38 described in the described charges, Appeals Ch the with interna was inconsistent the Appeals Chamber’sFollowing the Trial 55, decision on Regulation the charges againstChamber determined that Mr. it could not modify because Representatives by victims’ Legal the requested as Lubanga the “proposed modifications would infringe the Appeals Chamber’s of the Court.” interpretation of Regulation 55 of the Regulations Chamber limited the recharacterizaChamber should be noted thatIt Defense Lubanga’s in its argued also Appeals Chamber submission to the that, if the Appeals Chamber 55, the provision of Regulation could neverthelessupheld the validity be usedonly for “lesser included offenses.” declined to addressthe it was beyond this point, as it determined that scope of the issues certified for appeal, that, while stating only “the whattext 55 does is contained in beyond not stipulate, of Regulation 1, what changessubregulation characterisation in the legal be may permissible,” the “particular circumstances of the case will have to be taken into account.” against the Decision Trial of Chamber I 2009 14 of July entitled “Decision giving the facts characterization the participants of legal thatmay parties and to the notice the of Regulations the 55(2) of Regulation accordance in with to change be subject Court,” interpretation law of pursuant to [entitled this article “Applicable be Law,”] must internationallyconsistent with rights, andhuman adverse recognized any be without distinction founded ongrounds such as gender…, age, race, colour, language, religion or belief, political or other opinion,national, ethnic or social origin, wealth, birth or other status.” Rome Statute, 34066-war_report 17 Sheet No. 9 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 9 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 9 Side B 10/08/2013 07:52:44

M K

C Y

Lubanga Lubanga On 15 June 44

Specifically, Article

, Judgment pursuant to 46 , Revised Second Amended Amended Second , Revised , Decision Pursuant to Article as a war crime, and pillaging as a

Mr. Bemba was arrested2008 and 23 May which allows a superior to be held criminally 43 The Confirmation Process and Document Containing Process and Document Containing The Confirmation the Charges holding that there were that substantial holding to believe that grounds 45

42 The Prosecutor v. Jean-Pierre Bemba Gombo 1. ¶ 8. 405. ¶ The Prosecutor v. Jean-Pierre Bemba Gombo v. Jean-Pierre The Prosecutor Id. Bemba Gombo v. Jean-Pierre The Prosecutor Id. See generally The Prosecutor v. Thomas Lubanga Dyilo Lubanga v. Thomas Prosecutor The See generally war crime, 2009, Pre-Trial Chamber confirmed chargesII against for Mr. Bemba the crimes of murder as a humanity crime against a warand as crime, rape as a crime humanity and against 43 44 45 46 the accused bore forresponsibility such crimesArticle 28(a) under of the Rome Statute, responsible for the conduct of his subordinates. 28(a) states: 2009 8 December on Decision Chamber’s Appeals the concerning Submissions Joint (ICC 37 ¶ ICC-01/04-01/06-2223, Court, the of Regulations the 55 of Regulation on 2010). January I, 8 Chamber Trial 42 surrendered to the International Criminal Court 3 July 2008 for July surrendered to the crimes Court 3 Criminal International Republic. African Central in the committed allegedly B. The next case in which questions the use regarding 55 of Regulation the Trialby Chamber arose was the case against Jean-Pierre Bemba presidentGombo, the alleged and commander-in-chief of the Mouvement de libération (Movement du Congo for of the Liberation or MLC). Congo, 14 14 Hence, the Trial Chamber’s March in the judgment 2012 case concerns those only which the accusedcrimes with was originally charged. Document Containing the Charges, ICC-01/05-01/08-856-AnxA-Red ¶ 5 (ICC The 5 (ICC ¶ ICC-01/05-01/08-856-AnxA-Red Charges, the Containing Document 2010). 18 August Prosecutor, the of Office Article 74 of the Statute, ICC-01/04-01/06-2842 (ICC Trial Chamber, 14 March 14 March Chamber, Trial (ICC ICC-01/04-01/06-2842 Statute, the of 74 Article 2012). 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean- the Against of Prosecutor on the Statute Charges Rome the of (b) and 61(7)(a) June II, 15 Chamber Pre-Trial (ICC ICC-01/05-01/08-424 Gombo, Bemba Pierre 2009). 34066-war_report 17 Sheet No. 9 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 9 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 10 Side A 10/08/2013 07:52:44 15 15

48 n. 45, ¶ 407 ¶ 45, n. supra

or person either knew or person either r or person failed to ts that must be fulfilled to prove

ges against Mr.ges against Pre- Bemba, the

47 n. 21, Art 28(a). Art 21, n. supra supra That military commander(i) That military to the or, owing circumstances should at the time, the forceshave known that or were committing such crimes; and about to commit commande (ii) That military take all necessaryand reasonable measures within his or her power to prevent or repress their the the matter to commission or to submit and for investigation authorities competent prosecution. , Decision Pursuant, Decision 61(7)(a) to Article Statute the Rome of and (b) on the A military commander or person effectively acting as a as acting effectively or person commander A military commander shallmilitary be criminally responsible for committed of the Court the jurisdiction crimes within forcesby under his or her effective command and control, or effective authority and control as the case be, as a may result of his or her failure to exercise control properly over such forces, where:

The suspect must have effective command and control, or effective authority and authority effective or control, and command effective have must The suspect M K Rome Statute, Statute, Rome Bemba C Y In its decision confirming the its decision confirming char In Trial Chamber outlined the elemen of Article within 28(a). criminal responsibility the meaning Regarding the knowledge requirement, the Chamber explained that 47 48 Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, Jean-Pierre Bemba Against Prosecutor the of Charges (requiring the following elements for responsibility under Article28(a), The “(a) as commander acting suspect or besuch; a person either effectively a must military (b) set crimes the of or more committed one who (subordinates) forces the over control in articlesout 6 to 8 the Statute; of committed (c) The the crimes forces by over properly control to exercise failure suspect's the from resulted (subordinates) at the should time, circumstances to the or, owing knew either (d) The suspect them; one to commit committing or about (subordinates) were the that forces known have The suspect Statute; (e) the and 6 to 8 of the crimes in article of set out or more to power or her his within measures and reasonable necessary the to take failed to the suchmatter crime(s) to submit of or failed commission or repress the prevent the competent authorities for investigation and prosecution”). 34066-war_report 17 Sheet No. 10 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 10 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 10 Side B 10/08/2013 07:52:44

M K

C Y

knew

The first The first

, Second Amended Document Document Amended , Second

Interestingly, in its amended DCC, the in its amended Interestingly, As a result, the Chamber refrainedAs a result, the Chamber from , whereas the second by term, identified

51 . 21, Art. 21(3). 21(3). Art. 21, .

supra supra Turning to the evidence before it on the issue of it on the issue before to the evidence Turning actual knowledge

50 52 ¶¶ 478–89. 478–89. ¶¶ ¶ 429. 429. ¶ 429, 432. ¶¶ facts: following on the particularly (relying added) (emphasis 447, 478–89 ¶¶

Id. 61(3)Article Rome the of Statute provides that, “[w]ithin a reasonable before time Bemba Gombo v. Jean-Pierre The Prosecutor Id. Id. Id. standard, which is identified by the term by which is identified standard, “knew,” requires the existence of the term “should have known,”the term requires only the superior was that of to illegal his subordinates’ acquire knowledge in failing “negligent conduct.” 52 53 54 49 50 51 analyzing have the “should known” standard in relation to the facts of the case. the confirmationFollowing decision, the Prosecution to the submitted Trial Chamber a revised the (DCC),Document Containing Charges against case on which the charges confirmed the to reflect intended would to trial. Mr. Bemba go knowledge, the Chamber there was found that “sufficient evidence to Mr Jean to believe grounds establish substantial Pierre Bemba or were troops were committing aboutthat the MLC to commit the humanitycrimes against andof murder rape and the war crimes of murder, rape and pillaging.” 16 16 encompassesArticle 28(a)(i) of knowledge. two standards Containing the Charges, ICC-01/05-01/08-593-Anx-Red (ICC The Office of the the of The Office (ICC ICC-01/05-01/08-593-Anx-Red Charges, the Containing the [confirmation] hearing, the [accused] shall: (a) Be provided with a copy of the the of a copy with (a) Be provided the shall: [accused] hearing, [confirmation] the document containing the charges on which the Prosecutor intends to bring the person to Statute, Rome trial…” “the widespread nature of the of “the actswidespreadillegal nature committed the by MLC troops; length the to visit Bemba’s committed; Mr Jean-Pierre these acts were over period which the of his forces in Bangui in early November 2002 after the commission of crimes in late in crimes of commission the 2002 after November in early Bangui in forces his October 2002; his suspension of commanders two after his visit; his statement about his cautioning forces reportingexistence effective future the an misconduct; of system at Mr Jean-Pierre Bemba’s disposal; his ability to use existing the means of communication to contact the commanders in the field during the entire period of the during the in field to contact the commanders communication intervention; that the fact he was informed by his political circle and intelligence by MLC rape the of pillaging commission of and his adviser murder, at least forces 3 months before the complete hiswithdrawal troops; of and the existence of media broadcasts the entire reported intervention throughout which period of the about commission by rapes of pillaging and MLC murder, forces”). 34066-war_report 17 Sheet No. 10 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 10 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 11 Side A 10/08/2013 07:52:44

17 17 57

n. 43, n.

and

59 supra supra

The Defense 60 , Defence Submission on the Submission Trial on , Defence , Decision on the defence application application defence the on , Decision that his MLC troops were that his MLC The Trial Chamber agreed, , Requête aux fins d’obtenir une une d’obtenir fins aux , Requête the scope of the alleged However, on 21 September 56 58 61 knew

mmit crimes within the jurisdiction of the mmit crimes within

ICC-01/05-01/08-694 (ICC Equipe de la Défense, 12 Février 12 Février Défense, de la Equipe (ICC ICC-01/05-01/08-694

mens rea element.

Trial Chamber’s Notice Pursuant to Regulation 55 Trial Chamber’s Notice Pursuant to Regulation 55 In response, the DefenseIn requested that the Trial Chamber , Revised Second Amended Document Containing the Charges, 2. Mr. Bemba’s trial commenced on 22 November 2010, 55 ¶¶ 78–100 M K Bemba Bemba Gombo v. Jean-Pierre The Prosecutor Id. Id. ¶ 8. Id. Bemba Gombo c. Jean-Pierre Le Prosecutor Bemba Gombo v. Jean-Pierre The Prosecutor C Y ¶ 78 (emphasis added). 78 (emphasis ¶ (ICC Trial Chamber III, 20 July 2010). July III, 20 Trial Chamber (ICC 2012 – three after theyears charges were confirmed and almost two notice gave Chamber Trial the – trial the of start the after years legal characterization the modify 55 it may that to Regulation pursuant 58 59 60 61 committing or were aboutcommitting to co andthe Court rape, looting murder.” the Prosecution’s case closed on 20 March 2012. opened its case on 14 August 2012. 2009). November 04 Prosecutor, 55 56 57 and the Prosecution submittedand the Prosecution a second revised alleged DCC, which the MLC troops to the that “upon deploying CAR for the 2002 only operation, [Bemba] 2003 military Prosecution alleged the alleged Prosecution accused either “knew or should known” have about to or troops were committing the charged commit that the MLC crimes. Prosecution’sreject the revised that arguing DCC, accurately it did not reflect the charges confirmedthe Pre-Trial by Chamber that the and to broaden attempting Prosecution was responsibility byadding the Article 28(a)(i)responsibility standard of “should have known” under the Chamber’s Notification under Regulation 55(2) of the Regulations of the Court, Court, the of Regulations the 55(2) of Regulation under Notification Chamber’s 2012). 18 October Defence, 6 (ICC ¶ ICC-01/05-01/08-2365-Red, for corrections to the Document Containing the Charges and for the prosecution to prosecution the and for Charges the Containing Document to the corrections for ICC-01/05-01/08-836 Charges, the Containing Document Amended a Second file 2010). 2010). Décision ordonnant la correction et le dépôt du Second Document Amendé Amendé Document Second et le dépôt du correction la ordonnant Décision Contenant les Charges, 34066-war_report 17 Sheet No. 11 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 11 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 11 Side B 10/08/2013 07:52:44

M K

C Y The

forces 62 (ii) during 66

The Chamber also 63

should have known should have , Prosecution’s Submissions on , Decision giving notice to the to the notice giving , Decision e prejudice ensuring thatby the heard all of the evidence in the decide whether to recharacterize charged under Article 28(a). Specifically, the Prosecution argued: and (iii) there was a “substantial 65 the confirmation of charges; 67 64

rties observations assubmit to the “procedural The Prosecution’s also emphasized argument that even if 68 ¶ 18. ¶

Id. ¶ 4. Id. ¶ 6. Bemba Gombo v. Jean-Pierre See The Prosecutor 15. Id. ¶ Id. 20. Id. ¶ The Prosecutor v. Jean-Pierre Bemba Gombo v. Jean-Pierre The Prosecutor Prosecutor, 8 October 2012). 2012). 8 October Prosecutor, (i) the proposed recharacterization departure is not a drastic from the in identified mode of liability overlap in the types of evidence used to prove known and should have known.” 63 64 65 66 67 68 the presentation of its case,produced the Prosecution evidence that information the ongoing crimes was widespreadindicating about and available to the accused; weresome prejudice to occur, “Regulation 55(3) authorizes the Chamber to take steps to th ameliorate Defense has adequate time and facilities to respond to the change and to recall the opportunity witnesses or present new witnesses or 62 In response, the ProsecutionIn that it did not filed a submission stating recharacterizationobject to the proposed and that, in its opinion, the possible recharacterization of the to at this stage trial is not likely cause prejudice to the accused. under his effectiveunder his to or were about committed command and control he was crimes with which commit Chamber made thatclear would not it the chargesit had in this manner until parequested that the impact” of the notification. 18 18 of the factsconsider whether to the accused of a parties the of the possibility notifying that merely and it was case, recharacterization, 55(2). pursuant to Regulation the Procedural of Trial Impact Chamber’s Notification pursuant to Regulation 55(2) the of The Office (ICC ICC-01/05-01/08-2334 Court, the of Regulations the of parties and participant that the legal characterisation of the thebe of subject characterisation to that facts legal participant may parties and ICC Court, the of Regulations the 55(2) of Regulation accordance in with change 2012). September III, 21 Chamber Trial (ICC 5 ¶ 01/05-01/08-2324, 34066-war_report 17 Sheet No. 11 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 11 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 12 Side A 10/08/2013 07:52:44

19 19

Citing jurisprudence Citing n. 59, ¶ 10. 59, ¶ n. n. 59, 13 Prosecutor ¶ (citing 72 including the right under the right including supra supra

71 l cases with a clear and timely

d, its right to “prompt” notification of First, the Defense assertedthe that 70

n. 21, Art. 67(1)(a). 67(1)(a). 21, Art. n. Next, the Defense argued that the recharacterization supra supra In its opinion, “[b]eing its opinion, adapt forced to continuously to a In 76 69 74 Defence SubmissionDefence Trial the on Chamber’s Notification under , Defence Submission, Defence Trial the on Chamber’s Notification under ¶¶ 12–26. 12–26. ¶¶ ¶ 14. 14. ¶ M K Id. Statute, Rome Bemba Id. 14. Id. ¶ 16. Id. ¶ Id. Bemba, C Y from the CriminalInternational Tribunal for the former Yugoslavia Defense the (ICTY), asserted that the rationale behind Article 67(1)(a) is to “provide defendants in crimina understanding of the charges to enable preparation equality.” in full 71 72 73 74 75 76 would violate Mr. Bemba’s right to equality of to rightwould violate Mr. Bemba’s arms to equality and his right 69 70 proposed recharacterization would violate the accused’s rights afforded by Article 67(1) of the Statute, The right to notice of the charges the accusedagainst relates also to the directly right according to be tried without undue delay, to the Defense. of liabilitychanging theory render these would rights illusory.” Furthermore, the Defense argue the charges violated was being the by proposed recharacterization because, “[e]ven of thestage this late at process, Mr. Bemba has received no notice of the facts’‘material that would support an allegation that he ‘should have known’ that crimes were being committed or were about those under his by to be committed allegedly command.” evidence.” its part, the DefenseFor the proposed objected to recharacterization, number of forth a the its position that to support arguments putting Chamber’s proposal “would unfairness and actual result in manifest accused…”prejudice to the Article 67(1)(a) to be informed promptly nature, and in detail of the cause, and content of the charges him. against Regulation 55(2) of the Regulations of the Court, Court, the of Regulations the 55(2) of Regulation Regulation 55(2) of the Regulations of the Court, Court, the of Regulations the 55(2) of Regulation (“It 122 para. 2001, 23 October Judgement, No. IT-95-16-A, Case al. et Kupreskic v. goes to the the heart of substantial safeguards that an indictment is intended to to he has the case meet.”)). of him namely, accused, to inform to an furnish 34066-war_report 17 Sheet No. 12 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 12 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 12 Side B 10/08/2013 07:52:44 M K 79 C Y

Next, the Defense 78 a trial chamber takes

case; the that ber that Mr. Bemba had been in ded to present evidence d require the Defence be given a 77 mba “knew” of the crimes with case and the evidence relevant to it y of liability. of y ilities to prepareilities to a defense, explaining: impartiality, arguing “[w]here arguing impartiality, Mr Bemba was charged the of liability; with one theory alternative now proposed was rejected by the Chamber competent to set the framework of charges; Defence preparations were made on that basis; the Trial Chamber heard that Defence investigated and deci and let the Prosecution proceed and close its case on that basis; like the Defence (and Prosecutor), the Chamber asked questions based on which he was charged. No such effort was made in the by Pre-Trial rejected – allegation to the relation Chamber – that he “should have known” of these crimes. the Defence Given that case is already well the Defenceunderway, has nor the neither the time resources to investigate and prepare to refute an alternative theor The Defence has investigated,strategy, a formulated and prepared and presented evidence in response to the Be allegation that Mr. ¶ 42. ¶ ¶¶ 28-29. 28-29. Id. ¶¶ Id. 36. Id. ¶ 77 78 79 raised the issue of the DefenseLastly, made a general argument regarding the fundamental fairness of the trial, stating: The Defense also Chamreminded the detention for four and a half and argued thatyears, to an amendment the charges a at such “late stage woul ofover the responsibility prosecuting the case or where an appearance thereof is created, the guarantee an impartial of tribunal is violated.” meaningful period of time to investigat[e] prepare”and for the new allegation, which would further the delay proceedings, thereby to be tried without undue delay. his right violating 20 20 time andadequate fac 34066-war_report 17 Sheet No. 12 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 12 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 13 Side A 10/08/2013 07:52:44

21 21 81

The Defense requested 80 nd to recall, and the nd to recall, and witnesses it would intend to 83 , Defence further submissions on the the on submissions further , Defence , Decision requesting the defence to defence the requesting , Decision case. to); the witnesses whichto); the witnesses it

that eeded for further investigations would

further investigations and preparations.

case, and other; the Defenceno never 84 Further, the Defense argued that the Chamber’s that 82

now intends to call have to call have now intends are been interviewedand they being called in relation to relevant to relevant prepared for or sought alternative to meet an of theory (nor was it required liability

¶¶ 32–33. 32–33. ¶¶ 34. ¶ M K The Prosecutor v. Jean-Pierre Bemba Gombo v. Jean-Pierre The Prosecutor Id. Id. ¶ 43(emphasisId. ¶ in original). Bemba Gombo v. Jean-Pierre The Prosecutor C Y ¶ 11–31 (ICC Trial Chamber III, 19 November 2012). 2012). November III, 19 Chamber Trial 11–31 (ICC ¶ 82 83 84 recall and the time n envisaged require the Defense to reveal its strategy. that the Chamber “provide the accused with precise details of the material facts and circumstances” from the confirmation upon decision forwhich it intends to rely the proposed recharacterizations, and “allow the Defense an opportunity to expand its response to the on Chamber’s Request.” 80 81 requests for more detail regarding which requests for more detail On 19 November 2012, theOn 19 November rendered Chamber a decision responding claim to the Defense’s only need additional time to it would that investigate and prepare for the potential recharacterization, specifically requesting that the Defense provide more information in relation to witnesses it would inte which Prosecution envisaged time needed for Defenseresponse, the filed that it was unable to a submission asserting properlyto the Chamber’s respond request notice of the without material facts and relevant underlying circumstances the proposed recharacterization. notification Regulation under 55(2) Regulations of the of the Court Motion and for charge, amended proposed the circumstances underlying and facts of material notice the that (arguing 2012) 30 November Defence, (ICC ICC-01-05/01-08-2451-Red provide further information on the procedural impact of the Chamber’s notification the Chamber’s of on impact procedural information the further provide ICC-01/05-01/08-2419, Court, of the Regulations the 55(2) of Regulation to pursuant accused could not meaningfully respond to the Chamber’s request without of notice request without Chamber’s to the respond not meaningfully could accused and re-characterization proposed the circumstances underlying and facts the material strategy). to reveal its Defense the require request would the Chamber’s that 34066-war_report 17 Sheet No. 13 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 13 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 13 Side B 10/08/2013 07:52:44

M K

C Y

Furthermore, in

86 and that “the sole factsand that “the sole 85 , Decision on “Defence Request for for Request “Defence on , Decision , Decision on the temporary the on , Decision to Leave Request for , Defence

Shortly thereafter, just a little over one month Shortly 89 The Trial Chamber denied the request, that the finding 88 The Prosecutor v. Jean-Pierre Bemba Gombo v. Jean-Pierre The Prosecutor The Prosecutor v. Jean-Pierre Bemba Gombo v. Jean-Pierre The Prosecutor 11. Id. ¶ 15. Id. ¶ Bemba Gombo v. Jean-Pierre The Prosecutor Chamber III, 13 December 2012). December III, 13 Chamber and factual facts of set a new adding 55 by regulation applied improperly Chamber allegations to the charges, and the improperapplication regulation of 55violated the be presumed to right charges; the of detailed notice and to prompt right accused’s without be tried to right proof; of burden bear the Prosecution the and have innocent of appearance the not lack does a tribunal which by to be tried and right delay; undue impartiality). 89 Defense had not adequately met the requirements necessary for an appeal.interlocutory 85 86 87 88 Following the Chamber’s the Following suspension of temporary the proceedings, the Defense filed a request for leave to appeal the decision, reiterating of themany arguments it raised against the proposed on the Chamber Trial to the submission in its initial recharacterization matter. and circumstances that may be relevant for the envisaged recharacterisation are those upon which the form of knowledge 28(a)(i)contained in Article Statute of the is based in the charges,” referringspecific to paragraphs of the confirmation decision and the most recent Document the Charges. Containing response to the Defense’s that it would need time for further claim and preparation,investigation the Chamber announced that it would temporarily suspend the proceedings for a period of three months. 22 22 addressedThe Chamber the Defense’s in requests Decembera 13 2012 that the reiterating decision, potential only change be “to would facts of the the legal characterisation in the so as to consider modify the alternate of responsibility same mode form of knowledge 28(a)(i)contained in Article of the Statute,” Leave to Appeal the Decision on the Temporary Suspension of the Proceedings Proceedings the of Suspension Temporary Decision the the on to Appeal Leave Procedural Related and Court the of Regulations the of 55(2) Regulation to Pursuant suspension of the proceedings pursuant to Regulation 55(2) of the Regulations of the of the the Regulations 55(2) of Regulation to pursuant proceedings the of suspension Trial 11 (ICC ¶ ICC-01/05-01/08-2480, deadlines, procedural related and Court to Pursuant Proceedings the of Suspension Temporary on the Decision the Appeal Related Deadlines, Court the and Procedural of Regulations the 55(2) of Regulation the (arguing 2012) 18 December Defence, (ICC ICC-01/05-01/08-2483-Red 34066-war_report 17 Sheet No. 13 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 13 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 14 Side A 10/08/2013 07:52:44

23 23

91 In this In 90 With this 96 the Trial in Chamber

Trial Chamber’s judgment In addition, the DefenseIn quested that the trial re , Decision lifting the temporary lifting , Decision , Defence Motion to Vacate Trial Motion , Defence 93 prejudice to the accused.

The Defense explained decision by this 95 92 al course take by

Accordingly, the Defense re 94 . . ¶ 9. 18–22. ¶¶ M K Id. Id. ¶ 24 Id. ¶ 24 Id. Id. Bemba Gombo v. Jean-Pierre The Prosecutor The Prosecutor v. Jean-Pierre Bemba Gombo v. Jean-Pierre The Prosecutor C Y 91 92 93 94 95 96 commence as soon as possible. 2013, the On 6 February Trial Chamber thegranted Defense’s request, of the proceedings. suspension the temporary lifting III, Chamber Trial (ICC 2013, ICC-01/05-01/08-2487-Red 11 January of Deadlines” 2013). 16 January 90 Despite the Defense’scontinued objections, however, it announced request to recall anythat it would not Prosecution or seek to witnesses, evidence. additional any call after the Chamberafter the suspended the proceedings allow to the Defense to pursue further and prepare investigations for the possible recharacterization,Defense the the a motion to vacate filed Chamber’s proceedings.suspension of the on the temporarydecision reiteratedmotion, the Defense position that the proposed its a that and charges initial not of the was part recharacterization in the mode of liability modification in the in unfairnesswould result and actual need that it did not to counter an allegationstating that did not form part of the charges against the accused. explained was that it had determined that any additional investigation of state lack the of resources, lack Defense’s the citing impossible, cooperation of both the RepublicDemocratic and the Central of Congo African Republic, the accused’s detention, and “the ongoing impermissible and prejudici denying the denying Defense an opportunity to appeal its Regulation 55 decision.” suspension of the trial proceedings and addressing additional issues raised in defence defence in raised additional issues addressing and the trial proceedings of suspension ICC-01/05 ICC-01/05-01/0802497, and ICC-01/05-01/08-2490-Red submissions January 2013). January Chamber’s “Decision on the temporary suspension of the proceedings” of 13 of proceedings” the of suspension temporary the on “Decision Chamber’s of Re-Qualification Envisaged the Regarding Notification 2012 and December 28 Defence, (ICC 55, ICC-01/05-01/08-2490-Red Regulation to Pursuant Charges 34066-war_report 17 Sheet No. 14 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 14 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 14 Side B 10/08/2013 07:52:44

M K C Y

, Decision on , Decision

, Decision on the the on , Decision (FRPI) in the (FRPI)

alleged military Shortly thereafter,his Shortly Thus, it is unlikely that Thus, it is unlikely 98 97 er has of raised the possibility accused, Mathieu Chui, Ngudjolo The two accused were charged with (FNI), that worked in (FNI), with the FRPI 99

The Confirmation Process and Joint Trial of Germain Process and Joint Trial of Germain The Confirmation Ngudjolo Chui Katanga and Mathieu Force de Résitance Patriotiqu en Ituri The Prosecutor v. The Prosecutor Germain Katanga 1. ¶ 25. ¶ Id. Chui Ngudjolo Mathieu and Katanga v. Germain Prosecutor The Chui Ngudjolo Mathieu and Katanga v. Germain Prosecutor See The the Joinder Casesthe the of against Katanga Germain and Ngudjolo Mathieu ICC Chui, 2008). I, 10 March Chamber Pre-Trial (ICC 01-04-01-07-257 there will be anyfurther jurispruden ce of the potential on the issue final until the of liability mode Mr. of Bemba’s recharacterization case. in the judgment C. The third case in which the Trial Chamb 55 to recharacterize Regulation using the facts against the accused is the case Germainagainst Katanga. Mr. Katanga, leader of the Democratic Republic of (DRC), was first Congo in Octoberarrested 2007 on charges relating that occurredto an attack of in the village the DRC on 24 in Bogoro 2003. February carrying out the Bogoro attack. for a number of liability war crimes and crimes against humanity pursuant to Article 25(3)(a) of the Rome Statute, which provides that a be held responsibleperson may for a criminally crime if that person “commits such a crime, as whether with an individual or jointly another or through person, another regardless of that otherwhether 2013). 6 February III, Chamber Trial (ICC 01/08-2500 97 98 99 case was joined with that of another who was alleged another rebel to have force,led the Front des nationalistes et intégrationnistes 24 24 the Trial Chamberdecision, reiterated that Regulation 55 does not require a formal decision, clear making that the Chamber invoke will 55 before so long as the Regulation and the parties judgment final have beenparticipants notified of a possible recharacterization and had to be heardthe opportunity on the matter. confirmation of the charges, ICC-01/04-01/07-717, ¶¶ 6, 42 (ICC Pre-Trial Chamber Chamber Pre-Trial (ICC 6, 42 ¶¶ ICC-01/04-01/07-717, charges, of the confirmation 2008). I, 30 September 34066-war_report 17 Sheet No. 14 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 14 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 15 Side A 10/08/2013 07:52:44 25 25

The Decision on the the on Decision 104 tive elements of

The Pre-Trial Chamber

of a crime were identified as: 102 will of those whowill of out the carry 100 lization of the objec n. 98. n. that, in order to find criminal that, in order to him (commission of the crime jointly with with crime jointly of the him (commission

(ii) the organization must be based on supra crimes “through other persons.”crimes “through 107 It thenIt went on to find that there was sufficient n. 21, Art. Art. 25(3)(a). 25(3)(a). Art. 21, Art. n.

On the subject of the accused, of the responsibility 103 and (ii) a coordinated contribution each essential by supra supra 101 105 The objective commission of a crime elements for 106

Note that, with respect to the war crime of using children under the age of age the under children of using to crime respect the war with Note that,

¶ 487. 487. ¶ 524. ¶ 500. ¶ The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Chui, Ngudjolo Mathieu and Katanga Germain v. Prosecutor The Id. Id. Id. 522. Id. ¶ Id. Id. Rome Statute, Statute, Rome M K C Y 101 102 103 104 105 106 107 identified three forms of under principal liability Article 25(3)(a), explaining “a principal a. physicallyis one who: carries out all elements of the offence (commission of the crime individual); b. as an has, together others, with offence control over the reason of theby toessential tasks assigned others); or c. has control over the objective elements of the offence of (commission the crime through another person).” objective elements of joint commission (i) the existence of an agreement or common plan two orbetween more persons; co-perpetrator inresulting the rea crime. the another personthrough were identified as: (i) the principal control has over the organization; 100 evidence to establish substantial grounds to believeevidence to that Germain establish substantial grounds Katanga Ngudjoloand Mathieu Chui were indirect co-perpetrators of “jointly theyArticle 25(3)(a), meaning within the meaning committed” the alleged person is criminallyperson is responsible.” 2008, On 30 September Pre-Trial Chamber on the issued its decision I of the chargesconfirmation Katanga against Mssrs. in the joint case and Ngudjolo. explainedthe Chamber first under Article 25(3)(a),responsibility the accused be a principal must that exercised control over the crime. Confirmation of the Charges, Charges, the of Confirmation participate to actively years fifteen hostilities, two in thethat Chamber the found direct co-perpetrators. acted as 34066-war_report 17 Sheet No. 15 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 15 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 15 Side B 10/08/2013 07:52:44 M K C Y and (iii) 108 Next, it 114 Finally, the suspects suspects the Finally,

111 suspects must: be

ances enabling them to exercise e subjective elements of the crimes In addition, the Chamber pointed In In addition, indirect co-perpetrationIn their plan will result in the common

realization of the objective elements 116 110 112 acts in the ordinarycourse of events; , the Chambermens rea clearmade that, and that Mathieu Ngudjolo and that Mathieu Ngudjolo Chui had control

113 case, the Chamber found, first, that there was In terms of In

109

each providing its leaders with an extensive of supply 115 ¶ 511. 511. ¶ 515. ¶ Id. Id. 527. Id. ¶ 533-34. Id. ¶¶ 538. Id. ¶ 540. Id. ¶ 541. Id. ¶ 543-44. Id. ¶¶ 546. Id. ¶ out that the soldiers of both organizations wereout that the soldiers of both organizations subjected to a young, 108 109 110 111 112 113 114 115 116 must be aware of the “factual circumstances enabling exercise them to joint control over the crimecontrol over the or joint commission of the crime through another person.” fromover the early OctoberFNI 2006.2003 through established that the FRPI and FNI were hierarchically organized groups, interchangeable soldiers, “ensur[ing] that the orders by the given commanders,highest if not one complied with by w[ould]soldier, be anothercomplied with by one.” Applying the conceptApplying of indirect co-perpetration facts of the to the Ngudjolo Katanga & sufficient evidence to establish to believe that, substantial grounds from the beginning of 2003 late 2004, through Germain Katanga had control over the FRPI, requires, according to the Chamber, that the requires, according awaremutually that implementing realization of the objective elements of the crime; undertake such specificactivities with the the about intent to bring elements objective of the crime, or be aware that the will be a consequence of their and be aware of factual the circumst control over the another crime through person. 26 26 hierarchical relationsbetween superior subordinates; and out th suspects must “carry first, the are with which they charged...” the execution crimes of the secured are by automatic almost compliance. 34066-war_report 17 Sheet No. 15 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 15 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 16 Side A 10/08/2013 07:52:44

27 27 “by

118 123 Finally, the Finally,

124

Next, found Chamber the

The Chamber also found also found The Chamber 121 s were aware of the factual 117 their common plan would result in through theirthrough respective sks in the implementation of the

Importantly, the Chamber stressed that “FRPIImportantly, Additionally, for Additionally, the attack village, on Bogoro and that they were mutually aware and mutually and aware mutually were they that and The implementation of this common plan, “in the of this common plan, “in the The implementation 122 120 125

119 ¶ 547. 547. Id. ¶ 548. Id. ¶ 549. Id. ¶ 550-51. Id. ¶¶ 553. Id. ¶ 555. Id. ¶ 560. Id. ¶ Id. 562-63. Id. ¶¶ M K C Y common plan.” 117 118 119 120 121 122 123 124 125 “substantial grounds to believe that Germain grounds “substantial Katanga and Mathieu Chui agreed onNgudjolo a common plan to ‘wipe out’ Bogoro” that both Messrs. Katanga “played and Ngudjolo an overall coordinating role in the implementation of the common plan” and “personally performed other ta Thus, the cooperation of KatangaMessrs. and Ngudjolo, as the commanders of“highest and combatants,”the Ngiti Lendu was necessary for the implementation of the common plan. Chamber that was satisfied the suspect accepted that the implementation of ordinary courseordinary of of events, result … would inevitably in the pillaging village… andthe Bogoro or sexual in the rape of civilian enslavement women there.” Messrs. Katanga and Ngudjolo upon the “agreed use of children under of the age fifteen to activelyyears participate,” including those children acting as their own bodyguards. only orders issued bysoldiers would obey commandersFRPI and that, only orders issued soldiers would FNI obey similarly, byFNI commanders,” as the were organized groups along ethnic lines. circumstances enabling them to exercise joint control over the crimes or joint control over the crimes organizations, “brutal military training regime,” and had allegiance to the leaders of leaders to the had allegiance and regime,” training military “brutal and thus their ethnic groups, were likely to complythe orderswith of these leaders “almost automatically.” the and directing attack killing the civilian population, against murdering the predominately Hema population and their destroying properties.” 34066-war_report 17 Sheet No. 16 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 16 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 16 Side B 10/08/2013 07:52:44

M K

C Y

, Decision , Decision , Decision on the the on , Decision

It also stated that, “[a]sIt 132 despite his right to remain despite his right

130 128 The following month, in The following

, Judgment pursuant, Judgment to article 74 the of

131 Notably, Notably, Germain Katanga took 127 129 126

, Decision on the implementation of regulation 55 of the the 55 of of the implementation regulation on Decision , n. 21, Art. 67(1)(g). 67(1)(g). 21, Art. n. Trial Chamber Decision Providing Notice under Providing Notice under Trial Chamber Decision

Regulation 55 and SeveringRegulation 55 and the Case supra supra

2. n.127, ¶ 6. ¶ n.127, Katanga and Ngudjolo Katanga Rome Statute, Statute, Rome Id. ¶ 9. Chui Ngudjolo v. Mathieu Prosecutor The ¶¶ 564-72. 564-72. Id. ¶¶ Chui Ngudjolo Mathieu and Katanga Germain v. Prosecutor The Chui Ngudjolo Mathieu and Katanga v. Germain Prosecutor See The November 2012). November on the implementation of regulation 55 of the Regulations of the Court and severing severing and Court of the Regulations the 55 of regulation of implementation the on den Van Judge of Opinion Dissenting persons, the Accused against charges the II, 21 Chamber Trial 45 (ICC ¶ ICC-01/04-01/07-3319-tENG/FRA, Wyngaert, 129 130 131 132 this step does not concern the Accused the decision Mathieu Ngudjolo, also severs the charges him.” against December 2012, the Trial Chamber issued a judgment concerning Mr. alone, him of all charges. Ngudjolo acquitting the potential recharacterizationRegarding of facts Mr. against 126 127 128 silent under the Rome Statute. silent under the Rome against of trial in the joint case Almost sixclosing months after the Mssrs. Katanga and Ngudjolo, a majority of the Trial Chamber issued thea decision notifying parties that “[Mr.] Katanga’s mode of participation could be considered from a different perspective from the Confirmationthat underlying Decision.” Following the Pre-Trial decision Chamber’s Following the charges, to confirm Mssrs. case against the joint Katanga and Ngudjolo proceeded trial. to The case opened in November the parties 2009 and their concluded 2012. arguments in May closing in the stand and testified his own defense, 28 28 the realization of the crimes. Regulations of the Court and severing the charges against the Accused persons, persons, the Accused against charges the severing and Court the of Regulations supra implementation of regulationimplementation of Regulations the55 of the of Court severing the and 3-4 ¶¶ ICC-01/04-01/07-3319-tENG/FRA, persons, the Accused against charges 2012). II, 21 November Chamber Trial (ICC 2012). December 18 II, Chamber Trial (ICC ICC-01/04-02/12-3-tENG Statute, 34066-war_report 17 Sheet No. 16 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 16 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 17 Side A 10/08/2013 07:52:44

29 29

a person may bea person may 134

135

l and shall either: l and shall either:

iminal purpose of the l Chamber specifically informed specifically l Chamber the al Chamber explained that, while the Pre le 25(3)(a) through (c),

Be made in the knowledgeBe the intention of Be madeBe with the aim of furthering the

. 21 Art. 25(3)(a) – (c). – 25(3)(a) 21. Art. Article 25(3)(d)in addition states that, of to the modes of the group to commit the crime. group, whereor purposegroup, such activity involves the commission of a crime within the jurisdiction of the Court; or (ii) (i) or criminal activity cr which occurs or in fact is attempted; crime, aids, abets or otherwise assists in its commission or commission its in assists or otherwise abets aids, crime, its attempted commission, including providing the means for its commission. another or through another person, regardless of whether of whether regardless person, another or through another criminally is responsible; person other that Commits such a crime, whether as an individual, jointly with individual, jointlywith an as a crime, whether such Commits For the purpose of facilitating the commission of of such purpose the a For supra supra 133 Orders, solicits or induces the commission of such a crime such a crime of commission the or induces solicits Orders,

In any other wayIn contributes or to the commission of such a crime byattempted commission a of group persons acting with a common Such purpose. be intentiona contribution shall (c) (b) In accordance with this Statute, a person shall be criminally be criminally shall Statute, this a person accordance with In the within a crime for punishment liable for and responsible jurisdiction the of Court if that person: (a) ¶7. ¶7. Art. 25. Id. Art. Id. follows: as provides (c) – 25(3)(a) Article M K C Y 135 responsible for a crime if that person: Elaborating on the proposed application of this provision in the case against Mr. Katanga, the Tri 133 134 Katanga, the majority of Tria the identified in Artic liability parties that parties that the accused’s should also be considered not responsibility but also Article under under only 25(3)(a) Article the Statute, of 25(3)(d)(ii). Rome Statute, 34066-war_report 17 Sheet No. 17 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 17 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 17 Side B 10/08/2013 07:52:44 M K

C Y

139

She explained:

140

r that it was relying on facts and on r that it was relying

tion of Regulation 55 and the severing As to the first point, Judge Van den As to the first point, Judge mentioned in the confirmation decision. 138

The majority furtherThe majority explained proposed that the 137 Charges are not merelya loose collection of names, places, events, etc., which can be ordered and reordered a coherent must represent charges will. at Instead, description of how certain individuals are linked to 136

¶ 34. ¶ n. 127, ¶ 26. 127, ¶ n. , Decision on the implementation, Decision regulation of and Ngudjolo 55Katanga the of Id. Id. Dissenting Opinion of Judge Christine Van den Wyngaert. 14-17. Id. ¶¶ 19. Id. ¶

Wyngaert argued that the majority violated Regulation 55 by failing to failing 55 by Regulation violated that the majority argued Wyngaert adequately which identify of the facts and circumstances in the confirmed charges it would upon rely when recharacterizing the charges and by failing to clea make circumstances that supported the confirmed charges, to as opposed facts” merely“subsidiary 136 137 138 139 140 In was improperlyaddition, she found that the majority In relying on 55 because itsRegulation proposed recharacterization would “fundamentally changethe narrative of the charges in order to reach a orconviction on the basis of a crime form of criminal responsibility that was not originallycharged by the prosecution.” Judge Christine Van den dissented Wyngaert from the decision the potentialregarding applica of charges the two against accused, arguing the that majority’s 55 itself and violateddecision both violated Regulation rights the of the accused to a fair trial. recharacterization would be limited to the facts and circumstances laid laid and circumstances facts to the limited would be recharacterization of chargesout in the confirmation pertaining to Mr. Katanga’s liability. 30 30 confirmedTrial Chamber the accused’s as an indirect responsibility co-perpetrator, the proposed recharacterization would “consider[] that KatangaGermain contributed to theanother way in of commission ofcrimes by a commanders Walendu-Bindi group and combatants acting a common purposewith to attack onBogoro 24 February 2003.” Regulations of the Court and severing the charges against the Accused persons, persons, the Accused against charges the severing and Court the of Regulations supra 34066-war_report 17 Sheet No. 17 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 17 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 18 Side A 10/08/2013 07:52:44 31 31 See

143

case discussed above. above. discussed case 142 Lubanga Lubanga

. therefore constitute a of facts”, something the gage in extensive factual

] Yet, the Majority is, in my view, is, in my ] Yet, the Majority 141 and accompanying text accompanying and et seq.

Appeals Chamber hasAppeals Chamber found to be clearly prohibited by 55(1).[ Regulation of fundamentallyguilty the narrativechanging in this case. As the Majority does not explain on the basis of Article 25(3)(d)(ii),which facts it proposes to apply it is specific commentsnot possible for me to make very on amthis point. However, in no doubt that the I proposedMajority’s migration to Article 25(3)(d)(ii) forcesinevitably it to en acrobatics in order to find sufficient factualsupport in the Confirmation Decisionto meet the elements of this new form of criminal responsibility. narrative in whichnarrative each material fact a particular has place. Indeed, the reason whyfacts are material is precisely because of howare they relevantto the narrative. Taking an isolated material fact and fundamentally changing its as it relevance by part using of a different narrative would therefore amount to a “change in the statement certain events, defining played what role they in them related they and how and to were influenced bya context.particular Charges

n. 20 Citing the Appeals Chamber decision in the in decision Chamber the Appeals Citing 20-21. Id. ¶¶ 22. Id. ¶ M K C Y Similarly, Judge Van denSimilarly, Wyngaert undercontinued, the proposed recharacterization, Mr. Katanga is “demoted from a leader with almost total control (in the sense of Article 25(3)(a)) to an accomplice who is 141 142 143 As an example, Judge Van den Wyngaert cited to the that the fact referredmajority to a paragraph from the confirmation decision dealing with the organization over which, according to the Pre-Trial Chamber, Mr. Katanga exercised authoritative control, explaining that under Article 25(3)(d), of this same organization the members would be transformed out the will carrying from “fungible” soldiers blindly of Mr. Katanga into a “group acting with a common purpose.” supra 34066-war_report 17 Sheet No. 18 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 18 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 18 Side B 10/08/2013 07:52:44

M K the C Y

Finally, Finally,

147 She then explained 145 a fair and impartial trial, stating a Second, Judge Van den Wyngaert change the mode at of liability ght to be “informed promptlyght and 146 ,” the majority had created “the ensure a trial,”fair Chamber is as the Trial

144 148 Id. 25. Id. ¶ added). (emphasis 27-28 Id. ¶¶ 36. Id. ¶ 49. Id. ¶ contended that, because the notification majority’s was “entirely unforeseeable” to the Defense and was given “at ain the point proceedings when the [D]efence is unable to effectively respond to it,” the decision violated the accused’s ri in detail of the nature, cause and content of the charge,” as well as the or to confess guilt.” to testify to be “not compelled right 144 145 146 147 148 Judge Van den Wyngaert that the majority’s argued decision threatened the accused’s to a speedyright trial because, to “meaningfully defend the charges itself against under Article 25(3)(d)(ii), the [D]efence have to present may… an entirely new case.” On the issue of the accused’sOn the issue of the rightsto a fair trial, Judge Van den began Wyngaert by asserting that the “guarantees contained in paragraphs (2) and (3) of [Regulation 55] are not, in and by to themselves, sufficient 64(2)bound under Article the fairness of the Rome Statute to ensure and expeditiousnessthe accused’s and it must guarantee of the trial, under 67 Article rights “are fully respected.” the majoritythat, in her view, had failed to act in accordance with of the Articles 64 and 67 arguedStatute. First, she majority’s that the decision violated the accused’s right to 32 32 the now supporting of an unidentified purpose criminal common of his former subsection (in the sensesubordinates of Article 25(3)(d)).” triggeringthat, “by Regulation 55 to end of the deliberation stage unpalatable suspicion that the Chamber is intervening to ensure the conviction of Germain Katanga.” 34066-war_report 17 Sheet No. 18 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 18 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 19 Side A 10/08/2013 07:52:44

33 33

On the As to the 150 152

l recharacterization of the although it also stressed that “it although t able to determine whether the al Chamber leavegranted to acterized as contemplated the by nd (iii) whether the impugned the impugned nd (iii) whether 151 , Judgment on the appeal of Mr Germain Germain Mr appeal of the on , Judgment , Decision on the “Defence Request Request for the “Defence on , Decision The Appeals Chamber issued its 149

In reaching the In the proposed conclusion that 153 The Appeals Chamber’s The Appeals the Trial Decision Upholding of a the Parties Decision Notifying Chamber’s RecharacterizationPotential 3.

The Prosecutor v. Germain Katanga v. Germain Prosecutor The 17. Id. ¶ 24. Id. ¶ 45-58. Id. ¶¶ The Prosecutor v. Germain Katanga v. Germain Prosecutor The M K C Y second issue, a majority the Appeals Chamberof held that, while it was not “immediately apparent” that the proposed recharacterization would exceed the facts and circumstances described charges, in the the “actual” change in characterization taken had not place, meaningyet that the Appeals Chamber was not ye is preferable that notice under regulation 55 (2) of of the Regulations be given as earlythe Court should always as possible.” in this case charges could be rechar Trial Chamber. 150 151 152 153 recharacterization exceed did not obviously the facts and circumstances in the charges, the Appeals Chamber rejected the 149 At the request of the At the request of Defense, Tri the regardingappeal its decision the potentia facts under Regulation 55. 2013,decision on 27 March three addressing issues: (i) whether the decision of the impugned was “in conformity” timing with Regulation the scope55; (ii) whether recharacterization of the proposed was “in 55; a with Regulation conformity” Chamberfirst issue, the Appeals that, because held subparagraph 2 of 55 states that Regulation the Trial Chamber mayrecharacterize the facts “at any time” during trial, the decision the was “not incompatible” with the regulation, decision violated the rightsdecision violated of Mr. Katanga to a fair trial. Katanga against the decision of Trial Chamber II of 21 November 2012 entitled 2012 entitled 21 November II of Trial of decision Chamber the against Katanga Court the of Regulations the 55 of regulation of implementation the on “Decision 10 ¶ ICC-01/04-01/07-3363, persons,” Accused the against charges the severing and Leave to Appeal the Decision 3319,” ICC-01/04-01/07-3327 (ICC Trial Chamber II, Chamber Trial (ICC ICC-01/04-01/07-3327 3319,” Decision the Appeal to Leave 2012). 28 December (ICC Appeals Chamber, 27 March 2013). 27 March Chamber, Appeals (ICC 34066-war_report 17 Sheet No. 19 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 19 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 19 Side B 10/08/2013 07:52:44

M K

C Y The

158 However, of article of article

156

to a fair trial, sayingto a fair

comment on the impact of the limitation in the textlimitation possible to prepare an effective l Chamber will rely, it would be l Chamber will rely, Similarly, the Appeals Chamber Similarly, 155 te the Defense’s right

, ¶ 99 that, ¶ (recalling 64(2) the Statuteof Article Likewise, the Appeals Chamber warned the Trial

n. 150 n. 157

supra

The majority of the Appeals Chamber also essentially

154

(suggesting that Trial Chamber II assess whether Mr Katanga has been ¶ 50. 50. ¶ precise the of knowledge no had the that Chamber Appeals (reasoning 95 ¶ Id. of decision the Katanga against Mr Germain appeal of the on Judgment , Katanga Id. Id. Id. requires that the Trial Chamber ensures that the proceedings are fair and and are fair the proceedings that the Trial ensures that Chamber requires expeditious). 157 158 to this end, the Appeals Chamber did emphasize Chamber’s the Trial need to review whether it remains defense in light of the proceedings of the trial date and the possible to recharacterization. Chamber to be particularly vigilant in ensuring Mr. Katanga’s that violated forward. is not to trial without undue delay going right Appeals Chamber did rule on the Defense’s claims that the proposed recharacterization violated Mr. Katanga’s rights to be informed 154 155 156 premature for the Appeals Chamber to withheld judgment on thewithheld judgment of whether issue the change in would viola characterization the precise nature knowing found that without of the recharacterization or the evidence on which the Tria decision on the effectiveness of the defense as a whole. 34 34 Defense’s Judge argument,Van den by supported that the Wyngaert, facts”“material recharacterizationproposed the be limited to must the underlying charges in that decision,the confirmation noting “[t]here of any is no indication such on measures that comment to it would be impossible the Trial in theChamber could take future, Chamber could not rule and thus the proposed potential impact of the upon the to change on the ability effectively prepare a defense. 74(2) of the Statute or regulation74(2) of the Statute 55(1) ofthe Regulations of the Court.” Trial Chamber II of 21 November 2012 entitled “Decision on the implementation of implementation the on “Decision 2012 entitled 21 November II of Trial Chamber regulation 55 of the Regulations of the Court and severing the charges against the persons, Accused nature of the possible of evidence on re-characterizationnature the the nor Trial which rely). may Chamber Mr. Katanga or whether at such a late stage, a recharacterization made by prejudiced been the defence to in of relation has the article 25(3)(d)“deprived of mounting Statute that he otherwise would have wished to present). 34066-war_report 17 Sheet No. 19 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 19 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 20 Side A 10/08/2013 07:52:44

35 35

162 160

159 Turning to the specific issues nd his righttrial, to an impartial 161 n.150, Dissent Judge Cuno Tarfusser. Tarfusser. Cuno Judge Dissent n.150,

Furthermore, Judge Tarfusser argued that, given the 163 supra

” under 6, Articles 7, or 8 of the Statute “or to accord with the of participation of the accused under articles 25 and 28,” and ¶¶ 100-05. 100-05. Id. ¶¶ of decision the Katanga against Mr Germain appeal of the on Judgment , Katanga Id. Subheading A. original). in (emphasis 10-11 Id. ¶¶ 13. Id. ¶ M K C Y form applicable the regulation to make meant the drafters “had that stating each time a shift within either 25 or article article 28 was envisaged, reference have would been likewise made to the ‘forms’ of responsibility.” 159 160 161 162 163 He based this view a textualfirst on noting that Regulation argument, 55(1) refers to a changecharacterization to the “to accord with the crimes Judge Tarfusser began his byopinion noting that, in his view, separate “is a provision 55 of an exceptional Regulation nature” and, “as such,” interpretation.”is “subject to narrow promptly of the him a promptly charges against that the notificationholding of the recharacterizationpossible satisfied to be informed and that thethe right act of notifying the of the charges to the potentialparties as was change a “neutral act.” Judge Cuno Tarfusser opinion, wrote a dissenting in which he 55 Regulation of the timing the regarding majority with the concurred fromnotice, but dissented as opinion the majority to whether the contemplated change was with the regulation and whether compatible decisionthe impugned Mr. Katanga’s violated right to a fair trial. raised by the impugned decision, Judge Tarfusser first explained that, 55(1) a change in Regulation permitting in in his opinion, the language characterisation“the legal facts to accord of with [...]the form of participation of the accused under articles 25 and 28” means that a the provisionTrial Chamber may to “switch[]employ of the from (any providedforms of responsibility under) article 25 to (any of the forms under) article 28 of the provided of responsibility Statute, or vice listedversa,” but not “from one form of responsibility in respectively article 25 and 28 to another form included in the same provision.” Trial Chamber II of 21 November 2012 entitled “Decision on the implementation of implementation the on “Decision 2012 entitled 21 November II of Trial Chamber regulation 55 of the Regulations of the Court and severing the charges against the persons, Accused 34066-war_report 17 Sheet No. 20 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 20 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 20 Side B 10/08/2013 07:52:44

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165

at enabling the Defense to “prepare be [as] specific and precise as , Decision transmitting additional legal and nce interpreting the of various forms The Chamber began by the instructing

167 tion lacked such information and thus

r listed one and the same within it provision (be The Trial Court’s Decision Transmitting Additional Transmitting Additional The Trial Court’s Decision Legal and Factual Material 166 Regarding the impact decision of the impugned on the fair 164 4. ¶ 25. ¶ ¶¶ 14-19. 14-19. Id. ¶¶ Id. Id. Katanga v. Germain Prosecutor The Defense as to the elements 25(3)(d)(ii)of Article of the Statute, stating that those elements include the following: 164 165 166 167 feasible as to both the legalfeasible as to both and factual boundaries envisaged of the includingchange, by reference to all relevant evidence.” asserted that the notifica infringed on Mr. Katanga’s to be informed right of the charges against him in detail. trial rights of the trial rights accused, Judge Tarfusser issue with the lack of took arguing that notice of a Chamber’s notification, detail in the Trial possible recharacterization “must the Appeals ChamberFollowing of the Trial decision, the majority Chamber (Judge Van den issued Wyngaert dissenting) a second again decision on the subject of the proposed recharacterization for the relating material” factual and legal “additional of transmitting purpose to the contemplated change aimed more appropriately and thus effectively more by its grounding not in purelyarguments hypothetical foundations but in the law which the Chamber will apply.” 36 36 nature of the jurisprudeunsettled under of Article 25(3)(a), responsibility and the multiplicity responsibility listed therein, “holding that any shift that any of from one form “holding listed therein, responsibility to anothe participation article 25 or 28 of article the Statute) triggers the application of 55 of the Regulationsregulation result in of the Court would a degreeintroducing of uncertainty in the and unpredictability proceedings” inconsistent with that is ultimately the basic tenets of a fair trial. factual material (regulation 55(2) and 55(3)of the Regulations of the Court), ICC 2013). II, 15 May Chamber Trial 11 (ICC ¶ 01/04-01/07-3371-tENG, 34066-war_report 17 Sheet No. 20 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 20 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 21 Side A 10/08/2013 07:52:44

37 37 171

168

3388-Anx (ICC La La (ICC 3388-Anx

It also stated that, if it It 172 elements the relating Mr. the crime; the d made a significant 169 , Defence Observations on the Decision the on Observations , Defence In addition, the Defense explainedIn that Decision transmitting material “do not give the

170

a crime under the jurisdiction the jurisdiction a crime under was committed;of the Court to the crime belong who committed the persons a group purpose with a common the crime or to commit which was the ordinary[which] commission including in its involved course of the Accuse events; contribution to the commission of contribution to the made withcontribution was insofar as the intent, Accused the in meant to engage conduct was and aware that such to theconduct contributed activities of the acting group purpose; with a common and the Accused’s contribution knowledgewas made in the of to the intention of the group forming part of the common purpose. commit the crime ¶ 16. ¶ ¶¶ 56-58. 56-58. Id. ¶¶ par présentées requêtes relatice aux Décision , Katanga c. Germain Procureur Le Id. 19-24. Id. ¶¶ Katanga v. Germain Prosecutor The M K

C Y it would need an additional six months to conduct the investigations it would need an additional six to conduct the investigations months necessary to respond to potential under charges Article 25(3)(d)(ii). 171 172 The Trial Chamber, Judge Wyngaert Van den again dissenting, rejected the request for six the Defense granted three months, but investigations. months to pursue ongoing 168 169 170 The Chamber then addressed four factual response to the Chamber’sIn decision, the Defense filed a submission insufficient knowledge it “has of the reiterating that its position facts and evidence the Chamber on in the event it decides to intends to rely alter the mode of liability.” Katanga’s under Article 25(3)(d)(ii),responsibility to various pointing facts in the confirmation decision. Chambre de Première Instance II, 26 juin 2013). juin II, 26 Instance de Première Chambre la Défense dans ses observation 3379 et 3386 des 3 et 17 juin 2013, Dissenting 2013, Dissenting juin 17 3 et des 3386 3379 et observation ses dans Défense la opinion of Judge Christine Van den Wyngaert, ICC-01/04-01/07- defendant adequate notice of the basis of the modified charge as required by article by required charge as the of modified basis the of notice adequate defendant Statute”). the of 67(1)(a) transmitting additional legal and factual the (regulationof material 55(2) 55(3) and 2013) 3 June Defence, (ICC ICC-01/04-01/07-4479-Red Court), the of Regulations the(asserting details provided the in 34066-war_report 17 Sheet No. 21 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 21 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 21 Side B 10/08/2013 07:52:44

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Following Following 178

, Transcript, ICC , Transcript, 177

under Article 25(3)(a) of Arap Sang, who Arap Sang, are charged of the Statute. and accompanying text. text. accompanying and et seq. 175

176

potentially hold hearings beginning potentially Decision on the the on Decision et al., lliam Samoei Ruto,

n. 174, ¶¶ 349, 367. 349, 367. ¶¶ 174, n. The charges against the two accused were n. 104 n. supra see Regulation 55 has beenRegulation raised is the case 174 supra supra 173

, Decision on the Confirmation of Charges Pursuant to 61(7)(a) Article The Prosecutor v. William Samoei Joshua Arap Ruto and v. William The Prosecutor Sang

For details theory about of the co-perpetration indirect as developed Pre-Trial by text. accompanying and 135 n. See supra Ruto, et al. Sang Arap Joshua and Ruto Samoei v. William Prosecutor The Id. v. Wi Prosecutor The See generally 01/09-01/11-T-15-ENG at 25:16–29:1 (ICC Trial Chamber V, 11 June 2012). June V, 11 Chamber Trial (ICC 25:16–29:1 at 01/09-01/11-T-15-ENG 175 176 177 178 the confirmation decision,proceeded the case to the before stage trial Trial Chamber V. During a status conference before the Trial Chamber on 11 June 2012, the Office of the Prosecutor it intended to make an indicated that application for the legal recharacterization of certainfacts. the ProsecutorSubsequently, requesting filed a submission formally invoke 55 to that the Trial Chamber Regulation give notice that it may the legal of Mr. Ruto’s criminal responsibility characterization change from that of an indirect co-perpetrator to one of several other forms of 173 174 D. in which The fourth case Ruto and JoshuaSamoei against William in violence post-election the during committed allegedly with crimes Kenya in 2007 and 2008. confirmed in January 2012 which determined Pre-Trial Chamber by II, that there were to believe substantial that grounds Mr. Ruto is indirectresponsible as an co-perpetrator the Rome Statute for the humanitycrimes against of murder, deportation or forcible transfer of the population, and persecution; and is responsible contributing for to the commission of the that Mr. Sang same crimes under Article 25(3)(d)(i) 38 38 to reopendecides the case, it will 2013. in September Chamber jurisprudence to date, jurisprudence Chamber Confirmation of Charges Pursuant to 61(7)(a)Article and (b) the Rome of Statute, the that Note 2012). II, 23 January Chamber Pre-Trial (ICC ICC-01/09-01/11-373 against Henry the charges anyKosgey. of to confirm declined Pre-Trial Chamber Statute, Rome the (b) of and 34066-war_report 17 Sheet No. 21 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 21 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 22 Side A 10/08/2013 07:52:44

39 39

179 181 , Prosecution’s , Prosecution’s , Defence the trial and permit the trial

nt characterisation then it

n.179, ¶ 41 (arguing advanced knowledge will only help the the help only knowledge will advanced 41 (arguing ¶ n.179, , Prosecution’s Submissions on the law of indirect co-perpetration of the law indirect co-perpetration on Submissions , Prosecution’s supra 180

If the Prosecution is apprehensiveIf as to the appropriateness of the prese should make a decision now and apply, on clear for recharacterisation.grounds, should not seek to It have the Chamber refer, in a general manner,the to Chamber’s capacity to recharacterise. That adds to the plain wordsnothing of Regulation 55 and assists neither the Chamber nor, the accused. most importantly, The Prosecution’s approach to the is contrary rights of the accused and judicial economy and should not be use of the Chamber’s condoned as a legitimate

Ruto and Sang and Ruto Sang Arap Joshua and Ruto Samoei v. William Prosecutor The The Prosecutor v. William Samoei Ruto and Joshua Arap Sang Arap Joshua and Ruto Samoei v. William Prosecutor The M K

C Y 180 181 179 Specifically, the Defense argued: liability undersubparagraphs liability (c), (b), or (d) of Article 25(3). Prosecution the Notably, Chamberurged the Trial this to provide earlynotice as to ensure the fairness as possible of the Defense to present evidence regarding of potential forms all liability. Defenseresponse to the Prosecution’s team In Ruto’s submission, that the Prosecution’sargued request was hypothetical” “too and that it was based on an improper of Regulation 55. understanding Submissions on law of the indirect 25(3)(a) co-perpetration the under of Article 2012). 3 July Prosecutor, of the Office (ICC under Article 25(3)(a)of the Statute and application for notice to be given under Regulation 55(2) respect to with William Samoei Ruto’s individual criminal responsibility, a trial). interests of fair the advance and accused Response to the Prosecution’s Submissions on law of the indirect co-perpetration under Article 25(3)(a)of the Statute and application for notice to be given under Regulation 55(2) respect to with William Samoei Ruto’s individual criminal 2012). 24 July Defence, (ICC ICC-01/09-01/11-442 responsibility, Statute and application for notice to be given under Regulation 55(2) respect with to William Samoei Ruto’s individual responsibility, criminal ICC-01/01-01/11-433 34066-war_report 17 Sheet No. 22 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 22 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 22 Side B 10/08/2013 07:52:44 M K

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The

The , 184 183 , Prosecution Prosecution , , Order Regarding ipated crimes,” in the Pursuant to the 187 information on 17 September confirm any of the charges against Prosecution’s motion at the time of this Prosecution’s motion 182 and the Prosecution has the withdrawn alleged to have partic alleged to have 186

Decision on the Confirmation of the Charges Pursuant to

Regulation 55 powers. Regulation The Prosecutor v. Uhuru Muigai Kenyatta v. UhuruThe Prosecutor Muigai Kenyatta 185 ¶ 38. ¶ See The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and and Kenyatta Muigai Uhuru Muthaura, Kirimi v. Francis Prosecutor See The Kenyatta Muigai and Uhuru Muthaura Kirimi v. Francis Prosecutor The ¶ 32. 32. Id. ¶ Id. Sang Arap Joshua and Ruto Samoei v. William Prosecutor The Sang Arap Joshua and Ruto Samoei v. William Prosecutor The Trial Chamber II, 23 January 2012). 2012). January II, 23 Chamber Trial charges charges Francis against Kirimi Muthaura. 186 187 182 183 184 185 2013. E. The final case in which 55 has Regulation arisen to date is the case against Uhuru Muigai the Kenyatta, second case to arise in the Kenya situation. with Mr. Kenyatta charged but two co-accused, was initially the Pre-Trial Chamber declined to Mohammed Hussein Ali, Stressing the right of the Stressing beaccused to promptly informed in detail and of the charges against him, the Defense argued “should the Chamber in ensuring thatbe vigilant subjected to uncertainty Mr. Ruto is not as he isto the mode in which to rule Chamber has on the yet requested the Prosecution submitted 40 40 although it did recentlywriting, request that the Prosecution indicate the exhaustively facts and circumstances described in the thatcharges support the proposed recharacterization. would and that therefore it should reject the Prosecution’s request. Prosecution notification of withdrawal of the charges against Francis Kirimi charges of against the Francis notification of withdrawal Prosecution 2013) March 11 Prosecutor, the of Office (ICC ICC-01/09-02/11-687 Muthaura, Prosecution was Muthaura, of the against review evidence its that after (reasoning of standard the to 66(3) Article sufficient meet was that the evidence satisfied not Mohammed Hussein Ali, Ali, Hussein Mohammed Pre- (ICC ICC-01/09-02/11-382-Red Statute, Rome the of (b) 61(7)(a) and Article Filing in Compliance with the Chamber’s ‘Order Regarding Applications for Notice Possibilityof of Variation of Legal Characterisation,’ICC-01/09-01/11-943 (ICC 2013). 17 September Prosecutor, the of Office 01/09-01/11-907 (ICC Trial Chamber V(a), 5 September 2013). 2013). V(a), 5 September Chamber Trial (ICC 01/09-01/11-907 Applications Notice for Possibility of of of Variation Legal Characterisation, ICC 34066-war_report 17 Sheet No. 22 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 22 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 23 Side A 10/08/2013 07:52:44

41 41

case case

, , and the

189 Kenyatta case s to rule on the yet of the subparagraphs of

tion has requested that the Trial be – again subject to change

but the Trial Chamber ha but the Trial Chamber

190 In particular, the ProsecutionIn asserts that facts

n.189, n.189, 26-31. ¶¶ 192 – and that certain facts– and may be recharacterized as

191 The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Muigai Uhuru and Muthaura Kirimi v. Francis Prosecutor The supra 188 , Corrigendum to, Corrigendum ‘Response to the “Prosecution’s Submissions the on law ¶ 298. 298. ¶

, Prosecution’s Submissions on the law of indirect co- indirect of law the on Submissions Prosecution’s , Kenyatta and Muthaura Id. Id. Kenyatta Muigai and Uhuru Muthaura Kirimi v. Francis Prosecutor The Kenyatta Muigai and Uhuru Muthaura Kirimi v. Francis Prosecutor The M K C Y 191 192 beyond a reasonable doubt and find the accused guilty). guilty). accused the find and doubt a reasonable beyond 188 189 190 Article 25(3) different crimes. to relating forcible circumcision penile amputation, and which the Pre- Trial Chamber characterized as “other inhumane acts” under Article confirmation decision, Mr.confirmation is charged Kenyatta criminal with as an indirectresponsibility co-perpetrator pursuant 25(3)(a) to Article of murder, for crimesof the Statute humanity against deportation or transferforcible of rape, other population, inhumane and acts, persecution. the procedural writing, At the time of this posture of the Sang described above with regard to theis similar to that Ruto & applicationin terms of the possible Regulation of 55. Specifically, as in the other Kenya case, the Prosecu the Chamber provide accused notice under Regulation 55 Defense has objected, matter. this case, the In Prosecution has requested that notice be given may that both the mode of liability requesting that the accused the be put on notice that may Chamber undercharacterize his responsibility any perpetration under 25(3)(a) Article the Statuteof and application notice for to be given under Regulation 55(2)with respect to the accuseds’ individual criminal responsibility, Prosecution’s Submissions on the law of indirect co-perpetration under Article Regulation under be give to notice for application the to “Prosecution’s Response Defence, (ICC ICC-01/09-02/11-455 charged”, crimes certain to respect 55(2) with 2012); 24 July Kenyatta for application Statute and the of 25(3)(a) under Article co-perpetration indirect of 25(3)(a) of the Statute and application for notice to be given under Regulation 55(2) Regulation under to be given notice and application for Statute the of 25(3)(a) ICC-01/09-01/11 responsibility, criminal individual accuseds’ the to respect with 2012). 3 July Prosecutor, the of The Office 444 (ICC individual to the accused’s respect 55(2) with Regulation under to be given notice 2012). 24 July Defence, (ICC ICC-01/09-02/11-457-Corr responsibility,”’ 34066-war_report 17 Sheet No. 23 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 23 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 23 Side B 10/08/2013 07:52:44

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supra 194

Specifically, the Further Prosecution the , ¶ 13. ¶ , 195 193 n. 190 n.

supra

al Chamber as predicate acts With regard to the proposedWith regard in change 197 The Defense also asserted that the proposed , Response to, the “Prosecution’s application for notice to “Prosecution’s to the to ‘Response Corrigendum ,

196 Again, the Trialrule on the to Chamber has Again, yet 198 ¶¶ 2, 23–26. 2, 23–26. ¶¶ 13, 22. ¶¶ ¶¶ 2, 18–22 (advancing the argument that “genital mutilation is inherently inherently is that “genital themutilation argument (advancing 2, 18–22 ¶¶ . Id. Kenyatta and Muthaura Id Id. Kenyatta and Muthaura Id.

194 195 196 197 198 mode of liability, the Defense argued that there was no evidence to was no evidence there that argued Defense the of liability, mode support such a recharacterization in the Pre-Trial Chamber’s decision. Prosecution’s requests. 193 In Mr. response, In Kenyatta’s defense arguedthat first Prosecution’s the request under Regulation 55 was premature. recharacterizations of “other inhumane acts” and “property destruction and looting” exceed the facts and circumstances found in the confirmation of charges. submitted that facts relating to looting and property destruction, that facts relatingsubmitted and property to looting which were characterized the by Pre-Tri the underlying charge of or forcibledeportation transfer under Article 7(1)(d), should be “considered as predicate acts underlying the charge Articleof persecution under 7(1)(h),” to in addition the charge of deportation or forcible transfer under Article 7(1)(d). Defense argued that because to take the trial had place, the correctyet which to dealmethod by raised the arguments with be for the would Prosecution to request an to the charges amendment under Article 61(9) of the Statute. 42 42 7(1)(k) of “can the Statute, and should be characterized as ‘other forms of sexual under violence’ 7(1)(g).” Article be given under Regulation 55(2) with respect to certain crimes charged,” crimes charged,” to certain respect 55(2) with Regulation under be given 11. 190, ¶ Submissions on law of the indirect 25(3)(a) co-perpetration the under of Article sexual in nature,” and thus such acts should be characterized under Article 7(1)(g)). 7(1)(g)). Article under be characterized should acts such thus and nature,” in sexual Statute and application for notice to be given under Regulation 55(2) respect with to responsibility,”’ individual accused’s the 34066-war_report 17 Sheet No. 23 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 23 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 24 Side A 10/08/2013 07:52:44

43 43

200 the provisionthat so as to ensure before the to date, despite ICC of the accused and inefficiencies r and expeditious trial are safeguarded , 16 Crim. L. Forum 1, 5 (2005). Forum L. 16 Crim. , which suggests it wouldwhich suggests be used and before the Appeals Chamber. Notably,and before 199 ECOMMENDATIONS

R s, participants, and judges to questions regarding Katanga case, significant questions remain Modification of the Legal Characterizationof Facts in the ICC

NALYSIS AND NALYSIS Limiting the Use of RegulationLimiting 55 to Exceptional Circumstances to Safeguard the Rights ofAccused the and Trial an Expeditious Ensure A n. 161 and accompanying text. accompanying and 161 n. See supra Carston Stahn, M K C Y sparingly. Moreover,sparingly. in each of the a significant trials, amount of the both has been devoted to issues surrounding regulation, litigation levelat the Trial Chamber opinions by prominently the dissenting as demonstrated of JudgeVan den Wyngaert in the of the rights trial fair on the of the regulation the effect regarding accused. Furthermore, the amount of time and resources that has been devoted by the partie 55 the use of Regulation calls into question one of the primary justifications for the judges’ adoption of the provision,that the namely representsregulation an effort “to enhanceefficiency the of proceedings through the encouragement of a precise charging practice beginningfrom the very of the proceedings.” 199 200 The following recommendations represent an attempt to alleviate rights potential violations of the the about by frequent 55 that will brought use of Regulation in a way result in a diminished use of ideally the of the rights accused to a fai in to authority Trial recharacterize the Chamber’s maintaining while exceptional circumstances. A. Judge Cuno Tarfusser’s that the regulationobservation is a “provision of an exceptional nature,” III. above,detail As described in a prominent Regulation 55 has assumed of trials to come role in the majority System: A Portrayal of Regulation 55 Regulation of A Portrayal System: 34066-war_report 17 Sheet No. 24 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 24 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 24 Side B 10/08/2013 07:52:44

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case: impartialare trial

Trial Chamber must Trial Chamber must , et al. , et dicallytransform the nature (3) may be dependingrequired a defective indictment been has that followed by the and that followed by ICTY In line with this language, and this language, line with In .YRþND 201 stressed that the tribunals in a number of As the cases. ICTY wing this jurisprudence the use of this jurisprudence will limit wing

of the provision to exceptional circumstances. The Principle of “Curing” a Defective Indictment Before theIndictment Ad Hoc Tribunals

ad hoc , ¶ 85. , ¶ Limiting the Use of Regulation 55 to Exceptional 55 to Exceptional the Use of Regulation Limiting by AnalogyCircumstances Hoc Tribunal’s to the Ad Indictments to “Curing” Defective Approach a) n. 20

Katanga case, as expressed Judge by Vanden Wyngaert in 1. reachingIn its judgement, a Trial Chamber can only accusedconvict the of crimes [that] in are charged the supra supra

, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor Prosecutor and the Dyilo Mr Lubanga of appeals the on Judgment , Lubanga 201 Although the ICC Appeals the Although ICC the Chamber has upheld of validity has it 55 generally, Regulation ensure that the rights of the accu sed to a fair and protected,“fully” and has that suggested safeguards to in addition Regulationthose outlined in 55(2) and on the circumstances of the case. serious concernsgiven raised the by contemplated Regulation use of 55 in the opinions described her dissenting weabove, recommend that the Trial Chambers limit the use Specifically, we recommend Trial Chambers adopt an that the ICC approach to Regulation 55 similar to analyzing in the whethervagueICTR a or has ambiguous indictment been “cured” by the “provision clear of timely, and consistent information” sufficient to the accused provide adequate notice to prepare a defense. Follo that will not ra 55 to situations Regulation of the case the accused, against particularly after the accused has already presented his or her defense to the Chamber. of theability ProsecutionThe to cure recognized by the 44 44 Appeals Chamber explained in the against the Decision Trial of Chamber 2009 14 I of July “Decision entitled giving the facts characterization the participants of legal thatmay parties and to the notice the of Regulations the 55(2) of Regulation accordance in with to change be subject Court,” 34066-war_report 17 Sheet No. 24 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 24 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 25 Side A 10/08/2013 07:52:44

45 45 case,

n. 202, ¶¶ 43-54. 43-54. 202, ¶¶ n. Specifically, the its opening statement its opening supra supra .RUGLüDQG&HUNHå

203 iminal enterprise (JCE), indictment that the for the Indictment’s failure to has received timely, clear, and factual reasons for the , et al. case, the Appeals Chamber 202 timely, timely, clear and consistent

Hence, the Appeals Chamber Similarly, in the Similarly, 204

205 .YRþND criminal enterprise” in

Appeals Chamber Judgement, Judgement, Chamber Appeals it was not clear in the rticipation in a joint cr , Judgement, Case No. IT-98-30/1-A, ¶ 33 (ICTY ¶ No. IT-98-30/1-A, Case , Judgement, .YRþNDHWDO indictment. indictment. the found to be defective indictment is If ofbecause vagueness or then the Trial ambiguity, must consider Chamber whether the accused has beennevertheless accorded a fair trial. some In the accusedinstances, where and consistent information from the Prosecution which orresolves the ambiguity clears up the vagueness, a be entered.conviction may Where the failure to give of thesufficient notice legal to a trial, fair right the him has violated against charges result. no conviction may

The Prosecutor v. The Prosecutor 6HHJHQHUDOO\.YRþND 45-48. Id. ¶¶ 50. Id. ¶ M K C Y give proper on joint criminal give notice of the intent to rely Prosecution’s enterprise responsibility.” concluded, the Prosecution gave concluded, the Prosecution gave detailed theinformation to the Appellants, “which the basis of factual charges them andagainst compensated the Appeals Chamber held that, although “theICTY means by which WKH3URVHFXWLRQHQYLVDJHGWKHSDUWLFLSDWLRQRI.RUGLüLQWKH commission of the [charged] “too crimes” in the indictment was formulated,”generally the the indictment was “supplemented by 202 203 204 205 despite the fact that Prosecution was relying of JCE because on a theory the liability, Prosecution had adequately cured this defect. pointedAppeals Chamber to the fact that the Prosecution had referred to “the common purpose Pre-Trialdoctrine” in its Brief and “concentra[ted] on joint in other the mode of liability at trial, in addition to emphasizing early in the trial.arguments Thus, for example, in the rejected the Defense’s appeal the conviction against of the accused on the basis of their pa Appeals Chamber, 28 February 2005). 28 February Chamber, Appeals 34066-war_report 17 Sheet No. 25 Side A 10/08/2013 07:52:44 10/08/2013 Side A No. 25 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 25 Side B 10/08/2013 07:52:44

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>DURVH@ 206 ad hoc

207

at the effect

.RUGLü¶VOLDELOLW\ by giving the Trial Trial the giving by Judgement and Sentence, Case Sentence, Case and Judgement

208

nt can be cured in such a way

characterizationfacts contained of rectlyanalogous to a Regulation Judgement, Case No. IT-95-14/2-A, ¶¶ No. IT-95-14/2-A, Case Judgement,

tribunals have repeatedly recognized possibility of curing defects in the possibility of curing defects in the ambiguities in the indictment. ambiguities

VVO\DOOHJH>G@WKDW ad hoc

utset. Nevertheless, the

“Curing” Limited to Exceptional Circumstances “Curing” Limited

.RUGLüDQG&HUNHå b) n. 200, at 2. 200, at n. The Prosecutor v. Bagosora, et al., et v. Bagosora, Prosecutor The n. 20, ¶ 77. 20, ¶ n. supra supra 209 supra supra

, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor Prosecutor and the Dyilo Mr Lubanga of appeals the on Judgment , Lubanga Stahn, The Prosecutor v. The Prosecutor situation ad hoc tribunals the consider because the is similar notFurthermore, will 208 209 other words, the purpose of allowing a defective indictment to be 55, which hascured is similar to that of Regulation as been described “to close necessary accountabilitygaps” Chamber the ability“to correct flaws charges in the at the trial stage.” the although Importantly, 206 207 We recognize “curing” that is not di a defective that indictme the possibility as to ensure that the right of the accused to a fair trial is preserved, the tribunals have stressed that the “ 46 46 Pre-TrialProsecution’s the form Brief as to responsibility of HQYLVLRQHG´ZKLFK³H[SUH 55 recharacterization before as the former the ICC, the involves factsaddition of new to clarify intended an otherwise vague theindictment, whereas latter is a re in the charges in the charges from the o tribunals of a finding that a defectiveindictment has been “cured” is supportedthat a conviction the by evidence presented at trial will fromclaim stand, despite a the Defense that it did not receive adequate notice of the charge or to prepare the opportunity a defense. from his intentional participation in a common plan or design plan or design in a common intentional participation from his as a co- therebyperpetrator,” curing the against the Decision Trial of Chamber 2009 14 I of July “Decision entitled giving the facts characterization the participants of legal thatmay parties and to the notice the of Regulations the 55(2) of Regulation accordance in with to change be subject Court,” a claim from the Prosecution that a defective indictment has been cured if the effect the effect if cured indictment Prosecutionbeen has that a defective the a claimfrom is to amendment new “add elements a formal to to require the would case,” which the indictment. 139-40 (ICTY Appeals Chamber , 17 December 2004). December , 17 Chamber Appeals (ICTY 139-40 No. ICTR-98-41-T, ¶ 124 (ICTR Trial Chamber, 18 December 2008). 2008). 18 December TrialChamber, (ICTR 124 ¶ No. ICTR-98-41-T, 34066-war_report 17 Sheet No. 25 Side B 10/08/2013 07:52:44 10/08/2013 Side B No. 25 17 Sheet 34066-war_report 34066-war_report 17 Sheet No. 26 Side A 10/08/2013 07:52:44

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