Article

Justice Delivered or Justice Denied?: The Legacy of the Katanga Judgment

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Abstract

On 7 March 2014, the International Criminal Court (ICC) rendered its third and arguably most controversial trial judgment in the case against Germain Katanga. It marks the first final judgment under Article 74 following the discontinuation of both the Defence and Prosecution appeals. This article analyses the procedural and substantive implications of the decision. While the judgment makes some important contributions to the development of jurisprudence, it departs significantly from the ‘case’ at pre-trial and contains some inherent contradictions, flawed interpretations and evidentiary weaknesses that are well known from other Courts and tribunals. Judge Van den Wyngaert’s ‘fundamental dissent’ on key points of law and fact raises doubts whether the decision meets the ‘beyond reasonable doubt’ standard. Ultimately, the Katanga case highlights continuing challenges related to fairness and trial management at the ICC, including an urgent need to re-consider the relationship between pre-trial and trial. Its contentious findings leave an incomplete, and partly contradictory picture of the role of actors in the Ituri crisis, which confirms scepticism about the fact-finding function of international criminal courts and tribunals.

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... Los Estados del Sur se oponen a la consolidación en el DI de la R2P por dos motivos principales. En primer lugar, consideran inadecuado que, conforme a este principio, los Estados del Norte sigan siendo los encargados de evaluar la falta de voluntad o de capacidad de los Estados del Sur, lo que refleja con claridad la posición que ocupan unos y otros en la aplicación de este principio (crítica que también se realiza a la función de la CPI) (Stahn, 2014). ...
... A FNI e FRPI invadiram vilas inteiras, onde seus integrantes pilharam, estupraram e sequestraram as mulheres daquelas comunidades" (Women's Iniciatives for Gender Justice, 2009). plos crimes contra a população civil, mas insuficiente para atribuir-lhe responsabilidade pelas violências sexuais levadas a efeito nas mesmas condições de tempo e espaço 20 ; (a três) a relutância em se compreender os estupros e outras formas de violências baseadas no gênero como uma autêntica arma de guerra, reforçando-se o entendimento de tais condutas como crimes oportunísticos e acidentais (Minkova, 2020;Korfält, 2015;Stahn, 2014). ...
... Los Estados del Sur se oponen a la consolidación en el DI de la R2P por dos motivos principales. En primer lugar, consideran inadecuado que, conforme a este principio, los Estados del Norte sigan siendo los encargados de evaluar la falta de voluntad o de capacidad de los Estados del Sur, lo que refleja con claridad la posición que ocupan unos y otros en la aplicación de este principio (crítica que también se realiza a la función de la CPI) (Stahn, 2014). ...
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... Los Estados del Sur se oponen a la consolidación en el DI de la R2P por dos motivos principales. En primer lugar, consideran inadecuado que, conforme a este principio, los Estados del Norte sigan siendo los encargados de evaluar la falta de voluntad o de capacidad de los Estados del Sur, lo que refleja con claridad la posición que ocupan unos y otros en la aplicación de este principio (crítica que también se realiza a la función de la CPI) (Stahn, 2014). ...
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At the beginning of the renaissance of international criminal law in the 1990s, the law on crimes against humanity was in a fragile state. The International Criminal Tribunal for the former Yugoslavia (ICTY) decisively contributed to the consolidation of customary international law on crimes against humanity and paved the way for its first comprehensive codification in Article 7 of the Statute of the International Criminal Court (ICC). At the same time, the ICTY in its early decisions already showed a certain inclination to broaden the scope of the application of the crime by downgrading its contextual requirement. More recently, this tendency culminated in the complete abandonment of the policy requirement. While this ‘progressive’ facet of the ICTY's jurisprudence largely took the form of obiter dicta, the Situation in the Republic of Kenya has confronted the ICC with the need to ‘get serious’ about the present state of the law. This has led to a controversy in Pre-Trial Chamber II about the concept of organization in Article 7(2)(a) of the Statute. While the majority essentially follows the path of the more recent case law of the ICTY, the ICTR, and the Special Tribunal for Sierra Leone and supports a liberal interpretation, Judge Kaul prefers to confine the term to state-like organizations and generally calls for caution against too hasty an expansion of the realm of international criminal law stricto sensu. This comment agrees with the main thrust of the Dissenting Opinion and hopes that it will provoke a thorough debate.
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Under Article 7(2)(a) of the ICC Statute, crimes against humanity require that a widespread or systematic attack on a civilian population be committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. The interpretation of the term ‘organization’, in particular, is controversial. The authors advocate the view that the term should be understood to reflect the ordinary meaning of the concept: it includes any association of persons with an established structure. Systematic as well as teleological reasons argue against limiting the term to ‘state-like’ organizations.
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The confirmation procedure is the linking interface between the investigation and trial of a case before the ICC; it is triggered by the arrival of the suspect at the court. The present paper distinguishes between the different phases of the ICC procedure and the different notions for the person concerned; it deals, in particular, with the issue of a proprio motu amendment of the charges by the Pre-Trial Chamber. The comparative survey reveals that while the principle "iura novit curia" is widely recognized in civil law countries, it is rarely accepted in the ambit of the common law. Notwithstanding, the ICC is committed to this principle, as clearly evidenced by Regulation 55 which allows the Trial Chamber to change the legal characterization of the facts during trial. As long as the rights of the person charged are observed, the same should apply in the confirmation procedure.
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The collective nature of crimes under international law does not absolve us of the need to determine individual responsibility. Article 25 of the Statute of the International Criminal Court (ICC) now contains a detailed regulation of individual criminal responsibility. While discussing the elements of various modes of individual criminal responsibility, this essay shows that the most important difference between prior legal frameworks and Article 25(3) ICC Statute lies not in the redefinition of the scope of individual responsibility in international criminal law, but in the systematization of modes of participation. The case is made that Article 25(3) is best construed as a differentiation model with four levels of participation. In this model, modes of participation should be understood as indicative of the degree of individual guilt, and thus as helpful guidelines in sentencing matters. With particular reference to joint commission, the author shows that this concept also leads to a coherent interpretation of the various modes of participation.