The two are accused of command responsibility for crimes against humanity committed in Bogoro, in Ituri province of the Democratic Republic of Congo, on February 24, 2003. In their November 21 decision, the judges decided to separate the two cases. They also said that “the mode of liability with which Mr Katanga is charged may be subject to a legal modification”.
Katanga is currently charged with “committing the crimes jointly through another person”, but the judges suggest that his responsibility in the Bogoro attack may have been more than as an indirect co-perpetrator. They stressed that Katanga himself had spoken of his contribution, as a coordinator, to preparing the attack, and that several witnesses had testified to his contribution in the attack.
The parties have until January 15, 2013, to submit their observations. The defence may be entitled to call new witnesses.
The decision was approved by two out of the three judges trying the case, with Judge Christine Van Den Wyngaert of Belgium dissenting. She found that the decision came too late and could lead to reopening of the trial.
The trial of Germain Katanga and Mathieu Ngudjolo opened on November 24, 2009 and closed on May 23, 2012.