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The Katanga Complementarity Decisions: Sound Law but Flawed Policy

Published online by Cambridge University Press:  27 April 2010

SUSANA SÁCOUTO  and
KATHERINE CLEARY
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Abstract

On 25 September 2009, the Appeals Chamber of the International Criminal Court (ICC) issued a seminal decision on the subject of complementarity in the case Prosecutor v. Germain Katanga. The outcome of the Chamber's decision is that, even if a state has initiated an investigation or prosecution against an individual, the ICC may prosecute that individual for the same crimes or even a more selective range of crimes, so long as the state is willing to close the ongoing investigation or prosecution at the request of the ICC Prosecutor. While this decision is defensible under the language of the Rome Statute, this article concludes that, absent vigilance on the part of the ICC's Office of the Prosecutor, the decision could produce consequences inconsistent with the principle that the ICC is intended to act as a court of last resort. These potential consequences, in turn, suggest that the prosecution's policy of ‘positive complementarity’ – that is, encouraging genuine national proceedings whenever possible – should be at the core of its case selection strategy. At the same time, in those instances when the ICC prosecution determines that, despite activity by a national system with respect to a particular case, it is appropriate for the ICC to take over the case, the prosecution should clearly and publicly explain the factors that led to its decision.

Keywords

Appeals ChambercomplementarityICCKatangaselection strategy
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court Complementarity on Trial: Perspectives on Katanga
Information
Leiden Journal of International Law , Volume 23 , Issue 2 , June 2010 , pp. 363 - 374
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/04-01/07-OA8, Appeals Chamber, 25 September 2009.

2 Prosecutor v. Germain Katanga, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Germain Katanga, ICC-01/04-01/07-4, 3, 10, Pre-Trial Chamber I, 6 July 2007.

3 See generally ibid.

4 Ibid., at 18.

5 Ibid., at 21.

6 Ibid., at 22.

7 Prosecutor v. Thomas Lubanga Dyilo, Under Seal Decision of the Prosecutor's Application for a Warrant of Arrest, Article 58, Annex 1, Case No. ICC-01/04-01/06-8, Pre-Trial Chamber I, 10 February 2006.

8 Ibid., at 33.

9 Ibid., at 38.

10 Ibid., at 34.

11 Ibid., at 35–6. Article 17 defines ‘inability’ for purposes of determining whether a state is willing and able to prosecute a particular case as follows: ‘In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.’ Rome Statute, Art. 17(3).

12 Prosecutor v. Thomas Lubanga Dyilo, supra note 7, at 37.

13 Rome Statute, Art. 17(1)(a) (emphasis added).

14 Prosecutor v. Thomas Lubanga Dyilo, supra note 7, at 31 (citing an earlier decision of Pre-Trial Chamber I for the definition of ‘case’). Note that the Rome Statute does not contain a definition of ‘case’.

15 Ibid., at 38–9.

16 Katanga case, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Germain Katanga, ICC-01/04-01/07, Pre-Trial Chamber I, 5 November 2007, at 21

17 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, Case No. ICC-01/04-01/07-717, ICC-01/04-01/07-611, Pre-Trial Chamber I, 1 October 2008, at 42.

18 Ibid. (although the charges were confirmed on 26 September 2008, the decision was not publicly released until 1 October 2008). Note that Katanga's case was joined with that of Mathieu Ngodjolo Chui on 10 March 2008. See Prosecutor v. Germain Katanga, Decision on the Joiner of the Cases against Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07, Pre-Trial Chamber I, 10 March 2008.

19 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, pursuant to Article 19(2)(a) of the Statute, Case No. ICC-01/04-01/07-949, Defence, 11 March 2009.

20 Ibid., at 31.

21 Ibid., at 31–7.

22 Katanga and Ngudjolo case, Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, pursuant to Article 19(2)(a) of the Statute, supra note 19, at 39.

23 Ibid.

24 Ibid., at 44–51.

25 Ibid., at 51–2. Among the other arguments advanced by the defence was that the DRC was in fact prosecuting Katanga for the crimes that allegedly occurred in Bogoro in February 2003, and thus even if the same-conduct test applied, the case was inadmissible. Ibid, at 53.

26 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case, ICC-01/04-01/07, Trial Chamber II, 16 June 2009.

27 See generally ibid.

28 Ibid., at 70. Specifically, Art. 17(2) of the Rome Statute provides as follows: ‘In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.’ Rome Statute, Art. 17(2).

29 Katanga and Ngudjolo case, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case, supra note 26, at 77.

30 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Document in Support of Appeal of the Defence for Germain Katanga against the Decision of the Trial Chamber ‘Motifs de la décision orale relative à l'exception d'irrecevabilité de l'affaire’ Situation in the DRC, the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07-1279 (18), Defence, 8 July 2009, at 57.

31 Ibid., at 72.

32 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, Case No. ICC-01/04-01/07-OA8, Appeals Chamber, 25 September 2009.

33 Ibid., at 80.

34 Rome Statute, Art. 17(1)(a) (emphasis added).

35 Katanga and Ngudjolo case, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, supra note 32, at 74–81.

36 Rome Statute, Art. 17(1)(a).

37 Katanga and Ngudjolo case, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, supra note 32, at 56.

38 Draft Statute for an International Criminal Court, Report of the ILC on the work of its forty-sixth session (2 May–22 July 1994), vol. II, 2 May–22 July 1994, A/CN.4/SER.A/1994/Add.l (Part 2), Commentary to Preamble, at 1 (emphasis added).

39 International Commission of Jurists, The International Criminal Court, Third ICJ Position Paper, §C.1 (August 1995).

40 See, e.g., Holmes, J., ‘The Principle of Complementarity’, in Lee, R. S. (ed.), The International Criminal Court: The Making of the Rome Statute (1999), 41 (‘Some States, while supporting the establishment of an international criminal court, were reluctant to create a body that would impinge on national sovereignty’)Google Scholar.

41 Ad Hoc Committee on the Establishment of an International Criminal Court, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN Doc. A/50/22 (6 September 1995), 31.

42 Ibid.

43 Ibid., at 47.

44 Ibid.

45 Preparatory Committee on the Establishment of an International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. 1 (1996), at 156.

46 Rome Statute, Preamble.

47 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/2, 14 April 1998, at 155.

48 Press Release L/2773, Preparatory Committee on International Criminal Court Continues Considering Complementarity between National, International Jurisdictions, 2 April 1996, at 2.

49 Kirsch, P., Ambassador of Canada to Sweden, ‘Keynote Address at the Cornell International Law Journal Symposium: The International Criminal Court: Consensus and Debate on the International Adjudication of Genocide, Crimes against Humanity, War Crimes, and Aggression (Mar. 5, 1999)’, (1999) 32 Cornell International Law Journal 437, at 438Google Scholar.

50 International Criminal Court, Office of the Prosecutor, Informal Expert Paper: The Principle of Complementarity in Practice, 2003, 32.

51 Ibid.

52 Ibid., at 60.

53 See, e.g., W. Schabas, ‘A Major Complementarity Ruling by the Appeals Chamber of the International Criminal Court’, 27 September 2009, available at http://humanrightsdoctorate.blogspot.com/2009/09/major-complementarity-ruling-by-appeals.html.

54 International Criminal Court, Office of the Prosecutor, Paper on Some Policy Issues before the Office of the Prosecutor, September 2003, 2. See also International Criminal Court, Office of the Prosecutor, Report on Prosecutorial Strategy, 14 September 2006, at 5 (‘With regard to complementarity, the Office emphasizes that according to the Statute national states have the primary responsibility for preventing and punishing atrocities in their own territories. In this design, intervention by the Office must be exceptional – it will only step in when States fail to conduct investigations and prosecutions, or where they purport to do so but in reality are unwilling or unable to genuinely carry out proceedings’).

55 International Criminal Court, Office of the Prosecutor, Paper on Some Policy Issues, supra note 54, at 5.

56 Ibid.

57 Exclusive interview: P. Clark, Research Fellow in Courts and Public Policy, University of Oxford, and David Anderson, Professor of African Politics and Director of the African Studies Centre, University of Oxford, in ICC Observers Project – Oxford Transitional Justice Research, 5 (documenting an interview of Dr Clark and Professor Andersen conducted by the ICC Observers Project).

58 International Criminal Court, Office of the Prosecutor, Report on Prosecutorial Strategy, supra note 54, at 5.

59 Tolbert, D. and Kontic, A., ‘The International Criminal Tribunal for the Former Yugoslavia: Transitional Justice, the Transfer of Cases to National Courts, and Lessons for the ICC’, in Stahn, C. and Sluiter, G. (eds.) The Emerging Practice of the International Criminal Court (2009), 135, 161Google Scholar. See also D. Tolbert and A. Kontic, Final Report of the International Criminal Law Services (ICLS) Experts on the Sustainable Transition of the Registry and International Donor Support to the Court of Bosnia and Herzegovina and the Prosecutor's Office of Bosnia and Herzegovina in 2009, International Criminal Law Services Foundation, 15 December 2008.

60 Ibid., at 161.

61 Ibid.

62 Cf. ibid., at 159 (noting that one of the criticisms of the ICTY's transition programme has been its neglect of the ‘[t]ransferring of its know-how that is assistance on how to prosecute and adjudicate war crimes cases and on the types of strategies that work in such cases’). Note that the ICC has developed, as part of its Legal Tools Project, a ‘Case Matrix’, which is an open-source, ‘law-driven case management application, made for the investigation, prosecution, defence and adjudication of factually complex cases such as core international crimes cases (war crimes, crimes against humanity and genocide)’. International Criminal Court, Case Matrix (2007), available at www.icc-cpi.int/NR/rdonlyres/58958352-4379-46AB-81E8-61A7D85418D2/0/ICCCaseMatrix_ENG.pdf. While it is anticipated that the sharing of the Case Matrix with national investigators and prosecutors will contribute to the domestic prosecution of international crimes, the impact of the Case Matrix on domestic prosecutions remains to be evaluated.

63 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Public Redacted Version of the 19 March 2009 Prosecution Response to Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, pursuant to Article 19(2)(a), ICC-01/04-01/07-1007, Office of the Prosecutor, 2009, 27, at 39.

64 Office of the Prosecutor, Statement by Fatou Bensouda, Deputy Prosecutor, during the Press Conference Regarding the Arrest of Germain Katanga, ICC-OTP-20071019-258, Press Release, 19 October 2007 (noting that Germain Katanga had been detained by the DRC in 2005, but making no mention of domestic charges or any lack of investigation into those charges); Office of the Prosecutor, Statement by the Office of the Prosecutor in Response to the Apprehension of Alleged DRC War Criminal Germain Katanga, ICC-OTP-20071018-251 (press release, 18 October 2007) (same).