[Apologies for the length of this post. The first four paras are a pretty bread-and-butter summary of the decision handed down today. After that I get into my broader concerns about how to support the spirit behind the principle of complementarity.]
Judge Daniel David Ntanda Nsereko just handed down the Appeals Chamber’s decision on the appeal lodged by Katanga against Trial Chamber II’s decision that the ICC had jurisdiction to hear his case. The bottom line is a verdict of no surprise – the appeal was dismissed; the ICC has jurisdiction over the Katanga case.
There were some statements of interest though, regarding the way Trial Chamber II assessed admissibility. The Appeals Chamber accepted the argument put forward by the Prosecution in its Response to the Defence’s Document in Support of Appeal, whereby the Prosecution argued that although Trial Chamber II reached the right result in finding the case was admissible, the way it got there left something to be desired. Basically, Trial Chamber II had looked at the fact that the DRC was not investigating the case and then determined that this absence of activity meant the DRC was “unwilling” (invoking a definition of “unwilling” that they made up themselves – a “second form of “unwillingness”, which is not expressly provided for in article 17 of the Statute”( para 77)) and that therefore the case was admissible. By contrast, the Prosecution argued that if there is no activity by the State on the case, then the question of “unwilling” (or indeed “unable”) does not arise, given the plain language of Article 17 (1)(a) of the Rome Statute:
Art 17(1) states: “The Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution”
Article 17(1)(a) involves a two-part analysis. First, is the State doing anything on this case? If it is not, as Trial Chamber II determined in this instance, then the question of the case being inadmissible does not even arise. This is the approach the Appeals Chamber just affirmed. The mistake of Trial Chamber II was to go beyond this step of the analysis and say that because the State was not acting on this case, it was admissible on the grounds that the inactivity showed unwillingness. The attempt to connect the factual finding of inactivity with the unwillingness prong of Article 17, is something that the Appeals Chamber has now confirmed is unnecessary.
This all sounds very commonsensical, but I have a lingering concern about one part of the original Trial Chamber II judgment that the Appeals Chamber has left intact. When I first wrote about this I had only heard the Oral Decision, but the Written Decision confirmed my concerns. In the context of trying to justify why their (unnecessary) attempt to have the DRC’s inactivity on this case fall under a rubric of a kind of “unwillingness” that the Judges defined to mean unwillingness that “aims to see the person brought to justice, but not before national courts” (para 77), did not clash directly with the obligation the Preamble of the Rome Statute says that States have to prosecute international crimes, Trial Chamber II wrote:
” . . . it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. However, if a State considers that it is more opportune for the Court to carry out an investigation or prosecution, the State will still be complying with its duties under the complementarity principle, if it surrenders the suspect to the Court in good time and cooperates fully with the Court in accordance with Part IX of the Statute.” (emphasis mine) (para 79)
More opportune?? To be perfectly honest, my reaction upon reading this was no more sophisticated than, WTF? The signal sent to states is that if doing justice is just too hard, if you just don’t feel like it today, if it would be “more opportune” for you to put the time and resources it takes to run an accountability process into say, building a new Presidental Palace – well hey, that’s fine by the ICC. We’re here for you to outsource your obligation to prosecute these international crimes to anytime you feel it is “opportune”
Now in Katanga’s Document in Support of Appeal his very able British barrister, David Hooper, seems to have read my mind. In para 71 he writes:
“In sum, when the duty on every State to exercise its jurisdiction over persons alleged to be responsible for international crimes is read in light of Articles 1 and 17 and viewed against the background of the intention of the drafters of the Rome Statute, it is clear that Court may only exercise its jurisdiction over a case if a State is unwilling or unable genuinely to bring a person to justice, not if it simply prefers the ICC to take over the case.” (emphasis mine)
With my policy hat on, I think Hooper is right. But this puts me in something of a bind.
As a textual matter I agree with the Prosecution (and now the Appeals Chamber) that the black letter of the Rome Statute supports the argument that an unwilling/unable analysis only becomes a factor in admissibility if there is some State activity on the investigation/prosecution front in relation to the case. But if that is true, then what is to stop any State simply refusing to take action, outsourcing its obligation to prosecute international crimes to the ICC, and having the ICC accept jurisdiction without question – hardly the sort of arrangement that underlies the spirit of the principle of complementarity. Yet that is, as best as I can tell, the current state of the law.
There is a widely recognized “obligation to prosecute or extradite” and then there is the Preamble of the Rome Statute saying that there is an obligation to prosecute international crimes. But an “obligation” that is in the preambular language of a treaty, with no means to enforce it, is a pretty lightweight obligation in practice. It does indeed mean that a State can take no action towards investigating or prosecuting an international crime and suffer no consequence – the ICC just takes the case no questions asked. It is not the way the drafters of the Rome Statute envisaged the court would be used, but for now at least, we seem to be stuck with it.
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