** I’m twittering the hearing at: http://twitter.com/bechamilton for those who can’t catch the live webcast**
There is a hearing at the ICC this morning which may seem to be on an obscure legal point to the general public, but is actually of significance to the global system of justice established by the Rome Statute.
The hearing concerns a challenge to the admissibility of the case against DRC warlord, Germain Katanga.
Charges of war crimes and crimes against humanity, including murder and rape, were confirmed against Katanga by Pre-Trial Chamber I while I was at the court last year. His trial (jointly with Mathieu Ngudjolo Chui) is due to commence in September this year. However, in a motion filed in February, Katanga’s defense team (led by the impressive British barrister, David Hooper) are challenging whether the case against Katanga is admissible (re-stated in plain English: Does the ICC have the authority to hear this case or should his case be dealt with by the DRC’s judicial system?).
Under the system established by the Rome Statute, the ICC is a court of last resort. By design, the drafters of the Rome Statute decided that national judicial systems should have primacy, and only if these systems were unable or unwilling to conduct genuine investigations and prosecutions would the ICC come into play. In legal terms this is “the principle of complementarity.” In practical terms it means that the system established by the Rome Statute aims to encourage justice at the local level first – with justice being undertaken at the international legal only when the local system fails.
I personally think that complementarity it is a very positive design feature of the Rome Statute that is not nearly well enough understood by those who lump the ICC into the same category as the ad hoc tribunals for Rwanda and the former Yugoslavia (which do not operate on the complementarity principle). As ICC Prosecutor Luis Moreno Ocampo put it when he came to office: “The efficiency of the International Criminal Court should not be measured by the number of cases that reach the court or by the content of its decisions. Quite on the contrary, because of the exceptional character of this institution, the absence of trials led by this court as a consequence of the regular functioning of national institutions, would be its major success.”
So why then is the Prosecution fighting the Defense on the admissibility of this case before the ICC?
In essence it comes down to a fight over the meaning of the word “case.” In this morning’s hearing I expect we will see the Prosecution argue that the case against Katanga was not being investigated or prosecuted by the DRC, and they will do so using the definition of the word “case” that Pre-Trial Chamber I established several years ago in Lubanga – Namely that a case involves the same person and same conduct: “. . . for a case arising from an investigation of a situation to be inadmissible, national proceedings must encompass both the person and the conduct which is the subject of the case before the court.” (Decision of Pre-Trial Chamber I, 24 Feb. 2006, para 37). Therefore, the fact that the DRC were investigating Katanaga is not, in and of itself, enough to make the case inadmissible. It would only be inadmissible if they were also investigating him for the same conduct as in the ICC case.
By contrast, the Defense has argued in its submissions that this interpretation of the word “case” is too narrow. They also argue that the DRC authorities would have started looking at the conduct the ICC is now looking at if the ICC had not begun its investigation.
My view, for what it’s worth, is that given the Chamber’s definition of the word “case” in Lubanga, the Prosecution’s argument is solid as a matter of law. (Moreover, with my cynics hat on I have to wonder what’s the likelihood that a panel of Judges deciding they no longer have the power to adjudicate a case that they have already confirmed the charges in??). However Hooper rarely makes a vacuous argument, and there are some policy consequences flowing from the Chamber’s initial decision to define the word “case” as narrowly as they did in Lubanga that Hooper is the first to really draw the Court’s attention to.
In short – for anyone interested in the balance of local vs. international justice, this hearing is worth paying attention to. You can see it livestreamed through the Court’s site from 10am (Dutch time) this morning in English or French.
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I am interested in hearing the outcome of the motion. Will you post it here?
In thinking about your article it seems to me that whilst it may seem clear enough on the surface to decide whether a country is actively investigating and prosecuting someone, this may not be so cut and dried in practise.
I can see that in reality this can be very difficult and can easily swallow a year or two of the to and fro of investigation and ‘investigation of the investigators’.
I was at the Hay Festival a week or so ago when Mr Moreno-Ocampo explained how he came to issue a warrant for the arrest of Ahmad Harun of the Sudan. He explained that he repeatedly asked Sudan to investigate and prosecute Mr Harun, and that in the end he proceeded when Sudan clearly was not proceeding with its investigation.
But it seems so easy for a renegade regime to start an investigation and just wear down the process by constant delaying tactics.
The only answer, it seems to me, is for the ICC to take a robust stance, and talk plainly.
You have been at the ICC hearings, and I wonder whether you can detect whether this plain speaking characterizes the tone of the court?
Hi David
Just to let you know I will be posting here on what the judges end up deciding.
Best
Bec