ICC will judge Katanga

Katanga at the ICC (Source: ICC website)

In its oral decision handed down at 9am this morning (Hague time), Trial Chamber II dismissed Katanga’s challenge to the admissibility of his case before the ICC.

There’s a few points of general interest:

• As a strictly legal matter, the judges could have side-stepped deciding this case on the merits

In the oral decision, Judge Cotte stated that a challenge to admissibility at this stage of proceedings (i.e after the constitution of the Trial Chamber) can only be brought if the principle of ne bis in idem (i.e. you can’t be tried twice for the same conduct) is raised. Since Katanga’s admissibility challenge was not on this basis, the Chamber could have just dismissed the case there, without going into the merits. That it decided to rule on the merits anyway says to me they wanted the opportunity to establish the Court’s position on the system of complementarity (and probably not unrelated is that Katanga would have appealed if they dismissed it without considering the merits, meaning additional delays, and the Chamber seems keen to get the trial started on the slated date).

• The Court’s approach to complementarity

Under the Rome Statute, the ICC gets jurisdiction under the system of complementarity if the State (domestic system) is “unwilling or unable genuinely to carry out the investigation or prosecution” (RS, Art 17). While we will have to wait for the details from the written decision (out next week), the oral decision points towards the approach that the ICC is going to take in situations where the State says it is unwilling to handle the case. In short, it seems that the ICC will accept such a statement largely on face value. If a State – the DRC in this case – says it is unwilling, the Court will not second-guess the State’s judgment. Judge Cotte said – I’m paraphrasing here – that there maybe many reasons why a State is unwilling to investigate/prosecute including its assessment that it is unable to conduct a fair trial, or (this is the interesting part) that it doesn’t have the resources.

We will have to read the written decision to see what caveats there may be to this, but from what was said today I see a risk that this decision shifts complementarity from being a system that encourages states to put the resources into improving their domestic legal systems, to a system that discourages such investment by essentially saying, you can outsource to the ICC whenever you feel like it.

In short, I think today’s decision is the right one with respect to the case before the court. But the decision does seem to open the door to letting states use the ICC as a court of first, rather than last, resort. On the one hand, it is a plus against impunity whenever a case is fairly tried anywhere; better that it be tried at the ICC than not at all. But, as I have posted on previously, the promise of complementarity is a world in which domestic systems strive to fairly try their own cases. Subject to reading the nuances that might be evident in the written decision, I fear today’s decision moves the ICC away from encouraging states to do this.