By Sara Anoushirvani, Pace International Law Review, Articles Editor
On June 12, 2009, Trial Chamber II of the International Criminal Court (“ICC”) issued a unanimous decision rejecting a motion challenging the admissibility of a case before the ICC submitted by the Defence for alleged Congolese militia commander Germain Katanga. Mr. Katanga, together with co-Accused Mathieu Ngudjolo Chui, has been charged with three counts of crimes against humanity and six counts of war crimes for a deadly assault on the village of Bogoro, in the province of Ituri, in the Democratic Republic of the Congo (“DRC”), in February 2003. Mr. Katanga is alleged to have been a senior commander of the group known as the Force de Résistance Patriotique en Ituri (Patriotic Resistance Force in Ituri, FRPI).
In his motion, filed before the ICC on March 11, 2009, the Defence for Mr. Katanga argued that the ICC should find the case inadmissible, pursuant to Articles 17 and 19 of the Rome Statute. Articles 17 and 19 establish the principle of complementarity, which requires the ICC not to investigate or prosecute individuals unless the State concerned is genuinely unable to or has no intention to carry out the investigation or prosecution. Contrary to ad hoc tribunals, such as the United Nations International Criminal Tribunal for the former Yugoslavia, the ICC, under the principle of complementarity, is required to give precedence to national systems. This is the first time that the ICC has had an opportunity to consider a challenge to the admissibility of a case based on this principle.
Citing the principle of complementarity, the Defence for Mr. Katanga claimed that legal proceedings were commenced against Mr. Katanga, partly for the same crimes, before the courts in the DRC. In the oral decision denying the Defence for Mr. Katanga’s motion, Judge Bruno Cotte emphasized that the Trial Chamber found a clear and overt unwillingness on the part of the DRC to prosecute Mr. Katanga. Judge Cotte further explained that that the Chamber’s decision was particularly based on the fact that the DRC had referred the situation in its territory to the ICC, the DRC had never challenged the admissibility of the case, and the DRC authorities stated to the ICC that the DRC had not opened any investigation against Mr. Katanga concerning the crimes currently being prosecuted before the ICC.
The trial of Mr. Katanga is currently set to commence before Trial Chamber II on September 24, 2009.