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The Katanga Trial Chamber Decision: Selected Issues

Published online by Cambridge University Press:  27 April 2010

GILBERT BITTI  and
MOHAMED M. EL ZEIDY
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Abstract

The admissibility challenge of the defence in Katanga has raised complex issues of litigation in the light of the practice of self-referrals and existing ICC jurisprudence. This article examines the Katanga Trial Chamber decision and its consequences from this perspective. It focuses on three themes that are of particular relevance, since they have a direct impact on the functioning of the Court and its different organs: (i) the timing for a challenge of the admissibility of the case; (2) access to information related to admissibility; and (iii) the role of the defence.

Keywords

complementaritydefenceKatangaPre-Trial ChamberTrial Chamber
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. 319 - 329
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9 (hereinafter Rome Statute), Preamble, para. 10. Preamble para.10 reads: ‘Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’.

2 Report of the Ad hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995), paras. 36–37; also John T. Holmes, ‘The Principle of Complementarity’, in Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999), 56.

3 See Rome Statute, supra note 1, Arts. 15, 17, 18, 19, 20, 53, 82, 89, 90, 93, 95, and 99.

4 Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Decision on the Admissibility of the Case under Article 19(1) of the Statute, ICC-02/04-01/05-377, Pre-Trial Chamber II, 10 March 2009.

5 The decision was issued on 12 June 2009 at a public hearing and the reasons for the oral decision were subsequently given in a decision issued on 16 June 2009: Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-1213 tENG, Trial Chamber II, 16 June 2009.

6 Most of those decisions were issued initially under seal, and were later unsealed; they are therefore difficult to find on the website of the Court. See, however, Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Decision on the Prosecutor's Application for Warrants of Arrest under Article 58, ICC-02/04-01/05-1, Pre-Trial Chamber II, 8 July 2005; Prosecutor v. Thomas Lubanga Dyilo, Decision concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-8-Corr, Pre-Trial Chamber I, 24 February 2006 (this decision was issued on 10 February 2006, but is found on the website of the Court as an annex to a decision of 24 February 2006 which was unsealed on 17 March 2006: Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07-1-Corr, Pre-Trial Chamber I, 27 April 2007; 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, Pre-Trial Chamber I, 6 July 2007; Prosecutor v. Mathieu Ngudjolo Chui, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Mathieu Ngudjolo Chui, ICC-01/04-01/07-262, Pre-Trial Chamber I, 6 July 2007; Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Prosecutor's Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-14-tENG, Pre-Trial Chamber III, 10 June 2008 (on the website of the Court, it is possible to find the original decision taken by Pre-Trial Chamber I on 10 February 2006 on the original application by the Prosecutor against both Thomas Lubanga Dyilo and Bosco Ntaganda; although the decision was taken in the situation of the Democratic Republic of the Congo, it is to be found in the record of the case Prosecutor v. Bosco Ntaganda. See Situation in the Democratic Republic of the Congo, Decision on the Prosecutor's Application for Warrants of Arrest, Article 58, ICC-01/04-02/06-20-Anx2, Pre-Trial Chamber I, 10 February 2006; this decision was reversed in relation to the finding of inadmissibility of the Bosco Ntaganda case by the Appeals Chamber. See Situation in the Democratic Republic of the Congo, Judgement of the Prosecutor's Appeal against the decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor's Application for Warrants of Arrest, Article 58’, ICC-01/04-169, Appeals Chamber, 13 July 2006 (this decision of the Appeals Chamber is to be found in the record of the situation in the Democratic Republic of the Congo, not in the record of the case Prosecutor v. Bosco Ntaganda. Following the decision of the Appeals Chamber, Pre-Trial Chamber I issued a warrant of arrest against Bosco Ntaganda on 22 August 2006 which is to be found in the record of the Bosco Ntaganda case (ICC-01/04-02/06-2).

7 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Pre-Trial Chamber II, 15 June 2009. Prosecutor v. Bahr Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-05-02/09-243-Red, paras. 28–30.

8 For further discussion see M. M. El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (2008).

9 Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Art. 58, ICC-01/04-01/06-8-US-Corr, 10/02/2006, para. 18, unsealed pursuant to Decision ICC-01/04-01/06-37 dated 17/03/2006; Prosecutor v. Mathieu Ngudjolo Chui, Decision on the Evidence and Information provided by the Prosecution for the Issuance of a Warrant of Arrest for Mathieu Ngudjolo Chui, ICC-01/04-02/07-3, para. 17, reclassified as public pursuant to Oral Decision dated 12/02/2008; 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, Pre-Trial Chamber I, 6 July 2007. The Chamber had also made an initial determination on admissibility in Harun and Kushayb, but until now there has been no confirmation of a charges decision as the suspects are still at large and the Chamber has not decided on the possibility of holding a confirmation of charges in absentia: Prosecutor v. Ahmad Muhammad Harun (‘Ahmad Harun’) and Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), Decision on the Prosecution Application under Article 58(7) of the Statute, ICC-02/05-01/07-1-Corr, Pre-Trial Chamber I, 27 April 2007, para. 18.

10 Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN, Pre-Trial Chamber I, 29 January 2007; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, ICC-01/04-01/07-717, Pre-Trial Chamber I, 30 September 2008.

11 Prosecutor v. Omar Hassan Ahmad Al Bashir (‘Omar Al Bashir’), Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-3, Pre-Trial Chamber I, 4 March 2009; Prosecutor v. Bahr Idriss Abu Garda, Decision on the Prosecutor's Application under Article 58, ICC-02/05-02/09-1, Pre-Trial Chamber I, 7 May 2009.

12 See Section 3 of Chapter II of the Rules of Procedure and Evidence, which is entirely dedicated to litigation in relation to admissibility issues.

13 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-01/04-01/07-1497, Appeals Chamber, 25 September 2009.

14 On self-referrals see Kress, C., ‘“Self-Referrals” and “Waivers of Complementarity”: Some Considerations in Law and Policy’, (2004) 2 Journal of International Criminal Justice 944CrossRefGoogle Scholar; Gaeta, P., ‘Is the Practice of “Self-Referrals” a Sound Start for the ICC?’, (2004) 2 Journal of International Criminal Justice 949CrossRefGoogle Scholar; El Zeidy, supra note 8, at 211–36, 274–83.

15 Situation in the Republic of Kenya, Request for Authorization of an Investigation Pursuant to Article 15, ICC-01/09-3, Office of the Prosecutor, 26 November 2009.

16 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, ICC-01/04601/07-949, Defence for Germain Katanga, 11 March 2009 (hereinafter Defence Motion).

17 Ibid., para. 53.

18 Situation in the Democratic Republic of the Congo, Judgment of the Prosecutor's Appeal against the Decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor's Application for Warrants of Arrest, Article 58’, ICC-01/04-169, Appeals Chamber, 13 July 2006

19 Ibid., para 42.

20 Ibid., para. 52.

21 See El Zeidy, supra note 8, at 253.

22 Defence Motion, supra note 16, para. 55.

23 Prosecutor v. Jean-Pierre Bemba Gombo, Judgment of the appeal of the Prosecutor against Pre-Trial Chamber II's ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa’, ICC-01/05-01/08-631-Red, Appeals Chamber, 2 December 2009.

24 Rome Statute, Article 21(2). See G. Bitti, ‘Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC’, in C. Stahn and G. Sluiter (eds.), The Emerging Practice of the International Criminal Court (2009), 293. See also V. Nerlich, ‘The Status of ICTY and ICTR precedents in Proceedings before the ICC’, in ibid., at 316 n. 43; A. Pellet, ‘Applicable Law’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. 2 (2002), 1066.

25 Prosecutor v. Germain Katanga, Warrant of Arrest for Germain Katanga, ICC-01/04-01/07-1-tENG, reclassified as public pursuant to the decision ICC-01/04-01/07-24 dated 18-10-2007.

26 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-1213 tENG, Trial Chamber II, 16 June 2009, para. 59.

27 Ibid., paras 70, 72–73.

28 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-01/04-01/07-1497, Appeals Chamber, 25 September 2009.

29 Prosecutor v. Jospeh Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Judgment on the Appeal of the Defence against the ‘Decision on the Admissibility of the Case under Article 19(1) of the Statute’ of 10 March 2009, ICC-02/04-01/05-408, Appeals Chamber, 16 September 2009.

30 Ibid., para. 85.

31 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-1213 tENG, Trial Chamber II, 16 June 2009.

32 Defence Motion, supra note 16, para. 10(a).

33 See also Rome Statute, Arts. 57(3)(d) and 99, which may be used only by the Prosecutor.

34 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the ‘Defence Application Pursuant to Article 57(3)(b) of the Statute to Seek the Co-operation of the Democratic Republic of the Congo (DRC)’, ICC601/04-01/07-444, Pre-Trial Chamber I, 25 April 2008.

35 Defence Motion, supra note 16, para. 10.

36 See, e.g., Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995), paras. 29–51; Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Vol. 1, Supp. No. 22, UN Doc. A/51/22 (1996), para. 154. See also R. Rastan, Complementarity – Contest or Collaboration?, FICHL Publication Series No. 7 (forthcoming 2010); M. A. Newton, ‘Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court’, (2001) 167 Military Law Review 20, at 47–8; K. Ambos, ‘The International Criminal Court and the Traditional Principles of International Co-operation in Criminal Matters’, (1998) 9 Finnish Yearbook of International Law 413, at 418; M. M. El Zeidy, ‘From Primacy to Complementarity and Backwards: (Re)Visiting Rule 11 Bis of the Ad hoc Tribunals’, (2008) 57 International and Comparative Law Quarterly 403, at 14.

37 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-1213 tENG, Trial Chamber II, 16 June 2009, para. 88.

38 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Vol. 1, Supp. No. 22, UN Doc. A/51/22 (1996), para. 250.

39 To understand the extent of the agreement between the OTP and the DRC in the Katanga case, it is interesting to note that the observations of the DRC on the admissibility challenge brought by Germain Katanga were in fact simply annexed to the observations of the Prosecutor, albeit as a confidential annex; see Katanga Decision, para. 5.

40 On prosecutorial discretion see also W. A. Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, (2008) 6 Journal of International Criminal Justice 731; C. Stahn, ‘Judicial Review of Prosecutorial Discretion: Five Years On’, in Stahn and Sluiter, supra note 24, at 247.

41 See also Cassese, A., ‘Is the ICC Still Having Teething Problems?’, (2006) 4 Journal of International Criminal Justice 434, at 436CrossRefGoogle Scholar.