The Principle of Complementarity under Scrutiny
The ICC Rules DRC Unwilling to Prosecute
Katanga in Attack of Bogoro Village
Refugee Rights News
June 2009
Germain Katanga, former commander of the Force de résistance patriotique en Ituri (Patriotic Resistance
Force in Ituri, FRPI), was arrested by Democratic Republic of Congo (DRC) authorities in March 2005. He
was detained to facilitate his trial before the Supreme Military Court of Kinshasa on charges of genocide
and crimes against humanity, particularly for the murder of nine Bangaldeshi MONUC (Mission de
l’Organisation des Nations Unies en RD Congo) peacekeepers. During the course of his examination by the
DRC authorities, Katanga stated that he had committed acts in several locations in Ituri District, including
Bogoro village. In July 2007, a warrant for his arrest was issued by the Hague-based International Criminal
Court (ICC) for eight counts of crimes against humanity and war crimes, including rape, murder and
enlisting child soldiers, largely surrounding the attack on Bogoro village. The DRC authorities surrendered
Katanga to the ICC in October 2007.
Katanga and Mathieu Ngudjolo Chui, former leader of the Front des nationalistes et intégrationnistes
(National Integrationist Front, FNI) are charged before the ICC with leading soldiers of the Lendu and Ngiti
ethnic groups in an attack of Bogoro village, residents of which were mostly of the Hema ethnicity, on 24
February 2003. (For more information, see “Arrest of Mathieu Ngudjolo Chui Marks a Milestone in the
Fight Against Impunity in the Congo,” Refugee Rights News, Volume 4, Issue 2, April 2008) It is alleged
that the attack was launched not only to wipe out the Hema villagers, but also to gain control of the prime
transit route between Bunia and Lake Albert. Allegedly, the soldiers set up barricades on roads out of the
village in order to kill those attempting to flee. Unarmed civilians were murdered and burnt inside their
homes. Soldiers allegedly ordered hostages to call out to their family members and neighbours that the
attacks were over in order to lure more people from their hiding places. Approximately 200 people were
killed during the attack.
The ICC Prosecutor alleges that those villagers who survived were detained in cells filled with corpses,
many women and girls were raped and taken as soldiers’ “wives” and forced to accompany the soldiers.
Cars and other property belonging to the villagers were taken and houses set on fire and destroyed.
Katanga and Chui are alleged to have used children as escorts, bodyguards and soldiers.
On 1 June 2009, Katanga’s defence submitted a motion challenging the admissibility of the case, citing the principle of complementarity in the Rome Statute which provides that the ICC may intervene only when the state is unable or unwilling to prosecute or investigate. The defence stated that there is a presumption that the case is inadmissible in that there was no evidence that the DRC is unwilling or unable. In fact there were legal proceedings in the DRC brought against Katanga partly for the same crimes. They pointed out that during a hearing to extend Katanga’s detention in the Supreme Military Court of Kinshasa years earlier, in March 2007, Bogoro village was listed among ten locations in which civilians were killed. Katanga himself had also communicated to his lawyers that he wished to be tried before DRC courts and not the ICC.
The ICC Prosecutor submitted that there had in fact been no national investigations into the attack of
Bogoro village, a point further supported by the Office of Public Counsel for Victims representing some of
the victim participants in the case.
A representative of the DRC government appeared before the Court and confirmed the statements by the
ICC Prosecutor and the victims’ legal representative – the first time in the ICC’s history that a state party to
the Rome Statute has spoken during a hearing. The DRC representative stated that national prosecutorial
authorities did not investigate the case of the Bogoro village attack because they had difficulty accessing
the site. At that time, the DRC government did not have effective control or authority over Ituri, a district
controlled by various rebel groups. Katanga was indeed investigated and prosecuted before the Supreme
Military Court in the DRC, but in relation to the murder of Bangladeshi MONUC peacekeepers and not the
attack on Bogoro village. The DRC representative further stated the Chamber should dismiss the
inadmissibility request and prosecute Katanga and that returning Katanga to the DRC would cause tension
between the ICC and the DRC.
The Concept of Complementarity
Much has been written about the concept of complementarity, an integral design element of the ICC, set
forth in Article 17(1) of the Rome Statute which states that “a case is inadmissible where the case is being
investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable
genuinely to carry out the investigation or prosecution”. The Katanga defence counsel’s motion challenging
admissibility on the basis of a violation of complementarity was the first in-depth judicial debate about the
concept. Katanga’s defence argued that the ICC is fundamentally different from the International Criminal
Tribunals for Rwanda and Yugoslavia by virtue of the principle of complementarity, which prevents the ICC
from proceeding unless states’ judicial systems have failed or do not wish to proceed with investigations or
prosecutions themselves.
On 12 June 2009, the three Judges of the Trial Chamber II (TCII) delivered their unanimous decision
rejecting the challenge to admissibility raised by Katanga’s defence. TCII emphasised that Article 1, Article
17 and paragraph 10 of the Preamble of the Rome Statute must all be read in conjunction to underscore
the importance of complementarity and the exception being only when domestic judicial systems are
unwilling or unable to investigate or prosecute. TCII ruled that it is sufficient for only one of the two criteria
to be met, in this case the DRC was unwilling to prosecute the case. TCII gave significant weight to the
DRC representative's testimony during the 1 June 2009 hearing in considering the role of a state referral in
determining where there is evidence of unwillingness.
Legal Interpretations of “Case”
Much of the controversy regarding admissibility revolved around the word “case”. The defence contended
that the term implies merely an individual, and therefore because DRC was investigating Katanga at the
time his arrest warrant was issued, under the principle of complementarity, the ICC was precluded from
hearing the case. The prosecution argued that the term should be interpreted as encompassing both a
person and the specific conduct of that person, and therefore the fact that DRC was investigating Katanga
was not enough to divest the ICC of jurisdiction, as such investigation did not involve the events in
question, i.e., the Bogoro village attack.
In February 2006, the Pre-Trial Chamber I of the case Prosecutor v. Thomas Lubanga Dyilo held that the
word “case” means the same person and the 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”). TCII avoided providing a definition for the term “case”, and
instead of ruling on the basis of procedural considerations that the motion was filed too late (i.e., that it
should have been filed before the Pre-Trial Chamber prior to confirmation hearings), the Court decided to
also provide a ruling on the merits of the motion. TCII concluded that it is not the Court’s position to
determine a state’s reasons for not investigating or prosecuting a case, but rather when determining
whether a state is unwilling to act, the Court must determine the state’s intentions to institute proceedings
against the individual in question. The Court can look to the state’s proceedings or the state’s
demonstrations of its intentions “in a general manner”. In this case, the situation was referred to the ICC by
the DRC itself. The DRC state representative in the 1 June 2009 hearing urged the ICC to proceed with
prosecution of Katanga. Therefore, the Court concluded, “[t]he Chamber can do no more than note the fact
that the DRC is quite clearly unwilling to prosecute this case”.
Opening the Door to Outsourcing?
There have been some criticisms that the TCII’s ruling, in accepting a state’s expression that it is unwilling
to investigate or prosecute at face value, subverts the concept of complementarity and turns the ICC into a
court of first, rather than last, resort. (See, e.g., Bec Hamilton, “ICC will Judge Katanga”) It is also
questionable whether it is fair for the representatives of a State Party to speak for the country’s many
constituents, to testify in judicial proceedings that the State Party cannot or does not want to investigate or
prosecute. Giving such weight to their testimony may give rise to a “democratic deficit” and mute the
desires of victims and national prosecutors who wish for perpetrators to be prosecuted on home soil.
There is some fear that TCII’s ruling shifts complementarity from a principle that encourages states to
invest in their domestic legal systems to a system that discourages it by allowing “outsourcing” of cases to
the ICC. Scholars such as William Schabas argue that national justice systems must be encouraged to
assume their responsibilities to investigate and prosecute cases, and that the ICC should not be hasty to
prosecute those who are already before national proceedings. (See William Schabas, “Stay of
Proceedings Ordered by International Criminal Court Trial Chamber in Lubanga Case”)
One Crime Out of Many
Some critics argue that the ICC’s Office of the Prosecutor (OTP) has inappropriately asserted its jurisdiction
by exploiting national prosecutorial discretion to disregard one particular incident among many during
widespread violence. During the 1 June 2009 hearing, TCII asked the prosecutor how he had chosen the
Bogoro village attack among the acts allegedly committed by Katanga. In response, the prosecution stated
that it wanted to focus its investigations so as to bring the accused before the court as expeditiously as
possible, considering security, witness protection and judicial resources, and thus it chose an incident that
resulted in many deaths and was “representative”, i.e., was carried out by two groups, the FNI and FRPI. The OTP also stated that it had as yet not made “negative decisions” not to prosecute a case that it had
investigated.
The line of questioning during the hearing echoed similar concerns during the Lubanga trial when Lubanga
was removed from facing the relatively more serious crimes of genocide and crimes against humanity in the
Congolese justice system to face prosecution for the relatively lesser offence regarding child soldiers in The
Hague. (See William Schabas, “Prosecutorial Discretion v. Judicial Activism at the International Criminal
Court,” Journal of International Criminal Justice 6(4) (2008): 744.) If the ICC adopts the perspective that it is
permissible for the OTP to focus on discrete incidents which are intentionally not pursued by national
prosecutors, what happens if a state attempts to prosecute an individual, but differs from the ICC on which
conduct to prosecute? The fear is that the ICC’s adoption of such a view could disrupt national proceedings
in states that wish to keep jurisdiction. In the case of Katanga, TCII ruled that, given the referral by the DRC
and DRC’s representatives’ testimony, the DRC was unwilling to investigate or prosecute the Bogoro
attack. If, alternatively, a state attempts to prosecute in good faith but differs from the ICC’s perspective on
which incidents are most important to prosecute, if motions challenging admissibility are to be successful,
the other criterion of the state’s inability to investigate or prosecute will have to be proved.