Complementarity Compromised? The ICC Gives Congo the Green Light to Re-Try Katanga

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.]

On 7 April 2016, the ICC made an important but troubling decision in the case of Germain Katanga. After reviewing a request from the authorities of the Democratic Republic of Congo (DRC), the ICC Presidency determined that, in spite of the Rome Statute’s prohibition of double jeopardy, a Congolese military tribunal may effectively re-try Katanga on charges of war crimes and crimes against humanity. In addition to fair trial concerns, this decision raises a number of questions about the ICC’s raison d’etre, in particular the relationship of international criminal justice to human rights law and the future of complementarity.

Readers of this blog will know that Katanga’s trial has generated significant controversy over the years, especially as regards the ICC judges’ use of Regulation 55 (covered by Kevin Jon Heller here and here). A Congolese rebel re-integrated into the national armed forces, Katanga was convicted of war crimes and crimes against humanity in March 2014. Later that year, the ICC sentenced him to twelve years imprisonment, of which he had already spent seven years in detention at the ICC. In November 2015, just 18 months into his sentence, the ICC decided that he was eligible for early release, meaning Katanga would be a free man in January 2016.

Everything seemed to be going well for Katanga, when in December 2015 he made the fateful and still inexplicable decision to return to the DRC to finish serving his sentence. Shortly after he was transferred to a prison in Kinshasa (together with his compatriot and fellow ICC inmate Thomas Lubanga), rumors surfaced that the Congolese authorities would want to prosecute Katanga domestically. Sure enough, a few weeks before his scheduled release, the Congolese authorities announced Katanga would be tried in the DRC for war crimes and crimes against humanity.

It should be noted at the outset that Katanga’s trial in the DRC is not prohibited as such by the Rome Statute. That multiple courts may assert jurisdiction over a single suspect flows from the ICC’s principle of complementarity. However, national prosecutions cannot violate Article 20 (2), which guarantees that “[n]o person shall be tried by another court for a crime… for which that person has already been convicted or acquitted by the [ICC].“

A reaffirmation of the cardinal human rights principle ne bis in idem (known as double jeopardy in the common law, though there are some differences), this provision basically ensures that ICC defendants will not be tried for the same crimes twice.

Simple enough in theory, Article 20 is not as clear as it should be. International crimes are by their very nature composites of multiple crimes, which means that unless a person is tried and convicted for everything they did in their first trial, there will almost always be additional charges that a thorough or overzealous national prosecutor can bring in domestic proceedings.

Thus, the key question is who gets to decide whether a national court may prosecute an ICC defendant for ‘a crime for which that person has already been convicted or acquitted.’ It would be extremely problematic if national courts were free to decide this vexing issue, especially in cases such as Katanga’s, where the defendant is a former rebel who fought to overthrow the government currently in power. Thankfully, the Rome Statute recognizes this risk and gives the ICC the final word:

A sentenced person in the custody of the State of enforcement shall not be subject to prosecution… unless such prosecution… has been approved by the Court at the request of the State of enforcement.

It is Article 108 (1) that lies at the heart of the ICC’s decision to allow Katanga’s trial before the DRC’s High Military Court. Though it is ostensibly a procedural safeguard for ICC defendants who go back to their country of origin, the ICC Presidency appears to have precious little time for Katanga’s fair trial rights. Citing the Libya admissibility challenges, the judges emphasize that the ICC ‘is not an international court of human rights’ (para. 31). In two brief but astounding paragraphs, the ICC dismisses Katanga’s concerns about an unfair trial in the Congolese military system, where he will have no access to legal aid and no right to appeal his judgment. Instead, the Presidency insists that the DRC is a party to the relevant international human rights treaties, so the Congolese authorities will have to provide legal aid and a right to appeal. An emblematic case of wishful thinking if there ever was one, it seems to make no difference to the ICC that these protections are simply not part of the domestic legal framework. The judges’ reasoning is that so long as the relevant international treaties provide guarantees ‘on paper’, the human rights box is ticked and the ICC can move on to more momentous matters.

This schematic approach to human rights is on stark display when it comes to the death penalty. Though mandatory in the DRC for international crimes, the Presidency relies on the DRC’s ‘written assurances’ that ‘the death penalty will not be sought against Mr. Katanga.’ It then hastens to add that ‘any such penalty would not, in any event, be carried out’ (para. 28), which is presumably a reference to the moratorium that has been observed in the DRC since 2003. It can only be assumed that the Presidency is unaware of the fact that the recently adopted ICC implementation law, which enters into force later this month, broadens the applicability of the death penalty to ICC crimes. Moratorium or not, the Congolese Parliament repeatedly rejected abolitionist efforts, despite years of lobbying by human rights groups to have the death penalty abolished through the ICC implementation law. Seemingly to drive that point home, on the same day the ICC announced its decision, a military court in eastern Congo sentenced six defendants to death.

There are legitimate and unresolved questions about the ICC’s role (or lack thereof) in monitoring fair trial rights at the national level, but what is troubling about the Presidency’s ambivalence in this regard is that it went much farther than it had to. In a paragraph that epitomizes the judges’ confusion about the wider systemic implications of this case, they assert that ‘the Court’s approval should only be denied when the prosecution… of sentenced persons may undermine certain fundamental principles or procedures of the Rome Statute or otherwise affect the integrity of the Court’ (para. 20). With the stroke of a pen, the judges effectively reverse a fundamental tenet of international human rights law: the prohibition of ne bis in idem goes from being the presumption to the exception. Absent exceptional circumstances, the ICC will not oppose domestic prosecution for any current or future ICC defendants. In a real twist of irony, the judges reach this conclusion because the law needs to be ‘interpreted in context, taking into account the purpose of the Rome Statute and the nature of the Court’ (para. 20).

Why is this decision so problematic and why should everyone, the ICC in particular, be concerned? As a preliminary matter, it should be recalled how Katanga ended up in The Hague in the first place. When he was transferred to the ICC in October 2007, Katanga had already spent more than two years in pre-trial detention in Congo on domestic war crimes charges. Citing the DRC’s proceedings against him, Katanga then challenged the admissibility of his ICC trial, arguing that – in accordance with complementarity, which gives states priority to prosecute – the ICC had to defer to the Congolese investigations and send him back to the DRC. At the time, the ICC was more than happy to accept Congolese assurances that the DRC could not and would not prosecute Katanga domestically, even though this was patently untrue since a domestic investigation was already underway. Yet, seven years later, the ICC suddenly rediscovers complementarity to justify the DRC’s renewed (what a surprise!) proceedings against Katanga, notwithstanding its earlier disavowal of the same principle. The irony seems lost on the judges again.

Some will argue that the many ironies of this case are beside the point, and what matters are the Rome Statute’s rules on ne bis in idem. In other words, whether we like it or not, domestic prosecutions of ICC convicts are allowed as long as they relate to different crimes than those tried by the ICC. It would thus seem important to know what Katanga’s trial in the DRC is about and how it relates to the ICC’s case against him?

Not for the ICC Presidency. Though the judges note that the DRC “must provide a number of documents detailing the intended prosecution, including a statement of the facts of the case and their legal characterization…” (para. 22), their decision is conspicuously silent on what the DRC has actually charged Katanga with, how that relates to the ICC’s conviction, and what this means for the principle of ne bis in idem.

This is not a coincidence. One of Katanga’s main complaints about his trial in Congo is that he still does not know what the charges are, in particular whether some acts are covered by a presidential amnesty. Though the Presidency’s decision fails to acknowledge it, the DRC initially refused to heed the ICC’s requests for information and has been dragging its feet on follow-up requests ever since. In Kinshasa, it is an open secret that the ICC and the DRC have clashed over the Katanga prosecution, with some reports even suggesting that the Congolese authorities threatened to break off all cooperation with the ICC if the DRC didn’t get its way.

This explains why, instead of performing a legal analysis of the DRC’s charges, the judges content themselves with yet more assurances from the Congolese authorities that Katanga’s domestic prosecution ‘relates to crimes other than those for which he has been convicted and acquitted by the Court’ (para. 22). This is more than a little surprising, given that the DRC’s charges (an outline of which is available here) concern two counts of murder as crimes against humanity (guilty of the same charge at the ICC) and the war crime of enlisting child soldiers (acquitted of the same charge at the ICC). The cumulative effect of this decision is that, despite there being serious concerns about the feasibility and coherence of the DRC’s case against Katanga, the Presidency’s standard of review for ne bis in idem challenges is that the state has to… assure the ICC that it will not violate the ne bis in idem principle. No more, no less.

What is one to make of all this? First, notwithstanding the inherent challenges of applying ne bis in idem to international crimes, it is to be hoped that the ICC will, in the future, provide guidelines as to when a domestic investigation is sufficiently distinct from an ICC case to merit a second trial. Surely this, not the DRC’s assurances, is the real legal question at the heart of a ne bis in idem challenge.

Second, this case exposes, yet again, the ICC’s limited enforcement options. The truth is that the Presidency had a stark and unpalatable choice: wait for details of Katanga’s domestic case and, after doing a proper ne bis in idem assessment, possibly reject the DRC’s motion; or look away and thereby ensure that the ICC’s cooperative relationship with the DRC, especially as regards the ongoing Ntaganda trial, is not jeopardized. Whatever we think of the many ironies of the Katanga saga, the Presidency probably calculated correctly that there will be less uproar about an ICC convict being re-tried than if yet another ICC case falls apart.

Third, the practical consequence of the Presidency’s current minimalistic standard of review is that there is little prospect that anyone who appears before the ICC, especially people acquitted by the ICC, will ever go back to their country of origin. Bemba, Ntaganda, Gbagbo, Ongwen… everyone is now on notice that the ICC is just the beginning. Suspects can and should expect a second (and why not a third or a fourth?) trial once they’ve done their time at the ICC.

Last, and most importantly, the Presidency seems to miss the irony that its decision raises serious questions about the ICC’s raison d’etre. If the presumption really is that domestic prosecutions against ICC defendants are allowed after ICC interventions, what implications does this have for ICC investigations and trials going forward? Maybe the Prosecutor shouldn’t waste time and resources charging individuals with a wide range of crimes, such as in the Ongwen case? The bigger question, though, is what purpose the ICC serves in the wider system of international criminal justice: if the ICC can try only a few cases per year, at a huge cost compared to national trials, only to then have virtually the same cases re-litigated at the national level, then maybe it’s better to just have a human rights court that monitors domestic war crimes trials? Not only will a human rights court be able to call a spade a spade; it might even provide an actual analysis of when trying the same suspect twice is lawful, something that is conspicuously absent from this decision.