Author: Patryk Labuda

[Patryk I. Labuda is a Hauser Global Fellow at New York University School of Law.] News broke on Saturday, November 17, that the Central African Republic (CAR) had transferred Alfred Yekatom, alias ‘Rombot’ or ‘Rambo’, to the International Criminal Court (ICC). According to the arrest warrant, Yekatom has been charged with crimes against humanity and war crimes for acts allegedly committed...

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. He is currently on exchange at Harvard Law School.] The International Criminal Court (ICC) faces many problems. Some of them are well known, for instance its inadequate budget, accusations of anti-African bias, and withdrawals from the Rome Statute. But there is a far more insidious cancer that is eating away at the Court’s legitimacy: complementarity. As with so many other developments at the ICC, it is the situation in the Democratic Republic of Congo (DRC) that foreshadows some of the Court’s long-term dilemmas, many of which received too little attention in Rome. This post explores how the Prosecutor’s confused approach to complementarity undermines the Court’s mission in the DRC and, potentially, in other situation countries going forward. The ICC and Congo To hear Fatou Bensouda tell it, the ICC’s intervention in the DRC is something of a success story. The Court’s track record there seems positive, especially when contrasted with other ICC situations: Thomas Lubanga and Germain Katanga have been tried and convicted, and Bosco Ntaganda is currently on trial. Another Congolese, Jean-Pierre Bemba, is the Court’s only high-profile convict to date, even if his conviction formally stems from the situation in the Central African Republic. Thus, with the possible exception of Mathieu Ngudjolo’s acquittal in 2012, Congo is usually portrayed as a beacon of hope for an otherwise beleaguered institution struggling to gain legitimacy in Africa. But is this narrative of success compelling? A cloud of suspicion has hung over the ICC’s activities in the DRC ever since Joseph Kabila ‘invited’ the first Prosecutor, Luis Moreno Ocampo, to launch an investigation in 2004. Kabila’s ‘self-referral’ succeeded beyond his wildest dreams: lacking a strategy for a country the size of Western Europe, the Office of the Prosecutor (OTP) initiated sporadic prosecutions which targeted only Kabila’s rivals, including Bemba who had almost defeated him in the 2006 presidential election. In stark contrast, the Congolese government’s crimes received no scrutiny in The Hague. Thirteen years after Kabila’s invitation, the ICC’s neglect of government crimes is coming home to roost. The DRC is in the news for all the wrong reasons. Kabila’s refusal to relinquish power, despite being constitutionally required to do so, has stoked mass violence on several occasions, leaving dozens dead in the streets of Kinshasa and other cities. After a series of damning reports (see here and here), last month the UN High Commissioner for Human Rights formally requested a commission of inquiry to examine ‘recurrent reports of grave violations’. Most importantly from the ICC’s perspective, these reports show beyond a shadow of a doubt that the violence is part of a governmental strategy to keep Kabila in power at all costs. The pattern is familiar: each time the political opposition organizes protests, state agents – police and military – resort to deadly force. Yet despite thousands of cumulative deaths, reports of dozens of mass graves, and even graphic videos of summary executions by government troops, the ICC has been virtually absent from the debate about accountability. Why, despite such overwhelming evidence of state criminality, has the ICC not investigated Kabila and his supporters?

[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

[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.] As Kevin noted last week, the ICC Prosecutor has officially requested authorization to proceed with an investigation into alleged crimes committed during the 2008 Russo-Georgian war. Anticipated by ICC observers for some time, the announcement has prompted speculation about the prospects of a full-blown investigation involving a P5 country (Russia), as well as the geopolitical ramifications of the ICC finally leaving Africa. In this post, I would like to focus on a discreet legal issue with ramifications that may turn out to be equally important in the long run: the Prosecutor’s charges relating to crimes against peacekeepers and why this matters for the future of peacekeeping operations. In her submission to the Pre-Trial Chamber (PTC), the Prosecutor identifies two primary sets of war crimes and crimes against humanity that fall within her jurisdiction. In addition to the forcible displacement and persecution of ethnic Georgians, the Prosecutor plans to investigate “intentionally directing attacks against Georgian peacekeepers by South Ossetian forces; and against Russian peacekeepers by Georgian forces (Request PTC, para. 2).” Under the ICC Statute, attacks on peacekeepers are criminalized directly as war crimes. The two relevant provisions are articles 8 (2) (b) (iii) and 8 (2) (e) (iii), which apply to international and non-international armed conflict respectively: Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict (emphasis added). If, as is expected, the Pre-Trial Chamber grants the request to open an investigation, the key question facing the Prosecutor will be whether the peacekeepers in the 2008 conflict were really just that – peacekeepers? While this may seem like an unusual question, it should be emphasized that the facts are highly unusual, too. The Joint Peacekeeping Force (JPKF) in South Ossetia, which was established by the 1992 Sochi Agreement, comprised three battalions of 500 soldiers each provided by Russia, Georgia and North Ossetia. Though not formally a UN-mandated mission, it appears both the Security Council and the Organisation for Security and Cooperation in Europe recognized the JPFK as a peacekeeping operation (para. 149). However, the key point is that, unlike UN-mandated peacekeeping, the peacekeepers in South Ossetia were nationals of two of the three parties to the 2008 conflict: Russians and Georgians (South Ossetians were not allowed on the premises of the JPKF). In other words, the ICC Prosecutor’s charges relate to attacks against Russian and Georgian troops – deployed as part of a peacekeeping mission – in the context of an armed conflict where Russian, Georgian and South Ossetian troops fought against one another. Why does this matter? Although it appears that peacekeeping involving parties to a conflict is not prohibited (e.g. the UN does not appear to have an explicit policy against it, even if peacekeeper nationality has, in the past, been a contentious issue in UN operations), the composition of the JPKF in South Ossetia raises important questions about the application of international law to peacekeeping, and in particular the applicability of international humanitarian law and international criminal law to the attacks that the ICC Prosecutor plans to investigate. Irrespective of whether such peacekeeping is allowed ‘on paper’, I argue that the unusual composition of the JPFK will likely negate some protections that peacekeepers normally enjoy. The key legal issue that is likely to come before the ICC is who is entitled to peacekeeper status under international law? Although there is no international convention on peacekeeping (the UN Charter is silent on the matter as well), the rules applicable to peacekeeping are derived from over half a century of military practice, and it is generally accepted that three core principles apply: 1) consent of the parties, 2) impartiality and 3) non-use of force beyond self-defence. While there is much debate about the scope of these three principles, especially in recent peace operations, for the purpose of the Georgia investigation the important question will be whether the impartiality criterion was met.

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked in the Democratic Republic of Congo, Sudan and South Sudan.] Although international criminal law is increasingly assimilated with the International Criminal Court (ICC), hybrid justice remains surprisingly common thirteen...