Sort of like Marbury V. Madison for the international law set

Mark Leon Goldberg - June 2, 2009 - 11:30 am

Contrary to popular perception, the International Criminal Court does not have universal jurisdiction over war crimes.  Rather, it operates under a unique legal principal called "complementarity" which stipulates that the ICC will only investigate crimes if national courts are unable or unwilling to do so.  The idea is to preference trials at the local level, and in so doing make the ICC only a "court of last resort."

The principal of complementarity had been generally untested since the court's founding in 2002.  That is, until yesterday--when defendant Germain Katanga, a Congolese war lord, filed a motion to challenge the ICC's jurisdiction in his trial for crimes against humanity. 

Katanga's counsel argues that complementarity was too narrowly applied and that the ICC should have left his case to Congolese authorities. Actually, it's slightly more complicated than that.  Bec Hamilton, who has been twittering from the proceedings, explains in plain English.

In essence it comes down to a fight over the meaning of the word "case." In this morning's hearing I expect we will see the Prosecution argue that the case against Katanga was not being investigated or prosecuted by the DRC, and they will do so using the definition of the word "case" that Pre-Trial Chamber I established several years ago in Lubanga - Namely that a case involves the same person and 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." (Decision of Pre-Trial Chamber I, 24 Feb. 2006, para 37). Therefore, the fact that the DRC were investigating Katanaga is not, in and of itself, enough to make the case inadmissible. It would only be inadmissible if they were also investigating him for the same conduct as in the ICC case.

By contrast, the Defense has argued in its submissions that this interpretation of the word "case" is too narrow. They also argue that the DRC authorities would have started looking at the conduct the ICC is now looking at if the ICC had not begun its investigation.

In short, the guiding jurisdictional principal of the ICC is being tested.  How the judges rule on this motion will have a profound impact on the whole edifice of international criminal justice and international humanitarian law. For all you international legal eagles this is certainly something to keep an eye on.

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