On Friday 12 June 2009, Trial Chamber II at the International Criminal Court (ICC) unanimously dismissed the motion submitted by the Defence for Germain Katanga challenging admissibility in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui. The Defence had argued that the case was inadmissible because it violated the founding principle of the Court: ‘complementarity’.

The Trial Chamber found no grounds to support the submission that the principle had been violated, which the Defence maintained resulted from legal proceedings brought against Katanga before the courts in the DRC, partly for the same crimes. According to the principle of ‘complementarity’ enshrined in the Preamble and articles 1 and 17 of the Rome Statute, the ICC may only investigate and prosecute individuals when the State concerned is "unwilling or unable", thus giving precedence to national legal proceedings.

In dismissing the motion, Presiding Judge Bruno Cotte said that “the Democratic Republic of Congo has quite clearly decided to allow the court to institute proceedings against Germain Katanga and to put Germain Katanga on trial”.

The oral decision of the Court first dismissed the Defence argument that there was a procedural flaw in the issuance of the arrest warrant as a result of the failure of the Prosecutor to disclose information concerning investigations by the authorities in the DRC. The Court then considered the DRC’s willingness to prosecute, stating that it is sufficient for only one of the two criteria (‘unable or unwilling’) to be satisfied, with the intention of the State concerned assessed on a case-by-case basis. In determining that the DRC is “quite clearly unwilling to prosecute” Katanga, the Chamber noted that it was the DRC that referred the situation to the Court and made no objection to Katanga’s transfer, while in both its written observations and at the hearing of 1 June 2009, officials from the DRC stated their desire for the ICC to prosecute the case.

This was the first time that the Court had had the opportunity to consider a challenge to admissibility based on the complementarity principle.

Commencement of trial proceedings

Following the decision by the Court to dismiss the motion, trial proceedings against Katanga and his co-accused, Mathieu Ngudjolo Chui, are on schedule to commence on 24 September 2009 as announced by the Court in March 2009. Both accused are charged with war crimes and crimes against humanity for alleged crimes committed in the Ituri region of eastern DRC.

Germain Katanga, also known as ‘Simba’, is the former commander of the Force de résistance patriotique en Ituri (FRPI) and Mathieu Ngudjolo Chui is the former leader of the Front des nationalistes et intégrationnistes (FNI). The accused were transferred to the Court on 17 October 2007 and 6 February 2008 respectively, with their cases joined on 11 March 2008.

Germain Katanga

Mathieu Ngudjolo Chui