The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC

Abstract

The first challenge to the admissibility of a case at the International Criminal Court was lodged by Germain Katanga in early 2009 - a milestone in the Court's evolution. This article examines the judgment on Kantaga’s appeal against the Trial Chamber’s decision that the case against him was admissible. The Appeals Chamber rejected Katanga’s appeal, and affirmed the admissibility of the case. However, it did not do so on the same basis as the Trial Chamber (that the DRC was unwilling). Rather, it looked at the plain language of Article 17, and found that at the time of the challenge the DRC was not investigating or prosecuting Katanga. This judgment can be seen as an example of judicial restraint. The Appeals Chamber dealt only with those questions which were necessary to dispose of the appeal. It did not engage in policy debates or seek to create new facts, but rather applied the Statute as drafted to the facts of the case before it. In doing this, the Appeals Chamber confirmed certain basic principles of the admissibility regime. It also provides an insight into the relationship between admissibility and “positive complementarity”.

This is a pre-review draft of a paper which will appear in Vol. 23(2) of the Leiden Journal of International Law (2010); please cite the published version once available.

Keywords: International Criminal Court, admissibility, judicial restraint, complementarity, positive complementarity, sovereignty