Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Admissibility
264
The Appeals Chamber has previously held that
questions of a State’s unwillingness or inability
were not relevant in case of complete inaction
on the part of the State. In a decision on 25
September 2009 in the Katanga & Ngudjolo
case it stated that ‘if States do not or cannot
investigate and, where necessary, prosecute, the
ICC must be able to step in’. 1581
Article 19 allows the Defence, or a State that
has jurisdiction over a case, to challenge the
admissibility of a case based on the criteria set
forth in Article 17(1). Also, under Article 19(1),
the Court may, on its own motion, initiate
proceedings to determine whether a case
continues to meet the criteria for admissibility.
The burden of proof in an admissibility challenge
always lies on the party raising the challenge, 1582
meaning that it is their responsibility to prove
that a state has or will investigate and prosecute
a case, rather than for the Prosecution to
affirmatively prove that the state is inactive,
unable or unwilling to do so. Three challenges to
admissibility have been raised by the defence to
date, in the Bemba, Katanga and Mbarushimana
cases; one has been initiated by the Pre-Trial
Chamber on its own motion, in the Uganda
Situation; and only one has so far been lodged by
a state, in the Kenya Situation.
The first challenge to admissibility before the
ICC came from the Defence in the Katanga case
in 2009, 1583 who argued that the case against
Katanga was inadmissible due to the existence
of criminal proceedings against him in the
DRC at the time of his surrender to the ICC.
This argument was rejected by both the Trial
Chamber 1584 and the Appeals Chamber 1585 on
the basis that the DRC authorities were not
investigating or prosecuting Katanga for his
1581 ICC-01/04-01/07-1497, para 85.
1582 ICC-01/05-01/08-802, para 203.
1583 ICC-01/04-01/07-891-Conf-Exp.
1584 ICC-01/04-01/07-1213-tENG.
1585 ICC-01/04-01/07-1497.
involvement in the attack on Bogoro, which was
the subject of the case against him at the ICC,
and that in order to render a case inadmissible,
national criminal proceedings must involve
both the same person and same conduct as the
proceedings at the ICC. 1586
In 2009, the Pre-Trial Chamber also undertook
a review of the question of admissibility in
the Kony et al case on its own initiative. 1587
The reasons behind this decision were the
contradictory statements being made by
the Ugandan government regarding who
had jurisdiction over the suspects and the
developments within the country to establish a
Special Division of the High Court to deal with
war crimes. However, the Chamber found that,
in factual terms, nothing had changed in terms
of admissibility since the issuance of the Arrest
Warrants against the accused in that case in
2005, and in practice, the national authorities
could still be described as ‘inactive’ for the
purposes of Article 17, meaning that the case
remained admissible. 1588
In the Bemba case in 2010, the Defence sought
to challenge the admissibility of the case, on
the grounds that the existence of national
proceedings against Bemba in the Central
African Republic made the case inadmissible. 1589
This argument was again rejected by both
the Trial and Appeals Chambers, 1590 on the
basis that, although criminal proceedings had
been initiated against Bemba, they were first
dismissed on the basis of Bemba’s diplomatic
immunity as Vice-President of the DRC and
then dropped in favour of transferring the
case to the ICC, which left no obstacle to his
prosecution before the Court on the basis of
complementarity. 1591
1586 See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009, p 93.
1587 ICC-02/04-01/05-377.
1588 See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2009, p 92-93.
1589 ICC-01/05-01/08-704-Conf-Corr; public redacted version:
ICC-01/05-01/08-704-Red3-tENG.
1590 ICC-01/05-01/08-802 and ICC-01/05-01/08-962-Corr,
respectively.
1591 See further <strong>Gender</strong> <strong>Report</strong> <strong>Card</strong> 2010, p 180-183.