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FACULTY OF LAW
Lund University
Daniel Davidson
Contemporary Aspects of Complementarity between National Courts and The
International Criminal Court
JAMM04 Master Thesis
International Human Rights Law
30 higher education credits
Supervisor: Christoffer Wong
Spring Term 2013
Acknowledgements
Someone once told me that I ‘climb huge walls’, and at the time, although
touching in context, it sounded somewhat cheesy too. But looking back on these
last two years, and the last semester in particular, I see that I have climbed yet
another of life’s great walls. But like all climbers, I have not managed this alone. I
have been supported and helped by an amazing support group. Some obvious.
Others less so.
Firstly, and most predictably, I would like to thank my mum, even if you were less
than enthusiastic when I told you I planned to study for two more years after my
bachelors. You supported me wholeheartedly when you realised how much it
meant to me, so thank you.
To my current supervisor, Christoffer Wong, your insightful comments and habit
of challenging me throughout the research and drafting of this thesis was much
appreciated. I must also acknowledge two remarkable and inspirational women.
Firstly Iryna Marchuk, whose teaching and support both in and out of the lecture
hall have inspired and driven me to get this far, and secondly Caroline Fournet,
who has supported and encouraged my academic foray into human rights and
international criminal law since 2009. Credit must also go to Lena Olsson, head
librarian at the RWI: you will surely be missed.
‘People of the world!’ You have made my time at Lund truly amazing. I thank
you all for the supportive shoulders, laughs and excessive coffees. You all helped
to make Lund what it was to me these last two years, and I wish you all the
absolute best of luck with your future endeavours.
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Table of Contents
Chapter Heading Page
Acknowledgements i
Table of Contents ii
List of Abbreviations iv
Abstract v
Summary vi
1 Introduction 1
1.1 Research Questions and Purpose 1
1.2 Methodology 2
2 The Principle of Complementarity Under 6
Article 17 of the Rome Statute
2.1 Complementarity: An Outline 6
2.2 Article 17 of the Rome Statute 7
2.2.1 Article 17(1) and Inactivity 9
2.2.2 Article 17(2) and Unwillingness 10
2.2.3 Article 17(3) and Inability 13
3 The Effect of a Security Council Referral 16
on Complementarity
3.1 Article 13(b) of the Rome Statute 17
3.2 Article 18 of the Rome Statute 18
3.3 The Obligation of Cooperation 21
3.3.1 Does the Obligation of Cooperation 21
Bypass Complementarity?
3.3.2 What is the Extent of the Obligation of 26
Cooperation?
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3.4 Summary 27
4 The Relinquishment of Cases from the 29
International Criminal Court To National
Courts
4.1 Procedural History of the Saif Al-Islam 30
Gaddafi Case
4.2 Relinquishing a Case: Is it a Legal Possibility 32
Under the Rome Statute?
4.2.1 Relinquishment and Complementarity 34
4.2.2 Relinquishment and the Rome Statute 35
4.2.3 Relinquishment and Due Process 38
5 Conclusions 44
Bibliography 48
Table of Cases 51
Table of Instruments54
Documents57
Websites57
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List of Abbreviations
AC Appeals Chamber
DRC Democratic Republic of Congo
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
LRA Lord’s Resistance Army
OPCD Office of Public Council for the Defence
OTP Office of the Prosecutor
PTC I Pre-Trial Chamber I
PTC II Pre-Trial Chamber II
PTC III Pre-Trial Chamber III
Rome Statute Rome Statute of the International Criminal Court
SCSL Special Court for Sierra Leone
TC II Trial Chamber II
UN United Nations
UN Charter Charter of the United Nations
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VCLT Vienna Convention on the Law of Treaties
Abstract
The relationship between the International Criminal Court and national judicial
systems is governed by the principle of complementarity, which under Article 17
demands that only if a State is unwilling or unable to exercise its jurisdiction over
international crimes can the case be declared admissible by the International
Criminal Court, and therefore fall within its jurisdiction. However, the
unprecedented challenge to admissibility by the Libyan government in the
ongoing Saif Al-Islam Gaddafi case raises several questions concerning previously
unexplored aspects of complementarity, two of which this thesis will examine.
Firstly, it will ascertain whether a Security Council referral to the International
Criminal Court can bypass complementarity. Secondly, it will investigate
whether the International Criminal Court can relinquish a case to a State’s
judicial system during the pre-trial phase of a case.
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Summary
The principle of complementarity governs the relationship between the
International Criminal Court and national courts, and maintains that States have
primacy to prosecute international crimes, but that the ICC may exercise its own
jurisdiction if States should fail to do so. The main provision of the Rome Statute
outlining complementarity is Article 17, which asserts that if a State is unwilling
or unable to prosecute genuinely international crimes, the case will be
admissible before the ICC and therefore within its jurisdiction.
The Saif Al-Islam Gaddafi case indicates that Article 17 is not
entirely exhaustive and there may exist at least one previously unconsidered
caveat. The main caveat that this thesis will explore is that of ‘relinquishment’,
that is, whether the ICC can and will defer its jurisdiction over a case if it can be
proven that a State’s status of either being unwilling or unable to prosecute
genuinely has changed so as to allow the State in question to once again have
jurisdiction according to Article 17 of the Rome Statute. The basis of this
question is the Saif Gaddafi case, which is currently before the ICC.
This thesis will therefore provide a comprehensive outline of Article
17, focusing specifically upon how the ICC has defined the concepts of unwilling
and unable. It will then address the question of whether a Security Council
referral to the ICC has the ability to bypass complementarity; this is important, as
if this is indeed the case, then it would create a potentially insurmountable
obstacle to the relinquishment of cases in certain circumstances, which may
impact upon relinquishment and its possible use as a whole. Finally,
relinquishment will be assessed by interpreting both Article 17 and other
provisions that touch upon complementarity, as well as wider legal
considerations, most notably due process.
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1. Introduction
The International Criminal Court (hereafter ICC) is currently faced with a highly
interesting case concerning Libya resulting from a Security Council referral of the
situation of the Libyan civil war in 2011.1 On 27 June 2011 the ICC in turn issued
arrest warrants for Colonel Gaddafi, his son Saif Al-Islam Gaddafi (Saif Gaddafi)
and the head of Military Intelligence, Abdullah Al-Senussi.2 Saif Gaddafi has since
been detained by the Libyan State, but they are contesting the jurisdiction of the
ICC, claiming that a national investigation is ongoing and that they are neither
unwilling nor unable to prosecute him in a national court.3 This challenge is
based on the principle of complementarity, which asserts that the ICC will only
take a case if a State is either unwilling or unable to prosecute alleged
perpetrators of international crimes. A challenge of admissibility in this manner
is unprecedented in the ICC’s ten year history, and the fact that the case resulted
from a Security Council referral has the potential to further complicate matters.
It is this unprecedented aspect of complementarity within the legal framework of
international criminal law that the research questions of this thesis will focus on.
1.1 Research Questions and Purpose
This thesis will consider the conditions that have manifested themselves in the
Saif Gaddafi case: a State previously declared unwilling or unable by the ICC
considers itself to be willing and/or able at a later date. There are two research 1 S/RES/1970 (2011), adopted by the Security Council in its 6491th meeting, 26 February 20112 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/01-01/11-2, Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, PTC I, 27 June 2011 (revoked after his death, see Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-28, Decision to Terminate the Case Against Muammar Mohammed Abu Minyar Gaddafi, PTC I, 22 November 2011); Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-3, Warrant of Arrest for Saif Al-Islam Gaddafi, PTC I, 27 June 2011; Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-4, Warrant of Arrest for Abdullah Al-Senussi, PTC I, 27 June 20113 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-82, Notification and Request by the Government of Libya in Response to ‘Decision on Libya’s Submissions Regarding the Arrest of Saif Al-Islam Gaddafi’, PTC I, 22 March 2012, para. 2
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questions addressed in this thesis. The first is ‘what effect does a Security
Council referral of a situation to the ICC have on complementarity?’, most
notably examining whether such referrals can bypass the principle of
complementarity. The second research question is ‘can and will the ICC
relinquish a case back to a State if it’s status as unwilling or unable changes,
making it willing and/or able?’. As questions have been asked about whether
Security Council referrals can bypass complementarity entirely, it is pertinent this
is examined first. It would be putting the cart before the horse to examine
relinquishment, a concept that could arguably be said to champion
complementarity and the duty of States to prosecute at the national level,
without first examining whether anything exists that could prevent both
complementarity and relinquishment being used in practice.
The purpose of these research questions is to address the
previously unthought-of of notion of relinquishment. Relinquishment as an
aspect of complementarity is not formulated in the Rome Statute, nor has it
been considered by the ICC in its case law, or by academics. This means that the
formulation of relinquishment and its analysis in this thesis is an original
contribution to the research and development of complementarity in
international criminal law. The importance of relinquishment is that if a
previously unwilling or unable State becomes willing or able during the pre-trial
phase, relinquishment would allow complementarity to function as it was
intended, i.e. that States will prosecute at the national level if they so choose.
However, if relinquishment were not to be an accessible option, this
fundamental principle of complementarity would be frustrated. The purpose of
this thesis is not to provide solid conclusions, but to introduce relinquishment
into the arena of international criminal law and to provide a basis for future
academic debate and research.
1.2 Methodology
The first substantive chapter examines the principle of complementarity as
stated in the Rome Statute. Although there are several provisions of the Rome
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Statute that give substance to complementarity, such as Articles 18 and 19,
Article 17 is the provision with the most explicit and comprehensive description
of the principle, and for this reason it will be the sole focus of the chapter.
However, Articles 18 and 19 will be discussed in the final chapter when support
for relinquishment within the Rome Statute is considered. Article 17 asserts that
the ICC’s jurisdiction is applicable if States are either unwilling or unable to
exercise their own jurisdiction over cases concerning international crimes. This
section will analyse how the ICC has determined the parameters of the concepts
of unwilling and unable by way of a ‘black letter’ methodology of Article 17.
The primary source of law pertaining to Article 17 is the Rome
Statute, with its various commentaries as secondary sources; both will be used to
formulate an outline of complementarity under Article 17. The older Cassese,
Gaeta and Jones commentary relied only on the preparatory works of the Rome
Statute and academic contextual analysis based on the preparatory discussions,
whereas the newer commentaries by Triffterer and Schabas utilised both the
preparatory works and the case law of the ICC to develop the analysis. By using
these commentaries, the textual analysis of Article 17 will reflect both the black
letter law of the Rome Statute as well as how the ICC has interpreted Article 17,
enabling a more comprehensive understanding of complementarity. Case law
which illustrates the interpretative analysis by the ICC of the terms ‘unwilling’
and ‘unable’ will also be used in this section. This chapter will draw on five
authoritative cases from the ICC, all of which have been used to further develop
or explain the meaning of unwilling and unable according to Article 17. The
general trend of ICC case law pertaining to unwillingness and inability is to follow
the wording of Article 17, as a way of simultaneously preventing impunity and
promoting genuine prosecutions at the national level, which will be examined in
more detail later.
The next chapter will analyse the effects of a Security Council
referral to the ICC on the principle of complementarity to see if they create an
obstacle to the relinquishment of cases. To do this, the first section of this
chapter will examine Article 18 of the Rome Statute and the duty of cooperation
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contained within the resolution from the Security Council that refers a situation
to the ICC. Article 18 concerns preliminary rulings of admissibility in connection
to the various trigger mechanisms of the ICC’s jurisdiction as expressed in Article
13. An academic discussion concerning the wording of Article 18 raises the
question of whether it implies a Security Council referral of a situation to the ICC
can bypass complementarity, so an examination of the debate and the academic
writings and a linguistic analysis will be necessary to identify the possible effect
of a referral when using Article 18. The second aspect of this chapter is to
determine what the duty of cooperation demanded in Security Council referrals
requires of States, as it may be read as allowing complementarity to be
bypassed. If this is the case, it would present an insurmountable obstacle to the
relinquishment of cases, as least concerning cases originating from situations
referred by the Security Council. To determine the scope of cooperation, this
section will employ a comparative analysis of academic opinions based on the
Charter of the United Nations on the one hand, and the Rome Statute on the
other, using relevant documents from the ICC and the Office of the Prosecutor
(OTP) to supplement these arguments.
The final substantive chapter will turn to the question of whether
the ICC can relinquish a case, and what legalities it may consider when
deliberating such a question. As the Saif Gaddafi case is currently the only case
in which a State has contested the admissibility of the ICC and demanded the
case be relinquished, this chapter will first provide a procedural history of the
case using select documentation to illustrate how the ICC has approached the
issue thus far. These documents will be referred to in the discussion that
follows. Secondly, this chapter will examine whether relinquishment is a legal
possibility. To do this, the framework of complementarity according to Article 17
of the Rome Statute shall be re-examined briefly, but rather than a general focus,
it will do so in light of relinquishment only, to ascertain whether relinquishment
is possible under the principle of complementarity.
This will then be followed by an interpretative examination of other
provisions of the Rome Statute connected to complementarity which may be
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used to either support or refute the possibility of relinquishment. By expanding
the examination beyond Article 17, this section hopes to illustrate the
ambiguities that currently surround relinquishment which may impact on the
ICC’s deliberations concerning the Rome Statute as a whole. Finally, this chapter
will examine specific due process issues. Although many such issues could be
raised, the thesis will only discuss those raised or alluded to in the
aforementioned documentation of the Saif Gaddafi case, to anchor the
discussion in actual ICC practice. Recourse will be made to academic arguments,
the international standards of due process and the practice of other international
courts to highlight possible courses of action by the ICC when considering
relinquishment.
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2. The Principle of Complementarity Under Article 17 of the Rome Statute
The fundamental principle of State sovereignty in international law means that
States exercise a supreme authority4 over everything that affects the governance
of the State, the exercise of criminal law being one of the central prerogatives of
State sovereignty. However, the central aspect of the ICC’s purpose, as
articulated in the Rome Statute of the International Criminal Court (hereafter the
Rome Statute), was that it would have jurisdiction over the most serious
international crimes.5 We are therefore presented with a certain tension: under
State sovereignty national courts have ultimate authority over their citizens and
their laws, but the ICC is an international court that can also exercise its own
jurisdiction in cases of genocide, war crimes and crimes against humanity.6 And
it is here that we find complementarity, acting as a principle to solve the problem
of concurrent jurisdiction by providing ‘appropriate rules of the road’ when the
ICC and a State are both capable of prosecuting.7
2.1 Complementarity: An Outline
Complementarity, as expressed in the Preamble8 and in Articles 1 and 17, is
widely considered to be a ‘cornerstone’9 of the Rome Statute and as a principle
was ‘carefully negotiated’ by States to ensure their ‘sovereign rights…would not
be encroached upon by the [ICC]’.10 It is therefore stated that ‘the [ICC]…shall be
4 Jennings and Watts, Oppenheim’s International Law, Vol. I, Peace: Introduction and Part I, 9 edn., Longman, 1992, p.1225 Article 1, The Rome Statute of the International Criminal Court (adopted 17 July 1998, as corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002, entered into force 1 July 2002)6 Ibid.; Article 57 Clark, ‘Complementarity and the Crime of Aggression’, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. II, Cambridge University Press, 2011, p.7238 Preambular para. 109 Williams and Schabas, ‘Jurisdiction, Admissibility and Applicable Law’, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observer’s Notes, Article by Article, 2 edn., Beck, 2008, p.60610 Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2010, p.336
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complementary to national criminal jurisdictions’,11 meaning that the
prosecution of international crimes ‘lies primarily with national jurisdictions’.12
However, to prevent impunity of perpetrators of international crimes, the
primacy of State jurisdiction is not unfettered and the ICC can exercise its
jurisdiction where ‘national legal systems fail to do so’.13 In such cases, the
‘ultimate purpose of complementarity is to establish a division of labour’14
between national courts and the ICC. It can therefore be said that
complementarity is primarily an organising principle used to regulate concurrent
jurisdictions in international criminal law cases,15 which provides for an
alternative legal forum in the framework of the ICC should States not fulfil their
jurisdictional obligations.
With this context and definition as our point of departure, this
chapter shall further explore the principle of complementarity through an
examination of its parameters under Article 17 of the Rome Statute by analysing
the unwillingness and inability tests found therein. Although the test of gravity
forms part of Article 17, it is beyond the focus of this thesis to consider it, for the
obvious reason that if the Security Council refers a situation it must be
considered to be grave by the international community, whereas relinquishment
concerns active cases that the ICC has already determined to be serious enough
to trigger its jurisdiction.
2.2 Article 17 of the Rome Statute
11 Loc. cit. n.8; loc. cit. n.512 Prosecutor v Thomas Lubanga Dyilo ICC-01/04-01/06, Decision on the Practices of Witness Familiarisation and Witness Proofing, PTC I, 8 November 2006, para. 34. It must be noted that, although this comment comes from the ICC, it is not legally binding and should be considered as obiter dictum and not as ratio decidendi.13 Informal expert paper: The Principle of Complementarity in Practice, ICC-01/04-01/07-1008-AnxA, 30 March 2009, para. 114 Politi, ‘Reflections on Complementarity at the Rome Conference and Beyond’, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, Cambridge University Press, 2011, p.14515 Stahn, ‘Introduction: Bridge over Troubled Waters? Complementarity Themes and Debates in Context’, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, Cambridge University Press, 2011, p.1
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The term complementarity is found in Preambular paragraph 10 and Article 1 of
the Rome Statute, both of which assert that the ICC shall be ‘complementary to
national criminal jurisdictions’, and is referred to in Article 17(1). It is Article 17
that acts as the principle mechanism that ‘governs the admissibility of cases and
puts complementarity into action’,16 as evidenced in paragraph 1:
1. Having regard to paragraph 10 of the Preamble and Article 1, the [ICC]
shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has
jurisdiction over it, unless the State is unwilling or unable genuinely to carry
out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it
and the State has decided not to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of the State genuinely to
prosecute;
(c) The person concerned has already been tried for conduct which is the
subject of the complaint, and a trial by the [ICC] is not permitted under
article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the [ICC].
In the event that a State is investigating or prosecuting international crimes that
fall within the jurisdiction of the ICC under Article 5 of the Rome Statute,17 the
case shall be deemed inadmissible by the ICC. However, as Schabas rightly
claims, ‘admissibility is about the exercise of jurisdiction rather than its
existence’,18 so should it be established that the State is not exercising its
jurisdiction by being unwilling or unable to genuinely investigate or prosecute
international crimes, then the ICC’s concurrent jurisdiction will be engaged and
the case will become admissible before the ICC. This has been referred to as the
‘courtesy first, penalty second’ approach, as according to Article 17 and by
16 Drumbl, ‘Policy Through Complementarity’, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, Cambridge University Press, 2011, p.20017 The crime of genocide, crimes against humanity, war crimes and the crime of aggression.18 Schabas, op. cit. n.10 above, p.340, emphasis added.
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extension the crux of complementarity as a whole, only the sovereignty of willing
and able States is to be respected.19 There is therefore much resting on the
unwilling and unable tests in Article 17, but what factors dictate the
unwillingness or the inability of a State to genuinely investigate or prosecute
Article 5 crimes?
2.2.1 Article 17(1) and Inactivity
Although only being a minor aspect of Article 17 for the focus of this thesis, the
test of inactivity must nonetheless be briefly addressed before we examine the
concepts of unwillingness and inability to provide a complete analysis of
complementarity under Article 17. If we take Article 17(1)(a) as an example,
which reads ‘…the [ICC] shall determine that a case is inadmissible where: (a) The
case has been investigated or prosecuted by a State with jurisdiction over it,
unless…’,20 we see that the construction of Article 17 dictates that if a State is
active by initiating its own proceedings then the case is inadmissible before the
ICC. This interpretation of Article 17(1)(a), (b) and (c) is supported by case law,
in which cases not being investigated at the national level are automatically
admissible before the ICC.21 Therefore, as Robinson claims, ‘…[t]he
“unwilling/unable” test is…an exception to the basic conditions specified in
Article 17(1)(a), (b) and (c)’ and there will be no need for the ICC to examine
unwillingness or inability if a State has been inactive.22 In coming to this 19 Yang, On the Principle of Complementarity in the Rome Statute of the International Criminal Court, 4(1) Chinese Journal of International Law (2005) 121, p.12520 Emphasis added.21 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-US-Corr, Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, PTC I, 10 February 2006, para. 29; Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Al Abd-Al-Rahman, ICC-02/05-01/07-1-Corr, Decision on the Prosecution Application under Article 58(7) of the Statute, PTC I, 27 April 2007, paras. 19-25; Prosecutor v Omar Hassan Al Bashir, ICC-02/05-0/09-3, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, PTC I, 4 March 2009, paras. 48-9; Prosecutor v Germain Katanga, ICC-01/04-01/07 OA 8, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, AC, 25 September 2009, para. 78; Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-8, Decision on the Prosecutor’s Application for a Warrant of Arrest, PTC I, 10 February 2006, para. 3922 Robinson, ‘The Inaction Controversy: Neglected Words and New Opportunities’, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, Cambridge University Press, 2011, p.465, and also Robinson, The Mysterious Mysteriousness of
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conclusion, it appears that Robinson distinguishes inactivity from unwillingness
by looking at the wording of Article 17(2) and its emphasis on conducting a trial
but being unwilling to conduct it genuinely. It is important to note this, as it
illustrates how complementarity functions in practice: if a State is investigating
then the case is inadmissible and not within the ICC’s jurisdiction, unless the
State proceedings indicate unwillingness or the State is unable to genuinely
conduct the proceedings.
2.2.2 Article 17(2) and Unwillingness
The term ‘unwilling’ is both a vague and subjective concept when considered in
everyday usage and potentially more so in a legal context. However, the drafters
of the Rome Statute provided in Article 17(2) a framework to aid the ICC in
determining whether a State is indeed unwilling to prosecute international
crimes. According to this provision, a State is considered unwilling if:
(a) The proceedings were or are being undertaken or the national
decision was made for the purpose of shielding the person concerned
from criminal responsibility for crimes within the jurisdiction of the
[ICC] referred to in Article 5;
(b) There has been an unjustified delay in the proceedings which in
the circumstances is inconsistent with an intent to bring the person
concerned to justice
(c) The proceedings were not or are not being conducted
independently or impartially, and they were or are being conducted in
a manner which, in the circumstances, is inconsistent with an intent
to bring the person concerned to justice.
The ICC is therefore presented with three alternative means of determining
unwillingness within the Rome Statute. Although Holmes alludes to an argument
that shielding is a broad term and that sub-paragraphs (b) and (c) are merely
Complementarity, 21 Criminal Law Forum (2010) 67, generally.
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corollaries of the concept,23 the author of this thesis hypothesizes that the
drafters included sub-paragraphs (b) and (c) to prevent States from arguing such
actions were not to be considered as shielding. Likewise, it prevents States from
claiming the length of the proceedings or the supposed lack of impartiality is the
norm in their legal system and that other States, or indeed the ICC itself, should
not adversely judge national prosecutions by comparing them to their more
efficient and effective legal systems.
Williams and Schabas have fittingly depicted Article 17(2)(a) as
‘meeting the concern of a State fulfilling the letter of the Statute by engaging in
an investigation or prosecution, but not the spirit’ of the Statute.24 There are
several ways States can engage the letter, but not the sprit, of the Rome Statute.
One way is to hold a trial in which the alleged perpetrator is convicted of
ordinary crimes, rather than international crimes under Article 5.25 Despite the
presence of national trials, Pre-Trial Chamber I (PTC I) has held that for an
investigation to bar prosecution by the ICC, the national proceedings must
‘encompass both the person and the conduct which is the subject of the case
before the [ICC]’.26 This means that alleged perpetrators must be prosecuted for
international crimes at the national level, or else the State will be found to be
shielding the alleged perpetrator from his or her criminal responsibility and
unwilling to fulfil its obligations under the Rome Statute. Other indicators that a
State may be shielding alleged perpetrators include clear departures from a
State’s standard legal procedures or the use of secret, instead of public, trials.
Furthermore, the ICC will assume that a State is shielding alleged perpetrators if
some proceedings appear to be sham trials.27
23 Holmes, ‘Complementarity: National Courts versus the ICC’, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. I, Oxford University Press, 2002, p.67524 Williams and Schabas, op. cit. n.9, p.623, emphasis added.25 Multiple counts of murder or rape instead of crimes against humanity, for example.26 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, PTC I, 24 February 2006, para. 38 ; Prosecutor v Katanga, ICC-01/04-01/07-4, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Germain Katanga, PTC I, 6 July 2007, para. 2027 Holmes, op. cit. n.23
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Regarding unjustified delays, Article 17(2)(b) is silent as to the
factors the ICC could or should take into account when determining State
unwillingness. However, it stands to reason that if proceedings concerning
international crimes are taking considerably longer than regular domestic cases
of approximate complexity and subject matter,28 then there would be
reasonable grounds to suspect a State is unwilling to bring a person to justice.
Furthermore, when examining whether a trial is fair and impartial it
will again be logical to compare the State’s usual standards of due process to
those of the case at hand and to distinguish any significant departures. This
would include, but would not be restricted to, the same grounds described
above for sub-paragraph (b),29 as well as the relationship (if any) between the
accused and the witnesses and the relationship (if any) between the accused and
the judge(s) presiding over the proceedings.
Finally, there are two cases of unwillingness not defined in
Article 17(2). The first is a simple interpretation of the word ‘unwilling’,
which is when a State has no intention of conducting proceedings in its
national courts, as was the case when Uganda referred itself to the ICC.
Here, Uganda claimed it was referring the situation to the ICC because of
the scale and gravity of the crimes, it believed the exercise of the ICC’s
jurisdiction would be of immense benefit for the victims whilst also
contributing to national reconciliation and rehabilitation, and that
Uganda was unable to arrest those bearing the greatest responsibility for
such crimes.30 The second instance of unwillingness not expressed in
Article 17 was outlined by the ICC in the Katanga case. Trial Chamber II
(TC II) noted that, contrary to Article 17(2), States may wish to see the
perpetrators of international crimes brought to justice but, for a variety
28 In relation to time taken to gather the relevant evidence and testimony, or to bring the case to trial.29 Conversely to sub-paragraph (b), bringing the case to trial much quicker than usual would imply a lack of desire to adequately search for evidence which could prove the perpetrator’s guilt.30 Prosecutor v Joseph Kony et al., ICC-02/04-01/05-53, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005, PTC II, 27 September 2005, para. 37
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of reasons,31 do not want to prosecute them in the national courts.32 As
is apparent, these differ significantly from the criteria of Article 17, which
deals only with instances in which the State does not intend to bring the
perpetrator to justice. However, in both circumstances the State is
conceding jurisdiction to the ICC, therefore it can be concluded that they
were not included in Article 17 as it only deals with concurrent
jurisdiction.
2.2.3 Article 17(3) and Inability
The ICC can also exercise its jurisdiction according to Article 17 if a State is unable
to prosecute. Unlike the tests for determining unwillingness, the tests for
inability are rather more straightforward. Article 17(3) claims that when
considering a State’s inability to prosecute, the ICC must look to whether there is
‘a total or substantial collapse or unavailability of its national judicial system’
which has resulted in the State being ‘unable to obtain the accused or the
necessary evidence and testimony or otherwise unable to carry out its
proceedings.’ This is a far simpler concept to comprehend in concrete terms
when compared to that of unwillingness, as it does not depend upon motive33
and the criteria that must be satisfied are more objective and fact based.34
During the drafting of the Rome Statute, inability was felt to be necessary to
encompass situations where there was, or had been, a collapse of State
institutions and infrastructure, including the judicial system.35
31 Such as opposing sides of the atrocities feeling they may be scapegoated by the other in national trials, or the State itself fearing repercussions of such polarised feelings. 32 Prosecutor v Germain Katanga, ICC-01/04-01/07-1213, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), TC II, 16 June 2009, para. 77; see also Schabas, ‘Complementarity in Practice: Creative Solutions or a Trap for the Court?’, in Politi and Gioia (eds.), The International Criminal Court and National Jurisdictions, Ashgate, 2008, p.40.33 Cryer et al., An Introduction to International Criminal Law and Procedure, 2 edn., Cambridge University Press, 2010, p.15734Holmes, op. cit. n.23, p.67735 Ibid. This was thought to be necessary as this had recently happened during the genocide in Rwanda.
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There are several instances in which inability can be proven. Firstly,
there is the collapse of the judicial system, of which two forms are identified by
Article 17(3): total collapse, which is self-explanatory, and substantial collapse.36
Some examples of substantial collapse include the case of war or other conflict,
which substantially affects the infrastructure of the State, rendering it unable to
act. Similarly, the State infrastructure may still be more or less intact, but those
capable of operating it are absent.
Secondly, Article 17(3) mentions the unavailability of the
judiciary in contributing to its inability to exercise its jurisdiction. Whilst
the total or substantial collapse of a State’s legal system can also render it
unavailable, a further factor which may result in the ICC finding a State’s
judicial system unavailable is if the necessary legislation for prosecuting
international crimes does not exist in the State’s legal framework. This
may of course be true regardless of a total or substantial collapse of the
State’s infrastructure and so is an interpretation that focuses on
unavailability in its broadest sense. Furthermore, not only will a
complete lack of the appropriate legislation required for the prosecution
of international crimes result in a finding of unavailability, it has been
posited that so too will legislation that does not satisfy generally
recognised human rights standards.37
Thirdly, whilst the aforementioned situations could be
classified as theoretical scenarios, Article 17(3) stipulates certain
‘determinations of fact’38 that the ICC can use to gauge the unavailability
of a national judicial system. These indicators are whether or not the
State can obtain the accused and the necessary evidence and testimony,
36 During the drafting process, the word ‘partial’ was replaced by ‘substantial’, as it was felt the ICC could potentially exercise its jurisdiction when a conflict occurred within a State which affected the judicial system, but not so significantly that it could not function effectively. This would have undermined the entire principle of complementarity. On this point see Holmes, The Principle of Complementarity, in Lee (ed.), The International Criminal Court: The Making Of The Rome Statute Issues, Negotiations, Results, Transnational Publishers 1999, p.54-5.37 Yang, op. cit. n.19 above, p.123. Whilst the present author recognises that defining the exact standard required of adherence to human rights can be a contentious issue, this will be further explored later in the thesis, and for now it is suffice only to note the argument itself.38 Holmes, op. cit. n.23, p.678
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or if it is unable to carry out legal proceedings in general. If the ICC finds
that one or all of these situations are applicable to a case in a national
legal system, it will declare that State unable to prosecute and the case
will be admissible before the ICC.
It should finally be noted that, if there exists adequate
legislation but a defendant is prosecuted only for ordinary crimes and not
those embodied in Article 5 of the Rome Statute, this is to be seen as a
possible case of shielding the defendant as already explained in Section
2.2.2 above, and not as an instance of inability.39
39Cryer et al., op. cit. n.33, p.157
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3. The Effect of a Security Council Referral on Complementarity
Further questions regarding complementarity can be found in the form of
Security Council referrals to the ICC. Although the ICC is an independent
international body, it is nonetheless linked to the United Nations (UN), with one
such link being that the United Nations Security Council may refer specific
situations to the ICC. The Security Council’s power of referral to the ICC comes
from Chapter VII of the Charter of the United Nations (UN Charter),40 in which
the Security Council is authorised to order Member States to comply with any
measures it deems fit for the purpose of protecting or restoring international
peace and security. However, the Security Council can only refer situations to
the ICC; it cannot submit cases. Cases against individuals are decided upon by
the ICC in connection to a referred situation, should it appear that cases can be
made. In the Rome Statute, such practice is governed by Article 13(b), and only
two such referrals have thus far been made: one referring the situation in the
Darfur region of Sudan in 200541 and the second referring the situation in Libya
following the civil war that resulted from the Arab Spring in 2011.42 So while this
is not a new dimension to complementarity, it is at least one that has not been
explored previously, at least by the ICC if not by academics. Is Triffterer correct
when he asserts ‘the matter stands in a different light when the Security Council
has referred a situation’?43 And if so, in what light does the issue stand?
To fully assess the effects of Security Council referrals and
whether they create an obstacle to relinquishment by bypassing
complementarity, this chapter will first examine relevant Articles of the
Rome Statute to ascertain how it defines the relationship between the
ICC and the Security Council. Secondly, it will examine the various
40 Signed on 26 June 1945, came into force 24 October 1945.41 S/RES/1593 (2005), adopted by the Security Council in its 5158th meeting, 31 March 200542 S/RES/1970 (2011), loc. cit. n.143 Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2 edn., Beck, 2008, chapter 1, margin number 22
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academic perspectives of cooperation based on both the relevant
provisions of the UN Charter and the Rome Statute to conceptualise the
effect a Security Council referral can have on complementarity through
the obligation of cooperation. Finally, it will assess the extent of the
obligation of cooperation demanded by the Security Council.
3.1 Article 13(b) of the Rome Statute
In this examination of Security Council referrals on complementarity, we must
first turn to Article 13(b) of the Rome Statute, which concerns the exercise of the
ICC’s jurisdiction and specifies that:
The [ICC] may exercise its jurisdiction with respect to a crime referred to in
Article 5 in accordance with the provision of the Statute if:…(b) a situation in
which one or more of such crimes appears to have been committed is
referred to the Prosecutor by the Security Council acting under Chapter VII
of the United Nations Charter.
Unlike various other provisions of the Rome Statute which recognise the ICC’s
jurisdiction in relation to State parties,44 the primary function of Article 13(b) is to
‘extend the jurisdiction of the ICC to crimes occurring outside the territory of a
state party and committed by non-nationals of a State party’.45 Unfortunately,
the precise parameters of this extension lack clarity since the Rome Statute itself
‘does not offer a clear answer’46 as to whether or not a Security Council referral
allows complementarity to be bypassed by the ICC. It is therefore necessary to
look to other provisions in the Rome Statute, as well as the UN Charter, to
ascertain the extent to which the ICC’s jurisdiction can be extended beyond its
usual remit and how this may impact upon the principle of complementarity.
44 Articles 11, 12, 13(a), 13(c), 14 and 1545 Akande, The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC, 10(2) Journal of International Criminal Justice (2012) 299, p.301, emphasis added46 Dascalopoulou-Livada, ‘The Principle of Complementarity and Security Council Referrals’, in Politi and Gioia (eds.), The International Criminal Court and National Jurisdictions, Ashgate, 2008, p.58
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3.2 Article 18 of the Rome Statute
There exists an academic view in the debate which relies on Article 18 to
question the bypassing of complementarity by way of a strict anatomical
interpretation of the Rome Statute. The crux of this analysis is the omission of
any reference to how the Prosecutor of the ICC (hereafter the Prosecutor) can
exercise jurisdiction in cases initiated by the trigger mechanism of Security
Council referrals in Article 13(b), when the trigger mechanisms of State referrals
under Article 13(a) and the Prosecutor’s powers of proprio motu according to
Article 13(c) are explicitly mentioned.47 One academic who has addressed this
question is Dascalopoulou-Livada, who quite rightly determines that, ‘this
apparent omission…is quite puzzling’,48 before she goes on to question whether
this means that the ICC is not supposed to take complementarity into account
when a situation is referred by the Security Council.49 Condorelli and Villalpando
argue that Article 13(b) cannot be used to circumvent the principle of
complementarity because of ‘legal logic’, that is, it does not grant the Security
Council extensive powers that are superior to the ICC, but that the provision
instead is there to integrate the Security Council into the framework of the ICC.50
Their interpretation is implicitly supported by the Rome Statute, in that the ICC
was created by States to ‘reaffirm the purposes and principles of the UN’51 by
having jurisdiction over ‘the most serious crimes of concern to the international
community as a whole’52 by way of ‘maintain[ing] international peace and
security’.53
47 For an in-depth discussion on the Rome Statute’s various trigger mechanisms, see Olasolo, The Triggering Procedure of the ICC, Procedural Treatment of the Principle of Complementarity, and the Role of the Office of the Prosecutor, 5 International Criminal Law Review (2005) 12148 Ibid., p.5949Ibid.50 Condorelli and Villalpando, ‘Can the Security Council extend the ICC’s Jurisdiction?’, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Volume I, Oxford University Press, 2002, p.57551 Rome Statute, Preambular para. 752 Rome Statute, Preambular para. 953 UN Charter, Article 1
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However, whilst this solidifies the claim that Article 13(b) integrates
the UN and the ICC in a more concrete fashion,54 it does not competently refute
the possibility that Article 18 may endow the ICC with the power to set aside
complementarity when the Security Council refers a situation. Likewise, the
comparison of Articles 17 and 19 and the distinction based on the lack of trigger
mechanism does not moot the possibility, either.55 Yet it is submitted here that
academic debates on the effects of Security Council referrals that are based on
Article 18 are fundamentally flawed if we properly consider the law and
procedure that is embodied within Article 18.
Whilst Condorelli and Villalpando are correct in claiming that Article
18 is an integral part of the ICC’s admissibility framework,56 they have failed to
recognise the scope and purpose of the provision. Article 18 is only applicable to
situations arising under Article 13(a) and (c) because in these instances, the
States concerned are unaware of the ICC’s intentions until the Prosecutor
informs them in accordance with Article 18(1). If we interpret the word ‘notify’
in Article 18(1) ‘in accordance with the ordinary meaning to be given to the
terms’, as required by Article 31(1) of the Vienna Convention on the Law of
Treaties (VCLT),57 it means to ‘inform someone or give notice’.58 Such an
interpretation supports this author’s theory that Article 18 refers only to States
who are unaware of an investigation. Conversely in the case of Security Council
referrals, the State parties in question will know that the Security Council is
referring a situation within their territory to the ICC, as measures may already
have been imposed to prevent acts59 that fall under Article 5 of the Rome Statute
or the international community is expressing considerable concern. Even if this
is not the case, the minutes of meetings of the Security Council are made public
immediately, therefore the State that is subject to an ICC referral will not need to
be informed of a possible investigation by way of Article 18 notification.
54 As opposed to the loosely similar sentiments expressed in the Preambles of the Rome Statute and the UN Charter.55 Condorelli and Villalpando, op. cit. n.48 above, p.367; Dascalopoulou-Livada, op. cit. n.4856 Condorelli and Villalpando, Ibid.57 Adopted 23 May 1969 and entered into force 27 January 1980.58 http://oxforddictionaries.com/definition/english/notify?q=notify, last accessed 11 May 201359 UN Charter, Article 40
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Similar use of the VCLT to interpret Article 18(1) cannot be done to
support the theory that the omission of any reference to the Security Council
trigger mechanism may imply they allow the bypassing of complementarity. In
fact, use of the VCLT helps to further the claim that such action is not possible.
Article 31(1) VCLT claims that the object and purpose of the treaty must be
considered when we interpret a treaty; whilst the object and purpose of the
Rome Statute was to establish the ICC and end impunity of international crimes,
it is clear from the Preamble, Article 1 and Article 17 in particular that the
purpose of the ICC’s jurisdiction was to be complementary. Furthermore, should
the delegates have decided that the Security Council could bypass
complementarity, such an important caveat to complementarity would most
definitely have been made explicit within the Rome Statute and the drafting
history.
It is therefore submitted here that Article 18 is a provision that
exclusively governs admissibility procedures that concern an investigation
initiated against an ‘unaware’ State party, which can be seen in the provision’s
various components. These components consist of notifying the State party of
an ICC investigation,60 prosecutorial deferral based on State investigations,61
review of such deferrals,62 appeals procedures,63 an obligation for States to
inform the Prosecutor of the progress of their investigation (if it is on-going)64
and the ability to rely on further admissibility challenges under Article 19.65
Clearly, Article 18 only bestows ICC primacy as far as an initial investigation, but
should the State in question already be investigating or prosecuting, the
investigative primacy reverts back to the State. The semantic differences
between Article 18 and Articles 17 and 19 are purely practical and in no
circumstances indicate a legal or theoretical basis for the Security Council to
circumvent complementarity in favour of the ICC.
60 Article 18(1)61 Article 18(2)62 Article 18(3)63 Article 18(4)64 Article 18(5)65 Article 18(7)
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3.3 The Obligation of Cooperation
A further debate surrounding the effect of a Security Council referral centres on
the obligation imposed upon the State in question to cooperate with the ICC’s
investigation. This obligation does not emanate from the Rome Statute, but is
part of the resolution that refers a situation to the ICC.66 There is ambiguity over
the extent of this cooperation and whether it implicitly imposes primacy of
jurisdiction upon the ICC. Does the obligation of cooperation allow, or even
demand, that the ICC bypass complementarity when the Security Council refers a
situation? Are States not party to the Rome Statute now effectively bound by it
for the duration of the Prosecutor’s investigation as a result of the obligation of
cooperation? Or does the resolution demand a level of cooperation that exceeds
the obligations set forth in the Rome Statute? This subsection will first address
the larger question of whether the obligation to cooperate may allow for the ICC
to bypass complementarity, before dealing with the inter-related questions of to
what extent the Rome Statute binds non-party States, and whether cooperation
under a Security Council resolution exceeds the obligations of cooperation found
in the Rome Statute.
3.3.1 Does the Obligation of Cooperation Bypass Complementarity?
The function of the ICC according to the Rome Statute is to ‘put an end to
impunity’67 for the perpetrators of international crimes. Yet it is a fundamental
tenet of treaty law, as recognised in the VCLT, that only the express consent of
States can bind them to treaty obligations.68 Therefore when we consider those
States which have not yet ratified the Rome Statute, we are presented with a
lacuna that has the potential to breed impunity, since under basic treaty law
these States are under no obligation to prosecute international crimes according
to the Rome Statute. To circumvent this obstacle to the foundational objective
66 S/RES/1593 (2005), loc. cit. n.41, para. 2; S/RES/1970 (2011), loc. cit. n.1, para. 567 Preambular para. 568 Article 34. See generally Articles 12, 13, 14 and 15 for how States can give consent to be bound to treaties.
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of the ICC, a link between the ICC and the Security Council was created in the
form of referrals under Article 13(b). As Akande has stated, ‘[I]n order to ensure
that the Court is able to function [in cases involving non-State parties]’, that is, to
prosecute international crimes and end impunity, ‘it is incumbent on the Security
Council…to impose obligations of cooperation on that non-party’.69 This
overcomes the Article 34 VCLT obstacle, as the source of the obligation is the
Security Council resolution and not the Rome Statute.70 These referrals therefore
‘confer jurisdiction’ on the ICC where, ordinarily, the ICC could not exercise
jurisdiction.71 The effects of the obligation of cooperation have resulted in
various conclusions as to the ambit of the obligation, which will be outlined and
examined below.
Commentators have illustrated the uncertainty and confusion
surrounding the possibility of Security Council referrals bypassing
complementarity by detailing the spectrum of academic reasoning on the
question. Turning first to one academic who considers that referrals may imply a
primary jurisdiction on the ICC, Dascalopoulou-Livada comments that ‘[i]t would
be possible to consider that the Security Council can indeed…set
complementarity aside’, and she even outlines several advantages of such a
scenario, one being that it would reduce the time taken by the ICC to deliberate
if it can exercise its jurisdiction over a situation or not.72 However, while
Dascalopoulou-Livada readily admits that there are certain factors that favour
such an interpretation of Security Council referrals, she does not go so far as to
claim with certainty this is in fact the case.
Stigen likewise expresses a possible line of reasoning in favour of
the obligation of cooperation bypassing complementarity. He states that ‘the
answer is simple’73 when we consider whether Security Council resolutions
demanding State cooperation with the ICC do indeed create jurisdictional
69 Akande, op. cit. n.45, p.30570Ibid.71Ibid., p.34172 Dascalopoulou-Livada , op. cit. n.4673 Stigen, The Relationship between the ICC and National Jurisdictions: The Principle of Complementarity, Martin Nijhoff, 2008, p.241
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primacy for the ICC, an answer that in his opinion is affirmative in light of the UN
Charter. In coming to this conclusion, Stigen combines Articles 25 and 103 of the
UN Charter, which demand that ‘Member States agree to accept and carry out
the decisions of the Security Council’ and should conflicting treaty obligations
arise, the obligations of Member States ‘under the present Charter shall prevail’,
respectively.
Further evidence of an academic stance in favour of ICC
primacy following a Security Council referral based on the UN Charter can
be found in the writings of Akande. In his article ‘The Legal Nature of
Security Council Referrals to the ICC and its Impact on Al Bashir’s
Immunities’, Akande argues that the decision of the Security Council to
refer a situation to the ICC and to demand cooperation means that States
are ‘legally bound to accept that the [ICC] has jurisdiction’ and that
‘Article 25 estops them, as a matter of law, from taking a contrary
position’.74 Although Akande does not go so far as to express that the ICC
therefore has primary jurisdiction, his interpretation of Article 25
estopping States from taking a contrary position to accepting ICC
jurisdiction could be taken to imply that, when Security Council
resolutions are involved, States cannot assert their own jurisdiction or
challenge that of the ICC.
Logically, this in turn entails that the principle of
complementarity is either circumvented or deemed irrelevant in such
situations, since under complementarity the ICC can only exercise its own
jurisdiction should the State fail to do so. It would appear that, should
the abovementioned interpretations of cooperation be accurate, the
obligation referred to in Security Council resolutions requires States to
cooperate with the ICC by accepting their sovereign right to exercise
jurisdiction no longer applies, thereby creating obligations that far exceed
those embodied in the Rome Statute.
74 Akande, The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir’s Immunities, 7(2) Journal of International Criminal Justice (2009) 333, p.341
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However several academics, including those above who
presented arguments in favour of ICC primacy with reference to the UN
Charter, have also highlighted that the principle of complementarity is
applicable if we instead examine the question in light of the Rome
Statute.
One argument in support of complementarity in the face of
a Security Council referral is that the link between the ICC and the
Security Council, as detailed in Preambular paragraph 9 of the Rome
Statute, refers only to the common interest of ensuring international
peace and security. Other than that, the ICC is distinctly separate from
the UN, including the Security Council, and as such ‘is not formally bound
by the rules of the Charter’.75 Furthermore, Articles 25 and 103 of the UN
Charter, which according to Kleffner would ‘form the legal basis of the
overriding force of Security Council resolutions’ applies only to Members
of the UN.76 To be a member of the UN, one must be a State. The ICC is
obviously not a State, but an international institution, governed solely by
the Rome Statute.77 It is therefore apparent that the UN Charter cannot
be used to support arguments of Security Council referrals bestowing
primacy upon the ICC. But can such support be found within the Rome
Statute itself?
According to Condorelli and Villalpando, the Rome Statute is
ambiguous concerning admissibility and Security Council referrals, basing their
position on the fact that Article 17 does not differentiate between the various
trigger mechanisms of Article 13.78 However, they do concede that ‘it is clear
from the Preamble and Article 1 that that the principle of complementarity and
the criteria of admissibility are to be considered intrinsic characteristics of the
75 Condorelli and Villalpando, ‘Relationship of the Court with the United Nations’, in Cassese, Gaeta and Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Volume I, Oxford University Press, 2002, p.22176 Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, Oxford University Press, 2008, p.16577 Article 1: ‘The jurisdiction and functioning of the Court shall be governed by the provisions of [the Rome] Statute.’78 Condorelli and Villalpando, op. cit. n.55, p.637
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Court’, and that ‘consequently the principles on admissibility should also apply to
a referral under Article 13(b).’79 Likewise, Dascalopoulou-Livada claims that ‘it is
difficult to find a solid foundation for this position in the [Rome Statute]. Article
17 does not distinguish between the provenance of referrals’80 when referring to
the possible advantages she identified above in referrals bypassing
complementarity.
Whilst it cannot be refuted that Article 17 does not
distinguish among the various trigger mechanisms, the interpretations of
Condorelli, Villalpando and Dascalopoulou-Livada can be questioned;
surely the lack of differentiation between trigger mechanisms in Article
17 is a strong enough indication that admissibility and complementarity
are to be considered in every case, irrespective of how the case
originated. After all, ‘where the Statute regulated matters of such
significance, it did so with considerable clarity…particularly where the
Security Council is involved…’.81 However, there is one possible
explanation to the general confusion and the need to cite Articles that do
not distinguish between the various trigger mechanisms when arguing
that complementarity is applicable in cases arising from Security Council
referrals: Article 18. As discussed above in chapter 2.2, Article 18
distinguishes the various trigger mechanisms, but it has been posited
already in this thesis that this is for technical reasons, and should not be
interpreted as creating different regulations when Security Council
resolutions and referrals are involved.
On a practical level, the Prosecutor conducted a thorough
investigation into the situation in Sudan upon receiving a referral for
Darfur, after which he declared that Sudan had not satisfied the requisite
requirements and therefore the ICC could initiate cases.82 As one
academic duly noted, ‘he took it for granted that complementarity was
79Ibid.80 Dascalopoulou-Livada, op. cit. n.46, p.5981Ibid.82 See the Prosecutor’s First, Second, Third and Fourth Reports to the Security Council 2005-07
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fully operational’.83 Furthermore, in 2009 a group of experts on
complementarity compiled an informal paper for the Office of the
Prosecutor (OTP), claiming that ‘[a]s a matter of principle, the
complementarity regime applies even in the event of a Security Council
referral’.84 Despite only being an informal paper the importance of this
document should not be underestimated; it was created by a group of
experts in the area of international criminal law and complementarity in
particular. Arguably, the Security Council could explicitly grant the ICC
primacy in future resolutions, as it did in relation to the International
Criminal Tribunals for both the former Yugoslavia (ICTY) and Rwanda
(ICTR),85 undermining the expert paper. However, this seems unlikely as
they did not do so in the resolution referring Libya in 2011 and such
actions would overstep (to put it lightly) international law.
3.3.2 What is the Extent of the Obligation of Cooperation?
Now we have examined what effects the obligation of cooperation in Security
Council resolutions has upon the ICC we must next turn our attention to the
exact extent of this obligation on State that are not parties to the Rome Statute.
It has already been stated that such States are obliged to cooperate with the ICC
as a result of the Security Council resolution obligation, and that the ICC is
governed solely by the Rome Statute; logically, this must mean that non-Party
States are bound to the Rome Statute in such circumstances. The real question
is, to what extent? It has been suggested that if a State is bound to the Rome
Statute through a Security Council resolution, then that State is capable of taking
advantage of the Rome Statute in its entirety. This includes exercising the
principle of complementarity and challenging the jurisdiction of the ICC, just as
83 Dascalopoulou-Livada, op. cit. n.46, p.6084 Informal expert paper, op. cit. n.13, para. 6885 S/RES/827 (1993), adopted by the Security Council at its 3217th meeting, 25 May 1993 in conjunction with Article 9(2) of the Statute of the International Criminal Tribunal for the former Yugoslavia, and S/RES/955 (1994), adopted by the Security Council at its 2353rd meeting, 8 November 1994 in conjunction with Article 8(2) of the Statute of the International Criminal Tribunal for Rwanda.
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regular State parties are capable of doing.86 The alternative interpretation is that
non-State parties are only bound to Part 9 of the Rome Statute, which outlines
the cooperation obligations, would mean States must accept the ICC exercising
jurisdiction regardless of the State’s wishes or judicial capabilities. This would
appear to demand a level of cooperation that far exceeds that imposed upon
State parties in accordance with the Rome Statute as a whole.
The latter scenario would defy legal logic: that States not
party to the Rome Statute to the Rome Statute are bound to it against
their will, without having recourse to the benefits allowed to State
parties, and thereby being barred from exercising their sovereign right to
exercise jurisdiction. Whilst a Security Council referral can bypass the
rules of the VCLT in the interests of international peace and security by
imposing obligations under Article 25 of the UN Charter, to impose
obligations upon a State and simultaneously remove their sovereign
rights would be a step too far and represent a clear violation of both
treaty and international law.
3.4 Summary
As we can see from the various components of Article 17, the ICC is restricted to
exercising its jurisdiction only in certain situations. Although the concepts of
unwillingness and inability that trigger the ICC’s jurisdiction are arguably flexible,
States can contest the ICC’s jurisdiction under the principle of complementarity.
However, questions have been raised by academics regarding the effect Security
Council referrals have on complementarity. From the discussion above, we can
conclude on two aspects of this discussion.
First, despite differing opinions being offered based on the
construction and the wording of Articles that detail the jurisdictional trigger
mechanisms of the ICC and the Security Council’s relationship with the ICC, there
is no evidence in the Rome Statute that allows Security Council referrals to be 86 Akande, op. cit. n.45, p.310
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exempt from complementarity. This conclusion is based upon a technical
reading of Article 18, and the realisation that Security Council referrals are
omitted because Article 18 is solely focused on notifying States that an
investigation has been initiated against a situation occurring within its territory.
Secondly, although the obligation of cooperation has its legal basis
within the resolution, it is governed by the Rome Statute. The implications of the
resolution coming from the UN Charter, but the obligation having to comply with
the Rome Statute, have resulted in a common misconception that the obligation
of cooperation may have allowed the ICC to bypass complementarity. However,
it is clear that the UN Charter cannot influence the ICC, as the ICC can only act in
accordance with the Rome Statute and is not bound to the UN Charter. The
implications that come from this are that non-State parties will be bound to the
Rome Statute, but that following the procedures therein, they have recourse to
complementarity and they therefore have the capability to exercise their
national jurisdiction if they so wish. In short, Security Council referrals have no
impact upon complementarity itself; only the member party status of States that
have not ratified the Rome Statute is affected, and only for the duration of the
ICC’s investigation and deliberations on the question of admissibility and
jurisdiction.
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4. The Relinquishment of Cases from the International Criminal Court to
National Courts
Now we have ascertained that Security Council referrals cannot bypass
complementarity and therefore present no obstacle to the relinquishment of
cases, we must move on to examine whether relinquishment is indeed a legal
possibility within the framework of international criminal law. For the purpose of
this chapter, the term relinquishment refers to the act of the ICC giving a case
back to a State upon the judicial status of that State changing from unwilling or
unable, as discussed in chapter 1.2, to willing or able. This could occur either
before the ICC has determined admissibility of a case that arises from a Security
Council referral, or before the commencement of all trials, regardless of their
origin. In the first instance, the referral would have bypassed consultation with
the State and any cases resulting from the referral would already be considered
as belong to the ICC, although it must be remembered that the ICC will still
examine the case’s admissibility. In the second instance, it would appear to be
somewhat bizarre if the ICC, having already determined a case’s admissibility,
have started proceedings only to then have to re-examine the issue of
admissibility. Therefore, this thesis will take the position that relinquishment can
only occur prior to the commencement of a trial by the ICC.
This chapter will first provide a brief background to the
formation of this research area before examining what the ICC has done
so far to provide indicative answers to this question in its case law and
practice. For the first section of this chapter, it will draw on the case of
Saif Al-Islam Gaddafi (hereafter Saif Gaddafi), as this is the only case at
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the time of writing in which a State has challenged the ICC to relinquish
its jurisdiction in favour of a national trial. A brief procedural history of
the Saif Gaddafi case is required as the documentation thus far provided
by all participants provides clues as to what the ICC may take into
consideration if and when they entertain the notion of returning an active
case to a State. Although this thesis will use the Saif Gaddafi case as an
example, it is not the purpose of this chapter or thesis to predict what the
ICC will decide, but only to provide a point of departure for an academic
discussion concerning the relinquishing of cases by the ICC in favour of
national prosecutions.
Secondly, this chapter will turn to the question of whether the ICC
can relinquish a case, and what legalities it may consider when deliberating such
a question. To do this, this chapter will first consider the principle of
complementarity in light of relinquishment to illustrate support for or against
relinquishment. Following this, a broader investigation of pertinent provisions of
the Rome Statute will be analysed. As there are several lines of reasoning that
can be used to support arguments both for and against the relinquishment of
trials, this chapter will finally focus on due process rights, as these are the central
arguments which have so far been raised in the Saif Gaddafi case, and which
have received some previous attention from the ICC. This will therefore tie the
arguments to be considered below to an actual case and judicial reasoning to
demonstrate how the ICC may approach the question of relinquishment.
4.1 Procedural History of the Saif Al-Islam Gaddafi Case
On 26 February 2011 the Security Council adopted Resolution 1970 under
Chapter VII of the UN Charter, which expressed the international community’s
concern at the escalating violence occurring in the Libyan Arab Jamahiriya and
referred the situation to the Prosecutor of the ICC pursuant to Article 13(b) of
the Rome Statute. After conducting a preliminary examination of available
information, the Prosecutor concluded that there was a reasonable basis to
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believe that international crimes as described in Article 5 of the Rome Statute,
and therefore within the jurisdiction of the ICC, had been committed and an
investigation was opened in relation to the situation in Libya.87 Following this
investigation, the Prosecutor sought arrest warrants against Muammar
Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi (hereafter Saif Gaddafi)
and Abdullah Al-Senussi on 16 May 2011,88 which were granted by PTC I on 27
June 2011.89
Following the issuance of the arrest warrants, Saif Gaddafi was
captured on 19 November 2011 trying to flee Libya by being smuggled into
Niger.90 Whilst other Demands and Replies were communicated between the
Libyan State, the Prosecutor, the Office of Public Council for the Defence (OPCD)
and PTC I in the meantime, it was in Libya’s ‘Report of the Registrar on Libya's
Observations Regarding the Arrest of Saif Al-Islam Gaddafi’ on 23 January 2012
that questions of admissibility first arose. Although Libya did not claim they were
contesting the admissibility of the case, they did state that they were considering
initiating national proceedings against Saif Gaddafi ‘in relation to the same
conduct for which he is sought by the [ICC]’,91 and so requested PTC I to
postpone Saif Gaddafi’s surrender to the ICC. This request was rejected by PTC I,
as no admissibility challenge was currently before the ICC, and therefore
recourse to Article 95 was not possible.92
87 Prosecutor v Saif Gaddafi and Abdullah Al-Senussi, ICC-01/11-1, Decision Assigning the Situation in the Libyan Arab Jamahiriya to PTC I, Presidency, 4 March 2011 (with annex)88 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-Ol/ll-4-Red, Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, PTC I, 16 May 2011 (with annexes)89 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-12, Decision on the Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al- Senussi, Pre-Trial Chamber 1, 27 June 2011 90 Mike Wooldridge, BBC News Middle East, Gaddafi’s Son Saif Al-Islam Gaddafi Captured in Libya, 19 November 2011, available at: http://www.bbc.co.uk/news/world-middle-east-15806112. Last accessed 08/04/201191 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11- 01/11-44, Report of the Registrar on Libya's Observations Regarding the Arrest of Saif Al-Islam Gaddafi, Registry, 23 January 2012, confidential annex 192 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-100, Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi, PTC I, 4 April 2012
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The Libyan government then submitted an Application pursuant to
Article 19 to formally challenge the admissibility of the case of Saif Gaddafi
before the ICC, which outlined the Libyan government’s adherence to human
rights, the transformation of the judicial system that was already underway to
bring more accountability and increase the standards of due process and that the
case against, and treatment of, Saif Gaddafi was in accordance with international
standards.93 A request for postponement of Saif Gaddafi was also incorporated
into the Application, as under Article 95 of the Rome Statute ‘[w]here there is an
admissibility challenge under consideration by the [ICC] pursuant to Article 18 or
19, the requested State may postpone the execution of a request’. PTC I
responded after the Prosecutor and the OPCD gave Responses to Libya’s
Application, in which they stated ‘Libya’s admissibility challenge was properly
made as per Article 19(2) and rule 58(1)’94 of the Rules of Procedure and
Evidence.95 The final document to be presented here is a Decision of PTC I from
7 December 2012, which requested further submissions from Libya to support its
challenge of admissibility.96 In this Decision, PTC I demands that the Libyan
government provide details documenting the evidence they claim to have
obtained in relation to Saif Gaddafi’s case, mostly focusing upon how it was
collected, recorded and the investigations carried out to confirm the
genuineness of the evidence and its sources.
Now that the most pertinent documentation pertaining to the case
of Saif Gaddafi has been presented, this thesis will draw upon these sources to
analyse the question of whether the ICC can relinquish a case within the
framework of the Rome Statute.
93 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-130, Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute. PTC I, 1 May 201294 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-165, Decision on the Postponement of the Execution of the Request for Surrender of Saif Al-Islam Gaddafi Pursuant to Article 95 of the Rome Statute, PTC I, 1 June 2012, para. 3995 UN.Doc PCNICC/2000/1/Add.1, Preparatory Commission for the International Criminal Court, 2 November 200096 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11-239, Decision Requesting Further Submissions on Issues Related to the Admissibility of the Case of Saif Al-Islam Gaddafi, PTC I, 7 December 2012
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4.2 Relinquishing a Case: Is it a Legal Possibility Under the Rome Statute?
The concept of international criminal law as we understand it today has been
part of international law since the Nuremburg and Tokyo Trials that followed the
atrocities of World War II, arguably longer.97 But we must not forget that the ICC
is still very much in its infancy and therefore it has not had the opportunity to
fully conceptualise and delimit every aspect of international criminal law. As
Stahn has stated, ‘[m]any of the original ideas of the drafters of the Rome
Statute are…in need of further development’.98 One such idea is the principle of
complementarity; although it has received much attention from the ICC and
academics alike, there are still dimensions that currently remain unexplored.
The reason for this is simple. The ICC has not had the opportunity to fully
explore it because ‘[i]t would be unrealistic to expect the [ICC] to deal
comprehensively with each and every issue in the context of any case. As a
result, while the recent judgments clarify a range of important aspects of the
complementarity regime, the picture that they provide is not complete’.99 One
facet of complementarity yet to be properly analysed by the ICC is whether they
can relinquish a case to a State under the Rome Statute.
The ICC has hinted at this aspect of complementarity in two cases.
It held that the Prosecutor’s submission that ‘the [Democratic Republic of
Congo’s] DRC national justice system continues to be unable in the sense of
Article 17(1)(a) to (c) and (3), of the Statute does not wholly correspond to the
reality any longer [sic]’ in the Prosecutor v Thomas Lubanga Dyilo case,100 and
that the ‘Statute as a whole enshrines the idea that a change in circumstances
allows (or even, in some scenarios, compels) the Court to determine admissibility
anew’, in the Prosecutor v Joseph Kony et al. case.101 However, it has never gone
so far as to suggest determining admissibility in such a way could result in the ICC 97 El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice, Martinus Nijhoff, 2008, pp.11-5698 Stahn, op. cit. n.15, p.399 Batros, ‘The evolution of the ICC jurisprudence on admissibility’, in Stahn and El Zeidy (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, 2011, Cambridge University Press, p.559100 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06-8-Corr, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case Against Mr Thomas Lubanga Dyilo, PTC I, 24 February 2006, para. 36
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relinquishing cases to States. The notion of relinquishment will be the focus of
this chapter, with the above ICC quotes used as the point of departure for the
following discussion. This discussion will consider arguments both for and
against the relinquishment of cases, the focus being the tension between the
principle of complementarity and those Articles of the Rome Statute which could
be interpreted as supporting or opposing relinquishment and the concerns of
due process which oppose such action.
4.2.1 Relinquishment and Complementarity
If we first turn our attention to the Rome Statute and the principle of
complementarity, we are presented with evidence that the ICC could relinquish a
case back to a State. The ICC was not granted primacy of jurisdiction over States,
and as described above in chapter 1.1, the purpose of the ICC is to complement
national jurisdictions pursuant to Preambular paragraph 10 and Article 1. Whilst
the principle of complementarity as provided for in Article 17 was elucidated in
chapter 1, it will be necessary to briefly draw on it here before analysing the
construction of Article 17 in light of the question of relinquishment.
Under Article 17(1), the ICC will find a case inadmissible ‘…unless
the State is unwilling or unable’102 to genuinely investigate or prosecute. The
issue of genuineness of proceedings in connection to relinquishment will be
discussed later in chapter 3.2.3, so for now the thesis shall limit its discussion to
unwillingness and inability. As can be seen in the above extract of Article 17(1),
emphasis has been placed on the word ‘is’; the reason for this is that if we
interpret the ordinary meaning of the words in accordance with Article 31 VCLT,
it is apparent the ICC must determine a State’s unwillingness or inability as it
currently stands. Linguistically speaking, this has the implication that a State’s
willingness or ability could in theory be a fluid concept that changes depending
on the circumstances of an individual case or situation. The ICC has already
101 Prosecutor v Joseph Kony et al., ICC-02/04-01/05-377, Decision on the Admissibility of the Case Under Article 19(1) of the Statute, PTC II, 10 March 2009, para. 28102 Emphasis added.
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hinted at this being true in the cases of Prosecutor v Thomas Lubanga Dyilo and
Prosecutor v Joseph Kony et al.103 Also, the fact that PTC I is to some extent
facilitating Libya’s admissibility challenge104 now that Libya has submitted one, is
further testimony that the ICC perceives the need for admissibility to be judged
as it is and not how it was when a case was first opened. This reinforces support
for the hypothesis that complementarity may demand the relinquishment of
cases if it possible for this to be done.
Furthermore, from a strict interpretation of the Preamble of the
Rome Statute concerning the principle of complementarity, it is clear that the ICC
was never intended to be a court of first instance.105 The purpose of the ICC was
to act as a court of final instance should States not be able to exercise their
jurisdiction.106 From this almost puritanical interpretation of complementarity, it
would be safe to assume that relinquishment could prove to be a realistic aspect
of complementarity, and one which the ICC should readily facilitate. However, as
will be discussed below, there are possible opposing perspectives.
4.2.2 Relinquishment and the Rome Statute
Besides the basic framework of complementarity under Article 17, the Rome
Statute contains other provisions which indicate that cases may be relinquished.
These provisions are Articles 18(2) and 19(7) which will be dealt with in turn.
Article 18(2) concerns States informing the ICC of national proceedings or
investigations upon being informed that the OTP is investigating possible cases
within their jurisdiction. On a superficial level this could be used to give support
to the argument in favour of relinquishment, yet if we look closer, there are
several potential caveats. Firstly, whilst Article 18(2) states the Prosecutor can
103 Prosecutor v Thomas Lubanga Dyilo, op. cit. n.100 and Prosecutor v Joseph Kony et al, op. cit. n.101, para. 28104 Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, op. cit. n.96105 Preambular paragraph 10. As has already been noted, complementarity gives primacy to States, thereby making national courts the courts of first instance. This is the case even when States do not exercise their jurisdiction, as they have decided not to do so.106 http://www.icc-cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20glance/Pages/icc%20at%20a%20glance.aspx, last accessed 24/04/2013
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defer investigation, it also allows the Prosecutor to continue with his or her own
investigation regardless. There is also the inclusion of a strict time period in
which States must alert the ICC to current or past investigations or proceedings.
The provision is silent to the effects of a late submission, but it would be logical
to assume that the Prosecutor and the PTC would review the admissibility of
cases, and that if a national prosecution has already taken place, the defendant
will not be tried again by the ICC under the ne bis in idem rule of Article 20.
However, it is not possible to say with such certainty what the situation would be
if a State was only investigating and had not yet reached a conclusion on
whether they will prosecute.107 It is possible that the ICC may relinquish the
investigation if they are satisfied that the national investigations are for the same
conduct as those initiated by the ICC,108 but it is also highly likely that the ICC will
demand a thorough report about how the conduct of the investigation and
proceedings are in conformity with internationally recognised standards of due
process before considering relinquishment.
Secondly, Article 19(7) may present a further legal basis to the idea
of relinquishment. The provision holds that ‘[i]f a challenge is made by a State
referred to in [Article 19] 2 (b) or (c), the Prosecutor shall suspend the
investigation until such time as the Court makes a determination in accordance
with article 17’. It may therefore be possible to rely on the suspension of an
investigation to support relinquishment, as it demands that the ICC not only
review the admissibility of a case, but also that the Prosecutor suspends the
investigation in full.109 Yet the provision in its entirety could lead to opposing
conclusions similar to those outlined for Article 18(2). Either the ICC will readily
determine whether there is a genuine investigation and prosecution at the
national level and relinquish the case(s) in question, or the State proceedings will
107 Although from the Saif Gaddafi case, it appears the ICC will continue with its own investigation until the State notifies the ICC of its intention to prosecute at the national level.108 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01-06, Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, 24 February 2006, para. 38; Prosecutor v Germain Prosecutor v Katanga, ICC-01/04-01-07, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Germain Katanga, 6 July 2007, para. 20109 However, see Article 19(8) in its entirety.
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face extreme scrutiny by the Prosecutor and the ICC on grounds of due
process.110
However, the Rome Statute also offers evidence that the ICC may
not relinquish a case. If we look to Articles 19(10) and (11), we are presented
with provisions that again can be interpreted in one of two ways, but unlike
Articles 18(2) and 19(7), they give the impression that relinquishment is not a
valid option for the ICC. Under Article 19(10), the Prosecutor can ask the ICC to
reconsider a finding of inadmissibility if he or she ‘is fully satisfied that new facts
have arisen which negate’ the ICC’s finding of admissibility. It can be assumed
that this is true of investigations into a new case before the ICC and active cases,
an assumption supported by the fact the parties to a case may ask the ICC to
review the admissibility of a case at any time.111 One may interpret this as the ICC
ensuring due diligence to a State’s obligations both under the Rome Statute and
internationally recognised standards of due process. Such a perspective is
perfectly logical, as the ICC is bound under Article 17 to only find a case
inadmissible if the State will act genuinely, which includes adhering to due
process standards.112
An alternative that does not sit as comfortably with the
principle of complementarity is that a case will never be relinquished fully
by the ICC if relinquishment is indeed possible. It is clearly stated that if
the Prosecutor believes new facts contradict a previous finding of
inadmissibility, he or she can ask the ICC to review their previous
decision. From this, we can draw the conclusion that the Prosecutor may
not necessarily sever all ties with a relinquished case, as he or she is
apparently capable of continuing an investigation, or at the very least
undertaking a continuous review of the national proceedings. This
approach is further supported by the Prosecutor’s power to request
information from States after relinquishing a case or investigation,
110 See chapter 3.2.3 for an in-depth discussion on due process and relinquishment.111 Article 19(4), although it must be noted admissibility challenges after the commencement of a case are exceptional.112 See chapter 3.2.3 on an alternative perspective to this particular aspect of complementarity.
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pursuant of Article 19(11), a power which also allows the Prosecutor to
initiate an investigation despite having previously deferred the
investigation.
4.2.3 Relinquishment and Due Process
This section will now illustrate how due process may impact upon the ICC’s
decision to relinquish a case to the national level. Although the ICC is a ‘model of
due process’,113 there are varying academic perspectives on how due process is
utilized by the ICC. Following a brief description of what is considered pertinent
aspects of due process within the framework of this thesis, the various academic
opinions shall be considered below, as well as the practice of the ICC, in light of
the relinquishment of cases.
Any concerns that the ICC may have about relinquishing a
case to the national courts on grounds of due process will find their basis
in unwillingness as expressed in Article 17(2) of the Rome Statute.114
From reading Article 17(2) it is apparent that the ICC will want to ensure
that any alleged perpetrators will be tried for international crimes, and
that the national proceedings will not attempt to shield them from
justice. It cannot be argued that such actions are not necessary; after all,
the ICC is mandated with ending impunity, and to simply hand over a case
without first ensuring alleged perpetrators will face a full and fair trial in
the name of international justice would be counter-productive to this
aim. Furthermore, Article 17(2) requires that the ICC must ‘hav[e] regard
to the principles of due process recognised by international law’. The
principles that the ICC must adhere to, and so too must States if they
wish to successfully receive cases, are found, inter alia, in the
International Covenant on Civil and Political Rights (ICCPR) 1966.115 Of all
113 Heller, The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process, 17(3/4) Criminal Law Forum (2006), p.257114 See chapter 1.2.2115 Entered into force 23 March 1967
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the rights guaranteed by the ICCPR, some are highly significant in relation
to the relinquishment of cases. Firstly, Article 14(1) requires that
everyone is equal before the law and that they must receive a public,
independent and impartial trial. Secondly, there must be a presumption
of being innocent until proven guilty according to Article 14(2). Finally,
Article 14(3)(b) and (e) allow all defendants the time and facilities to
prepare their defence and to examine witnesses, respectively.
However, it has been posited by Heller that both the ICC and
the Rome Statute only focus on due process considerations that ensure
an alleged perpetrator is brought to justice. He claims that this has
created a shadow side to complementarity, where the ICC will only
consider proceedings that make it harder to convict at the national level
when examining Article 17, and that the ICC will therefore relinquish a
case more readily if proceedings appear to easily convict alleged
perpetrators.116 Heller bases his conclusions on a linguistic
deconstruction of Article 17. Firstly, he draws attention to the fact that a
case will only be admissible before the ICC if the national proceedings
lack either independence or impartiality and are not conducted in a
manner which shows intent to bring the defendant to justice. It is the use
of ‘and’ instead of ‘or’ that Heller relies upon here; if national
proceedings are intended to bring the defendant to justice, but are not
independent or impartial, then the ICC cannot find the State to be
unwilling, according Article 17(2)(c).117
Furthermore, and in relation to due process in general,
Heller maintains this shadow side of complementarity is inherent within
Article 17(2) as a whole. He claims that a State will only be found
unwilling if the national proceedings will, or are, violating principles of
due process and satisfies one or more of the subparagraphs.118 In terms
of relinquishment, this would make such actions easier, as according to
116 Heller, op. c it. n.113117 Ibid., pp.260-1118 Ibid., pp.262-3
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Heller, the Rome Statute has set a high threshold on unwillingness and
how to determine violations of due process, so as long as national
proceedings were or are intended to bring alleged perpetrators to justice
any potential failings of due process are irrelevant.
Whilst this author recognises the merits of Heller’s
interpretation and agrees that the Rome Statute is indeed worded to
provide support for such a hypothesis, in practical terms there is no
discernible proof that this is indeed how the ICC operates. In fact,
conversely to the conclusion that the ICC would be willing to relinquish
cases more readily under Heller’s interpretation of Article 17, it has been
posited by Drumbl that when international judges act as ‘gate-keepers of
their docket’ they ‘may not be willing to easily give up their cases and in
this process have turned to the importance of due process to favour
retention’. He uses judicial practice from the ICTR, ICTY and the Special
Court for Sierra Leone (SCSL)119 to illustrate how international courts so
far have not been willing to relinquish their cases.120 However, it must
also be noted that all of these international courts are endowed with
primacy, and are not bound to complementarity, and Drumbl himself
notes that it is ‘unclear whether ICC judges would approach these
questions in a materially different manner’.121
As has been previously stated, the Saif Gaddafi case is
currently the only case where a State has challenged the jurisdiction of
the ICC and requested that the case be relinquished to the national
courts. By way of comparison of due process concerns, it appears that
the ICC is following the example of previous international courts by
requesting that Libya explicitly states how it is verifying various forms of
evidence currently being collected to use in national proceedings.122 But
these inquiries cannot be used to definitively conclude that the ICC will
119 Created under the Statute for the Special Court for Sierra Leone on 14 August 2000120 Drumbl, op. cit. n.16, pp.202-3121 Ibid., p.202122 Prosecutor v Saif Al-Islam Gaddafi, op. cit. n.96. See among others paras. 17, 18, 19, 22, 24 and 25.
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follow the example of the other international courts by refusing to
relinquish the case. After all, it has already been noted that the ICC must
consider principles of due process; ascertaining exactly how Libya has
collected and documented evidence to be used against Saif Gaddafi falls
squarely within the remit of the principles of due process. The ICC may
simply be ensuring that the evidence and those who provide it can be
cross-examined in a trial, or that the fairness of proceedings is not
compromised because either the defence or the prosecution has
evidence that cannot withstand scrutiny. After all, if they are to
relinquish a case, they must first ensure that the defendant will receive a
fair trial at the national level. To do otherwise would severely undermine
the ICC’s competence and international criminal justice, especially as it
has been asserted that ‘most national justice systems…are far less even-
handed’ in respect of principles of due process when compared to the
ICC.123
However it should not be taken for granted that, because
the ICC represents the pinnacle of due process, they will never relinquish
a case because States cannot match their standards. It is only required of
the ICC to have regard to due process norms recognized at the
international level; this is the minimum standard of due process
demanded of States, and against which the ICC may judge national legal
systems. The ICC exceeds this standard because it has a vast wealth of
resources, both financial and personnel, dedicated to ensuring a high
standard of procedural fairness. Not all States will be able to replicate
such standards, but so long as State judicial systems comply with the
standards set forth in the ICCPR, then the ICC could consider a national
system as being suitable for prosecuting a relinquished case.
Unfortunately, it is unlikely it will be this straightforward.
One complication that may frustrate the aforementioned and rather
simplistic perspective on how the ICC will utilize due process is the level
123 Heller, op. cit. n.113, p.2
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of responsibility attributed to the defendant. If we consider the ICTR to
give an example of how the other international courts have previously
acted, it stated that it was ‘mandated…to transfer cases involving
intermediate and low-level accused to competent national
jurisdictions’.124 Despite the defendant in Prosecutor v Yussuf Munyakazi
being a ‘low-level accused’, both the TC and the AC rejected a
relinquishment of the case, basing their reasons on the condition of the
Rwandan judicial system, despite Rwanda claiming it was an effective
system that was used by several African States.125 Obviously if the ICTR
deemed the apparent shortcomings of the Rwandan judicial system as
falling below the standard of due process norms recognized
internationally, such a decision was justified. Yet the fact that the same
aspect of the Rwandan judicial system that was criticized is also used by
several other African States may be used to argue that the ICTR was
indeed trying to retain a case that could, and maybe should, have been
relinquished.
The same dual conclusion can be made in reference to the
ICC by looking to its case law and practice. In a similar vein to the ICTR,
the ICC considers itself to be ‘the most appropriate and effective forum
for the investigation and prosecution of those bearing the greatest
responsibility…’.126 This can be interpreted as meaning that the ICC will
relinquish cases concerning those of lesser responsibility, although
probably with the same strict scrutiny that was exercised by the ICTR, or
that all cases that come before the ICC cannot be relinquished because
the defendants are all high level perpetrators or orchestrators of
international crimes.
124 Prosecutor v Yussuf Munyakazi, ICTR-97-11-Rule 11bis, Decision on the Prosecutor’s Request for Referral of Case to the Republic of Kenya, Rule 11bis of the Rules of Procedure and Evidence, TC III, 28 May 2008, para. 9. Emphasis in original.125Ibid., paras. 48-9; Prosecutor v Yussuf Munyakazi, ICTR-97-36-Rule 11bis, Decision on the Prosecutor’s Appeal against Decision on Referral Under Rule 11bis, AC, 8 October 2008126 Prosecutor v Joseph Kony et al., op. cit. n.30, para. 37
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If we examine the arrest warrants of those who have been
tried, are currently being prosecuted or are being sought by the ICC for
international crimes, it is easy to distinguish that they are all high level
actors. As an example, PTC I recognised the ‘common plan between
Germain Katanga and others’ to carry out international crimes,127 that
Joseph Kony founded and led the Lord’s Resistance Army (LRA), that he,
Vincent Otti and the others named in the arrest warrant ‘represent[ed]
the core leadership of the LRA’,128 and that ‘Al Bashir, as President played
an essential role’ and was in ‘full control of [inter alia the] Janjaweed
Militia’.129 Thus, it is obvious that those subject to an arrest warrant
issued by the ICC are at the top of the chain of command, and therefore
bear ‘the greatest responsibility’. In terms of relinquishment, this means
it will be highly unlikely that the ICC will relinquish any of its cases to
States, as the ICC has determined in its case law that it is the most
appropriate and effective forum for prosecuting those most responsible
for international crimes, yet they only seek to prosecute such individuals.
127 Prosecutor v Germain Katanga, ICC-01/04-01/07-1, Warrant of Arrest for Germain Katanga, PTC I, 2 July 2007, p.5128 Prosecutor v Joseph Kony, ICC-02/04-01/05, op. cit. n.30, paras. 7 and 9 respectively129 Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, PTC I, 4 March 2009, pp.6-7
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5. Conclusions
The purpose of this thesis is to explore a potential new aspect of the principle of
complementarity which, in this author’s opinion, has presented itself in the Saif
Gaddafi case. This previously unexplored facet is the relinquishment of cases
from the ICC back to State judicial systems. In order to properly examine this,
complementarity as prescribed by Article 17 of the Rome Statute was examined,
followed by an analysis of the debate surrounding the possibility that
complementarity be bypassed through Security Council referrals to the ICC.
From each of these chapters, some interesting conclusions can be drawn, which
ultimately impact upon tentative determinations of the legal possibility of
relinquishment.
Firstly regarding complementarity according to Article 17, we have
seen that although comprehensive, it is not exhaustive in elucidating and
delimiting complementarity and its practical complexities. Generally speaking,
lacunas are apparent in the definition of unwillingness which, as conceptualised
by the Rome Statute, is only concerned with shielding a suspect as identified in
chapter 1.2.2. If we look specifically at the Saif Gaddafi case we can see it is an
anomaly within the framework of complementarity, as it is challenging the
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finding of admissibility but beyond the scope of complementarity provided for by
the Rome Statute itself, thereby presenting another lacuna. The Rome Statute is
silent as to the possibility that States may wish to reclaim a case the ICC is
currently investigating, a gap in knowledge this thesis has attempted to address.
Secondly, turning to the issue of Security Council referrals and
whether the obligation of cooperation they impose can bypass complementarity,
it has been shown that the Rome Statute does not differentiate trigger
mechanisms and does not support the bypassing of complementarity. Although
a spectrum of academic opinions was identified, alluding to the obligation of
cooperation being able to bypass complementarity being somewhat persuasive,
they are fundamentally flawed. Stigen and Akande both come to the conclusion
that it may be possible to bypass complementarity by way of a Security Council
referral, yet they both rely upon the UN Charter. Whilst the merits of such
argumentation cannot be ignored, using the UN Charter as the foundational
premise of their exposition is incorrect, as Article 1 asserts that the ICC is
governed solely by the Rome Statute, whereas the UN Charter applies only to
States and cannot be used to direct the actions of institutions.
Therefore, this author believes that the arguments refuting
the possibility that Security Council referrals bypass complementarity are
much stronger for several intertwined reasons. One reason is that, by
interpreting the purpose of the Rome Statute as expressed in the
Preamble and Article 1, in accordance with Article 31(1) VCLT, it is evident
that the ICC has always been intended to be complementary to national
jurisdictions, regardless of the situation. This is supported by the fact
that, if the drafters had intended it to be otherwise, they surely would
have made this explicit within the text of the Rome Statute. After all, the
Rome Statute has been extremely clear when regarding the relationship
between the Security Council and the ICC. Article 2 speaks only of a
‘relationship’, not an institutional hierarchy. Preambular paragraph 7
states that the ICC is indeed independent and that the relationship
mentioned in Article 2 concerns the purposes of the UN; that is, to ensure
li
international peace and security. Nowhere in the Rome Statute is it
possible to find evidence that the ICC is bound to the UN Charter. Finally,
it must be remembered that the Prosecutor still acted in accordance with
the principle of complementarity when the situation in Darfur was
referred.130 This shows that, academic debates aside, the ICC itself does
not believe that it can bypass complementarity, and has proven that even
in the case of a Security Council referral, it will not do so.
Thirdly, in relation to the final substantive chapter which
re[resents the original contribution of research in the arena of
international criminal law of this thesis, several conclusions can be drawn
on the question of the relinquishment of cases. As previously mentioned,
the central provision of the Rome Statute concerning complementarity,
Article 17, is not exhaustive. That the ICC has allowed unwillingness to be
interpreted beyond the wording of the Rome Statute131 in its case law is
indicative that it is willing to be somewhat creative when presented with
lacunas in the principle of complementarity. This means, in short, that
relinquishment may be an actual possibility. After all, it appears to be an
extension of complementarity: a case is admissible and within the ICC’s
jurisdiction only if a State is unwilling or unable to prosecute as we saw in
chapter 2.2.2 and 2.2.3. We have also seen that the ICC has considered
that unwillingness or inability may not necessarily be fixed concepts, and
may need to be re-evaluated if a State’s situation changes during the
course of the case. Relinquishment can be seen as the next naturally
progressive step when we combine these two elements.
However, when we look beyond the principle of
complementarity in Article 17 and consider instead the Rome Statute as a
whole, the picture becomes less clear. While some provisions appear to
provide support for the idea of relinquishment, others implicitly oppose
it. Under Article 19(10) and (11), it seems that the Prosecutor can
130 See the final paragraph of chapter 2.3.1 above.131 See the final paragraph of chapter 1.2.2 above.
lii
continuously monitor national investigations and demand that the ICC
take over the case should he or she be convinced that there exists factors
that negate the ICC’s previous declaration of inadmissibility. It is also
possible to draw once again on Article 17, and its limited scope of
application. As relinquishment was not thought of during the drafting
process, and no specific provision on this can be found in the Rome
Statute, one could argue that the ICC will not be so bold as to create such
a doctrine of practice.
Yet it must be clearly stated that this thesis cannot come to
any clear conclusions on what the ICC will, or will not, do on the question
of relinquishment. A preliminary conclusion is that the ICC will not
bypass complementarity in the event of a Security Council referral,
thereby removing an obstacle to the possibility of relinquishment in
practice, but it may nevertheless not allow it to function. As there is no
guidance within the Rome Statute, the ICC is relying on due process in the
Saif Gaddafi case to determine the quality of proceedings that would take
place at the national level. It is still unclear whether the ICC’s reliance on
due process concerns reflects a genuine commitment to complementarity
and the relinquishment of the case (and future cases like it), or if it will be
used to reject the notion of relinquishment. This is unclear because the
ICC must consider due process concerns one way or the other, as to allow
States to conduct unfair proceedings would violate due process norms,
but to relinquish a case without ensuring the perpetrators will not be
shielded from justice would contradict the ICC’s purpose of ending
impunity for international crimes.
Finally, there is also the problem of the level of involvement
of the perpetrators. Other international courts have claimed they will
only prosecute high level perpetrators, but have still refused to relinquish
cases involving intermediate and low level perpetrators. On this point,
the ICC may follow their example for two reasons: one, because it may be
deemed that international courts should not relinquish cases, and
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second, the ICC has declared itself to be the most appropriate forum for
trying high level perpetrators. This could prove problematic for
relinquishment being realised in practice as the ICC only issues arrest
warrants for the highest level perpetrators. So while the idea of
relinquishment finds legal support in the Rome Statute on a theoretical
level, the various questions it raises makes ascertaining its potential use
in practice both problematic and ambiguous, at least until the ICC
decisively rules on the admissibility challenge in the Saif Gaddafi case.
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Table of Cases
International Criminal Court
Prosecutor v Ahmad Muhammad Harun and Ali Muhammad Al Abd-Al-Rahman, ICC-02/05-01/07
ICC-02/05-01/07-1-Corr, Decision on the Prosecution Application under Article 58(7) of the Statute, PTC 1, 27 April 2007
Prosecutor v Germain Katanga, ICC-01/04-01/07
ICC-01/04-01/07-4, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of a Warrant of Arrest for Germain Katanga, PTC I, 6 July 2007
lvii
ICC-01/04-01/07 OA 8, Judgment on the Appeal of Mr Germain Katanga Against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, AC, 25 September 2009
ICC-01/04-01/07-1213, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), TC II, 16 June 2009
ICC-01/04-01/07-1, Warrant of Arrest for Germain Katanga, PTC I, 2 July 2007
Prosecutor v Joseph Kony et al., ICC-02/04-01/05
ICC-02/04-01/05-53, Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005, PTC II, 25 September 2005
ICC-02/04-01/05-377, Decision on the Admissibility of the Case Under Article 19(1) of the Statute, PTC II, 10 March 2009
Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09
ICC-02/05-01/09-1, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, PTC I, 4 March 2009
ICC-02/05-01/09-3, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, PTC I, 4 March 2009
Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11
ICC-01/11-01/11-130, Application on behalf of the Government of Libya pursuant to Article 19 of the ICC Statute. PTC I, 1 May 2012
ICC-01/11-1, Decision Assigning the Situation in the Libyan Arab Jamahiriya to Pre-Trial Chamber I, Presidency, 4 March 2011 (with annex)
ICC-01/11-01/11-165, Decision on the Postponement of the Execution of the Request for Surrender of Saif Al-Islam Gaddafi Pursuant to Article 95 of the Rome Statute, PTC I, 1 June 2012
ICC-01/11-12, Decision on the Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al- Senussi, PTC I, 27 June 2011
ICC-01/11-01/11-100, Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi, PTC I, 4 April 2012
lviii
ICC-01/11-01/11-239, Decision Requesting Further Submissions on Issues Related to the Admissibility of the Case of Saif Al-Islam Gaddafi, PTC I, 7 December 2012
ICC-01/11-01/11-28, Decision to Terminate the Case Against Muammar Mohammed Abu Minyar Gaddafi, PTC I, 22 November 2011
ICC-01/11-01/11-82, Notification and Request by the Government of Libya in response to Decision on Libya’s Submissions Regarding the Arrest of Saif Al-Islam Gaddafi, PTC I, 22 March 2012
ICC-Ol/ll-4-Red, Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, PTC I, 16 May 2011, (with annexes)
ICC-01/11- 01/11-44, Report of the Registrar on Libya's Observations Regarding the Arrest of Saif Al-Islam Gaddafi, Registry, 23 January 2012, confidential annex 1
ICC-01/11-01/11-4, Warrant of Arrest for Abdullah Al-Senussi, PTC I, 27 June 2011
ICC-01/01-01/11-2, Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi, PTC I, 27 June 2011
ICC-01/11-01/11-3, Warrant of Arrest for Saif Al-Islam Gaddafi, PTC I, 27 June 2011
Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06
ICC-01/04-01/06-679, Decision on the Practices of Witness Familiarisation and Witness Proofing, PTC I, 8 November 2006
ICC-01/04-01-06, Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, PTC I, 24 February 2006
ICC-01/04-01-06-US-Corr, Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58, PTC I, 10 February 2006
ICC-01/04-01/06-8, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case Against Mr Thomas Lubanga Dyilo, PTC I, 24 February 2006
International Criminal Tribunal for Rwanda
Prosecutor v Yussuf Munyakazi, ICTR-97-11
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ICTR-97-11-Rule 11bis, Decision on the Prosecutor’s Request for Referral of Case to the Republic of Kenya, Rule 11bis of the Rules of Procedure and Evidence, TC III, 28 May 2008
ICTR-97-36-Rule 11bis, Decision on the Prosecutor’s Appeal against Decision on Referral Under Rule 11bis, AC, 8 October 2008
Table of Instruments
Charter of the United Nations 1950 Article 1
Article 25
Article 40
Article 103
International Covenant on Civil and Article 41(1)
Political Rights 1966 Article 14(2)
Article 14(3)(b)
Article 14(3)(e)
Rules of Evidence and Procedure 2000 Rule 58(1)
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Statute for the International Criminal Preamble
Court 1998 Preamble para 5
Preamble para 7
Preamble para 9
Preamble para 10
Article 1
Article 2
Article 5
Article 11
Article 12
Article 13
Article 13(a)
Article 13(b)
Article 13(c)
Article 14
Article 15
Article 17
Article 17(1)
Article 17(1)(a)
Article 17(1)(b)
Article 17(1)(c)
Article 17(2)
Article 17(2)(a)
Article 17(2)(b)
Article 17(2)(c)
Article 17(3)
Article 18
lxi
Article 18(1)
Article 18(2)
Article 18(3)
Article 18(4)
Article 18(5)
Article 18(7)
Article 19
Article 19(2)
Article 19(2)(b)
Article 19(2)(c)
Article 19(7)
Article 19(10)
Article 19(11)
Article 20
Article 95
Statute for the International Criminal Tribunal Article 8(2)
for Rwanda 1994
Statute for the International Criminal Tribunal Article 9(2)
for the former Yugoslavia 1993
Statute for the Special Court for Sierra Leone 2000
Vienna Convention on the Law of Treaties 1969 Article 12
Article 13
Article 14
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Article 15
Article 31
Article 34
Documents of the United Nations and Other International Bodies
Informal expert paper: The Principle of Complementarity in Practice, ICC-01/04-01/07-1008-AnxA, 30 March 2009
S/RES/827 (1993), adopted by the Security Council in its 3217th meeting, 25 May 1993
S/RES/955 (1994), adopted by the Security Council at its 3453rd meeting, 8 November 1994
S/RES/1593 (2005), adopted by the Security Council in its 5158th meeting, 31 March 2005
S/RES/1970 (2011), adopted by the Security Council in its 6491st meeting, 26 February 2011
UN.Doc PCNICC/2000/1/Add.1, Preparatory Commission for the International Criminal Court, 2 November 2000
lxiii
Websites
http://oxforddictionaries.com/definition/english/notify?q=notify, last accessed 11 May 2013
ICC at a glance, available on the ICC-CPI official website at: http://www.icc-cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20glance/Pages/icc%20at%20a%20glance.aspx, last accessed 24/04/2013
Mike Wooldridge, BBC News Middle East, Gaddafi’s Son Saif Al-Islam Gaddafi Captured in Libya, 19 November 2011, available at: http://www.bbc.co.uk/news/world-middle-east-15806112, last accessed 08/04/2011
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