Testing the ICC: The Politics of Complementarity
Testing the ICC: The Politics of Complementarity

JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, says that the ICC should adhere to a policy of complementarity to bolster its legitimacy and foster a culture of justice among its member states…

The principle of complementarity, in many ways, is the centerpiece of the International Criminal Court (ICC) and defines its place in the international criminal justice system. According to Article 17.1 of the Rome Statute:

The Court 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.

This institutes a foundational political relationship between the court and the state under investigation by upholding the principle of sovereignty and establishing the ICC as a court of last resort.

This relationship, and the role of the court in it, was further defined at the Kampala Review Conference of 2010. During this conference, member states discussed the principle of “positive complementarity.” This principle acknowledges the need for states to prosecute the crimes that come under ICC jurisdiction. The court is but one institution and, as a result, its strength is not just in its prosecutorial power, but also in its ability to create a culture of prosecution amongst the member states. Therefore, if the court is going to be successful it must not only allow for, but must also encourage member states to handle their own judicial business.

Enter the Libyan situation. The current contestation over the prosecution of Saif al-Islam Gaddafi and Abdullah al-Senussi places this principle in the spotlight and, because of its importance to the ICC, it calls the legitimacy of the Court into question. Under Security Council Resolution 1970, the ICC has the legal right to investigate and prosecute crimes committed in Libya since February 15, 2011, so the issue of ICC jurisdiction is not in question. What is in question is whether the Libyan government can claim complementarity and prosecute Gaddafi and al-Senussi without ICC interference in the proceedings. In order for Libya to have a legal claim, it must be determined that Libya not only intends to hold a fair trial (according to the principles of international criminal law), but also that they can hold a fair trial. I believe that the latter is the point of contestation, even if no one is publicly stating this.

Pursuant to Article 19 of the Rome Statue, Libya recently submitted an admissibility challenge in these two cases. The challenge, drafted by Philippe Sands, Payam Akhavan, and Michelle Butler, contends that:

The national proceedings … are consistent with the Libyan government’s commitment to post-conflict transitional justice and national reconciliation. It reflects a genuine willingness and ability to bring the persons concerned to justice in furtherance of building a new and democratic Libya governed by the rule of law … To deny the Libyan people this historic opportunity to eradicate the long-standing culture of impunity would be manifestly inconsistent with [the purpose of ICC principles] which accords primacy to national judicial systems.

In his recent statement to the UN Security Council (UNSC), even the ICC prosecutor recognized the historic nature of the case. In his report, Luis Moreno-Ocampo stated:

This is the first time in the short history of the International Criminal Court that a State is requesting jurisdiction to conduct a national investigation against the same individual and for the same incidents under investigation by the International Criminal Court. The challenge goes to the heart of the system of justice established in 1998 by the Rome Statute: national States have the primary obligation to conduct proceedings and the International Criminal Court’s intervention will be complementary.

Now this case is in the hands of the Pre-Trial Chamber, and this panel of judges must decide whether Libya is capable and willing to prosecute Gaddafi and al-Senussi. It is a crucial decision that will establish precedent for future cases. As stated earlier, the ICC is predicated on the notion of complementarity and the court, as established by the Rome Statute, is one of last resort. Again citing the words of the prosecutor from his UN Security Council speech:

My Office’s mandate is to investigate those who bear the greatest responsibility for the most serious crimes under the jurisdiction of the International Criminal Court while respecting genuine national proceedings.

So where should these individuals be prosecuted? If the ICC truly wants to fulfill its mandate, it would appear that the trials should proceed in Libya. I understand that there is a question of impunity and the notion that the Libyan trials might be a farce, but under Rome Statute regulations such faulty proceedings do not prohibit the court from acting to rectify this situation. If the court discovers that Libya was unwilling to hold a proper trial, the ICC can move forward with their prosecution. At that point, enforcement may be problematic in terms of gaining access to the two accused, but the ability to gain access to these individuals now is problematic. If Libya does not want to transfer the accused, the court will be hard-pressed to gain custody. So this should not be a concern when determining this issue.

The real issue is whether Libya has the ability to prosecute. The newly formed interim government, the Transitional National Council (TNC), is trying to establish some sense of legitimacy in this war-torn state. Their authority is still questionable, while the situation on the ground remains shaky and fluid. So in such an unstable situation, should the Libyan government be provided the opportunity to prosecute such high profile cases? Absolutely. Again, the ICC is a court of last resort. This means that the court should always privilege the principle of complementarity. If Libya can prosecute these cases, this shows the ICC as an effective institution. It also shows that the TNC has some sense of legitimacy and does not need the ICC to clean up its post-revolution mess.

It is also important to note that ICC activity in this situation has influenced the Libyan government to act. This is exactly what the ICC was established to accomplish — the creation of a culture of justice, not a dominant court that imposes justice. Libya may be the first step towards this culture. The real end to impunity is not found in the courtroom of the ICC, but in the domestic judicial proceedings of nation-states like Libya. This bias towards national judicial proceedings is what the court needs to be successful and the principle of positive complementarity is the means to fulfilling the ICC mandate and ending impunity. Politically, the sensible thing to do is allow Libya to prosecute and hope that the Rome Statute can fulfill its mandate as intended — via the principle of complementarity.

Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court.

Suggested citation: Eric Leonard, Testing the ICC: The Politics of Complementarity, JURIST – Hotline, June 1, 2012, http://jurist.org/hotline/2012/05/eric-leonard-libya-ICC.php.

This article was prepared for publication by Stephen Krug, an associate editor for JURIST’s professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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