The International Criminal Court and Complementarity.

Author:Zawati, Hilmi M.
Position::Book review
 
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Carsten Stahn & Mohamed M. El Zeidy, eds., The International Criminal Court and Complementarity: From Theory to Practice, 2 Vols. (New York, NY: Cambridge University Press, 2011) pp. 1292, XXV.

  1. INTRODUCTION II. GENERAL REFLECTIONS III. ORIGINAL AND GENESIS OF COMPLEMENTARITY IV. ANALYTICAL DIMENSIONS OF COMPLEMENTARITY V. INTERPRETATION AND APPLICATION VI. COMPLEMENTARITY IN PERSPECTIVE VII. COMPLEMENTARIT Y IN PRACTICE VIII. CONCLUSION I. INTRODUCTION

    Pursuant to Article 17 of the Rome Statute of the International Criminal Court (ICC), (1) where the provisions of the complementarity regime have been enshrined, the Pre-Trial Chamber I (PTCI) (2) and the Appeals Chamber (AC) (3) of the ICC have respectively declared the case against Abdullah al-Senussi, the former chief of Libyan intelligence, inadmissible and thus subject to domestic proceedings conducted by the competent Libyan authorities. The PTCI judges added that Libya is willing and able genuinely to prosecute and investigate this case. (4) They asserted that their decision had been taken in accordance with the principle of complementarity, incorporated in the Rome Statute of the ICC. (5)

    On 28 July 2015, the Appeals Court of Tripoli handed down its judgement in case no. 630/2012, sentencing Abdullah al-Senussi, Saif al-Islam Gaddafi, and seven other former regime high-ranking officials to death by firing squad. (6) The trial, which was critically undermined by serious due process violations, has underlined the failure of the Libyan transitional justice system to offer fair trials to defendants, and to deliver justice in post-Gaddafi-era. (7) This perversion of justice has infringed the principles of fundamental justice--which imply insuring the defendant's right to fair trial and sentence (8)--and put the ICC's complementarity regime on the horns of a dilemma. (9)

    Despite being a fundamental principle open to interpretation, complementarity served as a keyword in the establishment of the ICC. (10) While ensuring States Parties' sovereignty, complementarity constitutes a substantial element in determining the relationship between the ICC, as a court of last resort, and national criminal accountability mechanisms. (11) This simply means that only perpetrators of serious international crimes would be prosecuted at the Court. This is compatible with the provisions of the Rome Statute, which provide that States should take measures at the national level to ensure the investigation, prosecution, and punishment of such crimes. (12) In other words, the international community counts on national criminal systems to bring perpetrators to justice and to combat the culture of impunity. (13)

    It is worth noting that the Rome Statute--unlike statutes of the Ad Hoc international criminal tribunals for the former Yugoslavia and Rwanda, which include the principle of the superiority of international jurisprudence, so they could exercise their jurisdiction to prosecute suspected crimes--has recognized national proceedings as a barrier to the admissibility of a case before the ICC, leaving the latter to decide on the genuineness of such proceedings. (14) Nonetheless, the failure of the complementarity regime to recognize the primacy of international jurisdiction leads to concession to national sovereignty, which, no doubt, has weakened the performance of the Court. (15)

    However, this arguable principle is the central objective of The International Criminal Court and Complementarity: From Theory to Practice (16), a critical and timely work, edited by Carsten Stahn, professor of international criminal law and global justice at Leiden University, and Mohamed M. El Zeidy, legal officer at the Pre-Trial Chamber II of the ICC. This multidisciplinary work is grounded on theoretical inquiries and practical experiences, written by prominent legal scholars and senior actors in the international criminal judicial system. It consists mostly of scholarly contributions initially presented and discussed at the International Conference on the ICC and Complementarity, held at the Peace Palace and The Hague Campus of Leiden University between 15-16 September 2009.

    The reviewed work examines the conceptual foundations and practical applications of the principle of complementarity in judicial contexts, whether in international judicial bodies or in national courts exercising universal jurisdiction. Moreover, this collective work underlines the historical understanding of complementarity in connection with its contemporary applications. It also explores the main aspects of interpreting complementarity and its implications. In addressing the above objectives, the editors arranged the contributed chapters under six central themes, including: reflections from inside the Court; the chronicle development of the principle of complementarity; analytical dimensions of complementarity; statutory interpretation and application of complementarity; complementarity in perspective; and the application of the principle of complementarity in certain situations before the Court, to which we now turn.

    To introduce this voluminous work, Stahn eloquently recalls the title of a famous American lyrical poem by Paul Simon, Bridge over Troubled Water, indicating that the conversations and debates will cover the broad implications of the arguable principle of complementarity. (17) Before reflecting on the contributions, he points to the prominent role played by the principle of complementarity in creating a convergence between two traditionally discordant systems of justice--the international and the domestic, which are distinct but increasingly interdependent, like 'yin and yang.' (18)

    The complementarity regime functions beyond its formal role in organizing the regulation of the Court's jurisdiction under the Rome Statute. (19) It determines various relations between the ICC and national courts, and between the Ad Hoc tribunals, including the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL), and domestic jurisdiction. (20) Notwithstanding this fundamental function inside and outside the Court, as one of the key instruments to further a new system of justice, complementarity implementation encounters several challenges on statutory and practical levels. The concept enshrined in the provisions of Article 17 of the Rome Statute endures a considerable degree of ambiguity, thereby leaving a sweeping space for interpretation. On the other hand, Stahn reveals that existing practice at the Court shows inconsistency between intent and results. For example, he adds, it is impracticable and unreasonable to postulate that the ICC will perpetually be able and willing to investigate and prosecute all crimes falling under its jurisdiction.

    However, despite the bleak picture that has been painted for the Court and for the future of the international criminal justice by some legal scholars, Stahn argues that the international criminal system is in a stage of transition, with the principle of complementarity is a catalyst of this transmutation. Moreover, the early practice of the Court, with self-referral from different countries, shows interaction between domestic and international justice. (21) Complementarity is counted on to change the current orientation of the international criminal justice approach from a top-down to bottom-up perspective, by providing the means to reconsider international settings and facilitate decentralization of justice mechanisms through encouraging the development of regional courts, and bridging the gaps between the eagerness to see justice being done and the cognizance that justice is seen and felt to be done. (22) As has already been pointed out, this voluminous work highlights six overarching core themes, which emerge across the following chapters.

  2. GENERAL REFLECTIONS

    This introductory section comprises three contributions submitted by actors in the international criminal justice system, namely the Office of the Prosecutor (OTP) and the Registrar's Office of the ICC. As Stahn provides, the chapters present an 'insider's perspective' on the complementarity regime, exploring how it goes beyond a multi-jurisdictional concept, to a system that affects all aspects of the jurisprudential process of the Court. (23)

    The opening chapter by Luis Moreno-Ocampo, the former Prosecutor of the ICC, outlines complementarity dimensions and discusses the policies and practice of the OTP on the complementarity regime under the Rome Statute. (24) It also emphasizes that the main goal of the ICC is to establish a global criminal justice system, to end the culture of impunity for the most serious crimes and contribute to their prevention. In this chapter, Ocampo specifies two dimensions of the concept of complementarity found in the Rome Statute: the admissibility test, which is enshrined in the provisions of Article 17(l)(a) (b) and (c), (25) and 'positive complementarity,' instituted in Article 93(10). The admissibility test determines whether a state is willing and able to genuinely investigate and prosecute cases selected or considered for selection by the OTP, while 'positive complementarity' provides that the ICC may, upon their request, provide the state with assistance. (26)

    Moreover, Ocampo outlines the OTP policy and practices on complementarity, listed in the OTP's September 2003 policy paper. (27) Accordingly, over the past decade or so, under Article 93(10) of the Rome Statute, the OTP provided information to national judicial bodies upon their request; (28) developed a network of law enforcement agencies; (29) contributed to national efforts to build expertise and capacities; (30) and provided information to those involved in mediation and accountability efforts. (31)

    Finally, Ocampo concludes by emphasizing that what he has claimed at the outset of the chapter is that the complementarity regime incorporated in the provisions...

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