Abstract
The principle of complementarity described in the ICC Rome Statute is often taken for granted in the legal analysis of international criminal law and its jurisprudence. Indeed, apart from William Schabas and his monumental paper ‘“Complementarity in Practice’: Some Uncomplimentary Thoughts”, very few have ever questioned it. However, closer examination proves that the complementarity principle was a mere shadow without any flesh and bones whatsoever, at least––arguably––until the Abdullah Al-Senussi case. Hence, the ‘awakening hypothesis’ of the complementarity principle first examines the myth of the complementarity principle and the fact that it was never actually enforced until October 2013. Thereafter analysis follows of the reasoning of the two Abdullah Al-Senussi judgments (Pre-Trial and Appeals Chamber). Finally, the awakening hypothesis of the complementarity principle leaves open to question whether or not the Αl-Senussi case is indeed the first instance of the complementarity principle’s enforcement, without overlooking the fact that, since the two above judgments, ICC Prosecutor Fatou Bensouda has repeatedly expressed the Court’s respect towards the complementarity principle at least at a rhetorical level.
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Notes
- 1.
The forerunner of Article 17 ICCRSt was an article which was approved by the International Law Commission and entitled “Issues of admissibility”. Draft Statute for an International Criminal Court, 1994: Article 35 - Issues of admissibility: The Court may, on application by the accused or at the request of an interested State at any time prior to the commencement of the trial, or of its own motion, decide, having regard to the purposes of this Statute set out in the preamble, that a case before it is inadmissible on the ground that the crime in question: (a) has been duly investigated by a State with jurisdiction over it, and the decision of that State not to proceed to a prosecution is apparently well-founded; (b) is under investigation by a State which has or may have jurisdiction over it, and there is no reason for the Court to take any further action for the time being with respect to the crime; or (c) is not of such gravity to justify further action by the Court. <http://legal.un.org/ilc/texts/instruments/english/draft%20articles/7_4_1994.pdf > (last accessed 7 February 2019).
- 2.
Article 20 ICCRSt - Ne bis in idem… 3. No person who has been tried by another court for conduct also proscribed under article 6. 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court: or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
- 3.
Although the Article 17 ICCRSt refers to the case of “a state” (state party, according to this author’s view) being “unwilling” or “unable” but not inactive, this phrasing has not been interpreted to mean that a case is inadmissible before the ICC when a state is inactive, without being unwilling or unable, as a strictly grammatical interpretation of Article 17 ICCRSt would imply. In the case of Lubanga the Pre-Trial Chamber I noted that: The first part of the test relates to national investigations, prosecutions and trials concerning the case at hand insofar as such case would be admissible only if those States with jurisdiction over it have remained inactive in relation to that case or are unwilling or unable, within the meaning of article 17 (1) (a) to (c), 2 and 3 of the Statute. 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, ICC-01/04-01/06-8-US-Corr 09-03-2006, ibid. p 19, para 29, (emphasis added).
- 4.
E. Kastanidou-Symeonidou, ‘Legitimizing Basis and ICC Jurisdiction Limits’ (2003) 51 ΝοΒ 452.
- 5.
After the 2010 Kampala conference, only 15 states eventually followed the path set out by Liechtenstein and ratified the articles 8bis, 15bis and 15ter which activate the ICC jurisdiction on the crime of aggression. See official list of states: <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY &mtdsg_no=XVIII-10-b&chapter=18&lang=en,> (last accessed 7 February 2019). According to the data provided by the official campaign launched for the ratification of the amendment, 36 states including Greece are currently examining the ratification of the crime of aggression: <http://crimeofaggression.info/the-role-of-states/status-of-ratification-and-implementation/> (last accessed 7 February 2019). Press release 09-05-2012: <https://asp.icc-cpi.int/en_menus/asp/press%20releases/press%20releases%202012/Pages/pr793.aspx > (last accessed 7 February 2019). The ICC can exert its jurisdiction for the crime of aggression as soon as 30 states parties ratify the amendment and a two-thirds majority decision of states parties is taken at a Review Conference no sooner than 1 January 2017. However, until the amendment is accepted by seven-eighths of states parties, the ICC will be unable to exercise its jurisdiction regarding a crime of aggression committed by citizens of a state party which has not accepted the amendment or committed on the territory of such a state party. See Articles 15ter (2) and (3), 121 (3), (5) and (6), < https://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf > (last accessed 7 February 2019).
- 6.
V. Tsilonis, ‘Thomas Lubanga Dyilo: The Unstable Step of the International Criminal Court?’ in A. Pitsela (ed.), Criminological Quests: Treatises in the Honour of Emeritus Professor Stergios Alexiadis (Sakkoulas, Thessaloniki 2010) 1039-1057.
- 7.
The whole debate in the 2010 Review Conference of the Rome Statute in Kampala, as well as the stocktaking exercise that took place during the Conference in question had no practical impact whatsoever on the ICC policy change at that time nor, as evidently proven today, three years later. For an extremely optimistic review see M. Bergsmo, O. Bekou and A. Jones, ‘Complementarity After Kampala: Capacity Building and the ICC’s Legal Tools’ (2010) 2 GoJIL 791-811.
- 8.
Although its ideological roots may be traced back to Article 6 in the London Agreement of 8 August 1945 (which led to the founding of IMT), <http://avalon.law.yale.edu/imt/imtchart.asp> (last accessed 28 January 2019), where it is stated: “Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trial of war criminals.” However, the IMT tried only 22 of the accused due to the allies’ lack of political will and lack of resources and not because of the “role of criminal jurisdiction”. See contra E. Zeidy, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’ (2003) 23 MJIL 869.
- 9.
The final text of paragraph 6 in the Preamble derives largely from the “Dominican Republic: Proposal Regarding the Preamble”, which initially referred to the fact that the Statute’s states parties were “Being prepared to strengthen the United Nations system harmoniously with a permanent international criminal court which, complementary to national jurisdictions, will have jurisdiction over those crimes which are of concern to international society as a whole.” Dominican Republic: Proposal Regarding the Preamble, UN Doc. A/CONF.183/C.1/L.52, 203 < https://www.dropbox.com/s/z1gc07v13ofb34o/Proposal%20Submitted% 20by%20the%20Dominican%20Republic.pdf?dl=0 > (last accessed 28 January 2019).
- 10.
Article 9 (2) ICTY Statute and Article 8 (2) ICTR Statute, where it is expressly stated that “the International Tribunal shall have primacy over national jurisdictions”.
- 11.
On the contrary, Article 1 (2) and (3) of the Special Court for Sierra Leone (SCSL) Statute similarly recognizes the complementarity principle: Article 1 - Competence of the Special Court: [...] 2. Any transgressions by peacekeepers and related personnel present in Sierra Leone pursuant to the Status of Mission Agreement in force between the United Nations and the Government of Sierra Leone or agreements between Sierra Leone and other Governments [...] shall be within the primary jurisdiction of the sending State. 3. In the event the sending State is unwilling or unable genuinely to carry out an investigation or prosecution, the Court may, if authorized by the Security Council on the proposal of any State, exercise jurisdiction over such persons, <http://www.rscsl.org/Documents/scsl-statute.pdf > (last accessed 28 January 2019).
- 12.
“Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”, paragraph 6 of the ICCRSt Preamble.
- 13.
“Emphasizing that the international Criminal Court established under this Statute shall be complementary to national criminal jurisdictions”, paragraph 10 of the ICCRSt Preamble.
- 14.
Article 17 ICCRSt - Issues of Admissibility: 1. Having regard to para 10 of the Preamble and article 1, 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; (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 Court is not permitted under Article 20, para 3; (d) The case is not of sufficient gravity to justify further action by the Court.
- 15.
Article 20 ICCRSt Ne bis in idem: No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court: or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
- 16.
The Statute itself imposes obstacles upon the Court’s exercising jurisdiction, as stated in Article 17, referring firstly to complementarity (Article 17(1)(a) to (b)), secondly to ne bis in idem principle (Articles 17(1)(c), 20) and thirdly to the sufficient gravity of the crime (Article 17(1)(d)). The existence of any of the aforementioned obstacles, listed in article 17, makes the case inadmissible. Prosecutor v. Thomas Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Αrticle 19 (2)(a) of the Statute of 3 October 2006, ICC–01/04– 01/06-772, 14 December 2006, para 23, <http://www.icc-cpi.int/iccdocs/doc/doc243774.pdf > (last accessed 28 January 2019).
- 17.
R. Rastan, ‘Complementarity: Contest or Collaboration’ in M. Bergsmo (ed), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Oslo, Torkel Οpsahl Αcademic Εpublisher 2010), 84, fn 2.
- 18.
W.A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (New York, Oxford University Press 2010), 340.
- 19.
See previous analysis for the indirect connection between complementarity and ne bis in idem principle.
- 20.
Letter of Prosecutor, 9 February 2006, <http://www.iccnow.org/documents/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf> (last accessed 23 April 2019).
- 21.
Pre-Trial Chamber I drew a legal distinction between the terms “situation” and “case” as follows: “The Chamber considers that the Statute, the Rules of Procedure and Evidence and the Regulations of the Court draw a distinction between situations and cases in terms of the different kinds of proceedings, initiated by any organ of the Court, that they entail. Situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters, such as the situation in the territory of the Democratic Republic of the Congo since 1 July 2002, entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such. Cases, which comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, entail proceedings that take place after the issuance of a warrant of arrest or a summons to appear.” Situation in the Democratic Republic of Congo, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPRS6, para 65, (emphasis added), < http://www.icc-cpi.int/iccdocs/doc/doc183441.pdf > (last accessed 28 January 2019).
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, ICC-01/04-01/06-8-US-Corr 09-03-2006, 20, para 30, < http://www.icc-cpi.int/iccdocs/doc/doc236260.PDF > (last accessed 28 January 2019).
- 22.
ibid 19, para 29 and 24, para 41.
- 23.
Arts 15 (3) and 53 (1) ICCRSt.
- 24.
Situation in the Democratic Republic of Congo, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPR-6, para 65, (emphasis added), <http://www.icc-cpi.int/iccdocs/doc/doc183441.pdf> (last accessed 28 January 2019).
- 25.
R. Rastan, ‘What is a ‘Case’ for the Purpose of the Rome Statute?’ (2008) 19 CrimLF 438.
- 26.
W. A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (New York, Oxford University Press 2010), 340-341.
- 27.
P. Benvenuti, ‘Complementarity of the International Criminal Court to National Jurisdictions’ in Latanza and Schabas (eds.), Essays, Vol. I, 21-50; J. T. Holmes, ‘The Principle of Complementarity’ in R. S. Lee (ed.) The International Criminal Court: The Making of the Rome Statute (The Hague: Kluwer Law International 1999), 67.
- 28.
Luis Moreno-Ocampo, Statement made at the ceremony for the solemn undertaking of the Chief Prosecutor of the ICC, Monday 16 June 2003, Palace of Peace, Hague, <https://www.icc-cpi.int%2FNR%2Frdonlyres%2FD7572226-264A-4B6B-85E3-2673648B4896%2F143585%2F030616_moreno_ocampo_english.pdf&usg=AOvVaw3lMglPOBu9BI3Qb_944hds> (last accessed 28 January 2019).
- 29.
ICC-OTP, Paper on Some Policy Issues Before the Office of the Prosecutor, <http://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25-60aa962ed8b6/143594/030905policy_paper.pdf> (last accessed 28 January 2019).
- 30.
W. A. Schabas, “‘Complementarity in Practice’: Some Uncomplimentary Thoughts” (2008) 19 CrimLF 5-33.
- 31.
ICC-OTP, Paper on Some Policy Issues Before the Office of the Prosecutor, p. 2 <http://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25-60aa962ed8b6/143594/030905policy_paper.pdf> (last accessed 28 January 2019).
- 32.
ibid. It should be remembered here that the term ‘situation’ used in the ICC Rome Statute refers to the investigation of a case in a wider or narrower geographical region, which could include one part of a single State (e.g. Sudan) or territories of several States.
- 33.
ibid 3.
- 34.
There is a reference to the gravity criterion on page 7 of the Paper, where it is stated that “Article 17, dealing with admissibility, adds to the complementarity grounds one related to the gravity of a case. It states that the Court (which includes the Office of the Prosecutor) shall determine that a case is inadmissible where ‘the case is not of sufficient gravity to justify further action by the Court’. The concept of gravity should not be exclusively attached to the act that constitutes the crime but also to the degree of participation in its commission”. ibid 4.
- 35.
ibid.
- 36.
ibid.
- 37.
ibid 5.
- 38.
ICC-OTP, Paper on Some Policy Issues Before the Office of the Prosecutor, 5 <http://www.icc-cpi.int/nr/rdonlyres/1fa7c4c6-de5f-42b7-8b25-60aa962ed8b6/143594/030905policy_paper.pdf> (last accessed 28 January 2019).
- 39.
Of course, this has no application either in law or in reality, since in recent years there have been objections made concerning what is perceived to be a “prejudiced court” by several States and the African Union, which consists of 54 States.
- 40.
W. A. Schabas (fn 31) 6.
- 41.
The specialists’ study was conducted following the decision of the Director of the ICC Common Services at the time, Bruno Cathala. See: Antonio Cassese et al, Informal Expert Paper: The Principle of Complementarity in Practice, 3 ICC-01/04-01/07-1008-AnxA 30-03-2009, < https://www.legal-tools.org/doc/90915d/pdf/ >, (last accessed 7 February 2019).
- 42.
ibid 3-4.
- 43.
ibid 4.
- 44.
Article 17(1)(a) ICCRSt.
- 45.
Antonio Cassese et al, Informal Expert Paper: The Principle of Complementarity in Practice, 3 ICC-01/04-01/07-1008-AnxA 30-03-2009, 5 (emphasis added) < https://www.legal-tools.org/doc/90915d/pdf/ >, (last accessed 7 February 2019).
- 46.
ibid 5.
- 47.
ibid 18 para 59. The title of the official text is “Special Issues” and the subtitle “Uncontested Admissibility and Consensual Division of Labour”.
- 48.
ibid.
- 49.
ibid 19 para 61 (emphasis added).
- 50.
Shortly afterwards the ICC case law opposed the unofficial entry of the term ‘inaction’ in the Statute. See 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, ICC-01/04-01/06-8-US-Corr 09-03-2006, para 29, <www.worldcourts.com/icc/eng/decisions/2006.02.24_Prosecutor_v_Lubanga.pdf>, (last accessed 7 February 2019).
- 51.
Bruno Cathala. Antonio Cassese et al, Informal Expert Paper: The Principle of Complementarity in Practice, ibid 42, p. 19, n 24.
- 52.
It is highly dubious whether the “aut dedere aut judicaire” principle constitutes an active principle of International Criminal Law included in Article 21(1)(b) ICCRSt today, i.e. after an initial ICC recommendation and subsequent ICTY, ICTR and SCSL recommendations.
Article 21 - Applicable law. 1. The Court shall apply: (a) in the first place, this Statute. Elements of Crimes and its Rules of Procedure and Evidence; (b) in the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict…
In any case, none of the twelve eminent legal scientists cited any such legal source in the study in question, nor did they make any reference to Article 21 ICCRSt!
- 53.
In his study included in the Essays in Honor of Cherif M. Bassiouni, William Schabas mordantly reveals: “Luis Moreno Ocampo has essentially solicited such referrals from the states concerned”. W. A. Schabas, ‘Crimes Against Humanity’, in L. N. Sadat & M. P. Scharf (eds.), The Theory and Practice of International Criminal Law: Essays in Honor of Cherif M. Bassiouni (Liden: Koninklijke Brill NV, 2008), 361.
- 54.
Article 14 Referral of a situation by a State Party: (1) A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. (2) As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.
- 55.
Annex to the “Paper on some policy issues before the Office of the Prosecutor”: Referrals and Communications, p. 4, < https://www.icc-cpi.int/itemsdocuments/20160915_otp-policy_case-selection_eng.pdf > (last accessed 7 February 2019).
- 56.
ibid 5.
- 57.
Article 15 Prosecutor: 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.
- 58.
Office of the Prosecutor, ‘Report on the Activities Performed During the First Three Years’ (June 2003 to June 2006), 12 September 2006, 7.
- 59.
Article 12 - Preconditions to the exercise of jurisdiction: 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
2. In the case of Article 13, para (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with para 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) the State of which the person accused of the crime is a national.
- 60.
See Office of the Prosecutor, Report on the Activities Performed During the First Three Years (June 2003–June 2006), 2, 5, < https://www.icc-cpi.int/nr/rdonlyres/d76a5d89-fb64-47a9-9821-725747378ab2/143680/otp_3yearreport20060914_english.pdf > (last accessed 7 February 2019).
- 61.
ibid 2.
- 62.
ibid 7.
- 63.
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, ICC-01/04-01/06-8-Corr 17-03-2006, <http://www.icc-cpi.int/iccdocs/doc/doc236260.PDF> (last accessed 7 February 2019).
- 64.
As mentioned before, the Pre-Trial Chamber I has distinguished between the legal terms “situation” and “case”. Situation in the Democratic Republic of Congo, Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5 and VPRS6, para 65, (emphasis added), <http://www.icc-cpi.int/iccdocs/doc/doc183441.pdf> (last accessed 7 February 2019).
- 65.
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, para 33. Oddly enough, para 36 mentions that “Therefore, in the Chamber’s view, the Prosecution’s general statement that the DRC national judicial 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.” Nonetheless, even this ICC recorded evaluation could not lead to any change to the decision concerning the admissibility issue!
- 66.
ibid para 35.
- 67.
See M El Zeidy, ‘The Ugandan Government Triggers the First Test of the Complementarity Principle: An Assessment of the First State’s Party Referral to the ICC’ (2005) 5 IntlCLR 83-120.
- 68.
Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53, paras 4-5, <http://www.icc-cpi.int/iccdocs/doc/doc97225.pdf> (last accessed 7 February 2019).
- 69.
President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC, < https://www.icc-cpi.int/pages/item.aspx?name=president+of+uganda+refers+situation+concerning+the+lord_s+resistance+army+_lra_+to+the+icc > (last accessed 7 February 2019).
- 70.
See official website of ICC on the Uganda situation, < https://www.icc-cpi.int/uganda > (last accessed 7 February 2019).
- 71.
Warrant of Arrest for Joseph Kony issued on 8 July 2005 as amended on 27 September 2005, ICC-02/04-01/05-53, 11 para 37, <http://www.icc-cpi.int/iccdocs/doc/doc97185.pdf> (last accessed 7 February 2019), with reference to “A Letter about Jurisdiction”. This letter also refers to four other warrants of arrest issued in secret concerning the situation in Uganda on 8 July 2005.
- 72.
W. A. Schabas 19, fn. 31.
- 73.
Referral letter by the Government of Mali, 13 July 2012, <http://www.icc-cpi.int/NR/rdonlyres/A245A47F-BFD1-45B6-891C-3BCB5B173F57/0/ReferralLetterMali130712.pdf> (last accessed 7 February 2019).
- 74.
Pre-Trial Chamber I, “Warrant of Arrest for Abdullah Al-Senussi”, ICC-01/11-01/11-4, 27 June 2011, <http://www.icc-cpi.int/iccdocs/doc/doc1101360.pdf> (last accessed 7 February 2019).
- 75.
UN Security Council Resolution 1970/26-02-2011 “Peace and Security in Africa”, para 4, < https://undocs.org/S/RES/1970(2011) > (last accessed 7 February 2019).
- 76.
Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 ICCRSt, ICC-01/11-01/11-307-Red2, 03-04-2013, < https://www.icc-cpi.int/CourtRecords/CR2013_02635.PDF > (last accessed 7 February 2019).
- 77.
Decision on the Admissibility of the Case Against Abdullah Al-Senussi, ICC-01/11-01/11-466 Red, pp. 8-9, http://www.icc-cpi.int/iccdocs/doc/doc1663102.pdf> (last accessed 7 February 2019).
- 78.
ibid 9-13.
- 79.
ibid 12-13.
- 80.
ibid 14.
- 81.
Appeals Chamber, The Prosecutor v.Germain Katanga and Mathieu Ngudjolo Chui, “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”, 25 September 2009, ICC-01/04-01/07-1497, paras. 1 and 75-79, <http://www.icc-cpi.int/iccdocs/doc/doc746819.pdf> (last accessed 28 January 2019). Also see Pre-Trial Chamber I, “Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 7 December 2012, ICC-01/11-01/11- 239, para 6.
- 82.
Decision on the Admissibility of the Case Against Abdullah Al-Senussi, ICC-01/11-01/11-466 Red, 15, http://www.icc-cpi.int/iccdocs/doc/doc1663102.pdf> (last accessed 7 February 2019.
- 83.
The term “conduct” is used in the official English text of the Decision; an analysis of its argumentation and interpretation with reference to all state parties is also presented, ibid. 18-31.
- 84.
ibid 32.
- 85.
The term “facts and circumstances of the case” is used in the official English text of the Decision, ibid. 34.
- 86.
The term “a case-by-case analysis” is used in the official English text of the Decision, ibid. 34, where a special reference to the May 2013 decision is made, concerning the admissibility of Saif Al Islam Gaddafi. The term is repeated at page 40, para 78. See Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi, ICC-01/11-01/11-344-Red, 31-05-2013, p. 32, para 77, <http://www.icc-cpi.int/iccdocs/doc/doc1599307.pdf> (last accessed 28 January 2019). Also see ICTR, The Prosecutor v.Ntagerura et al, Case No. ICTR-99-46-A, Appeals Chamber Judgement, 7 July 2006, para 23. ICTR, The Prosecutor v.Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR-96-17-A, Appeals Chamber Judgement, 13 December 2004, paras. 73-74. ICTY, The Prosecutor v.Kupreskic et al, Case No. IT-95-16-A, Appeals Chamber Judgement, 23 October 2001; ICTY, The Prosecutor v.Blaskic, Case No. IT-95-14-A, Appeals Chamber Judgement, 29 July 2004; ICTY, The Prosecutor v.Kvocka et al., Case No. IT-98-30/1-A, Appeals Chamber Judgment, 25 February 2005.
- 87.
A swift reading of the cases brought before the ICC today suffices to show that they are significantly different, as far as the description of the true conduct parameters used in court for each suspect or each of the accused is concerned, and proves that different cases cannot necessarily be considered equal when it comes to the alleged wide or narrow interpretation of the conduct, ibid. 41, para 75.
- 88.
Decision on the Admissibility of the Case Against Abdullah Al-Senussi, ICC-01/11-01/11-466 Red, 36, para 68, http://www.icc-cpi.int/iccdocs/doc/doc1663102.pdf> (last accessed 7 February 2019).
- 89.
ibid 36-38.
- 90.
ibid 45, para 78.
- 91.
ibid 45, para 79.
- 92.
The Article 58 Decision (concerning the issue of the warrant of arrest for Al-Senussi) includes, inter alia, the following incidents that occurred in Benghazi during 15-20 February 2011: 1) the arrest by the Security Forces on 15 February 2011 of a lawyer who was organising a protest against Gaddafi regime scheduled for 17 February 2011 (para 43); 2) the arrest of several authors, writers and alleged dissidents (including that of the Libyan author Idriss Al-Mismari) between 15 and 17 February 2011 (para 43 and 44); 3) the attack by the Security Forces on demonstrators with tear gas and live ammunition, following the gathering of an increasing number of demonstrators in the area of Birka, in A1 Fatah street and Jamal Abdun Naser street on 16 February 2011, causing the death of at least three civilian demonstrators (para 36(i); 4) the attack, on the same day, by forces loyal to Muammar Gaddafi on civilian demonstrators who were hit with sticks and dispersed (para 52); 5) the event of 17 February 2011 at the Juliyana Bridge, when Security Forces armed with machineguns barricaded the street to stop the demonstrators, opened fire for a significant period of time on the unarmed demonstrators, causing a large number of injuries and deaths among the demonstrators, and arrested those demonstrators that were not shot and were not able to flee (para 36(ii) and 53); 6) the attack, on the same day, carried out by the Security Forces who fired with live ammunition on unarmed demonstrators, who had gathered near the High Court in the centre of Benghazi to protest against the arrest of the individual who had been organizing the forthcoming protest against Gaddafi regime (para 50); 7) the killing and seriously injuries, still on 17 February 2011, perpetrated by the Security Forces on a number of other demonstrators in different areas of the town (para 36(iii) and 52) and the attacks by the Security Forces continuing throughout the night (para 53); 8) the killing and seriously injuring by the Security Forces on 18 February 2011 of a number of civilians while participating in the funeral procession for the demonstrators killed the day before (para 36(iv) and 54); 9) the killing by the Security Forces of at least 60 demonstrators on 20 February 2011 (para 36(vi)). Furthermore, the Article 58 Decision refers to protesters subjected to torture (para 46) and the abduction and subsequent torture of family members of alleged dissidents (para 47). 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”, ICC-01/11-12, 27-06-2011, <http://www.icc-cpi.int/iccdocs/doc/doc1099314.pdf> (last accessed 28 January 2019).
- 93.
Decision on the Admissibility of the Case Against Abdullah Al-Senussi, ICC-01/11-01/11-466 Red, 8-9, <http://www.icc-cpi.int/iccdocs/doc/doc1663102.pdf > (last accessed 7 February 2019), 45, para 78, (last accessed 28 January 2019).
- 94.
ibid 46-82, para 81-157.
- 95.
ibid 83-84, para 162.
- 96.
ibid 49, para 86.
- 97.
ibid 83-85, para 162.
- 98.
ibid 86, para 164. The court indicated that although a number of criminal acts inflicted on civilians because of their political opposition to Gaddafi’s regime constitute the crime of “persecution” in accordance with article 7(l)(h) of the Statute, the fact that the political aspect is aggravated according to articles 27 and 28 of the Libyan Criminal Code further characterises the murders and inhuman acts committed by Al-Senussi. ibid 86-87, para 166. Also see Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi, ICC-01/11-01/11-344-Red, 31-05-2013, 46, para 111 <http://www.icc-cpi.int/iccdocs/doc/doc1599307.pdf> (last accessed 28 January 2019).
- 99.
The decision states “all aspects of the Admissibility Challenge to the extent required by the concrete circumstances of the case”, Decision on the Admissibility of the Case Against Abdullah Al-Senussi, 15, para 27.
- 100.
(Emphasis added). It is probably the first time that this term is included in the case law of the ICC, albeit in the official summary of the lengthy decision. See Summary of the Decision on the admissibility of the case against Mr Abdullah Al-Senussi, 5 <https://thenewlibyareport.files.wordpress.com/2014/05/english-summary.pdf> (last accessed 28 January 2019).
- 101.
ICC Judge Christine Van den Wyngaert highlighted in a separate declaration that she was extremely shocked to hear about the abduction and liberation of the Libyan Prime Minister Ali Zeidan on 10 October 2013, as well as the general security levels in Libya, since their deterioration could dramatically affect Libya’s ability to carry out proceedings against Al-Senussi. Furthermore, before the Decision was issued, she would have preferred to have received the views of all interested parties concerning whether the current security situation in Libya is safe enough for the trial of Abdullah Al-Senussi to proceed there. See Declaration of Judge Christine Van den Wyngaert, available online <http://www.icc-cpi.int/iccdocs/doc/doc1663117.PDF> (last accessed 28 January 2019).
- 102.
Article 17 - Issues of admissibility: 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (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 Court 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.
- 103.
The Defence highlighted in a previous paper the swift trials that took place in Libya against higher officers of the Gaddafi regime, which concluded in death sentences being handed down to the accused and carried out. Defence Application on behalf of Abdullah Al-Senussi for Leave to Reply to the “Libyan Government’s Response to ‘Defence Application on behalf of Mr. Abdullah Al-Senussi concerning Libya’s Announcement of Trial Date in August 2013’” and Defence Request for this Application and the Defence Application of 10 July 2013 to be decided on an urgent basis, ICC-01/11-01/11-398, para 10, <http://www.icc-cpi.int/iccdocs/doc/doc1631011.pdf> (last accessed 28 January 2019).
- 104.
Article 12 - Issues of Admissibility: 3. in order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
- 105.
It is noteworthy that at least one of the witnesses testified while detained, and that several potential witnesses continue to be detained today in Al Hadba prison, which operates under the supervision of the present Libyan government, i.e. the National Transitional Council.
- 106.
Article 17 (3) ICCRSt.
- 107.
See the ICC’s official website on the case The Prosecutor v. Saif Al-Islam Gaddafi, formerly The Prosecutor v. Muammar Mohammed Abuminyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11, < https://www.icc-cpi.int/libya/gaddafi > (last accessed 28 January 2019). Following the murder of Muammar Mohammed Abu Minyar Gaddafi (commonly known as Colonel Gaddafi) by insurgents on 20 October 2011, the case inevitably continued against the two-remaining accused.
- 108.
Decision on the admissibility of the case against Saif Al-Islam Gaddafi), ICC-01/11-01/11-344-Red, International Criminal Court (ICC) (31 May 2013) 89, para 215, <http://www.icc-cpi.int/iccdocs/doc/doc1599307.pdf> (last accessed 7 January 2019).
- 109.
Although it is also highlighted in the Decision that the Pre-Trial Chamber I “is mindful that the Defence ability to raise certain factual matters may have been prejudiced by the absence of direct contacts with Mr Al-Senussi, since a visit to Mr Al-Senussi by his counsel has not taken place despite the Chamber’s order to this effect”. ibid 110, para 219.
- 110.
Public censored document, Appeal on behalf of Abdullah Al-Senussi against Pre-Trial Chamber I’s ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, and Request for Suspensive Effect, ICC-01/11-01/11-468-Red 17-10-2013, <http://www.icc-cpi.int/iccdocs/doc/doc1666694.pdf> (last accessed 28 January 2019).
- 111.
It is noteworthy that the OPCV was against the Libyan request not to bring Al-Senussi before the ICC. ibid 99-100, paras 195-198.
- 112.
ibid 6-7.
- 113.
ibid 8.
- 114.
ibid 10.
- 115.
ibid 11.
- 116.
ibid 11.
- 117.
ibid 11.
- 118.
ibid 11.
- 119.
“[T]he Chamber emphasizes that alleged violations of the procedural rights of the accused are not per se grounds for a finding of unwillingness or inability under article 17 of the Statute. In order to have a bearing on the Chamber’s determination, any such alleged violation must be linked to one of the scenarios provided for in article 17(2) or (3) of the Statute. In particular, as far as the State’s alleged unwillingness is concerned, the Chamber is of the view that, depending on the specific circumstances, certain violations of the procedural rights of the accused may be relevant to the assessment of the independence and impartiality of the national proceedings that the Chamber is required to make, having regard to the principles of due process recognized under international law, under article 17(2)(c) of the Statute. However, this latter provision, identifying two cumulative requirements, provides for a finding of unwillingness only when the manner in which the proceedings are being conducted, together with indicating a lack of independence and impartiality, is to be considered, in the circumstances, inconsistent with the intent to bring the person to justice.” Decision on the Admissibility of the Case Against Abdullah Al-Senussi, 117-118, para 235 and fn. 541 where there is an extremely interesting analysis on the different phrasing of Article 17 (2) (c) ICCRSt and Article 9(ii) Rules of Procedure and Evidence (cumulative phrasing in the first, disjunctive phrasing in the second).
- 120.
ibid 13.
- 121.
Kevin Jon Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, (2006) 17 Criminal Law Forum, < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=907404 > (last accessed 28 January 2019); William W. Burke-White, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum, 59-85; Enrique Carnero Rojo, ‘The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal Court: From ‘No Peace without Justice’ to ‘No Peace with Victor’s Justice’?’ Leiden Journal of International Law 18, no. 4 (2005): 829-869.
- 122.
Judgment on the Appeal of Mr Abdullah Al-Senussi against the Decision of Pre-Trial Chamber I on 11 October 2013 on the Admissibility of the Case against Abdullah Al-Senussi, 3-4 para 2-3 <http://www.icc-cpi.int/iccdocs/doc/doc1807073.pdf> (last accessed 28 January 2019).
- 123.
Y. McDermott Rees, ‘Towards Positive Complementarity?’, 26 July 2014, electronically available at: Phd in Human Rights Blog, <http://humanrightsdoctorate.blogspot.gr/2014_07_01_archive.html> (last accessed 28 January 2019).
- 124.
It is noteworthy here that while the complementarity concept constitutes a loan from quantum mechanics to legal science (since the term complementarity is used to express the paradox of wave-particle duality in the scientific field of quantum mechanics), the new term of the awakening hypothesis that this study attempts to introduce constitutes a loan from the science of philology, scholars of which were asked to aid the author in the description of this paradoxical phenomenon: a legal principle remains empty for several years and suddenly it starts to ‘fill’ or ‘fill up’, to take a form.
- 125.
BBC News, Profile: Abdullah al-Senussi, 16 October 2015 <http://www.bbc.com/news/world-middle-east-17414121> (last accessed 28 January 2019).
- 126.
The last episode of the civil unrest and war being the bombing of a Greek oil tanker. “Greek Oil Tanker Bombed in Libyan Port of Derna”, BBC, 5 January 2015 < http://www.bbc.com/news/world-africa-30681904 > (last accessed 28 January 2019); George Joffe, “Libya air strikes: Conflict linked to Wider Middle East”, BBC, 27 August 2014 < https://www.bbc.com/news/world-africa-28948948 > (last accessed 28 January 2019).
- 127.
Situation in Georgia, Public Document with Confidential, EX PARTE, Annexes A, B, C, D.2, E.3, E.7, E.9, F, H and Public Annexes 1, D.1, E.1, E.2, E.4, E.5, E.6, E.8,G, I, J, ICC-01/15-4 13-10-2015 1/160 EO PT, 132-133, 150-151 < https://www.icc-cpi.int/CourtRecords/CR2015_19375.PDF > (last accessed 28 January 2019).
- 128.
But see also “ASP President welcomes the revocation of South Africa’s withdrawal from the Rome Statute”, 11 March 2017 < https://www.icc-cpi.int/Pages/item.aspx?name=pr1285 > (last accessed 28 January 2019).
- 129.
Statement of the President of the Assembly of States Parties on the process of withdrawal from the Rome Statute by Burundi, 18 October 2016, < https://www.icc-cpi.int/Pages/item.aspx?name=pr1244 > (last accessed 28 January 2019); President of the Assembly regrets withdrawal of any State Party from the Rome Statute and reaffirms the Court’s fight against impunity, 22 October 2016, <https://www.icc-cpi.int/Pages/item.aspx?name=pr1248>, 10 April 2017; Press Conference by the President of the Assembly on withdrawal from the Rome Statute, 15:00 (GMT) in Dakar, 24 October 2016, < https://www.icc-cpi.int/Pages/item.aspx?name=ma206 > (last accessed 28 January 2019).
- 130.
The Office of the Prosecutor, Report on Preliminary Examination Activities 2016, 2-3, 5, 48-49, 72.
- 131.
The latest explicit referral to the complementarity principle can be found in the Statement of the Prosecutor of the International Criminal Court, Ms Fatou Bensouda, regarding the situation in the Kasaï provinces, Democratic Republic of the Congo, 31 March 2017, <https://www.icc-cpi.int/Pages/item.aspx?name=170331-otp-stat> (last accessed 28 January 2019).
- 132.
For a concise analysis of passive, positive, proactive and radical complementarity with further bibliographical references see the MA thesis of Vaia Karanikola, The Principle of Complementarity: A Comparative Analysis of the Jurisprudence Among the ad hoc Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and the International Criminal Court, 117-122, ‘Pandemos’ Digital Library of Panteion University < http://pandemos.panteion.gr/getfile.php?uri=http://localhost:8080/fedora/objects/iid:18184/datastreams/PDF1/content&mimetype=application%2Fpdf&filename=12PMS_DIE_EUR_SPO_KaranikolaVa.pdf> (last accessed 28 January 2019).
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Tsilonis, V. (2019). The Awakening Hypothesis of the Complementarity Principle. In: The Jurisdiction of the International Criminal Court. Springer, Cham. https://doi.org/10.1007/978-3-030-21526-2_9
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