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

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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.

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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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Condorelli, L. and Villalpando, S. ‘Referral and Deferral by the Security Council’, in Cassese, A., Gaeta, P., and Jones, J., (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vol. I, Oxford University Press, 2002

Condorelli, L. and Villalpando, S. ‘Relationship of the Court with the United Nations’, in Cassese, A., Gaeta, P., and Jones, J., (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002

Cryer, R., Friman, H., Robinson, D., and Wilhurst, E. An Introduction to International Criminal Law and Procedure, 2 edn., Cambridge University Press, 2010

Dascalopoulou-Livada, P. ‘The Principle of Complementarity and Security Council Referrals’, in Politi, M., and Gioia, F., (eds.), The International Criminal Court and National Jurisdictions, Ashgate, 2008

Drumbl, M. ‘Policy Through Complementarity’, in Stahn, C., and El Zeidy, M., (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, Cambridge University press, 2011

El Zeidy, M. The Principle of Complementarity in International Criminal Law: Origin, Development and Practice, Martinus Nijhoff, 2008

Heller, K. ‘The Shadow Side of Complementarity: The Effect of Article 17 on National Due Process’, 17(3/4) Criminal Law Forum (2006) 255

Holmes, J. ‘Complementarity: National Courts versus the ICC’, in Cassese, A., Gaeta, P., and Jones, J., (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002

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Kleffner, J. Complementarity in the Rome Statute and National Criminal Jurisdictions, Oxford University Press, 2008

Olasolo, H. ‘The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of the Office of the Prosecutor’, 5(1) International Criminal Law Review (2005) 121

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Schabas, W. ‘Complementarity in Practice: Creative Solutions or a Trap for the Court?’, in Politi, M., and Gioia, F., (eds.), The International Criminal Court and National Jurisdictions, Ashgate, 2008

Stahn, C. ‘Introduction: Bridge Over Troubled Waters? Complementarity Themes and Debates in Context’, in Stahn, C., and El Zeidy, M., (eds.), The International Criminal Court and Complementarity: From Theory to Practice, Vol. I, Cambridge University Press, 2011

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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

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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

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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

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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

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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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