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The ICC and Complementarity in Practice

  • DANIEL NSEREKO
Abstract

Since the start of its operations 10 years ago, the International Criminal Court has dealt with a number of challenges to the admissibility of cases before it. Some of the challenges were mounted by territorial states that had jurisdiction over the cases. Others were mounted by accused persons. The Court, acting on its own initiative, has, on a number of occasions, also considered issues of the admissibility of cases before it. It has done this, in the main, at the pre-trial stages of proceedings. Some of the cases arose out of state or Security Council referrals. Others arose out of the Prosecutor's initiated investigations. In the course of dealing with these matters the Court has endeavoured to strike a balance between the states’ right to exercise their sovereignty through national proceedings, on the one hand, and the interests of the international community to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’, on the other. In the process of doing so the Court has also developed some practices and generated an impressive body of jurisprudence, the subject of this article. The jurisprudence evinces the Court's readiness to assume jurisdiction over a case in situations where there is clear inaction on the part of the national authorities. The article, which is a critical exposé of that jurisprudence, endorses this stance as a veritable antidote to impunity for atrocity crimes.

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1 1998 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, para. 6 of the Preamble.

2 Ibid., para. 10 of the Preamble.

3 W. Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010), 45.

4 G. Werle, Principles of International Criminal Law (2009), 70. See also Queen v. Desire Munanyeza [2009] QCCS 2201 (Quebec Superior Court, 22 May 2009), where the Canadian court tried and convicted the accused, a Rwandan national, of genocide, crimes against humanity, and war crimes committed in Rwanda in 1994.

5 Coalition for the International Criminal Court, ‘Implementation of the Rome Statute’, accessed at http://www.coalitionfortheicc.org/?mod=romeimplementation&idudctp=10&show=all, reported that currently ‘65 countries have enacted legislation containing either complementarity or cooperation provisions, or both, into their domestic law. 35 countries have some form of advanced draft implementing legislation’. See also Coalition for the International Criminal Court, ‘Summary Chart on the Status of Ratification and Implementation of the Rome Statute and the Agreement on Privileges and Immunities (APIC)’, accessed at http://www.coalitionfortheicc.org/documents/Chart_Summary.pdf.

6 UN General Assembly, Res. 2712, 15 December 1970, A/RES/2712(XXV).

7 Meron, T., ‘International Criminalization of Internal Atrocities’ (1995) 89 AJIL 554, at 555.

8 Ibid., at 555–6.

9 Rome Statute, supra note 1, para. 4 of the Preamble.

10 Compare Rome Statute, para. 10 of the Preamble and Art. 17(1) of the Statute with Art. 9 of the Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May 1993, Security Council Res. 827 (1993), last amended by Security Council Res. 1877 (2009), 7 July 2009 and Art. 8 of the Statute of the International Criminal Tribunal for Rwanda, 8 November 1994, Security Council Res. 955 (1994), last amended by Security Council Res. 1901 (2009), 16 December 2009.

11 See Rome Statute, supra note 1, Art. 17(1)(a) and (b).

13 See Rome Statute, supra note 1, Art. 19(2).

14 Ibid., Art. 17(1), which states in part that ‘the Court shall determine that a case is inadmissible’.

15 Nsereko, D. N., ‘The International Criminal Court: Jurisdictional and Related Issues’, (1999) 10 Criminal Law Forum 87, at 118.

16 See Rome Statute, supra note 1, Art. 1.

17 For differing views, see Akande, D., ‘The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC’, (2012) 10 JICJ 299; and Stahn, C., ‘Libya, the International Criminal Court and Complementarity’, (2012) 10 JICJ 325.

18 This argument might be supported under Arts. 2(7) and 103 of the UN Charter.

19 1945 Charter of the United Nations, Art. 25, accessed at http://www.un.org/en/documents/charter/chapter5.shtml.

20 See, e.g., para. 5 of Security Council Res. 1970 of 27 February 2011, where the Security Council decided that ‘the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor’. See also para. 2 of Res. 1593 of 31 March 2005, by which the Council decided that ‘the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.’

21 Prosecutor v. Saif Al-Islam Gaddafi, 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, ICC-01/11-01/11, 1 June 2012, at para. 28.

22 Ibid., at para. 29.

23 Ibid., at para. 28, fn 34.

24 Art. 95 provides as follows: ‘Where there is an admissibility challenge under consideration by the Court pursuant to Article 18 and 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to Article 18 or 19.’

25 Decision on the Postponement, supra note 21. It is noteworthy that under Article 19(7) of the Statute, once a state has made a challenge ‘the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with Article 17’.

26 In his first report to the Security Council in 2005, the Prosecutor stated, at 4, that ‘In mid-June 2005, after the decision by the Prosecutor to start an investigation, the Government of Sudan provided the OTP with information relating to the establishment of a new specialised tribunal to deal with some individuals considered to have been responsible for crimes committed in Darfur. As part of the on-going admissibility assessment the OTP will follow the work of the tribunal in order to determine whether it is investigating, or has investigated or prosecuted, the cases of relevance to the ICC, and whether any such proceedings meet the standards of genuineness as defined by article 17 of the Rome Statute.’

27 See Rome Statute, supra note 1, Art. 11.

28 Ibid., Art. 12.

29 Ibid., Art. 5.

30 See ibid., Art. 19(1).

31 In Prosecutor v. William Samoei Ruto and Others, ‘Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang’, 8 March 2011, ICC-01/09-01/11-01; and Prosecutor v. Francis Kirimi Muthaura and Others, ‘Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali’, 8 March 2011, ICC-01/09-02/11-01, Pre-Trial Chamber II declined to exercise its discretion. However, Pre-Trial Chambers have considered it to be an obligation to conduct an admissibility examination in order to determine whether there is a reasonable basis to proceed with an investigation pursuant to Arts. 15 and 53(1) of the Statute and Rule 48 of the Rules of Procedure and Evidence. For example, in the Situation in the Republic of Côte d'Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire 3 October 2011, ICC-02/11-14, para. 189, Pre-Trial Chamber III stated as follows: ‘Pursuant to Article 17 of the Statute, the Chamber must examine, on the basis of the available information, whether the “case” is admissible.’

32 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Appeal against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor's Application for Warrants of Arrest, Article 58’, 13 July 2006, ICC-01/04-169 (OA), para. 52.

34 Ibid., at paras. 50 and 52.

35 Situation in the Libyan Arab Jamahiriya, 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’, 27 June 2011, ICC-01/11-12, para. 12.

36 Warrant of Arrest for Callixte Mbarushimana, 28 September 2010, ICC-01/04-01/10-2-tENG, para. 5.

37 Decision on the Prosecutor's Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, ICC-01/05-01/08-14-tENG, para. 21.

38 See Rome Statute, supra note 1, Art. 19(9) which states that ‘[t]he making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge’; see also Trial Chamber I, Prosecutor v. Mbarushimana, Decision on the Defence Challenge to the Validity of the Arrest Warrant, 28 January 2011, ICC-01/04-01/10-50, para. 10.

39 See, e.g., Art. 15(4) of the Statute; see also Prosecutor v. Joseph Kony and Others, Judgment on the Appeal of the Defence against the ‘Decision on the Admissibility of the Case under Article 19(1) of the Statute’ of 10 March 2009, 16 September 2009, ICC-02/04-01/05-408 (OA 3) (‘Kony Judgment OA 3’). Pre-Trial Chamber II issued warrants of arrest for four suspects on 8 July 2005. On 21 October 2008, the Pre-Trial Chamber initiated proprio motu proceedings under Art. 19(1) to determine the admissibility of the case. On appeal by the defence, the Appeals Chamber held that it would not interfere as the Pre-Trial Chamber did not abuse its discretion.

40 Kony Judgment OA 3, supra note 39, para. 80.

41 Ibid., para. 85.

43 See Rome Statute, supra note 1, Arts. 15(3) and 53(1).

44 This conclusion is implicit in the language of Art. 53(3)(a) of the Statute.

45 See Rome Statute, supra note 1, Art. 53(1)(b). It is a misnomer to talk of a ‘case’ at this pre-investigation or situation stage, because a case does not crystallize until a charge containing an accused person and the crime he or she is alleged to have committed has been framed, preferred, and filed in the Court. Therefore ‘case’ here must be understood to mean ‘anticipated case’.

46 See Rome Statute, supra note 1, Art. 18(1).

47 Ibid., Art. 18(2).

48 Article 18(2) of the Statute provides that when a state informs the Court that it is investigating or has investigated nationals or other persons within its jurisdiction and requests the prosecutor to defer to its investigation, ‘the Prosecutor shall defer to the State's investigation of those persons unless the Pre-trial Chamber, on the application of the Prosecutor, decides to authorize the investigation’.

49 See Rome Statute, supra note 1, Arts. 15(3) and 53(1), and Rule 48 of the Rules of Procedure and Evidence.

50 Supra note 44.

51 E.g. Pre-Trial Chamber III, Situation in the Republic of Côte d'Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, 3 October 2011, ICC-02/11-14, para. 189. The Pre-Trial Chamber III stated as follows: ‘Pursuant to Article 17 of the Statute, the Chamber must examine, on the basis of the available information, whether the “case” is admissible’; see also Pre-Trial Chamber II, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, ICC-01/09-19, paras. 24–25.

52 See Rome Statute, supra note 1, Art. 53(4).

54 Ibid., Art. 58(4), provides that ‘[t]he warrant of arrest shall remain in force until otherwise ordered by the Court’.

55 Ibid., Art. 19(2)(b).

57 Ibid., Art. 19(5).

58 Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), 16 June 2009, ICC-01/04-01/07-1213-tENG, para. 44 (‘Katanga Admissibility Decision’).

59 See Rome Statute, supra note 1, Art. 19(5).

60 Prosecutor v. Francis Kirimi Muthaura and Others, Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 Entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, 30 August 2011, ICC-01/09-02/11-274 (OA), para. 45, (‘Muthaura Judgment OA’); Prosecutor v. William Samoei Ruto and Others, Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, 30 August 2011, ICC-01/09-01/11–307 (OA), para. 46 (‘Ruto Judgment OA’).

61 Muthaura Judgment OA, para. 98; Ruto Judgment OA, para. 100.

62 Muthaura Judgment OA, para. 45; Ruto Judgment OA, para. 46.

63 Pre-Trial Chamber II, Prosecutor v. William Samoei Ruto and Others, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, 30 May 2011, ICC-01/09-01/11-101, para. 70 (‘Ruto Judgment OA Impugned Decision’); Prosecutor v. Francis Kirimi Muthaura and Others, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, 30 May 2011, ICC-01/09-02/11-96, para. 66 (‘Muthaura Judgment OA Impugned Decision’).

64 See Rome Statute, supra note 1, Art. 19(7).

66 Ibid., Art. 19(9).

67 Prosecutor v. Saif Al-Islam Gaddafi, 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, ICC-01/11-01/11, 1 June 2012, at para. 36.

68 Ibid., para. 36. ‘Since it is the Chamber that has issued the warrant of arrest and related request for surrender to the Court, the Chamber has the authority to decide that a state may postpone the execution of a surrender request to the extent that such a challenge has been properly made’.

69 See Rome Statute, supra note 1, Art. 19(2)(a).

70 Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, Pursuant to Article 19(2)(a) of the Statute, 11 March 2009, ICC-01/04-01/07-949.

71 Application Challenging the Admissibility of the Case Pursuant to Article 17 and 19(2)(a) of the Rome Statute, 25 February 2010, ICC-01/05-01/08-740-Red3-tENG.

72 Hall, C. K., ‘Article 19: Challenges to the Jurisdiction of the Court or the Admissibility of a Case’, in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2008), at 655, mn 21.

73 See Rome Statute, Art. 18(7).

74 This conclusion is derived from the language of Art. 19(4) that ‘[t]he admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2’ (emphasis added).

75 Prosecutor v. Thomas Lubanga Dyilo, Decision on the Status before the Trial Chamber of the Evidence Heard by the Pre-Trial Chamber and the Decision of the Pre-Trial Chamber in Trial Proceedings, and the Manner in Which Evidence Shall Be Submitted, 13 December 2007, ICC-01/04-01/06-1084, para. 39.

76 In Katanga Admissibility Decision, para. 50, the Chamber stated that ‘[c]onsequently, after the decision on the confirmation of charges is filed with the Registry, a case must be considered admissible unless breach of the ne bis in idem principle is alleged’. However, the Trial Chamber condoned the late filing of the challenge on the ground that the defence was ‘misled’ by Pre-Trial Chamber, which opined that the challenge could be filed later than the confirmation of the charges. See ibid., para. 56.

77 For example, Art. 64(3)(c) provides that upon being assigned a case for trial, the Trial Chamber must provide for disclosure of information not previously disclosed, ‘sufficiently in advance of the commencement of the trial to enable adequate preparation for trial’ (emphasis added). The emphasized language suggests that the mere receipt of the assignment of a case from the Presidency does not constitute commencement of the trial. The commencement is still in the future. The period immediately following receipt of the assignment is the preparation period. During that period, a state or the accused may bring an admissibility challenge; see also Rule 84 of the Rules of Procedure and Evidence; Katanga Admissibility Decision, para. 40, which includes a detailed listing of other relevant provisions of the Statute, Rules of Procedure and Evidence, and the Regulations of the Court. The Chamber also listed provisions of the Statute, Rules of Procedure and Evidence, and the Regulations of the Court, which suggest that ‘for purposes of these provisions, the trial is not confined to the evidentiary phase following opening statements’. Ibid., paras. 38–39.

78 It declined to do so in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, ICC-01/04-01/07-1497 (OA 8), para. 38, (‘Katanga Judgment OA 8’), as this was not necessary for the disposal of the appeal on the merits.

79 See Rome Statute, supra note 1, Art. 19(4).

80 Ibid.; Katanga Admissibility Decision, para. 49.

81 See Rome Statute, supra note 1, Arts. 18(4), 19(6) and 82(1)(a).

82 See ibid., Art. 82(1)(a).

83 Article 82 (1) of the Statute restricts the right of Appeal to ‘either party’ only.

85 Ibid., Art. 17(1).

86 Art. 17(1)(a) reads as follows: ‘Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that the case is inadmissible where: 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’ (emphasis added).

87 Katanga Judgment OA 8, supra note 78, para. 78.

88 Ruto Judgment OA, supra note 60, para. 1; Muthaura Judgment OA, supra note 60, para. 1.

89 Ibid., Ruto Judgment OA, para. 62; Muthaura Judgment OA, para. 61.

90 Katanga Judgment OA 8, supra note 78, para. 82 (original emphasis).

91 Appeals Chamber, Prosecutor v. Jean-Pierre Bemba Gombo, Corrigendum to Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 24 June 2010 Entitled ‘Decision on the Admissibility and Abuse of Process Challenges’, 19 October 2010, ICC-01/05-01/08-962-Corr (OA 3), para. 74, quoting Katanga Judgment OA 8, supra note 78, para. 83.

92 Katanga Judgment OA 8, para. 56 (original emphasis).

94 Filing annexes three weeks after an original filing is not common practice, and a party would normally seek leave from the Chamber, though there is no definite rule in the Court's legal texts.

95 Ruto Judgment OA Impugned Decision, paras. 6, 43; Muthaura Judgment OA Impugned Decision, paras. 7, 39.

96 Ibid., paras. 8, 9.

97 Ibid., paras. 43, 39.

98 Ibid., paras. 62, 58.

99 Ibid., paras. 98, 96.

100 Ruto Judgment OA, supra note 60, para. 100; Muthaura Judgment OA, supra note 60, para. 98.

101 Ibid., paras. 40, 39.

102 Ibid.

103 Ibid.

104 Ibid.; Rome Statute, supra note 1, Art. 58(2); see also Reg. 52 of the Regs. of the Court.

105 Ruto Judgment OA, para. 39; Muthaura Judgment OA, para. 38.

106 Ibid., paras. 42, 41.

107 Kony Judgment OA 3, para. 86; Katanga, Judgment OA 8, para. 80; Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the Appeal of Mr Jean-Pierre Bemba Gombo against the Decision of Trial Chamber III of 24 June 2010 Entitled ‘Decision on the Admissibility and Abuse of Process Challenges’, 19 October 2010, ICC-01/05-01/08-962 (OA 3), paras. 66–68; Muthaura, Judgment OA, para. 61; Ruto Judgment OA, para. 62.

108 See, e.g., Ntanda Nsereko, Daniel D., ‘The International Criminal Court: Jurisdictional and Related Issues’, (1999) 10 Criminal Law Forum 87, at 109, where this author, a participant at the Rome Conference, observed as follows: ‘[I]t must be pointed out that past experience with human rights instruments demonstrates that States are very reluctant to file complaints against each other. This stance may be due to the fear of straining relations with each other. It may also be due to the fear of terrorist reprisals . . . With the exception of the European Convention, virtually all the complaints under the instruments just mentioned have been filed by non-governmental organizations acting on behalf of individuals. Since most defendants before the ICC are likely to be key government or military officials, States are not likely to complain against them’.

109 See Schabas, supra note 3, 309–10. For a differing view, see Robinson, D., ‘The Controversy over Territorial State Referrals and Reflections on ICL Discourse’, (2011) 9 JICJ 355–84; Robinson, D., ‘The Inaction Controversy: Neglected Words and New Opportunities’, in Stahn, C. and El Zeidy, M. M. (eds.), The International Criminal Court and Complementarity: From Theory to Practice (2011) 460, 492–8.

110 See particularly, e.g., Schabas, W., ‘Complementarity in Practice: Some Uncomplimentary Thoughts’, (2008) 19 Criminal Law Forum 5.

111 Schabas, supra note 3, 45.

112 Katanga Judgment OA 8, supra note 78, para. 79.

* Daniel D. Ntanda Nsereko, Judge, Special Tribunal for Lebanon (Appeals Chamber); formerly Judge, International Criminal Court (Appeals Division); formerly Professor of Law, University of Botswana, Gaborone, Botswana; LL B (University of East Africa); MCJ (Howard University); LL M (New York University); JSD (New York University); Certificate in International Law (The Hague Academy of International Law); Advocate, High Court of Uganda. The views expressed in this article are those of the author alone and do not represent those of the Special Tribunal for Lebanon or of the International Criminal Court.

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