The ICC Rulings in the Libyan Cases and Related Due Process Implications of the Complementarity Relationship with Domestic Prosecutions

Abstract

The "complementarity relationship" between the jurisdiction of the International Criminal Court and the jurisdiction of States (to include States not party to the Statute) has been discussed in depth in the aftermath of the adoption of the Rome Statute. By defining its attitude towards domestic jurisdictions, the “complementarity” principle allows the Court, to concentrate on those situations in which there is a pressing need to prevent de iure or de facto impunity, due to the lack of effective investigation or prosecution by domestic jurisdictions, of those individuals responsible of crimes of international concern within to the ratione materiae jurisdiction of the Court. The principle, from a different perspective, represents a safeguard for State sovereignty and domestic jurisdiction which remain, due to the limited judicial resources of the Court, pivotal for the repression of the said crimes. Despite its original rationale the complementarity principle may ultimately have impact on human rights obligations of the Court itself. As an international institution provided with legal personality (Article 4 of the Statute), the Court is bound by any obligation upon it under general rules of international law, and in respect of the most fundamental human rights, also peremptory norms of international law. Discrepancies between the interpretation of such obligations and their reach and interpretation of human rights obligations by treaty based human rights bodies an example of “fragmentation” of international law and a consequence of the existence of different self-contained legal systems. The question if by holding a case to be inadmissible and therefore to be dealt with by the domestic jurisdiction of a State, despite the fact that the domestic proceeding entails violations of human rights, the Court may incur in responsibility, is to be answered based the relationship of the Court’s jurisdiction vis a vis States. This in order to establish what is directly within and what is beyond the powers of the Court. Principles established in respect of State responsibility for extraterritorial violations of human rights may help in shaping the eventual contours of the Court’s responsibility. The Libyan ICC cases are of great interest because they highlight a very narrow interpretation by the Chambers of the meaning of the complementarity principle, and at the same time highlight a reductive interpretation of generally accepted human rights principles in an unconvincing attempt to save the credibility of the Libyan experiment with post-conflict justice and to deny the definitive collapse of Libyan institutions. The shortfalls of the ICC Statute and Rules in matters related to the fundamental rights of the accused in proximity of domestic jurisdiction of States Party are significant, strategic and compromise-oriented in order to gain consent by the widest possible number of States, to include those with a less than immaculate human rights curricula. The decisions of the Chambers in the issue of the admissibility challenges by Libya appear to be even more oriented towards a total absence of scrutiny of domestic practice and human rights records of concerned States, than the arguable drafting history of the Rome Statute. The complementarity of the Court's jurisdiction does not seem a core value in itself to balance against human rights. Unfortunately the Chamber decisions seem to be reflect a “Court marketing” approach aimed at preserving the palatability of the Court itself and that future "selective" self-referrals by States, which should accordingly have nothing to fear in terms of scrutiny in their human rights records for those cases they don’t want to refer the Court.