The Principle of Complementarity and Libya Challenge to the Admissibility Before the International Criminal Court

Amin Nouri

doi:10.2139/ssrn.2283405

Abstract

In 26 February 2011, the United Nations Security Council (UNSC) referred the Libya situation to the International Criminal Court (ICC). Consequently, three warrants of arrest were issued for Moammar Qaddafi, Saif Al-Islam Qaddafi and Abdullah Al-Senussi. After the assassination of Moammar Qaddafi, Saif Al-Islam and Al-Senussi were arrested. Although, Saif Al-Islam has been captured by Zinitani militants and to this date Libyan authority has not been successful to obtain him from the control of the militants. Considering the situation, Libyan authorities challenged the ICC jurisdiction by invoking constantly to their sovereignty, primacy of national criminal jurisdiction and its ability to investigate their nationals. Therefore this paper assesses the challenge of the Libyan authorities and potential outcome of their challenge before the ICC, focusing on the principle of complementarity provided in article 17 of the Rome Statute. To this end, this paper starts with an overview and examination of various aspects of complementarity principle in the light of the ICC previous jurisprudence which are relevant for the analysis of the Libya situation and Saif Al-Islam case. Also, it will be suggested that even though that the amendment of the Rome Statute article 17 is desirable, the ICC may rely upon article 21 (3) to interpret the statute to meet the human rights standard in cases that the rights of the accused is being violated. The Libya challenge to the admissibility will be analysed first before the various part of the principle apply to the Saif Al-Islam case.

Highlights

The last referral of a case to the International Criminal Court (ICC) by the United Nations Security Council (UNSC) was made concerning Libya situation1
As to the triggering mechanism5, it is similar to the Sudan case6; both of them are referred to the ICC by the UNSC
The main objective of this study is to address the following research question: concerning the Libya challenges to the admissibility before the ICC, what will be the possible outcome of the application of the complementarity regime in Libya case? In searching the potential answer to this question, owing to the complementarity principle nature, three main questions are required to be answered beforehand

Summary

Introduction

The last referral of a case to the International Criminal Court (ICC) by the United Nations Security Council (UNSC) was made concerning Libya situation. 9 Kevin John Heller, “The Shadow Side of Complementarity: The effect of Article 17 of the Rome Statute on the Principle of Due Process,” Criminal Law Forum (2006), 5 It concerns the thesis of “due process” and the violation of the human rights of the accused. The present study aims at applying the complementarity principle to the case of Libya, Saif Al-Islam Qaddafi To this end, the main objective of this study is to address the following research question: concerning the Libya challenges to the admissibility before the ICC, what will be the possible outcome of the application of the complementarity regime in Libya case? The headings are entirely devoted to the application of the complementarity principle chronically to each aspect of the Libya case according to the grounds stipulated in article 17, discussed in the first part of this thesis. The third chapter will offer the findings regarding the complementarity principle in the light of the ICC practice and its “shadow sides” as well as a final observation of the application of the complementary principle to the case of Libya; at last based on the findings, some conclusions will be presented

Chapter 1: The Complementarity Regime of the ICC and Admissibility

Conclusion

2.1- Background to the Situation of Libya

Chapter 3: Final Observation