Libya, the International Criminal Court and Complementarity: A Test for 'Shared Responsibility'

Beyond the restorative turn

“…The issuance of arrest warrants for Radovan Karadžić and Ratko Mladić provided an objective basis for excluding them from negotiations on the future of Bosnia-Herzegovina, thereby enabling diplomats to deal with their preferred interlocutor, Slobodan Milošević. 62 Later, the perception of Milošević as a war criminal, even before an indictment was issued, eased the acceptance for the ongoing bombing of Kosovo by NATO forces. 63 This recognition of the possible convergence between states' political interests and the legitimacy bestowed by independent judicial bodies constituted a significant development in the practice of ICTs and was to be of relevance for the ongoing negotiations on the establishment of the ICC.…”

“…Key players in the transitional justice project in Uganda were disappointed, as it seemed that JLOS was undermining the very rule of law it was mandated to promote. As with all public matters where the president's official position is not known, different government officials were reluctant 62 See Constitutional Court of Uganda, Constitutional Petition No.036/11, 22 September 2011. 63 See Constitutional Court Ruling, Thomas Kwoyelo alias Latoni v. Uganda (Const.…”

“…The prosecution was thus unable to provide the Court with such basic information as the distances between the relevant sites and the conditions of the roads, all elements that 'would have been useful in clarifying several witness testimonies, thereby promoting a better understanding ab ovo and a more accurate assessment of the various statements'. 62 Questioning the prosecution's independence All but one individual currently in ICC custody in relation to the conflict in the DRC are Congolese, although the crimes with which they have been charged were committed on territory that was at least partially under the military occupation of Uganda and by armed groups 60 A detailed account of the debates is provided in C. De 62 Ibid., para. 118. manipulated by the Congolese, Ugandan and Rwandan governments.…”

“…61 Further, the Guidelines purport that such obligations are perpetual and do not cease upon completion of the intermediary's functions. 62 Many of these obligations are not only onerous but also unrealistic. They seem to reflect the basic misunderstanding that was unfortunately articulated by the judges in Lubanga that, 'the intermediaries were activists, most of whom were fully aware of developments within the sphere of international criminal justice and the objectives of the investigators'.…”

“…61 See Section 5.4, Guidelines 2014. 62 See also for more detail Article 9, Model Contract, Guidelines 2014. 63 Judgment Pursuant to Article 74 of the Statute, Lubanga, ICC-01/04-01/06, Trial Chamber I, ICC, 14 March 2012, para.…”