Should the ICC Assess Complementarity with Respect to Non-state Armed Groups?

Abstract

The LNA maintains that he is facing justice in Libya, implicitly excluding the surrender of the suspect to the ICC. As a result, in the second arrest warrant the ICC Pre-Trial Chamber I addressed the admissibility of the case and declared that the proceedings initiated by the LNA do not satisfy the requirements of the complementarity test. This unexpected finding presents the Court with an inescapable question concerning its relationship with non-state entities, that the PTC I deliberately avoided answering: is the ICC required to assess its complementarity with respect to criminal prosecutions undertaken by non-state actors? ICC Judge Kovács, presiding over the chamber, had already suggested that a rigid approach should be rejected when dealing with entities having both undisputed control over a territory and the capacity to exercise criminal jurisdiction. Moving from that hint, this article first shows that the issue is not unique to the Libyan situation and that the ICC can easily find itself confronted with criminal proceedings run by courts of non-state actors. It then restricts the analysis to non-state actors that control a territory, are capable of exercising criminal jurisdiction and have a legal basis in international law to do so. Finally, it submits that the combined effect of the ne bis in idem principle and the command responsibility regime under the Rome Statute provides a solid argument allowing the Court to answer the question in the affirmative.

The AU Debacle with the ICC: The Creation of the African Criminal Court

“…Despite the differences created by their respective immunities provisions; with the ACC recognizing the immunity of senior serving AU state officials while in office before its jurisdiction, and the Rome Statute not recognizing or waiving all the immunities accorded to state officials before its jurisdiction, both the ACC and the ICC may harmonize vertically through complementarity. [64] According to the principle of complementarity, [65] the national jurisdiction of all the states parties are authorised to prosecute all the crimes under Article 5 of the Rome Statute. [66] The 2014 Malabo Protocol and the Rome Statute both have jurisdiction to entertain the crime of genocide, crimes against humanity, war crimes and the crime of aggression, consequently, the principle of complementarity will facilitate harmonization in this regard.…”