The International Criminal Court and Complementarity
Pursuant to Article 17 of the Rome Statute of the International Criminal Court (ICC),1 where the provisions of the complementarity regime have been enshrined, the Pre-Trial Chamber I (PTCI)2 and the Appeals Chamber (AC)3 of the ICC have respectively declared the case against Abdullah al-Senussi, the former chief of Libyan intelligence, inadmissible and thus subject to domestic proceedings conducted by the competent Libyan authorities. The PTCI judges added that Libya is willing and able genuinely to prosecute and investigate this case.4 They asserted that their decision had been taken in accordance with the principle of complementarity, incorporated in the Rome Statute of the ICC.5 On 28 July 2015, the Appeals Court of Tripoli handed down its judgement in case no. 630/2012, sentencing Abdullah al-Senussi, Saif al-Islam Gaddafi, and seven other former regime high-ranking officials to death by firing squad.6 The trial, which was critically undermined by serious due process violations, has underlined the failure of the Libyan transitional justice system to offer fair trials to defendants, and to deliver justice in post-Gaddafi-era.7 This perversion of justice has infringed the principles of fundamental justice—which imply insuring the defendant’s right to fair trial and sentence8—and put the ICC’s complementarity regime on the horns of a dilemma.9
Despite being a fundamental principle open to interpretation, complementarity served as a keyword in the establishment of the ICC.10 While ensuring States Parties’ sovereignty, complementarity constitutes a substantial element in determining the relationship between the ICC, as a court of last resort, and national criminal accountability mechanisms.11 This simply means that only perpetrators of serious international crimes would be prosecuted at the Court. This is compatible with the provisions of the Rome Statute, which provide that States should take measures at the national level to ensure the investigation, prosecution, and punishment of such crimes.12 In other words, the international community counts on national criminal systems to bring perpetrators to justice and to combat the culture of impunity.13
It is worth noting that the Rome Statute—unlike statutes of the Ad Hoc international criminal tribunals for the former Yugoslavia and Rwanda, which include the principle of the superiority of international jurisprudence, so they could exercise their jurisdiction to prosecute suspected crimes—has recognized national proceedings as a barrier to the admissibility of a case before the ICC, leaving the latter to decide on the genuineness of such proceedings.14 Nonetheless, the failure of the complementarity regime to recognize the primacy of international jurisdiction leads to concession to national sovereignty, which, no doubt, has weakened the performance of the Court.15
However, this arguable principle is the central objective of The International Criminal Court and Complementarity: From Theory to Practice16, a critical and timely work, edited by Carsten Stahn, professor of international criminal law and global justice at Leiden University, and Mohamed M. El Zeidy, legal officer at the Pre-Trial Chamber II of the ICC. This multidisciplinary work is grounded on theoretical inquiries and practical experiences, written by prominent legal scholars and senior actors in the international criminal judicial system. It consists mostly of scholarly contributions initially presented and discussed at the International Conference on the ICC and Complementarity, held at the Peace Palace and The Hague Campus of Leiden University between 15–16 September 2009.
The reviewed work examines the conceptual foundations and practical applications of the principle of complementarity in judicial contexts, whether in international judicial bodies or in national courts exercising universal jurisdiction. Moreover, this collective work underlines the historical understanding of complementarity in connection with its contemporary applications. It also explores the main aspects of interpreting complementarity and its implications. In addressing the above objectives, the editors arranged the contributed chapters under six central themes, including: reflections from inside the Court; the chronicle development of the principle of complementarity; analytical dimensions of complementarity; statutory interpretation and application of complementarity; complementarity in perspective; and the application of the principle of complementarity in certain situations before the Court, to which we now turn.