International Criminal Law


Order DescriptionExplain the principle of complementarity and how it regulates the relationship between the ICC and state jurisdictions with reference to Article 17 of the ICC Statute. In your answer you should refer to any relevant case law from the ICC including the complementarity decisions in the cases of Saif Al-Islam Gaddafi and Abdullah Al-Senussi.

Referencing style: Australian Guide to Legal Citation.

All of your footnotes should include title, author, year and the pin point reference to the specific page(s) to which you refer. A bibliography is required but is not counted towards the word count.
Question Three
Explain the principle of complementarity and how it regulates the relationship between the ICC and state jurisdictions with reference to Article 17 of the ICC Statute. In your answer you should refer to any relevant case law from the ICC including the complementarity decisions in the cases of Saif Al-Islam Gaddafi and Abdullah Al-Senussi (30 Marks).

Failure of complementarity: the future of the International Criminal Court following the Libyan admissibility challenge
Bishop, Anna
Minnesota Journal of International Law, 2013, Vol.22(2), pp.388-421
The Principle of Complementarity and Libya Challenge to the Admissibility Before the International Criminal Court
Amin NouriMay 1, 2013

The Security Council and the complementary regime of the International Criminal Court: lessons from Libya
Hobbs, Harry Orr
Eyes on the International Criminal Court, Jan, 2012, Vol.9(1), p.19(33)

Saif Al-Islam Gaddafi
The situation in Libya surrounds the political upheaval that occurred inFebruary 2011, which resulted in the de facto leader of Libya, MuammarGaddafi, and his administration, being overthrown by armed militia.Inspired by the so-called ‘Arab spring’ events occurring in Tunisia andEgypt, large scale pro-democracy protests occurred in early 2011, withincreasingly violent repercussions88. Eventually, armed militia began toorganize themselves in Benghazi, leading the Gaddafi forces to beginsystematic attacks on towns and cities perceived as being ‘pro-militia’. UNrepresentatives accused the pro-Gaddafi forces of using cluster bombsagainst civilians during their crackdown on the rebel forces. Eventually,the international community became involved, and began launchingairstrikes against the pro-Gaddafi forces, as a measure to ‘prevent furthercivilian casualties’. Eventually, the rebel forces succeeded in capturingTripoli, and eventually the conflict ended with the rebels seizing controlof the country, and Muammar Gaddafi’s death. The internal conflict lastedfrom early February 2011 to mid-October 2011.
The situation was referred to the ICC at the very outset of the conflict inLibya, and the decision to proceed to full investigation also occurred inthe midst of ongoing attacks by both armed and pro-Gaddafi forces inLibya. In the OTP’s December 2011 Report on Preliminary Examinations, itwas noted that the situation in Libya had met the criteria for opening aninvestigation, due to “security forces [shooting] at civilians demonstratingagainst the regime” and because “scores of former political prisoners,opponents, and journalists had allegedly been arrested by InternalSecurity”89. In addition, the Report noted that it had not found any genuinenational investigation or prosecution of the persons or conduct relatedto the OTP’s investigations. The OTP applied for, and was granted, arrest warrants for three individuals: Muammar Gaddafi, his son Saif Al-Islam Gaddafi, the de facto Prime Minister of Libya and AbdulahAl-Senussi, Head of Libyan Intelligence.
Since the OTP launched its investigations into Libya, there have beenseveral setbacks and challenges. First, as the conflict subsided in October,Muammar Gaddafi was killed by the armed forces, effectively ending theOTP’s case against him90. Then, when Saif Al-Islam had been apprehendedin Libya, it became clear that Libyan authorities were not willing totransfer him to the ICC . Instead, when the ICC sent a team of four lawyersto speak to Al-Islam, they were arrested by Libyan authorities91. Similarly,Al-Senussi was apprehended through joint France-Mauritanian initiative,but instead of delivering him over to the ICC to face the court, Al-Senussiwas extradited to Libya, where he is currently in remand92.Since then, there have been strenuous objections by the Libyanauthorities to the ICC case. They have refused to hand over both Al-Islamand Al-Senussi to the ICC and the new Libyan government has lodged anadmissibility challenge with the ICC Pre-Trial chamber in May 2012. Chiefamongst the challenges to the ICC proceedings is the Libyan claim thatthe State is both willing and able to prosecute Al-Islam and Al-Senussi.
The second topic the judges discussed, after they examined the‘genuineness’ of the Libyan proceedings, was the willingness or abilityof Libyan authorities to prosecute al-Islam. In particular, the chamberjudges discussed issues relevant to whether the Libyan justice systemwould be unable to investigate and prosecute al-Islam. After assessingthe applicable legal structures, the chamber noted that, despite theexistence of applicable laws, court systems, and other legal mechanisms,there was an ‘inability’ to properly prosecute al-Islam, due mostly to aninability of the authorities to obtain the accused (who was being heldby a local militia in Zintan), an inability to obtain testimony (because ofa lack of appropriate witness protection mechanisms), and an inability ofthe accused to secure defence counsel.101 On that basis, it rejected Libya’sadmissibility challenge, although it seems that there is still a possibility ofLibya bringing another challenge, provided it can address the concernsraised by the Chambers judges.
The Libyan situation provides several interest points and principleswith respect to admissibility. First, part of the controversy aboutcomplementarity in the Libya situation revolves around assessing thewillingness and ability of a State in the midst of civil strife. Second, it raisesthe issue of timing and complementarity – is the OTP able to ‘repatriate’ acase after warrants have been issued?102 Finally, the Libyan response raisesthe more substantive legal question of whether a State is ‘willing and/orable’, simply through stating their willingness and ability, in the absenceof ‘normal’ information regarding investigations and prosecutions. Inother words, the case is beginning to uncover in more detail, what arethe precursors and prerequisites (in terms of ocumentary evidence,information, and facts) that are required to actually show the ICC that aState is willing and able to investigate or prosecute international crimes.On a more political level, the Office of the Public Counsel for Defense (abody of the ICC that provides Defense Counsel for Accused, especially incases where the Accused is unrepresented) has cited that a main reasonthat Libya should be found unable to prosecute is the fact that they aresubstantially unable to actually apprehend Al-Islam103. Al-Islam is currentlybeing held in Zintan, and it is believed that the local militia in the areacontinues to resist handing him over to the Libyan overnment, in hopesthat it may strengthen their bargaining power104.The Libyan Governmenthas claimed that it is working in agreement with Zintan authorities, tointegrate the militias into the National Security Forces105; however, thissituation highlights some of the complexities of setting up a justice systemin a post-conflict state.

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