The Situation in Libya and the ICC’s Understanding of Complementarity in the Context of UNSC-Referred Cases

Abstract

The PTCI’s decision on the admissibility of the case against Saif Al-Islam Gaddafi and the subsequent AC Judgement are the first expressions of the ICC’s understanding of complementarity in Article 13(b) cases. Admissibility decisions display how the ICC attempts to strike the balance between international justice and states’ right to exercise their territorial criminal jurisdiction. In relation to cases triggered by UNSC referrals, these decisions also mark the delicate moment in which the ICC’s interaction with the politics UNSC is unveiled. In the case against Saif Al-Islam Gaddafi the ICC seems to have taken deferent approach toward the highly authoritative mechanism that triggered the case. Legally speaking, these decisions might appear as a missed opportunity. They fail to provide a conclusive clarification of the parameters of the ‘same case’ test. First, the AC did not subscribe to the offence-specific interpretation of the ‘same conduct’ test embraced previously by PTCI and, in the name of consistency with the Court’s previous case law, reverted to the incident-specific approach adopted in Lubanga. However, the case-by-case approach adopted by the AC undermines the legal certainty that the AC meant to achieve in the definition of the admissibility test. Moreover, the AC has failed to appraise the PTCI’s conclusion that domestic implementation of international crimes is not necessary for the purposes of successfully challenging the admissibility of a case. Finally, in light of the constraints imposed by Article 17(2) on the relevance of due process violations, the PTCI’s decision to reject on the grounds of ‘inability’ as opposed to ‘unwillingness’, which again the AC did not consider, could be seen as evidence of a deferent stance toward the UNSC.