July 17, 1998 changed the global landscape of accountability for the most egregious crimes. At that time 120 states ratified the Rome Statute, bringing the International Criminal Court (ICC) into being. It was a day in which nations around the globe took a stand against impunity, which we celebrate annually on International Justice Day.

The Rome Statute linked the newly created ICC to the national courts of its member states, establishing it as a court of last resort. National courts have primary jurisdiction over atrocity crimes, with the ICC serving as a failsafe of sorts to ensure that perpetrators are held to account. This relationship between national courts and the ICC is known as complementarity, a concept critical to understanding the role that the ICC plays in criminal prosecutions and indeed why we celebrate International Justice Day.

Complementarity affects many people beyond The Hague, in the signatory countries where these horrendous crimes have been committed –victims of human rights abuses, activists, lawyers and judicial officials, even journalists and civil society at large.

Because of the central role complementarity plays in the global fight against impunity, this year ICTJ is celebrating International Justice Day with the release of The Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes. Avoiding technicalities, this handbook unpacks the relationship between national courts and the ICC in a straightforward manner for people who are fierce defendants of justice in their own countries, but not necessarily lawyers or specialists. Download the full version for free and explore our multimedia presentation.

Think you’re an expert on how national courts and the ICC work together? Put your knowledge to the test with our interactive quiz!

Experience shows that without the significant help of civil society organizations working in the country where the crimes are committed (and the pressure they can put on governments) the chances of seeing justice tend to be low. We hope that this handbook will be a useful tool in their tireless fight for accountability.

The struggle against impunity remains as important –and precarious –as ever. In recent years, the ICC has come under attack. States that signed the Rome Statute have ignored arrest warrants from the Court, allowing alleged perpetrators to flout the law. Several national efforts to prosecute perpetrators of atrocities have failed. International cases have crumbled. In short: there is serious concern that perpetrators of atrocity may evade justice, and the lives and well-being of millions of people across the planet hang in the balance.

Given these stakes, complementarity is of utmost importance – to understand it is to understand one of the key tools in this fight. The drafters of the Rome Statute had it right by placing the onus on state parties to investigate and prosecute Rome Statute crimes, as the ICC can realistically only play the role of a court of last resort. That does, however, leave many hard questions – and much work – for the rest of us who work to strengthen national judiciaries. Join us as we explore these questions this International Justice Day.

Sincerely,
David Tolbert,
ICTJ President

 

On June 28, the government of Iraq announced victory over the Islamic State of Iraq and al Sham (ISIS) in the city of Fallujah. ISIS had occupied Fallujah, and the Iraqi military with the help of Iraqi Shia militias took back the city, liberating civilians who were trapped under ISIS control. Celebrations among civilians, however, were short lived. According to the Anbar Provincial Council, 643 civilians have gone missing. They are reportedly held by the Shia militia group Kataaib Hezbollah and are feared dead or in serious condition. In early June, Amnesty International called on the Iraqi government to reign in Shia militia forces fighting alongside the army amid reports that the militias were torturing and abusing refugees fleeing ISIS and the fighting in Fallujah. Similarly, in Syria, a US-backed anti-ISIS offensive in Manbij has resulted in reports of Kurdish-led forces committing atrocities against civilian populations. News of the atrocities in Iraq and Syria have been circulated through ethnically-charged and sectarian media coverage in the Middle East which has heightened already rising tensions in the region and has played directly into ISIS’s “us vs. them” ideology.

In both Iraq and Syria, there has been a complete lack of accountability despite the reports of abuse. Although the Iraqi government has responded to mounting international criticism by opening an investigation into the allegations of disappearances, killings, and torture in Anbar Province, it is yet to be seen whether the investigations will lead to arrests or a change in behavior. Meanwhile in Syria, the Kurdish People’s Protection Units (YPG) in Syria have not allowed for independent investigations or reprimand. What is needed is proper training on civilian protection and transparent systems of accountability when allegations of abuse arise. Otherwise, civilians might turn to extremist groups for protection, the cycle of revenge attacks between ethnic and religious groups will continue, and the resulting sectarian rhetoric will be a mounting obstacle to reconciliation and peace.

While a majority of Syrians say they do not see themselves or their society as sectarian, traditional and social media are often used to intentionally fuel sectarian divisions. Media outlets often portray attacks as sectarian-driven in order to propagate their viewpoints. Depending on the media source, events in the Syrian conflict are framed as either an Alwaite dictator oppressing the Sunni majority or the Alawite regime fending off a terrorist insurgency intent on wiping out religious minorities. Social media follows a similar vein as well. Unfortunately events in Syria and neighboring countries, like the recent abuses in Fallujah, play into this narrative; media reports and armed groups seem to feed off of each other, creating cycles that drive wedges in Syrian society.

Instead of addressing this growing problem, regional leaders and the international community prefer to ignore the sectarian nature of the conflict. Yet, it seems impossible to imagine a reconciliation or transitional justice process that does not tackle the resulting harm of Syria’s ethnic and sectarian-based violence and rhetoric. In fact, neighboring Lebanon is a striking example of the dangers of turning a blind eye to ethnic and religious violence that occur during conflict. Lebanon’s October 1989 Ta’if Agreement entrenched confessional politics (whereby political power is formally distributed according to religious affiliations) and resulted in a General Amnesty Law that stated la ghalib le maghlub (there are no winners and no losers in the war).

The Amnesty Law encouraged Lebanese people to forget the divisions of the conflict in the hope that the aura of silence would lead to peace and reconciliation among communities. But state-sponsored amnesia has only benefited the political elite whose crimes during the civil war were pardoned and who continue to play roles in government. The rest of the country is still coping with the effects of the war, and identity politics continue to cause low-level conflicts between communities which have escalated since 2011 as a result of the unrest in Syria. Rather than leading to reconciliation, Lebanon’s policy of forgetting has instead sewn resentment. Seeing this first-hand, Lebanese civil society groups have continuously advocated for meaningful accountability to address the harms of the past as the only option for sustainable peace.

Whether in Lebanon, Iraq, or Syria, the memories of recent conflict based on ethnic and sectarian divisions will inevitably build off of the collective memory of historical repression and perceived humiliations. These memories will avalanche and increase sectarian schisms unless there is a dramatic break from the past that provides the space for justice for victims of violence regardless of identity and allows disparate ethnic and religious groups to engage with accountability processes in a way that addresses the interconnected harm caused by cycles of abuses and conflict. The international community, therefore, must not tolerate sectarianism and ethnic hatreds for the sake of defeating ISIS. The focus should not be on expediency, but on ensuring that there are systems in place for civilian protection and internal accountability processes within anti-ISIS coalitions. Because the future of Syria depends on the ability of communities to live together in a future state, preferably not one built on the confessional politics that have stymied both Lebanon and Iraq.

(This article originally appeared on the Syria Justice and Accountability Center’s website and can be read here.)

The International Criminal Court’s two Libya cases, against Saif Al-Islam Gaddafi and Abdullah Al-Senussi, appear potentially poised to end in Libya, in an amnesty and an execution: neither would be an appropriate result.

After the UN Security Council referred the situation in Libya to the ICC, the Court rendered divergent rulings on complementarity— that Saif Gaddafi should be tried at the ICC, while Senussi could stand trial in Libya. Saif was never transferred, as he reportedly was held by a militia in Zintan and not governmental authorities. Both men were then sentenced to death in a flawed domestic trial in Libya. Now, new, unconfirmed news reports suggest that Saif has been amnestied. Senussi appears still to be under a death sentence.

From death sentence to amnesty for Saif

In her recent May 26 briefing to the U.N. Security Council, the chief prosecutor of the ICC Fatou Bensouda had announced new efforts to get Saif transferred to The Hague – asking the Pre-Trial Chamber to direct the ICC Registry to send the request for Saif’s arrest and surrender directly to the head of the militia. This approach may prove moot if reports are true that he was amnestied (and one report, now contradicted, was that he had been released). These events then present the concern of him potentially escaping accountability, depending on whether or not his ICC case would proceed if there is a (valid) domestic amnesty of him. This presumably will now be litigated at the ICC – that is, what becomes of the ICC case after a flawed domestic trial in Libya that was never supposed to happen because he was supposed to have been transferred, and in light of a possible domestic amnesty that may or may not be valid.

The need to reopen admissibility regarding Senussi

Disappointingly, in her May briefing, the Prosecutor did not announce any intention to revisit complementarity (admissibility) in the Senussi case. This is unfortunate. When the ICC ruled that Libya could try him, there were before the Court only initial indications that his trial in Libya might face fairness challenges — lack of counsel in early phases of the proceedings. The Court did not reach other issues, finding them speculative.

The actual group trial that included both Senussi and Saif was riddled with fair trial violations:

• inadequate assistance of counsel;
• lack of adequate time and facilitates to prepare the defense;
• lack of an opportunity to present sufficient defense witnesses;
• lack of an opportunity to cross-examine prosecution witnesses;
• lack of impartial and transparent proceedings; and
• lack of a reasoned ruling—the failure to make individualized determinations as to individual criminal responsibility.

Additional fair trial violations may include denial of the right to remain silent, to be promptly informed of the charges against one, and to challenge the evidence presented. Saif was also largely tried in absentia, and there are allegations that both were tortured.

The ICC Appeals Chamber unfortunately set a very high standard before it would consider due process violations in a national court process when evaluating admissibility. It required a showing that national proceedings were “so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the accused.” This, in the author’s view, is too stringent a standard, especially where the death penalty is involved; the Court’s ruling merits reconsideration.

Absent reconsideration, however, given all the fair trial violations that occurred after the Court’s ruling, this standard is arguably met — new information reveals that due process was indeed egregiously violated when compared to the appropriate international standards. Furthermore, the Court should err on the side of caution, in a death penalty case, which warrants even more exacting adherence to due process. Thus, both the Office of the Prosecutor (OTP) and Senussi’s council should move to reopen admissibility. The death sentence against him suggests the urgency of doing so.

Complementarity & the death penalty – the need to adopt a policy of requesting diplomatic assurances

Beyond the complication of the two Libya cases, States Parties should revisit the issue of complementarity and the death penalty. There is currently nothing in the Rome Statute to preclude the judges from ruling a case “inadmissible” at the ICC, thereby permitting trial in a country that applies the death penalty. Yet, most Rome Statute States Parties oppose the death penalty, and would never extradite someone to stand trial in a country that uses the death penalty without assurances that it would not be used.

Because Senussi was never in The Hague, it didn’t look like the ICC was transferring him to a country that applies the death penalty, because there was no transfer involved. But giving the green light to his trial in Libya has the same result. In negotiating the Rome Statute, states may have agreed to allow national countries to use all the penalties on their books when exercising complementarity, yet, as more and more countries reject use of the death penalty, States Parties at the upcoming Assembly of States Parties meeting should request the Court to adopt a Policy of requesting diplomatic assurances of non-use of the death penalty in any ICC cases ruled inadmissible.

It is troubling for the ICC to play a role in allowing domestic executions. UN-backed tribunals such as the Yugoslav and Rwanda Tribunals did not apply the death penalty, nor does the ICC when a case is still before it. The Rwanda Tribunal even waited until Rwanda abolished the death penalty before transferring its rule 11bis cases back to Rwanda.

If one (or both) of the Libya cases ends in execution, this will be a bad outcome:

–for the UN Security Council, which made the referral,

–for the Court, which ruled that Libya could try Senussi (and failed to get Saif transferred),

–for States Parties (particularly those that do not permit the death penalty), in failing to recognize their role in creating an institution that can have a hand in domestic executions when it rules cases “inadmissible,” and

— not least, for the accused, as the Libyan trial was by all accounts palpably flawed.

For the same reason – that the trial was palpably flawed – it is also troubling if Saif’s case ends with a domestic amnesty (an outcome we can expect the OTP to fight). In neither case, was justice done.

Regardless of the outcome of these cases, the linkage between the ICC and the death penalty remains in the Rome Statute and warrants revisiting.

–Jennifer Trahan is Associate Clinical Professor, at The Center for Global Affairs, NYU-SPS, and Chair of the American Branch of the International Law Association’s International Criminal Court Committee. The views expressed are those of the author.

(This op-Ed originally appeared on IntLawGrrls and can be accessed here.)