The Interface of Two Principles: Complementarity & Ne bis in idem

(My thanks to IntLawGrrls for the opportunity to guest post.)

As many previous posts have commented, the International Criminal Court is founded on a principle of “complementarity.” This means that the ICC is a backup or default system of justice, complementary to national jurisdictions. The basic premise is that the ICC ordinarily will not take cases that are adjudicated in national courts.
One of the concerns expressed about the implementation of complementarity under the ICC statute is whether a state will have the prerogative of deciding which crimes to charge without running the risk that the ICC will minimize the state’s choice by prosecuting the same acts under the ICC statute. (See, e.g., Michael A. Newton, "The Complementarity Conundrum: Are We Watching Evolution or Evisceration," forthcoming in the Santa Clara Journal of International Law.) The primary question is this:

What happens if a state chooses to prosecute for an “ordinary” crime, such as murder or rape, rather than for an “international” crime, such as genocide, crimes against humanity, or war crimes?

Suppose, for example, that a state is prosecuting or has prosecuted an accused for multiple murders for a particular incident that also arguably was part of a widespread or systematic attack against a civilian population. Is the case inadmissible in the ICC, or could there be a prosecution in the ICC for crimes against humanity of murder?
Assuming that jurisdictional requirements are met, the issue becomes one of admissibility of the matter and, in the case of completed cases, also an issue of ne bis in idem, or double jeopardy. As set forth in Article 17 of the ICC Statute, a case is not admissible in the ICC if a state with primary jurisdiction is willing and able to proceed with the investigation and prosecution or if the accused was already tried for the conduct and a further prosecution is now barred under the ne bis in idem provision. There are exceptions, however, to the willing and able provision, and to the ne bis in idem bar, if the state prosecution was a “sham” trial aimed at shielding the accused from responsibility, or if it was an improper proceeding, lacking in independence or impartiality and inconsistent with bringing the accused to justice.
In a recent paper for a panel on the ICC and complementarity at a symposium on the future of international criminal justice at Santa Clara School of Law -- moderated by Santa Clara Law Professor and IntLawGrrl Beth Van Schaack -- I focused on the issue of cases already adjudicated in national courts and the impact of the ne bis in idem principle on complementarity.
(For an excellent treatment of complementarity and admissibility issues from the same symposium, see the article by IntLawGrrl guest/alumna Linda M. Keller, "The Practice of the International Criminal Court: Comments on 'Complementarity in Crisis,'" also forthcoming in Santa Clara's international law journal.)
The design of the ne bis in idem principle in the ICC statute is highly protective of state prosecutions and is expressly different from the statutes for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, both of which permit greater control by the international tribunal than exists with the ICC. The definitions chosen for ne bis in idem in the ICC Statute foster the priority of States in initially prosecuting crimes, give states great leeway to prosecute after an ICC prosecution, and greatly limit the ability of the ICC to prosecute after a state adjudication of the facts. The application of the ne bis in idem provision is not settled, however. As detailed in my own forthcoming article arising out of the Santa Clara symposium, the ICC has yet to interpret the provision, although the Lubanga, and the Katanga and Ngudjolo cases have raised related issues that were ultimately rejected or abandoned.
A broad interpretation of ne bis in idem -- one that favors state prosecutions over ICC prosecutions -- would be more consistent with the language of the statute and the underlying principle of complementarity. How can we tell that the ICC ne bis in idem provision is designed to give great deference to state prosecutions? Ne bis in idem is commonly stated by reference to the text of Article 14(7) of the International Covenant on Civil and Political Rights, which states:

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

One of the most common variations in drafting is the choice of defining “offense” as “conduct” or as “crime.” This simple variation in language carries enormous consequences. “Conduct” is construed broadly, while “crime” is construed narrowly. By means of Articles 17(1)(c) and 20 of the ICC Statute, the drafters at Rome chose to bar the ICC from conducting a subsequent prosecution if the same “conduct” had already been adjudicated in a State court system.
If we apply this to our initial question of a state prosecution of murder when the charge could have been a crime against humanity, the most likely result is that the murder prosecution would preclude an ICC prosecution for a more serious charge based on the same underlying “conduct.”
The ICC provisions are in stark contrast to the ne bis in idem provisions in Article 10(2)(a) of the ICTY Statute and Article 9(2)(a) of the ICTR Statute, both of which explicitly allow subsequent prosecution in the international tribunals if the State has prosecuted only for an “ordinary” crime. Because murder would be viewed as an ordinary crime in contrast to a crime against humanity, the ICTY and ICTR could go forward with a subsequent prosecution, but the ICC would be barred from doing so. In this way, states are given significant control over whether they prosecute a case or whether the ICC prosecutes it.
This is not to say that the extensive deference to State prosecutions is necessarily the best balance between national and international prosecutions. The deferential approach will potentially preempt ICC jurisdiction in cases in which one might argue that an international prosecution based on more serious crimes would result in greater justice. Significantly for the accused, the state-protective approach of the ICC Statute may result in multiple prosecutions for the same conduct. These concerns are not inconsequential, and deserve consideration from a policy and drafting perspective. With regard, however, to a concern that the ICC will minimize or override a state’s choice of what to prosecute, the ICC ne bis in idem provisions, as presently drafted, are highly protective, rather than preemptive, both of state prerogatives and of the principle of complementarity.

Framework for peace and justice

First, I’d like to thank IntLawGrrls for inviting me to be a guest blogger. I appreciate the opportunity to contribute to the blog’s discussion of current issues in international law.

A while back, an IntLawGrrls' 'Nuff said post illustrated how the issue of peace versus justice is in the news again. My own recent scholarship has focused on how the International Criminal Court can balance the demands of peace and justice in, for example, its case in Northern Uganda. The ICC Prosecutor issued arrest warrants against Joseph Kony and other leaders of the Lord’s Resistance Army (LRA) despite fears that such a step would impede ongoing peace negotiations. More recently, the Prosecutor sparked debate with his announcement that he is seeking an arrest warrant for genocide, crimes against humanity, and war crimes against Sudanese President Omar Hassan Ahmad al-Bashir. Critics contend that the Prosecutor’s move will endanger prospects for peace in Darfur. Others, such as Justice Richard Goldstone, former chief prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda, take the position that the prosecutor’s job is to prosecute, leaving political questions to others.

Under the ICC statute, there are several ways that the peace versus justice issue can be raised. I’ve examined these issues in my article, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (2008), and in a shorter, more general essay, The False Dichotomy of Peace versus Justice and the International Criminal Court, just published in the Hague Justice Journal (in English, with French translation). I offer a framework for balancing peace with justice based on the theoretical underpinnings of the ICC. In my article, I have two objectives:

► First, to offer a solution to a pressing problem at the ICC: how the ICC should respond to calls to drop the arrest warrants in favor of Ugandan alternative justice mechanisms.

► Second, to propose a theoretical framework to apply to the inevitable reoccurrence of the peace versus justice dilemma at the ICC, such as the situation in Darfur and the most recent site of inquiry, Colombia.

With regard to the Ugandan situation, the ICC Prosecutor has characterized the demands of the LRA for immunity from ICC prosecution as blackmail and extortion. The LRA is notorious for atrocities including mutilating and killing civilians, often at the hands of children it has forcibly abducted into its forces. The ICC was created to end impunity for international crimes. But can it insist that states reject trading peace for justice when the cost of refusal is measured in human lives?

While many speak in terms of peace versus justice, it is possible to achieve both peace and justice. The ICC’s institutional mandate is to prosecute or to facilitate prosecution at the national level. The Rome Statute is sufficiently ambiguous to allow the ICC to defer to nonprosecutorial alternatives in extreme circumstances. For example, the ICC might be faced with a request to suspend the case from the U.N. Security Council pursuant to Article 16 of the ICC Statute. The ICC might consider whether an alternative process such as a truth commission blocks the case under the principle of complementarity (Article 17) or under ne bis in idem (Article 20). Finally, the Prosecutor, with the acquiescence of the Court, might decide not to investigate or prosecute as a matter of discretion, in the “interests of justice” (Article 53).

In interpreting these provisions, the ICC should not only consider statutory interpretation, but also assess the proposed alternative:

► It should first evaluate whether nonprosecutorial alternatives are necessary and legitimate.

► If they are, the ICC then should examine the goals of international criminal justice.

Where the alternative mechanism furthers retribution, deterrence, expressivism, and/or restorative justice to an extent similar to that provided by international prosecution, the ICC should defer. In this way, the ICC might ensure that there is at least some measure of accountability for international criminals without blocking peace initiatives vital to ending mass killings and other atrocities.

This framework offers only a starting point for solving the very complicated problem of balancing peace with justice. In Uganda, for example, the peace plan offers a confusing mix of alternatives to ICC prosecution, making reference to both traditional justice mechanisms and domestic prosecution. The Uganda situation is still fluid, with some negotiators attempting to keep the peace process alive despite Kony’s failure to sign the peace deal, while others argue for a military solution. (credit for USAID photos of some of Uganda's internally displaced children)

The ICC can, of course, be only part of the solution to complex conflicts, in Africa and elsewhere.

Goodbye to "Get Out of Jail Free!" cards

There's much food for thought in the news of U.S. District Judge William M. Hoeveler's ruling that Gen. Manuel Antonio Noriega, due for release next week from U.S. federal prison, may be extradited to France, where he's been convicted in absentia of laundering proceeds from drug trafficking through French banks and the French real estate market.

There's the decision itself, of course:

Convicted of drug trafficking by a Miami-based jury in 1992, Noriega, de facto ruler of Panama at the time of his 1989 capture there by U.S. troops, enjoys, by judicial order, the status of a prisoner of war protected by the Third Geneva Convention. Hoeveler's decision hinged, therefore, on his conclusion that the Convention does not forbid transferring a POW to a 3d state for criminal trial. Noriega's attorney's said to be mulling "whether to challenge the ruling in the United States Court of Appeals for the 11th Circuit or with the United Nations." That last reference comes as a surprise. Can't think of any U.N. body that might be able to do anything enforceable in the matter except the Security Council, where, of course, the United States and France both have power to veto any such move.

And then there's the larger picture:

As more and more states reach outside their own territory to exercise criminal jurisdiction, it seems likely that the most notorious persons who suffer conviction and less-than-a-life-sentence in 1 sovereign state will look forward not to a final release date, but rather, on release, to a move to another jail in another sovereign state. Perhaps it's the ne bis in idem (that's double jeopardy, roughly speaking) overtones in this prospect that explain France's no-comment on the still-pending U.S. case -- as Reuters' Paris bureau put it, why France has made no official statement but instead "accepted the decision with prudence and discretion."