Fair trials and complementarity at the ICC: What do the experts say?

Fatou Bensouda speaks at the IBA Roundtable on Fair Trials and Complementarity © Elodie Burrillon/http://hucopix.com
International Bar Association
A new report from the International Bar Association (IBA) highlights the themes and issues that were discussed at its recent event in The Hague: ‘Fair Trials and Complementarity: An Experts’ Roundtable Discussion addressing Practice, Challenges and Future Perspectives’.

The Experts’ Roundtable, which took place on 6 July 2017, included introductory remarks by Dr Mark Ellis, IBA Executive Director, and Ms Fatou Bensouda, Chief Prosecutor of the International Criminal Court (‘ICC’ or the ‘Court’). This was followed by a Keynote Address from Judge Howard Morrison of the ICC Appeals Chamber and two panels of experts who discussed fair trials in the context of domestic prosecutions for ICC crimes, and the ICC’s complementarity practice with respect to Libya.

 

Complementarity and fair trials

The Experts’ Roundtable addressed fairness as a core tenet of international justice, and what fairness means in the context of the ICC’s complementarity and admissibility determinations.

Because the provisions of the Rome Statute call for states to hold accountable those most responsible for serious crimes, should the state be willing and able to do so, panelists discussed how the Court can use its influence to help ensure that state prosecutions meet international standards of fairness.

Speakers noted that the ICC’s, and in particular the OTP’s, engagement with states to ascertain willingness and ability to prosecute can yield positive results in enhancing domestic proceedings and political will to prosecute. But, such engagement must also be treated with some caution, lest the Court be seen to legitimise proceedings that fall far below international standards of fairness. Generally, panelists called on the Court to engage more, including through active and on-the-ground monitoring of domestic proceedings.

Speakers drew on numerous examples to illustrate tensions between international norms and post-conflict realities. The post-conflict context poses particular challenges for restoring accountability and rule of law, including multiple state and non-state factions and shifting political contexts. The ICC’s investigation in Libya was discussed as an example, where the state’s trials of ICC suspects have been marked by serious due process violations. Panellists debated the Appeals Chamber’s finding in the Al Senussi case that due process violations did not in themselves make a case admissible to the ICC, unless the violations were ‘egregious’ in nature. In light of the subsequent international condemnation of Libyan trial proceedings, it was argued that ‘new facts’ should lead to a new admissibility assessment under Rome Statute Article 19(10).

 

Future considerations

A number of panelists emphasised the importance of the Court’s position as a standard-setting institution – and one which must uphold the highest standards of fairness, going beyond minimum guarantees, and systematically taking fairness into account in the complementarity assessment and in other contacts with States. Fairness was described by many as being at the heart of international criminal justice, and therefore something that should not be diluted even when faced with competing priorities or limited resources. Panelists identified a number of measures, both provided for within the Statute and in areas such as monitoring, outreach, and positive complementarity, that can support the Court to achieve these goals.

Areas for further discussion identified in the Experts’ Roundtable include the need to strengthen the Court’s monitoring of domestic proceedings following a finding of inadmissibility; the need to clarify the standards and procedures for an admissibility review under Article 19(10) of the Rome Statute; how to use the Court’s leverage and resources to encourage international standards of fairness in state proceedings; and the need to strengthen contacts with civil society in support of improving national systems.

 

Read the report

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