The Flipside of Complementarity: Double Jeopardy at the International Criminal Court

Journal of International Criminal Justice, Vol. 17, Issue 2, 2019, p. 369-390

25 Pages Posted: 25 Oct 2019

See all articles by Patryk I. Labuda

Patryk I. Labuda

Polish Academy of Sciences - Institute of Legal Studies

Date Written: October 11, 2018

Abstract

A variety of human rights dilemmas were left unresolved in Rome. One issue likely to generate controversy is the relationship between the prohibition of double jeopardy, complementarity, and minimal fair trial protections for defendants. Under the Rome Statute’s complementarity framework, the International Criminal Court (ICC) must defer to domestic proceedings if a state is handling the same case and the national authorities are not ‘unable or unwilling’ to prosecute the same person. Much ink has been spilt on Article 17 of the Statute and the ensuing case law, but less understood is the flipside of complementarity: under what circumstances is a state not allowed to prosecute defendants over whom the ICC has already exercised jurisdiction? Against the backdrop of the Germain Katanga case, this article argues that the ICC should take a more pro-active role in supervising secondary domestic proceedings against people previously convicted or acquitted in The Hague. Katanga’s return to the Democratic Republic of Congo to serve the remainder of his ICC-mandated sentence triggered a domestic trial implicating a variety of fair trial issues. Although the Katanga case is based on a unique set of facts, analogous developments in the cases against Saif Al-Islam Gaddafi and Jean-Pierre Bemba point to the growing likelihood of secondary domestic proceedings against people previously tried by the ICC, which in turn raises fundamental questions about the Rome Statute’s prohibition of double jeopardy and its relationship to complementarity and fair trial guarantees.

Suggested Citation

Labuda, Patryk I., The Flipside of Complementarity: Double Jeopardy at the International Criminal Court (October 11, 2018). Journal of International Criminal Justice, Vol. 17, Issue 2, 2019, p. 369-390, Available at SSRN: https://ssrn.com/abstract=3468286

Patryk I. Labuda (Contact Author)

Polish Academy of Sciences - Institute of Legal Studies ( email )

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