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

Patryk I. Labuda (New York Univ. - Law) has posted The Flipside of Complementarity: Double Jeopardy at the International Criminal Court (Journal of International Criminal Justice, forthcoming). Here's the abstract:

A variety of human rights dilemmas were left unresolved in the Rome Statute. One issue likely to generate controversy is the relationship between the prohibition of double jeopardy, complementarity, and fair trial protections for defendants in mass atrocity trials. 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 Rome Statute and the resulting ICC case law; however, 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? This question is examined against the backdrop of the ICC’s trial of Germain Katanga. Tried and convicted in The Hague, Katanga was sent back to his native Democratic Republic of Congo to serve the remainder of his ICC-mandated sentence. Once in Congo, the national authorities initiated criminal proceedings, despite concerns about possible violations of Katanga’s human rights, including the applicability of the death penalty, the right to a fair and speedy trial, and the prohibition of double jeopardy. Under a seldom-used provision in the Rome Statute, Article 108, the ICC Presidency was required to validate or reject Congo’s proceedings against Katanga. Instead, in its decision allowing Katanga’s domestic case to proceed, the ICC essentially abdicated any oversight over national jurisdictions, advancing sweeping arguments about the irrelevance of human rights to the permissibility of secondary domestic trials. Three years later, Katanga languishes in a Congolese prison with no prospect of a trial, let alone justice, in sight. Although the Katanga debacle is based on a unique set of facts, it raises fundamental questions about the prohibition of ne bis in idem, its relationship to complementarity, and the relevance of fair trial guarantees in the Rome Statute. In light of analogous developments in the cases of Saif Al-Islam Gaddafi and Jean-Pierre Bemba, this article explores a topic that is likely to generate further controversy as the likelihood of secondary domestic trials of people previously tried by the ICC increases.