Appeals Chamber Fails To See the Forest — Complementarity Edition

by Kevin Jon Heller

Earlier this week, the Appeals Chamber rejected Cote d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo. The challenge was based on Gbagbo’s 20-year sentence for disturbing the peace, forming and organising armed gangs, and undermining state security. Like the Pre-Trial Chamber, the Appeals Chamber concluded that Gbagbo’s domestic convictions failed to satisfy Art. 17’s “same conduct” requirement, making her case admissible. Here are the key paragraphs:

99. The Pre-Trial Chamber found that the conduct underlying the alleged economic crimes was “clearly of a different nature” from the conduct alleged in the proceedings before the Court, and therefore “irrelevant”.171 The Pre-Trial Chamber further found that according to the documentation provided by Côte d’Ivoire, in particular Annex 8 to the Admissibility Challenge, the alleged conduct was characterised as [REDACTED].172 In view of the description of the alleged acts provided in the material submitted by Côte d’Ivoire, the Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find this conduct to be of a different nature to Ms Gbagbo’s alleged conduct in relation to the crimes against humanity of murder, rape and other forms of sexual violence, persecution and other inhumane acts, on the basis of which the Warrant of Arrest was issued against her by the Court. In addition, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

100. As regards crimes against the State, the Pre-Trial Chamber noted that in the domestic proceedings it is alleged that Ms Gbagbo [REDACTED].173 The Pre-Trial Chamber further noted that, in the domestic proceedings, “there are references to, inter alia, the allegations of [REDACTED].174 The Pre-Trial Chamber observed that the provisions criminalising such alleged conduct are included in the section of the Ivorian Criminal Code concerning felonies and misdemeanours against the safety of the State, the national defence and the public security.175 The Pre-Trial Chamber concluded that the alleged conduct only includes [REDACTED] and therefore the domestic proceedings in question “do not cover the same conduct” that is alleged in the case before the Court.176 The Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to find, on the basis of the description of the alleged conduct contained in the documents provided by Côte d’Ivoire, read in light of the applicable provisions of the Ivorian Criminal Code, that this conduct, characterised as infringing [REDACTED], is not the same as that alleged before the Court. In addition, as indicated earlier, Côte d’Ivoire does not explain why “excessively rigid distinction” between the crimes allegedly investigated domestically and those before the Court is erroneous.

I have no doubt that the Appeals Chamber’s application of the “same conduct” requirement is correct. But I think it is important to once again ask a basic question about the requirement: what does the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? 20 years is a significant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Even if the OTP manages to convict Gbagbo, she is very unlikely to receive a substantially longer sentence. So why should the ICC waste the OTP’s precious and overstretched resources by trying Gbagbo again?

My answer, not surprisingly, remains the same: it shouldn’t. The ICC simply cannot afford the kind of hyper-formalism that underlies the “same conduct” requirement. As I have argued elsewhere, the Court should defer to any national prosecution that results in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s prosecution.

In fairness to the Appeals Chamber, it’s worth noting that Gbagbo’s attorney challenged the Pre-Trial Chamber’s application of the “same conduct” requirement; she did not challenge the requirement itself. That’s a shame, because I think Gbagbo’s case perfectly illustrates why the Appeals Chamber should jettison the “same conduct” requirement. Would it? Probably not — as I note in my article, the requirement does have a clear textual basis in Art. 20 of the Rome Statute (“upward” ne bis in idem). But the Appeals Chamber has proven remarkably willing to ignore the Rome Statute when it proves inconvenient, so it would have been worth a shot — especially as the “same conduct” requirement is fundamentally inconsistent with the principle of complementarity’s emphasis on the ICC being a court of last resort . At the very least, challenging the requirement would have forced the Appeals Chamber to explain why the requirement’s waste of OTP resources is warranted. I would have liked to read that explanation.

8 Responses

  1. Thanks for the post Kevin . I totally agree with the presented in this post . It seems that the judges , have forgotten simply , the main , let’s say : purpose or constitutional purpose of that court , and of the Rome statute , which is :

    Not to punish them , but : Not to let them go unpunished ( preamble ) , means :

    The main goal , is , to encourage national jurisdiction exhaustion , and how to encourage it , if a sentence of 20 years , for the alleged conducts , is annulled in one blink .
    Can one say that upon such sentence that :
    This trial meant to grant shield to the person ( article 17 (a)(2) to the statute ) or , the trial has been conducted not independently or impartially ( (c) there) ?? And now,who knows the outcome of the next round??

    I find it wrong !! Thanks

  2. The same conduct test also provides strong ammunition to Court opponents (as I have argued elsewhere). Instead of states getting “the first bite at the apple,” the Court essentially dictates the charges domestic authorities must bring in order to prevent an ICC prosecution. Judge Usacka noted as much in her Gaddafi admissibility dissent. John Bolton also (very happily) picked up on the issue, contrasting the “untested ‘complementarity’ theory” and its claim of deference to national authorities with Libya’s admissibility challenge, asking whether countries are “sovereign only if the ICC allows it.” As for the test being fundamentally inconsistent with the ICC being a court of last resort, Nietzsche’s observation seems fitting: “During the journey, we commonly forget its goal… Forgetting our objectives [in this case, combatting impunity] is the most frequent of all acts of stupidity.”

  3. Megan,

    Completely agree — a point I make, as well, in my complementarity essay.

  4. Response… I can understand the Court seeking to stand firm on this test (same conduct) for use in other circumstances. But in light of the domestic sentence, might this be a fitting instance to invoke of “the interests of justice” provision in Art 53(c)?

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