New Article on SSRN: “Radical Complementarity” (Updated)

by Kevin Jon Heller

The article is forthcoming in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, Simone Gbagbo, the former First Lady of Côte d’Ivoire, was convicted of various crimes in an Ivorian court and sentenced to 20 years in prison. Despite her conviction and sentence, however, the Appeals Chamber has held that her case is admissible before the ICC. The reason: the national proceeding was not based on “substantially the same conduct” as the international one. Whereas the OTP intended to prosecute Gbagbo for the crimes against humanity of murder, rape, other inhumane acts, and persecution, the Ivorian court convicted her for the ordinary domestic crimes of disturbing the peace, organising armed gangs, and undermining state security.

This Article argues that the Appeals Chamber’s decision in Simone Gbagbo undermines the principle of complementarity – and that, in general, the ICC has used complementarity to impose structural limits on national proceedings that are inconsistent with the Rome Statute and counterproductive in practice. The Article thus defends ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.

The Article is divided into three sections. Section 1 defends the Appeals Chamber’s recent conclusion in Al-Senussi that the principle of complementarity does not require states to charge international crimes as international crimes, because charging ‘ordinary’ domestic crimes is enough. Section 2 then criticises the Court’s jurisprudence concerning Art. 17’s ‘same perpetrator’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the Rome Statute and far too restrictive in practice. Finally, using Simone Gbagbo as its touchstone, Section 3 explains why the ‘same conduct’ requirement, though textually defensible, is antithetical to the goals underlying complementarity and should be eliminated.

The article brings together thoughts I’ve developed both here at Opinio Juris and in my academic writing. In terms of the latter, it’s something of a sequel to my article “A Sentence-Based Theory of Complementarity.” (Double self-promotion!)

As always, thoughts are most welcome!

NOTE: I have uploaded a revised version of the article to SSRN. Chris’s comment below made me realise I should note my sentence-based theory of complementarity. It’s not a radical change, but — at the risk of seeming like I’m trolling for downloads — you should get the new version if you want to read the article but haven’t already.

4 Responses

  1. Response…Kevin, thanks for posting a link to your article. It’s a very interesting read and an impressive piece of scholarship.

    Two aspects of your defence of “radical complimentarity” are not clear to me on first read though.

    First, your suggestion that someone ought not to be prosecuted for one type of criminal conduct by the ICC simply because they have been investigated or prosecuted previously by a State for completely different criminal conduct seems unprincipled. This is an oversimplification, but surely you are not suggesting that someone who is suspected of involvement involved in war crimes, for example, should not be investigated or prosecuted by the ICC if their state is unwilling or unable genuinely to investigate or prosecute the war crimes, but instead jails the person for outstanding parking fines?

    If that is not what you’re suggesting, and in fact you agree that there must be some correlation between the conduct and crimes being investigated by the State and the ICC, isn’t that exactly what the SSC is? If, however, you are suggesting that being jailed for traffic offences (for example) should preclude the ICC from investigating or prosecuting an international offence, that seems contrary to the very purpose for which the ICC was established, and as such, is unlikely to get any judicial support anytime soon.

    Secondly, there seems to me to be some tension in your statement that “as long as a state is making a genuine effort to bring a suspect to justice” it shouldn’t matter what conduct or crime the suspect is charged with. The word “suspect” seems important here. If the State and the ICC each consider the person to be a “suspect” for entirely different conduct and crimes, then the State’s investigation would not make the person a “suspect” for the purposes of the ICC. In these circumstances, the case would one that the ICC could properly seek to investigate and prosecute. If, however, your position is that the person must “suspected” of broadly the same conduct and crimes by both the State and the ICC in order for the ICC to defer to the State, then isn’t that essentially the same thing as the SSC?

    Congratulations again on the paper and thanks for sharing it.

  2. Chris,

    Thanks for the comments. In terms of your second point, I understand your position — but that simply isn’t the approach the Court takes to the activity requirement. They view “suspect” purely in terms of identity. If the identity is the same, then and only then do they ask whether the state is (1) actually investigating, and (2) if so, whether it is investigating substantially the same conduct.

    Your first point is more challenging. As you will see from the post, I have actually updated my article to say a bit more about how I think the Court should compare ICC and national proceedings when they are based on different conduct — my sentence-based complementarity heuristic. So no, parking tickets would not be enough, because you don’t go to jail for 20 years for not paying them. But financial crimes would, assuming they led to a long enough sentence. As would prosecuting a suspect for rape or murder when the OTP charges him only with using child soldiers. So no, I don’t think there has to be a correlation between conduct and crimes; I think there has to be a correlation between sentences. If the national sentence is long enough, nothing in the principle of complementarity suggests that the ICC should still intervene.

  3. Kevin, excellent article–an important intervention in an issue of increasing importance.

    I wonder if your use of the phrase “radical complementarity” is counter-productive to your argument. If anything, I would think that you would want to accuse the ICC of using a form of radical complementarity. According to your own argument, your interpretation of complementarity is the most reasonable, justified, natural, and legitimate interpretation of the principle–hardly radical at all. It is the ICC that is using a radical and untenable version of the principle of complementarity. Just a thought.

    Can’t wait to see it in print in JICJ!

  4. Thanks, Jens! You’re probably right about the title. I just really like it…

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