The Mirage of Legitimacy: Why Rebel Courts Cannot Trigger the Complementarity Principle

[Asuman Ece Yildiz is a PhD candidate at the University of Groningen]

In today’s world, conflicts frequently take the form of non-international armed conflicts involving a variety of non-state armed groups espousing ideologies. These groups often assert de facto control over territories for extended periods, spanning years and even decades. Such control necessitates the establishment of governance systems, bureaucracies, and, in some cases, rebel courts to maintain authority over the territory and enforce their ideological agendas (p. 355). Over time, these structures have been scrutinized by international courts, notably the ICC, through various legal proceedings. 

Recent rulings by the ICC in cases such as Al-Werfalli and South Ossetia have shed light on the complex legal terrain surrounding these armed groups’ governance structures and rebel courts. This complexity places the ICC in a delicate position as it navigates the governance structures of these groups and the legal proceedings they conduct. The legal questions raised in the Al-Werfalli case revolved around the complementarity principle, indicating that the ICC will inevitably confront issues related to insurgent complementarity. The question is therefore likely to arise in future cases: Should the ICC review investigations or judgments from rebel courts established by non-state armed groups under the complementarity principle, or should it disregard them? Could the jurisdiction exercised by a rebel court trigger insurgent complementarity? 

In this post, the answer to this question is negative (but see Amoroso). The post analyzes the language of the Rome Statute together with the primary objective of the complementarity principle, namely addressing State concerns about the Court’s jurisdiction, and then examines the relevant case law of the International Criminal Court in this regard. 

Articles 17(1)(a) and (b) of the Rome Statute as Exclusive State Domains

Article 17 of the Rome Statute addresses the issue of admissibility, with subsections (1)(a) and (1)(b) dealing specifically with complementarity as a legal aspect of admissibility. Paragraph (a) considers cases where a State has prosecuted or investigated the matter, while paragraph (b) examines situations where a State has the option to initiate an investigation or prosecution but chooses not to. Both paragraphs explicitly mention “a State which has jurisdiction,” indicating that if another State with jurisdiction is handling the investigation or prosecution, the complementarity principle applies, and the ICC must deem the case inadmissible.

The question of whether prosecutions by rebel courts could fall under paragraph (b) or (a) hinges on interpreting the term “a State which has jurisdiction.” Overall, when examining other articles within the Rome Statute regarding complementarity, such as paragraph 10 of the preamble and Article 1, which mention “national criminal jurisdiction,” it becomes evident that the wording of the article primarily pertains to “States” and does not extend to other entities, including non-state armed groups (Provost, p. 390). Jo Stigen contends that according to Article 17(1), ICC intervention can only be superseded by “a State with jurisdiction over it,” suggesting that a case not under investigation or prosecution by such a State would always be admissible. Furthermore, William Schabas and Mohamed El Zeidy have also addressed this matter, particularly in the context of examining scenarios that might challenge the boundaries of what qualifies as a “State” for the application of Article 17(1) of the Rome Statute. Schabas observes that at its core, “State” encompasses, at the very least, a sovereign entity eligible to ratify the Rome Statute in accordance with Article 125 (p. 795). They further highlighted the fact that the narrow construction of Article 17(1) may undermine the accountability of international crimes and cause impunity. 

In sum, pursuant to paragraphs (a) and (b) of Article 17 of the Rome Statute, the ICC should refrain from applying the complementarity test to investigations conducted by rebel courts. Due to the statute’s narrow and stringent wording, the court is compelled to decline to assess the proceedings conducted by rebel courts. 

The Ambiguity of Article 17(1)(c): Ne Bis in Idem or Sovereign Protection? 

Article 17(1)(c) of the Rome Statute stipulates that “The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3“. This article pertains to the principle of ne bis in idem, safeguarding individuals against double jeopardy. 

Unlike paragraphs (a) and (b), Article 17(1)(c) deviates in its wording by not exclusively mentioning “State which has jurisdiction” or “national jurisdiction”; rather, it refers to “the court” (p. 396). Additionally, it explicitly cites Article 20(3), which addresses ne bis in idem. Both Article 20(3) and Article 17(1)(c) hold similar implications, as evidenced in the Al-Senussi case of the ICC (Al-Senussi, para. 222). However, they are narrower in scope compared to the subjects addressed in Article 17(1)(a) and (b), as they necessitate a final decision, either convicting or acquitting the individual for the same conduct. Moreover, both Article 20(3) and Article 17(1)(c) refer to “the court” without specifying which court or elucidating its meaning. 

This ambiguity prompts discussion on whether convictions or decisions from rebel courts concerning international crimes should be evaluated under the principle of complementarity. According to Amoroso, the ICC should not outrightly dismiss the complementarity assessment; rather, it should scrutinize judgments from rebel courts and subsequently determine their admissibility according to ICC standards (p. 1088).

Indeed, scholars such as Schabas (p. 795) and El-Zeidy (p. 878) concur with this interpretation. They acknowledge the distinction in wording between paragraph (c) and paragraphs (a) and (b), suggesting a nuanced complementarity test. They imply that the absence of State involvement in the proceedings may not be the decisive factor. They argue that the ICC should not preemptively refuse to apply a complementarity test to judgments from non-state actors. Instead, the ICC should conduct a thorough assessment to ascertain whether fair trial standards are met by these non-state entities p. 1091). Consequently, it can be inferred that the ICC is empowered to conduct a complementarity assessment under Article 17(1)(c) of the Rome Statute. 

However, even though the text itself does not establish a limitation for Article 17(1)(c), reviewing the rulings of rebel courts under the complementarity test raises concerns. One of the primary purposes of the complementarity principle is to safeguard the sovereignty concerns of States, which entails upholding their right to administer justice through their domestic judiciary before resorting to international courts (p. 878). By following this principle, States can safeguard one of their core sovereign rights: the authority of their domestic courts to exercise national jurisdiction (p. 881). Reviewing the proceedings and judgments of rebel courts implies granting them a similar status to sovereign entities, which contradicts the intended purpose of the complementarity principle. 

Moreover, recognizing the legitimacy of armed groups by validating the compliance of rebel court judgments with the complementarity test suggests an equivalence with national jurisdiction, a notion that was not part of the consent given by States when signing the Rome Statute ( p. 397). Jan Willms notes that the participants in the negotiations in Rome that led to the adoption of the ICC Statute never considered the possibility that ne bis in idem could be applied to courts of non-state armed groups (p. 161). He explained the absence of consensus on this issue: 

“Given that there are considerable variations in the way in which this principle is applied in domestic legal systems around the world, it seems difficult to accept that there could have been an unstated consensus to extend it or not to rebel courts” (p. 397).

Therefore, such an interpretation would run counter to the sovereign rights of States parties to the Rome Statute and would conflict with their interests. 

In his article Amoroso argues that while paragraphs (a) and (b) of Article 17 pertain to State sovereignty, paragraph (c) focuses on protecting the rights of suspects and prevents double jeopardy (p. 1088). However, sovereignty is fundamental to all paragraphs, as the main purpose of the complementarity principle is to uphold States’ national jurisdiction over crimes. It is unclear how rebel courts could better protect suspects’ rights than the ICC, and this raises doubts about their ability to provide fair trials.

What ICC Jurisprudence in South Ossetia and Al-Werfalli Cases Tells Us

On January 27, 2016, ICC Pre-Trial Chamber I reviewed war crimes committed between Russia and a non-state actor with de facto control over the territory in Georgia, namely South Ossetia. The Chamber emphasized the rigid wording of the Rome Statute regarding the complementarity principle and concluded that since Article 17(1) requires an investigation held by a State with jurisdiction, and South Ossetia is not recognized as a State, prosecutions conducted by South Ossetian authorities would not be considered (South Ossetia, para. 322).

However, in 2017, another case was brought before the ICC: Al-Werfalli case. Mr. Al-Werfalli was accused of committing war crimes, including the execution of 33 individuals (para. 2). He was a member of the Libyan National Army (LNA), an armed group conducting operations in Libya under the leadership of General Khalifa. In this case, the LNA also claimed to be conducting a prosecution (para. 25). The Court addressed complementarity and found that the proceedings by the LNA remained inactive, without determining whether the LNA could qualify as a State authority for the purposes of Article 17 (para. 27). The LNA had not taken tangible, concrete, and progressive investigative steps, so there was no reason to declare the case inadmissible (para. 27). “The Chamber finds that irrespective of whether the entity exercising authority in the territory controlled by the LNA can be considered a State for the purposes of Article 17 of the Statute, there remains a situation of inactivity” (para. 27). Therefore, the Chamber implicitly acknowledged that only States and their national jurisdictions could render a case inadmissible before the ICC due to complementarity. 

Conclusion 

Ultimately, the debate over rebel courts is not merely a technical question of treaty interpretation; it raises a fundamental question about the ICC’s role in the international order. If the Court were to adopt a broad reading of Article 17(1)(c) and recognize the judgments of non-state armed groups, it would risk creating a backdoor for legitimizing groups that lack sovereign standing. Safeguarding the sovereignty of States is a primary objective of the complementarity principle, as evidenced in the drafting history and negotiations of the Rome Statute, and non-state armed groups lack the sovereignty necessary to exercise national jurisdiction over a case. Therefore, a broad reading of Article 17(1)(c) of the Rome Statute does not align with the main purpose of the complementarity principle or with the drafting history of the Statute. The ICC’s case law in South Ossetia and Al-Werfalli further demonstrates that the Court rejects the competency of rebel courts. 

Furthermore, allowing rebel groups to trigger complementarity would not only undermine the rights of States but could inadvertently provide a legal shield for groups like ISIS, enabling them to use their own courtrooms as a  shield against international accountability. This post therefore argues that the ICC should neither subject rebel groups to the complementarity test nor allow them to challenge the admissibility of a case before the Court.