The ICC, Protection of Fundamental Rights in the Adjudication of International Crimes

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Master Thesis M.J. Kersting 5662990 Public International Law (International Criminal Law)

The ICC, Protection of Fundamental Rights in the Adjudication of

International Crimes

Should the ICC engage positive complementarity 1(national capacity building) and shared responsibility to improve domestic judicial processes and in particular the protection of fundamental rights of suspects in domestic proceedings to protect suspects against ‘egregious violations’?

More specifically: is this engagement by the ICC legitimate in light of the principle of complementarity (the ICC’s initially intended role), the Rome Statute, the sovereignty of the state and the idea that the ICC is no human rights court/appeals court ?

And is this engagement necessary in light of the quality of domestic judicial processes (evidentiary problems, the capacity of national judicial institutions2 and the difficulty3 of adjudicating international crimes4) to prevent ‘egregious violations’ of fundamental rights of suspects?

Filing date research plan : 3 July 2015

Filing date final version master thesis : 8 November 2015 / 4 January 2016 Supervisor : Prof. Harmen van der Wilt

12 EC

1_{Bekou, O. in: Mariniello, T., The International Criminal Court in Search of Its Purpose and Identity, Routledge}

Research in International Law, 2015, p. 139

4_{See Terracino, J.B., National Implementation of ICC crimes, Journal of International Criminal Justice, vol.5,}

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2 Table of contents

Abbreviations p.3 Introduction and Methodology p.4 1. Problems in domestic proceedings

1.1 Domestic problems p.7 1.2. Violations of Fundamental Rights p.10

2. Libya and the ICC

2.1 Problems of domestic institutions p.11 2.2 The Gaddafi and Al Senussi cases and the ICC’s position as to p.13

the Due Process Thesis 2.3 Libya’s cooperation with the ICC p.18

3. Interfering with states

3.1 Are Positive Complementarity and Shared Responsibility legitimate ? p.19 (in light of inter alia complementarity and the Rome Statute)

3.2 Are Positive complementarity and Shared Responsibility necessary ? p.38 (in light of inter alia evidentiary problems)

Conclusion p.48 Bibliography p.51

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3 Abbreviations

AC = Appeals Chamber of the International Criminal Court ACIL= Amsterdam Center for International Law

ASP = Assembly of State Parties DPT = Due Process Thesis

DRC = Democratic Republic of Congo HRW = Human Rights Watch

ICC = International Criminal Court (or the Rome Statute, entered into force 1 July 2002) ICTY = International Criminal Tribunal for the former Yugoslavia

NGO = non-governmental organization

OHCHR= Office of the United Nations High Commissioner for Human Rights OTP = Office of the Prosecutor of the ICC

PTC = Pre Trial Chamber of the ICC

UN (SC) = United Nations (Security Council)

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Introduction and Methodology

Being a court of ‘last resort’, the International Criminal Court (ICC) applies the

complementarity principle.5 In general, in turns out that the ICC is very dependent on the cooperation of states.6 For example, sometimes the prosecutor of the ICC is desperately hoping for governments (that possibly have been involved in human rights violations7) to cooperate with the ICC and to prosecute the persons that could be responsible for

international crimes. In some cases, the ICC can solve problems by intervening when a state is ‘unwilling’ or ‘unable’. Problems can also arise when national courts are overzealous

though.8 In chapter 1 I will explore which problems are commonly encountered in domestic proceedings.

The ICC, in principle, will not declare a case admissible when national courts are willing to prosecute, even when the rights of a suspect have been violated.910 So in the current system of complementarity11 there is a great risk that the suspect’s fair trial rights are violated, without protection afforded to the suspect. The suspect could for example be exposed to torture.12 The idea that the ICC should declare a case admissible whenever fundamental rights are being violated in domestic proceedings, is called the Due Process Thesis (DPT).13

It’s not very clear in which situations the ICC declares a case admissible in case of human rights violations during domestic proceedings.14 The importance and urgency of the question has recently been emphasized by the Gaddafi case. In the Gaddafi case, the Pre Trial

5_{See the Preamble and art. 1 of the Rome Statute}

6_{See for a recent example South Africa that did not arrest and hand over the Sudanese president Al-Bashir,}

despite the longstanding arrest warrant for Al-Bashir and despite the fact South Africa is a member of the ICC, on nytimes.com (consulted on 17/6/2015)

7_{News article about Libya on Hrw.org (consulted on 18/6/2015)}

8_{Trahan, J., Is Complementarity the Right Approach for the International Criminal Court’s Crime of Aggression?}

Considering the Problem of ‘Overzealous’ National Court Prosecutions, Cornell International Law Journal, vol.

45, 2012, p. 569

9_{Heller, The shadow side of complementarity: the effect of article 17 of the Rome statute on national due}

process, 2006, p. 3

10_{Rojo, E. C., The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal}

Court: From ‘No Peace without Justice’ to ‘No Peace with Victor's Justice’? Leiden Journal of International Law,

vol. 18, 2005, p. 829

11_{Ellis, The International Criminal Court and its Implication for Domestic Law and National Capacity Building,}

Florida Journal of International Law, 2002, § 2

process, 2006, p. 1-2

process, 2006, p. 3

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Chamber (PTC) ruled that Libya was ‘unable’ to carry out a genuine prosecution, and stated that Libya had not shown whether and how it would overcome the existing difficulties in securing a lawyer for Saif Al-Islam Gaddafi.15 There seem to be some situations in which the ICC does afford protection to suspects in domestic proceedings.16 However, the former ICC prosecutor Moreno-Ocampo made clear that: ‘the ICC is not a

human rights court and that instead of the fairness of the proceedings, they are checking the genuineness of the proceedings.17 But some have argued that due process considerations remain relevant to the admissibility of the ICC.18 So what is the position of the ICC in this respect and what should its position be? Chapter 2 goes into the Libya-cases that provide a lot of information about the ICC’s position as to the DPT and the problems of Libyan domestic institutions. In chapter 3 I will further examine the DPT, art. 17 and art. 21 ICC.

Another problem, put forward by Perrin19 and further elaborated by Vasiliev20, is the lack of clarity and broadness of ‘internationally recognized human rights’ (in the context of the ICC). Even in trials at criminal tribunals itself, it is very hard to ensure enough protection of

fundamental rights of suspects and other affected persons.21 According to Heller, most national criminal-justice systems are even worse in this respect.22

As well as the problem of due process violations there are other problems related to the domestic institutions. The role of national courts in prosecuting international crimes has increased considerably since the establishment of the ICC23 and this puts a great burden on

15_{ICC, 31-05-2013, ICC-01/11-01/11 (Pre-Trial Chamber I in the case of: The Prosecutor v. Saif Al-Islam Gaddafi}

and Abdullah Al-Senussi, §215)

16_{ICC, 24-07-2014, ICC-01/11-01/11 OA 6 (Appeals Chamber in the case of: The Prosecutor v. Saif Al-Islam}

Gaddafi and Abdullah Al-Senussi, §215)

17_{Mégret & Samson, Holding the line on complementarity in Libya, Journal of International Criminal Justice, vol.}

11, 2013, p. 572

18_{Van der Merwe, H.J., The Show Must Not Go On: Complementarity, the Due Process Thesis and Overzealous}

Domestic Prosecutions, International Criminal Law Review, 2015, p.42

19_{Perrin, Searching for Law While Seeking Justice: The Difficulties of Enforcing International Humanitarian Law}

in International Criminal Trials, Ottawa Law Review, 2007-2008, p. 398

20_{Vasiliev, International Criminal Trials: A Normative Theory, Volume 1: Nature, University of Amsterdam, 2014,}

p. 132-133

p. 157-158

process, 2006, p. 2

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states (especially when a state, such as Libya, is recovering from chaos and violence24). These problems, of course, could as a consequence deliver poor judgments.25

Vasiliev has written about the position of the ICC as to fundamental rights in the processes of the ICC by pointing to art. 21 Rome Statute.26 The case law of the ICC, the Rome Statute and especially art. 21 can be used as a normative starting point to argue that the ICC should interfere with domestic institutions to protect fundamental rights.

In chapter 3 I shall examine in a normative manner whether and how the ICC should interfere with the judicial institutions of states to protect fundamental rights in domestic proceedings.27 Some jurists think that international law and institutions can improve the accomplishments of domestic institutions.28 Stahn and Rodriguez propose to improve the domestic institutions of states.29 30 The ICC could support domestic courts in the adjudication of international

crimes.31 Supposing the ICC is not willing to fully apply the DPT , an alternative form of intervention could be useful. In chapter 3.1 and 3.2, positive complementarity (national capacity building) and shared responsibility will be examined. In the view of the Office of the Prosecutor (OTP), positive complementarity implies a proactive policy of cooperation aimed at promoting national proceedings.32 The concept of positive complementarity is well developed. Despite that the application of positive

complementarity faces practical difficulties, it offers many advantages and possibilities. By contrast, the meaning of shared responsibility in the context of the ICC and a state where

international crimes have occurred, is very complex, not very clear and not very developed

24_{In war-torn Libya, its life on the edge foreignpolicy.com (consulted on 3/1/2015)}

25_{Van der Wilt, H., Universal Jurisdiction under Attack ,An Assessment of African Misgivings towards}

International Criminal Justice as Administered by Western States, Journal of International Criminal Justice,

2011, p. 1064

p. 132-136

27_{See also Cryer, R., Hervey, T., Sokhi-Bulley, B., Bohm, A., Research Methodologies in EU and International}

Law, Hart Publishing, 2011, p. 38

28_{Slaughter, A., Burke-White, W., The Future of International Law Is Domestic (or, The European Way of Law),}

Harvard International Law Journal, vol. 47, 2006, p. 333

29_{Rodriguez, C., Libya and the International Criminal Court: A Case Study for Shared Responsibility, PIT journal,}

2013, under § In favor of Shared Responsibility

30_{There are different ways to improve the national capacity of a state. See for example: Slaughter, A.,}

Burke-White, W., The Future of International Law Is Domestic (or, The European Way of Law), Harvard International Law Journal, vol. 47, 2006, p. 341

2013, under § Arguments for Shared Responsibility

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yet.33 Shared responsibility is about distributing responsibility among multiple actors.34 Without sufficient elaboration of shared responsibility, it is hard to see the exact relation between this concept and the practical proposals (see chapter 3.2) that seem to derive from this concept. Yet, such practical proposals could have a remedying function for the problems put forward in this thesis.

Are the alternatives legitimate in light of inter alia complementarity and sovereignty? And are these alternatives necessary in light of proper domestic processes and fundamental rights?

I shall try to argue that the ICC should engage positive complementarity 35(national capacity building) and shared responsibility to improve domestic judicial processes and in particular the protection of fundamental rights of suspects in domestic proceedings to protect suspects against ‘egregious violations’.

The thesis will stay within the internal law perspective and discuss the law, case law and

literature. It will have a descriptive, normative and prescriptive dimension.

Chapter 1 Problems in Domestic Proceedings

What are some of the common encountered problems in domestic proceedings when adjudicating international crimes and which fundamental rights of suspects are being violated ?

§ 1.1 Domestic Problems

The Rome Statute envisages a central role for national courts. States ought to be able to investigate and prosecute the core international crimes falling under the jurisdiction of the ICC.36 The capacity of national institutions is crucial to the ICC regime and to justice in general.37 It has also been argued that the standard of domestic trials should be high because they have the whole state apparatus which international tribunals don’t have.38 Prosecuting

33_{Dannenbaum, T., in: Nollkaemper, A. & Jacobs, D. (eds), Distribution of Responsibilities in International Law,}

Cambridge University Press, 2015, p. 192

34_{Nollkaemper, A. & Jacobs, D. (eds), Distribution of Responsibilities in International Law, Cambridge University}

Press, 2015, p. 2-3. See also Homepage sharesproject.nl (consulted on 26/12/15). And see chapter 3.1

Research in International Law, 2015, p. 133-134

38_{Sluiter, G., Friman, H., Linton, S., Vasiliev, S., Zappalà, S., Gradoni, L., Lewis, D., Megret, F., Nouwen, S., David}

Ohlin & J., Reisinger-Coracini, A., International Criminal Procedure: Principles and Rules, Oxford Scholarly Authorities on International Law, 2013, p. 1419

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the core international crimes is a difficult task though.39

States have problems with conducting trials that meet international standards. One of the causes is the absence (or inadequacy of 40) of national implementing legislation41 which enables states to cooperate with the ICC.42 For instance, not all states have incorporated all the ICC crimes into national legislation.43 Many domestic courts are not experienced in the hard task of addressing international crimes.44 Even where such legislation does exist, states may still find it hard to pursue justice at the national level. A high degree of skills, expertise and organization (after a violent conflict there could be thousands of perpetrators) is needed to deal with the complex nature of the

investigation and prosecution of international crimes. National courts are overwhelmed with many complicated cases that involve a lot of data and national institutions may also be hampered by inefficient work processes.45 Bekou presents research that has been done in some African states that gives an indication of the national capacity of those states.46 In Uganda, the DRC, Kenya and Ivory Coast the number of judges is far too low given the numbers of international crimes cases with which they have to deal. Backlogs, in terms of cases47 and overcrowded prisons48, are aggravated because the spending on the justice sector is low.49 Besides insufficient human and physical capacity, law enforcement agencies and judicial authorities may lack the technical expertise

40_{Is it desirable to adjudicate international crimes as ordinary crimes? Some think such prosecution does not}

represent the scale, scope and gravity of the conduct. Bergsmo, M., Bekou, O. & Jones, A., Complementarity

After Kampala: Capacity Building and the ICC’s Legal Tools, Goettingen Journal of International Law, 2010, p.

801

42_{See for example Human Rights Watch Briefing Paper, June 2006, Number 1, Lack of Conviction, The Special}

Criminal Court on the Events in Darfur, p.2

44_{See for example the struggles of South Africa in: Ventura, M.J., The Duty to Investigate Zimbabwe Crimes}

Against Humanity (Torture) Allegations: The Constitutional Court of South Africa Speaks on Universal Jurisdiction and the ICC Act, Journal of International Criminal Justice, vol. 13, 2015 (Forthcoming), p. 1-3

46_{Unfortunately the information is incomplete and of questionable accuracy. Bekou, O. in: Mariniello, T., The}

International Criminal Court in Search of Its Purpose and Identity, Routledge Research in International Law,

2015, p. 135

47_{See for example Uganda, US Department of State, Country Reports on Human Rights Practices, Uganda,}

2005, § E. Denial of fair public trial

48_{US Department of State, Country Reports on Human Rights Practices, Sudan, 2005, § C – Prison and}

detention center conditions

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necessary to conduct large-scale complex cases.50 Another challenge is the lack of training in national judicial systems.51 Weak judicial institutions can result in a lack of confidence in the judicial authorities.52

Fry emphasizes the close relation between evidentiary rules and due process rights.53 If one or more of the evidentiary rules (for example the presumption of innocence or the right to remain silent) are not properly established in a national criminal justice system, this could result in a grave violation of one of the fundamental fair trial rights.54 Even for the most developed justice systems, investigating international crimes and the volume of evidence is challenging.55 The unique features of international criminal trials involve many evidentiary challenges. Sometimes evidentiary rules even have to be adapted to the particular circumstances of the international criminal trial. One of the challenges is that evidence gathering is extremely difficult when dealing with mass atrocity because of the violent nature and size of the situation under investigation. There is a need to adapt the rules to fit the size of these trials because the scope of trials dealing with international crimes is much greater than those dealing with ordinary crimes. Another challenge is that sometimes there is a greater temporal and geographical distance from the crime scene. The gathered evidence could be less reliable. In addition, the contextual elements (for example the intent of the perpetrator or the context of an international armed conflict) are challenging for the establishment of evidence (in court).56 Some authors doubt the assumption that international criminal trials are capable of determining which perpetrator(s) committed crimes to which victims during mass atrocities.57 Political factors can also distort fact-finding, when trials are

51_{Bergsmo, M., Bekou, O. & Jones, A., Complementarity After Kampala: Capacity Building and the ICC’s Legal}

Tools, Goettingen Journal of International Law, 2010, p. 802

52_{Bergsmo, M., Bekou, O. & Jones, A., Complementarity After Kampala: Capacity Building and the ICC’s Legal}

Tools, Goettingen Journal of International Law, 2010, p. 801

53_{Fry, E., Between show trials and sham prosecutions: the Rome Statute’s potential effect on domestic due}

process protections, Criminal Law Forum vol.3, 2012, p. 57

process protections, Criminal Law Forum vol.3, 2012, p. 57-58

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conducted in the same jurisdiction where the mass atrocities took place.58 Many problems are likely even worse in states that recently have experienced atrocities.59

On the other hand, domestic criminal jurisdictions are in a better position than international criminal tribunals (like the ICC) to tackle linguistic and cultural challenges.60 National authorities also have more direct and easier access to witnesses and evidence.61 The ICC and a third party state are confronted by more logistical challenges than a situation state. This is because they are more remote geographically and also rely on cooperation of the situation state to access evidence and witnesses (witnesses are crucial in international fact-finding62).63 It can be concluded that many states encounter serious problems in the hard task of properly adjudicating international crimes.

§ 1.2 Violations of Fundamental Rights

In Sudan, the US department of state has reported torture and beatings by Sudanese

government security forces of suspected political opponents and others. The law provides for access to a lawyer, but security forces often held persons incommunicado for long periods without access to their lawyers in unknown locations. The judicial branch of Sudan is

involved in cruel treatment of suspects as well. Political detainees are sometimes tortured and sentenced to death under special courts.64 In December 2005, the special court in Darfur sentenced a man to cross amputation after convicting him of armed robbery and murder.65 Another example is that Sudanese law does not contain an absolute prohibition on admission of statements obtained by torture.66

In Uganda, a number of persons in custody and suspects were beaten and tortured (some even

58_{See chapter 2}

process, 2006, p. 2

64_{US Department of State, Country Reports on Human Rights Practices, Sudan, 2005, § D Arbitrary arrest or}

detention

65_{US Department of State, Country Reports on Human Rights Practices, Sudan, 2005, § C Torture and other}

cruel, inhuman, or degrading treatment or punishment

66_{Human Rights Watch Briefing Paper, June 2006, Number 1, Lack of Conviction, The Special Criminal Court on}

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died) by security forces and/or the government.67 There are reports of disappearances due to incommunicado detention by government forces.68 It has been reported that judicial

corruption was a common problem.69 A lack of resources for the judicial institutions limits the right to a fair trial. There rarely was enough money to retain adequate counsel, for example.70 These examples71 show that the involvement in violations of fundamental rights of the executive and judicial branches of the states with which the ICC cooperates, form a very serious problem.

Chapter 2 Libya and the ICC

§ 2.1 What were the problems of the Libyan domestic judicial institutions and which fundamental rights of the suspects were being violated?

One of the reasons for the UN Security Council to refer the situation in Libya to the ICC72 was ‘the appalling situation in Libya’.73 The referral to the ICC was not limited to the goal of restoring the situation after the violence. The jurisdiction of the ICC was also meant to constrain and mitigate ongoing violence.74 Four months after the referral, the PTC I issued three arrest warrants for Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi for crimes against humanity.75 Some argue that this eventually has contributed to the collapse of the Gaddafi regime.76 The government of Libya is still struggling to maintain order and rebuild domestic

institutions.77 The overall security situation remains precarious and affects the judiciary with intimidation and attacks on judges, prosecutors and courts.78 Some militias have attacked state institutions (including courts) and have threatened judges, prosecutors and lawyers involved

67_{US Department of State, Country Reports on Human Rights Practices, Uganda, 2005, § A. Arbitrary or}

unlawful deprivation of life and § C. Torture and other cruel, inhuman, or degrading treatment or punishment

68_{US Department of State, Country Reports on Human Rights Practices, Uganda, 2005, § B. Disappearance} 69_{US Department of State, Country Reports on Human Rights Practices, Uganda, 2005, § E. Denial of fair public}

trial

70_{US Department of State, Country Reports on Human Rights Practices, Uganda, 2005, § E. Denial of fair public}

trial

71_{See chapter 2 for fundamental right violations in Libya.} 72_{See art. 13 (b) Rome Statute}

73_{UN Security Council Resolution 1970 (2011), S/PV.6491, p. 2}

74_{Stahn, C., Libya, the International Criminal Court and Complementarity, A Test for ‘Shared Responsibility’,}

Journal of International Criminal Justice, vol. 10, 2012, p. 326

Journal of International Criminal Justice, vol. 10, 2012, p. 329-330

76_{Patrick, S., Qaddafi’s arrest warrant: the false peace-justice tradeoff blogs.cfr.org (consulted on 3/1/16)} 77_{US council on foreign relations about the situation in Libya on cfr.org (consulted on 19/7/2015)}

78_{United Nations Human Rights Council Working Group on Arbitrary Detention A/HRC/WGAD/2013}

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in politically sensitive cases.79 In many detention centers, torture and other ill-treatment is an on-going and widespread concern. The armed brigades that emerged during the armed conflict in 2011 are in control of most detention facilities where torture takes place.80 It’s not hard to imagine that armed forces can be overzealous after armed conflicts.81 Ill-treatment is

facilitated by the facts that there is no effective, judicial oversight and that the armed brigades are not experienced in the handling of detainees or in conducting criminal investigations.82 These obstacles will hinder prosecutors and investigators in gathering evidence. The crime scene covers most of the country and Libya has not yet recovered from recent fighting.83 The trials of officials of the Gaddafi regime raise serious fundamental rights concerns. There were procedural flaws from the beginning. The vast majority of around 8000 conflict-related detainees is held without due process.84 Defendants have limited access to lawyers85 and key documents with evidence against them.86 Some suspects87 said that government officials did not let them have a lawyer present during interrogations88, did not reveal the interrogator’s identities, and had denied the defendants the opportunity to review incriminating evidence and the right to remain silent.89

S. Gaddafi was captured and is being held as a prisoner by rebel forces in Zintan, Libya.90 Here follows an overview of some(!) of the violations of the rights of S. Gaddafi. The

79_{Amnesty International, ICC decision to allow Abdallah al-Senussi to stand trial in Libya ‘deeply alarming’}

amidst overwhelming security vacuum, amnesty.nl (consulted on 21-7-2015)

80_{UN Human Rights Office of the High Commissioner, UN Support mission in Libya, Torture and deaths in}

detention in Libya, October 2013, p. 2

81_{See for examples of overzealous national courts: Trahan, J., Is Complementarity the Right Approach for the}

International Criminal Court’s Crime of Aggression? Considering the Problem of ‘Overzealous’ National Court Prosecutions about overzealous national courts)

85_{Thousands of detainees remain without meaningful access to a lawyer ciccglobaljustice.wordpress.com}

(consulted on 21/7/15)

86_{About fair trial rights in Libya hrw.org (consulted on 19/7/15)} 87_{Also S. Gaddafi and Al-Senussi}

88_{About such a situation the ECHR (Pavlenko v. Russia, §101) has expressed the view that: ‘an accused often}

finds himself in a particularly vulnerable position at that stage of the proceedings… In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer ’.

89_{About fair trial rights in Libya hrw.org (consulted on 19/7/2015)}

90_{United Nations Human Rights Council Working Group on Arbitrary Detention A/HRC/WGAD/2013}

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domestic authorities of Libya refused91 to surrender S. Gaddafi after arrest, while at the same time not making an admissibility challenge.92 The UN Working Group on Arbitrary Detention reports that the arrest and continued detention exist outside any official legal framework within Libya. Gaddafi’s actual location remains secret and he is being detained

incommunicado. The place where he is held, is not a proper detention facility and does not meet international standards. He has been kept in isolation since his apprehension, in breach of art. 7 and 10 (1) of the ICCPR. He has been detained for over 21 months without access to a lawyer, in breach of art. 14 of the ICCPR and art. 106 of the (Libyan) Criminal Procedure Code. Until November 2013 he had not been able to challenge the lawfulness of his detention before a court.93 The procedural right to a lawyer was an issue in the Al Senussi case as well.94 Despite repeated requests Al-Senussi did not have access to a lawyer between September 2012 and June 2014. From time to time he has been held in solitary confinement for prolonged periods of time.95 Libya has done little to provide Al-Senussi with basic due process rights.96 Al-Senussi is recently condemned to death by a Libyan court in Tripoli.97 Still, in the chaos of Libya, many human rights are being violated (including the rights of Gaddafi and Al Senussi). 98 In such a climate it’s hard to properly adjudicate international crimes.

§ 2.2 What was decided by the Pre Trial Chamber and the Appeals Chamber in the Gaddafi and Al Senussi cases? What is the position of the Chambers as to the DPT? In 2013 the Pre-Trial Chamber (PTC) found the Libyan national judicial system unavailable for the purpose of the case against S. Gaddafi. In view of the Chamber Libya was unable to secure the transfer of S. Gaddafi from the Zintan militia detention99 into state authority and the PTC was not persuaded that the Libyan authorities had the capacity to obtain the

91_{Libya is under an obligation to cooperate fully with the ICC. See United Nations Security Resolution 1970}

(2011) S/RES/1970, p.2

Journal of International Criminal Justice, vol. 10, 2012, p. 332. And see art. 19 Rome Statute

93_{UN Human Rights Council Working Group on Arbitrary Detention A/HRC/WGAD/2013 No.41/2013, p. 3} 94_{ICC, 31-05-2013, ICC-01/11-01/11 (Pre-Trial Chamber I in the case of: The Prosecutor v. Saif Al-Islam Gaddafi}

and Abdullah Al-Senussi, §215)

95_{Amnesty International, ICC decision to allow Abdallah al-Senussi to stand trial in Libya ‘deeply alarming’} amidst overwhelming security vacuum, amnesty.nl (consulted on 21/7/15)

96_{According to Human Rights Watch hrw.org (consulted on 21/7/15)}

97_{Gaddafi’s son Saif Al-Islam sentenced to death by court in Libya, theguardian.com (consulted on 29/7/15)} 98_{This was a description of just a part of the domestic problems.}

99_{In 2014 this was still a problem and Gaddafi’s trial proceeded by video conference, panarmenian.net}

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necessary testimony. It had also noted a ‘practical impediment to the progress of domestic

proceedings against S. Gaddafi as Libya has not shown whether and how it will overcome the existing difficulties in securing a lawyer for the suspect’.100 Libya did not have sufficient control over prison facilities to collect the necessary evidence101 and was unable to obtain S. Gaddafi.102 The PTC declared the case of S. Gaddafi admissible for the ICC103 and reminded Libya of its obligation to surrender S. Gaddafi in 2014.104 On 21 May 2014 the AC confirmed the decision on the admissibility of the case against S. Gaddafi.105

On 24 July 2014 the Appeals Chamber found that Libya had demonstrated that it exercised sufficient control over Al-Senussi’s detention facilities.106 The AC confirmed the findings of the PTC pursuant to art. 17 (3) Rome Statute that Libya has been able to obtain Al-Senussi and that the proceedings against him have progressed.107 The main distinguishing factor between the Gaddafi and the Al Senussi case is that the central authorities were unable to obtain Gaddafi. Guaranteeing a lawyer to Gaddafi would therefore be considerably more difficult.108

The PTC came to a different conclusion from the one that it reached in the Gaddafi case but the AC found that this does not demonstrate that the PTC committed any error.109 In the Al-Senussi case the PTC found that ‘Libya had collected a considerable amount of evidence and

that there was no indication that this would cease as a result of unaddressed security

concerns for witnesses or the absence of government control over certain detention facilities.’

The PTC found that it was possible to obtain the necessary evidence, which is the relevant question for the purposes of art. 17 (3) of the Rome Statute. The AC did not find this an

and Abdullah Al-Senussi, §215

101_{ICC, 24-07-2014, ICC-01/11-01/11 OA 6, (Appeals Chamber in the case of: The Prosecutor v. Saif Al-Islam}

Gaddafi and Abdullah Al-Senussi), §279

and Abdullah Al-Senussi, §217

104_{Gaddafi ICC trial to go ahead, say appeals judges, ciccglobaljustice.wordpress.com (consulted on 26/7/15)} 105_{ICC, 21-5-2014, ICC-01/11-01/11 OA 4 (Appeals Chamber in the case of: The Prosecutor v. Saif Al-Islam}

Gaddafi and Abdullah Al-Senussi), p. 3

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unreasonable conclusion in the circumstances set out.110 Apparently, the AC interprets the ‘inability-question’ of art. 17 (3) Rome Statute on a factual and case-by-case basis. Each case needs to be looked at on its own concrete facts to see whether a state is able to carry out its proceedings.111

The Chambers of the ICC and the Due Process Thesis

In this sub-chapter I will examine the ICC’s position as to the DPT. In chapter 3.1 I will

discuss art. 21 Rome Statute, which also contains relevant terms and sentences.112

The idea that the ICC should declare a case admissible whenever fundamental rights are being violated in domestic proceedings, is called the Due Process Thesis (DPT).113 In the Rome Statute there can be found different vague terms and sentences that are receptive to some kind of form of the DPT. In art. 17 (2) ICC it is stated that ‘in order to determine unwillingness in

a particular case, the Court shall consider, having regard to the principles of due process recognized by international law,…’. That last part of the passage seems to preserve a wide

space to be filled in. The other terms and sentences in art. 17 (and art. 20) seem to give less freedom for the application of the DPT. For example the sentence in art. 17 (2) (c) : ‘..the domestic

proceedings were not or are not being conducted independently or impartially..’ , was

probably meant to let the ICC intervene if such domestic proceedings were designed to make a defendant more difficult to convict. If the proceedings were designed to make the defendant easier to convict, the Court has to defer to the state (even if the proceedings were unfair).114

Since art. 17 (2) is not clear, the urgent question arises what the role is of the ICC as to fair trial rights violations by domestic institutions in proceedings.115 Either ‘inability’ or ‘unwillingness’ (art. 17 Rome Statute) of the state is sufficient for a chamber of the ICC to

112_{Nouri, A., The Principle of Complementarity and Libya Challenge to the Admissibility before the International}

Criminal Court, 2013, p.3

process, 2006, p. 3

115_{Almqvist, J., Complementarity and Human Rights: A Litmus Test for the International Criminal Court, 30}

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render a case admissible.116 ‘The Chamber will take into account only those irregularities that

may constitute relevant indicators of one or more of the scenarios described in art. 17(2) or (3) of the Statute.’117 The Chamber takes into account violations of national procedures, only if those violations prove the procedure to be conducted by ‘unwilling’ or ‘unable’

authorities.118 The AC stated that ‘the Court was not established to be an international court of human

rights, sitting in judgment over domestic legal systems to ensure that they are compliant with international standards of human rights’. Admissibility should not be triggered merely

because domestic proceedings do not fully respect the due process rights of a suspect.119 The AC also noted that, during the course of the negotiations of the Rome Statute, certain states emphasized that the ICC should not pass judgment on the operation of national courts in general.120 In the view of the AC, the lack of access to a lawyer is a violation that would not reach the high threshold for finding Libya ‘unwilling’.121 The violations of the accused’s right to a fair trial were not the primary reason for determining the Gaddafi case admissible.122 Violations of rights of the suspect per se are not sufficient to amount to ‘unwillingness’. The concepts of due process are not irrelevant to the Court’s consideration of unwillingness though. That the court should have regard to the ‘principles of due process recognized by

international law’ applies for all three limbs of art. 17 Rome Statute.123

Art. 17 is lex specialis on questions of admissibility, but the Rome Statute as a whole is still underpinned by the requirement in art. 21 (3) that the application and interpretation of law under the Statute ‘must be consistent with internationally recognized human rights’. The AC could declare a case admissible in which the proceedings are actually little more than a predetermined prelude to an execution, and which are therefore contrary to even the most basic understanding of justice. Other less grave instances that can be declared admissible arise

116_{ICC, 11-10-2013, ICC-01/11-01/11, (Pre-Trial Chamber I in the case of: The Prosecutor v. Saif Al-Islam}

Gaddafi and Abdullah Al-Senussi), § 169

117_{ICC, 11-10-2013, ICC-01/11-01/11, (Pre-Trial Chamber I in the case of: The Prosecutor v. Saif Al-Islam}

118_{S. Marinelli about the ICC in Libya, on aninternationallawblog.wordpress.com (consulted on 23/7/15)} 119_{ICC, 24-07-2014, ICC-01/11-01/11 OA 6, (Appeals Chamber in the case of: The Prosecutor v. Saif Al-Islam}

122_{Mégret & Samson, Holding the line on complementarity in Libya, Journal of International Criminal Justice,}

vol. 11, 2013, p. 572

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when the violations of the suspect’s rights are so egregious that it is clear that the

international community would not accept that the accused was being brought to any genuine form of justice.124 ‘For a case to be admissible under art. 17(2)(c) it must be shown that the

proceedings were not or are not being conducted independently or impartially and that the proceedings were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice’. In such a case, it is

arguable that a state is not genuinely prosecuting at all. Admissibility depends on the precise facts of the case.125 The ICC doesn’t seem to be very willing to yield to the DPT. The drafters of the Rome Statute did not want the words ‘due process’ in art. 17 (2) to mean complete compliance with fundamental rights. The meaning of the clause is not exactly clear in practice. Perhaps the drafters chose an ambiguous term on purpose in order to allow for an assessment on a case-by-case basis.126 It should be reminded that previous tribunals had inconsistent approaches in using human rights standards for the interpretation and application of law.127

In November 2014 the prosecutor128 of the ICC has also pointed out the importance of due process considerations. Prosecutor Bensouda stated that: ‘The on-going violence and alleged

threats to judges, prosecutors and lawyers do not augur well for a fair trial that respects all the rights of an accused person...’ Again the prosecutor: ‘Similarly, my Office remains very concerned about the number of individuals in detention, some of whom reportedly lack access to due process and may be subject to torture and death in custody. As the UN Secretary-General has noted: "the handover of all detainees to the effective control of the State is a prerequisite for the establishment of the rule of law in Libya." It is incumbent upon the Government of Libya to ensure that detainees are either tried within a reasonable time and with full respect for their due process rights or released.’ 129 The prosecutor on the other hand stated that the ICC cannot declare a case admissible solely on the basis that domestic

124_{The AC also mentions ‘violations so egregious that the proceedings can no longer be regarded as being}

capable of providing any genuine form of justice to the suspect’. ICC, 24-07-2014, ICC-01/11-01/11 OA 6,

(Appeals Chamber in the case of: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi), § 190

127_{Vasiliev, International Criminal Trials: A Normative Theory, Volume 1: Nature, University of Amsterdam,}

2014, p. 132

128_{Some argue that the Prosecutor’s view should have special weight in admissibility decisions. See Mégret F. &}

Samson M.G., Holding the line on complementarity in Libya, Journal of International Criminal Justice, vol.11, 2013, p. 588-589

129_{Eighth Report of the Prosecutor of the International Criminal Court to the UN Security Council pursuant to}

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procedures are not fully consistent with human rights.130 The prosecutor further states that the ICC should ‘only declare a case admissible on the grounds that due process rights have been

violated in those instances where, due to the complete absence of even the minimum and most basic requirements of fairness and impartiality, the national efforts can only be viewed as a travesty of justice’.131 That sounds like a moderate DPT.

§ 2.3 What was problematic in the cooperation between the ICC and the Libyan domestic authorities?

There are still tensions between the interim government and supporters of M. Gaddafi.132 In such circumstances it is not easy to find evidence and witnesses.133 Since 2011 a militia is holding S. Gaddafi in Zintan and he appeared at his trial trough video-conferencing.134 The Libyan government was not able to convince the Zintan militia to transfer S. Gaddafi to the capital. The Libyan court in Tripoli recently imposed the death penalty on S. Gaddafi.135 Ellis stated that for the justification of the decisions of the ICC, it needs an objective system to determine the judicial system of a state.136 The Chambers are less clear with respect to due process considerations.137 This lack of clarity justifies the worries of states about the power of the ICC to determine unilaterally whether a state is capable to set about judicial proceedings. To accept this decision-making authority and such an intervention on state sovereignty it is required that this happens on the basis of clear objective criteria.Some are suspicious about the ICC’s choice to declare Gaddafi’s case admissible because he is an emblematic figure and the fact that the whole international community is watching.138 Some argue that the ICC is

130_{The ICC prosecutors Ocampo and Bensouda denied the possibility to challenge the Libyan willingness and}

ability based on fair trial rights alone. S. Marinelli about the ICC in Libya, aninternationallawblog.wordpress.com (consulted on 28/9/15)

131_{ICC, 24-07-2014, ICC-01/11-01/11 OA 6 (Appeals Chamber in the case of: The Prosecutor v. Saif Al-Islam}

132_{Conflict in Libya: Will the New Government Gain Internal and Not Only External Support?}

ibtimes.co.uk/conflict-in-libya-will-the-new-government-gain-internal-and-not-only-external-support-217489 (consulted on 4/11/15)

134_{Gaddafi appears for trial via video conference, jurist.org (consulted on 27/7/15)} 135_{Death penalty for S. Gaddafi, volkskrant.nl (consulted on 28/7/15)}

137_{This is related to the absence of any external supervision on criminal tribunals. See Vasiliev, International}

Criminal Trials: A Normative Theory, Volume 1: Nature, University of Amsterdam, 2014, p. 156

138_{Mégret F. & Samson M.G., Holding the line on complementarity in Libya, Journal of International Criminal}

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involved in power politics and impartiality dilemmas.139 The OTP took very little time to conduct the admissibility test and the preliminary examination was expedited. According to Tillier, the ICC is now facing the reactions of this hurried decision.140 The hasty decisions worsened the relation between the ICC and the Libyan courts.141 Ellis presented the idea to establish a Third Party Advisory Council. This organ, independent from the ICC, could provide recommendation on whether a state is able to conduct

proceedings.142 143 This would increase legitimacy to admissibility rulings and states would no longer be justified to delay the process of engaging in proceedings.144

From the previous paragraphs it appears that the ICC states that it only wants to intervene with domestic proceedings in extreme situations. The ICC is employing a moderate due process thesis: the idea that courts should adhere to basic due process rights at least. This is slightly different than the DPT (see also chapter 3.1).145

Chapter 3 Interfering with States

§ 3.1 Is the engagement by the ICC of positive complementarity146(national capacity

building) and shared responsibility to improve domestic judicial processes legitimate in light of the principle of complementarity (the ICC’s initially intended role), the

sovereignty of the state147, the Rome Statute and the idea that the ICC is no human

rights court/appeals court ?

Journal of International Criminal Justice, vol. 10, 2012, p. 327

140_{Tillier, J., The ICC Prosecutor and Positive Complementarity: Strengthening the Rule of Law?, International}

Criminal Law Review, vol. 13, 2013, p. 519

141_{Tillier, J., The ICC Prosecutor and Positive Complementarity: Strengthening the Rule of Law?, International}

Criminal Law Review, vol. 13, 2013, p. 520

Florida Journal of International Law, 2002, p. 240-241, § 6

143_{Perhaps NGO’s that are independent from states and the ICC can help in the evaluation of a state’s legal}

system. See also Tillier, J., The ICC Prosecutor and Positive Complementarity: Strengthening the Rule of Law?, International Criminal Law Review, vol. 13, 2013, p. 541

2013, under § In Favor of Shared Responsibility

process protections, Criminal Law Forum vol.3, 2012, p. 52. Is it in violation of the equality principle, that a

case in which a suspect suffers grave fundamental right violations, will be declared admissible only when the case happens to be one in which there were decisive signs of inability or unwillingness (like when there is no sufficient evidence collected)?

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In the international community as a whole, the question whether domestic courts or international tribunals should investigate and prosecute international crimes is still

relevant.148 In the past states preferred to resolve matters through diplomatic negotiations and rarely submitted matters to international tribunals. In most situations states don’t like to surrender responsibility to an international body.149 Prosecutions of international crimes were viewed as a ‘historical anomaly’. Slowly states started to participate in the prosecution of such crimes. The creation and existence of the ICC should accelerate this participation of states.150

Art. 5 Rome Statute limits the ICC’s jurisdiction to the most serious crimes of concern to the international community as a whole.151 The complementarity principle152 means that a case becomes inadmissible before the ICC if there are national investigations and/or prosecutions, unless the domestic judicial institutions are unwilling or unable to investigate or prosecute.153 The principle of complementarity is central to the system of the Rome Statute.154 States have the primary responsibility to investigate and prosecute international crimes. Depriving the state of its criminal jurisdiction over cases is a very special prerogative.155 From the beginning, the ICC was not meant to deal with every case. The ICC has a specific mandate and only comes into play when national proceedings are not forthcoming. This primacy of national courts protects the sovereignty of states.156 Complementarity ensures that judgments of domestic courts are respected and not replaced by judgments of an international court.157

148_{See for example: Dutch propose international tribunal to prosecute suspects in MH17 atrocity,}

theguardian.com (consulted on 30/7/15)

149_{Charney, J.I., International Criminal Law and the Role of Domestic Courts Editorial Comment, American}

Journal of International Law, 95, 2001, p. 122

151_{Rule 58 (4) Rules of Procedure and Evidence : The Court shall rule on any challenge or question of}

jurisdiction first and then on any challenge or question of admissibility. See also art. 53 ICC

152_{Preamble and art. 17 Rome Statute}

153_{Trahan, J., Is Complementarity the Right Approach for the International Criminal Court’s Crime of Agression?}

Considering the Problem of ‘Overzealous’ National Court Prosecutions, Cornell International Law Journal, vol.45,

2012, p. 571

Justice, vol.11, 2013, p. 577

Justice, vol.11, 2013, p. 578

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The accused enjoys advantages as well as he can be prosecuted by domestic authorities and tried before a domestic court.158 Complementarity brings justice closer to victims and affected communities.159

There are also more practical reasons to maintain the principle of complementarity. The ICC can only settle a small number of cases while many situations produce numerous cases (grave crimes generally contain an enormous amount of materials160).161 For example after the genocide in Rwanda, there were 110.000 genocide suspects in detention.162 Complementarity is developed to ensure effective prosecution of international crimes.163 It ensures that the ICC

is not overloaded with cases, which it could not handle because of resource constraints.164 Will this resource constraint become more burdensome now that the ICC in some cases is willing to interfere with states when egregious violations occur during proceedings? Spending the resources in capacity building to prevent states from committing such violations could be a way to anticipate on an overload for the ICC. The ICC’s role has already been stretched in different ways.165 It should also be kept in mind that the ICC limits itself to the gravest crimes and that this will leave an impunity gap if states don’t take care of other crimes that don’t belong to that category.166

Another reason for supporting domestic institutions is the fact that the complementarity system is principally based on the recognition that exercising national jurisdiction is not only a right, but also a duty of states.167 States remain responsible and accountable for the

158_{The fact that the suspect may challenge the admissibility of a case under art. 19 (2) (a) may support this}

conclusion. Benzing, M., The complementarity Regime of the International Criminal Court: International

Criminal Justice between State Sovereignty and the Fight against impunity, Max Planck Yearbook of United

Nations Online, vol.7, 2003, p. 598

159_{See also Bergsmo, M., Bekou, O. & Jones, A., Complementarity After Kampala: Capacity Building and the}

ICC’s Legal Tools, Goettingen Journal of International Law, 2010, p. 800

160_{Human Rights Watch, Making Kampala Count, Advancing the Global Fight against Impunity at the ICC}

Review Conference, 2010, IV Complementarity, B. Overcoming inability: Bolstering a state’s capacity to try

serious international crimes

161_{Even when the ICC intervenes, national prosecutions and trials remain important. Human Rights Watch,}

Making Kampala Count, Advancing the Global Fight against Impunity at the ICC Review Conference, 2010, IV

Complementarity, A. Introduction

163_{Van der Merwe, H.J., The Show Must Not Go On: Complementarity, the Due Process Thesis and Overzealous}

Domestic Prosecutions, International Criminal Law Review, 2015, p. 55

164_{Benzing, M., The complementarity Regime of the International Criminal Court: International Criminal Justice}

between State Sovereignty and the Fight against impunity, Max Planck Yearbook of United Nations Online,

vol.7, 2003, p. 599

Justice, vol.11, 2013, p. 580

166_{ICC-OTP 2003, Paper on some policy issues before the Office of the Prosecutor (icc-cpi.int), p. 7} 167_{Preamble of the Rome Statute}

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investigation and prosecution of crimes committed under their jurisdiction. National systems are even expected to adhere to international standards.168 Another advantage of

complementarity is that states generally have the best access to evidence and witnesses, and crimes are normally best adjudicated in the state where they have been committed.169 On the other hand, complementarity only functions properly when states have capable domestic institutions, so there is no justification to maintain complementarity when such institutions are not able to adjudicate. States that join the Rome Statute know from the beginning that its terms are ambiguous, that there has been a lot of discussion about its precise meaning170 and that domestic institutions should have a minimum quality (to forestall unjustified delays and the lack of independent and impartial proceedings, etcetera). This state of affairs relativizes a potential increased interference of the ICC.

In the Tadic case, the ICTY has conveyed the message that law and the universal need for justice don’t allow states to successfully raise the concept of sovereignty against human rights. The same idea echoes in the ICC’s complementarity mechanism, which is a product of the tension between the state’s desire to retain state sovereignty and the desire of the

international community to interfere into the domestic field to end impunity. It is necessary to cross the borders that function as a shield.171

Furthermore, if the ICC removes the possibility for a state party to remain inactive in investigating and prosecuting international crimes, thus in a way forcing a state to be active (states are free to sign the Rome Statute but for example Libya was referred to the ICC by the UN Security Council.), the question arises to what extent such a prosecution and investigation should be done properly.172 Are the domestic, judicial deficiencies problems that should be addressed on the basis of the concept of shared responsibility173? The system of the Rome Statute demands and legitimizes state parties to prosecute and investigate cases. This is done

168_{ICC-OTP 2003, Paper on some policy issues before the Office of the Prosecutor (icc-cpi.int), p. 5} 169_{ICC-OTP 2003, Paper on some policy issues before the Office of the Prosecutor (icc-cpi.int), p. 4}

170_{The idea that human right treaties are living instruments is popular (the Rome Statute is no human right}

treaty but it does contain provisions with fundamental rights. See for example art. 21, 55 and 67 ICC). Letsas, G., The ECHR as a Living Instrument: Its Meaning and Legitimacy, University College London, 2012, p. 1-2

171_{See also Nsereko, D.D.N., The International Criminal Court: Jurisdictional and Related Issues, Criminal Law}

Forum, vol.10, 1999, p. 110

172_{See also Benzing, M., The complementarity Regime of the International Criminal Court: International}

Criminal Justice between State Sovereignty and the Fight against impunity, Max Planck Yearbook of United

Nations Online, vol.7, 2003, p. 600

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in the name of the shared values of the international community as a whole.174 Domestic trials serve the interests of the whole international community as well.175 This stimulation and legitimization is given despite the considerable danger that violations of fundamental rights are committed.176 The concept of shared responsibility is perhaps justified by the idea, and the awakening that, some interests concern the whole international community. On the other hand, these problems are not the direct responsibility of the ICC. There are more appropriate legal forums and the ICC does not have the enforcement power to fix such

problems (see the chapter below).177 When the unique system of complementarity was introduced, states couldn’t have foreseen it’s potential to properly adjudicate international crimes and all the practical implications. Effective national proceedings are an issue since the ICC exists.178 Rojo has argued that the idea that the court ‘shall be complementary to national criminal jurisdictions’179 implies that the court is intended to complement, supplement or assist the work of national institutions in domestic proceedings.180

However, others argue that the role of the ICC in positive complementarity should be limited. At the Review Conference in 2010, several delegations expressed fears that the ICC would rebuild judicial systems.181 This would prevent that capacity building doesn’t interfere with

174_{See also Van der Merwe, H.J., The Show Must Not Go On: Complementarity, the Due Process Thesis and}

Overzealous Domestic Prosecutions, International Criminal Law Review, 2015, p. 63-65

175_{Since such domestic proceedings involve “the most serious crimes of concern to the international community}

as a whole’ (preamble Rome Statute), it may be said that the domestic prosecuting authority acts, and must be seen to act, in the name of the shared values of the international community – one of which values is a

minimum of respect for due process in the pursuit of criminal accountability. From this broader perspective, it may be argued that the prosecution of serious international crimes, regardless of where they take place, must communicate as much about international standards of fairness and the supremacy of the rule of law as it does about the international community’s moral outrage over acts which are deemed to be universally offensive. Van

der Merwe, H.J., The Show Must Not Go On: Complementarity, the Due Process Thesis and Overzealous

Domestic Prosecutions, International Criminal Law Review, 2015, p. 64-65

176_{The relation between states and the ICC is however not the same as the relation between states and the ad}

hoc tribunals. The ad hoc tribunal’s custody of persons created a particular relationship of responsibility vis-à-vis the accused that raised non-refoulement concerns. Mégret F. & Samson M.G., Holding the line on

complementarity in Libya, Journal of International Criminal Justice, vol.11, 2013, p. 575

177_{See also Van der Merwe, H.J., The Show Must Not Go On: Complementarity, the Due Process Thesis and}

Overzealous Domestic Prosecutions, International Criminal Law Review, 2015, p.56-57

178_{See also Bergsmo, M., Bekou, O. & Jones, A., Complementarity After Kampala: Capacity Building and the}

ICC’s Legal Tools, Goettingen Journal of International Law, 2010, p. 795

179_{§ 10 Preamble Rome Statute}

vol. 18, 2005, p. 838-839

181_{Currie, J.H., Taking Stock of the Kampala International Criminal Court (ICC) Review Conference, University of}