Holding the Line on Complementarity in Libya: The Case for Tolerating Flawed Domestic Trials

Abstract

The debate on whether violations of due process should be factored into the International Criminal Court’s evaluation of the admissibility of a case has recently been rekindled as a result of the indictment against Saif Gaddafi. This article seizes the opportunity to give the issue a fresh look. It argues that, in addition to the well-known textual arguments that this is not what complementarity is about, there is a strong and principled policy case that the ICC is not, and should not behave as, a human rights court. This case is based on an appreciation of the sovereign and transitional justice needs of state and society, an understanding of the functional division of labour between international criminal and human rights courts, and an application of the margin of appreciation surrounding the notion of a fair trial. Nonetheless, the article also acknowledges that there may be cases where violations of due process reach such a level that a trial cannot be described as a trial at all and reveal, in fact, an unwillingness to truly prosecute someone. However, such a determination is best left until after the conclusion of such proceedings, lest domestic judicial systems’ auto-corrective capacity be preempted.

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