The icc’s Libya cases raise interesting questions about the icc’s interaction with national jurisdictions that retain the death penalty. In the case against Abdullah Al-Senussi, the icc ruled he could be tried in Libya—his case was ‘inadmissible’—despite Libya retaining the death penalty and despite fair trial concerns. Yet, Rome Statute Article 21.3 directs the Court to be consistent with international human rights. Is it consistent with international human rights to indirectly authorize trial in a country that retains the death penalty, under conditions that cannot guarantee at least core due process protections? This article argues that it is not. Furthermore, this article argues that the Appeals Chamber in Senussi was insufficiently concerned with due process violation in the national jurisdiction—in a situation one could well-anticipate a former high-level regime official would not receive a fair trial post-regime change.
This past June, in Kampala, Uganda, at the first Review Conference on the International Criminal Court, States Parties forged an historic agreement, amending the Rome Statute to define the crime of aggression, and agreeing on conditions for the exercise of jurisdiction. While the definition had been essentially agreed upon during years of earlier negotiations, delegations in Kampala had to grapple with a host of complex issues related to the exercise of jurisdiction. They resolved that jurisdiction will be triggered both through Security Council referrals, as well as State Party or Prosecutor referrals, and the related "filter" mechanisms to achieve this. This result represented a significant breakthrough that was pragmatic, designed to avoided potential conflict with the U.N. Charter, and designed to protect the Court's independence. The final agreement, however, also contained compromises, excluding the acts of Non-States Parties from jurisdiction, allowing States Parties to opt out of jurisdiction, and delaying the exercise of jurisdiction until at least 2017.
The article focusses on the final negotiations this December during the Assembly of States Parties meeting, where states decided to activate the icc’s jurisdiction over the crime of aggression. The article commences with a brief background on prosecuting the crime, the negotiation of the definition and conditions for the exercise of icc jurisdiction over it, and the Kampala Review Conference adoption of the crime. It then discusses the dispute as to jurisdiction that developed post-Kampala, and how it was apparently resolved at the December meeting. The article then assesses the potential impact of activating the icc’s 4th crime in terms of deterrence, and whether the December activating resolution actually resolved the jurisdiction dispute, taking the view that it did not, and that the activating resolution was arguably an improper modification of the Kampala agreement and jurisdiction may not be as limited as what appears to have been agreed.