Complementarity in Practice: The ICC’s Inconsistent Approach in the <i>Gaddafi</i> and <i>Al-Senussi</i> Admissibility Decisions

Complementarity represents a seminal feature of the International Criminal Court (ICC), created as an instrument of last resort. It translates into the legal rules of Article 17 of the Rome Statute, which need to be developed through the Court’s judicial activity. The challenges brought by Libya to the admissibility of the cases against Saif Gaddafi and Abdullah Al-Senussi offered the ICC a chance to clarify some aspects of complementarity. In particular, they touched upon two crucial elements of Article 17: the criterion of “otherwise” inability to carry out proceedings, and the extent to which fair trial breaches matter for the purpose of assessing unwillingness. The Pre-Trial Chamber I, while dismissing the challenge concerning Gaddafi, held the case against Al-Senussi inadmissible before the Court. The Appeals Chamber subsequently upheld both these holdings. This paper, carrying out a comparative analysis, points out the inconsistency affecting the two decisions, which is due to a conflicting assessment of the same element: Libya’s failure to provide the accused with legal counsel. The author contends that, in the Al-Senussi case, the lack of legal representation resulted in Libya’s inability and unwillingness to carry out the trial. Accordingly, the Chambers should have held the case admissible before the Court, as they did with Gaddafi. Also, the author suggests that incoherent approaches to similar situations expose the Court to a recurrent accusation: that of being heavily influenced by political factors.