The Flipside of Complementarity: Double Jeopardy at the International Criminal Court

A variety of human rights dilemmas were left unresolved in Rome. One issue likely to generate controversy is the relationship between the prohibition of double jeopardy, complementarity and minimal fair trial protections for defendants. Under the Rome Statute’s complementarity framework, the International Criminal Court (ICC) must defer to domestic proceedings if a state is handling the same case and the national authorities are not ‘unable or unwilling’ to prosecute the same person. Much ink has been spilt on Article 17 of the Statute and the ensuing case law, but less understood is the flipside of complementarity: under what circumstances is a state not allowed to prosecute defendants over whom the ICC has already exercised jurisdiction? With the case against Germain Katanga in the backdrop, this article argues that the ICC should take a more pro-active role in supervising secondary domestic proceedings against people previously convicted or acquitted in The Hague. Katanga’s return to the Democratic Republic of Congo to serve the remainder of his ICC-mandated sentence triggered a domestic trial implicating a variety of fair trial issues. Under a seldom-used provision in the Rome Statute, Article 108, the ICC Presidency was required to validate or reject Congo’s proceedings against Katanga. Not only did the Presidency allow his case to proceed, it prospectively abdicated any international oversight of national trials, while advancing sweeping normative claims about the irrelevance of human rights to the permissibility of secondary domestic trials. Three years later, Katanga languishes in a Congolese prison with little prospect of justice. Although the Katanga case is based on a unique set of facts, analogous developments in the cases against Saif Al-Islam Gaddafi and Jean-Pierre Bemba point to the growing likelihood of secondary domestic proceedings against people previously tried by the ICC, which in turn raises fundamental questions about the Rome Statute’s prohibition of double jeopardy and its relationship to complementarity and fair trial guarantees.