International Criminal Court complementarity and non-state actors’ proceedings

The law of complementarity codified by rules on the admissibility of cases is analysed concerning proceedings organised by non-State actors: (i) where the actors exercise substantial control over part of territory while vowing to depose a government of the State, (ii) where the actors break away from the territorial State with substantial military support of a foreign State, and (iii) where a non-State entity has accepted the ICC's jurisdiction. In particular, the general admissibility rules are considered to determine whether they could be said to apply to non-state actors. The arguments for the inclusion of such actors in the complementarity regime are discussed alongside arguments from their exclusion. Both arguments are critically examined to determine whether they have any merit considering the stated objectives of the ICC Statute. The following research question is examined: when and under what circumstances do non-state criminal proceedings fit with admissibility rules in the Rome Statute, and to what extent should a genuine prosecution by a lawfully constituted rebel tribunal be regarded as prosecution by a State (whether de facto or de jure) such that the case is barred before the ICC? To a larger degree, the question has yet to be answered by the drafters of the Rome Statute, and international law scholars and members of the ICC judiciary have focused on whether such proceedings ought to be considered for complementarity purposes. This thesis aims to provide some insights into the extent to which the terms of the debate over this issue could be transformed into a normative framework that the ICC might use to address the issue, should it arise in a particular situation. It focuses on complementarity regarding three categories of non-state actors: rebels fighting to replace the government of a territorial state, separatists, and contested entities with a claim to statehood. Seven substantive chapters have been used to answer the above question. In so doing, this thesis makes a few contributions to knowledge. Firstly, it marshals the rules and practices of the ICC and analyses how it appears to have considered the issue of trials conducted by non-state armed actors. Secondly, it challenges existing assumptions about ruling such actors in or out of the complementarity regime. It shows that the International Criminal Court may accommodate such trials for a limited purpose. Thirdly, it devises four principles that may guide the ICC in dealing with complementarity concerning the three types of non-state actors identified above. The first principle is that the complementarity regarding non-state actors must be construed as an implication flowing from case law on jurisdiction and prosecutorial discretion under Article 53 (1)(2) of the ICC Statute. The second is that including criminal trials by non-state actors should generally be taken as inconsistent with the admissibility rules under Article 17 of the Rome Statute. The third covers the idea that the unlawful nature of non-state actors should not mean that trials undertaken by non-state actors should be ignored to assess ICC's complementarity. The final principle proposed is that complementarity to non-state actors should be extended only when there is credible evidence to show that such actors are able and willing to conduct proceedings concerning crimes contemplated by Article 5 of the Rome Statute.