Fair Trials and Complementarity Experts’ Roundtable Discussion

Keynote speaker Judge Howard Morrison, of the ICC Appeals Chamber, elaborated on what is meant by a ‘fair trial’ and discussed fairness as an inherent value that is reflected in legal frameworks and instruments. From a judicial perspective, complementarity is a multi-step analysis, requiring consideration of threshold questions prior to assessing a state’s willingness or ability to try a case. Judge Morrison emphasised that ‘positive complementarity’ may allow the Court to support domestic systems and encourage the rule of law, which he viewed as important for addressing global challenges.

The first panel, moderated by IBA ICC & ICL Programme Director, Ms Aurélie Roche-Mair, discussed fair trials in the context of domestic prosecutions for ICC crimes. Dr Yvonne McDermott Rees (Senior Lecturer, Bangor University) addressed how minimum guarantees of fairness and human rights frameworks are incorporated at international and domestic levels. Professor Jennifer Trahan (New York University) discussed the role of the ICC as a standard-setting institution. Ms Marieke Wierda (Rule of Law Coordinator, Dutch Ministry of Foreign Affairs) discussed ‘positive complementarity’ in the context of rule of law support, and outlined some of the challenges for strengthening domestic legal systems. Finally, Mr David Hooper QC (Counsel for Germain Katanga, ICC) addressed the extent to which the ICC considered the Democratic Republic of the Congo’s capacity to meet fair trial requirements, both when the ICC considered the admissibility of Mr Katanga’s case prior to trial, and again when assessing the DRC’s plans to try Mr Katanga following his ICC conviction.

The second panel, moderated by Professor Carsten Stahn (Leiden University), focused on the ICC’s interactions with Libya. Ms Elham Saudi (Director, Lawyers for Justice in Libya) outlined challenges in Libya deriving from lack of security, political instability, weak rule of law, and a culture of impunity. Ms Madeleine Schwarz (Trial Attorney, ICC OTP) discussed the steps the OTP has taken according to its policies and mandate in Libya, where it has both ongoing investigations and outstanding arrest warrants. Dr Mark Ellis challenged the OTP’s position regarding its Libya cases arguing that new facts require a re-opening of the Al-Senussi case by the OTP while Professor Kevin Jon Heller (University of Amsterdam) underscored the importance of adhering to the ICC’s founding treaty, arguing that the Rome Statute does not allow the Court try cases on the sole basis that state trials do not meet international standards of fairness.