Primacy or Complementarity? – Filling the Ukrainian Special Tribunal’s Blanks on Concurrent Jurisdiction – Indian Blog of International Law

Angad Singh Chadha and Shubhamanyu Lahiri

Introduction

Nearly four years after the commencement of the Russian Federation’s full-scale invasion of Ukraine, the Committee of Ministers of the Council of Europe concluded a bilateral agreement with Ukraine establishing the Special Tribunal for the Crime of Aggression against Ukraine (STCoA). The Tribunal forms part of the Council of Europe’s broader efforts to support Ukraine and ensure accountability for what it characterises as Russia’s act of aggression. At a ministerial meeting  in Chisinau , Moldova, representatives of 36 States and the European Union expressed their support for the initiative. The EU further reaffirmed its commitment of €10 Million towards an advanced preparatory team tasked with developing the institutional, logistical, and organisational foundations of the Tribunal.

SPONSORED

While the institutionalisation of the STCoA remains ongoing, a significant milestone has been achieved through the completion of its Statute. Nevertheless, notwithstanding the Tribunal’s importance as a development in international criminal justice and the considerable political support it has garnered, certain aspects of its legal framework warrant closer scrutiny. This post examines one such aspect, i.e., Article 17,which embodies the principle of ne bis in idem.

It is argued that Article 17 lacks sufficient clarity regarding the Tribunal’s application of ne bis in idem within a system of concurrent jurisdiction. Article 17 brings out this complexity with the co-existence of paragraphs 2 and 4. Paragraph 2 opts to invite national courts as the Courts of first instance. On the other hand, Paragraph 4 omits national court jurisdiction in favour of the Tribunal as the Special Forum. This creates a dilemma of choice within the provision.

This is notably different from the text of the International Criminal Tribunals for Yugoslavia (ICTY) and Rwanda (ICTR) or the Rome Statute, where the hierarchy of courts is well charted out as discussed below. Therefore, the provision as in the Statute of the STCoA does not specifically indicate whether the Tribunal is intended to operate according to the model of primacy, as employed by the International Criminal Tribunal for the former Yugoslavia  [Articles 9 and 10] and the International Criminal Tribunal for Rwanda [Articles 8 and 9], or the model of complementaritycodified in the Rome Statute of the International Criminal Court (ICC) [Article 20 and Article 17]. This ambiguity raises important questions concerning the relationship between the Tribunal and domestic courts, as well as the scope of protection afforded against multiple prosecutions.

To address these concerns, this post proceeds in three parts. Part I outlines the principle of ne bis in idem within the context of concurrent jurisdiction between national and international criminal courts. Part II examines the operation of the principles of primacy and complementarity in applying ne bis in idem through an analysis of relevant statutory provisions and jurisprudence. Drawing upon a comparative assessment between both models. Part III concludes by deciding the most effective model for operationalising Article 17 of the Statute. 

Ne bis in idem and Concurrent Jurisdiction

The doctrine of ne bis in idem, as introduced in international criminal law, encapsulates the principle that no one shall be tried twice for the same matter. While the precise scope of the principle, whether determined by the sameness of offence or the sameness of the underlying conduct varies across jurisdictions, this post focuses exclusively on its operation within a system of concurrent jurisdiction between an international criminal tribunal and domestic courts. Such vertical national-supranational concurrence arises where both international and national courts possess jurisdiction. Within this setup, the relationship between the two levels of jurisdiction is structured between two competing models: primacyand complementarity.

Under the former, exemplified by the International criminal ad hoc tribunals in Yugoslavia and Rwanda, tribunals possess ultimate authority and require national courts to defer to their jurisdiction, i.e., they gain primacy. The Nasser Oric Appeals Ruling (2016) explicitly confirms the jurisdiction of the international tribunals under the statute (Para 6). Furthermore, the Semanza Decision (2000) of the ICTR explains the jurisdiction of the tribunal over the national decisions in cases of international humanitarian violations (Para 74).

Conversely, under the model of complementarity, as codified under the Rome Statute, national courts retain the primary responsibility to investigate and prosecute international crimes, with the international tribunal exercising jurisdiction only where domestic authorities are unwilling or unable genuinely to do so.

Having provided a categorical description of key terms and concepts, the following sections build on this by evaluating precedent and literature on these two systems to gauge how an absence of either system under Article 17 is a dangerous lacuna, that may very well render the whole institution void.

Primacy, Complementarity and Ne Bis Id Idem

The ICC practices the doctrine of complementarity, maintaining a critical balance between state sovereignty and international criminal justice. However, it is also the only international court to do so. The two ad hoc tribunals, the ICTY and ICTR, followed the principle of  primacy, as did the hybrid tribunals, such as the Special Courts of Sierra Leone [Articles 8 and 9], Special Tribunal for Lebanon [Articles 4 and 5] and the Executive Chambers in the Courts of Cambodia [Chapter II].

By becoming the courts of first resort and having the kompetenz to decide on referrals, the ad hoc tribunals were effectively able to lay down the due process requirements for trials by national courts. Both the ICTY and ICTR statutes had expressly mentioned that ne bis in idem is applicable on the tribunals for crimes tried by national courts, unless they are ordinary crimes.

Furthermore, as Marong and Jalloh argue, the ICTR laid down the international minimum standard that national courts must observe to receive referrals from the tribunal. One such requirement was that the accused should be charged only under offences of a similar gravity within their domestic laws as their international statutory counterparts (Page 410).

Basing their reasoning on this argument, the ICTR, in its Trial Chamber Decision of Prosecutor v Michel Bagaragaza (2006) notably refused extradition to the Netherlands, as he would have been charged merely under culpable homicide (Para 16). The tribunal also used the ‘same conduct’ test when requesting Belgium to defer the matter of Theoneste Bagosora (1996), deeming that one of the conditions to request a deferral must be that the investigating state must carry such investigation relating to one of the crimes within the jurisdiction of the court (Part II – Analysis on Merits). This principle was also applied by the ICTY when the Tribunal deferred Dusko Tadic’s case from Germany, which later resulted in the landmark ruling of Prosecutor v Dusko Tadic (1995), which kickstarted post Nuremberg/Tokyo international criminal jurisprudence (Paras 23-24).

Although present in the jurisprudence of the ad hoc tribunals, the ‘same conduct test’ was given life and made a requirement for triggering ne bis in idem by the ICC in the Pre-Trial Chamber’s judgement in Prosecutor v Thomas Lubanga (2006) (Para 31). However, contrary to its predecessors, the ICC required that complementarity under Article 17 can only be proved if the national court “unsuccessfully” tried the accused for the same or similar conduct. This requirement has often been under scrutiny, with counsel arguments such as those made in Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Muhammad Hussein Ali (2011) critiquing the principle, stating that instead of enforcing complementarity, this model encourages in establishing the primacy of the court by cutting off national jurisdiction (Para 43).

Finally, in international criminal jurisdiction, ne bis in idem mandates the finality of judgement. For example, the ICTR in Laurent Semenza v Prosecutor (2000) (Para 74) and the ICC in The Prosecutor v Saif Al Islam Gaddafi (2019) (Para 38) have held the finality of a verdict to be mandatory for ne bis in idem to apply, which means that in case of non-finality, international tribunals have the power to take over the investigation.

Ne bis in idem and the STCoA framework

Lonardo  maps the objects and purposes of Article 17, the ne bis in idem principle and the classificatory void of a sham trial. He also mentions the functions of paragraphs 2 and 4, which ensure there are no subsequent trials, the former being on just and fair proceedings conducted in national courts (Pages 11-13). Yet, the analysis makes it more obvious that there exists a serious gap as to which court becomes the primary forum for prosecution. Paragraph 2 mentions cases which go to the national courts first, while paragraph 4 mentions cases which go to the Special Tribunal first. But that cannot remain interchangeable at discretion.

Having determined the adaptability of the ne bis in idem principle in the two forms of concurrent jurisdiction, we believe primacy of the special tribunal would be best suited to advance justice. While Ukraine has made strides in adapting to international standards of criminal jurisdiction, especially post 2014 and 2023, the judicial mechanisms in Ukraine are not fully suited to international criminal practice. Providing the tribunal primacy would not only allow for a better model of international criminal procedure and substance, it would also allow the Ukrainian domestic legal system to develop by having a secondary role, similar to how Rwandan jurisprudence evolved by following the ICTR’s directions. Either way, it is the responsibility of the drafting committee of the statute of the Special Tribunal to make a choice. The bottom line is that it must not be left blank.

(This is a Guest post by Angad Singh Chadha and Shubhamanyu Lahiri. Angad is a 4^th year law student at the Jindal Global Law School, and Shubhamanyu is an incoming student at the Leiden University, Netherlands.)