Should the ICC assess complementarity with respect to non-state armed groups?: Hidden questions in the second Al-Werfalli arrest warrant

On 4 July 2018, the International Criminal Court (ICC, the Court) issued a second warrant for the arrest of Mahmoud Mustafa Busayf Al-Werfalli, a commander within General Haftar's Libyan National Army (LNA). Already wanted by the Court since August 2017, Al-Werfalli remains at large. The LNA maintains that he is facing justice in Libya, implicitly excluding the surrender of the suspect to the ICC. As a result, in the second arrest warrant the ICC Pre-Trial Chamber I (PTC I) addressed the admissibility of the case and declared that the proceedings initiated by the LNA do not satisfy the requirements of the complementarity test. This conclusion, although not surprising, hides a question on the relationship of the Court with non-state entities. It is a question the PTC I deliberately avoided answering: is the ICC required to assess its complementarity with respect to criminal prosecutions undertaken by non-state entities in general, and with non-state armed groups (NSAG) in particular? ICC Judge Kovács, presiding over the chamber, had already suggested that a rigid approach should be rejected when dealing with entities having both undisputed control over a territory and the capacity to exercise criminal jurisdiction. Moving from that hint, this article first shows that the issue is not unique to the Libyan situation and that the ICC can easily find itself confronted with criminal proceedings run by courts of NSAGs. It then restricts the analysis to NSAGs armed groups that control a territory, are capable of exercising criminal jurisdiction and have a legal basis in international law to do so. Finally, it submits that the combined effect of the ne bis in idem principle and the command responsibility regime under the ICC Statute provides a solid argument allowing the Court to answer the question in the affirmative.