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 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. This conclusion, although not surprising, hides a question on the relationship of the Court with non-state entities. 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. The LNA maintains that he is facing justice in Libya, implicitly excluding the surrender of the suspect to the ICC. Already wanted by the Court since August 2017, Al-Werfalli remains at large. 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). Implementing one or the other is not merely an intellectual exercise, and which alternative is taken will certainly have a direct impact on the effectiveness of international law as perceived by ANSAs. While some views take into account their consent, others are based on their relationship with territorial States and the rules previously accepted by States' authorities. When dealing with ANSAs, however, the reasons why they are obligated by both IHL and IHRL lie beyond merely accepting the existence of their obligations. A classical approach to the traditional theory of sources of international law relies on the consent given by States to be bound by an international rule. One relevant issue is related to the reasons why they are bound by international law. ![]() ![]() Although contemporary public international law still seems to be predominantly State-oriented, it is undeniable that a variety of these non-state entities have played quite important roles, giving rise to many discussions and complex debates. In the last few decades, the role and status of armed non-state actors (ANSA) have become essential topics of analysis and discussion in order to better understand current international humanitarian law (IHL) and international human rights law (IHRL) dynamics.
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