“It has stopped raining! Now, come outside, Muslims, we are going to play.” These are the words the Office of the Prosecutor (OTP) of the International Criminal Court alleges were chanted by Edmond Beina and his men in Guen, a village in Mambere-Kadei Prefecture of the Central African Republic (CAR) between February and April 2014 (see para 12, Beina arrest warrant). Beina and his forces are accused by the ICC and SCC of conducting attacks that targeted the Muslim population of Guen, killing, injuring and committing sexual violence in a campaign emblematic of recurring inter-ethnic and sectarian violence in the CAR since 2003.

In September 2025, following an admissibility challenge by the CAR, the ICC’s Pre-Trial Chamber ruled that the case against Beina was inadmissible at the ICC on the ground that there were genuine ongoing domestic proceedings against him in the CAR. This decision is particularly notable as it addresses the relationship between the ICC and the CAR’s Special Criminal Court (SCC), given domestic legislation that prioritizes the ICC’s intervention over domestic prosecution of international crimes. This blog argues that the Pre-Trial Chamber’s decision reaffirms the centrality of complementarity to the Rome Statute system and rejects the CAR’s domestic attempts to reverse the notion of complementarity. The decision is significant as it directly considers the application of the principle of complementarity in the context of a potentially competing hybrid tribunal. 

As part of efforts to address ongoing violence and ensure justice for victims and perpetrators, the CAR twice referred itself to the ICC, first in 2004, and again in 2014. During the same period, the CAR government partnered with international supporters to create the SCC, to work concurrently with the ICC to investigate and prosecute international crimes committed in the country since 2003. This represented one of the very first instances of the ICC working alongside domestic/hybrid systems to disburse justice, an approach claimed to deliver more justice to a wider range of victims. 

Anticipating potential jurisdictional conflicts, Article 37 of Organic Law No. 15-003, the domestic law creating the SCC, requires the SCC to relinquish jurisdiction to the ICC in any situation where both courts are interested in the same case or defendant. This is a questionable reversion of the notion of complementarity, which is a fundamental principle of the ICC. Applying the principle of complementarity, the ICC should only intervene when domestic systems are unwilling or unable to prosecute perpetrators, and ICC proceedings must give way to genuine domestic proceedings. However, under Article 37 of the Organic Law, the ICC is granted primacy in respect of the prosecution of international crimes in the CAR, and domestic institutions like the SCC will only take on cases that the ICC does not pursue. Article 37 departs from the principle of complementarity by creating a system of national subsidiarity not envisaged by the Rome Statute. 

Wanted by two courts: A clash of jurisdictions

Both the ICC and the SCC were interested in investigating and prosecuting the perpetrators of the atrocities in Guen. In May 2019, the SCC commenced its investigation of the events in Guen. A few months later, in August 2019, the ICC Registry notified the CAR authorities that an arrest warrant had been issued for Beina for crimes committed in Guen. In response, the SCC’s Special Prosecutor sought confirmation from the ICC that it was investigating the situation and, upon receiving affirmation from the ICC, requested to withdraw the SCC’s investigation in apparent compliance with Article 37 of the Organic Law. However, the SCC Chambre d’accusation Spéciale rejected this request on the grounds that the SCC’s Special Prosecutor had not demonstrated the primacy of the ICC nor justified the prospect of the SCC relinquishing jurisdiction in favour of the ICC (See para. 9 CAR admissibility challenge). The case was thereafter referred to the SCC’s Investigative Chamber, which in May 2022, issued warrants for the arrest of Beina and six others. In June 2024, Beina was arrested and detained by the Special Judicial Police Unit with the assistance of the ICC. (See para. 15 CAR admissibility challenge). 

The question after Beina’s arrest was whether the SCC would prosecute him or surrender him to the ICC in compliance with Article 37 of the Organic Law. Interestingly, in November 2024, the CAR authorities decided to challenge the admissibility of Beina’s case before the ICC under Article 17 of the Rome Statute. The crux of their argument was that there were ongoing and genuine domestic proceedings against Beina which take precedence over the ICC’s case in accordance with the principle of complementarity. The CAR made a strong case to demonstrate its willingness and ability to competently prosecute Beina. The OTP in its response indicated that – in accordance with its commitment to positive complementarity – it had provided substantial assistance to the SCC and supported the exercise of jurisdiction over grave crimes in accordance with domestic law. However, as CAR’s domestic law included Article 37 of the Organic Law which confers primacy on the ICC, the OTP sought clarification from the Chamber as to its applicability to the present case. 

Undoubtedly, there are several advantages to prosecuting Beina in the CAR as opposed to the Hague. First, the ICC’s arrest warrant identified Beina as the commander of the anti-balaka group implicated in the atrocities committed in Guen, with Mathurin Kombo as his deputy (See paras. 12- 14 of Beina arrest warrant). However, the ICC only wanted to prosecute Beina. Meanwhile, before the SCC, Beina is being prosecuted alongside six others including Mathurin Kombo. It makes for greater judicial economy and potentially a fairer trial to prosecute Beina alongside the men he is alleged to have been in control of during the crimes, as it allows for a much clearer presentation of the facts, and a greater understanding of the dynamics that allowed for the commission of these atrocities. 

Second, given that the ICC’s positive complementarity approach focuses on developing domestic ability to prosecute international crimes, as evidenced by its ongoing support of the SCC and its investigations, it makes no sense for the ICC to take over a case when there is evident domestic capacity and willingness to prosecute.  

Third, domestic prosecution will ensure greater participation of victims and witnesses. The ICC Office of Public Counsel for Victims informed the Pre-Trial Chamber that victims would prefer to have Beina prosecuted at the SCC in Bangui, where they could easily follow the trial either in person or over the radio, an option that is not readily available at the ICC, based in The Hague. 

The CAR authorities identified the above advantages and further argued that the SCC tends to complete trials much quicker that the ICC which provides greater respect for Beina’s right to be tried without undue delay (See paras 151-153  CAR admissibility challenge).  Ultimately, the CAR authorities insisted on respect for the principle of complementarity, as expressed in the Rome Statute. The government’s submission makes very little attempt to offer an alternative interpretation of Article 37 of the Organic Law that would justify its admissibility challenge given the primacy given to the ICC under the law. Instead, the CAR authorities relied on the ICC’s Appeal’s Chamber decision in Yekatom to the effect that the ICC will only be guided by its own legal framework in assessing admissibility challenges and not by domestic law (see para 54 CAR admissibility challenge). The CAR authorities appear to accept that the principle of complementarity should effectively displace the applicable domestic law provision.

In contrast, Beina – in response to the admissibility challenge – argued that Article 37 of the Organic Law was a manifestation of the CAR’s sovereignty by which the CAR declared itself unwilling and unable to prosecute any case which is of interest to the ICC (see para 26 Beina’s written observations). As such, even if Article 37 grants primacy to the ICC, it still does so in compliance with the principle of complementarity. While this is an interesting argument, it is difficult to accept, as it allows for domestic systems to abdicate their responsibility to prosecute international crimes in favour of ICC intervention effectively hollowing complementarity as envisioned by the Rome Statute. Furthermore, even if the delegation of primacy to the ICC were considered a legitimate exercise of sovereignty, the CAR’s decision to present an admissibility challenge itself constitutes a legitimate exercise of sovereign discretion and undermines any argument that the CAR has renounced jurisdiction in respect of any situation of interest to the ICC.   

Pre-Trial Chamber’s ruling and Implications for ICC-SCC relationship

The Pre-Trial Chamber ruled that the case against Beina was inadmissible before the ICC due to ongoing proceedings against him in the CAR. The Chamber found that the CAR authorities have sufficiently demonstrated their willingness and ability to prosecute the case against Beina. The Chamber maintained that it was necessary to respect the principle of complementarity which was foundational to the functioning of the ICC. As a court of last resort, the ICC will not compete with national or hybrid systems when they have demonstrated their will to carry out justice. Importantly, on the legality and applicability of Article 37, the Chamber held that: 

“in this case, where the national law grants primary jurisdiction to the Court, it is for the national jurisdiction, and not for the Court, to interpret and apply that law… The Court may only determine whether it retains jurisdiction on the basis of its own legal framework, not on the basis of the domestic law of the concerned State.” (see para 42 Beina decision)

The Pre-Trial Chamber neither endorsed nor invalidated Article 37 of the Organic Law, as that fell outside its powers and within the jurisdictional competence of the SCC or the domestic system. Instead, it confined itself to assessing admissibility on the basis of the Rome Statute, based entirely on complementarity. Therefore, the ICC will only proceed if the SCC or domestic system is not prosecuting a case. This does not, however, mean that the ICC will wait for the SCC to determine if it wants to investigate or prosecute a given case before commencing trial. As identified by the Trial Chamber in Yekatom, the “inactivity test” is the relevant and decisive test. If the domestic system is not taking concrete steps to prosecute a person, the ICC can proceed, regardless of any future plans to act.  

The admissibility ruling in Beina has substantially clarified the current understanding of the ICC-SCC relationship. The SCC has long been viewed as being subsidiary to the ICC. Patience Guerengbo, an SCC Judge, described the ICC-SCC relationship as a system of “reversed complementarity” in which the ICC supersedes the SCC in any case of jurisdictional conflict. This decision changes that understanding of the ICC-SCC relationship as it is now clear that a case will be inadmissible before the ICC, if the CAR conducts genuine domestic proceedings. Even before this present ruling, the Appeals Chamber in Yekatom already held that “the fact that the Organic Law appears to grant primacy to the Prosecutor cannot trump the principle of complementarity.” (see para 48). 

It is unlikely that this conflict of jurisdiction will recur given the ICC’s decision in 2022 to conclude the investigation phase of its mandate in CAR, which has been framed as evidence that SCC is fulfilling its mandate competently. However, there are implications for pending warrants, in the sense that the SCC can now arrest and prosecute persons who are already wanted by the ICC. It also signals that attempts to engineer ‘reversed complementarity’ in national laws or in the legal frameworks for future hybrid tribunals will not displace the legal framework for complementarity found in the Rome Statute.

Given the important leading role the SCC occupies in the CAR’s accountability infrastructure, its survival is crucial. The SCC has always struggled with its finances as funding by its international partners is on a voluntary basis. The recent withdrawal of the US from financing the SCC leaves it in an even more precarious financial dilemma.

Conclusion 

The admissibility decision in Beina unquestionably reaffirms the centrality of complementarity to ICC functionality. Even when domestic systems seemingly abdicate their responsibility to prosecute international crimes in favour of ICC intervention, the ICC will only be bound by its own legal framework. Therefore, if the domestic system is willing and able to conduct genuine proceedings, the ICC must take a step back and let it proceed.