CYIL 2015

THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME lack of independence and impartiality are only one of two cumulative criteria 49 that need to be met before the conclusion on unwillingness is made. 50 The same would be true with respect to unjustified delays. Lastly, the Court relied on travaux préparatoires . 51 At this point, importantly, the argumentation of the ICC started to shift. Stressing the position of Article 21(3) of the Statute, the ACH held that there may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect, so that they should be deemed, in those circumstances, to be inconsistent with an intent to bring that person to justice. 52 According to the opinion of the present author, this means that certain serious violations of human rights (fair trial rights) might per se amount to the unwillingness of a State to genuinely carry out the investigation or prosecution. At the end of the day, in the light of the facts and evidence assessed by the PTCH, the ACH found no appealable error and therefore confirmed that the case of Mr. Al-Senussi is inadmissible before the ICC. What is important, the ACH in Al-Senussi solved the puzzle concerning the mutual relationship between the violation of human rights (due process rights) and the principle of complementarity. It refused the due process thesis (the second doctrinal strand described above) and ruled that mere violation of the human rights of the defendant does not amount to unwillingness that would make a case admissible before the ICC. Relying on the text, context, object, purpose and history of Article 17, the Court subscribed to opinions that the violation of the human rights of the accused at the domestic level is relevant when it is designed to make him/her more difficult to convict, i.e. when the proceedings are sham and concerned with shielding the accused (the first doctrinal strand referred to above). At the same time, the Court lent its ear even to the moderate due process approach and confirmed that certain egregious violations of the rights of the defendant must be interpreted as a manifestation of unwillingness which opens doors for the proceedings before the ICC. 2. Complementarity and Human Rights – There and Back Again The interpretation of Article 17 of the Rome Statute provided by the ACH in the Al-Senussi case reveals that the mutual relationship between complementarity and human rights follows a twofold standard: it might be therefore presumed that violation of human rights of the defendant will not make a case admissible before the

49 The second one is the lack of intent to bring the person concerned to justice. 50 ICC-01/11-01/11-565, para. 221. 51 Ibid ., para 225. Compare supra note 29. 52 Ibid ., para 230.

283