CYIL 2015

ONDŘEJ SVAČEK CYIL 6 ȍ2015Ȏ violations of rights of the suspect introduced by the ICC’s ACH in the Al-Senussi case. They could potentially be used in admissibility proceedings before the ICC: the presence of such serious violations of rights in the domestic processes would signal unwillingness on the part of a State that could render a case admissible before the ICC. Conclusion The principle of complementarity, the backbone of the Rome Statute, provides that genuine investigation and prosecution of the crimes under international law exclude involvement of the ICC. In practice, the principle of complementarity acts as the principle of primacy of national jurisdiction over the ICC. 79 The Al-Senussi admissibility appeals judgment clarified the ICC’s position towards violations of human rights (fair trial rights) at the domestic level and their relevance with respect to the admissibility proceedings before the ICC. Generally speaking, minor deficiencies in due process do not render a case admissible before the ICC; nevertheless, if a certain threshold of seriousness is reached, the ICC will step in. By admission of this bifurcated standard the ICC subscribed to the moderate due process thesis proposed by some scholars. Although the Court’s conclusion in Al Senussi might be criticized from methodological reasons, and although it is far from clear whether it will be used in future case law, it should be welcomed: the ICC sent a clear message that markedly flawed processes will not be tolerated. This article has proposed an interpretation of the term ‘egregious violations of the rights’ of the suspect which is central to the assessment of the question whether a case is admissible before the ICC. Due to strictness and purpose similarities with the ‘flagrant denial of justice’ concept, the term ‘egregious violations of the rights’ might be expounded employing the case law of the ECHR. In the light of this human rights jurisprudence, violations of fair trial rights such as refusal to reopen proceedings conducted in the accused’s absence, total disregard for the rights of defence, deliberate and systematic refusal of access to a lawyer, lack of access to independent and impartial tribunal, admission of statements and evidence obtained through torture, inhuman or degrading treatment would automatically render a case admissible before the ICC. It remains to be seen whether future case law of the ICC will confirm this proposition.

79 The Prosecutor v. Katanga and Chui . sub 3, para 85.

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