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THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME
and will not be evaluated here. The subject matter of this contribution is different:
it concerns the mutual relationship between the principle of complementarity and
human rights – throughout the text of this article, human rights are to be understood
as fair trial rights.
1. Complementarity and Human Rights
The core question to be addressed here is whether violations of the human rights
of the defendant at the domestic level make a case admissible before the ICC. This
part describes the relevant legal framework, summarizes the opinions of scholars
(1.1) and analyzes the existing case law of the ICC (1.2).
1.1
Legal Framework and Doctrinal Opinions
In the context of complementarity assessment violations of human rights at the
domestic level might be eventually considered as an expression of unwillingness or
inability.These concepts are defined in Article 17(2) and 17(3) of the ICC Statute.
17
The
chapeau of Article 17(2) refers to principles of due process recognized by international
law, subjugated clauses then operates with concepts widely known in international
human rights law:
i.e.
unjustified delay, and independence and impartiality of
proceedings. Interpretation of these provisions has already been provided and explored
in scholarly literature. Opinions of scholars on the mutual relationship between the
principle of complementarity and human rights (fair trial rights) might be divided into
three groups.
According to the first group of scholars, violation of human rights
per se
does not
make a case admissible before the Court. The basic axiom was aptly formulated by
K. J. Heller:
Properly understood, article 17 permits the Court to find a State ‘unwilling or unable’
only if its legal proceedings are designed to make a defendant more difficult to convict. If
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Article 17(2) provides: In order to determine unwillingness in a particular case, the Court shall consider,
having regard to the principles of due process recognized by international law, whether one or more
of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national
decision was made for the purpose of shielding the person concerned from criminal responsibility for
crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified
delay in the proceedings which in the circumstances is inconsistent with an intent to bring the
person concerned to justice; (c) The proceedings were not or are not being conducted independently
or impartially, and they were or are being conducted in a manner which, in the circumstances, is
inconsistent with an intent to bring the person concerned to justice.
Article 17(3) provides: In order to determine inability in a particular case, the Court shall consider
whether, due to a total or substantial collapse or unavailability of its national judicial system, the State
is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry
out its proceedings.