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its legal proceedings are designed to make the defendant easier to convict, the provision
requires the Court to defer to the State no matter how unfair those proceedings may be.18
This line of reasoning finds support in grammatical, teleological and historical
(travaux préparatoires) interpretations of Article 17.19 Firstly, a grammatical interpretation
reveals that potential violation of due process rights (unjustified delay, lack of
independence and impartiality) as such is not sufficient to make a case admissible:
unjustified delays in Article 17(2)(b) and lack of independence and impartiality
in Article 17(2)(c) must be both inconsistent with an intent to bring the person
concerned to justice. To put it simply, if national proceedings, though unfairly
delayed or biased, make it easier to convict, a case is still inadmissible before the ICC
provided a State does not lack intent to bring a defendant to justice.20 Delayed or
otherwise flawed proceedings before domestic courts per se are not sufficient ground
showing unwillingness on the part of a State. On the other hand, if the human
rights guarantees provided at the national level are breached to the benefit of the
defendant (e.g. a State has made it more difficult to convict the defendant because
any conviction could be overturned on appeal based on due process violations) a case
might be admissible before the ICC under Article 17(2) of the Rome Statute.21 In
such a situation, failure to provide fair trial guarantees would be a sophisticated way
to grant impunity to perpetrators of crimes under international law. The dividing line
here between violations of human rights (due process guarantees) that are relevant
and trigger exercise of jurisdiction of the ICC and those that are irrelevant, because
they are not accompanied by intent to let the accused escape justice, is very blurred
and must be assessed on a case by case basis. Proper determination is best left until
after the conclusion of the proceedings at the domestic level.22
Grammatical interpretation sends down even the argument that violation of fair
trial rights might be a sign of the inability of a State to proceed genuinely with
18 HELLER, Kevin Jon. The Shadow Side of Complementarity. Criminal Law Forum. 2006, vol. 17,
no. 3-4, p. 257.
19 The Rome Statute, as an international treaty, is subjected to the Vienna Convention on the Law of
Treaties (VCLT). The Prosecutor v. Al-Bashir. ICC-02/05-01/09-164. Decision Regarding Omar Al-
Bashir’s Potential Travel to the Federal Republic of Ethiopia and the Kingdom of Saudi Arabia. PTCH
II, 10 October 2013, para 7. Compare POWDERLY, Joseph. In: Stahn, Carsten (ed.) The Law and
Practice of the International Criminal Court. Oxford: OUP, 2015, pp. 444-498.
20 Heller, K. J.: sub 18, pp. 260-263.
21 HELLER, Kevin Jon.Why the Failure to Provide Saif with Due Process Is Relevant to Libya’s Admissibility
Challenge. In: Opinio Juris [online]. 08/02/2012. Available at:
the-failure-to-provide-saif-with-due-process-is-relevant-to-libyas-admissibility-challenge/ (07/09/2015)
For similar conclusion compare ROJO, Enrique Carnero. The Role of Fair Trial Considerations in the
Complementarity Regime of the International Criminal Court: From ‘No Peace without Justice’ to
‘No Peace with Victor’s Justice’? Leiden Journal of International Law. 2005, vol. 18, no. 4, p. 838.
22 MÉGRET, Frédéric – SAMSON, Marika, Giles. Holding the Line on Complementarity in Libya The
Case for Tolerating Flawed Domestic Trials. Journal of International Criminal Justice. 2013, vol. 11, no. 3,
p. 571.