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THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME
investigation and prosecution. The requirement of Article 17(3) of the Rome Statute
is rather arduous, as it demands a total or substantial collapse or unavailability of the
national judicial system. Mere deficiencies in due process protection are surely not
enough to draw a conclusion about the collapse or unavailability of the domestic
judicial system.
23
Clear results flow from a teleological interpretation. Accordingly, it might be said
that the ICC is simply not a human rights court overseeing compliance with human
rights standards at the domestic level.
24
This assumption was confirmed almost
verbatim, among others, by the Informal Expert Group assessing the principle of
complementarity in practice.
25
The object and purpose of the ICC is to put an end
to impunity for the perpetrators of crimes under international law (compare the
preamble of the Statute) – unfairness of proceedings at the national level is thus not
relevant for the purpose of the ICC, but only where it amounts to one of the crimes
envisaged in the Statute [
e.g.
war crimes under Article 8(2)(a)(vi) and Article 8(2)
(c)(iv)].
26
According to R. Cryer, there is nothing in the Statute that would make
the ICC responsible for the protection of the human rights of the defendant in the
process of national enforcement of international criminal law.
27
Possible flaws in
domestic prosecution might be more properly addressed before specialized human
rights bodies rather than before the ICC, which should not serve as a supra-national
court of appeal.
28
Even if previous interpretative techniques do not leave the meaning of Article 17
ambiguous or obscure and do not lead to a result which is manifestly absurd or
unreasonable (Article 32 of the VCLT), and there is therefore no need for recourse
to supplementary means of interpretation, reference to
travaux préparatoires
is of
relevance here. During the negotiations in Rome, “Italy proposed a definition of
unwillingness that would have specifically made the absence of national due process
a ground for admissibility“.
29
This proposal was clearly rejected, as most delegations
23
Heller, K. J.: sub 18, p. 264.
24
NOUWEN, Sarah.
Complementarity in the Line of Fire: The Catalysing Effect of the International
Criminal Court in Uganda and Sudan
. Cambridge: CUP, 2013, p. 67.
25
Informal Expert Paper.
The principle of complementarity in practice
. ICC-01/04-01/07-1008-AnxA, p. 8.
26
ROJO, E. C.: sub 21, p. 838.
27
CRYER, Robert et al.
An Introduction to International Criminal Law and Procedure
. Cambridge: CUP,
2010, pp. 156-157.
28
VAN DER WILT, Harmen – LYNGDORF, Sandra. Procedural Obligations Under the European
Convention on Human Rights: Useful Guidelines for the Assessment of ‘Unwillingness’ and ‘Inability’
in the Context of the Complementarity Principle.
International Criminal Law Review
. 2009, vol. 9,
no. 1, p. 65. J. Stigen concludes that “interfering
vis-a-vis
unfair national proceedings is not a task
for the ICC, even if the state’s violation of the suspect’s rights is manifest. Unfair convictions must be
brought before relevant human rights bodies, and the ICC is not a human rights court.“ STIGEN, Jo.
The Relationship between the International Criminal Court and National Jurisdictions. The Principle of
Complementarity
. Boston/Leiden: Martinus Nijhoff, 2008, p. 221.
29
Heller, K. J.: sub 18, p. 272. Italy proposed the following formulation: In deciding on issues of