294 / 464
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ONDŘEJ SVAČEK
CYIL 6 ȍ2015Ȏ
believed that the ICC should only intervene where a national judicial system was
used as a shield or to safeguard against sham trials.
30
The second doctrinal strand is built on the presumption that any State’s failure
to guarantee the defendant due process makes a case admissible before the ICC
under Article 17 of the Rome Statute. This approach emphasizes that not every
domestic investigation and prosecution meets the test of willingness and ability
– by insisting on compliance with international human rights standards
31
and
principles of due process,
32
only those domestic trials conforming to international
norms would count.
33
To put it differently, violations of due process are signs of
unwillingness or inability to proceed genuinely at the domestic level. This position
is hard to advocate, bearing in mind the grammatical, teleological and historical
interpretation of Article 17 of the ICC Statute described above. Without any doubt,
as influential as it once was, this approach is now rather marginal.
The last doctrinal strand, which might be labeled as a moderate due process
approach, is a halfway house between the two previous schools of thoughts. The
moderate approach rejects the idea that every violation of due process rights signals
unwillingness or inability to genuinely prosecute, but at the same time inveighs the
thesis that violations of human rights at the domestic level are relevant only when
they are designed to make the defendant more difficult to convict.
34
According to this
approach, some violations of human rights (due process guarantees) of the defendant
are so egregious that the ICC simply cannot turn a blind eye to them. Even if the
violations of human rights were designed to make the defendant easier to convict, a
case would still be admissible before the ICC. What exactly is the threshold which
makes a case admissible is hard to specify;
35
this will be assessed in the following
part. This article finds useful guidance in the concept of ‘flagrant denial of justice’
elaborated by the ECHR (compare chapter 2.1).
admissibility under this article, the Court shall consider whether […] (ii) the said investigations or
proceedings have been or are impartial or independent, or were or are designed to shield the accused
from international criminal responsibility, or were or are conducted with full respect for the fundamental
rights of the accused.
30
Report of the Ad Hoc Committee on the Establishment of an International Criminal Court,
6 September 1995, A/50/22, para 45.
31
Compare Article 21(3) of the ICC Statute. SVAČEK, Ondřej. Human Rights before the International
Criminal Court.
Czech Yearbook of Public and Private International Law
. 2014, vol. 5, pp. 327-340.
32
Compare the chapeau of Article 17(2) of the ICC Statute.
33
GIOIA, Federica. State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The Principle of
Complementarity in the International Criminal Court.
Leiden Journal of International Law
. 2006,
vol. 19, no. 4, pp. 1111-1113. For further literature compare Heller, K. J.: sub 18, pp. 257-259.
34
FRY, Elinor. Between Show Trials and Sham Prosecutions: the Rome Statute’s Potential Effect on
Domestic Due Process Protections.
Criminal Law Forum
. 2012, vol. 23, no. 1-3, pp. 52-55. Mégret, F.
– Samson, M. G.: sub 22, pp. 581-588.
35
Mégret, F. – Samson, M. G.: sub 22, p. 586.