CYIL 2015

283

THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME

lack of independence and impartiality are only one of two cumulative criteria

that need to be met before the conclusion on unwillingness is made.

The same

would be true with respect to unjustified delays. Lastly, the Court relied on

travaux

préparatoires

At this point, importantly, the argumentation of the ICC started to shift.

Stressing the position of Article 21(3) of the Statute, the ACH held that there may

be circumstances, depending on the facts of the individual case, whereby violations

of the rights of the suspect are so egregious that the proceedings can no longer be

regarded as being capable of providing any genuine form of justice to the suspect, so

that they should be deemed, in those circumstances, to be inconsistent with an intent

to bring that person to justice.

According to the opinion of the present author, this

means that certain serious violations of human rights (fair trial rights) might

per se

amount to the unwillingness of a State to genuinely carry out the investigation or

prosecution.

At the end of the day, in the light of the facts and evidence assessed by the

PTCH, the ACH found no appealable error and therefore confirmed that the case

of Mr. Al-Senussi is inadmissible before the ICC. What is important, the ACH

Al-Senussi

solved the puzzle concerning the mutual relationship between the

violation of human rights (due process rights) and the principle of complementarity.

It refused the due process thesis (the second doctrinal strand described above) and

ruled that mere violation of the human rights of the defendant does not amount

to unwillingness that would make a case admissible before the ICC. Relying on

the text, context, object, purpose and history of Article 17, the Court subscribed

to opinions that the violation of the human rights of the accused at the domestic

level is relevant when it is designed to make him/her more difficult to convict,

i.e.

when the proceedings are sham and concerned with shielding the accused (the first

doctrinal strand referred to above). At the same time, the Court lent its ear even to

the moderate due process approach and confirmed that certain egregious violations

of the rights of the defendant must be interpreted as a manifestation of unwillingness

which opens doors for the proceedings before the ICC.

2. Complementarity and Human Rights – There and Back Again

The interpretation of Article 17 of the Rome Statute provided by the ACH in

the

Al-Senussi

case reveals that the mutual relationship between complementarity

and human rights follows a twofold standard: it might be therefore presumed that

violation of human rights of the defendant will not make a case admissible before the

The second one is the lack of intent to bring the person concerned to justice.

ICC-01/11-01/11-565, para. 221.

Ibid

., para 225. Compare supra note 29.

Ibid

., para 230.