299 / 464
285
THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME
According to the ACH in the
Al Senussi
case
,
at its most extreme, it would not
envisage proceedings that are, in reality, little more than a predetermined prelude to
an execution.
57
This threshold is very demanding – the ICC itself referred to work
of F. Mégret and M. G. Samson, who concluded: “[w]e are no longer dealing with
‘trials’ at all but, if the death penalty is imposed, something akin to an extrajudicial
execution“.
58
What else would count here was deliberately left unanswered – the
ACH only indicated that “other less extreme instances may arise […] and whether
a case will ultimately be admissible in such circumstances will necessarily depend
upon its precise facts.”
59
Even if the ICC calls for a case by case assessment, the term
‘egregious violations of the rights’ might be conceptualized in a more general terms
with reference to the case law of the ECHR concerning ‘flagrant denial of justice’.
Pros and cons of the ECHR’s jurisprudence in assessment of admissibility and
complementarity were summarized elsewhere;
60
it is enough to reiterate that the
jurisprudence of the ECHR, or more generally the case law of human rights bodies,
must be considered with a certain caution, bearing in mind the different legal context
and purpose in which these organs operate. Nevertheless, the conceptual gap between
‘egregious violations of the rights’ and ‘flagrant denial of justice’ seems to be surpassable
with possible ease: both terms are designed to protect individuals against abuses to
their disadvantage.
61
Case law of the ECHR can thus provide some guidance on how
to interpret terms originally developed in the jurisprudence of the ICC.
2.1 Case Law of the ECHR – Flagrant Denial of Justice
In the case law of the ECHR, the term flagrant denial of justice is synonymous
with a trial which is manifestly contrary to the provisions of Article 6 of the European
Convention on Human Rights (EC) or the principles embodied therein.
62
The
flagrant denial of justice is a very stringent test of unfairness; it goes beyond mere
irregularities or lack of safeguards in the trial procedures such as might result in
a breach of Article 6 if occurring within the State Party to the EC itself. What is
57
ICC-01/11-01/11-565, para 230.
58
Mégret, F., Samson, M. G.: sub 22, p. 571.
59
ICC-01/11-01/11-565, para 230.
60
Compare e.g. Van Der Wilt, H. – Lyngdorf, S.: sub 28, pp. 41-42, pp. 62-64.
61
It is hard to imagine that a State would flagrantly violate the human rights of the defendant to his/her
benefit (
e.g.
with view of overturning of the conviction on appeal based on the due process violations).
It was argued in the previous part that any such proceedings would not count and would not be an
obstacle for exercise of jurisdiction by the ICC. As pointed out by J. Kleffner, Article 17(2) of the Rome
Statute, as a rule, addresses the situation where the criminal process is abused to the benefit of the person
concerned, whereas fair trial guarantees (human rights) are designed to protect individuals against
abuses to their disadvantage. This divergence in purpose simply fades away with respect to ‘egregious
violations of the rights’ and ‘flagrant denial of justice’. Compare KLEFFNER, Jann.
Complementarity
in the Rome Statute and National Criminal Jurisdictions
. Oxford: OUP, 2008, p. 130.
62
Al Nashiri v. Poland
. Appl. no. 28761/11. ECHR, Former Fourth Section, Judgment, 24 July 2014,
para 562.