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violations of rights of the suspect introduced by the ICC’s ACH in the
Al-Senussi
case. They could potentially be used in admissibility proceedings before the ICC: the
presence of such serious violations of rights in the domestic processes would signal
unwillingness on the part of a State that could render a case admissible before the ICC.
Conclusion
The principle of complementarity, the backbone of the Rome Statute, provides
that genuine investigation and prosecution of the crimes under international law
exclude involvement of the ICC. In practice, the principle of complementarity acts
as the principle of primacy of national jurisdiction over the ICC.
79
The
Al-Senussi
admissibility appeals judgment clarified the ICC’s position
towards violations of human rights (fair trial rights) at the domestic level and their
relevance with respect to the admissibility proceedings before the ICC. Generally
speaking, minor deficiencies in due process do not render a case admissible before
the ICC; nevertheless, if a certain threshold of seriousness is reached, the ICC will
step in. By admission of this bifurcated standard the ICC subscribed to the moderate
due process thesis proposed by some scholars. Although the Court’s conclusion in
Al-
Senussi
might be criticized from methodological reasons, and although it is far from
clear whether it will be used in future case law, it should be welcomed: the ICC sent
a clear message that markedly flawed processes will not be tolerated.
This article has proposed an interpretation of the term ‘egregious violations of
the rights’ of the suspect which is central to the assessment of the question whether
a case is admissible before the ICC. Due to strictness and purpose similarities with
the ‘flagrant denial of justice’ concept, the term ‘egregious violations of the rights’
might be expounded employing the case law of the ECHR. In the light of this
human rights jurisprudence, violations of fair trial rights such as refusal to reopen
proceedings conducted in the accused’s absence, total disregard for the rights of
defence, deliberate and systematic refusal of access to a lawyer, lack of access to
independent and impartial tribunal, admission of statements and evidence obtained
through torture, inhuman or degrading treatment would automatically render a case
admissible before the ICC. It remains to be seen whether future case law of the ICC
will confirm this proposition.
79
The Prosecutor v. Katanga and Chui
. sub 3, para 85.