CYIL 2015

ONDŘEJ SVAČEK CYIL 6 ȍ2015Ȏ its legal proceedings are designed to make the defendant easier to convict, the provision requires the Court to defer to the State no matter how unfair those proceedings may be. 18 This line of reasoning finds support in grammatical, teleological and historical ( travaux préparatoires ) interpretations of Article 17. 19 Firstly, a grammatical interpretation reveals that potential violation of due process rights (unjustified delay, lack of independence and impartiality) as such is not sufficient to make a case admissible: unjustified delays in Article 17(2)(b) and lack of independence and impartiality in Article 17(2)(c) must be both inconsistent with an intent to bring the person concerned to justice. To put it simply, if national proceedings, though unfairly delayed or biased, make it easier to convict, a case is still inadmissible before the ICC provided a State does not lack intent to bring a defendant to justice. 20 Delayed or otherwise flawed proceedings before domestic courts per se are not sufficient ground showing unwillingness on the part of a State. On the other hand, if the human rights guarantees provided at the national level are breached to the benefit of the defendant ( e.g. a State has made it more difficult to convict the defendant because any conviction could be overturned on appeal based on due process violations) a case might be admissible before the ICC under Article 17(2) of the Rome Statute. 21 In such a situation, failure to provide fair trial guarantees would be a sophisticated way to grant impunity to perpetrators of crimes under international law. The dividing line here between violations of human rights (due process guarantees) that are relevant and trigger exercise of jurisdiction of the ICC and those that are irrelevant, because they are not accompanied by intent to let the accused escape justice, is very blurred and must be assessed on a case by case basis. Proper determination is best left until after the conclusion of the proceedings at the domestic level. 22 Grammatical interpretation sends down even the argument that violation of fair trial rights might be a sign of the inability of a State to proceed genuinely with 18 HELLER, Kevin Jon. The Shadow Side of Complementarity. Criminal Law Forum . 2006, vol. 17, no. 3-4, p. 257. 19 The Rome Statute, as an international treaty, is subjected to the Vienna Convention on the Law of Treaties (VCLT). The Prosecutor v. Al-Bashir . ICC-02/05-01/09-164. Decision Regarding Omar Al Bashir’s Potential Travel to the Federal Republic of Ethiopia and the Kingdom of Saudi Arabia. PTCH II, 10 October 2013, para 7. Compare POWDERLY, Joseph. In: Stahn, Carsten (ed.) The Law and Practice of the International Criminal Court . Oxford: OUP, 2015, pp. 444-498. 20 Heller, K. J.: sub 18, pp. 260-263. 21 HELLER, Kevin Jon.Why the Failure to Provide Saif with Due Process Is Relevant to Libya’s Admissibility Challenge. In: Opinio Juris [online]. 08/02/2012. Available at: http://opiniojuris.org/2012/08/02/why the-failure-to-provide-saif-with-due-process-is-relevant-to-libyas-admissibility-challenge/ (07/09/2015) For similar conclusion compare ROJO, Enrique Carnero. The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal Court: From ‘No Peace without Justice’ to ‘No Peace with Victor’s Justice’? Leiden Journal of International Law . 2005, vol. 18, no. 4, p. 838. 22 MÉGRET, Frédéric – SAMSON, Marika, Giles. Holding the Line on Complementarity in Libya The Case for Tolerating Flawed Domestic Trials. Journal of International Criminal Justice . 2013, vol. 11, no. 3, p. 571.

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