The ‘Inaction’ Controversy: Neglected Words and New Opportunities

Abstract

This book chapter is a companion to the article, “The Mysterious Mysteriousness of Complementarity”. It covers similar ground in examining a curious interpretive disconnect in the complementarity discourse. Whereas the companion article goes into greater depth exploring the policy implications obscured in the current debate, the book chapter focuses more on the disconnect, its prevalence, its enduring persistence and its possible causes.

This chapter provides additional demonstrations that Article 17 quite explicitly requires national proceedings if a case is to be rendered inadmissible under complementarity. It then carefully examines the treatment in the literature, showing that despite the express two-step test in Article 17, there is a surprisingly widely-shared and firmly-held belief that Article 17 creates a one-step test fixated entirely on the famous ‘unwilling or unable’ criteria. The belief is so persistent that many commentators insist that admissibility due to state inaction is a ‘gloss’ and an ‘invented’ prong, and have expressed alarm and concern about the International Criminal Court’s perceived departure from the Rome Statute.

Significantly, the critiques are not presenting an alternative ‘interpretation’ of Article 17. Rather, they sincerely adhere to the one-step simplification of Article 17, and thus fail to engage with 55 words of text that expressly require proceedings, and indeed even deny that there is any such text. The disconnect is fascinating, because a socially constructed belief about the text is so powerful that it has obscured access to the actual text. It is remarkable and unusual that application of the 55 words is widely regarded as a creative 'unwritten third prong'.

While many useful debates on interpretation may await, they must start with a shared recognition of the terms of the text itself, and an empirically accurate distinction between what is gloss and what is text, what is written versus unwritten. Once we engage with the two-step test expressly stated in the text, many interesting questions about the role of the ICC arise.

The book chapter ventures some thoughts about possible factors that may have contributed to this interpretive disconnect, including terminological imprecision in terms such as ‘waiver’ and even ‘uncontested admissibility’.

Keywords: international criminal law, international criminal court, complementarity, inaction, waiver, uncontested admissibility, social construction of knowledge