The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process
26 Pages Posted: 12 Jun 2006
According to the principle of complementarity, the ICC can exercise jurisdiction over a serious international crime only if no State is willing and able to prosecute the crime itself. This principle, which finds its most specific expression in Article 17 of the Rome Statute, is based on two important considerations: the recognition that States have the primary obligation under the Statute to investigate and prosecute serious international crimes; and the practical reality that the Court, as a single institution with limited resources, will never be able to investigate and prosecute more than a small number of such crimes. The Chief Prosecutor of the ICC has thus correctly insisted that, in terms of ending impunity, "the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success."
There is, however, a shadow side of complementarity, one that should temper our enthusiasm for the early obsolescence of the Court: its effect on the likelihood that defendants will receive due process in national proceedings. Although the ICC is a model of due process, guaranteeing defendants all of the procedural protections required by international law, most national criminal-justice systems are far less even-handed - particularly those in States that have experienced atrocities serious enough to draw the Court's interest. Complementarity is thus a double-edged sword. On the one hand, ICC deferrals will reflect the willingness of States to bring the perpetrators of serious international crimes to justice. On the other hand, those deferrals will expose perpetrators to national judicial systems that are biased toward conviction, increasing the likelihood of wrongful convictions.
This essay explores the implications of the shadow side of complementarity. Part I argues that international criminal law scholars have generally failed to recognize the magnitude of the problem, because they believe - almost without exception - that Article 17 makes the absence of due process in a national proceeding a ground for admissibility. Part II demonstrates that this interpretation of Article 17, though seductive, is irreconcilable with the text, context, and drafting history of the Article. Properly understood, Article 17 permits the Court to find a State "unwilling or unable" only if its legal proceedings are designed to make a perpetrator more difficult to convict; if its legal proceedings make the perpetrator easier to convict by denying him due process, the Article requires the Court to defer to the State no matter how unfair those proceedings may be. Part III illustrates the potentially devastating consequences of Article 17's unidirectionality by examining Sudan's recent assertion that its plan to prosecute the Darfur genocidaires in national Specialised Courts divests the ICC of jurisdiction over those cases. Finally, Part IV suggests that, in light of those negative consequences, the Rome Statute should be amended to make the absence of national due process an explicit ground for admissibility.
Keywords: International Criminal Law, International Criminal Court, ICC, Rome Statute, Complementarity
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