The Show Must Not Go On: Complementarity, the Due Process Thesis and Overzealous Domestic Prosecutions

in International Criminal Law Review
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There exists a measure of uncertainty as to whether flawed domestic proceedings in respect of alleged perpetrators of international crimes may constitute ‘unwillingness’ in terms of the International Criminal Court’s complementarity regime, in particular where such proceedings are conducted in a manner that is detrimental to the alleged perpetrator. This article canvasses the relevant provisions of the Rome Statute of the International Criminal Court as well as various theories that have addressed this issue. Although due process violations in domestic proceedings do not per se render a case admissible before the ICC, the article suggests that the conjunctive requirements of Article 17(2)(c) of the Rome Statute, and, ex post facto, Article 20(3)(b), may be interpreted to provide for the admissibility of egregious and deliberate violations of due process in domestic proceedings that remove or significantly diminish the risk of losing normally carried by the prosecuting authority.

The Show Must Not Go On: Complementarity, the Due Process Thesis and Overzealous Domestic Prosecutions

in International Criminal Law Review




Hellersupra note 8 p. 257.


Yangsupra note 21 p. 126.


Hellersupra note 8 pp. 263–264.


Hellersupra note 8 p. 264.


K.J. Heller‘Why the Failure to Provide Saif with Due Process is Relevant to Libya’s Admissibility Challenge’Opinio Juris2 August 2012 (accessed 2014/01/20).


Hellersupra note 8 pp. 260–261.


Mégret and Giles Samsonsupra note 5 p. 573.


Frysupra note 26 p. 38.


Mégret and Giles Samsonsupra note 5 p. 573.


Hellersupra note 29.


Mégret and Giles Samsonsupra note 5 pp. 577–581. First as a treaty court the ICC cannot act beyond its mandate as per the Rome Statute. Secondly domestic trials may have an inherent value over and above that of international trials. Thirdly the ICC is not a human rights court. Fourthly ICC interference is a drastic measure that is properly intended for cases with no prospect of coming to fruition due to State complicity in the crimes committed or State-bred impunity. Fifthly the ICC is not and cannot be the solution to all the world’s legal problems. Sixthly the criminal process in international criminal courts is not beyond criticism. Seventhly the due process thesis does not acknowledge diversity within the multiple procedural law traditions of the world. Eighthly the Court has a very limited financial and institutional capacity. Ninthly domestic legal systems especially those in States emerging from conflict or political transition must be given a fair chance and a reasonable amount of time to implement judicial reform. Lastly a trial in The Hague may create the perception that notorious defendants receive preferential treatment in relation to other less high profile or less symbolic defendants who may be facing similar (or worse) prospects before national courts.


Mégret and Giles Samsonsupra note 5 p. 576.


Mégret and Giles Samsonsupra note 5 p. 578; see also Stahn supra note 22 p. 344: “[T]he ICC admissibility system is not a forum or an appeal instance to remedy general human rights violations in domestic criminal proceedings”. However see also Fry supra note 26 p. 47: “Taking internationally recognized fair trial principles into account does not mean that the ICC would turn into a human rights court (…). The drafters did not intend the Court to be the type of human rights body we know from international human rights law but it does not mean that human rights will not play a role”.


Mégret and Giles Samsonsupra note 5 p. 587.


Hellersupra note 8 pp. 260–261; Bishop supra note 35 pp. 411–412; see also Fry supra note 26 p. 42: “One may conclude that [the conjunctive requirement] is reason enough to assume that an unfair trial designed to convict but still with the intent to bring the person to justice does not constitute unwillingness on the part of a state”.


Hellersupra note 8 pp. 260–261. See also Kleffner supra note 33 pp. 151–152 (citing the Concise Oxford Dictionary in which “to bring someone to justice” means to “arrest and try someone in court for a crime”).


Hellersupra note 29. However see also Gioia supra note 7 p. 1111 (reaching the opposite conclusion): “A plain assessment of [national proceedings that are ‘inconsistent with an intent to bring the person concerned to justice’] seems to favour an interpretation referring not solely to the ascertainment of guilt and subsequent punishment but rather to an impartial assessment of the position and role of the accused consistent with the general principles governing the interpretation of a treaty [Article 31(1) of the Vienna Convention of the Law of Treaties (1969)]”.


Hellersupra note 29.


Mégret and Giles Samsonsupra note 5 p. 586: “[T]he use of the word justice [in Article 17(2)(c)] encompasses the broad idea that the goal is indeed to make the person criminally accountable not to actually defeat the goals of the criminal process through an entirely illusory process”. See also Fry supra note 26 p. 48 (expressing the view that “justice” in the context of Article 17(2)(c) should be interpreted to refer to a broader notion than that which was suggested by Heller for whom it is synonymous with conviction or criminal accountability).


Werlesupra note 65 p. 45.


Bilskysupra note 88 pp. 3 14–15. The author argues that the Eichmann trial “[served] as a consciousness transforming vehicle” within Israel. According to Bilsky “[the Eichmann] trial played an enormous role in transforming Israeli collective memory and identity. The transformative power of the trial consisted not only in determining the guilt of a Nazi perpetrator by a Jewish court nor even in representing the story of the Jewish Holocaust for the first time on a public stage through survivor testimonies. Rather its transformative importance lay in the public forum it created for translating the memory of the past into a concept of the state’s Jewish and democratic identity”.


Mégret and Giles Samsonsupra note 5 p. 587.


Petersonsupra note 87 p. 260.


Mégret and Giles Samsonsupra note 5 p. 584.


Mégret and Giles Samsonsupra note 5 p. 586.


O’Donohue and Rigleysupra note 20.


Mégret and Giles Samsonsupra note 5 p. 583.


Hellersupra note 8 p. 256.


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