In a previous post I looked at the various ways the jurisdiction of the International Criminal Court could be established over alleged criminal conduct. This post deals with the separate but related issue of ‘admissibility’, ie the pre-conditions to the exercise of the court’s established jurisdiction. It’s not a bad time to be writing this post since today, slightly ahead of schedule, Luis Moreno-Ocampo, the prosecutor of the ICC, has named Col Gaddafi, his son Saif al-Islam and Abdullah Senussi as suspected war criminals.
The Rome Statute does not permit the court to supercede the jurisdiction of national courts. Rather, the jurisdiction of the court is intended to be complementary to that of national jurisdictions. Jurisdiction at the national level is prime. The position is neatly summarised by paragraphs 6 and 10 of the preamble to the statute. Para 6 says it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. Para 10 says the ICC is to be complementary to national criminal jurisdictions. So even if the court has jurisdiction, if the case in inadmissible it cannot exercise its jurisdiction.
Article 17(1) of the statute provides:
… the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
Before looking at the four grounds of inadmissibility above, it’s worth noting that the statute presumes the matter will be admissible – the case will only be inadmissible if one of the exceptions is satisfied in article 17(1). This means that, assuming the other pre-conditions of jurisdiction are satisfied, where a national jurisdiction takes no action the matter is admissible.
The grounds for inadmissibility laid out in article 17(1)(a) and (b) are probably the most tricky because they both involve an assessment by the court of whether the national authority in question is or has been ‘unwilling’ or ‘unable’ to deal with the matter. Article 17(1)(a) precludes admissibility where a state having jurisdiction over the alleged conduct is engaged in the investigation and/or prosecution of it. Article 17(1)(b) precludes admissibility where a state having jurisdiction has investigated the alleged conduct and has decided, on the back of that investigation, not to proceed with a prosecution of the individual(s) concerned. Both of these exception will not apply, however, where the national authorities cannot be said to be genuinely investigating/prosecuting the conduct (art 17(1)(a)) or where the decision not to prosecute is based on an unwillingness to do so.
“Unwillingness” is fleshed out a bit by article 17(2) which sets out the circumstances a national authority will be deemed unwilling to exercise its jurisdiction over the crimes covered by the court:
In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
Article 17(2)(a) focuses on the subjective intentions of the national authority in question: are they merely instituting an investigation/proceedings to shield the accused from the reach of the ICC. The complementarity principle would make the court unworkable if it sham proceedings could be deployed to prevent the court from stepping in. But, just because the national proceedings are moving slower than the ICC would like is no ground for establishing unwillingness. The guiding intention of the proceedings must be to guard the accused from the court’s jurisdiction.
Article 17(2)(b) and (c) on the other hand are concerned the procedural aspects of proceedings at the national level. They are focused on the objective qualities of the adopted national process. If the national authorities are dragging their heels, article 17(2)(b) will bite – the case will be admissible. If, for instance, the accused is to appear before a tribunal composed of those sympathetic to his or her cause, there are strong grounds for believing article 17(2)(c) will engage.
Unwillingness drives towards those situations where proceedings at the national level act as obstructions to justice. Inability is concerned with the situation where the national authority having jurisdiction lacks the capacity to get the show on the road. The test of inability is objective (unlike art 17(2)(a) unwillingness). Article 17(3) reads,
In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
This is an important provision because it recognises the possibility that situtations may arise where the state having jurisdiction simply lacks the apparatus to deal with the case at the national level. The criminal conduct in question may well have taken place with the context of circumstances leading to that scenario, particularly crimes committed in armed conflicts. The drafting of this provision is slightly unhelpful. The inability must be a consequence of the collapse or unavailability of the judicial apparatus.
Ne bis in idem (double jeopardy)
Article 17(1)(c) provides that a case will not be admissible to the ICC where the accused person concerned has already been tried for conduct which is the subject of the complaint. This is a principle well-known to common law systems in the form of a plea of autrefois acquit. Article 20(1) and (2) expand on this bar to admissibility:
1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.
2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.
This is all pretty straightforward. However, it is to be recalled that efforts to shield the accused from the ICC can be circumvented by the ‘unwillingess’ provisions in article 17(2)(a) and (c).
The final bar to admissibility laid down in article 17(1) relates to the gravity of the alleged conduct and is simple enough. The ICC reserves its exercise of jurisdiction to the gravest violations of international criminal law. The statute is silent as to the assessment of gravity, but the scale of the conduct is likely to be an obvious factor in the calculus.
Room for debate – outstanding questions
The language of the statute in relation to admissibility (and, particularly the bars to it) place a fair amount of emphasis on the delivery of ‘justice’. Are we to infer that ‘justice’ connotes conventional judicial proceedings? Or, can it take account of non-conventional dispute resolution mechanisms, such as amnesties or truth commissions? Would the grant of an amnesty, for example, give rise to the argument that the national authorities have been unwilling to bring the accused to justice? Here in lies the problem with a statute having, potentially, global reach. There is a case for saying that conventional judicial inquiry may not necessarily be the best cure following a violent and divisive civil war, for instance.
The other are of ambiguity is this: can a state simply say, “look, we have jurisdiction but we’d prefer the ICC to deal with it?”. Does this fall with the definition of ‘unwillingness’? Opinion is divided on this one. Some argue that the court must establish that the requirements of article 17(2) are satisfied. The problem is none of the grounds in article 17(2) address the situation where national authorities simply want to hand the situation over to the court. I prefer a different view. The complementarity principle does what it says on the tin. If authorities at the national level seek to delegate their jurisdiction over the matter to the ICC, that is a matter for them. The second point is this: article 17(1) sets out exceptions to the presumption that a case is admissible to the court. The presumption in favour of admissibility can only be offset where one of the grounds under article 17(1)(a)-(d) apply. If the statute is silent as to relinquishment of jurisdiction in this respect, there can be no obstacle to admissibility where a state seeks to do just that.
So far I have covered two related but distinct aspects of the functioning of the ICC. The court must first have a clear basis of jurisdiction. The court will be free to exercise that juridiction so long as there are no obstacles to admissibility. Once these two boxes are ticked, the ICC will almost be ready to wade in. The last ingredient is the for the initiation of proceedings to be triggered – which I will cover in a separate post in a few days.