My name is Mohamed El Zeidy,
and today we should
discuss issues of admissibility.
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Anything I am going to say, I will
say in my personal capacity,
and this has nothing to do with the opinions of the Court.
I will try to share with you some
ideas concerning
admissibility procedure
in the International Criminal Court.
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We will focus on discussing
article 17, which I consider as
core for the
operation of the admissibility regime under the Rome Statute.
But before we speak about article 17,
we need to understand
an important thing,
which is that
-
admissibility proceedings cover
a range of articles under the Rome Statute,
and they operate along [side] one another.
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Article 17 is the
core of the admissibility proceedings.
They are accompanied, or the provision is accompanied, by
articles 18, 19, and 20.
-
These are a set of articles
which govern the operation of the complementarity
or the admissibility regime under the Rome Statute.
-
17, or article 17
sets out
the criteria on the basis of which
the Court may decide to
exercise its jurisdiction in a particular
situation or case.
Article 18, comes into play
in order to regulate
what we call as preliminary
rulings
regarding admissibility,
which is a stage that
precedes
the
application of article 17,
and it regulates
admissibility determinations
by the chamber or the Prosecutor
at the situation stage--
which is the beginning
of
operation or mapping a certain
situation before we reach
a concrete case,
which will be the subject of
article 19, which I
mentioned a minute ago.
Then comes into play
article 20, which
mainly deals with
the double jeopardy clause, or what we say
the ne bis in idem: the principle
that no one should be tried twice
for the same offense.
All of these four provisions
are mainly connected with one another.
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As I said at the start,
the core
of these provisions is article 17,
because it sets out the
criteria on the basis of which
the Court may decide whether
to take up a case or
to leave a case to the
national criminal jurisdiction.
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If we look at the chapeau of article 17,
you will see that it states,
“having regard to paragraph 10
of the preamble and article 1,
the Court shall determine that the case
is inadmissible where.”
And then we have
-
four subparagraphs,
which we will speak about.
-
The first subparagraph which is paragraph (a),
subparagraph (a), we’re saying
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.
Then we move to paragraph (b), which
covers slightly different scenario
than subparagraph (a).
-
The case has been investigated by a State,
which has jurisdiction over it,
and the State has decided not to
prosecute a person concerned.
-
Also, unless the decision resulted
from the unwillingness or inability of the State
genuinely to prosecute.
-
Then we move to (c), which is
a different scenario.
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.
And this is actually what I referred to
30 seconds ago about
article 20, that there is
a relationship and connection between
reading article 17(1)(c)
and article 20 of the Rome Statute.
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The last subparagraph,
which completes the admissibility
assessment by the Prosecutor
or by the chamber,
which is the issue of gravity.
And this comes under subparagraph (d).
The case is not of
sufficient gravity to justify
further action by the Court.
I will leave my discussion on gravity
towards the end, and
first I will start with subparagraphs (a) to (c),
because these are what we
call as the complementarity provisions.
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When I started discussing
article 17, I told you
this comes under the title of issues
of admissibility.
So, the first observation you need to
understand is that admissibility
captures or involves two components.
The first component is complementarity,
-
which means the existence
or absence of national criminal proceedings.
The second component, or the second limb of the test,
is the gravity test:
complementarity assessment plus
gravity equals admissibility.
This interpretation has been confirmed
by the Appeals Chamber of the International Criminal Court
in one of its early judgments
in the Lubanga case in 2006.
-
I think it was judgment
of 14 December 2006.
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Starting now with the complementarity regime,
-
subparagraph (a) speaks about
the case is being investigated or prosecuted by a State,
which has jurisdiction over it.
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What does this mean?
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It means that we need to ask ourselves first
whether there is a case being investigated
or prosecuted by a State,
in order to be able and
to be in a position to make an admissibility assessment.
-
So, the first question would be,
“is the State investigating
or prosecuting a case?”
-
If the answer
is in the negative,
-
then we have an automatic admissibility
ruling in favor of the Court.
If a State is doing nothing,
meaning that not carrying
out any genuine investigations or any
investigations unfold,
that are not going on at the national level,
this would mean that the State
is not taking the
required action under the Rome Statute,
and the case becomes
by default
admissible before the Court.
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You will see, when I mentioned to you
a few minutes ago about the chapeau,
and I read it out and I said “having regard to
paragraph 10 of the preamble,”
and then I said “and article 1,
the Court shall determine that the case is inadmissible.”
You will see here clearly that there is a
reference to paragraph 10,
Preamble, article 1,
and the term “inadmissible.”
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The reference, the double reference here to paragraph 10
and article 1
is just to ensure
that the Court, or the International Criminal Court, is complementary,
will operate in a complementary manner to
national criminal jurisdictions. So, that puts
more of an emphasis
on the complementary nature
of the ICC or the International Criminal Court.
-
Then you will see, as well in the chapeau,
when we speak about a determination of
inadmissibility, the Court shall determine that the case is inadmissible.
And here again,
the phrasing of the provision
is in the negative.
-
We didn't say the Court shall determine
that the case is “admissible.”
We said “inadmissible”—and
that was included
by the drafters of the Statute in order to
put the emphasis
in favor of national prosecutions.
The ICC is
a residual mechanism that steps in
only under exceptional situations,
and those exceptional situations
are those situations which I
read out for you
under paragraphs (a) to (d).
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We were speaking now about the first scenario
asking ourselves whether a State
is investigating actually,
or prosecuting a case.
We were asking whether that State has jurisdiction.
Of course, as I said few minutes ago,
if the case,
if the answer is in the negative, that the State
is not investigating,
or the State decided itself
not to investigate or prosecute,
then we have an
easy admissibility determination,
and we call that
a determination of inactivity
on the part of the State,
which means that the State is
not acting at all,
and the case becomes automatically admissible.
You will see that there is a second part of the
provision, under the provision,
when we say the case is being
investigated or prosecuted by State which has
jurisdiction over it, unless
the State is unwilling or unable
genuinely to carry-out the investigation or prosecution.
And here we need to be careful
how this provision should be read.
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When I told you first, the first question
is asked, whether the case is being investigated,
and if the answer is in the negative, then
the ruling is contrary:
the case would be admissible.
But there is a different situation,
if the answer is in the affirmative.
-
If we say yes,
the case is being investigated,
or yes, the case is being prosecuted,
then the second half of the
provision comes into play.
-
Okay, we have an investigation afoot,
but is that investigation genuine?
Is the State not unwilling,
nor unable, genuinely to carry-out
the investigation or prosecution?
And that’s here when the
questions of willingness and ability
of the State comes into play, and comes
under a determination,
an assessment by the Court or the chamber,
the relevant chamber to make such an assessment.
-
Actually,
the willingness and ability,
is more of a
test to see how serious
the State is carrying-out the investigation.
-
So, if a State is claiming that,
“yes we are carrying out
an investigation.”
Then the question is
“okay, are you doing the right job?
-
Are you investigating a
serious investigation?
Are you looking at the right case?”
And here you will see that the provision as well
speaks about
a case investigating a case.
-
And this term has taken some time
for the Court to interpret in its jurisprudence.
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What we need to make sure about
in our determination, or in
the Court’s determination,
is that
the Court is investigating – sorry –
the national judicial justice system
is investigating the same case.
And here we are looking about somehow
identity of cases.
-
What do I mean by that?
I mean by that, that
when the Prosecutor
starts investigating or carrying-out her
investigations,
it builds up a particular
case out of the situation, or
out of a particular situation.
And out of that case,
you will see a number of perpetrators
or suspects selected,
a number of incidents,
and a particular conduct,
which forms, all of which
forms the parameters of that particular case.
So, it is expected
that the State is looking at
the same case before
the ICC, or before
the Prosecutor
of the ICC, the one that is of
interest to the International Criminal Court
and not any other case.
And that's what we call
identity or somehow mirroring
theory.
That we need to make sure that
the national judicial system is doing
the same case before the ICC.
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One may ask and say,
“okay, what if
-
the State is
investigating
the same conflict
or the same situation,
-
but investigating
different perpetrators or a different case,
-
is this possible?”
I would say under the
fear of sequencing,
this could happen.
A State could be investigating
another case involving
different perpetrators,
different incidents.
But this does not
-
deny the fact that for the
purpose of rendering a case
inadmissible before the Court,
the State needs at least
to be investigating
the case before the Court,
alongside the other cases.
-
Investigating only
different cases than the case before
the Court is not sufficient
for the Court to make a determination of inadmissibility.
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Then, if the State
insisted to investigate
a number of cases or a case which
is quite different than what we are doing
at the ICC, or the International Criminal Court,
then the likely result would be
that the
Court will determine that the
case is admissible before the Court.
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You will see that under subparagraph (a),
we are speaking about a case being
investigated or prosecuted.
We’re speaking about it in the present tense.
And that's why we need to understand
together that the admissibility assessment
is an ongoing process.
It's an assessment that takes place
at the time where
the Court or the relevant chamber
is ruling and making its determination.
Of course, what could be
admissible at this point in time
may change at a later stage.
And that's why the
complementarity assessment
in relation to ongoing proceedings,
or lack of proceedings,
is not static.
And it may, or the determination of the Court may change
at a later stage depending
on the circumstances of each particular case.
So, as I said, the
first part of
the provision speaks about
ongoing investigations or prosecutions.
If the State is carrying out
genuine investigations,
serious investigations,
-
or prosecutions, then the
Court will have to defer
to the national efforts.
-
If the State is
claiming that it is doing a serious job,
we must make sure
that this is happening.
How do we do that?
We are required, or we are
requesting the State to submit
concrete and tangible evidence,
which shows that the State is actually
investigating the case,
or the right case.
This is borne out of experience.
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In one of the important
decisions that the ICC
has entered the ruling in
2011 was in relation
to the situation of Kenya.
The Kenyan government lodged an
admissibility challenge,
-
telling the Court:
“Please ICC defer
-
to our jurisdiction.
You're claiming that
the ICC is premised on the idea of
complementary relationship, or complementarity
of jurisdiction, that the
primacy or the primary responsibility
rests with the State.
So, we need to carry-out our own investigations,
and there is no need that you keep
the two Kenya cases
arising out of the Kenya situation
before the ICC docket.”
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The government submitted the challenge.
The Pre-Trial Chamber, back then it was
Pre-Trial Chamber two,
-
entertained the challenge and looked
at the materials submitted by the Kenyans.
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There were a number of annexes, over
25 annexes, back then submitted.
But the core of those annexes
where mainly speaking about
future promises to
carry-out investigations
in an interval of three to four months.
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There was no concrete proof
on the part of the Kenyan government, which
shows that the case,
which was
constructed
against Mr. William Ruto
and Mr. Kenyatta,
there was no concrete
evidence that there
is an investigation going on
in relation to the suspects.
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Of course, it was difficult for the Chamber
back then
to rule, or to make a ruling,
that the case is inadmissible, and that the
case is deferred to the national
jurisdiction, or the Kenyan
jurisdiction, just on the basis of mere
promises for
judicial reform,
or for future investigations
that will be carried out after
conducting some
amendments
to the national system.
And of course, the Pre-Trial Chamber II
was prompted to issue a decision on the 30th of May 2011,
saying to the Kenyan government,
“we’re sorry, we cannot accept
that the case is inadmissible,
because you have not submitted
concrete and tangible evidence
or proof from your case records,
showing that you have
started real genuine
investigations, that you have listened to eyewitnesses,
that you have looked at forensic
evidence, that you have
carried-out, really,
investigations against the perpetrators,
or that you are investigating the same case
that we are looking at.” Of course,
this particular case
went on appeals, and it was upheld
by the Appeals Chamber in its Judgment of
30 August 2011,
saying “yes, you need to have
something more concrete
than just mere
intentions of doing
investigations or carrying-out investigations in the future.”
Of course, the Kenyan government
back then claimed
violation of State sovereignty
and violation of respecting
the principle of complementarity.
But if we look objectively
-
on the core of the material submitted,
you will see that it was very clear that
we needed to have something more
concrete for an objective assessment.
The second part that you would need to
understand as well
in subparagraph (a), which
is resembled as well in paragraph (b),
subparagraph (b),
is the mention to a “State with jurisdiction.”
What does this mean?
It means that the
expected investigation should,
in principle, be carried out by a State
proper, which
may exercise jurisdiction
under the different forms of jurisdiction,
known under international law,
which are the
territoriality principal,
active personality,
passive personality,
and perhaps, universality principle.
Although, this is quite,
would be a quite broad reading,
but it is theoretically possible.
Here the reference to term “State,”
I believe that
the term “State” here refers to
States proper, States
who are able or which are able
to join the Rome Statute
pursuant to article 125 of the Rome Statute.
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One may ask what about
non-State actors or
State-like entities,
-
which have some contested statehood,
-
but equally are capable to carry-out proceedings.
This is still an open
question before the Court.
We don't have really
clear rulings on that at this point in time.
One argument could be that
article 17 may be read
for the particular
purpose, or giving a particular
-
jurisdiction to
State-like entities, to submit
challenges, or we may
accept admissibility findings or
investigations carried-out
by a number of
State entities or State-like entities.
And perhaps, if those
entities are capable of carrying-out
proper genuine investigations,
we may accept
that as a valid investigation.
Of course, this would be subject to
future rulings by the chambers of the Court.
But perhaps we may
think of
entities like Taiwan,
for example.
-
Taiwan cannot join the Rome Statute
under article 125.
But still, it is an entity
which has all the capacity
and a judicial system that is capable,
for example, to carry-out investigations.
And the question is whether this
-
can be accepted
under article 17 or not.
It remains an open question, but
it's one important aspect that you need
to pay attention about.
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Paragraph (b) speaks about a different scenario,
which is a continuation to subparagraph (a)
when we say the case has been investigated.
So, here we’re speaking about a scenario whereby,
where post-investigations,
the State has decided to investigate.
It has already carried out an investigation,
which has been accepted.
But then the investigation
after hasn't been concluded.
The State reached a point,
for whatever reason,
may be political, may be
something internal going on
in the judicial system,
on the ways of which the State decided
not to prosecute the person concerned.
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The decision not to prosecute
could also be as a result of
lack of sufficient evidence
to press charges for prosecution
or to proceed
with prosecuting
a certain individual or a number of individuals.
Here, because we are speaking about
again an ICC,
or an International Criminal Court with
complementary jurisdiction, so
we should respect
-
the genuine national decision
of the State not to prosecute.
So, it doesn't mean that if a State decides
at some point saying, “okay we have investigated,
but we have decided not to prosecute.
We don't have really enough evidence to prosecute.
Maybe what we have is not enough."
In principle, the ICC,
or the international Criminal Court, should
accept
-
the finding of the national judicial system,
and should defer to that finding,
unless there is
a situation of unwillingness or
inability to carry-out genuine proceedings.
Same like subparagraph (a)
and that's a test, another test
of good faith or bad faith.
Of course, investigations under
subparagraph (b) have to be tested,
whether it's serious or not.
-
Of course, the national decision
has to be assessed
as well in light of the circumstances of the case.
So, this would be a case-by-case assessment
depending on the circumstances of each particular case
in order for the Court to make
a finding, whether the national
decision not to prosecute is
sufficient or not.
-
What we need to know,
and what I need to share with you here,
-
that a decision
to surrender a suspect
-
to the ICC is not in
itself a decision not to prosecute.
Because some may mix
and think that when a State
decides to relinquish jurisdiction
in favor of the Court, and says,
“I don't have the capacity.
I have internal
reasons for not prosecuting.
I don't have enough evi– whatever, and I'm
going to surrender the person or defer to the
jurisdiction of the Court.” Some people would say,
“oh this is a decision
not to prosecute, and
therefore,
-
it is not a genuine decision.
We need to
-
say that the
State is not willing
to carry-out a proper investigation.”
No, we have some rulings
by the Appeals Chamber, and if I can recall,
the judgment of 25 September 2009,
which made this clear,
that a decision of a State
to surrender a person to the Court,
and relinquishing jurisdiction in favor of the Court
is not that kind of
decision that would show the bad faith of a State.
On the contrary, it shows
that the State is actually willing to
carry-out proceedings, but before a different forum.
It's a burden-sharing idea,
-
which would make
-
the complementary relation between
the ICC and the State more strong.
-
And we have that already,
for example, in
situation of Central African Republic,
where this was claimed at some point
before the chambers.
And there was a ruling that
such a decision
is not to be considered as such
showing bad faith.
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Now, you need to understand as well
that the jurisprudence of the Court so
far has not really
delved
too much into the question of willingness and ability.
We have been here,
or the jurisprudence of the Court
for the last years,
almost a decade, has been focusing
on the first subparagraphs (a) and (b)
of the Rome Statute, whether there is an
investigation going on,
whether a State has investigated already,
how serious that investigation is,
and the question really of willingness and
ability has not been invoked that much,
save for two cases
arising out of the Libya situation:
the case against Saif al-Islam Gaddafi
and the case against Abdullah al-Senussi.
The two decisions that came out by Pre-Trial Chamber I,
in
May and October 2013,
spoke and focused mainly on the
inability of the State, rather
than the willingness,
and the whole findings
were mainly revolving around,
as well inactivity,
which is the first scenario
under subparagraphs (a) and (b).
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We move now to subparagraph (c),
which is the double jeopardy clause,
which I mentioned to you some minutes ago.
The person concerned has already been tried
for conduct, which
is the subject of a complaint,
and a trial by the Court is not permitted
under article [20], paragraph 3.
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And here, as I said, this is a
ne bis in idem claim.
Sometimes a State
may carry-out certain investigations
and prosecutions
-
and reaching to a conviction
or an acquittal,
-
depending.
[T]hen the person will come
and have the right to say,
“I'm sorry, ICC. I have
been tried at the
national level,
-
and I have been tried for the same, for the
similar conduct, which is subject
to the complaint against me
at the ICC.
So, as a right, or as
a human right, I should not be tried twice.”
[H]ere the language conveyed
by the drafters
-
“conduct, which is the subject of complaint”,
it doesn't say crime.
Here there is a distinction that we need
to pay attention to, that we’re
speaking about a criterion
of same conduct.
-
That means that
actually, the crime labeling
-
does not really matter.
So, if a domestic system
is
prosecuting, or has tried a person,
-
not for the exact same international crime.
Like, for example,
murder as a crime against humanity,
and the national system
tried the person for
ordinary murder.
-
Still, it is possible for the person
to come and say, “I'm sorry.
I have been tried for the same conduct”,
because the murder is actually the conduct,
which the person has been tried for.
[T]herefore, there is a defense of ne bis in idem
before the Court.
[T]he Court in principle,
and depending on the circumstances
of the case, should
defer to this
trial and should respect the national decision.
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[T]he term “conduct” here
was inserted
during the Rome negotiations as well
in order to avoid any kind
of complexity of assessment,
and because the drafter thought that
the term “same crime”
or “same case” might be a
little bit confusing.
The idea of inserting, or making
reference to, the term “ordinary crimes,”
same as found in the
Statutes of the
International Criminal Tribunal for the
former Yugoslavia, is not
necessary to use it here, and they thought it was confusing.
So, the term “conduct” was used here
as the defining factor
for looking at
whether a person should be tried once
more or not before the Court,
-
and that is the reason conduct has been there.
The Appeals Chamber, in recent jurisprudence,
has added a qualifier to the
idea of conduct.
What does this mean?
It means, as I told you when we said we would make
an assessment of admissibility, is the case
being investigated?
Has the case been investigated?
So, as I said here, the case has components.
The case would include
individuals, perpetrators,
and would include as well, conduct.
That's the other dimension of
a definition of a case.
-
When the Appeals Chamber had to rule on
that a few years ago,
the Appeals Chamber added the qualifier saying,
“what is required is
that we make sure that the State
is investigating, prosecuting,
trying for substantiating the same conduct.
[I]n that
judgment, which I think was 30 August 2011 judgment,
the Kenya judgment,
the ICC Appeals Chamber
added such qualifier.
-
Having in mind some
kind of leniency, and
giving some kind of discretion to the
national judicial systems,
ensuring that the Court
is acting and respecting
the complementary nature
-
of its jurisdiction,
and respecting States’
sovereign rights or State sovereignty,
which was the main
reason for
-
actually drafting a complementarity regime
under the Rome Statute,
which was I think
one of the
major reasons that
States accepted to have an
ICC altogether.
-
Now subparagraph (d), I said
I will leave it towards the
end to give some ideas.
We move now to sub –
to paragraph 2 of article 17.
Paragraph 2 mainly speaks
about unwillingness.
-
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—
and here
in paragraph 2,
you will see
that we have
a number of criteria,
which determines unwillingness.
In paragraphs,
subparagraph (a) and (b),
I flagged the idea of unwillingness and inability,
but these provisions do not define
the core of willingness or ability.
-
Paragraph 2 comes into play in
order to define, and to say, “how
can the Court make an assessment
of the willingness of the State?”
What we need to observe here under
paragraph 2 is that
the paragraph 2 assessment is a
question of testing the
good or bad faith of a State.
-
It's quite a subjective
provision, and the
drafters really struggle during
the Preparatory Committee,
drafting and
revising the Rome Statute
before it became
in its final form.
They struggled with this provision,
trying to remove
most elements of subjectivity,
trying to make the test as objective as possible.
But still, if you read
the subparagraphs [of paragraph] 2,
you will see clearly that
still it's inspired by some
elements of subjectivity.
-
Why I’m saying that, I'm saying that
because if we read subparagraph (a)
under paragraph 2, you will see clearly
that we are speaking about proceedings
where, or are being undertaken,
or the national decision was
made for the purpose
of shielding the person concerned from
criminal responsibility for the crimes
within the jurisdiction of the Court.
[T]hen we move to subparagraph (b).
There has been unjustified delay in the proceedings,
which, in the circumstances
is inconsistent with an intent
to bring the person concerned to justice.
And then (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.
And you see here, there is a common
element in these three paragraphs,
which is the idea of passing
a judgment on the intent of the State,
whether really the State
has good or bad intentions.
And that was not easy in the
negotiations to make State accept,
because you’re going to make
a ruling saying the State has bad faith
or good faith.
So far, the jurisprudence of
the Court, or of the ICC,
has not really tackled
the question of willingness.
And so far, we have been,
or the Court, has been operating within the
parameters or ambit of situation of
inactivity, which
-
is actually resembled under
subparagraph (a) and (b)
of paragraph 1.
However,
due to the fact that we
don't have case law or jurisprudence
interpreting
the willingness and ability, maybe
we can share together
some observations based on
some research, and I can tell
you that the jurisprudence of other human rights
bodies may be
of guidance in this case.
-
When we speak about proceedings
under subparagraph (a) which
were, or are, being undertaken, or the national
decision was made for the purpose of shielding the person concerned.
How can I test
or pass a judgment saying that
the proceedings were made for the purpose of shielding someone?
-
Of course, in order to reach a determination
as such, I need to test
again, how
the national investigation were serious.
How serious those investigations took place?
Whether the State really
was looking
or taking
this matter in a serious manner?
If you look at the jurisprudence of the European
Court of Human Rights, for example,
in the context of examining
cases
involving right to life,
-
torture cases, and enforced disappearances,
you will see that there were certain
cases whereby the European
Court of Human Rights have
set out certain guidelines looking at
seriousness of an investigation.
I can remember one notable
case issued by the
Grand Chamber of the European
Court of Human Rights, which is the Neshoba
versus Bulgaria case, I think
ruled in
2005,
whereby the
Chamber set out a number of criteria
saying that
in order for an investigation to be serious,
the State needs to show that
there was a thorough investigation
carried out, forensic evidence
has been taken, witnesses testimonies
have been carried-out,
and any kind of
negligence in carrying-out
any of these components,
the investigation will fall [short] of seriousness.
And therefore, if we apply this
mutatis mutandis to the Rome Statute,
we may reach a similar conclusion
that the State
may have been acting
in bad faith, because the investigation was
not conducted seriously.
And therefore, perhaps we may
infer that the State
was shielding or intended
to shield the person from criminal responsibility.
And actually, the case before the
European Court of Human Rights, which I refer to,
if I can recall correctly,
it does use the term
“shielding from criminal responsibility,”
same as it appears under
subparagraph (2)(a) of article 17.
-
We move to the second
subparagraph, which is (b), which
speaks about delays.
There have been an unjustified
delay in the proceedings, which in the
circumstances is inconsistent with an
intent to bring the person concerned to justice.
-
You see here we’re speaking about a delay,
and we’re not, we’re not speaking
about only a normal delay, we’re speaking about an
unjustified delay.
The term “unjustified” was added at the
Preparatory Committee.
And it was replacing a
previous term which was “undue delay.”
States were very nervous about that,
saying “no, we need
a formulation which would give the State
the justification to say
why a delay took place
in a particular situation.”
I think this was legitimate on the
part of the States to say that we
have the right to excuse ourselves.
Sometimes delays could take place
in a criminal process, and we
need to have the
possibility of
raising these issues before the ICC.
So, the term “unjustified” was
inserted in order to provide
the State the possibility of
excusing itself, putting
forward a number of reasons,
which led to
particular or potential delays in the process.
-
What makes a finding difficult
under the delays required
under subparagraph (b), is that
we are speaking as well not
only about the normal delay.
You need to have a delay, the
delay must be unjustified,
even when the State puts forward
some justifications,
we need to prove that this has not been unjustified.
And on top of that,
we need to make an assessment
whether in the circumstances of the
assessment,
or the circumstances of the case, this
was at the time
inconsistent with an intent to bring the
person concerned to justice.
And that's a very high threshold.
It makes it difficult
either for the ICC Prosecutor or for the
chambers to infer
such an intention that
these delays and these
justifications put forward
by the State were not really
good enough.
And they were accompanied by a bad
intention by an inconsistent
intent to bring the person concerned to justice.
And that, this kind of formulation was
deliberately inserted by
the drafters in order to ensure
that really the emphasis
is on
-
the primacy of national jurisdictions,
it is the primary responsibility for States
to carry-out their proceedings, and it's not
for the ICC, the ICC
has only an
exceptional jurisdiction,
which will carry-out its proceedings
only in the really
very-very extreme and exceptional
situations, when there would be
an impunity gap or when
impunity would be at stake.
-
Also, same
as subparagraph (a), I think
the jurisprudence of the European Court of Human Rights,
the Inter-American Court of Human Rights
have spoken about issues of delay.
I think they did put
some criteria, or they
developed some criteria on the basis of which
we may test delays in the criminal process.
-
I think as well
that the European Court maybe have
assessed delays in the strict sense of the term,
meaning that
the duration whereby
a person has been charged or where
States pressed accusations against
a certain individual.
I think the ICC provisions
[are] broader than that.
We are testing here delays that
relate to the entire criminal process
from the very start of the investigation
into a situation, up until
maybe a final
decision on conviction or acquittal.
So, we’re speaking about a broad range
or a long series of
proceedings that need to be tested,
Nevertheless, I still
believe that the jurisprudence of the European
Court and Inter-American Court would be
useful in making some kind of analogies.
We have some
cases maybe before the European Court,
whereby a particular
test was developed
to test delays in the criminal process,
such as the complexity of the case,
conduct of the applicant, and the
conduct of the relevant authorities.
-
Each of these elements may contribute
actually to
-
delaying the criminal process.
If we have a complex case
involving multiplicity
of individuals or suspects,
involving high volume
-
of documents,
-
of course it's not going to be
carried out, the investigation is not going to be carried out
in the same interval of time
such as a case which
has less volume
-
and which has maybe one perpetrator.
If you have a case with ten perpetrators it’s not the
same, like, if you have a case with one perpetrator.
If you have a case involving
hundred thousand
pages, it’s not the same like 10,000 pages.
If you have a case which involves
difficulties in having access
to witnesses or to the sight seen.
Or if you are conducting investigations
in a country where there
is an ongoing conflict, it’s not the same
when you go conduct investigations
in a post-conflict country,
where things might have
rested a bit and security concerns
would be less.
So, all of that could contribute
to an assessment
on whether a case is complex.
The second issue: the conduct of
the applicant.
Sometimes in criminal
process before even the European Court
and before national systems, you see that the
European Court has discovered that
the applicant would request
a number of delays or postponements
to Court hearings, and that
could really lead [to] delays.
Sometimes it could be the State itself
requesting postponements
or calling for certain delays,
having in mind maybe
to buy time.
If there's a bad intention or
maybe it could be genuine.
These factors, I think,
could be borrowed and relied upon by the Rome Statute
or by the judges of the ICC
in making their assessment and
making a determination under
article 17 in relation to delays.
I can recall one important and
interesting case before the
Inter-American Court.
I think it was the case of Cantos v. Argentina,
whereby by it was found that 10 years delay
were justified in the process,
and the Inter-American Court
back then did not blame
the State for such a long duration.
-
If I can recall correctly,
the Inter-American Court back then said,
in principle, ten years
is a long duration to
have,
to carry-out an investigation
and to finish a case.
However, in light of the
complexity of the case, in light of the behavior
of the applicant himself,
and in light of the circumstances
of the case, we think
that ten years are justified.
So, you see that the
numbering here, whether it's five years
or ten years, delays
is not really the decisive factor.
What is decisive is
the different factors put together,
and on the basis of which you may
see whether these kind
of delays were justified or not.
Whether the government has something to do with these
delays, on the basis of which you may
infer a bad intent on the
part of the State.
Or whether actually, it was the accused himself
or the suspect who was playing
a big role in such delays.
And therefore, you cannot really
blame the State for
having been causing these delays.
Therefore, we still,
the Court, has to respect
the national decision that they will take
more time to carry-out their investigations.
-
We move now to subparagraph (c),
which speaks about impartiality
and independence, which
is one of the
important human right
aspects, and
one of the one or two
dimensions for, which
ensures the rule of law.
Any trial, any proceedings,
must be independent and impartial.
They need to be carried out by an independent
tribunal, by impartial judge,
and if it's detected that it's
otherwise, of course we have a problem.
We have a big human rights violation here.
[T]his is reflected in the Rome Statute.
Again, it is not
any independence.
You need to make sure that the
proceedings were concluded independently,
impartially in
order to respect the national decision,
and then you make, you want to make
sure that the manner
in which such proceedings took place
were not in the
circumstances inconsistent with an intent
to bring the person concerned to justice.
[H]ere again, the threshold is a bit high,
because here you are passing
a judgment on
the intentions of the State, and it's quite
difficult to prove
that the State was acting
with bad intentions.
You need a lot of proof for that.
-
Again, we have jurisprudence
from human rights bodies, whether the
European Court for Human Rights,
whether the Inter-American Court, whether even the
human rights committee, which has ample of
jurisprudence on interpreting impartiality,
independence, and maybe we can draw
some analogies on the basis
of the interpretation provided
by these human rights bodies.
-
Now, I move to the last paragraph
of article 17, which
is paragraph 3, which concerns inability.
If you can recall, when I
first spoke about article 17,
I told you we would speak about the situation
where there [the] case is being
investigated or prosecuted, unless
the State is unwilling or unable.
We spoke about a determination,
whether, or a
question that needs to be asked, “is the case
being investigated?” And I said if
the answer is “no, it’s not being investigated,”
then we have an easy admissibility finding.
Then the case becomes admissible automatically
before the Court, a contrary reading of the provision.
But I said as well if
we have determined that
-
the State has conducted investigations,
or the State claims that it has conducted
investigations or prosecutions, or both,
then we need to see whether the State is
not, or was not unwilling or unable.
We spoke, we defined inability.
Now, we need to see whether in the
situation the State was
not unable to carry-out the proceedings.
Again, same as unwillingness,
inability is not defined under article 17,
paragraph 1.
But inability and the conditions
for determining inability
have been defined under
paragraph 3 of article 17.
-
Paragraph 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.”
-
The “otherwise unable to carry-out its proceedings,”
at the end of the provision, this is a catch-all clause.
It captures those situations,
which are not covered in
the previous part of the provision.
I think it was important to add that
in order to cover situations
which are not mentioned here,
straightforward.
-
So far, the jurisprudence of the Court
has little rulings
on inability, but it does.
[T]he most important rulings we have,
[they are] in relation
to the Libya situation.
The two cases against
Saif al-Islam Gaddafi and
against Abdullah al-Senussi as head of intelligence.
The Chamber made rulings
on inability and the the incapacity
of the Libyan judicial system
to carry-out the proceedings.
What the Chamber did back then,
which was Pre-Trial Chamber I, in its
decision of
October and May 2013,
it spoke mainly
about an unavailability
of the national judicial system.
-
The Court did not speak about
collapse, whether total or substantial.
It jumped immediately to speak about unavailability.
-
Of course, the circumstances of the case
was that
-
for Saif al-Islam, it was very
clear that Saif was
detained under the militia
in Zintan, and was not
under the control
of the national government in Tripoli.
Since there
was no control over Saif, and
he was not under the authority of the
recognized government,
-
there was actually
a situation of
unavailability on the part of the Libyan system.
Why?
Because as the provision dictates
under paragraph 3,
---
the [State] was not able
to secure
the custody of the accused,
-
which is one of the criteria
set-out under this provision.
The State is unable
to obtain the accused,
or the necessary evidence,
and the testimony, or otherwise unable to
carry-out its proceedings.
That's the last phrase.
So here, the situation was
that the State was unable to
obtain Saif al-Islam, because
he was not under the custody of the government.
So here, this resembled a
situation of inability.
An important observation you need to know
in relation to inability
vis-à-vis unwillingness
is that the inability test
is more straightforward.
It's an objective test,
and that's why during the
negotiations of the Rome Statute, it was easy to pass.
There were no disagreements about the inability provisions.
Straightforward: it's either the State is
capable of doing the job, or the State
is not capable of doing the job.
-
[In] the scenarios that I read for you, 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 proceedings.
You need to make sure that any of
these scenarios, inability to
obtain the accused, inability
to secure necessary evidence,
or to carry-out testimony,
or inability whatsoever
to carry-out the proceedings, must be
linked either to
total or substantial
collapse or unavailability
of the national system.
If we don't have any
link with these
three scenarios, then you cannot
make a determination
on the basis of inability,
and therefore, the
provision will not be satisfied.
So, any kind of
-
inability scenario must be linked
either to a total collapse or substantial collapse.
The term “substantial collapse” was subject
to some debates during
the drafting history.
It was first
replaced by
term “partial collapse.”
Some States got nervous about
that saying, “well
in some countries you may find
a collapse taking place
in only part
of the country, while there
may be other parts or
portions of the country with a
functioning judicial system, and
they can carry-out the job.”
There is no point in making
that type, or these type of States,
naming them or
labeling them as
unable due to a collapse,
no.
So, that's why the term
“partial” was deleted, and it was replaced by
the term “substantial,” which
resembles a more
serious
type of collapse, which is a little bit
less than a total collapse in the entire country.
Maybe something of such
intensity that it's, that it's,
almost going to paralyze the
judicial system in the country.
If we found that, then
you can make
a finding that the State
is unable to carry-out the proceedings.
-
As I said, in Saif al-Islam Gaddafi case,
the Chamber relied on unavailability
of the national judicial system,
and the Chamber refrained from
doing any, or from passing a
finding of any collapse.
Although, in my personal opinion, I think
the situation with Libya
is a situation of a failed State,
which could actually resemble
a kind of a substantial collapse in the system.
The Chamber could have
passed a ruling saying that
there was a situation of substantial collapse in the
country, but perhaps,
in order to make sure
that we are respecting State sovereign rights,
the finding was mainly
based on the unavailability
of the national judicial system.
That concludes my
preliminary views on Article 17.
If you would need to
have further readings on that,
there are important decisions and judgments,
which have interpreted
article 17 that you may want to read,
such as the decision of Pre-Trial Chamber I,
10th February 2006 in the Lubanga case,
and in Ntaganda case as well.
There is another decision,
which is the decision the judgment
of the Appeals Chamber,
25 September 2009
in the Katanga case
arising from the DRC situation.
We have the judgment of the
Appeals Chamber of 30 August 2011.
In the Kenya case, we have
as well the
decision of Pre-Trial Chamber II,
opening or authorizing an investigation
under article 15.
Decision of 31st March 2010,
which speaks about admissibility
determinations at the situation
stage before having a concrete case,
and that, I think,
was the first decision ever
to define the parameters of an admissibility
assessment in the context of a situation.
-
So, it's worth reading.
You will see as well,
we have as well an important
decision issued by
Trial Chamber III.
I think it was 24 June 2010.
That speaks as well about,
-
discusses the question of
subparagraph (1) (b)
of article 17, which is the decision
not to prosecute.
You will see some ideas
by the Trial Chamber on that.
So, these are core decisions
and judgments that I
would advise you to
read in order to understand
more
the question of admissibility
under article 17.
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Thank you for listening for this.