Complementarity: Contest or Collaboration? - FICHL

Complementarity and the Exercise of Universal Jurisdiction for
Core International Crimes
The Court is yet to develop guiding jurisprudence on the contours
of the terms „unwillingness‟ and „inability‟. Nonetheless, in examining the
meaning of unwillingness, Trial Chamber III has held that, pursuant to
article 17(2), the Court must consider whether: (i) the relevant individual
is being shielded from prosecution, (ii) there has been unjustified delay
that is inconsistent with an intention to bring the accused to justice and
(iii) the proceedings lack independence and impartiality. If the State is
unwilling to proceed with a case domestically in view of the relinquishment
of its jurisdiction to the Court, and if none of the considerations
specified in article 17(2) apply, the Chamber ruled that this is not „unwillingness‟
within the meaning of article 17(1)(b). 25 In view of inability,
although the Chamber did not elaborate on the parameters of its inquiry, it
considered several factual indicia that rendered the domestic authorities
unable to proceed with the case. 26 Finally, Trial Chamber III pronounced
on the question of whose assessment is relevant for the purpose of the
Court‟s own determination. In view of the varying assessments before it,
the Chamber observed that under Article 17(l)(a) and (b) of the Statute
“as regards unwillingness or inability, it is not the national courts‟ determination
as to whether or not they are unwilling or unable genuinely to
carry out the investigation or prosecution, but the State's unwillingness or
inability, that is relevant. Whilst the State can no doubt take into consideration
relevant observations made by the judiciary, it is not bound by
them”; going on to emphasize that, nonetheless, “the ultimate determination
on these matters is made by the ICC”. 27
25 Ibid., paras. 243-244.
26 The Chamber considered the cumulative effect of the submissions by the Central
African Republic indicating that it did not have the capacity to conduct a trial of the
kind before the ICC, given the human resources required, the number of cases pending
before the national courts and the shortage of judges, as well as the budget of the
Ministry of Justice. Other practical problems included the continued operations of the
MLC militia and the consequent instability of the region; Bemba Admissibility Decision,
paras. 245-246. See also discussion on unwillingness in the decision of Trial
Chamber II in the Katanga and Ngudjolo case, although the requirement for the assessment
was set aside on appeal; see Prosecutor v. Germain Katanga and Mathieu
Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility
of the Case (Article 19 of the Statute), Case No. ICC-01/04-01/07-1213tENG,
16 June 2009, paras. 74-95.
27 Bemba Admissibility Decision, para. 247.
FICHL Publication Series No. 7 (2010) – page 90