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