An Inventive Court: the International Criminal Court (THE ICC) and the Admissibility Test

Article by Andreas Chorakis,

  1. Introduction

Last week, the ICC rendered a decision on the admissibility challenge raised by the Defense of Saif-Al Islam Gaddafi.  Saif –Al Islam Gaddafi is the son of the former Colonel Muammar Gaddafi, Head of Libyan State for more than forty years. After UN Security Council Referral on the situation in Libya in 2011, THE ICC issued three arrest warrants on the allegations of crimes against humanity. Saif –Al Islam Gaddafi was among the alleged perpetrators. His family affiliation with General Gaddafi and his position during Gaddafi’s regime makes Saif –Al Islam an important person for the Libya’s political life. For this reason, his case before THE ICC is considered a high-profile.

In June 2016, the Defense, this time raised a motion challenging the Court’s admissibility on the grounds of ne bis in idem ( not be convicted twice for the same crime). In particular, the Defense invoked the conviction of Mr Gaddafi by the Tripoli Criminal Court for the same conduct. The Pre-Trial Chamber, examining carefully the evidence decided against the motion on the basis that the decision Tripoli Court has not yet the status of res judicata. The Courts turns to its applicable law and invoke the human rights standards in the criminal process to justify this approach.

In this respect, the Court adds a new element on the admissibility test, the effect of res judicata for a decision of a national court. Such an initiative may provoke criticism against the Court for judicial activism. The article 17 of the Rome Statute, which is the legal foundation of admissibility for THE ICC does not include the element of the finality of decision ( res judicata). Therefore, the question is rising whether the decision of the Court on Gaddafi’s Challenge of Admissibility amounts to an expansive interpretation of the Rome Statute. The post will answer this inquiry assessing the practice of THE ICC.

  1. Building the Admissibility Test

Distinguishing from the jurisdiction, the admissibility is the discretion of the court to hear a case. For the THE ICC, the admissibility basis is found on the article 17 of the Rome Statute.

The jurisprudence of the Court has interpreted extensively the article, explaining the steps of admissibility test. In particular, the Court started with the terms investigation and prosecution. In the Situation on Kenya, the Court determines the need for concrete steps of investigation and prosecution of an individual. An initiation of proceedings, the gathering of materials and the interview of witnesses do not suffice as concrete steps. Latter, the Court explained the term “case”. In the first challenge of admissibility for Saif Gaddafi, it established the same conduct/same case test. Based on that test, a case before THE ICC is inadmissible when it mirrors a case before a domestic court. THE ICC did not provide any further information on the similarities that the both cases should present in order to be considered identical. In Al -Sennoussi Simone Gbagbo cases, the Court stepped forward on the same conduct/same case test underlining the need of a substantial same conduct. The Courts adopted a holistic view over the events of a situation. In this context, it argues that the conduct of the alleged perpetrator should be taken into account as whole not as isolated acts. As such, a conduct is substantially same only when refers to the same criminal activities. The last addition came with second challenge of admissibility in Saif Gaddafi case, where the Court stated that the decision of the national court should have the effect of res judicata, meaning that it is final and there is no means of reverse.

As observed, the Court follows a build up process to establish the admissibility test. Firstly, it clarifies the basic step with regard to initiation of national proceedings. Secondly, it substantiates the case by the same conduct test and it analyses what same conduct means. And lastly, it adds the element of award finality. When a substantial same case is presented before a national court, the decision of the court should be final and without possibility to appeal, as the human rights law demand. Only when all the criteria apply, THE ICC should abstain from a case due to admissibility reasons. The jurisprudence of the Court does not define whether a cumulative application is necessary.

  1. Infra or Contra Legem Interpretation?

The Court uses the building up process for various reasons. Firstly, the construction of criminal case needs time.  According to international human rights law, the term “criminal case” refers to a sequence of elements. In particular, a criminal case consists of an individual perpetrator, specific alleged violations of law which fall under the definition of specific crimes, preliminary materials such as testimonies, witnesses’ interviews and indications for the mode of criminal responsibility. The principle of fair trial and especially the feature of due process demand all these elements to be met. However, in the initial proceedings, THE ICC engages with situations not concrete case. The situations may contain conducts that amount to criminal case, but such a process needs time for investigation. Thus, in the early beginning of international criminal proceedings, it is extremely difficult to turn the situation to a case and to assess the possibility of similarities with a national proceeding. An admissibility test from bottom to the top ensures the required time in order the Court to have a clearer image. Following a step by step process, the Court is able to find the similarity and to assert whether a conduct under examination is also reflected in the national proceedings and therefore is pointless to proceed before the THE ICC due to complementarity regime.

Secondly, THE ICC has to strike a balance between two poles; On the one hand, the complementarity regime and the other hand the fight against impunity. Unfortunately, the states on the Rome Conference did not decide for a strong Court with a primary role in the punishment of perpetrators of most heinous crimes. On the contrary, they gave concurrent jurisdiction to the Court emphasizing in the primary duty of national jurisdiction to prosecute criminals. The principle of complementarity, as prescribed in the Rome Statute, is an impediment to main function of the court which is to punish the most responsible for atrocity crimes. Taking into account the voices calling for a more radical application of the complementarity, under which THE ICC stops every proceeding in the course of initiation of national proceedings, there is the risk to neutralize THE ICC and not to be able to fulfill the scope of its creation, the fight against impunity for the core crimes. To this end, the Court should become more inventive in the terms of admissibility test. The employment of a building up process is an effective method in order to avoid the risk of neutralization. By assessing the progress in every single step, the Court can differentiate itself engaging with other aspects of the situation at hand, as happened in case of Simone Gbagbo. Thus, THE ICC manages to suffice both the intention of states parties and its role to international law system.

Lastly, the building up test is in compliance with the interpretative powers of THE ICC. According to article 20 and 21, the Court may recourse to other bodies of international law in order to clarify certain concepts. Regarding to the judicial process, THE ICC is obliged to follow the standards set by human rights law. As the Court said in the decision, the human rights law is not static. In fact, it is a body of law which continuously evolves and it adapts to the occasions and times. To this end, the finality of award ( res judicata) is not something outside human rights practice. To argue in favor of the element, the Court analyses the international conventions on human rights as well as the jurisprudence of regional human rights courts which specifically demand the effect of res iudicata for the application of ne bis in idem principle. Therefore, THE ICC follows the regulations that its constitutional instrument sets as prerequisite for the judicial process.

  1. Conclusion

Having an overall view, it is worthless to discuss about a contram legem interpretation of article 17 and for judicial activism of THE ICC. The Court makes an effort to be effective employing different ways and means of interpretation. It is a method used regularly in the international adjudication. The international courts and tribunals faces a lot of constrains in their judicial process. It is undisputable that the adjudication mechanisms act infra legem. Otherwise, their decision will not have any binding effect and they can be easily annulated. In this respect, the question should not be whether the international judicial bodies act beyond their scope but how the constraints can be more flexible to achieve a more effective international justice.

Author Bio: Andreas Chorakis is a Master Candidate in International law in the Graduate Institute for International Studies and Development in Geneva (IHEID) His main fields of research are International Criminal, Public International Law, Human Rights Law, International Court and Tribunals. His master thesis focuses on the legal framework of corporate criminal responsibility. He is supervised by Professor Andrew Clapham.  He have been involved in research programs, one during his undergraduate studies on matters of human trafficking (under the mandate of the supreme court of Greece, supervising by Teaching Fellow Eleni Micha) and the other during his post-graduate studies on the matter of dispute settlement between individual contractors and international organizations ( supervising by Professor Nico Krisch). He has also worked as an assistant for the Human Rights Committee Expert, Professor Photeini Pazartzis and as an intern for United Office of High Commissioner for Human Rights (OHCHR) in the Special Procedures.

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