Such an interpretation is not only irreconcilable with the wording of the provision, but is also in conflict with a purposive interpretation of the Statute. The aim of the Rome Statute is ‘to put an end to impunity’ and to ensure that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’. This object and purpose of the Statute would come to naught were the said interpretation of article 17 (1) of the Statute as proposed by the Appellant to prevail. It would result in a situation where, despite the inaction of a State, a case would be inadmissible before the Court, unless that State is unwilling or unable to open investigations. The Court would be unable to exercise its jurisdiction over a case as long as the State is theoretically willing and able to investigate and to prosecute the case, even though that State has no intention of doing so. Thus, a potentially large number of cases would not be prosecuted by domestic jurisdictions or by the Intemational Criminal Court. (para. 79)
I am puzzled by the penultimate sentence of this paragraph, which speaks of a state being ‘theoretically willing … even though that State has no intention’. But if a State has no intention of prosecuting, surely it is unwilling.
The issue seems to be a direct result of the so-called self-referrals before the Court. When Congo refers a situation to the Court and cooperates in prosecutions, it is in a sense ‘willing’, and therefore under article 17 the case might be deemed inadmissible. In effect, what it is doing is consenting to the jurisdiction of the Court. It is ‘willing’ for the accused to be prosecuted, but ‘unwilling’ to do this before its own courts. However, rather than describe this as a sign of ‘unwillingness’, the judges have preferred to call it ‘inactivity’. Possibly this is considered to be less pejorative.
But going back to self-referral (under article 14), the whole point of requiring referral of a situation rather than a case was to prevent a State party from targeting an individual for prosecution. This was considered to be incompatible with fair justice. But by allowing a State to make a case admissible merely because it is ‘inactive’, the Court effectively allows this result. The State can target an individual for prosecution by its inactivity. It can do indirectly what it is not supposed to do directly.
The real problem here is that we are trying to sort out an interpretation of article 17 that is a consequence of a distorted application and interpretation of article 14. If self-referral had not been allowed at the outset, probably these difficulties in applying article 17 would not have arisen. When article 17 was drafted, the idea of 'self-referral' was not seriously entertained. It is meant to apply to genuine referral, by one State against another, rather than the consensual relinquishment of jurisdiction by a State in favour of the International Criminal Court.
It is quite gratifying to see the importance that the Appeals Chamber attaches to a recent monograph on the question of complementarity: Mohamed El Zeidy, The Principle of Complementarity in International Law (http://www.nijhoffonline.nl/book?id=nij9789004166936_nij9789004166936_i-368) which appeared last year. El Zeidy’s book is largely based on the PhD thesis that he defended at the Irish Centre for Human Rights two years ago. He is now working as a legal officer in Chambers at the International Criminal Court.
Thanks to Joe Powderly.