The dismissal of charges against several thugs who worked for Blackwater by an American judge (http://documents.nytimes.com/memorandum-of-dismissal-of-charges-against-blackwater-guards#p=1) raises interesting questions about the complementarity regime at the International Criminal Court. Iraqis are outraged, understandably, but they must understand that the case is an example of the role of fundamental rights in a criminal justice system. The prosecutions were apparently relying upon statements that were furnished by the accused who were promised by investigators that these would not be used against them. The judge threw out the charges because this violated the right to protection against self-incrimination, calling this a ‘reckless violation of the defendants’ constitutional rights’.
The real question, though, is whether this shows the ‘inability’ or ‘unwillingness’ of the American justice system to bring such suspects to justice. The question is theoretical, because the Court doesn’t have jurisdiction over crimes committed in Iraq. But the situation would be different were the crimes committed in, for example, Afghanistan.
Readers of the blog may have opinions as to whether dismissal of charges prior to trial for what amounts to abusive misconduct during an investigation, in violation of fundamental rights would open the door to prosecution by the International Criminal Court.
Or would the International Criminal Court decline to proceed on the grounds of double jeopardy, relying upon article 20(3), which reads: ‘3. No person who has been tried by another court for conduct also proscribed under articles 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.'
The other relevant provision is article 17(3), which says: '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.'
My inclination is to think that if charges are dismissed in this manner, it cannot be said that the person was ‘tried by another court’, even if they were ‘in jeopardy’. It would mean that a State with all of the good will in the world, and all of the facilities, and a credible justice system, would flunk the complementarity test based upon inability. Its justice system would be 'unavailable', due to the abuse of the rights of defendants. Otherwise, it would be all to easy for American investigators to shelter people like the triggerhappy brutes from Blackwater. They would simply stage a violation of their fundamental rights, and thereby immunise them from the International Criminal Court. That couldn't possibly be tolerated under the Rome Statute.
Some readers of the blog may have seen the recent interview of Prosecutor Moreno-Ocampo with Christiane Amanpour on CNN: http://www.cnn.com/video/#/video/world/2009/12/05/amanpour.luis.moreno-ocampo.cnn?iref=allsearch. This recent failure of the American justice system to bring suspects to book suggests we should not be too sanguine about the authorities in that country. Yet I found the Prosecutor to be rather too sanguine when Amanpour questioned him about the possibility of prosecuting Americans for crimes committed in Afghanistan. She referred particularly to the use of unmanned drones, which many consider to violate the laws and customs of war because they do not sufficiently discriminate between military objectives and civilians. See, for example, the recent report of Special Rapporteur Philip Alston: http://www.democracynow.org/2009/10/28/un_special_rapporteur_on_extrajudicial_killings.