Could a Non-State Actor Challenge Admissibility?
A friend of mine asked me that question the other day. Imagine that a non-state actor (NSA) had both a legislative branch that enacted criminal laws and a functioning criminal-justice system that prosecuted violations of those laws. Could the NSA challenge the admissibility of a case pending at the ICC on the ground that it was already investigating or prosecuting the case itself?
I think the answer has to be no. The first thing to note is that Article 19 of the Rome Statute limits admissibility challenges to the suspect being prosecuted and states that have jurisdiction over the case. By definition NSAs are not states. The admissibility issue could only come up, then, if the suspect for some reason preferred to be prosecuted by the NSA instead of by the ICC. It’s difficult to imagine why that would be the case. A government soldier captured by an NSA would obviously prefer an ICC prosecution, and a member of the NSA would probably prefer an ICC prosecution, as well — at least insofar as the NSA was genuinely willing and able to prosecute him.
That said, let’s assume, for sake of argument, that a member of an NSA did prefer domestic prosecution to ICC prosecution and thus challenged the admissibility of his case pursuant to Article 19(2)(a). The problem then would be Article 17(1), which deems a case inadmissible only when it is “being investigated or prosecuted by a State which has jurisdiction over it.” Again, NSAs are not states. So once again the challenge would fail.
But what about Article 17(1)(c), which deems a case inadmissible when “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.” That provision does not specifically mention states, and Article 20(3) — the ne bis in idem provision — provides only that “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.” To begin with, Article 17(1)(c) would be of no help in our hypothetical, because the issue is whether the Court has to defer to the NSA prosecution in the first place, not whether the Court could retry the suspect subsequent to an NSA prosecution. Moreover, even if we altered the hypothetical to involve a suspect who was, say, acquitted in a genuine NSA prosecution and was challenging retrial at the ICC, I think it’s clear from the context of Article 20(3) that the other court in question must be a state court. The absence of the word “state” in Article 20(3) seems to be little more than a drafting artifact.
The bottom line is that there does not seem to be any room in the Rome Statute’s complementarity regime for NSA prosecutions. And that, I would suggest, is precisely as it should be. I realize that there is growing support in the scholarly community for permitting NSAs to play a more formal role in the creation of international law. (See here, for example.) I’m skeptical of that idea, for reasons beyond the scope of this post, but I would hope that even its most passionate defenders would view requiring the ICC to defer to an NSA prosecution as a bridge too far. States would rightly view such deference as tantamount to recognizing the legitimacy of the NSA, which is something that states are desperate to avoid. So it is not difficult to imagine how a state that has ratified the Rome Statute would react to the Court permitting a rebel group to prosecute one of its members for, say, massacring civilians loyal to the government — it would do everything it could to impede the NSA prosecution and would perhaps even withdraw from the Court (Article 127). Simply substitute “Afghanistan” for “state” and “Taliban” for “NSA” to see the truth of that claim.
Readers, your thoughts?