Could a Non-State Actor Challenge Admissibility?

by Kevin Jon Heller

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?

http://opiniojuris.org/2012/08/19/could-a-non-state-actor-challenge-admissibility/

6 Responses

  1. Thanks Kevin for this. I think this is a real situation in contemporary international law between static and dynamic process on the special and active role of NSAs. In other words, regarding the pivotal goal of ICC and on a broad view, international criminal justice, that is, impunity can raises the number of active subjects of international law by allowing NSAs to prosecution, at least at a first level, of its members. But, as you have correctly mentioned to it, on the basis of ICC statute as a permanent criminal court and background of other ad hoc international criminal tribunals, only states can take measures in this respect and criminal courts jurisdiction limit to monitor and interact merely with states on the complementarity regime.
     

  2. Kevin, I do not disagree with you. Which leads into my question. How should the international community encourage or support commanders of NSA to ensure compliance with IHL/LOAC by the rank and file of NSA?

  3. Here, I would like to bring up the European Union, which is, for some purposes, a non-state-actor. EU has a civil service tribunal, which handles cases between the civil servants of the European Union and the Union itself.

    If a European Union civil servant has been administratively dismissed for his conduct and the case has been upheld by the civil service tribunal, it is an administrative measure which might be considered, in the jurisprudence of the European Court of Human Rights (Zolotukhin case), as a punishment that triggers the ne bis in idem protection.

    This means that if a European Union civil servant commits a deed for which he is administratively separated from his post, this administrative measure might prevent the EU member states from further prosecution. The question arising here is whether such inability to prosecute also covers the ICC.

  4. Mr. Heller, thank you for the post. I would like to pose another hypothetical to you. Would it be possible for a state or group of states (acting either in unison or through an international organization) to challenge the admissibility of a case on the grounds that another international court (ad hoc or otherwise) is investigating or prosecuting the case? For example, what if the African Union created its own criminal court and its members challenged the admissibility of a case before the ICC?

  5. Zach,

    That is a much more plausible scenario, but I think it would require amending the Rome Statute.  Art. 17 refers solely to state investigations and prosecutions; it does not contemplate regional investigations and prosecutions.  One could argue, of course, that the states in the AU have delegated their jurisdiction to the regional court, so in a sense they are investigating or prosecuting.  But that seems like a stretch, so I think an amendment would be the better course.

  6. This seems to me to be, at some level, a debate about formalism and functionalism.  The function of the procedure is to allow a challenge stemming from a domestic prosecution — on that level who cares whether the domestic entity fulfills the Montevideo (or some other) criteria?  Well, the status of that entity matters if you care about its formal status, i suppose.
    I think it is also important to distinguish between the underlying human right expressed in the phrase ne bis in idem and the procedural protection codified in the Rome Statute that is designed to vindicate that right.  Although the Rome Statute framework described by Kevin only refers to state prosecutions (at least in article 17), the content of the underlying human right must surely be broader.  Indeed, it would be odd if the human right did not apply simply because of the formal status (or lack thereof) of the prosecutorial entity.  From the point of view of the defendant, surely what matters is the triggering of the criminal process and the potential for genuine punishment — neither of which require a formal state for the defendant to be in true “jeopardy” as the Americans would describe it.
    This isn’t to say that I would necessarily favor a broad reading of the Rome Statute of the sort that Kevin discusses.  But I do think that it depends partly on how human-rights-centric one reads these provisions.  The more that the underlying human right is the animating principle, the more reason there is to dispense with a formalist understanding of states as the only relevant criminal justice system.
     

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