States of Justice Symposium: What If We Took the ‘Unwilling or Unable’ Seriously?

States of Justice Symposium: What If We Took the ‘Unwilling or Unable’ Seriously?

[Ezéchiel Amani Cirimwami is a Research Fellow at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law. He is also completing a joint PhD in international law at the Université Catholique de Louvain and the Vrije Universiteit Brussel. He is a sitting judge and a former Deputy Public Prosecutor in the Democratic Republic of the Congo.]

I was thrilled when invited to provide some thoughts on Oumar Ba’s new book States of Justice: The Politics of International Criminal Court. Oumar Ba’s ambitious book explores how states that are presumed to be weaker in the international system use the International Criminal Court (ICC) as leverage in their domestic conflicts and to empower themselves in the pursuit of their political and security interests. In doing so, the author is attempting to address many issues that stem from the functioning of the ICC and its relationship with states, including self-referrals, complementarity, compliance, and domestic politics.

After reading the book, my impression is two-fold. On the one hand is a feeling of satisfaction. Ba’s book is a compendium of the ills from which the ICC suffers. The author must be credited for having left no stone unturned. He has addressed the significant problems that arise from the interaction between states and the ICC.

On the other hand, perhaps because of that satisfaction, I have been left wondering whether the book needs a sequel. The second impression is the desire to continue reading, though I was already on the last page of the book. It is a taste of incompleteness. While the book identifies many problems, it does not propose any concrete solutions. How should the ICC cope? The author argues that it is still unclear whether and to what extent the Court can overcome its many crises (at 156). He may be right. I cannot fault him for not taking the approach I would have liked. The author’s approach is itself excellent, and so is the book.

This brief post is, therefore, a call to the author to go beyond the current state-of-the-art of his monograph. While agreeing with him that the solutions to the ICC’s crises remain unclear, I believe that it is possible to consider discussing potential solutions to the conflicting interests between states and the ICC. To this end, the post identifies the terrain wherein the power struggle is most notable. It considers that the principle of complementarity has been the most instrumentalised and has given rise to the clashes of interests that the author explains very brilliantly in his book. Finally, in a spirit of constructive engagement, this post wonders whether it is possible to consider a proportionality test that may serve to balance conflicting interests between states and the ICC. ‘To every lord, every honour’! Professor Ba is in an excellent position to answer that question.

Identifying the main point of contention

In analysing the relationship between the ICC and states that are not major powers in the international system, particularly states that have engaged with the Court over the past two decades, Ba’s book demonstrates that states and the ICC are in a continuing struggle for power and influence. The most striking terrain of conflicting interests is that of complementarity, in particular the manipulation and politicisation of the “unwilling or unable” formula. While in theory, the ICC only intervenes when the state is unwilling or unableto fulfil its duty to investigate and prosecute, the practice seems to have chosen its path. As the author demonstrates, the reality of the ICC investigations and prosecutions suggests that both the ICC prosecutor and the states have manipulated the essential reading of the complementarity principle. Based on a careful analysis of the cases as well as the conduct of states, the book shows that the unwillingness or inability of the state to investigate and prosecute has not always been taken into consideration either by states or by the ICC OTP. Apart from the OTP, states who want to challenge the admissibility of some cases before the Court have invoked the complementarity principle by arguing that they are genuinely willing and able to investigate those cases.

In most cases, neither the OTP nor the Court is ever willing to relinquish jurisdiction in favour of a state that is willing to prosecute the case. It is clear that when talking about the conflict of interest or power struggles between states – whose cases are under consideration – and the ICC, the main issues lie in the area of complementarity. How should the ICC cope? Although it is clear that the other points of contention between the Court and states are the result of political and other factors external to the ICC, I remain convinced that it is up to the Court itself to settle the political instrumentalization of the principle of complementarity. There is a need for more ‘proceduralising’ of the ‘unwilling or unable’.

Balancing competing interests: A need to proceduralize the ‘unwilling or unable’

According to Art. 17 the Rome Statute, a case is admissible before the Court only when the state responsible for prosecution can be shown to be unwilling or unable to investigate and prosecute it. The question that remains is whether or not the Court should refrain from acting when states claim that they have planned or commenced proceedings, given that the ICC has some discretion in such cases. As the author emphasises, ‘the complementarity principle was […] intended to recognise the primary responsibility of states to exercise criminal jurisdiction, which also means that states can introduce an admissibility challenge to the ICC to prove their willingness and ability to investigate and prosecute crimes that would otherwise fall under the jurisdiction of the Court’ (at 17). As Webb and Bergsmo have noted, three alternative criteria for ‘unwillingness’ are provided in Art. 17 of the Rome Statute. First, the ICC shall consider whether the national proceedings were intended to shield the person from criminal responsibility. Second, the ICC shall examine if there was an unjustified delay in the proceedings that is inconsistent with an intent to bring the person to justice. Third, it shall consider whether the proceedings were not conducted independently or impartially and were not conducted in a manner consistent with bringing the person to justice. For the determination of ‘inability’ in a particular case, the ICC shall consider whether ‘due to the 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 proceedings’ (Art. 17(3) Rome Statute).

Although Article 17(2) and (3) provide some guidelines for assessing when there is unwillingness or inability of the state in a given case, these concepts remain unclear in practice. The OTP has set out its policy paper on case selection and prioritisation of cases (Policy). Regarding the complementarity principle, the Policy indicates that the OTP will determine whether any State is exercising its jurisdiction concerning the same person for substantially the same conduct as that alleged before the Court. Further, the OTP shall consider whether the national proceedings concerned are vitiated by an unwillingness or inability to investigate or prosecute genuinely. To this end, an assessment must be made in the light of the proceedings as they exist at the national level at the time, and is potentially subject to revision based on any change of facts (Policy, para 30).

However, the thorough analysis of the cases in Ba’s book (see notably at 80-84, 133-151), reveals that the Prosecutor and the Court have narrowly interpreted these procedural requirements and disadvantaged states. The ‘unwilling or unable’ has been put on the back burner. It has become a subsidiary issue to be considered after the Court has determined that both the ICC and a national jurisdiction are investigating the same case (see, for example, Simone Gbagbo case, para 27 ). The ‘same case’ refers to the ‘same person and same conduct’, which seems more like a test for assessing whether there is a situation of lis pendens rather than for assessing complementarity. In almost all cases, the Court has restricted itself to evaluating this test and always finds reasons not to consider the state’s willingness to prosecute. Alioune Sall calls this phenomenon ‘a downgrading of the complementarity principle’ (Sall, 2020, 54). As Ba rightly argues, the complementarity principle has failed (at 17).

So far, the ICC has not yet succeeded in developing a clear test of proportionality to balance the competing interests between its jurisdiction and those of states. In other words, as long as there are no clear guidelines for the assessment of the ‘unwilling or unable’, the struggle of the powers over the complementarity principle will continue. There is an urgent need to proceduralize the ‘unwilling or unable’. It is in and of itself a balancing test.

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