Principles Concerning Redress for the Rights of Accused Persons in International Criminal Justice

This chapter examines the premises arising from the particularities of the ICC’s vertical and complementary prosecution regime from the perspective of redress for violations of suspects’ rights by State authorities. This topic includes two issues: (i) whether the ICC provides redress to suspects even when violations of their rights are committed by State authorities; and (ii) whether the ICC provides preventive and substantive redress by exercising its jurisdiction when violations by State authorities are actual or foreseeable. Regarding the first issue, the ICC has clarified that it takes an attribution-required and comparative balance approach in determining the provision of redress for violations of rights by State authorities. The ICC’s current attribution and comparative balance approach is not only contrary to the recent development of the concept of the individual’s right to compensation, but also cannot avoid criticism that the vertical system of the ICC itself has the aspect of promoting the violation of the rights of individuals. With regards to the second issue, the realization of the exercise of ICC jurisdiction as a preventive and substantive redress as claimed in the Libyan situation by the ICC is possible but limited as far as the ICC Pre-Trial Chamber’s decision is concerned. As for institutional issues arising from the premise of the ICC’s vertical and complementary prosecution system, it pointed out the need for a flexible comparative balance and a different way of understanding the responsibilities inherent in the vertical regime in order to provide effective redress. Moreover, the ICC’s admissibility review is limited in its treatment of violations of the rights of individuals by State authorities in their prosecution efforts.