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The Show Must Not Go On: Complementarity, the Due Process Thesis and Overzealous Domestic Prosecutions

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There exists a measure of uncertainty as to whether flawed domestic proceedings in respect of alleged perpetrators of international crimes may constitute ‘unwillingness’ in terms of the International Criminal Court’s complementarity regime, in particular where such proceedings are conducted in a manner that is detrimental to the alleged perpetrator. This article canvasses the relevant provisions of the Rome Statute of the International Criminal Court as well as various theories that have addressed this issue. Although due process violations in domestic proceedings do not per se render a case admissible before the ICC, the article suggests that the conjunctive requirements of Article 17(2)(c) of the Rome Statute, and, ex post facto, Article 20(3)(b), may be interpreted to provide for the admissibility of egregious and deliberate violations of due process in domestic proceedings that remove or significantly diminish the risk of losing normally carried by the prosecuting authority.

Affiliations: 1: Lecturer, University of the Western Cape, Cape Town, South Africa


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