II. ICC judges determine the sufficiency of national alternatives to its cases, and adequate penalties go to the ICC’s requirements for such alternativesAt the outset, it should be noted that the ICC judges alone decide whether a national trial is an acceptable alternative to ICC prosecution under Article 19 of the Rome Statute. The statute further suggests that if a national trial against a person for whom an ICC warrant has been previously issued does not meet the Rome Statute’s criteria, the case can be brought back to the ICC for trial.7 Any national alternative to ICC cases must be adequate not only in principle but also in practice. Under Article 17, the Rome Statute details its requirements for any national alternative to its cases, which relate to a state’s ability and willingness to investigate and prosecute. While Article 17 does not explicitly discuss penalties, inadequate penalties would in our view reflect a state’s unwillingness, which includes that the “proceedings … are being conducted in a manner which … is inconsistent with an intent to bring the person concerned to justice.”8 The Rome Statute’s object and purposes, which include “affirming that the most serious crimes … must not go unpunished,” reinforce this assessment.9 Thus, inadequate penalties would be incompatible with the Rome Statute’s requirements for national trials of its cases. 7 Specifically, article 19(10) of the Rome Statute provides, “If the Court has decided that a case is inadmissible …, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible ….” Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002. 8 Ibid., art. 17(2)(c). 9 Ibid., preamble. |