A Critical Review of the ICC's Recent Practice Concerning Admissibility Challenges and Complementarity
18 Pages Posted: 28 Apr 2012 Last revised: 10 Jul 2012
Date Written: April 25, 2012
The principle of complementarity whereby national courts are given priority prosecuting international crimes has often been pointed to as the cornerstone of the Rome Statute; as a key concept which permeates the entire structure and functioning of the International Criminal Court. Although the legal literature has been preoccupied with discussing the nature and scope of complementarity the Statute, until recently however the jurisprudence of the ICC has only to a limited extent dealt with a number of key issues pertaining to complementarity. However, the Court’s recent practice – a series of decisions, including the Appeals Chamber’s decisions of 30 August 2011, relating to an admissibility challenge filed by the Government of Kenya – offers a significant contribution to the understanding of complementarity. This Case Note identifies four key contributions of the ICC decisions. First, the decisions seem to present a final blow to the perception that the principle of complemetarity means that the ICC can only step in if a state with jurisdiction is unwilling or unable to investigate and prosecute the crime itself. Instead, the decisions suggest that Article 17 of the Statute entails a two-fold test, where it must first be assessed whether national proceedings in fact exists. Only to the extent this can be answered in the affirmative, is it relevant to examine whether the state in question is unwilling or unable to prosecute the crimes. Second, the Court’s decisions clarify the meaning of “inactivity”. Once an arrest warrant or a summons to appear has been issued, it is no longer sufficient for determining activity that the state with jurisdiction over the crimes conduct investigations into the violence that triggered the Court’s intervention. Instead, it is required that the state in question investigates the same person as well as the same criminal conduct. Third, the decisions set standards in terms of the evidence required for a determination that national proceedings exist. For example, the Court clarifies that a state that challenges admissibility at the case stage must provide evidence pointing to specific investigative steps already taken, as opposed to simply stating that national proceedings have commenced or offering promises that reports on their progress will be provided to the Court in the future. Finally, the decisions make a number of important clarifications concerning procedural issues, including the question of whether there is a connection between admissibility challenges and requests for assistance made under Article 93(10) of the Statute.
Keywords: International criminal court, admissibility, complementarity, Kenya ICC cases
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