Establishing Admissibility at the International Criminal Court: Does the Buck Stop with the Prosecutor, Full Stop?
39 The International Lawyer 817 (2005)
26 Pages Posted: 14 Aug 2013
Date Written: September 1, 2005
In accordance with the principle of complementarity, a case will be inadmissible before the International Criminal Court whenever a national authority has performed a relevant and genuine investigation and/or prosecution. The ICC's Statute and Rules, however, leave key complementarity questions unanswered, in particular by failing to allocate allocate the burden of proof for complementarity determinations, as well as neglecting to designate a requisite standard of proof. Drawing upon the practice of other international tribunals, domestic processes and general principles of international law, this piece considers three possible means by which the issue of complementarity may come before the Court and assesses in each instance the considerations that will attend allocating and establishing a burden of proof.
Keywords: International Criminal Court, ICC, complementarity, burden of proof, standard of proof, burden of production, admissibility
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