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Previous comments - Part 2, Articles 5-10

Article 11(1)

[173] Jurisdiction ratione temporis
1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.
The Court has the power to exercise jurisdiction following the 1 July 2002, when the Rome Statute was ratified by 60 States and thus entered into force (Article 126). Thus, the Rome Statute is based on the non-retroactivity principle and the temporal jurisdiction of the Court is prospective (Article 24(1)).
    The Rome Statute is silent in regard to violations which are committed prior to the entry into force of the Statute and continued afterwards. It is submitted that references in future cases to acts pre-dating the entry into force of the Statute may be useful in establishing the historical context but they may not be form the basis of a charge.
   The jurisdiction ratione temporis may be limited in two ways. The Security Council may according to Article 16 prevent the Court from exercising jurisdiction for a fixed period of time. A State may also upon ratification of the Rome Statute make a declaration in accordance with Article 124 and opt out for a period of seven years from the jurisdiction of the Court in relation to war crimes.

Cross-references:
Articles 16, 24(1), 124 and 126

Author: Mark Klamberg

Updated: 30 June 2016

Article 11(2)

[174] 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under Article 12, paragraph 3.
A precondition to the Court's exercise of jurisdiction is that the State has accepted the jurisdiction of the Court (Article 12). In addition the Security Council may refer a situation to the Court (Article 13). The requirement on consent on behalf of the State has implications for the temporal jurisdiction of the Court. In regard to States that accepts the jurisdiction of the Court two exceptions may be noted in relation to the jurisdiction ratione temporis set by the entry into force of the Rome Statute.   
    The first exception concerns States Parties. When a State becomes a party, the Court's temporal jurisdiction is limited to the crimes committed after the entry into force of the Rome Statute for that State, unless that State in accordance with Article 12(3) accepts jurisdiction for acts committed prior to ratification but after the entry into force of the Statute. It is submitted that the declaration must be explicit, which was the case in the situation in Uganda and the situation in the Democratic Republic of Congo, see letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, 5 July 2004 (page 4) and Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, 5 July 2004 (page 4).
    The second exception, concerning States Not Parties to the Rome Statute, is examined in the comment to Article 12.

Cross-references:
Articles 12 and 13

Doctrine:

  1. Sharon A. Williams, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 539-545. 
  2. Stéphane Bourgon, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford Univerity Press, Oxford, 2002, pp. 543-552.

Author: Mark Klamberg

Updated: 30 June 2016

Article 12

[175] Preconditions to the exercise of jurisdiction
General Remarks
Article 12 sets the preconditions for the exercise of jurisdiction of the Court. As such, the provision has been called ‘one of the cornerstone provisions of the Statute’ (Bergsmo, p. 30). In addition to specifying the general preconditions for the exercise of jurisdiction, Articles12 must furthermore be seen as the main provision governing the territorial jurisdiction (ratione loci jurisdiction) of the ICC. Given that the Rome Statute does not provide for a separate and exclusive provision dealing in toto with the ratione loci jurisdiction of the Court (Stéphane Bourgon, p. 560)—such as Article 11 on the temporal jurisdiction (ratione temporis jurisdiction)— Article 12 is the central legal source when it comes to determining the territorial jurisdiction of the ICC. 
    On the basis of this dogmatic structure Article 12 may be divided into two separate yet intertwined stipulations: First, Article 12(1) determines how a State may accept the jurisdiction of the ICC concerning the core crimes, namely by becoming a party to the Rome Statute. Second, in order for the ICC to be able to exercise this jurisdiction, Article 12(2) requires either the territorial State or the nationality State to be among the State Parties. To further extend the possibility of the ICC to exercise jurisdiction Article 12(3) Rome Statute provides for territorial and nationality non-State Parties to ad hoc accept the exercise of jurisdiction by the ICC.
    With this understanding, Article 12 demonstrates an apparent respect for the sovereignty of States (Malanczuk, p. 17) and confirms the role of the principle of State sovereignty as a limiting factor for the jurisdiction of the ICC. Thus, Article 12 to be the result of a ‘compromise between State sovereignty and the needs of international justice’ (Stéphane Bourgon, p. 560). In the Rome Statute’s current structure State sovereignty, as underlined in particular in  Article 12(2)-(3), may be pierced only by the referral of a situation to the prosecutor by the United Nations Security Council (‘UNSC’), pursuant to Article 13(b).
    A temporary opt out from the automatic jurisdiction under Article 12(1) is possible for war crimes pursuant to Article 124 if a declaration to this effect is made by a State upon becoming a Party to the Rome Statute. Such an opt out can be made for a maximum seven years and may be withdrawn at any time. For example, France has declared that “[p]ursuant to Article 124 of the Statute of the International Criminal Court, the French Republic declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when a crime is alleged to have been committed by its nationals or on its territory”. (Reservation of 9 June 2000).

Preparatory Works
The drafting history of Article 12 was not straightforward. There were several alternatives.
   Germany represented one extreme in the alternative that may be described as "universal jurisdiction". Germany held the view that States could delegate their jurisdiction they are entitled under customary international law to the Court. Since several States exercise universal jurisdiction over genocide, crimes against humanity and war crimes this jurisdiction could be delegated to the Court. They were supported by States such as Sweden, Czech Republic, Latvia, Costa Rica, Albania, Ghana, Namibia, Italy, Hungary, Azerbaijan, Belgium, Ireland, Netherlands, Luxembourg, Bosnia and Herzegovina and Ecuador.
    At the other extreme was the United States that held that the State of nationality had to give its consent in all cases, except for Security Council referrals. India, Indonesia, Gabon, Russia, Jamaica, Nigeria, Vietnam, Algeria, Egypt, Israel, Sri Lanka, Pakistan, Afghanistan, Iran and China advanced similar positions in preference of a narrower jurisdiction.
   Other States, such as the United Kingdom and Korea, tried to find a compromise. As indicated above, the result as manifested in Article 12 demonstrates respect for the sovereignty of States, a narrower jurisdiction for the Court.

Author: Dominik Zimmerman, revised by Mark Klamberg

Updated: 30 June 2016

Article 12(1)

[176] 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.
The main content of Article 12 is the codification of the principle of automatic jurisdiction of the ICC vis-à-vis State Parties with respect to the most serious crimes of concern to the international community (the jurisdictional mechanism of ‘automatic jurisdiction’ is sometimes referred to as ‘inherent’ jurisdiction, see e.g. Wagner, p. 477). As such Article 12(1) merely refers to Article 5 which in turn contains the offences triggering the ratione materiae jurisdiction of the ICC. Article 12(1) thus does not itself codify the ratione materiae jurisdiction of the Court but instead expresses the central implication for States of becoming a Party to the Rome Statute, namely the fulfillment of the preconditions for the exercise of jurisdiction of the ICC in relation to every new State party. Through the codification of automatic jurisdiction, Article 12(1) furthermore puts emphasis on the understanding of the ICC as being ‘an independent permanent International Criminal Court’ (see Preamble of the Rome Statute; emphasis added by the author). Pursuant to Article 120 no reservation is permitted with the exception of the "opt-out" possibility for war crimes provided for in Article 124.
    Due to the reference of Article 12(1) to Article 5, the exercise of jurisdiction of the Court may be limited as far as the crime of aggression is concerned if and when, pursuant to Article 121(5), the Rome Statute has been amended by a definition of this crime (cf Articles 5(2), 121(5) and 123).

Author: Dominik Zimmerman, revised by Mark Klamberg

Updated: 30 June 2016

Article 12(2)

[177] 2. In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
Article 12(2) applies to the circumstances in Article 13(a) or (c) but not to Article 13(b). By omitting Article 13(b) the Court can, when authorized by the Security Council, exercise jurisdiction over crimes committed on the territory of non-Party States.
   The second subsection of Article 12 provides guidance as to which State(s) has (have) to accept the ICC’s jurisdiction in order for the Court to be able to exercise it in a particular situation. Article 12(2) contains two separate, but alternative, categories of State parties related to a conduct possibly constituting a crime under Article 5, that may constitute the necessary precondition for the ICC’s jurisdiction: (a) the State on whose territory the relevant conduct has occurred (so-called territorial State); and (b) the State of which the accused person(s) is (are) national(s) (so-called nationality State). By adhering to these categories, the Statute does not provide for the exercise of jurisdiction if only the State in whose custody a suspect is being held (so-called custodial State), or the State whose national was a victim of the relevant conduct (so-called victim’s State) is a State Party. In these cases, however, a referral of the relevant situation to the Prosecutor by the UNSC according to Article 13(b) may still trigger the exercise of jurisdiction. Although such situations are likely to be relatively rare, due also to the difficulty of finding political consensus within the UNSC, this possibility might prove to be valuable in the future in order to reach the ambitious goal of ending impunity for the perpetrators of the most serious crimes of concern to the international community. Similarly, an ad hoc acceptance of an affected territorial or nationality non-State Party to the Rome Statute pursuant to Article 12(3) does have this same effect, i.e. enabling the ICC to exercise its jurisdiction.
    Following from the alternative wording ‘one or more’ contained in Article 12(2) the Court may come to exercise its jurisdiction in cases where States not being Parties to the Statute are involved and which do not, pursuant to Article 12(3), ad hoc accept the exercise of jurisdiction. This may for example be the case where a crime is committed in the territory of a State party by a national of a non-State Party, or where a national of a State Party commits a serious crime in the territory of a non-State Party. Notwithstanding the influence this might imply on a State not being a party to the Rome Statute, due to the anchorage of both the principle of territoriality and nationality in general international law, such exercise of jurisdiction cannot, however, be in violation of Article 34 Vienna Convention on the Law of Treaties ([concluded 23 May 1969, entered into force 27 January 1980] 1155 UNTS 331).

Author: Dominik Zimmerman, revised by Mark Klamberg

Updated: 30 June 2016

Article 12(2)(a)

[178] (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
The first basis for the exercise of jurisdiction is the membership of the territorial State to the Rome Statute. This provision is mainly based on the assertion of territorial jurisdiction as one of the main implications of the principle of State sovereignty (Malcolm N Shaw, p.579; Vaughan Lowe, p.342–345). The consideration that ‘all individuals staying on the territory of a state are subjected to the law of that 'State' (Hans Kelsen, p.309) forms a necessary precondition in this regard. Under international law States may exercise this jurisdiction within their own municipal organizational structure or delegate this right in international agreements. Closely connected to the delegation of the sovereign ability to prosecute crimes committed on a State’s territory is the granting of full exercise of the ICC’s function and powers on the territory of the State Party pursuant to Article 4(2). According to the principle of territorial jurisdiction the territorial State may exercise jurisdiction regardless of the nationality of the person accused of the crime (there is no difference between citizens and aliens with respect to the exercise of the criminal jurisdiction of a State; see Hans Kelsen, p.310). With regard to the ICC this means that the Court may take jurisdiction over a conduct which occurred in the territory of a State Party, regardless of whether the person accused of the crime is a citizen of that same State or of a non-State Party. Furthermore, the exercise of jurisdiction is independent of the victim’s nationality and whether the alleged criminal remains in a custodial State which is a State Party or non-State party.
    Whether or not the nationality State or custodial State is a State Party to the Rome Statute is thus not of any relevance to the possibility of the ICC to exercise jurisdiction but instead has an influence on the obligation to co-operate with the ICC. Whereas State Parties, pursuant to Part 9 are obliged to fully co-operate with the Court in its investigation and prosecution of crimes, the same rules also apply to non-State Parties if they lodge an ad hoc declaration under Article 12(3), according to which the exercise of jurisdiction of the ICC is accepted in a particular case (see below).
    However, the United Nations Security Council may under the powers in Article 25 and Chapter VII of the UN Charter decide that all States, including non-State parties, shall co-operate fully with and provide any necessary assistance to the Court and the Prosecutor. The Security Council used this power when it referred the situation of Darfur to the Court in Resolution 1593 (2005).
    As far as crimes that have been committed on board a vessel or aircraft are concerned the State of registration of the vessel or aircraft is equated with the territorial State. This is in line with Article 91(1) United Nations Convention on the Law of the Sea ([concluded 10 December 1982, entered into force 16 November 1994] 1833 UNTS 3) and Article 17 Convention on International Civil Aviation ([signed 7 December 1944, entered into force 4 April 1947] 15 UNTS 295) according to which ships have the nationality of the State whose flag they are entitled to fly and an aircraft has the nationality of the State in which it is registered.
  There is no requirement that the territorial jurisdiction delegated to the Court is under the effective control of the State. Northern Cyprus is an example where this issue might arise (Schabas, p. 285).

Author: Dominik Zimmerman, revised by Mark Klamberg

Updated: 30 June 2016

Article 12(2)(b)

[179] (b) The State of which the person accused of the crime is a national.
The concept of nationality underlying Article 12(2)(b) is a confirmation of the legal link between a sovereign State and the individuals remaining on its territory (Malcolm N Shaw, p. 584; Vaughan Lowe, p. 345–47). This linkage does not only entitle a person to a series of rights, but moreover forms the basis for prosecution for crimes committed outside the territory of the State. 
    The nationality principle is widely used by civil law States as a model to claim jurisdiction over crimes committed by their nationals abroad. As far as serious crimes are concerned also the common law countries adhere to the nationality principle and have furthermore not protested against the use of this principle in criminal matters by other States (Malcolm N Shaw, p. 589).
   The possibility to exercise extraterritorial jurisdiction pursuant to Article 12(2)(b) does not extend to the case where only the State of which the victim is a national is a State party (so-called passive personality principle). Instead the provision is reduced to the active personality principle.
   The issue of a possible obligation to co-operate with the ICC is handled in the same way as in the case of territorial jurisdiction, i.e. only the State parties to the Rome Statute are obliged to co-operate. 
   The Prosecutor has considered the possibility to prosecute in relation to alleged acts in Iraq (a non-party State) by nationals of the United Kingdom, a State Party. On the basis of the admissibility assessment pertaining to gravity, the Prosecutor decided not to proceed with an investigation into the situation in Iraq, (Annex to Update on Communications Received by the Office of the Prosecutor: Iraq Response, 9 February 2006). The preliminary examination was reopened in 2014 (OTP Press Release: Prosecutor of the International Criminal Court, Fatou Bensouda, Re-opens the preliminary examination of the situation in Iraq, 13 May 2014).

Author: Dominik Zimmerman, revised by Mark Klamberg

Updated: 30 June 2016

Article 12(3)

[180] 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
Article 12(3) concerns non-Party States. It is a residue of the 1994 draft statute of the International Law Commission where consent was required by States on a case-by-case basis.
   In situations where neither the relevant territorial State nor the relevant nationality State is a party to the Statute, and where the UNSC does not refer the situation to the Prosecutor the ICC may still exercise jurisdiction provided the territorial State and/or the nationality State (being a non-State Party) on an ad hoc basis accepts the exercise of jurisdiction of the ICC. The declaration by which the approval of jurisdiction of the Court is being affirmed ‘must be express, unequivocal, and precise as to the crime(s) or situation it applies to.’ (Stéphane Bourgon, p. 563.)
    Provided a declaration has been lodged with the Registrar of the ICC pursuant to Article 12(3), the accepting State thereby commits itself to co-operate with the ICC as if it were a State Party. This commitment is limited, however, to the crime(s) in question and does thus not embrace any investigation and/or prosecution of crimes other than those covered by the declaration. This facultative obligation to co-operate is in line with Article 34 Vienna Convention on the Law of Treaties according to which ‘[a] treaty does not create either obligations or rights for a third State without its consent.’
    The wording ‘the crime in question’ contained in Article 12(3) must furthermore be interpreted in accordance with Rule 44. Accordingly the ‘Article 12(3)-declaration’ made by a non-State Party implies the ‘acceptance of jurisdiction with respect to the crimes referred to in Article 5 of relevance to the situation’ (emphasis added by the author), rather than individual crimes or specific incidents (Carsten Stahn et al, pp. 427–28; Hans-Peter Kaul, p. 611). As an example, the Republic of Côte d’Ivoire, while not being a party to the Rome Statute, accepted the exercise of jurisdiction by the Court regarding crimes committed on its territory since the events of 19 September 2002 (see Press Release of 15 February 2005, Declaration under Article 12(3) of the Rome Statute, 18 April 2003 and Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-14, 3 October 2011, para. 10). A similar declaration, extending the temporal jurisdiction back to the time of the entry into force of the Statute, was made by the Ugandan government in December 2003 (see letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, ICC-02/04-1, 5 July 2004) as well as by the government of the Democratic Republic of the Congo (see letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, ICC-01/04-1, 5 July 2004). Due to its facultative character, Article 12(3) is in line with the overall State sovereignty-friendliness of Article 12
   Article 12(3) moreover provides the possibility for States to extend the ratione temporis jurisdiction of the Court. Pursuant to Article 11(1) the Court has jurisdiction only over crimes committed after the entry into force of the Statute. With regard to States that have become parties to the Rome Statute after its entry into force the jurisdiction only extends to crimes committed after the entry into force of the Rome Statute for that State, unless that State in accordance with Article 12(3) accepts jurisdiction for acts committed prior to ratification but after the entry into force of the Statute. However, it is likely that the Court may also consider facts that occurred prior to the time specified in an Article 12(3)-declaration—for the purpose of securing evidence or uncovering acts of a continuing nature—provided that these facts are linked to events that occurred after that time (Carsten Stahn, p. 429–31).

Cross-reference:
Rule 44

Doctrine:

  1. Sharon A. Williams, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 547-561. 
  2. Stéphane Bourgon/Hans-Peter Kaul, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 559-560, 562-565; pp. 595-596, 607-611.
  3. Peter Malanczuk, Akehurst's Modern Introduction to International Law, Routledge, New York, 1997, p. 17.
  4. Morten Bergsmo, "The Jurisdictional Régime of the International Criminal Court" (Part II, Articles 11–19), European Journal of Crime, Criminal Law and Criminal Justice, vol. 6, 1998, pp. 29–47.
  5. Carsten Stahn et al., "The International Criminal Court’s Ad Hoc Jurisdiction Revisited", America Journal of International Law, vol. 99, 2005, pp. 421–31.
  6. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 277-292.
  7. Markus Wagner, "The ICC and its Jurisdiction – Myths, Misperceptions and Realities", in Armin von Bogdandy/Rüdiger Wolfrum, Max Planck Yearbook of United Nations Law, vol. 7, 2003, pp. 409–512.
  8. Malcolm Shaw, International Law, Fifth Editon, Cambridge University Press, Cambridge, pp. 579, 589. 
  9. Vaughan Lowe, in Malcom D. Evans, International Law, Second Edition, Oxford University Press, Oxford, pp.342–45.

Author: Dominik Zimmerman, revised by Mark Klamberg

Updated: 30 June 2016

Article 13

[180 Bis] Exercise of Jurisdiction
General remarks
Article 13 comprises an exhaustive list of three procedural devices which can be used to activate (or ‘trigger’) the ICC jurisdiction – defined by Articles 5 to 8bis (ratione materiae), Article 11 (ratione temporis) and Article 26 (ratione personae), and whose exercise is subject to the conditions specified by Article 12 (preconditions to the exercise of jurisdiction). Absent from the statutes of international criminal tribunals created ad hoc, such provision assumes foundational value in the ICC architecture because of its prospective, permanent and potentially universal mandate [Schabas, 2011, p. 157].
   As the Article’s structure shows, the Office of the Prosecutor (OTP) is the authority deputed to analyse situations in which crimes under the Court’s jurisdiction may have been committed, then independently decide whether to open an investigation and, if the case, prosecute one or more individuals. Hence, States Parties’ and Security Council referrals have the purpose of bringing a certain situation under the Prosecutor’s attention.
   Resort to the said triggering mechanisms does not require the territorial State’s previous consent. Victims, their relatives and non-governmental organizations are not mentioned in Article 13, but can file communications to the OTP asking for the opening of an investigation. States that are not Parties to the ICC Statute cannot refer situations to the Prosecutor, but may act through the Security Council or just provide information in view of an investigation to be opened ex Article 13(c). Notably, Article 12(3) does not establish an additional triggering mechanism, but allows States that are not Parties to accept the Court’s jurisdiction ad hoc, i.e. without becoming Parties (whilst States Parties accept the Court’s jurisdiction prospectively and unconditionally)[Stahn et al., 2005, p. 425]. Such acceptance is ‘just’ a precondition for the exercise of the Court’s jurisdiction, which would still need to be triggered via Article 13.
As made clear by the provision, referrals concern ‘situations’, not specific cases. Pre-Trial Chamber (PTC) I has clarified that ‘situations’ are “generally defined in terms of temporal, territorial and in some cases personal parameters” [Situation in the Democratic Republic of the Congo, Decision on the Applications for participation in the proceedings of VPRS 1, VPRS 2,VPRS 3,VPRS 4,VPRS 5 and VPRS 6, ICC PT. Ch. I, ICC-01/04-101-tEN-Corr, 17 January 2006, para. 65. See also Prosecutor v. Thomas Lubanga Dyilo, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, ICC PT. Ch. I, ICC-01/04-01/06-8-Corr, 24 February 2006, para. 21; Prosecutor v. Germain Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, ICC PT. Ch. I, ICC-01/04-01/07-4, 5 November 2007, para. 9; Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, ICC PT. Ch. III, ICC-01/05-01/08-14-tENG, 10 June 2008, para. 16], and refer basically to the set of circumstances subject to investigation and prosecution. Most situations have so far been delimited with reference to a particular region or country (e.g. Northern Uganda or Central African Republic). The Comoros referral is the first not to define the situation geographically, but ‘with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza strip’, and the first one to invoke a vessel’s flag as precondition for the exercise of jurisdiction [Referral under Articles 14 and 12(2)(a) of the Rome Statute arising from the 31 May 2010, Gaza Freedom Flotilla situation, 14 May 2013, available at https://www.icc-cpi.int/iccdocs/otp/Referral-from-Comoros.pdf]. PTC I explained that prosecutions can be initiated as long as they remain within the boundaries of the situation object of the referral. This means that the Prosecutor can investigate not only crimes that have already been committed or are ongoing at the time of the referral, but also subsequent ones “in so far as they are sufficiently linked to the situation of crisis referred to the Court” [Prosecutor v. Callixte Mbarushimana, Decision on the Prosecutor’s Application for a Warrant of Arrest against Callixte Mbarushimana, ICC PT. Ch. I, ICC-01/04-01/10-1, 11 October 2010, para. 6. The view was later confirmed in Prosecutor v. Callixte Mbarushimana, Decision on the "Defence Challenge to the Jurisdiction of the Court", ICC PT. Ch. I, ICC-01/04-01/10-451, 26 October 2011, paras. 26-27].
   Once recourse has been made to one of them, the mechanisms listed in Article 13 cannot be used in reverse to prevent the Court from exercising its jurisdiction. Nevertheless, the Security Council possesses the power to defer investigations or prosecutions by means of Article 16, and the OTP has the possibility not to proceed with investigations – subject to the procedures enunciated by the Statute and, in particular, by Article 53. Such procedures allow the different stakeholders and the Court itself to oversee and if the case challenge the jurisdiction activated through Article 13.
   In this regard, it is also to be noted that Article 13 is not concerned with the admissibility of cases, which are instead regulated by subsequent provisions of the Statute (most notably Articles 17-20). Should an investigation be opened after a State referral or proprio motu, the Prosecutor has a duty to inform States Parties and States which would normally exercise jurisdiction over the relevant crimes, in order to give them a chance to challenge the Court’s jurisdiction or the case admissibility. Importantly, the entire ‘complementarity’ framework applies to all cases, regardless of the mechanism used to trigger the Court’s jurisdiction – thus, even if the referral came from the Security Council (see infra) [As showed by the admissibility decisions in the Libya situations. See Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi'”, ICC A. Ch., ICC-01/11-01/11-565, 24 July 2014; and Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi", ICC A. Ch., ICC-01/11-01/11-547-Red, 21 May 2014].

Preparatory works
The final version of Article 13 is the result of intense negotiations over several points. Referrals from States Parties and the Security Council were conceived since the beginning as the key triggering mechanisms for the Court’s jurisdiction [Report of the ILC 1994, Articles 21 and 25 (States) and 23 (Security Council)]. However, a few issues concerning States Parties referrals were seen as controversial.
   First, it was debated whether States Parties referrals could concern specific crimes, as opposed to situations. Moreover, since earlier drafts contemplated the possibility of accepting the Court’s jurisdiction only for certain categories of crimes (‘opt-in’ system), it was proposed to allow States to refer only crimes with regard to which they had accepted the Court’s jurisdiction (a sort of ‘reciprocity restriction’). Referrals concerning alleged acts of genocide could have been reserved to States party to the Genocide Convention [Report of the ILC 1994, Article 25(1)]. Once negotiations proceeded, however, the view that referrals should be centred on situations prevailed, in order to avoid politicization and to promote efficiency [ICC Preparatory Committee Report, 1996, para. 146]. Since the ‘opt-in’ system was also abandoned in favour of the Court’s automatic jurisdiction (subject to the ‘preconditions’ listed in Article 12), it was agreed to allow all States Parties to refer situations involving any crime under the Court’s jurisdiction. In this regard, nevertheless, it was debated whether the Court’s jurisdiction should be activated only by States Parties with an interest in the situation – e.g. the State on whose territory the situation occurred, or whose nationals were the perpetrators or victims, or which had custody of one or more perpetrators [Ad Hoc Committee Report, 1995, para. 112; ICC Preparatory Committee Report, 1996, para. 147]. Once it became clear that the Prosecutor would have been able to independently initiate investigations over any situation, restrictions on State Party referrals became less relevant. Thus, the view that all States Parties should be allowed to refer any situation to the Court succeeded, also in consideration of the symbolic fact that all States have an interest in the repression of international crimes [Kirsch, Robinson, 2002, p. 622; and ICC Preparatory Committee Report, 1996, para. 147].
   The ILC Draft Statute of 1994 did not contain a provision on Prosecutor’s proprio motu investigations. However, subsequent negotiations evidenced a diffuse willingness to endow the Prosecutor with such a power, especially in light of the proven reluctance of States to initiate complaints before the existing human rights bodies, mostly due to diplomatic reasons [Ad Hoc Committee Report, 1995, paras. 113-115; ICC Preparatory Committee Report, 1996, para. 149]. Moreover, the possibility of submitting communications directly to the Prosecutor in view of a proprio motu investigation was seen as a form of direct access to justice for victims and non-governmental organizations [Kirsch, Robinson, 2002, p. 662]. Fears of politicization of an independent Prosecutor were addressed by creating a system of check and balances to her action, most prominently the need for an authorization from the Pre-Trial Chamber [Proposal submitted by Argentina and Germany, A/AC.249/1998/WG.4/DP.35, 25 March 1998].

Author:
Antonio Coco

Updated:
15 August 2017

Article 13(a)

[181] The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with Article 14;

Analysis
i) Referral by a State Party
According to Article 13(a), States Parties have the right to bring a situation under the Prosecutor’s attention by means of a referral, which follows the conditions enunciated in Article 14. Referrals activate the Court’s jurisdiction over all crimes that may have been committed in such a context. Therefore, a referral cannot be limited to crimes committed by a certain party to a conflict, or to crimes committed by specific individuals who – for instance – belong to a certain national, political or military group [See also Situation in the Democratic Republic of the Congo, Decision requesting clarification on the Prosecutor’s Application under Art 58, ICC PT. Ch. I, ICC-01/04-575, 11 October 2010, paras. 6-8]. The Prosecutor made this view clear when reacting after the Ugandan government’s referral, which pretended the Court’s attention to be focused only on the crimes committed by its political opponents [Situation in Uganda, Letter of Prosecutor dated 17 June 2004 annexed to Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, ICC-02/01, ICC Presidency, 5 July 2004]. Referring ‘situations’ as opposed to specific crimes also carries a practical advantage: identifying specific crimes in a context of generalized violence might require a proper investigation in itself, a task which can be left to the ICC Prosecutor after the referral. This does not prevent referrals from including specific allegations concerning certain individuals or incidents [Rastan, 2011, p. 422 fn 2].
   With the right to referral, States Parties are conceived as watchdogs against the commission of crimes under the Court’s jurisdiction. All States Parties can refer a situation to the Prosecutor, regardless of whether they have any link with the crimes committed in such situation. However, ‘diplomatic discomfort’ has hindered the exercise of such power, which might be perceived as unfriendly by States actively involved in the referred situation [Schabas, 2011, p. 159]. In this sense, it is easier for States to provide the relevant information to the Prosecutor and leave him the possibility to open an investigation proprio motu. For this reason, all State Party referrals resulting in the opening of a formal investigation, to date, have concerned situations occurring on the territory of the referring State. Such so-called ‘self-referrals’ offer a practical advantage for the Prosecutor when compared to proprio motu investigations. On one side, indeed, the decision to open an investigation following a State referral is not subject to an authorization by the PTC, as demanded instead by Article 15; on the other, the OTP is not exposed to the difficulty of justifying why it opened an investigation in a certain situation and not another, among the dozens of possible situations falling under the ICC jurisdiction [Schabas, 2011, p. 166].
   After having activated the Court’s jurisdiction, the referring State maintains only a limited power of control over the investigation and prosecution of the relevant crimes. According to Article 53(3)(a), indeed, referring States can request the PTC to review an OTP decision not to investigate or not to proceed after investigation. This, in turn, may lead the PTC to request the Prosecutor to reconsider its decision.

Author:
Antonio Coco

Updated:
15 August 2017

Article 13(b)

[182] (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
ii) Referral by the UN Security Council
According to Article 13(b), the UN Security Council can refer situations to the ICC Prosecutor in the exercise of its powers deputed to maintaining and restoring international peace and security. The reference to Chapter VII of the UN Charter means precisely that such referrals are dependent on a previous finding that an act of aggression or a breach or threat to international peace and security has occurred (Article 39 UN Charter). In the UN Charter system, Security Council referrals to the ICC could be most probably considered as a measure falling short of the use of force, in line with the wording of Article 41. Hence, Article 13(b) can be considered as a ‘bridging mechanism’ between the ICC and the Security Council powers [Rastan, 2015, p. 157 and fn 75], as a practical alternative to the creation of additional ad hoc international criminal tribunals. Indeed, entrusting an existing institution with the task of carrying out criminal proceedings over a certain situation could take, at least in theory, less time and resources than creating a new tribunal. As such, the presence of Article 13(b) in the ICC Statute can be ascribed to the view that recourse to the Court can be used – among other things – as a crisis management tool. Whether a Security Council referral is actually conducive to peace and stability in the affected regions remains controversial, and beyond the scope of this commentary.
   A reading of Article 12(2) – on preconditions to the exercise of ICC jurisdiction – reveals that the Security Council has a broader referral right when compared to States Parties. Indeed, the Security Council is not limited to referring situations where crimes appear to have been committed on the territory of a State Party or by a national of a State Party. The Security Council can ask the Prosecutor to investigate and prosecute nationals of States that are not Parties for crimes committed on the territory of States that equally are not Parties. Correspondingly, the Security Council’s temporal delimitation of situations is not constrained by the Statute’s entry into force for any particular State, as long as it does not backdate the Court’s jurisdiction beyond the limit set in Article 11(1).
   Such feature brings into question whether Security Council referrals are also a means for conferring jurisdiction to the ICC where the latter would not otherwise have it, or whether they remain a simple triggering mechanism in all circumstances. The first view assumes that the ICC jurisdiction is consent-based. Thus, Security Council referrals would grant to the Court jurisdiction precisely in the absence of State consent, normally expressed through ratification or a declaration ex Article 12(3). However, in so doing, the Security Council would make the ICC Statute’s substantive provisions retroactively applicable to nationals of States non-Party who performed the relevant conduct on the territory of States non-Party. This consideration has convinced some scholars to advocate for the use of customary international law as law applicable to such cases, in order to avoid a violation of the principle of legality [e.g. Milanović, 2011, pp. 34 and 37-38]. The second view, instead, presupposes that – when adopting the Rome Statute – States exercised universal prescriptive jurisdiction, binding all individuals in the world from the Statute’s entry into force onwards and sufficiently putting such individuals on notice of any criminal prohibition listed in the Statute [as described in Milanović, 2011, pp. 49 and 52]. Hence, the ICC would enjoy inherent universal jurisdiction with respect to the crimes listed in article 5, which however can only be exercised in presence of certain conditions, including ‘acceptance’ by States in the form of ratification of the Statute or an ad hoc declaration ex Article 12(3). Accordingly, a Security Council determination that a situation constitutes a threat to international peace and security would make up for the absence of the preconditions set in Article 12, but it would not create new jurisdiction for the Court [e.g. Sadat, Carden, 2000, pp. 409-410, and 412-413]. Such reading would confirm the nature of Security Council referrals as a ‘pure’ triggering mechanism, ensuring the internal consistency of Article 13. Additionally, it would avoid considering Security Council referrals as conferring retroactive jurisdiction to the Court, what could potentially create problems from a nullum crimen perspective. The language used throughout the Rome Statute, including in Article 12 (‘preconditions to the exercise of jurisdiction’), appears compatible with this last reading. In this respect, one should note that the Court still cannot prosecute cases outside of its subject-matter (Article 5), temporal (Article 11(1)) or personal (Article 26) jurisdiction, even if arising from a Security Council referral.
   In any case, the Security Council prominent Chapter VII powers do not absolve it from operating in conformity with the Statute of the ICC – a separate and autonomous international organization – when referring situations to the Court [Condorelli, Villalpando, 2002, pp. 575 and 578]. Thus, Security Council referrals cannot push the Court to act outside of its statutory legal framework by, e.g., asking it to investigate crimes committed prior to the Statute’s entry into force [Rastan, 2015, pp. 170-171]. This notwithstanding, it remains unclear whether the ICC could exercise a ‘quasi-constitutional’ control over the legality of a Security Council referral and, if yes, to what extent. Since, under Article 19, the Court shall verify its jurisdiction over any case brought before it, it seems logical that it could also examine whether the rules on triggering such jurisdiction have been respected. Whilst it is hard to imagine the ICC ever challenging the Security Council’s qualification of a given situation as posing a threat to peace and security, the question has been raised with regard to referrals that appear to be incompatible with the ICC Statute (e.g. excluding the Court’s jurisdiction over nationals of certain States) [Schabas-Pecorella, 2016, p. 700; see e.g. SC Res 1593, para. 6; SC Res 1970, para. 6]. It is controversial, in particular, whether incompatible clauses contained in the relevant Security Council Resolution could be ‘severed’ and considered as if not present (as opposed to invalidating the entire referral) [Cryer, 2006, pp. 213-214; Sluiter, 2008, pp. 878-881]. The early ICC practice on cases originating from Security Council referrals does not offer any conclusive information in this regard.
   Article 18 implies that the procedure for preliminary rulings on jurisdiction and admissibility – whereby the Prosecutor communicates the opening of an investigation to all States which would normally exercise jurisdiction over crimes committed in the related situation – does not apply to investigations originating from a Security Council referral. Despite this procedural peculiarity, the entire complementarity framework continues to apply, since article 17 and 19 contain no exception for situations referred by the Security Council. Actually, Article 19(3) specifies that the Security Council is allowed to submit observations with regard to questions of admissibility of cases deriving from its referrals. As a matter of fact, the Court has already examined the admissibility of cases emanating from Security Council referrals [see supra, Gaddafi and Al-Senussi cases].
   Like referring States, also the Security Council can request the PTC to review an OTP decision not to investigate or not to proceed after investigation, if such decision concerns a situation arising from referral ex Article 13(b). This, in turn, may lead the PTC to request the Prosecutor to reconsider its decision (see Article 53(3)(a)).
   As said, Security Council referrals might concern situations occurring on States that are not Party to the ICC Statute. As such, these States would not have any obligation to cooperate with the Court during investigations and other proceedings, unless the Security Council resolution containing the referral made such obligation explicit. Whilst Resolutions 1593 and 1970 have explicitly obliged the territorial States (i.e. Sudan and Libya) to cooperate with the Court, all other States (as well as regional and other international organizations) have been simply ‘urged’ to do so, making sure to recall that States that are not Parties do not have any obligation in this respect [SC Res 1593, para. 2; SC Res 1970, para. 5]. As a result, the extent to which States other than Sudan and Libya have to cooperate with the Court has been the object of much debate [especially with regard to the potential arrest of Sudan’s President, Omar Al-Bashir. See Akande, 2009; Gaeta, 2009; Tladi, 2013; Boschiero, 2015; Ventura, 2015].
   Article 115 provides that the UN shall provide funds to the ICC, in particular to cover expenses brought about by Security Council referrals. The release of such funds shall be regulated by the terms of the Agreement between the UN and the ICC. Whilst Article 115 alone does not oblige the UN to cover the said expenses, the first two Security Council referrals still contained explicit indication that the UN would not bear any such costs [SC Res 1593, para. 7; SC Res 1970, para. 8].


Author:
Antonio Coco

Updated:
15 August 2017

Article 13(c)

[183] (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.

iii) Proprio motu investigation by the Prosecutor
Thanks to the third triggering mechanism listed in Article 13, the ICC jurisdiction can be activated ‘internally’ when the Prosecutor decides to initiate an investigation. Since the Prosecutor – absent a State or Security Council referral – acts on its own decision, such investigations are commonly known as ‘proprio motu’ (i.e. ‘on its own impulse’ in Latin). This does not mean that the OTP acts without any external inputs. Victims, their relatives and non-governmental organizations can file communications to the OTP in order to convince it to open an investigation, and also States can provide information to the OTP to that effect (see Article 15(1-2)).
   Article 13(c) differs in language from the first two paragraphs of the same article, since it does not mention “a situation in which one or more crimes appear to have been committed”. By mentioning an investigation “in respect of such a crime” (i.e. a crime under the Court’s jurisdiction) it seems to leave the door open for an investigation into one or more specific cases, as opposed to a broader situation. Whilst the first proprio motu investigations have indeed concerned ‘situations’, such difference in language should not surprise. The Prosecutor enjoys indeed a great discretion in selecting cases to be prosecuted even after having carried out an investigation into a ‘situation’, so it would not make a big difference to just investigate one or more specific cases after a preliminary examination of the general context. In this regard, prosecutorial discretion at the ICC is extremely wide when compared to national courts and even ad hoc tribunals, considering that only a small amount of all cases involving cases within the ICC jurisdiction will actually be prosecuted before the Court. The perception of such discretion is magnified by the fact that crimes which the OTP can decide not to investigate or prosecute are arguably more serious than those that a domestic prosecutor (even assuming she does have some sort of prosecutorial discretion) can decide not to investigate or prosecute.
   Nevertheless, this seemingly wide discretion is tempered by the fact that investigations proprio motu can only be opened with a previous PTC authorization (Article 15). In this respect, according to the Kenya authorization decision, it appears that the Prosecutor may only seek authorization to investigate crimes that have already been committed or are ongoing at the time of the request [Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC PT. Ch. II, ICC-01/09-19-Corr, 31 March 2010, § 206]. Such stance seems to be premised on PTC II’s fear to lose its supervisory power if authorizing open-ended investigations, and has spurred criticism because it artificially decreases the Prosecutor’s ability to investigate complex and evolving situations of crisis [Rastan, 2012, pp. 21-22]. However, a different PTC, when authorizing investigations in Côte d’Ivoire, has affirmed that investigations on any crime subsequent to the Prosecutor’s request would still be covered by the authorization, as long as part of the same ongoing situation [Situation in the Republic of Côte d’Ivoire, Corrigendum to ‘‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire’’, ICC PT. Ch. III, ICC-02/11-14-Corr, 15 November 2011, paras. 178-179].
   On a further note, PTC control powers include the prerogative to review decisions not to investigate or not to prosecute in accordance with Article 53. Moreover, should the Prosecutor decide to initiate an investigation after a State referral or proprio motu, she shall notify all States Parties and those States which would normally exercise jurisdiction over the crimes under scrutiny, giving them a chance to challenge the Court’s jurisdiction or the cases’ admissibility (Articles 18 and 19).
   All the mentioned procedures aim at avoiding that the proprio motu power can be abused to initiate politicized or frivolous investigations.

Cross-references
• Articles 5-8bis
• Article 11
• Article 12
• Article 14
• Article 15
• Articles 17-19
• Article 26
• Article 53

Doctrine
1. Dapo Akande, “The Legal Nature of Security Council Referrals to the ICC and its Impact on Al Bashir's Immunities”, Journal of International Criminal Justice, vol. 7, no. 2, 2009, pp. 333-352.
2. Nerina Boschiero, “The ICC Judicial Finding on Non-cooperation Against the DRC and No Immunity for Al-Bashir Based on UNSC Resolution 1593”, Journal of International Criminal Justice, vol. 13, no. 3 2015, pp. 625-653.
3. Luigi Condorelli, Annalisa Ciampi, “Comments on the Security Council Referral of the Situation in Darfur to the ICC”, Journal of International Criminal Justice, vol. 3, no. 3, 2005, pp. 590-599.
4. Luigi Condorelli, Santiago Villalpando, “Can the Security Council Extend the ICC’s Jurisdiction?”, in Antonio Cassese, Paola Gaeta, John W.D. Jones (Eds.), The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, pp. 571-582.
5. Luigi Condorelli, Santiago Villalpando, ‘Referral and Deferral by the Security Council’, in Antonio Cassese, Paola Gaeta, John W.D. Jones (Eds.), The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, pp. 627-656.
6. Robert Cryer, “Sudan, Resolution 1593, and International Criminal Justice”, Leiden Journal of International Law, vol. 19, no. 1, 2006, pp. 195-222.
7. Mohamed El Zeidy, “The legitimacy of withdrawing State Party referrals and ad hoc declarations under the State of the International Criminal Court”, in Carsten Stahn, Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nihjoff, Leiden/Boston, 2009, pp. 55-78.
8. Paola Gaeta, “Does President Al Bashir Enjoy Immunity from Arrest?”, Journal of International Criminal Justice, vol. 7, no. 2, 2009, pp. 315-332.
9. Philippe Kirsch, Darryl Robinson, “Referral by State Parties”, in Antonio Cassese, Paola Gaeta, John W.D. Jones (Eds.), The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, pp. 619-626.
10. Philippe Kirsch, Darryl Robinson, “Initiation of Proceedings by the Prosecutor”, in Antonio Cassese, Paola Gaeta, John W.D. Jones (Eds.), The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, pp. 657-664.
11. Jann Kleffner, “ICC (Trigger Mechanisms)”, in Antonio Cassese et al. (Eds.), The Oxford Companion to International Criminal Justice, Oxford University Press, Oxford, 2009, pp. 353-354
12. Marko Milanović, “Is the Rome Statute Binding on Individuals? (And Why We Should Care)”, Journal of International Criminal Justice, vol. 9, no. 1, 2011, pp. 25-52.
13. Héctor Olásolo, “The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of Office of the Prosecutor”, International Criminal Law Review, vol. 5, no. 1 2005, pp. 121-141.
14. Héctor Olásolo, The Triggering Procedure of the International Criminal Court, Brill/Martinus Nijhoff, Leiden, 2005.
15. Rod Rastan, “Situation and Case: Defining the Parameters” in Carsten Stahn and Mohamed El Zeidy (Eds.), The International Criminal Court and Complementarity: From Theory to Practice Cambridge University Press, Cambridge, 2011, pp. 421-459.
16. Rod Rastan, “The Jurisdictional Scope of Situations before the International Criminal Court”, Criminal Law Forum, vol. 23, no. 1, 2012, pp. 1–34.
17. Rod Rastan, “Jurisdiction”, in Carsten Stahn (Ed.), The Law and Practice of the International Criminal Court, Oxford University Press, Oxford, 2015, pp. 141-178
18. Deborah Ruiz Verdusco, “The Relationship between the ICC and the United Nations Security Council”, in Carsten Stahn (Ed.), The Law and Practice of the International Criminal Court, Oxford University Press, Oxford, 2015, pp. 30-64.
19. Leila N. Sadat, Richard S. Carden, “The New International Criminal Court: An Uneasy Revolution”, Georgetown Law Journal, vol. 88, no. 3, 2000, pp. 381-474
20. William Schabas, An Introduction to the International Criminal Court, Cambridge University Press, Cambridge, 2011, pp. 157-186.
21. William Schabas, “Article 13 – Exercise of Jurisdiction”, in The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2016, pp. 367-380.
22. William Schabas, Giulia Pecorella, “Article 13”, in Otto Triffterer, Kai Ambos (Eds.), The Rome Statute of the International Criminal Court: A Commentary, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 690-702.
23. Göran Sluiter, “Obtaining Cooperation from Sudan: Where is the Law?”, Journal of International Criminal Justice, vol. 6, no. 5, 2008, pp. 871-884.
24. Carsten Stahn, Mohamed El Zeidy, Héctor Olàsolo, “The International Criminal Court's Ad Hoc Jurisdiction Revisited”, American Journal of International Law, vol. 99, no. 2, 2005, pp. 421-431
25. Dire Tladi, “The ICC Decisions on Chad and Malawi: On Cooperation, Immunities, and Article 98”, Journal of International Criminal Justice, vol. 11, no. 1, 2013, pp. 199-221.
26. Harmen van der Wilt, ‘Self-Referrals as an Indication of the Inability of States to Cope with Non-State Actors’, in Carsten Stahn (Ed.), The Law and Practice of the International Criminal Court, Oxford University Press, Oxford, 2015, pp. 210-227
27. Manuel J. Ventura, “Escape from Johannesburg?: Sudanese President Al-Bashir Visits South Africa, and the Implicit Removal of Head of State Immunity by the UN Security Council in light of Al-Jedda”, Journal of International Criminal Justice, vol. 13, no. 5, 2015, pp. 995-1025

Author:
Antonio Coco

Updated:
15 August 2017

Article 14

[184] Referral of a situation by a State Party
General Remarks  
State referrals are mentioned as one of the three trigger mechanisms under Articles 13(a) and 14 of the Rome Statute. Article 14 complements Article 13(a).
State referrals were thought to have little potential for use, but the law-in-action has proven such expectations wrong. As a matter of fact, five out of nine situations before the ICC are based upon State referrals (Uganda, Democratic Republic of Congo, Central African Republic I and II and Mali).

Preparatory Works
A mechanism for States to trigger the ICC’s jurisdiction was uncontroversial, but the original idea focused primarily on “complaints” by injured States against other States [Article 25 of the ILC Draft Statute 1994]. During ad hoc Committee meetings in 1995, possibilities for trigger mechanisms were further discussed. Some delegations favored a broad referral tool, while others wanted to restrict the referral to “interested States”. Numerous options were included in brackets in Article 45 [25] of the Zutphen Draft 1998, which found its way into Article 11 of the Preparatory Committee’s Draft Statute 1998.
   An alternative draft by the United Kingdom, entitled “Referral of a situation by a State”, was included into the Draft Statute 1998. This proposal suggested that “situations” rather than single cases should be referred, a phrasing that found its way into the final version of the Rome Statute. The UK’s proposal, intentionally or not, also altered the language moving away from the term “complaint”. It was changed to “State referring a situation”. No reference to self-referrals or the like can be found in the discussions.

Analysis of provisions and sub-provisions
Article 14 partly repeats Article 13(a). The object of the referral is a “situation”. The neutral wording “situation” was introduced to avoid complaint against specific individuals and as such reduces the prospect of States Parties referring individualized complaints rather than a conflict situation as a whole. Any State Party may refer such a conflict situation to the ICC under mentioned articles. In accordance with paragraph 2 of Article 14, the relevant circumstances shall be specified and the referral shall be accompanied by supporting documentation.

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 14(1)

[185] 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
“A State Party” refers to any State that has ratified the Rome Statute. A limitation to a certain State, i.e. the territorial or national State, was not included.
   In the context of Article 12(3) of the Rome Statute the OTP initially denied an investigation with regard to Palestine due to its unclear status under international law. [Decision by the Prosecutor, Situation in Palestine, 3 April 2012]. In the context of Article 14, this question would have to be solved already beforehand when a State seeks to become a member of the Rome Statute in accordance with Article 125(3) Rome Statute. It is clear that only State Parties may use the trigger mechanism under Article 14. Non-State Parties are limited to a declaration under Article 12(3) and the appropriate trigger mechanism falls under Article 13(c), 15 of the Rome Statute.
   In accordance with Article 125 (3) Rome Statute, Palestine then acceded to the Rome Statute (The State of Palestine accedes the Rome Statute, 7 January 2015). It is worthy to note that, despite its unclear status under international law, the accession was accepted and not only discussed during the Assembly of State Parties. Be that as it may, the OTP opened a new preliminary examination, this time on the basis of Article 14 Rome Statute (The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine, 16 January 2015). 
   Referrals of State Parties can be divided into two categories: third party referrals and self-referrals. Earlier drafting history focused on third party referrals, but practice shows an increasing tendency towards self-referrals by States. According to the prevailing interpretations of Articles 13(a) and 14, self-referrals are referrals by a State Party of a situation in which crimes falling within the jurisdiction of the Court appear to have been committed on that State Party’s territory [Müller/Stegmiller, 2010, p. 1272]. The Office of the Prosecutor adopted a policy of inviting and encouraging such voluntary self-referrals [Paper on Some Policy Issue before the Office of the Prosecutor, September 2003].
   To date, all referrals under Article 14 are such self-referrals, except Palestine. In Palestine, crimes were allegedly committed by Israel, and if this referral leads to full investigations, it would constitute the first referral in the sense of a "complaint" against a third state. In five situations referred to it under Article 14 the Office of the Prosecutor initiated (full) investigations pursuant to Article 53(1) Rome Statute:
   In the Situation of Uganda, the President of Uganda referred “the situation concerning the LRA” to the ICC in 2004 [ICC - President of Uganda refers situation concerning the Lord's Resistance Army (LRA) to the ICC, 29 January 2004 (ICC-20040129-44)]. Despite the wording of the referral (“concerning the LRA”), the Prosecutor is conducting investigations against all involved parties [Statement by Luis Moreno-Ocampo, Prosecutor of the ICC - Informal meeting of Legal Advisors of Ministries of Foreign Affairs, 24 October 2005, p.7,]. The Prosecutor thus redefines the situation referred to him as encompassing “all crimes committed in Northern Uganda in the context of the ongoing conflict involving the LRA” [Prosecutor v. Kony et al., ICC PT. Ch. II, Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53, ICC-02/04-01/05-68, 02.12.2005,  para.5]. 
    The second referral concerned the Situation in the Democratic Republic of Congo where the Chief Prosecutor received a letter signed by the President in 2004 [Prosecutor receives referral of the situation in the Democratic Republic of Congo, 19 April 2004 (ICC-OTP-20040419-50)].
   A third self-referral was received by the Chief Prosecutor on behalf of the government of the Central African Republic in 2005 [ICC - Prosecutor receives referral concerning Central African Republic, 07 January 2005 (ICC-OTP-20050107-86)], and a fourth referral regarding the Central African Republic ("Situation in the CAR II") was received in May 2014 [Referral under Articles 13 (a) and 14, 30 May 2014]
   A fifth referral by Mali was received in 2012 [Referral letter by the Government of Mali, 13 July 2012]. 
   Another self-referral by the Comoros “with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip, requesting the Prosecutor of the International Criminal Court pursuant to  Articles 12, 13 and 14 of the Rome Statute to initiate an investigation into the crimes committed within the Court’s jurisdiction, arising from this raid’’ was also under scrutiny by the Office of the Prosecutor [Referral under Articles 14 and 12(2)(a) of the Rome Statute arising from the 31 May 2010, Gaza Freedom Flotilla situation, 14 May 2013]. The referral by the Comoros was rejected on the basis of Article 53 (1) Rome Statute (Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on concluding the preliminary examination of the situation referred by the Union of Comoros: “Rome Statute legal requirements have not been met”, 6 November 2014). However, as noted above, the sitution of Palestine as a whole has now been referred (again) by Palestine itself and is pending before the ICC-OTP. 
   It may be noted that in the Situation of Kenya, the Office of the Prosecutor initially also favored a self-referral [Agreed Minutes of the Meeting between Prosecutor Moreno-Ocampo and the delegation of the Kenyan government, 3 July 2009].
   The practice of self-referrals was highly disputed amongst scholars and practitioners [see, for example, Schabas. 2010, Article 14, 306 et seq.], but according to the Chambers in Lubanga and Katanga does not face legality concerns. [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-8-US-Corr, 24 February 2006, para. 35; Prosecutor v. Katanga and Chui, ICC T. Ch. II, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-1213, 16 June 2009, paras. 79-80].
   Despite the unclear drafting history, that is only supplementary in nature, the terminology “referral” and “refer” rather than “complaint” is neutral and allows for action by any State Party, be it the State Party on which territory the conflict took place. In Lubanga, PT. Ch. I mentioned that “[…] the self-referral of the DRC appears consistent with the ultimate purpose of the complementarity regime [...]”. [Prosecutor v. Lubanga, ICC PT. Ch. I, Decision concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, ICC-01/04-01/06-8-US-Corr, 24 February 2006, para.35]. In Katanga, T. Ch. II further clarified, in the context of an admissibility challenge by the Defence, that:

“[…] However, if a State considers that it is more opportune for the Court to carry out an investigation or prosecution, that State will still be complying with its duties under the complementarity regime, if it surrenders the suspect to the Court in good time and cooperates fully with the Court in accordance with Part IX of the Statute. […] The Chamber is not in a position to ascertain the real motives of a State which expresses its unwillingness to prosecute a particular case. A State may, without breaching the complementarity principle, refer a situation concerning its territory to the Court if  it considers it opportune to do so, just as it may decide to carry out an investigation or prosecution of a particular case. […]” [Prosecutor v. Katanga and Chui,  ICC T. Ch. II, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-1213, 16 June 2009, paras. 79-80].

The possibility of self-referrals was upheld by the Appeals Chamber in Katanga and Chui stating that “the Statute does not prevent a State from relinquishing its jurisdiction in favour of the Court” [Prosecutor v. Katanga and Chui, ICC A. Ch., Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/04-01/07-1497, 25 September 2009, para. 85; in the situation in Central African Republic, Prosecutor v. Bemba, ICC T. Ch. III, Decision on the Admissibility and Abuse of Process Challenges, ICC-01/05-01/08-802, 24 June 2010, paras. 259-260]. 
   Policy concerns of the practice of self-referral are further discussed in doctrine and evaluated more critically [Schabas, 2010, pp.309-312; Stegmiller, 2011, pp.131-134; Arsanjani & Reismann, 2005, p.394; Apuuli, 2006, p.185; Akhavam, 2005, p.411]. Similarly, withdrawals of self-referrals, meaning that the State attempts to regain its ius puniendi by taking its former referral back, have gained academic interest [Maged, 2006, pp.419-422; El Zeidy, 2009, pp.55-56]. The issue could have arisen in the Ugandan situation, where Museveni threatened to withdraw the case and solve the Kony problem by himself, but was never taken to the level of challenging the ICC’s jurisdiction or admissibility. Article 127(1) of the Rome Statute states that a State that withdraws from the Statute shall not be discharged from the obligations arising from the Statute while it was a party. From a contextual point of view, withdrawals of referrals are not consistent with the procedural system of the ICC, which provides for challenges under Articles 18 and 19 of the Rome Statute. Furthermore, Article 16 Rome Statute regulates a deferral mechanism for the Security Council. Any other withdrawal or deferral possibility cannot be found in the ICC’s procedural system.

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 14(2)

[186] 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.
The formalities regulated in paragraph 2 are not further specified in the Rules of Procedure and Evidence. Rule 45 foresees a submission in writing. There is little practical relevance of this provision so far. It regulates the accompanying information that a State has to provide to the Office of the Prosecutor. The wording (“shall”) implies a duty to provide information, however the extent remains unclear and should have been further specified by the Rules of Procedure and Evidence. “As far as possible” and “as is available” allow for a variation of a strict duty. “Supporting” and “relevant” are also open to interpretation.
   The Presidency needs to be informed by the Prosecutor pursuant to Regulation 45. Furthermore, OTP Regulation 30 foresees a notification of UN Security Council if a State referral reaches the level of a “reasonable basis” to initiate an investigation under Article 53(1) Rome Statute.

Cross-references:
1.  Article 13(a)
2.  Rule 45
3.  Regulation 45
4.  OTP Regulations 25, 30

Doctrine:

  1. Jann Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, Oxford University Press, Oxford, 2008.
  2. Héctor Olásolo, The Triggering Procedure of the International Criminal Court, Martinus Nijhoff Publishers, Leiden/Boston, 2005.
  3. Ignaz Stegmiller, The Pre-Investigation Stage of the ICC, Criteria for Situation Selection, Duncker & Humblot, Berlin, 2011.
  4. Payam Akhavan, "Self-referrals before the International Criminal Court: Are States Villains or the Victims of Atrocities", Criminal Law Forum, vol. 21, no. 1, 2010, pp. 103-120.
  5. Payam Akhavan, "Developments at the ICC: The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the ICC", American Journal of International Law, vol. 99, no. 2, 2005, pp. 403-421.
  6. Kasaija Phillip Apuuli, "The ICC Arrest Warrants for the Lord’s Resistance Army Leaders and Peace Prospects in Northern Uganda", Journal of International Criminal Justice, vol. 4, no. 1, 2006, pp. 179-187.
  7. Mahnoush Arsanjani/Michael Reismann, "Developments at the International Criminal Court: The law-in-action of the ICC", American Journal of International Law, vol. 99, no. 2, 2005, pp. 385-403.
  8. Mohamed El Zeidy, "The Ugandan Government Triggers the First Test of the Complementarity Principle: An Assessment of the First State Party’s Referral to the ICC", International Criminal Law Review, vol. 5, no. 1, 2005, pp. 83-119.
  9. Paola aeta, "Is the Practice of Self-Referrals a Sound Start for the ICC?", Journal of International Criminal Justice, vol. 4, no. 4, 2006, pp. 949-952.
  10. Claus Kress,"'Self-Referrals' and 'Waivers of Complementarity': Some Considerations in Law and Policy", Journal of International Criminal Justice, vol. 4, no. 4, 2006, pp. 944-948.
  11. Adel Maged, "Withdrawls of Referrals – A Serious Challenge to the Function of the ICC", International Criminal Law Review, vol. 6, no. 3, 2006, pp. 419-446.
  12. Andreas Th. Müller/Ignaz Stegmiller, "Self-referrals on Trial, From Panacea to Patient", Journal of International Criminal Justice, vol. 8, no. 5, 2010, pp. 1267-1294.
  13. Darryl Robinson, "Editor's Choice: The Controversy over Territorial State Referrals and Reflections on ICL Discourse", Journal of International Criminal Justice, vol. 9, no. 2, 2011, pp. 355-384.
  14. William Schabas, "Complementarity in Practice: Some Uncomplimentary Thoughts", Criminal Law Forum, vol. 19, no. 1, 2008, pp. 5-33.
  15. Ignaz Stegmiller, "The International Criminal Court and Mali: Towards More Transparency in International Criminal Law Investigations?", Criminal Law Forum, vol. 24, no. 4, 2013, pp. 475-499.
  16. Phil Clark, "Chasing Cases, The ICC and the Politics of State Referral in the Democratic Republic of the Congo and Uganda", in Carsten Stahn/Mohamed El Zeidy (Eds.), The International Criminal Court and Complementarity, Second Edition, Cambridge University Press, Cambridge, 2011, pp. 1180-1203.
  17. Mohamed El Zeidy, "The Legitimacy of Withdrawing State Party Referrals and Ad Hoc Declarations under the Statute of the International Criminal Court", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Brill, Leiden/Boston, 2009, pp. 55-78.
  18. Philippe Kirsch/Darryl Robinson, "Referral by State Parties", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 619-625.
  19. Jann Kleffner, "Auto-Referrals and the Complementary Nature of the ICC", in Carsten Stahn/Göran Sluiter (Eds.)The Emerging Practice of the International Criminal Court, Brill, Leiden/Boston 2009, pp. 41-53.
  20. Antonio Marchesi, "Article 14", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 575-579.
  21. William Schabas, The International Criminal Court, A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 305-313.

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15

[187] Prosecutor
General Remarks  
Article 15 of the Rome Statute deals with one of the three ways of initiating an investigation. In combination with Article 13(c) Rome Statute it outlines the proprio motu power of the Prosecutor. The expression proprio motu means “on his own motion”.
   The provision regulates a complex preliminary examination procedure. In contrast to the trigger mechanisms of a State or Security Council referral, the Pre-Trial Chamber must authorize an investigation (Article 15(3), (4) Rome Statute). To-date, such decisions were rendered in the situations of Kenya and Côte d'Ivoire. In the Kenya situation, PTC II highlighted that Article 15 of the Rome Statute is “one of the most delicate provisions of this Statute” [Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para. 17]. The (former) Chief Prosecutor was very reluctant to make practical use of the proprio motu power during the first eight years of the ICC’s activities.

Preparatory Works
The proprio motu power was one of the most controversial aspects during the Rome Conference and political issues had to be resolved before the adoption of the Rome Statute. Opponents and proponents of the mechanism did agree that the inclusion or absence of the mechanism would fundamentally affect the ICC system [Bergsmo & Pejić, 2008, p.582].
   The International Law Commission discussions in 1994 did not even foresee a prosecutorial proprio motu power and provided only for State Party and Security Council referrals. This changed during the Ad Hoc Committee debates in 1995 and the autonomous power of initiating investigations by the Prosecutor was brought to the negotiation table for the first time. A draft proposal was then adopted at the Preparatory Committee’s 1996 session, followed by Article 25bis of the Preparatory Committee’s session in 1997,  which was subsequently reproduced without change in Article 46 Zutphen Draft Statute:

Article 25 bis:
“The Prosecutor [may] [shall] initiate investigations [ex officio] [proprio motu] [or] on the basis of information [obtained] [he may seek] from any source, in particular from Governments, United Nations organs [and intergovernmental and non-governmental organizations]. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed. [The Prosecutor may, for the purpose of initiating an investigation, receive information on alleged crimes under Article 20(a) to (d) from Governments, intergovernmental and non-governmental organizations, victims and associations representing them, or other reliable sources.]]”

The Preparatory Committee’s meetings from 1996-1998 were characterized by opposing debates. Two groups crystalized, the so-called “like-minded” States in favor of a proprio motu power and a strong Prosecutor, and an opposing group that feared politically motivated or frivolous proceedings by the Chief Prosecutor [Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para.18 with fn.23]. A joint Argentine-German proposal of 25 March 1998 led to broader acceptance of a prosecutorial proprio motu power. The proposal limited the Prosecutor’s preliminary examinations to “information received from other parties” and introduced the approval by the Pre-Trial Chamber. The current version of Article 15 is largely identical to the Argentine-German proposal.
   During the Rome Conference, 76 percent of the participating countries - in total numbers 61 States - supported a proprio motu power.  It was yet unclear until the end of the negotiations whether the mechanism would find its way into the Rome Statute. Despite opposition by States, such as the United States, China, India and Japan, Article 15 was finally adopted.

Analysis of provisions and sub-provisions
Preliminary examinations are on-going in Afghanistan, Honduras, Iraq, Ukraine, Palestine, Colombia, Georgia, Guinea, and Nigeria [Report on Preliminary Examination Activities 2013, Office of the Prosecutor, November 2013; see also the ICC-OTP website on Preliminary Examinations]. Examinations with regard to the Comoros, Korea and Venezuela were closed.
   It is worthy to note that preliminary examinations (pre-investigations) are conducted with regard to all three trigger mechanisms. Rules 48 and 104 of the Rules of Procedure and Evidence lead to a partial overlap between Article 15 and 53 Rome Statute and the same factors need to be assessed [Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para. 23; Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-14, 03 October 2011, para. 17;  Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, Judge Fernàndez de Gurmendi’s separate and partially dissenting opinion to the Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-15, 3 October 2011, para.24; Stegmiller, 2011, pp. 209 et seq.].
Regulation 25 of the OTP Regulations states:

“The preliminary examination and evaluation of a situation by the Office may be initiated on the basis of:
(a) any information on crimes, including information sent by individuals or groups, States, intergovernmental or non- governmental organisations; 
(b) a referral from a State Party or the Security Council; or
(c) a declaration pursuant to Article 12, paragraph 3 by a State which is not a Party to the Statute. […]”

Moreover, Regulation 29(1) OTP Regulations spells out:

“In acting under Article 15, paragraph 3, or Article 53, paragraph 1, the Office shall produce an internal report analysing the seriousness of the information and considering the factors set out in Article 53, paragraph 1(a) to (c), namely issues of jurisdiction, admissibility (including gravity), as well as the interests of justice, pursuant to rules 48 and 104. The report shall be accompanied by a recommendation on whether there is a reasonable basis to initiate an investigation. […]”

A first report under regulation 29(1) OTP Regulations was published in the Mali Situation [Situation in Mali, Article 53(1) Report, 16 January 2013]. The process and criteria are thus similar with regard to all trigger mechanisms. However, the process under Article 15 with regard to proprio motu information takes significantly longer in practice.
   In fact, no provision in the Rome Statute or the Rules of Procedure and Evidence regulates a specific time period for the completion of a preliminary examination. Regulation 19(4) OTP Regulations states, rather generally, that the evaluation shall continue as long as the situation is investigated. The decision whether or not a “reasonable basis” is reached marks the line between preliminary examinations and investigations, but the question remains what happens if the Prosecutor does not officially announce such a decision. The matter led to a controversy in the situation in the Central African Republic when the Prosecutor gave no information on the situation under scrutiny for over two years. The Pre-Trial Chamber emphasized that a preliminary examination must be completed within “reasonable time”, regardless of its complexity [Situation in the Central African Republic, ICC PT. Ch. III, Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, ICC-01/05-6, 30 November 2006, p.4]. The Prosecutor provided information on the status of the preliminary examination, but pointed out that this information was given on a voluntary basis as the Pre-Trial Chamber has no supervisory function with regard to this early stage and that the decision to seek the opening of investigations lies within the discretion of the Prosecution alone [Situation in the Central African Republic, ICC PT. Ch. III, Decision Requesting Information on the Status of the Preliminary Examination of the Situation in the Central African Republic, ICC-01/05-6, 30 November 2006]. The disagreement was neither explicitly settled by jurisprudence nor by an amendment of the Rules of Procedure and Evidence. The status and length of preliminary examinations could be (partly) resolved by a new rule or regulation [Stegmiller, 2011, p.235].

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(1)

[188] 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.
“May initiate” suggests discretion of the Prosecutor. Commentators have stated that the Prosecutor’s initiation right is “unconditional and discretionary, but carefully balanced by the need for authorization by a Pre-Trial Chamber” [Bergsmo/Pejić, 2008, p.585, para.9]. The phrasing has to be put into context with the followings words: “investigation” and “proprio motu”.
   Under this paragraph, the Prosecutor may not start full investigations, despite the wording, but may only initiate preliminary examinations. Taking a glance at the whole provision of Article 15, its accompanying rules 48 and 104 of the Rule of Procedure and Evidence and regulations 25 and 29 of the OTP Regulations, paragraph 1 of Article 15 should not be misconstrued. Paragraph 6 of Article 15 refers to the “preliminary examination referred to in paragraphs 1 and 2 (emphasis added)”. This preliminary state can be clearly distinguished from the investigation stage under Article 54 Rome Statute.
   “Proprio motu” means on his/her own initiative without any formal referral by a third party. Article 13(c) of the Rome Statute names Article 15 Rome Statute as one of three trigger mechanisms, on equal footing with Articles 13(a), 14, and Article 13(b).
   In consequence, the discretionary “may” under paragraph 1 simply means that the Prosecutor has the right to pre-investigate gathered information if he/she thinks fit. Full investigations, however, require authorization under paragraph 3 of Article 15 Rome Statute. The decision of the PTC to authorize full investigations under Article 15(4) Rome Statute is then – procedurally – on equal footing with the Article 53(1) Rome Statute. Only after this decision one may speak of investigations in the narrow sense.
   Article 15 therefore embraces two different levels: First, preliminary examination methods are regulated in paragraphs 1, 2, and 6. Second, an intermediary phase is foreseen during which the Pre-Trial Chamber “checks and balances” the proprio motu power of the Prosecutor in accordance with paragraphs 3, 4, and 5.

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(2) - The Prosecutor shall analyse the seriousness

[189] 2. The Prosecutor shall analyse the seriousness of the information received.
The Prosecutor “shall” analyze “the seriousness” of the “information received”. In practice, the Office of the Prosecutor uses “communication” as an abbreviation and short term rather than “information received” or “information on crimes within the jurisdiction of the Court”.  The latter terms are statutory language, but the former (“communication”) is not. In regulation 26 of the OTP Regulations it is held that all information shall be registered. The newly drafted OTP Regulations also depart from the term “communication” and the Prosecutor seems to acknowledge the legal notion of “information received”.
   The term “shall” indicates a legal duty to analyze all information received. A qualified member of the Office of the Prosecutor must analyze all incoming information. Once information is classified as such under Article 15 Rome Statute, there is thus a statutory obligation to conduct a preliminary examination and inform the information provider of the result. This duty is acknowledged pursuant to regulation 28(1) OTP Regulation [see further below at Article 15 paragraph 6 Rome Statute].
   Public reports may be made available if confidentiality concerns allow pursuant to rule 46 Rules of Procedure and Evidence, regulation 28(1) OTP Regulations. The Office of the Prosecutor issued public reports with regard to examinations that were ceased in Iraq [OTP response to communications received concerning Iraq, 09 February 2006], Venezuela [OTP response to communications received concerning Venezuela, 09 February 2006], Palestine [Decision by the OTP with regard to the situation in Palestine, 03 April 2012], Korea (Article 5 Report, 23 June 2014), and Comoros (Article 53(1) Report, 6 November 2014). A policy paper further spells out the Office of the Prosecutor’s understanding of preliminary examination activities [Policy Paper on Preliminary Examinations, November 2013] and general reports with regard to on-going examinations are given annually [Report on Preliminary Examination Activities 2013, Office of the Prosecutor, November 2013].
“Seriousness” refers to a minimum threshold for information to qualify under Article 15 for further inquiries. The Rome Statute is silent of the content of “information” under Article 15. Too broad and general information might not provide a sufficient evidentiary basis for the Prosecutor to launch an investigation. It is not a test of appropriateness [Bergsmo/Pejić, 2008, p. 587, para. 13] but rather an initial assessment of information to filter out unfounded, frivolous information. For this purpose, the Office of the Prosecutor makes preliminary distinctions between matters which “manifestly fall outside the jurisdiction of the Court” and other, more profound information pursuant to regulation 27 of the OTP Regulation that is further processed. The Office of the Prosecutor has also established a filtering process comprising four phases, each phase focusing on a distinct statutory factor for analytical purpose: phase 1 deals with an initial assessment of the “seriousness” of information, phase 2 turns to the preconditions of jurisdiction under article 12 Rome Statute, phase 3 deals with admissibility under Article 17 Rome Statute, and phase 4 examines the “interests of justice” in accordance with Article 53(1)(c) Rome Statute [Policy Paper on Preliminary Examinations, November 2013, paras.77-84].
   The Prosecutor thus understands “seriousness” as an initial evaluation of information based on its evidentiary value, taking into account the reliability of the source and the credibility of the information, and examining information from multiple sources as a means of bias control pursuant to regulation 24of the OTP Regulations. “Seriousness” is an evidentiary assessment linked to the legal factors of Article 53(1) and implies some degree of sincerity.

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(2) - additional information

[190] For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.
According to the second sentence of Article 15(2) Rome Statute, the Prosecutor “may seek additional information” and “may receive written or oral testimony at the seat of the Court”. The decision to seek further information is discretionary. The investigation steps are yet limited to the two mentioned possibilities and must be interpreted narrowly. The Prosecutor “cannot deploy all this investigative powers” [Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, Judge Fernàndez de Gurmendi’s separate and partially dissenting opinion to the Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-15, 3 October 2011, para.29]. Forms of cooperation from States are limited and Part 9 of the Rome Statute does not yet apply to preliminary examinations. Rule 104(2) of the Rule of Procedure and Evidence repeats the measures of Article 15(2), introducing the same method for State referrals and SC referrals.   Information can be gathered from States, organs of the United Nations, intergovernmental and non-governmental organizations and other reliable sources. The Prosecutor may send requests for information to these sources. Field missions for the purpose of analyzing the information are possible, but have to be limited to obtaining further information. Such field missions were conducted inter alia in Colombia, Guinea, and Nigeria (Report of the Activities of the Court, International Criminal Court, 21.10.2013 [ICC-ASP/12/28, para.72, para.74, para.77].
    Testimony is to be received at the seat in The Hague. Rule 47 of the Rule of Procedure and Evidence specifies this further. For example, a record in accordance with rules 47(1), 111 and 112 Rule of Procedure and Evidence is always necessary. The provision is not to be construed as narrowly as meaning testimony has to be taken at the seat, but refers to receiving it. Therefore, testimony can be gathered through national authorities and be transmitted to The Hague.
   The Prosecutor may gather information through the measures outlined in Article 93 Rome Statute. While States might assist the Prosecutor, regardless of the application of cooperation provisions under the Rome Statute, in the case on non-compliance, however, Articles 86 and 87 et seq. Rome Statute do not apply, thus not imposing a legal duty to cooperate [Policy Paper on Preliminary Examinations, November 2013, para .85; Informal Expert Paper, Fact-Finding and investigative functions of the Office of the Prosecutor, including co-operation, September 2003, paras. 25-29]. During preliminary examinations, the Prosecutor therefore must rely on voluntary cooperation and gather information through open sources to the extent available.

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(3) - reasonable basis to proceed

[191] 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected.
The Prosecutor submits a “request for authorization” to the Pre-Trial Chamber if preliminary examinations provide for a “reasonable basis” to proceed with an investigation. At this stage, the intermediary step from pre- to full investigations is foreseen, in other words, the Prosecutor continues the inquiry after the authorization by means of the associated powers under Article 54
   The Prosecutor determines “reasonable basis” at this stage, and he or she “shall” submit a request for authorization. “Shall” refers to the binding obligation to seek authorization, in contrast to State referrals and Security Council referrals, where the Prosecutor enjoys freedom from such an authorization. This notwithstanding, the Prosecutor should, if a “reasonable basis” under Article 15(3) and 53(1) Rome Statute has been reached, in principle, investigate unless exceptions arise. The incorporation of Article 53’s criteria, above-all the “interests of justice,” into the Prosecutor’s final determination, provides an opening for prosecutorial discretion and such an exception.
   The Prosecutor must be aware of the fact that the Pre-Trial Chamber will subsequently apply the same reasonability test under Article 15(4) Rome Statute. The content of reasonable basis is the same under Article 15(3) and (4) and under Article 53(1) Rome Statute, which is restated by rule 48 Rules of Procedure and Evidence.
   Rule 50(2) Rules of Procedure and Evidence further states that the request shall be made in writing. In accordance with regulation 49 Court Regulations, the Prosecutor attaches the information collected in the situation in hand to the authorization request in annexes. As far as possible, the annexes should include a chronology of relevant events, maps detailing relevant information, including the location of the alleged crimes, and an explanatory glossary of relevant names of persons, locations and institutions. Regulation 38(1)(e) of the Court Regulations establishes a limit of 100 pages for the document requesting the authorization. It is thus clear that the wording “any supporting material collected” of Article 15(3) Rome Statute does not mean “any and all”. The Office of the Prosecutor is only obliged to forward as much supporting material as is required to demonstrate to the Pre-Trial Chamber that the conclusion to further investigate is well-founded.  “Supporting material” cannot, however, be reduced to incriminating evidence only and the Office of the Prosecutor may not purposefully withhold information which does not support its conclusion. Article 54(1)(a) Rome Statute that requires the Office to investigate “incriminating and exonerating circumstances equally”. In accordance with rule 46 Rule of Procedure and Evidence, supporting material can be submitted as a confidential attachment to the request.

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(3) - Victims may make representations

[192] Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.
Victims may make representations to the Pre-Trial Chamber when a request under Article 15 Rome Statute is made. Information of victims may be brought to the attention of the Prosecutor under Article 15(1) and (2) Rome Statute, and as a corollary of the important role of victims in proprio motu proceedings their participation is regulated during early procedure. If the Prosecutor intends to seek a request under Article 15(3) Rome Statute, all victims known to the Prosecutor or to the Victims and Witnesses Unit must be informed under rule 50(1) Rules of Procedure and Evidence. Victims may then make representations in writing according to rule 50(2) and (3) Rules of Procedure and Evidence. A time limit of 30 days applies pursuant to rule 50(3) Rule of Procedure and Evidence and regulation 50(1) Court Regulations. In addition, regulation 38(2)(a) Court Regulations limits the documents submitted by victims under Article 15(3) and rule 50(3) to no more than 50 pages. The Chamber may request additional information from victims who have made representations and, “if it considers appropriate, may hold a hearing” pursuant to rule 50(4) Rules of Procedure and Evidence. In practice, victims sought participation in the situations in Kenya and Côte d’Ivoire. For the qualification as a “victim” the Chambers consulted rule 85 Rules of Procedure and Evidence [Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Order to the Victims Participation and Reparations Section Concerning Victims’ Representations Pursuant to Article 15(3) of the Statute, ICC-02/11-6, 6 July 2011, para. 10]. With regard to the participation procedure and victims’ rights at such an early stage, jurisprudence has not yet found a common practice. The Pre-Trial Chamber in Kenya requested the Victims Participation and Reparations Section (VPRS) to:

“(1) identify, to the extent possible, the community leaders of the affected groups to act on behalf of those victims who may wish to make representations (collective representation);
(2) receive victims’ representations (collective and/or individual);
(3) conduct an assessment, in accordance with paragraph 8 of this order, whether the  conditions set out in rule 85 of the Rules have been met; and
(4) summarize victims’ representations into one consolidated report with the original representations annexed thereto.” [Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Order to the Victims Participation and Reparations Section Concerning Victims’ Representations Pursuant to Article 15(3) of the Statute, ICC-02/11-6, 6 July 2011, para.9]

Pre-Trial Chamber III in Côte d'Ivoire departed from this approach and, for the sake of expeditiousness, called upon the VPRS to provide “a single, consolidated report on the collective and individual representations” [Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Order to the Victims Participation and Reparations Section Concerning Victims’ Representations Pursuant to Article 15(3) of the Statute, ICC-02/11-6, 6 July 2011, para.9; see also Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-14, 3 October 2011, para.19].

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(4) - reasonable basis to proceed

[193] 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation,
The power to authorize an investigation proprio motu lies with the Pre-Trial Chamber alone. While the Prosecutor may initiate the preliminary phase, it is the Chamber’s prerogative to allow for the start of a formal investigation. From the moment of authorization, the Office of the Prosecutor is entitled to use its powers under Article 54 Rome Statute.  Under rule 50(5) Rule of Procedure and Evidence, the Chamber may issue a decision, including its reasons, authorizing “all or any part of the request of the Prosecutor,” and it must give notice to victims that have made representations. Decisions under Article 15(4) Rome Statute can be appealed by the Prosecutor in accordance with Article 82(1)(a) or (d) Rome Statute but not by States or victims.
   The Pre-Trial Chamber must consider whether there is a “reasonable basis to proceed with an investigation”. The underlying purpose of this check is to control for frivolous or politically motivated charges. The same “reasonable basis” standard is used for all three trigger mechanisms to move from preliminary examinations to investigations. “Reasonable basis” appears in Articles 15(3), (4), and 53(1) Rome Statute. Rule 48 introduces the criteria of Article 53(1) Rome Statute into Article 15(3) Rome Statute, which strongly suggests that the “reasonable basis” standard is identical in Article 15(4) Rome Statute. The drafting history of Articles 15 and 53 of the Statute further reveals that the intention was to use exactly the same standard for these provisions. Therefore, the same “reasonable basis to proceed” standard applies to both the Prosecutor and the Pre-trial Chamber in Article 15(3) and  (4) Rome Statute. [Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, paras. 21-25; Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-14, 03 October 2011, para.17].
   In addition, the Pre-Trial Chamber, due to the overlap between Articles 15 and 53 Rome Statute, must first consider whether the requirements set out in Article 53(1 )(a)-(c) Rome Statute are satisfied before deciding whether to authorize the commencement of an investigation. The Chamber shall consider whether

“(a) the information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
(b) the case is or would be admissible under Article 17 of the Statute; and
(c) taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice (emphasis added)”. [Situation in the Republic of Côte d'Ivoire, ICC PT. Ch. III, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-14, 03 October 2011, para. 17].

In essence, the standard under Article 15(4) Rome Statute is a very low one, it is meant to “prevent the Court from proceeding with unwarranted, frivolous, or politically motivated investigations that could have a negative effect on its credibility” and the Chamber must be satisfied “that there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court ʽhas been or is being committedʼ ” [Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, paras. 32, 35]. 
   This notwithstanding, the question how low the threshold actually is remains unsettled in present ICC jurisprudence. Since all jurisdictional parameters must be covered by the Pre-Trial Chamber’s review, Judge Hans-Peter Kaul did not agree with the standard applied by the majority of the Chamber and issued a dissenting opinion, holding that the context element of crimes against humanity was not fulfilled:

“It is my opinion that in the present case, despite the low threshold, an examination of in particular all legal requirements of Article 7 of the Statute, which establish the ratione materiae jurisdiction of the Court, including the contextual elements, is still required. It is most striking that in the Prosecutor's Request of 26 November 2009 the analysis of the contextual element of crimes against humanity, this crucial point of the entire request, was inadequately explored” [Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, Dissenting Opinion of Judge Kaul Situation in the Republic of Kenya, p. 9, para. 18].

In the different context of Côte d’Ivoire, Judge Fernàndez de Gurmendi suggests an even lower standard than the one applied by the majority in both situations of Côte d’Ivoire and Kenya, emphasizing that the Chamber has no investigative powers and should largely rely upon the Prosecutor’s findings:

“[…] the examination to be conducted by the Chamber is of a limited nature, namely to ascertain the accuracy of the statement of facts and reasons of law advanced by the Prosecutor with regard to crimes and incidents identified in his own request and determine, on this basis, whether the requirements of Article 53 of the Statute are met (emphasis added)” [Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, Judge Fernàndez de Gurmendi’s separate and partially dissenting opinion to the Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-15, 3 October 2011, para. 28].

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(4) - appears to fall within the jurisdiction of the Court

[194] and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.
The second half of the phrasing under Article 15(4) Rome Statute, “that the case appears to fall within the jurisdiction of the Court”, causes confusion: first, the provision was drafted in an imprecise manner because, at the given stage, the Prosecutor is concerned with situations as opposed to cases. The term “case” should not be read in isolation from the rest of Article 15 and must be put into perspective regarding the preliminary phase. The Pre-Trial Chamber therefore construed a wide understanding of case as relating to “potential cases” within the situation at stake. Second, the phrase “jurisdiction of the Court” could suggest a double-standard as it is mentioned both under Articles 15(4) and 53(1) Rome Statute. However, jurisdiction is only checked once by the Pre-Trial Chamber and there is no need to duplicate its assessment of jurisdiction because the “analysis makes it evident that there is a degree of redundancy in Article 15(4) of the Statute insofar as the first requirement necessitates assessment of a “reasonable basis to proceed” under Article 53(1)(a) of the Statute, and the second requirement equally prescribes assessment of whether “the case appears to fall within the jurisdiction of the Court” [Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para. 66].

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(5)

[195] 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation.
If the Pre-Trial Chamber refuses to authorize an investigation, the Prosecutor may bring subsequent requests “based on new facts or evidence regarding the same situation”. Rule 50(6) Rule of Procedure and Evidence clarifies that the new request is subject to the same procedure as the original request. The request must refer to new information. No refusal by a Pre-Trial Chamber has taken place to date. Therefore, the matter of subsequent requests is yet to be tested in ICC practice and the term “new facts or evidence” needs to be given a practical analysis.
   Under this provision, it is possible that the Office of the Prosecutor keeps monitoring a conflict situation and files a new request if violence erupts again. The preliminary examination process is the Prosecutor’s domain and he/she decides about usage of the Office’s resources according to Article 42(2) Rome Statute.

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15(6)

[196] 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.
If the Prosecutor decides not to proceed to an investigation, “he or she shall inform those who provided the information”. Pursuant to Rule 49(1) Rule of Procedure and Evidence, such notification must be given promptly and must include reasons for the decision. Rule 105(2) Rules of Procedure and Evidence links the decision to initiate an investigation under Article 53(1) Rome Statute to Rule 49(1) Rules of Procedure and Evidence, in the case the Prosecutor decides in the negative and does not submit a request under Article 15(4) Rome Statute. The information duty is also acknowledged by regulation 28 OTP Regulations and negative decisions by the Office of the Prosecutor are published under this provision if appropriate.
   Victims, however, have neither right to a legal remedy against a (negative) decision under Article 15(3) or (4) Rome Statute, nor can they participate in a review procedure of a negative decision by the Prosecutor. A proposal by the French delegation in this respect aimed at granting victims the status of a procedural party stricto sensu, but this idea was rejected during the Rome Conference. Therefore, victims, who have provided for information under Article 15 Rome Statute, have the right to be informed, but they have limited participatory rights.
   A follow-up question related to the term “those who provided the information”. A narrow interpretation only covers the original information providers, thus the person who transmitted the information to the Prosecutor and filed the “communication”. Beyond the statutory duty to inform the direct information providers, nothing prevents the Prosecutor from notifying other parties simultaneously.  The Office of the Prosecutor has taken such a wider approach in practice and sends notification letters to anyone from whom the Prosecutor has sought additional information and persons who have given testimony.

Cross-references:
1.  Articles 13(c) and 53
2.  Rules 46-50, 102-104, 111-112
3.  Regulation 49, 50 and 87
4.  OTP Regulations 25-31

Doctrine:

  1. Ignaz Stegmiller, The Pre-Investigation Stage of the ICC, Criteria for Situation Selection, Duncker & Humblot, Berlin, 2011.
  2. Jo Stigen, The Relationship between the International Criminal Court and National Jurisdiction, The principle of complementarity, Martinus Nijhoff Publishers, Leiden/Boston, 2008.
  3. Frank Hoffmeister/Sebastian Knoke, "Das Vorermittlungsverfahren vor dem Internationalen Strafgerichtshof – Prüfstein für die Effektivität der neuen Gerichtsbarkeit im Völkerstrafrecht", Zeitschrift für ausländisches und öffentliches Recht und Völkerrecht, vol. 59, 1999, PP. 785-807.
  4. Dan Sarooshi, "Prosecutorial Policy and the ICC: Prosecutor's Proprio Motu Action or Self-Denial?", Journal of International Criminal Justice, vol. 4, no. 4, 2006, pp. 940-943.
  5. Jan Wouters/Sten Verhoeven/Bruno Demeyere, "The International Criminal Court’s Office of the Prosecutor: Navigating between Independence and Accountability?", International Criminal Law Review, vol. 8, no. 1, 2008, pp. 273-318.
  6. Morten Bergsmo/Pejić, "Article 15", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 581-593.
  7. Håkan Friman, "The Rules of Procedure and Evidence in the Investigation Stage", in Horst Fischer et al. (Eds.)International and National Prosecution of Crimes Under International Law, Berlin Verlag Arno Spitz, Berlin, 2001, pp. 191-217.
  8. Håkan Friman, "Investigation and Prosecution", in Roy Lee (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Arsdley New York, 2001, pp. 493-539.
  9. Philippe Kirsch/Darryl Robinson, "Initiation of Proceedings by the Prosecutor", in Antonio Cassese et al. (Eds.), The Rome Statute of the ICC: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 657-664.
  10. William Schabas, The International Criminal Court, A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 314-324.
  11. Giuliano Turone, "Powers and Duties of the Prosecutor", in Antonio Cassese et al. (Eds.), The Rome Statute of the ICC: A Commentary, Second Edition, Oxford University Press, Oxford, 2002, pp. 1137-1180. 

Author: Ignaz Stegmiller

Updated: 30 June 2016

Article 15 bis

[197] Exercise of jurisdiction over the crime of aggression
General Remarks
Article 15 bis regulates the Court’s jurisdiction over the crime of aggression where situations are referred to the Court by a State, or where investigations are instigated by the Office of the Prosecutor. Referrals by the Security Council are regulated under Article 15 ter. The amendments on the crime of aggression will enter into force one year after the ratification or acceptance of thirty States Parties, provided that a decision is taken by at least two thirds of the States Parties after 1 January 2017, in accordance with Paragraph 3. A State Party that does not wish to be bound by the amendments may file a declaration to the Registry of the Court stating that it does not accept the amendments, which will then not be binding upon the State in question. There is still uncertainty regarding some aspects of the change to the Court's jurisdiction, especially with regard to States Parties that have neither ratified, nor opted out from the amendments in accordance with Paragraph 4. While it is possible for the Prosecutor to proceed with an investigation regarding the crime of aggression without a determination by the UN Security Council that an act of aggression has been committed, this requires authorization by the Pre-Trial Division in accordance with Paragraph 8.

Preparatory Works
In accordance with the now deleted Article 5(2), the ICC would exercise jurisdiction over the crime of aggression ‘once a provision [was] adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime’. In order for the States Parties to find a definition and jurisdictional conditions that they could agree upon, the Assembly of States Parties (ASP) decided to establish a Special Working Group on the Crime of Aggression (SWGCA) which was to submit proposed provisions to a future Review Conference [Resolution on Continuity of Work in Respect of the Crime of Aggression, 2002]. The SWGCA held several meetings between 2003 and 2009 and its draft amendments were the starting point for the discussions at the Kampala Review Conference in 2010, where Articles 8 bis, 15 bis, 15 ter and 25 (3) bis were adopted.
   The three main areas of controversy for the SWGCA, and later for the Review Conference, were the definition of ‘an act of aggression’; the individual conduct within the act; and the exercise of jurisdiction by the ICC. While the first two sets of issues are covered by Article 8 bis, the jurisdictional conditions are dealt with under this Article and in Article 15 ter.
   The main questions regarding the Court’s jurisdiction over the crime of aggression concerned the application of the provisions to States Parties that have not ratified or accepted the amendments, as well as the role of the UN Security Council in determining that an act of aggression has been committed. To start with the latter, the role of the Security Council was a sensitive issue in the negotiations leading up to the decision in Kampala. The drafted ICC Statute from 1994 suggested that the Court's jurisdiction over the crime of aggression should be dependent on a determination by the Security Council that an act of aggression had been committed [Report of the International Law Commission on the work of its forty-sixth session, 2 May to 22 July 1994, ILC Report, A/49/10, (F), 1994, Draft Statute of an International Court, p. 44, Article 23(2)]. However, to give the Security Council, with its well documented problems and limited number of Member States such a power was considered problematic, even though it was defended by the permanent members of the Council [Kress and Holtzendorff, 2010, p. 1194]. Most notably the UK and France defended the Security Council’s exclusive right to determine an ‘act of aggression’ with reference to such a right being provided to the Council by the UN Charter, to which the now deleted Article 5(2) made a direct reference.
   While the majority held that the Security Council should not have an exclusive power to determine an act of aggression, the solution agreed upon in Kampala was to have different procedures in cases where the Security Council has determined that an act of aggression has been committed and where such a determination is absent. Further, it was made clear in Article 15 bis (8) that the right of the Security Council to defer a case in accordance with Article 16 is applicable also to the crime of aggression, just as to other crimes under the Statute.
   The second major question regarding jurisdiction was that of how to regulate aggression by States Parties to the Rome Statute that have not ratified or accepted the amendments. Some argued that the amendments should be binding upon all States Parties in accordance with Article 12(1), whereas others held that States Parties had to agree to be bound by the amendments, in accordance with Article 121(5) [2009 SWGA Report, 9-11]. The disagreements were largely based in different interpretations of Article 5(2), but also of Article 121(5) and its applicability to the crime of aggression.
   There were several suggestions for how the conditions of jurisdiction should be determined. One was to apply the ‘Adoption Model’, where a two-thirds majority vote to adopt the amendments in accordance with Article 121(3) would suffice. The use of this model without any further requirement of ratification by States Parties for the entry into force of the amendments was unsatisfying to most [Kress and Holtzendorf, 2010, p. 1196]. Others argued for the Article 121(5) model with a ‘negative understanding’, which would give the Court jurisdiction over the crime of aggression for those States that had accepted the amendments, but not for others. Such an interpretation was considered problematic for several reasons, including the question of whether the crime of aggression was an amendment to Article 5, 6, 7 or 8, considering the previous existence of Article 5(1)(d) and Article 5(2) [Kress and Holtzendorff, 2010, p. 1197]. A broader interpretation of Article 121(5) was provided by the supporters of the ‘positive understanding’ model, which held that the second sentence of Article 121(5) should be read together with Article 12(2), giving the Court jurisdiction over the crime of aggression in situations where such jurisdiction had been accepted by the victim State, even if the aggressor had not ratified the amendments. Yet another suggestion was the ‘Article 121(4) Model’, which required the amendments to be ratified by 7/8th of the States Parties. This was considered problematic partly as it treated the provisions as amendments outside of Article 5-8, even though the crime of aggression already existed in Article 5(1)(d), but also since it would possibly bind 1/8th of the States Parties without their consent [Milanovic, 2010, p. 178].
   There were also some more creative suggestions trying to avoid the lock down in the interpretation of already existing paragraphs. The most notable of these were the opt-in and opt-out solutions proposed by the Chairman of the SWGCA in 2009 [Chairman’s Non-Paper on the Exercise of Jurisdiction, 2009, paras 10-12]. The opt-in solution held that States would have to actively opt-in to be bound, whereas the opt-out solution gave States Parties the possibility to opt-out, in case they did not wish to be bound by the amendments. The latter would thus shift the default situation and require active action by States Parties to avoid being bound. The opt-out regime is now found in the text of Article 15 bis (4), but unfortunately the large amount of compromises in the lead up to the decision in Kampala has led to the jurisdictional provision being far from clear. At the same time as a textual reading of Article 15 bis (4) applies the opt-out regime, the first operating paragraph of Resolution RC/Res.6 states that the crime shall enter into force in accordance with Article 121(5), which holds that a State Party is not bound by an amendment unless it has ratified or accepted it. The jurisdictional questions arising from this discussion will have to be determined by the Court in the future.
   With regard to the principle of complementarity, there were some concerns around the possibility for States to exercise domestic jurisdiction over the crime of aggression. Following from this, Understanding 5 (Resolution RC/Res.6, 2010, Annex III, Understanding 5) states that the amendments do no create such a right with respect to an act of aggression committed by another State. It remains to be seen whether and how this understanding will affect domestic legislatures [Kress and Holtzendorff, 2010, p. 1216].

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(1)

[198] Analysis of provision and sub-provisions
1. The Court may exercise jurisdiction over the crime of aggression in accordance with Article 13, paragraphs (a) and (c), subject to the provisions of this Article. 
The Article regulates State referrals and proprio motu, investigations instigated by the Office of the Prosecutor. Referrals by the UN Security Council is regulated by Article 15 ter.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(2)

[199] 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
Paragraph 2 regulates the earliest time from which the acts committed may be under the ICC’s jurisdiction, as long as the requirement in Paragraph 3 is fulfilled. The Understandings make clear that for the Court to have jurisdiction of a crime, one year need to have passed since the ratification of thirty States Parties and a decision needs to have been taken in accordance with Paragraph 3 [Resolution RC/Res.6, 2010, Annex III, Understanding 3]. That is, despite having reached thirty ratifications on 26 June 2016, this does not automatically mean that the Court will have jurisdiction over acts committed after 26 June 2017. Rather, this will be dependent on a decision taken in accordance with Article 15 bis(3).
   According to Article 121(5), amendments should enter into force for a ratifying state one year after ratification. Therefore, as it is not certain whether all States Parties are bound by the provisions after the requirements in this Paragraph and Paragraph 3 have been met (see comment to Paragraph 4), it might be the case that the Court may exercise jurisdiction over subsequent ratifying states at different times if they ratify after, or less than a year before, the provisions enter into force.
   The application of the amendments with respect to States Parties that have not accepted the amendments at the time when the Court gains jurisdiction, is discussed under Paragraph 4.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(3)

[200] 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
According to this paragraph, the Court may only exercise jurisdiction over the crime of aggression if this is decided by at least a two-third majority after 1 January 2017, in accordance with Article 121(3). Thus, while only thirty States Parties need to actively ratify the amendments in accordance with paragraph 2, two thirds of the States Parties must still approve of the amendments before the Court may exercise jurisdiction over the crime. Jurisdiction will apply to acts committed one year after the ratification of thirty States Parties, or after the decision taken in accordance with this paragraph, whichever comes last [Resolution RC/Res.6, 2010, Annex III, Understanding 3]. 
   There is no requirement for a States Parties to have ratified or otherwise accepted the amendments in order to cast a positive vote after 1 January 2017.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(4)

[201] 4. The Court may, in accordance with Article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.
As soon as the requirements in Article 15 bis (2) and (3) are met, the amendments are applicable to the States Parties that have ratified or accepted them, unless they have lodged a declaration with the registrar that they wish not to be bound. An opt-out declaration can be lodged regardless of whether or not the State in question has ratified the amendments. It further follows from the wording of this Paragraph that an opt-out declaration does not affect the protection that a State has as a victim State, but merely the Court’s jurisdiction in cases where the State is the aggressor.
   There is significant uncertainty regarding the application of the amendments on States Parties that have not ratified, yet not lodged an opt-out declaration. This uncertainty follows from the contradiction in the adoption of Article 15 bis (4) and the reference to Article 121(5) in the first operational paragraph of Resolution RC/Res.6. Some hold that States Parties are bound by default, unless they opt-out [Kress and Holtzendorff, 2010, p. 1213; McDougall, 2013, pp. 258-259], whereas others argue that the provisions on the crime of aggression do not bind States Parties that have not ratified the amendments, regardless of whether or not they have opted out [Van Schaack, 2010-11, p. 598]. 
   In addition to the uncertain relationship between Articles 15 bis(4) and 121(5), there are also different readings of the application of Article 12, which is referred to in this Paragraph. One approach is that the Court has jurisdiction in any of the scenarios in Article 12(2), that is, cases where either the alleged aggressor State or the alleged victim State has ratified the amendments. Another approach is that a textual reading of Article 121(5) requires both the aggressor and the victim State to have ratified the amendments in order for the Court to have jurisdiction.
   Kevin Jon Heller, Carrie McDougall, Marko Milanovic and Astrid Reisinger Coracino have all presented illustrative and helpful tables over the jurisdiction [Heller, 2010; McDougall, 2013, p. 261; Reisinger Coracino, 2010, p. 782; Milanovic, 2012, p. 182]. It is agreed that the ICC has jurisdiction in situations where both the aggressor State and the victim State are Party to the Rome Statute and have ratified the amendments without lodging an opt-out declaration, and that it does not have jurisdiction under Article 15 bis in cases where the aggressor is a State Party that has lodged an opt-out declaration.
   Where the aggressor is a State Party that has not ratified and not opted out, and the victim is a State Party that has ratified the amendments, it seems to be the view of the majority that the Court has jurisdiction in accordance with Article 12(2)(a), regardless of whether or not the victim State has lodged an opt-out declaration [McDougall, 2013, p. 261; Reisinger Coracini, 2010, p. 782; Milanovic, 2012, p. 182]. Those promoting a narrow interpretation of Article 121(5) however, hold that the Court could not have jurisdiction in this case, since the aggressor State has not accepted the amendments [Milanovic, 2012, p. 182].
   Where the aggressor is a State Party that has not ratified and not opted out and the victim is a State Party that has not ratified the amendments, the majority of scholars hold that the Court probably does not have jurisdiction, regardless of whether or not the victim State has opted out. [McDougall, 2013, p. 261; Reisinger Coracini, 2010, p. 782; Milanovic, 2012, p. 182]. Jurisdiction in such cases might be possible if a State Party that has not ratified the amendments would be allowed to accept the Court’s jurisdiction of the crime of aggression in accordance with Article 12(3), but the existence of such possibility is far from certain. [McDougall, 2013, p. 264; Reisinger Coracini, 2010, p 781; Kress and Holtzendorff, 2010, p. 1214].
   Where the aggressor is a State Party that has ratified and not opted out and the victim is a State Party that has not ratified the amendments, many hold that the Court has jurisdiction in accordance with this paragraph and Article 12(2)(a). Though, as according to a narrow reading of Article 121(5) both the aggressor State and the victim State will have to have accepted the amendments, promoters of such a reading argue that the Court would not have jurisdiction in this situation [Milanovic, 2013, p. 182; Akande, 2011, p. 27].
   As can be seen above, there are significant uncertainties regarding the jurisdiction under this Article, and unless they are resolved before the amendments enter into force, it will be for the Court to resolve these difficult jurisdictional questions as they arise.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(5)

[202] 5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.
Paragraph 5 excludes from the Court’s jurisdiction acts of aggression committed by, or on the territory of, a non-State Party and constitutes a notable limitation of the application of the crime of aggression under this Statute.
   While there have been some suggestions that Article 12(2) applies to the crime of aggression also where the victim State is not party to the Rome Statute, the majority holds that the Court does not have jurisdiction over such situations [Heller, 2010; McDougall, 2013, p. 261; Reisinger Coracino, 2010, p. 782; Milanovic, 2012, p. 182]. If there is some uncertainty regarding the jurisdiction in cases where a State Party that has ratified the amendments attacks a non-State Party, it is clear that the Court does not have jurisdiction over situations where the aggressor is a State Party that has not ratified the amendments, and the victim is a non-State Party. The same is true for situations where the aggressor is a State Party that has opted out, regardless of whether or not it has ratified the amendments. It is further agreed that the Court does not have jurisdiction in cases where the aggressor State is not party to the Rome Statute. A remaining question mark is whether or not it is possible for a State to accept the Court’s jurisdiction ad hoc and it is uncertain whether Article 12(3) is applicable to the crime of aggression [Stahn, 2010, p. 880; McDougall, 2013, p. 264; Reisinger Coracini, 2010, p 781; Kress and Holtzendorff, 2010, p. 1214].

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(6)

[203] 6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.
Before proceeding with an investigation, the Prosecutor needs to establish whether or not the UN Security Council has made a determination of an act of aggression in the specific situation. While this will be an easy task in cases where the Security Council uses the phrase ‘act of aggression’, it will be less obvious in cases where the Council might speak of a State being aggressive, or ‘aggressive behaviour’. Questions have been raised of whether the determination needs to be in an operational paragraph, or if it is enough to just raise concerns over a State being aggressive, and it remains to be seen how the Court will interpret this. The notification of the UN Secretary-General is essential for proceeding with the investigation. In cases where the Security Council has not made a determination of an act of aggression, the waiting period of six months in Paragraph 8 starts at the time of the notification.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(7)

[204] 7. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression.
In cases where the Prosecutor, in accordance with Paragraph 6, finds that the UN Security Council has determined an act of aggression, there is no need for a decision by the Pre-Trial Division or by the Pre-Trial Chamber in order to proceed with the investigation. The procedure in cases where no such determination has been made is regulated in Paragraph 8.
   In accordance with Paragraph 10, the Prosecutor may still need the authorization by the Pre-Trial Chamber in order to proceed with the investigation of other crimes under the Statute, including in situations where this Paragraph is applicable.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(8)

[205] 8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in Article 15, and the Security Council has not decided otherwise in accordance with Article 16.
In cases where the UN Security Council has not made determination of an act of aggression within six months after the UN Secretary-General was notified in accordance with Paragraph 6, the Prosecutor may proceed without such a determination. Unlike cases where the Council has determined that an act of aggression has been committed, the proceeding with an investigation in the absence of such a determination is dependent on the authorization by the Pre-Trial Division. In accordance with Article 39(1), the Pre-Trial Division consists of a minimum of six judges.
   The reference to Article 15 in this Paragraph clarifies that even though an authorization for the commencement of an investigation for the crime of aggression shall come from the Pre-Trial Division rather than the Pre-Trial Chambers, the procedure is otherwise the same as for other crimes in the Statute, with the difference that the procedure in Article 15 should be followed both for State referrals and proprio motu investigations. In accordance with Paragraph 10, the authorization by the Pre-Trial Division of an investigation of the crime of aggression is separate from the authorization by the Pre-Trial Chamber of the investigation of other crimes in the Statute.
   The reference to Article 16 is a clarification that the Security Council’s power to defer a case up to twelve months is applicable also with regard to the crime of aggression.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(9)

[206] 9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.
Paragraph 9 ensures the independence of the ICC in determining whether an act of aggression has been committed. This, in combination with the possibility to proceed with an investigation without a determination by the UN Security Council, was a controversial issue during the negotiations. 
   The Court may determine that an act of aggression has been committed where such a determination is lacking, and it may also find that no act of aggression has been committed even where the Security Council, the International Court of Justice (ICJ), or any other organ outside the Court has made a positive determination that such an act has taken place. This paragraph will be of importance in politically sensitive situations where the veto right by the permanent members of the Security Council might stop the Council from determining an act of aggression, but it can also be used against a determination by the ICJ, or any other organ outside of the Court. The Paragraph will further be applied in cases where the ICJ or the Security Council hold that there has been a breach of the prohibition of the use of force, but for various reasons do not refer to it as ‘aggression’, and the ICC still find that the act amounts to aggression.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 bis(10)

[207] 10. This article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article 5.
Paragraph 10 clarifies that that the special considerations applying to the crime of aggression are not to be interpreted as applying to other crimes.
   In cases where a situation may entail several crimes under the Statute, additional authorization of an investigation needs to be sought in accordance with Article 15. This is the case regardless of whether the Prosecutor proceeds with an investigation on the basis of Paragraph 7 or 8. While the need for separate procedures can be considered unsatisfactory, this solution has been adopted in order to avoid unnecessary stalling of investigations of situations where the process of the investigation of a crime of aggression has a different time frame than the investigation of other crimes [McDougall, 2013, p. 274].
   It has been suggested that Paragraph 10 can be read to support the view that Article 12(3) does not apply to the crime of aggression, though there is still some uncertainty as to whether or not this is correct [McDougall, 2013, p. 264; Reisinger Coracini, 2010, p 781; Kress and Holtzendorff, 2010, p. 1214].

Cross-references:
Articles 5(1)(d), 8 bis, 1215 ter, 121 and 123

Doctrine:

  1. Dapo Akande, "Prosecuting Aggression: The Consent Problem and the Role of the Security Council", Oxford Legal Research Paper Series, no. 10, 2011.
  2. Kevin Jon Heller, "The Uncertain Legal Status of the Aggression Understandings", Journal of International Criminal Justice, vol. 10, 2012, pp. 229-248.
  3. Kevin Jon Heller, "Opt-ins and Opt-outs", Opinio Juris, 2010.
  4. Claus Kress/Leonie von Holtzendorff, "The Kampala Compromise on the Crime of Aggression", Journal of International Criminal Justice, vol. 8, no. 5, 2010, pp. 1179-1217.
  5. Carrie McDougall, The Crime of Aggression under the Rome Statute of the International Criminal Court, Cambridge University Press, Cambridge, 2013, pp. 258-259, 261, 264, 274.
  6. Marko Milanovic, "Aggression and Legality Custom in Kampala", Journal of International Criminal Justice, vol. 10, 2012, pp. 165-187.
  7. Astrid Reisinger Coracini, "The International Criminal Court’s Exercise of Jurisdiction Over the Crime of Aggression – at Last … in Reach … Over Some", Goettingen Journal of International Law, vol. 2, 2010, pp. 745-789.
  8. Beth Van Schaack, "Negotiating at the Interface of Power & Law: The Crime of Aggression", Columbia Journal of Transnational Law, vol. 49, 2010-11, pp. 505-601.
  9. Carsten Stahn, "The 'End', the Beginning of the End' or the 'End of the Beginning'? Introducing Debates and Voices on the Definition of Aggression", Leiden Journal of International Law, vol. 23, no. 4, 2010, pp. 875-882.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 ter

[208] General Remarks
Article 15 ter largely resembles Article 15 bis, and affirms that the time frame for jurisdiction of the Court is the same for UN Security Council referral as for State Party referral and proprio motu investigations. As with other crimes under this Statute, the Security Council refers the situation without the direction of the specific crime, in accordance with Article 13(b). The procedure under this Article is not affected by a determination of an act of aggression by the Security Council.

Preparatory Works
The exercise of jurisdiction over the crime of aggression through referrals by the Security Council is largely considered uncontroversial, and has thus received much less attention than State referrals and proprio motu investigations under Article 15 bis. For general comments on the lead up to the adoption of this provision in Kampala in June 2010, see comment on Article 15 bis.

Author: 
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 ter(1)

[209] C. Analysis of Provision and sub-provisions
1. The Court may exercise jurisdiction over the crime of aggression in accordance with Article 13, paragraph (b), subject to the provisions of this Article.
Security Council referrals give the Court jurisdiction over all States, including State Parties that have lodged an opt-out declaration in accordance with Article 15 bis (4), as well as States that are not party to the Rome Statute [Resolution RC/Res.6, 2010, Annex III, Understanding 2].
   It should be noted that in accordance with Article 13(b) the Security Council may refer a situation to the ICC where one or more crimes listed in Article 5 ‘appears to have been committed’. Thus, there might be situations where the Security Council have made a referral without having made a determination that an act of aggression is at hand [Kress and von Holtzendorff, 2010, p. 1211]. That such a determination does not affect the procedure under this Article is an important difference from cases where the jurisdiction is based on State referrals or proprio motu investigations, where extra measures are required under Article 15 bis(8) in the absence of such a determination. It remains to be seen how this will affect the Security Council decisions regarding referrals to the ICC.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 ter(2)

[210] 2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
Paragraph 2 regulates the time for which the acts committed may be under the ICC’s jurisdiction, as long as the requirement in Paragraph 3 is fulfilled. The Understandings make clear that for the Court to have jurisdiction of a crime, one year needs to have passed since the ratification of thirty State Parties and a decision needs to have been taken in accordance Paragraph 3 [Resolution RC/Res.6, 2010, Annex III, Understanding 1]. That is, despite having reached thirty ratifications on 26 June 2016, this does not automatically mean that the Court will have jurisdiction over acts committed after 26 June 2017. Rather, this will be dependent on a decision taken in accordance with Article 15 ter(3).

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 ter(3)

[211] 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.
According to this paragraph, the Court may only exercise jurisdiction over the crime of aggression if this is decided by at least a two-third majority after 1 January 2017, in accordance with Article 121(3). Thus, while only thirty States Parties need to actively ratify the amendments as stated in paragraph 2, two thirds of the State Parties must still approve of the amendments before the Court may exercise jurisdiction over the crime. Jurisdiction will then apply to acts committed one year after the ratification of thirty States Parties, or after the decision taken in accordance with this paragraph, whichever comes last [Resolution RC/Res.6, 2010, Annex III, Understanding 1]. 
   There is no requirement for a State Party to have ratified or otherwise accepted the amendments in order to cast a positive vote after 1 January 2017.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 ter(4)

[212] 4. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.
Paragraph 4 echoes Article 15 bis(9) and ensures the independence of the ICC in determining whether an act of aggression has been committed. Thus, the Court may find that no act of aggression has been committed in accordance with Article 8 bis even where the Security Council, the International Court of Justice, or any other organ outside the Court, have made a positive determination that such an act has taken place. That the ICC is not bound by a determination by an organ outside of the Court is not to say that findings will be without influence on the Court’s analysis.

Author:
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 15 ter(5)

[213] 5. This Article is without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in Article 5
Paragraph 5 clarifies that the delayed jurisdiction applying to the crime of aggression is not to be interpreted as applying to other crimes under the Rome Statute. While UN Security Council referrals made before the conditions in Paragraph 2 and 3 are met would not give the Court jurisdiction over the crime of aggression, this does not affect its jurisdiction over the other crimes in Article 5.

Cross-references:
Articles 8 bis13 and 15 bis

Doctrine

  1. Claus Kress/Leonie Holtzendorff, "The Kampala Compromise on the Crime of Aggression", Journal of International Criminal Justice, vol. 8, no. 5, 2010, pp. 1179-1217. 

Author: 
Marie Aronsson-Storrier

Updated:
6 April 2017

Article 16

[214] Deferral of investigation or prosecution
No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.
General Remarks

The present provision provides a vital mechanism for navigating the relationship between the responsibilities of the Security Council under the UN Charter and that of the judicial mandate of the ICC. The provision attempts to reconcile any potential conflict between the interests of peace and the interests of justice in the context of the often referred to ‘peace v. justice’ debate.

Preparatory Works
Article 16 is rooted in Article 23 of the International Law Commission Draft Statute. (Draft Statute for an International Criminal Court with commentaries, International Law Commission Report (1994) UN Doc A/49/10; Report of the ILC on the Work of its Forty-sixth session, 1 September 1994, UN Doc A/49/355, 21 February 1997) The ILC Draft proposed that any court would not have been able to proceed without prior authorization from the Security Council if the situation falls under the auspices of Chapter VII of the UN Charter. At the Rome Conference States expressed a variety of concerns such as the risk of interference with the judicial independence of the court and inappropriate political influence by the Security Council. If a court appeared to be at the disposal of the Security Council, the impartiality and legitimacy the institution would be at risk and consequently hinder the effective execution of its judicial functions. A proposal put forward by Singapore at the Preparatory Committee in August 1997 (Proposal by Singapore on Article 23, Non-Paper/WG.3/No.16, 8 August 1997) formed the basis of what became a difficult compromise as reflected in Article 16.

Analysis
The language of the Article 16 would suggest that there are a number of requirements that a deferral request would need to feature. The initial point to note is the timing of when a deferral request can be activated. Article 16 refers to the commencement or proceedings of either investigations or prosecutions. This has drawn some discussion as to whether, this means a specific ‘investigation or prosecution’ or it extends to include the preliminary stages of ICC action. Article 16 remains silent on the matter and to this commentator it would be imperative to look to other provisions of the Rome Statute for further guidance. The initiation of investigations is not the first stage of proceedings conducted under the auspices of the Prosecutor. Rather it may be inferred from Article 15(6) of the Rome Statute that there is a formal distinction between the investigative stage and that of ‘preliminary examinations’. Thus, Article 16 can be viewed in such a manner as to refer to investigations conducted by the Prosecutor only after the Pre-Trial Chamber’s authorization under Article 15(4), but is not applicable to the activities of the Court prior to that stage. Moreover, the location of Article 16 after 14 and 15 has attracted remarks from scholars who maintain that it illustrates that the deferral request requires specific Court proceedings rather than a manifestation of preventive action by the Security Council. (Stahn, 2003, p.90) This position views Article 16 as a mechanism which may only bar the exercise of jurisdiction by the Court once a concrete ‘investigation’ or ‘prosecution’ is underway and indeed the criticisms of Resolutions 1422 (2002) and 1487(2003) would seem to endorse this view (See El Zeidy 2002, Stahn 2003, Mokhtar 2003, Zappala 2003).
   A further requirement of a deferral request under Article 16 relates to Chapter VII of the UN Charter. It requires a deferral resolution to be ‘adopted under Chapter VII of the Charter’ which necessitates that the Security Council has determined that a particular situation constitutes a ‘threat to a peace, breach of the peace or an act of aggression’ under Article 39 of the Charter. (Bergsmo and Pejić, 1999, p.373, Cassese et. al 2002, pp. 644-646) In accordance with Article 27 of the Charter, a resolution making an Article 16 request requires nine affirmative votes from members of the Security Council and the absence of a veto from any of the five permanent members. There is no guidance in the UN Charter or the Rome Statute as to which circumstance or situation would invoke an Article 16 deferral. Thus, it remains the exclusive prerogative of the Security Council to determine whether a particular situation satisfies the threshold in Article 39.  Although the question remains open as to the likelihood of the ICC undertaking a separate assessment of the validity of deferral request. To this commentator, there is a possibility that the ICC could assess the validity of a deferral resolution under Chapter VII, given the requirements under Article 16, though scholars (Schabas 2010) have noted that previously international courts have been reluctant to second-guess the Security Council in such matters. (Prosecutor v. Tadić, (Case No. IT-94-1-AR72) ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995).
   Additionally, Article 16 states that a deferral request may be renewed ‘under the same conditions’. Theoretically this could result in an indefinite deferral since Article 16 contains no limitation on the number of times a request for deferral may be renewed. (Bergsmo and Pejić, 1999; Lattanzi, 2004) However, any renewal after 12 months would still have to continue to meet the threshold of Article 39 of the Charter. If one looks to the travaux preparatoires of Article 16 it would seem that a renewal of a deferral request may continue to assist in restoring and maintaining international peace and security, where the proceedings of the ICC in a given case would in some fashion be detrimental to the work of the Security Council.
   At time of writing this commentary, there are no judicial interpretations of Article 16 offered by the ICC, yet there have been four resolutions adopted by the Security Council invoking Article 16 since the entry of the Rome Statute. Resolutions 1422 (2002), 1487(2003), 1597(2005) and 1970(2011) give some indication as to the interpretation of this provision. The Security Council adopted the first deferral request, Resolution 1422, unanimously on 12 July 2002, a few days after the Rome Statute entered into force. (UN Doc. SP/PV.4572) Its preamble declares that the Security Council was ‘acting under Chapter VII of the Charter of the United Nations’. The essence of the resolution is encapsulated in operative paragraph 1, and in reference to Article 16 of the Rome Statute, it suspends, for a period of 12 months, the Court from commencing or proceeding with an investigation or prosecution of any case involving current or former official or personnel from a contributing State not a Party to the Rome Statute, relating to any UN established or authorized operation. (UNSC Resolution 1422  (12 July 2002) UN Doc S/RES/1422) The second resolution was adopted on 12 June 2003, where the Security Council renewed Resolution 1422 in the form of Resolution 1487. (UNSC Resolution 1487 (12 June 2003) UN Doc S/RES/1487) This resolution substantively repeats the contents of Resolution 1422 and extends the suspension for an additional 12-month period. Further, the Security Council reiterated, in paragraph 2 its intention to renew the request to the ICC for the next 12 months period. In terms of voting, an interesting point to note is that Resolution 1487 was supported by only 12 out of the 15 members of the Security Council, as France, Germany and Syria abstained from voting in comparison to Resolution 1422 which was unanimously adopted. As opposition to the adoption of Resolution 1487 grew and members of Security Council at that time, namely France, Germany, Brazil, Chile, Romania, Spain and Benin indicated they would abstain from any decision to renew Resolution 1487(UN Doc S/PV.4772, 12 June 2003) after 12 months the resolution was left to expire. Without any judicial guidance on the matter, there remains an outstanding question as whether the Security Council has to expressly determine that the continuation of ICC proceedings would constitute a threat to international peace and security in order to defer the proceedings in accordance with Article 16. For instance, the absence of such a determination was one of the arguments made against the legality of Resolutions 1422 and 1487 as these actions were considered a pre-emptive manoeuvre the Security Council in the shadow of the United States opposition to the ICC. (Stahn 2003, Lavelle 2003) The increased unpopularity of the overt political manipulation of Article 16 was demonstrated by criticisms made by the UN Secretary General and several states of the Security Council, on the basis that Article 16 did not give such a sweeping power, but only a more specific power to make a deferral request relating to a particular situation. (UN Doc S/PV.4772, 12 June 2003).
   The next two resolutions are referrals made under Article 13(b) and are not deferral requests per se, but rather make reference to Article 16 in its contents. For the purposes of this commentary, the third resolution adopted by the Security Council on 1 April 2005, referred the situation in the Darfur region of Sudan to the ICC in the form of Resolution 1593 although, notably China and the United States abstained from voting. (UNSC Res 1593 (31 March 2005) UN Doc S/Res/1593)  The preamble of resolution recalls the power of deferral under Article 16 and, operative paragraph 6 of the resolution excludes the jurisdiction of the ICC over ‘nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute’ participating in UN or African Union peacekeeping operations in Sudan unless ‘exclusive jurisdiction has been expressly waived by that contributing State’.  This provides blanket immunity from ICC jurisdiction to a selective group of individuals, namely nationals of non-state parties. The last resolution in question was adopted on the 26 February 2011, by a unanimous vote, where the Security Council referred the situation in Libya to the ICC. Resolution 1970 was adopted under Chapter VII of the UN Charter and was the second occasion in which the Security Council has used the referral power under Article 13(b) to extend the jurisdiction of the ICC to a state that is not party to the Rome Statute. Again, for the purposes of this commentary, the Libya referral invokes Article 16 in the same fashion as Resolution 1593. In identical language to the Sudan resolution the Security Council recalled Article 16 in the preamble and in operative paragraph 6 excludes ICC jurisdiction over ‘current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute’ involved in operations ‘established or authorized by the Council’. There have been scholarly discussions as to the validity of including the immunity in the content of the resolution, particularly given the jurisdictional regime of Article 12 and the exclusion of immunity in Article 27 of the Rome Statute. (Cryer 2006, Trahan 2013) While the specific referrals have been discussed in Article 15(b) of this commentary, it remains to be seen what the legal interpretation of the ICC will be in respect of the Article 16 reference and the operative paragraphs, which de facto permanently suspend action over a selective category of nationals. Given the purpose of Article 16, one explanation for the inclusion of the reference to Article 16 in the content of both referrals is the belief that States, and inevitably the Security Council are mindful of the interests of peace and the political consequences of judicial intervention by the ICC. All four resolutions discussed here have highlighted the inherent tension within Article 16, namely that the political trajectory of the Security Council may be misaligned with the judicial approach of the ICC in a given situation and could indeed come into direct conflict. All the resolutions demonstrate that the Security Council may act in a manner that could risk compromising the independence and legitimacy of the ICC.
   A pertinent example of the politicization of Article 16 is the request for a deferral of proceedings against President Al-Bashir of Sudan. Following the arrest warrant being issued for the Al-Bashir (Prosecutor v. Omar Al Bashir, ICC PT. Ch. I, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-1, 4 March 2009), the African Union, Arab League, Non-Aligned Movement, Organization of Islamic Conference called on the Security Council to make a deferral under Article 16. The African Union formally requested the Security Council to invoke Article 16 and suspend any indictment of the Sudanese President when it came to the extend the the UNAMID mandate. However, the Security Council took no action on this matter, and Resolution 1828 (UN Doc. S/RES/1828 (2008) was absent of any reference to Article 16. In the Security Council debates relating to the Al-Bashir case none of the states that addressed the possibility of a deferral argued that the Council did not have the power to invoke Article 16 in that situation. (UN Doc S/PV.5947, 31 July 2008)  The disapproval of the African Union over the lack of an Article 16 deferral in relation to Al-Bashir manifested in the first of many resolutions adopted in July 2009 reiterating its request for an Article 16 deferral and warning that until the request was heeded, African Union members would refrain from cooperating in the arrest and surrender of President Al-Bashir. (African Union, Assembly, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (ICC), Doc. Assembly/AU/13 (XIII) 3 July 2009, Assembly/AU/Dec.245(xiii) Rev. 1, para 8-10;). This has resulted not only in tension between the African Union and the ICC more broadly, but also specifically between the ICC and African State Parties who are not fulfilling their obligations under the Rome Statute to arrest and surrender Al Bashir due to the position taken by the AU over the lack of a deferral request. (Prosecutor v. Omar Hassan Ahmad Al Bashir, ICC PT. Ch I, Decision pursuant to Article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issues by the Court with respect to the arrest and surrender or Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09-140-tENG, 13 December 2011; Prosecutor v. Omar Hassan Ahmad Al Bashir, PT. Ch, II, Decision on the Non-Compliance of the Republic of Chad with the Cooperation Requests Issued by the Court Regarding the Arrest and Surrender of Omar Hassan Ahmad Al-Bashir, ICC-02/05-01/09-151, 26 March 2013; Prosecutor v. Omar Hassan Ahmad Al Bashir, PT. Ch. II, Decision Regarding Omar Al Bashir’s potential Visit to the Republic of Chad, ICC-02/05-01/09-194, 25 March 2014).
   It is worth bearing in mind one final point with respect to Article 16 of the Rome Statute and that is the notion of ‘interests of justice’ in Article 53 of the Rome Statute. Article 53 is a means for the ICC to take into account considerations of peace. Article 53 empowers the Prosecutor with discretion to decide not to initiate either an investigation or prosecution on the grounds that to proceed would be contrary to the ‘interests of justice’. The ICC might be viewed as not only a challenge to impunity, but additionally as a potential challenge or impediment to peace negotiations simultaneously. While it has to be made clear that the Rome Statute does not make peace deals impossible, indeed some have labeled the ICC as ‘part of the transitional justice project’ (Moreno-Ocampo, 2007, Stahn, 2005), it will impact the parties to a conflict in a manner that merits consideration. Article 16 does not dictate that peace usurps justice, or that all conflict situations require the same approach from the Security Council and the ICC. Instead, Article 16 allows for consideration of the ‘interests of peace’ and the ‘interests of justice’ in relation to the same situation. 

Cross-references:
Article 12, Article 13(b), Article 15(6), Article 27 and Article 53

Doctrine

  1. Morten Bergsmo/Jelena Pejić, "Article 16", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 595-604.
  2. Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford 2002, pp. 644-646.
  3. Robert Cryer, "Sudan, Resolution 1593, and International Criminal Justice", Leiden Journal of International Law, vol. 19, 2006, pp. 195-222.
  4. Mohamed El Zeidy, "The United States Dropped the Atomic Bomb of Article 16 of the ICC: Security Council Power of Deferrals and Resolution 1422", Vanderbilt Journal of Transnational Law, vol. 35, 2002, pp. 1503-1548.
  5. Flavia Lattanzi, "The Rome Statute and the State Sovereignty. ICC Competence, Jurisdictional Links, Trigger Mechanism", in William A. Schabas et al. (Eds.), Essays on the Rome Statute of the International Criminal Court, Second Edition, Editrice Il Sirente, Italy, 2004, pp. 51-67.
  6. Roberto Lavelle, "A Vicious Storm in a Teacup: The Action by the United Nations Security Council to Narrow the Jurisdiction of the International Criminal Court", Criminal Law Forum, vol. 14, no. 2, 2003, pp. 195-220.
  7. Aly Mokhtar, "The Fine Art of Arm-Twisting: The US, Resolution 1422 and Security Council Deferral Power Under the Rome Statute", International Criminal Law Review, vol. 3, no. 4, 2003, pp. 295-344.
  8. Luis Moreno-Ocampo, "Transitional Justice in Ongoing Conflicts", International Journal of Transitional Justice, vol. 1, 2007, pp. 8-9.
  9. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.
  10. Carsten Stahn, "The Ambiguities of Security Council Resolution 1422 (2002)", European Journal of International Law, vol. 14, 2003, pp. 85-104.
  11. Carsten Stahn, "Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court", Journal of International Criminal Justice, vol. 3, 2005, PP. 695-720.
  12. Jennifer Trahan, "The Relationship Between the International Criminal Court and the UN Security Council: Parameters and Best Practices", Criminal Law Forum, vol. 24, no. 4, 2013, pp. 417-473.
  13. Salvatore Zappala, "Are Some Peacekeepers Better Than Others? UN Security Council Resolution 1497 (2003) and the ICC", Journal of International Criminal Justice, vol.1, no. 3, 2003, pp. 671-678.

Author: Yassin M. Brunger

Updated: 30 June 2016

Article 17(1)

[215] Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where:

General Remarks  
Article 17 of the Statute lays down the substantive conditions for the admissibility of a case before the ICC. Under this provision, the admissibility test is composed of two main parts: the first requires the consideration of the complementarity criteria in order to determine whether the case at hand has been or is being genuinely investigated or prosecuted by a state’s national judicial system. The second part of the admissibility test relates to the analysis of the “gravity threshold”, in order to determine whether the case is of sufficient gravity to justify further action by the Court.
The Statute does not specify whether the two components of admissibility are to be dealt with in any particular order. For the purpose of this analysis, the complementarity test will be examined first, and the gravity threshold subsequently.

Preparatory Works
Contrary to the situation in the Statutes of the ad hoc tribunals which adopted the primacy principle, the Rome Statute rather opts for the principle of complementarity to regulate the relationship between the ICC and domestic jurisdictions. The negotiating history of the Statute demonstrates that the adoption of the complementarity principle was critical to secure the support of the negotiating states for the establishment of a permanent international criminal court. [Holmes, 1999, pp. 41-43]

Complementarity principle
A complementarity determination is a two-step assessment, addressing first (1) whether there is a national investigation or prosecution in relation to the same case as the one before the ICC, and (2) where such proceedings exist, whether they are vitiated by unwillingness or inability. 

Cross-references:
Paragraph 10 of the Preamble, Articles 1, 12-15, 17-20 and 25(1).
Regulation 112

Author: Mohamed Abdou

Updated: 30 June 2016

Article 17(1)(a)

[216] (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
A preliminary issue to be considered in the context of admissibility proceedings under Article 17 is whether there exists an investigation or prosecution at the domestic level. Failure by a state to take any measure against those involved in the commission of crimes falling within the jurisdiction of the ICC renders the case admissible before the Court (provided  that the gravity threshold is satisfied). The Appeals Chamber has defined this situation, i.e. where a State having jurisdiction is not investigating or prosecuting, or has not done so, as a case of “inaction” [Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, (Case No. ICC-01/04-01/07-1497 OA 8), ICC Appeal Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 2.]. It follows that while not all “inactions” will lead to proceedings before the ICC, particularly because the Court retains the discretion to initiate cases in accordance with the Statute, a finding of inaction will however not prevent the Court from asserting jurisdiction in the cases before it [Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, (Case No. ICC-01/04-01/07-1497 OA 8), ICC Appeal Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 85 and ft.169]. Moreover, the Appeals Chamber has established an important distinction between inaction on one hand, and unwillingness and inability on the other. In this respect, it clarified that the terms “unwillingness” and “inability” under Article 17 refers to a situation that only arises after the opening of a formal investigation by the state having jurisdiction over the case, while inaction denotes the absence of any investigative step [Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, (Case No. ICC-01/04-01/07-1497 OA 8), ICC Appeal Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 76].
   Consequently, for an admissibility challenge to succeed before the Court, the challenging party must establish the existence of past or on-going investigations or prosecutions against the person concerned. Indeed, Article 17(1) prescribes that a case shall be found inadmissible if it “is being investigated” or “has been investigated” by a state which has jurisdiction. The Appeals Chamber defined the phrase “the case is being investigated” as “the taking of steps directed at ascertaining whether this individual is responsible for that conduct” [Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, paras 1 and 40.]. The Chamber provided examples of what may qualify as relevant investigative steps such as, “interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses” [Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, paras 1 and 40]. These investigative steps need to be “actually taken”, the mere preparedness to take such steps is not sufficient [Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, para 40].

Author: Mohamed Abdou

Updated: 30 June 2016

Article 17(1)(b)

[217] (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
A case is inadmissible if it has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.
    In Prosecutor v. Katanga and Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, the Appeals Chamber stated that "It follows that in case of inaction, the question of unwillingness or inability does not arise; inaction on the part of a State having jurisdiction (that is, the fact that a State is not investigating or prosecuting, or has not done so) renders a case admissible before the Court, subject to Article 17 (1)(d) of the Statute. This interpretation of Article 17 (1)(a) and (b) of the Statute also finds broad support from academic writers who have commented on the provision and on the principle of complementarity". (para. 78)
     In Prosecutor v. Bemba, Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, para. 239 the Trial Chamber considered whether the same case had been investigated by the Central African Republic (CAR) which has jurisdiction over the alleged crimes and CAR has decided not to prosecute, rendering the case inadmissible. The Trial Chamber stated in para. 242. that neither of the "decisions by the national courts and the State (viz. to refer the case to the ICC) were decisions "not to prosecute". They were, instead, decisions closing the proceedings in the CAR - there was an order for severance that approximately coincided with the referral to the ICC (they were two days apart). It follows that the first element of Article 17(1)(b) is not met: in the sense described by the Appeals Chamber, there has not been a decision not to prosecute the accused. To the contrary, the CAR seeks his prosecution before the ICC. This decision was upheld by the Appeals Chamber, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled "Decision on the Admissibility and Abuse of Process Challenges", 19 October 2010, paras. 1, 74-75.

Author: Mohamed Abdou

Updated: 30 June 2016

Article 17(1)(c)

[218] (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3;

For a case to be declared inadmissible before the Court, the "same case" must be investigated or prosecuted before courts of the state having jurisdiction over the case. In considering the question of admissibility, chambers of the ICC have assess the similarity between the national case and the one before the Court. This requires examinig two aspects: the identity of the individual who is subjected of the Court's proceedings, as well as the conduct for which he or she is investigated or prosecuted.
The same person:
The first prong of the “same person/same conduct” test does not raise any particular difficulty, as it refers to the specific individual(s) summoned before the Court or for whom a warrant of arrest has been issued. A case therefore cannot be found inadmissible before the ICC unless the same person is subject to an investigation or prosecution at the national level. On this issue, it is noteworthy that Pre-Trial Chamber II rejected Kenya’s proposal to investigate “persons at the same level in the hierarchy being investigated by the ICC” [Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali, (Case No. ICC-01/09-02/11-96), ICC Pre-Trial Chamber II, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, 30 May 2011, para. 50]. The Chamber indicated that the admissibility test under Article 17 is more specific and requires national proceedings to cover the same individuals who are subject to the Court's proceedings [Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali, (Case No. ICC-01/09-02/11-96), ICC Pre-Trial Chamber II, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, 30 May 2011, para. 50].

The same conduct:
The main difficulty arises in relation to the second prong of the admissibility test, i.e. the “same conduct”. In the Kenyan cases, the Appeals Chamber explicity embraced the “same person/same conduct”, albeit with some adaptation. The Chamber ruled that for a case to be inadmissible, national investigations must cover the same individual “and substantially the same conduct” as alleged in the proceedings before the Court”. [Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali, (Case No. ICC-01/09-02/11-96), ICC Pre-Trial Chamber II, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, 30 May 2011, para. 38]. In doing so, the Appeals Chamber slightly modified the formulation from “same person/same conduct” to “same person/substantially the same conduct”. The Appeals Chamber did not however provide further details to the precise degree of similarity required. 
   Arguably, the inclusion of the qualifier “substantially” was meant to introduce some degree of flexibility to the test. Such wording suggests that a case can be found inadmissible even if the domestic case is not exactly the same as the one before the ICC. As a result, the addition of the word substantially has given rise to novel diverging views. In Al Gaddafi, the Prosecution argued that while the “substantially the same conduct” standard does not require national proceedings to incorporate all the features of the ICC case, it should not however be interpreted in a manner that enables a State to only investigate limited or weak incidents [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-276-Red2), ICC Pre-Trial Chamber I, Prosecution’s Response to “Libyan Government’s further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi”, 12 February 2013, paras. 28-29]. In the same vein, one author indicates that the word “substantially” means “essentially” and therefore, what should be established in admissibility proceedings mainly relates to whether the person concerned is brought before domestic courts for essentially the same conduct [Jalloh, August 2012), 237].
   A further difficulty concerning the application of the “same conduct” relates to the definition of the “conduct” itself. Indeed, in order to determine whether national proceedings cover substantially the same conduct, it is necessary to identify first its constitutive elements. As a starting point, any assessment must be made on the basis of the parameters of the "conduct" as defined in the relevant documents containing the factual allegations against the defendant. As the Appeals Chamber held, “the cases are defined by the warrant of arrest or summons to appear issued under Article 58, or the charges brought by the Prosecutor and confirmed by the Pre-Trial Chamber under Article 61” [Prosecutor v. Francis Kirimi Muthaura et al., (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment  on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’,  30 August 2013, para. 39]. In line with this, Pre-Trial Chamber I stated that “the determination of what is substantially the same conduct as alleged in the proceedings before the Court will vary according to the concrete facts and circumstances of the case and, therefore, requires a case-by-case analysis”. [See: Prosecutor v. Said Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, p. 34]
   However, it is unclear whether the “conduct” must be interpreted as referring to the specific factual incidents as well as the underlying circumstances described in the charging documents of the Court, or whether it should be understood as referring only to the allegations of criminal responsibility against the defendant. On this issue, Pre-trial chambers have constantly held that a case before the ICC is composed of “specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects”. [See: Prosecutor v. Laurent Gbagbo, (Case No. ICC-02/11-01/11-9-Red), ICC Pre-Trial Chamber III, Decision on the Prosecutor's Application Pursuant to Article 58 for a warrant of arrest against Laurent Koudou Gbagbo, 30 November 2011, , para. 10; Prosecutor v Thomas  Lubanga Dyilo, (Case No. ICC-01/04-01/06-8-Corr), ICC Pre-Trial Chamber I, Decision concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo, 24 February 2006, Annex 1, para. 31; Situation in the Democratic Republic of the Congo, (No. ICC-01/04-101-tEN-Corr), ICC Pre-Trial Chamber I, Decision  on the applications for participation in the proceedings of VPRS 1, VPRS2, VPRS3, VPRS 4, VPRS 5 and VPRS 6, 17 January 2006, (translation notified 22 March 2006), para. 65; see also: Prosecutor v. Ahmad Harun and Ali Kushayb, (Case No. ICC-02/05-01/07-l-Corr), ICC Pre-Trial Chamber I, Decision on the Prosecution Application under Article 58(7) of the Statute, 27 April 2007, para. 14]. Such approach suggests that the term conduct is “incident-specific”, which implies that the challenging party must substantiate its claim that the case inadmissible with reference to the specific incidents alleged against the accused before the Court.
   However, Pre-Trial Chamber recently departed from this widely accepted approach in Al Gaddafi case. It found that, contrary to the other cases before the Court, the incidents enumerated in the warrant of arrest do not “represent unique manifestations of the form of criminality alleged against Mr Gaddafi”, and therefore constitute a “non-exhaustive list” of allegations [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Sennusi, (Case No. ICC-01/11-01/11-344-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, 31 May 2013, paras. 81-83]. The Pre-Trial Chamber therefore adopted the view that the criminal conduct of the suspect may be defined by way of "illustrative examples" and that any incident investigated domestically may be relevant to the same conduct so long as it falls within the material scope of the crimes alleged in the proceedings before the ICC. According to this approach, a state may successfully challenge the admissibility of a case on the basis that it is investigating similar criminal acts without having to establish that it is investigating the same specific incidents. It is noteworthy in this regard that the Chamber specifically dismissed the Prosecutor’s argument that the cases must be understood as "incident-specific", and that the criminal conduct alleged must be defined with reference to specific times and places [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-321-Red), ICC Pre-Trial Chamber I, Prosecution’s Response to “Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute”, 2 May 2013, paras. 78 and footnotes 175 and 176]. According to the Prosecutor, the conduct identifies "criminal acts that occur in a particular location and at a specific time and in the framework of a course of conduct and series of events" [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-321-Red), ICC Pre-Trial Chamber I, Prosecution’s Response to “Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute”, 2 May 2013, paras. 78 and footnotes 175 and 176].

The legal characterization, international v. ordinary crimes:
One issue that appears to have been settled by the Court relates to the question as to whether Article 17 should be interpreted as requiring the State investigating the case to adopt the same legal qualification as that provided for in the Rome Statute. In other words, is the State under an obligation to enact the same crimes laid down in the Statute in order to meet the complementarity test, or it suffices to investigate the defendant for “ordinary” crimes as long as they cover all conduct that falls within the crimes of the Statute? In this respect, Pre-Trial Chamber ruled that, under Article 17, “the assessment of domestic proceedings should focus on the alleged conduct and not its legal characterisation” and that the fact that domestic investigations are carried out “with a view to prosecuting international crimes is not determinative” [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 85]. In reaching this conclusion, the Chamber relied on the fact that neither the complementarity provisions nor the related ne bis in idem principle imposes an explicit obligation on the State to adopt the same legal characterisation of the criminal conduct [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 86]. This analysis took also into account the travaux préparatoires and the expressed intent of the drafters to exclude the ordinary crimes exception provided in the ICTY and ICTR Statutes [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 87].

Evidentiary threshold and burden of proof:
There has been some controversy concerning the applicable evidentiary threshold and burden of proof in the context of admissibility proceedings. This is because the Rome Statute does not expressly any rules concerning the applicable standard of proof or allocation of the burden of proof in admissibility proceeding.
   The burden to establish the inadmissibility of a case before the Court typically lies on the challenging party. In cases where such a party is a State, the Court seems to apply the burden of proof in a more stringent way. In respect of Kenya’s admissibility challenge, the Chamber ruled that the state “must provide the Court with evidence with a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case”. [See: Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment  on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’,  30 August 2013, para. 2]. It emphasised that it not merely sufficient for a state to assert that investigations are on-going. The Appeals Chamber made clear that the burden of proof rest on the challenging party, but did not specify the standard of proof applicable to Article 17 proceedings. In cases where the Court acts on its own motion to decide on admissibility, the Prosecutor has the onus of establishing the admissibility of the case.  He or she should provide sufficient evidence and information to satisfy the Court that there are either no investigative activities at the domestic level, or that the national proceedings against the defendant do not cover the same case [See: Prosecutor v. Germain Katanga, (Case No. ICC-01/04-01/07-4), ICC Pre-Trial Chamber I, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 6 July 2007].
   This issue relating to the standard of proof has been addressed differently by the various chambers of the Court. In the first decision on this issue in the Bemba case, Trial Chamber III endorsed the “balance of probabilities” standard as the appropriate evidentiary threshold applicable to the admissibility proceedings. The Chamber explained that “…although the Rome Statute framework again does not provide guidance, the overwhelming preponderance of national and international legal systems apply what is frequently called the "civil standard" of proof (a balance of probabilities) when the burden lies upon the defence in criminal proceedings. There is no reason to depart from that approach in these circumstances…” [   See: Prosecutor v. Jean-Pierre Bemba Gombo, (Case No. ICC-01/05-01/08-802), ICC Trial Chamber III, Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, par. 203]. As to the burden of proof, the Trial Chamber concluded that the defence, as the challenging party, bears the evidential burden. [See: Prosecutor v. Jean-Pierre Bemba Gombo, (Case No. ICC-01/05-01/08-802), ICC Trial Chamber III, Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, para. 204]. In Al-Gaddafi case, Pre-Trial Chamber I adopted a different approach with respect to the applicable evidentiary standard. It noted that none of the standards of proof explicitly referred to in the Rome Statute apply to the admissibility determination. [See: Prosecutor v. Jean-Pierre Bemba Gombo, (Case No. ICC-01/05-01/08-802), ICC Trial Chamber III, Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, paras. 54-55]. Instead, the Pre-Trial Chamber reiterated the Appeals Chamber’s ruling that the state, as the challenging party, must provide the Court “with evidence of sufficient degree of specificity and probative value that demonstrates that it is investigating the case” [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-239), ICC Pre-Trial Chamber I, Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi, 7 December 2012, para. 11].
   Although it may seem from the above pronouncements that the burden of proof is clearly identified, the question arose as to whether the challenging party is required not only to establish that the same case is investigated, but also that the State has the requisite willingness and ability to investigate the case domestically. In the Al-Gaddafi & El-Senussi case, Libya claimed that it was only required to prove the first prong of the admissibility test namely, that it is investigating or prosecuting the same case [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-293-Red), Libyan Government’s consolidated reply to the responses of the Prosecution, OPCD,  and OPCV to its further submissions on issues related to the admissibility of the  case against Saif Al-Islam Gaddafi, 4 March 2013, paras. 17-21]. The argument was partly approved by the Pre-Trial Chamber, which found that although the State is required to substantiate all aspects of its allegations, the “evidentiary debate on the State's unwillingness or inability will be meaningful only when doubts arise with regard to the genuineness of the domestic investigations or prosecutions” [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Sennusi, (Case No. ICC-01/11-01/11-344-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, 31 May 2013, para.53]. This means that the Chamber has the discretion to seek additional evidence to satisfy itself that the state is both willing and able to carry out genuine proceedings.
   It seems also important to clarify that the Court’s analysis under Articles 17 and 19 does not extend to determining whether strong evidence is available to establish the defendant’s criminal responsibility. The Court’s assessment is limited to ascertaining whether domestic authorities are taking concrete and genuine investigative steps against the person concerned for the same criminal conduct. Therefore, the inadmissibility of a case “would not be negated by the fact that, upon scrutiny, the evidence may be insufficient to support a conviction by the domestic authorities” [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 66 (vii)]. In this regard, Pre-Trial Chamber I clarified the type of evidence that the challenging party is expected to provide to substantiate its admissibility challenge. It “may also include, depending on the circumstances, directions, orders and decisions issued by authorities in charge of the investigation as well as internal reports, updates, notifications or submissions contained in the [investigation] file”. [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Sennusi, (Case No. ICC-01/11-01/11-239), ICC Pre-Trial Chamber I, Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi, 7 December 2012, para. 11]

Timing:
The Appeals Chamber has indicated that the admissibility of a case is determined on the basis of “the facts as they exist at the time of the proceedings concerning the admissibility challenge”. [Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (Case No. ICC-01/04-01/07-1479 OA 8), ICC Appeal Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 56.] It further clarified that the expression "time of the proceedings" concerns the proceedings on the admissibility challenge “before the Pre-Trial Chamber and not to the subsequent proceedings on appeal” [Prosecutor v. William Samoei Ruto et al, (Case No. ICC-01/09-01/11 OA), ICC Appeals Chamber,  Decision on the "Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber's Decision on Admissibility", 28 July 2011, paras. 10-11].
   There remains some uncertainty as to whether the Court can limit its findings to the facts arising before the admissibility challenge is lodged. Recently, Pre-Trial Chamber I declined to take such an approach, indicating that "a decision on the admissibility of the case must be based on the circumstances prevailing at the time of its issuance"[Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 34.]. This decision suggests that should the circumstances surrounding the admissibility of the case evolve during the admissibility proceedings, the Chamber must take into consideration these developments and make its determination on the basis of the facts as they exist at the time when the admissibility decision is rendered. Such approach has important consequences, as it gives the party challenging admissibility (and notably the State) an opportunity to bolster and supplement its initial application throughout admissibility proceedings until a decision is reached by the competent chamber.

Author: Mohamed Abdou

Updated: 30 June 2016

Article 17(1)(d)

[219] 1. Having regard to paragraph 10 of the Preamble and Article 1, the Court shall determine that a case is inadmissible where: […] (d) The case is not of sufficient gravity to justify further action by the Court
Article 17(1)(d) of the Rome Statute provides that the Court shall determine that a case is inadmissible where the case is not of sufficient gravity to justify further action by the Court.
    This is because the ICC was envisioned as a permanent judicial body that would preside only over cases considered to be of most serious concern to the international community as a whole. The concept of “gravity” is not defined in the Statute and the appropriate scope of the term is a subject of debate. A limited number of judicial rulings have addressed the notion of gravity, but the most important remains the decision by Pre-Trial Chamber I on 10 February 2006 concerning the issuance of an arrest warrant against Thomas Lubanga [Prosecutor v. Thomas Lubanga, (Case No. ICC-01/04-01/06), ICC Pre-Trial Chamber I, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1]. The main findings of the Pre-Trial Chamber are outlined below.
   First, the Chamber observed that the use of the term “shall” in the chapeau of Article 17(1) of the Statute “leaves the Chamber no discretion as to the declaration of the inadmissibility of a case once it is satisfied that the case is not of sufficient gravity to justify further action by the Court” [Prosecutor v. Thomas Lubanga, (Case No. ICC-01/04-01/06), ICC Pre-Trial Chamber I, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1, para. 43]. The Chamber also clarified the scope of application of the gravity threshold, indicating that it applies to two different stages of the proceedings: “(i) at the stage of initiation of the investigation into a situation, the relevant situation must meet such a gravity threshold and (ii) once a case arises from the investigation of a situation, it must also meet the gravity threshold provided for in that provision”. [Prosecutor v. Thomas Lubanga, (Case No. ICC-01/04-01/06), ICC Pre-Trial Chamber I, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1, para. 44].
   In order to determine whether a case is sufficiently grave to warrant the Court’s intervention, two features must be considered: first, “the conduct which is the subject of a case must be either systematic (pattern of incidents) or large-scale”. This permits to exclude isolated instances of criminal activity. Second, the assessment of gravity must give due consideration “to the social alarm such conduct may have caused in the international community”. [Prosecutor v. Thomas Lubanga, (Case No. ICC-01/04-01/06), ICC Pre-Trial Chamber I, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1, para. 46].
   Moreover, the Chamber observed that the main reason behind the inclusion of the gravity threshold by the drafters was to maximise the Court’s deterrent effect [Prosecutor v. Thomas Lubanga, (Case No. ICC-01/04-01/06), ICC Pre-Trial Chamber I, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1, para 48]. Likewise, it was ruled that the reference to the insufficiency of gravity in Article 17 “is actually an additional safeguard, which prevents the Court from investigating, prosecuting and trying peripheral cases” [Situation in the Republic of Kenya, (No. ICC-01/09), ICC Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 56]. Several factors should be considered to ensure the objective of deterrence and prevention. First, the Court must take into account the position held by the persons against whom the Prosecution requests the initiation of a case and concentrate on the most senior leaders [Prosecutor v. Lubanga, (Case No. ICC-01/04-01/06-8-US-Corr), ICC Pre-Trial Chamber I, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1, para. 51]. Second, due regard must be given to the respective roles played by the individuals concerned in the commission of systematic or large-scale crimes within the jurisdiction of the Court. Third, the Court must contemplate the role played by State entities, organisations or armed groups to which the suspects belong in the overall commission of crimes falling within the jurisdiction. In other words, ICC proceedings must be directed against those suspected of being most responsible within the relevant group [Prosecutor v. Lubanga, (Case No. ICC-01/04-01/06-8-US-Corr), ICC Pre-Trial Chamber I, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, Annex 1, para. 51-52].

Author: Mohamed Abdou

Updated: 30 June 2016

Article 17(2)

[220] 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
Article 17(2) of the Statute enumerates three scenarios guiding the Court’s determination with respect to unwillingness.  It prescribes that the Court shall consider “having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

Therefore, there are three factors which can ground a finding of unwillingness under Article 17(2) namely, the initiation of criminal proceedings for the purpose of shielding the accused, the conduct of the proceedings in a manner that results in unjustified delays, and the lack of independent and impartial proceedings. The Court has thus far only considered the last two factors.

Cross-references:
Rule 51

Author: Mohamed Abdou

Updated: 30 June 2016

Article 17(2)(a)

[221] (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
This subparagraph concerns the situation when a state engages in sham proceedings to shield a person from the jurisdiction of the Court. Obvious departures from normal proceedings can be a factor that raises doubts about the legitimacy of the exercise. There is a potential overlap with this and sub-paragraph (2)(c).

Author: Mark Klamberg

Updated: 30 June 2016

Article 17(2)(b)

[222] (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; 
In relation to unjustified delays, Pre-Trial Chamber I held that delays in the conduct of national investigations or prosecution may warrant a finding of unwillingness only where such delays appear to be inconsistent with “an intent to bring the person concerned to justice”. Such a determination must be made on the basis of the “factual circumstances with a view to ultimately discerning the State's intent as concerns its on-going domestic proceedings against the specific individual”. [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Sennusi, (Case No. ICC-01/11-01/11-239), ICC Pre-Trial Chamber I, Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi, 7 December 2012, para. 233]. The relevant factors that the Court may consider include the chronology of domestic proceedings and the complexity of the case at hand. However, Pre-Trial Chamber I emphasised that the allegations of unjustified delay must be decided “not against an abstract ideal of justice, but against the specific circumstances surrounding the investigation concerned”. [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Sennusi, (Case No. ICC-01/11-01/11-239), ICC Pre-Trial Chamber I, Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi, 7 December 2012, para. 223].

Author: Mohamed Abdou

Updated: 30 June 2016

Article 17(2)(c)

[223] (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
Article 17(2)(c) provides that the lack of independent and impartial national proceedings renders the case admissible before the ICC. In order to assess this requirement, one has to look at the manner in which the proceedings are being conducted and whether, in the circumstances of the case, there exists a lack of independence and impartiality that is inconsistent with the intent to bring the defendant to justice. The main difficulty concerning the interpretation of this provision relates to whether the Court can find a State unwilling on the ground that national proceedings violate due process. This is because the chapeau of Article 17(2) explicitly refers to the “principles of due process recognized by international law”. This issue arose in the context of Al-Senussi admissibility challenge, where the defence argued that the defendant’s procedural rights had been violated throughout the domestic investigation. On this specific issue, the Pre-Trial Chamber indicated that, in principle, “violations of the accused's procedural rights are not per se grounds for a finding of unwillingness”, and that, depending on the specific circumstances of each case, “certain violations of the procedural rights of the accused may be relevant to the assessment of the independence and impartiality of the national proceedings” [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Sennusi, (Case No. ICC-01/11-01/11-239), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 235]. The Chamber appears to have rejected the defence argument that a State could be found "unwilling" on the sole ground that the proceedings violate the principles of due process. Instead, the Chamber has embraced an interpretation which requires that the alleged due process violation(s) be specifically linked to the two prongs of Article 17(2)(c) namely, the absence of an intent to bring the defendant to “justice” as well as the lack of independence and impartiality of the proceedings. 
   In any event, the fact that the chapeau of Article 17(2)(c) specifically refers to the “principles of due process recognized by international law” suggests that due process considerations constitute an important factor and should therefore guide the analysis of all the criteria of unwillingness. The negotiating history of the Statute shows that the drafters included this reference in order to introduce an element of objectivity to the assessment of unwillingness and reduce the subjectivity inherent to the assessment of the intent of domestic authorities [Holmes, 1999, p.50]. 

Author: Mohamed Abdou

Updated: 30 June 2016

Article 17(3)

[224] 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.  
Pursuant to Article 17(3) of the Statute, in order to determine state's "inability" in relation to a specific case, the Chamber "shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the state is unable to obtain the accused or the necessary evidence and testimony or otherwise is unable to carry out its proceedings".
   In order to find a state “unable”, Article 17(3) refers to two sets of considerations: first, a total or substantial “collapse” or “unavailability” of the national judicial system, and second, whether, as a consequence of the collapse or unavailability, the state is unable to obtain the accused, or the evidence and testimony, or is otherwise unable to carry out proceedings. The manner in which Article 17 is framed suggests that the inability assessment involves an evaluation of the national judicial system as a whole. A state may thus be found unable to carry out genuine proceedings in case of civil war, public unrest or as a result of other factors that make the holding of judicial proceedings impossible, such as the lack of court personnel or qualified judges.
   There is only one precedent within the ICC jurisprudence where a state was found to be lacking the requisite ability to genuinely carry out an investigation. In Al-Gaddafi admissibility challenge, the Pre-Trial Chamber concluded that Libya is unable to investigate or prosecute the case. This finding was made after the Chamber had considered the substantial difficulties faced by the national authorities in exercising judicial powers “across the entire territory” [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-344-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, 31 May 2013, para. 205]. Before making an overall conclusion on Libya’s ability, the Chamber found that the national judicial system is “unavailable”, which in its view resulted in Libya being unable to obtain the custody of the defendant as well as the necessary testimony of some witnesses. In the Chamber’s view, the specific facts of the case revealed that the suspect was being detained by uncontrolled armed militias and that authorities had failed to secure the transfer of the suspect to a government-controlled detention facility [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-344-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, 31 May 2013, para. 205]. The Chamber also determined that the national authorities lacked the capacity to obtain the necessary testimony, relying mainly on the absence of evidence showing the existence of witness protection programmes or other measures for witness protection [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-344-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, 31 May 2013, para. 205].
   Finally, the Chamber considered whether the words “otherwise unable to carry out proceedings” may be interpreted so as to include the inability of a state to secure legal representation for the defendant. Though the lack of legal representation is not explicitly provided for as a form of inability, it nevertheless constitutes an impediment to the conduct of genuine proceedings. In this respect, the Chamber held the view that the ability requirement must be assessed in accordance with the substantive and procedural domestic laws [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-344-Red), ICC Pre-Trial Chamber I,Decision on the admissibility of the case against Saif Al-Islam Gaddafi, 31 May 2013, para. 200]. The Libyan Government could not establish that a lawyer had been appointed to represent the accused at any stage of the domestic proceedings. The Chamber considered that such failure contravenes the Libyan Code of Criminal Procedure, which prescribes that no trial can take place without proper legal representation [See: Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-344-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, 31 May 2013, para. 214]. Here, the inability therefore arises from the legal obstacles posed by national law.

Doctrine: 

  1. William W. Burke-White/Scott Kaplan, "Shaping the Contours of the Domestic Justice: The ICC and the Admissibility Challenge in the Uganda Situation", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, 2009, PP. 79-114.
  2. William W. Burke-White , "Implementing a Policy of Positive Complementarity in the Rome System of Justice", Criminal Law Forum, vol. 19, no. 1, 2008, pp. 59-85.
  3. Mohamed M. El Zeidy, "From Primacy to Complementarity and Backwards: (Re-)Visiting Rule 11 bis of the Ad hoc Tribunals", International & Comparative Law Quarterly, vol. 57, 2008, pp. 403–415.
  4. Kevin Jon Heller, "The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process", Criminal Law Forum, vol. 17, 2006.
  5. John T. Holmes, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 673, 675-676. 
  6. John T. Holmes, "The Principle of Complementarity", in Roy S. Lee (Ed.), The International Criminal Court, The Making of the Rome Statute, Kluwer Law International, 1999, pp. 41–43, 50, 60–65. 
  7. Charles Jalloh, "Kenya vs. The ICC Prosecutor", Harvard International Law Journal Online, vol. 53, 2012, p. 237. 
  8. Jann K. Kleffner, "The Impact of Complementarity on National Implementation of Substantive International Criminal Law", Journal of International Criminal Justice, vol. 1, 2003, pp. 86-113.
  9. Ruth B. Philips, "The International Criminal Court Statute: Jurisdiction and Admissibility", Criminal Law Forum, vol. 10, no. 1, 1999, pp. 61-85.
  10. William A. Schabas,  "Prosecutorial Discretion and Gravity", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, Leiden, 2009, pp. 229-246. 
  11. William A. Schabas, The International Criminal Court, A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, p. 365.
  12. Sharon A. Williams/William A. Schabas, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 605-625.
  13. Carsten Stahn, "Libya, the International Criminal Court and Complementarity: A Test for 'Shared Responsibility'", Journal of International Criminal Justice, vol. 10, no. 2, 2012, pp. 235–349.

Author: Mohamed Abdou

Updated: 30 June 2016

Article 18

[225] Preliminary rulings regarding admissibility
General Remarks
Whereas Article 19 permits a State to challenge admissibility after a case has been initiated before the ICC, the process delineated in Article 18 permits a State to stave off the Court’s exercise of jurisdiction over potential cases in a pre-emptive manner, if the State in question is investigating or has investigated these potential cases.
    It is apparent from the explicit use of the two different terms ‘State parties’ and ‘States’ throughout Article 18 that its complementarity regime also applies to investigations conducted by non-State parties.  The Article therefore evinces a broad recognition that the Court should only intervene where domestic jurisdictions are either unwilling or unable to do so.
    Notwithstanding such an overarching presumption, the procedural requirements delineated in the Article place a relatively strict onus on States to assert their right to prosecute in a diligent and expeditions manner. As enunciated by the Appeals Chamber, “the complementarity principle, as enshrined in the Statute, strikes a balance between safeguarding the primacy of domestic proceedings vis-à-vis the International Criminal Court on the one hand, and the goal of the Rome Statute to "put an end to impunity" on the other hand. If States do not or cannot investigate and, where necessary, prosecute, the International Criminal Court must be able to step in”. (Prosecutor v. Katanga and Ngudjolo (Case No. ICC-01/4-01/07-1497), ICC AC, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 85).
   Whereas States have a very limited window through which to assert their primacy over a situation as of right, the Appeals Chamber has nonetheless suggested that outside of the framework of admissibility proceedings, the Prosecution should use its discretion to enter into dialogue with States concerning the division of labour between the ICC Prosecution and States:

The Appeals Chamber accepts that there may be national legislation in existence or other impediments to a State being able to either disclose to the Court the progress of its investigations, or to take all the necessary steps to investigate. In this case, Libya has asserted, inter alia, that it is a State in transition; it also asserts that it was prevented from disclosing to the Court evidence as to the investigations it was undertaking as a result of Article 59 of its Code of Criminal Procedure, which it submits required it to maintain information as to investigations confidential; and it asserts that the appointment of a new Prosecutor-General was significant, therefore justifying more time. While accepting the reality that these situations can arise, the Appeals Chamber nevertheless considers that a State cannot expect that such issues  will automatically affect admissibility proceedings; on the contrary, such issues should in principle be raised with the Prosecutor directly (prior to instigating  admissibility proceedings), with a view to advising her as to the steps the State is  taking, any impediments to those steps and allowing her to reach sensible decisions as to whether or not, in the circumstances, it is appropriate for her, at that time, to pursue a case, pending the progress of investigations by the State. It is, in principle, not the place for such issues to be raised with a Chamber in the context of admissibility proceedings.” (Prosecutor v. Gaddafi and Senussi, (Case no. ICC-01/11-01/11-547-red), ICC AC,  Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi", 21 May 2014, para. 165).   

The Article is primarily procedural in nature. Substantive issues concerning the definition of ‘inadmissibility’, ‘willingness’ and ‘ability’ are addressed by Article 17.
   Article 18 has not yet been invoked in practice. Ambiguities thus remain as to whether the procedure enables States to invoke the Article in an effective manner, how the Court will interpret the notion of a ‘potential case’, and where the burden of proof will lie. 
    In terms of this latter aspect, the current ICC jurisprudence concerning Article 19 has held that where a State challenges the admissibility of a case, the burden falls on the State to adduce “evidence with a sufficient degree of specificity and probative value” in order to demonstrate that all of the elements of the admissibility criteria are met (Prosecutor v. Ruto et al., ICC-01/09-01/11-307, AC, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, para. 2; Prosecutor v. Gaddafi et al., ICC-01/11-01/11-344-Red, PTC, ’Public Redacted Decision on the Admissibility of the Case against Saif Al-Islam Gaddafi’, 31 May 2013, para. 52).
   It remains to be adjudicated, however, as to whether the process by which a State notifies the Prosecution that it is investigating or prosecuting ‘criminal acts’ is analogous to a challenge to the admissibility of a case.

Preparatory Works
A contentious issue that arose during the drafting history was whether non-State parties could invoke Article 18:

Those who favoured limiting the right to challenge to States Parties argued that non-States Parties ‘did not share the burden of obligations under the Statute, to share the privilege of challenging the jurisdiction of the Court’ (Italy)…Those who favoured extending the right to non-States parties asserted that ‘if a State that was not a party was carrying out an effective prosecution in its own territory, there was no reason for the Court to intervene and also conduct a prosecution’ (United Kingdom), ibid., p. 215 and that it was more consistent with complementarity. (Singapore). Ibid., p. 219. ” (Hall 2008 p. 649, footnote 42).

According to Holmes, the latter view prevailed although there was a general consensus that the right for non-States parties to challenge admissibility should not be open-ended (Holmes 1999 p. 66).
   The final text does not impose any explicit limit on the rights of non-State parties. Nonetheless, in line with the view of States such as Italy that rights should be linked to obligations, a Prosecution Expert Paper on Complementarity advocates the position that a State’s record of cooperation with the ICC can be a relevant factor to the ICC’s determination as to whether to accept a challenge to admissibility (ICC Informal Expert Paper 2003, p. 18). It follows from this that the fact that a State has ratified the Rome Statute might militate in the State’s favour, as it could be viewed as being reflective of a general willingness to cooperate with the ICC.  

Author: Melinda Taylor

Updated: 30 June 2016

Article 18(1)

[226] Analysis of provisions and sub-provisions
1. When a situation has been referred to the Court pursuant to Article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to Articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.
 
Article 18(1) of the Statute obliges the Prosecutor, once he or she has decided to investigate a State referral pursuant to Article 13(a) or has been authorised to initiate an investigation proprio motu, to notify all State parties and States, who would normally exercise jurisdiction over the crimes concerned.
   Notably, Article 18(1) omits any reference to situations referred by the Security Council pursuant to Article 13(b). If that is the case, then the ICC would exercise automatic primacy as concerns investigations into such situations, although Article 19 would permit the State concerned or the defendant to challenge the admissibility of a specific case.
    Nsereko justifies this omission of Article 13(b) referrals by arguing that “the Council has primacy in matters involving international peace and security.  Its decisions are binding on all States.  Judicial proceedings are some of the measures that it may opt for as a means of maintaining or restoring international peace and security.  Once it has opted for and sanctioned such measures there is no need for further authorization from the Pre-Trial Chamber or from any other authority”. (Nsereko 2008 p. 629). 
   Article 18(1) gives the Prosecution a degree of latitude to determine, on the basis of the information known to the Prosecution, which States or State Parties could exercise jurisdiction and should therefore be notified. It is therefore entirely possible that the Prosecution might fail to notify a State or State party in a timely manner, either because the Prosecution was unaware of the fact that the State in question was investigating or prosecution the same acts, or because the Prosecution had construed the definition of jurisdiction narrowly, and had therefore failed to include some States or State parties, which could potentially exercise jurisdiction.
   The impact that this could have on the rights of States will be analysed in connection with Article 18(2).
    A further issue is that the precise temporal and geographic parameters of a situation might not be completely defined at the time when the situation is referred to the Court by a State party. Since the purpose of Article 18 is to underscore the notion of complementarity and to enable States to fulfil their “duty […] to exercise […] criminal jurisdiction over those responsible for international crimes” (Preamble of the Rome Statute), it is arguable that this purpose would be frustrated if the Prosecution were to interpret its obligation as a once off obligation, as opposed to an obligation which is triggered whenever the Prosecution changes or expands the parameters of its investigations. 
   In the DRC situation, the Prosecution adopted both an expansive definition of the parameters of the investigation it opened into the DRC situation in 2004, and a narrow construction of its notification obligations. In its application for an arrest warrant against Calixte Mbarushimana, the Prosecution asserted that its notification to States in 2004 that it was opening an investigation into the DRC satisfied its Article 18(1) notification obligations as concerns investigations conducted much later into alleged crimes in the Kivus (Prosecutor v. Mbarushimana, Prosecution's Application under Article 58, ICC-01/04-01/10-11-red OTP, 20 August 2010, para. 163).
    Although the Pre-Trial Chamber did not expressly address the notification issue, it ruled that in order to fall within the parameters of the initial referral from the DRC, the investigated allegations must fall “within the boundaries of the situation of crisis for which the jurisdiction of the Court was activated […] Such a situation can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis referred to the Court as ongoing at the time of the referral”. (Prosecutor v. Mbarushimana, ICC PT. Ch. I, Decision on the Prosecutor's Application for an Arrest Warrant against Calixte Mbarushimana, ICC-01/04-01/10-01, 28 September 2010, para. 6.)
   In line with this reasoning, it follows that the Prosecution would need to reinitiate the ‘notification’ process if the crimes being investigated are not sufficiently linked to the crimes which formed the basis of the initial notification process.
   Since Article 18 is concerned with potential rather than actual cases, the ICC Appeals Chamber has also underscored that the phrases ‘crimes concerned’ (Article 18(1)) and “criminal acts which may constitute crimes” (Article 18(2)) should be interpreted relatively broadly, particularly as “[o]ften, no individual suspects will have been identified at this stage, nor will the exact conduct nor its legal classification be clear.” (Prosecutor v. Ruto, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, ICC-01/09-01/11-307 at para. 39).
    Finally, Article 18(1) permits the Prosecution to notify States on a confidential basis, and to limit the information provided to States if it believes that publicity would adversely affect the protection of persons, the integrity of evidence, or the ability of the ICC to apprehend suspects.  It does not, however, appear possible for the Prosecution to rely on these reasons to refrain from notifying a State altogether. This lacuna could present problems in a situation where the target of the Prosecution’s investigations is the Head of State, or an official who is likely to have access to all confidential information in the State in question.

Cross-reference:
Rule 52

Author: Melinda Taylor

Updated: 30 June 2016

Article 18(2)

[227] 2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in Article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.
Article 18(2) specifies that once States or State Parties have been notified, they have a deadline of 1 month within which to notify the Court that they are investigating or have investigated the acts in question.
   Although this deadline does not run until the State has been notified by the Prosecution, if the Prosecution has, in the meantime, obtained arrested warrants in relation to the ‘criminal acts in question’, the State will be forced to challenge the admissibility of the case via Article 19. In so doing, it will be necessary for the State to satisfy the higher threshold of the ‘same person/substantially the same conduct test’, as approved by the ICC Appeals Chamber (Prosecutor v. Ruto, ICC A. Ch, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-01/11-307, 30 August 2011, para. 1). 
   Accordingly, if the State is prosecuting the same crime base or incidents as the ICC but has attributed responsibility to a different person than the ICC (as was the basis of Kenya’s submissions in the Ruto et al case), it will not be possible for them to successfully request the ICC to defer jurisdiction to them.  
   It could be argued from the perspective of States that the one month fixed deadline is inimical to the complementarity principle. Many States might be willing in principle to investigate or prosecute the ‘criminal acts’ but might lack the technical means to do so in the immediate aftermath of the conflict or unrest in question. They might therefore fail to meet the threshold of proving to the Court that they are investigating or have investigated the acts in question at the specific time when the Prosecution makes its Article 18 notification, although they could be capable of doing so if they had some additional time.  Article 18 does not provide such States with an opportunity to either seek a reasonable extension of this deadline, or to request the Court to defer its investigations if the State can demonstrate a change in circumstances (i.e. that is now conducting investigations into the acts in question).
   This is but one example amongst many where the Statute prioritises the objective of encouraging effective and expeditious investigations and prosecutions over the presumptive right of States to exercise jurisdiction over cases.
   Nonetheless, this emphasis on expedition is counterbalanced by the fact that Article 18(2) appears to establish the presumption that if a notified State requests the Prosecution to defer to its domestic investigations, the Prosecutor shall  defer to the State in question.  This presumption is only displaced if the Pre-Trial Chamber grants a Prosecution application to continue it investigations.
   Although Article 18(2) refers to such a decision occurring upon the application of the Prosecution, it does not exclude the possibility that the Pre-Trial Chamber could rule proprio motu on the issue as to whether Prosecution should defer to national investigations as part of its inherent ‘compétence de la compétence’.
   It is arguable, however, that Article 18(2) should be construed in a manner, that is consistent with Article 53 of the Statute.  Article 53(3)(a) allows the State, which referred the situation, to challenge a decision of the Prosecution not to investigate a case, for reasons including an assessment that the case is inadmissible before the ICC. In contrast, the Pre-Trial Chamber cannot conduct a proprio motu review of a decision not to investigate if it has been made for this reason. 
   It follows that whereas a referring State could challenge a decision of the Prosecution to defer to the investigations of another State, in the absence of an application from either the Prosecution or the referring State, the Pre-Trial Chamber would have no competence to rule on the matter.

Cross-references:
Rule 52, 53, 54 and 55
Regulation 38

Author: Melinda Taylor

Updated: 30 June 2016

Article 18(3)

[228] 3. The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation.
If the Prosecution has deferred to a State, or the Pre-Trial Chamber has rejected the Prosecutor’s application for non-deferral, the Prosecution may nonetheless review the status of domestic proceedings with a view to filing a request for authorisation from the Pre-Trial Chamber to continue its investigations (Article 18(3) and Rule 65(1)). The Prosecution may do so either after 6 months has elapsed or upon a significant change of circumstances concerning whether the State’s investigations meet the Article 17 criteria of willingness and ability (Article 18(3)). The existence of such a power implies that in order for this provision to be effective, the Prosecution would need to monitor the progress of domestic investigations continuously with a view to assessing whether they comport to the criteria set out in Article 17.  It is unclear from the phase “at any time” whether there is any limit as concerns the number of times that the Prosecutor may review the deferral of the investigation or prosecution.

Cross-reference:
Rule 56

Author: Melinda Taylor

Updated: 30 June 2016

Article 18(4)

[229] 4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with Article 82. The appeal may be heard on an expedited basis.
This Article confirms that for the purpose of Article 18 proceedings, a State can be considered as a ‘party’ for the purposes of initiating an automatic right to appeal pursuant to Article 82(1)(a) of the Statute. Article 82(1)(a) enables ‘parties’ to appeal a decision on admissibility or jurisdiction as of rights (i.e. without first seeking leave to appeal from the Chamber, which issued the decision).
   It has been extrapolated from the fact that Article 18(4) expressly iterates the right of States to appeal certain decisions that in the absence of such express language concerning a right for States to appeal a particular category of decisions, States cannot otherwise avail themselves of the appellate avenues set out in Articles 81 and 82 (Prosecutor v. Lubanga, ICC T. Ch., Decision on two requests for leave to appeal the "Decision on the request by DRC-DO1-WWWW-0019 for special protective measures relating to his asylum application, ICC-01/04-01/06-2779, 4 August 2011, at para. 11).

Author: Melinda Taylor

Updated: 30 June 2016

Article 18(5)

[230] 5. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay.
This sub-Article specifies that where the Prosecution has deferred to a State’s investigation, it may request the State in question to inform the Prosecution on a periodic basis concerning the status of its investigations and prosecutions. 
    Notably, the Article also specifies that “States Parties” shall respond to such requests without undue delay. The explicit reference to State Parties implies that no such obligation is imposed on non-State Parties. The absence of an obligation to submit such information renders it particularly difficult for the Prosecution to assess the progress of the case, as the Prosecution also has no right to conduct investigations in non-State parties. 
   Thus, whereas non-State parties can request the Prosecution to defer to its investigations, the Prosecution has no corollary power or effective ability to monitor whether the State in fact investigates and prosecutes the case in a manner, which is consistent with the admissibility criteria under Article 17
   In order to ensure that the underlying Rome Statute objectives of eliminating impunity and ensuring effective prosecutions, it is arguable that the fact that the requesting State is a non-State party might be a relevant criterion as concerns the Prosecution’s decision as to whether to defer to the State’s investigation, or apply to the Chamber to authorise an ICC investigation.
   Similarly, even if a non-State party is not obliged to submit periodic reports, it might be appropriate to draw adverse inferences if it refuses to do so, for the purposes of deciding whether there has been a significant change of circumstances, which would warrant a reversal of the Prosecution’s deferral to the investigations or prosecutions of the State.
   This would be consistent with the above-cited recommendation in the ICC Informal Expert Paper on Complementarity that a State’s record of cooperation with the ICC can be a relevant factor in the Court’s assessment as to whether the State meets (or continues to meet) the admissibility criteria (ICC Informal Expert Paper 2003, p. 18).
   Hall has also argued that where information, which might be germane to the ICC’s determination of admissibility, is within the custody of a State and the State fails to proffer it or grant the ICC access to it, it would be appropriate to draw adverse inferences against the State in question (Hall, 2008 at pp. 645 and 652).

Author: Melinda Taylor

Updated: 30 June 2016

Article 18(6)

[231] 6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this Article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available.
In order to ensure that potential future prosecution or investigations before the ICC are not prejudiced during this ‘ping pong’ match between the jurisdiction of domestic authorities and the ICC, Article 18(6) permits the Prosecutor to apply to the Pre-Trial Chamber to take measures to preserve evidence if there is a unique opportunity to obtain important evidence or there is a significant risk that the evidence might not be subsequently available. Rule 57 specifies that such an application shall be considered on an expedited and ex parte basis. Presumably, in order to ensure that any evidence so collected would be potentially admissible during a future trial at the ICC, the invocation of a unique investigative opportunity by the Prosecution pursuant to Article 18(6) would also attract the provisions and procedures set down by Article 56 (the Role of the Pre-Trial Chamber in relation to a unique investigative opportunity). This includes the duty of the Pre-Trial Chamber to consider what measures may be necessary to “ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence” (Article 56(1)(b)). These measures can include the appointment of a defence counsel to represent the interests of the defence (Article 56(2)(d)).

Cross-references:
Rule 57
Regulation 38

Author: Melinda Taylor

Updated: 30 June 2016

Article 18(7)

[232] 7. A State which has challenged a ruling of the Pre-Trial Chamber under this Article may challenge the admissibility of a case under Article 19 on the grounds of additional significant facts or significant change of circumstances.
The fact that a State has unsuccessfully challenged the admissibility of a situation does not prevent it from subsequently challenging the admissibility of a particular case under Article 19, but it must then base its Article 19 challenge on additional significant facts or a significant change of circumstances (Article 18(7)).
   It has been suggested that such new facts or significant change in circumstances could include “cessation of hostilities in a country that was previously embroiled in war; the coming to power of a new government that is better disposed to exercise national jurisdiction fairly and effectively; and genuine national peace and reconciliation arrangements under which the defendants might have been granted amnesty or pardon” (Nsereko, 2008 at p. 636).

Doctrine:

  1. Christopher K. Hall, "Article 19 Challenges to the Jurisdiction of the Court or the Admissibility of the Case", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 627-636.
  2. John T. Holmes, “The Principle of Complementarity”, in Roy S. Lee (Ed.), The International Criminal Court. The Making of the Rome Statute, Kluwer Law International, The Hague, 1999.
  3. ICC Informal Expert Paper, The Principle of Complementarity in Practice, 2003.
  4. Daniel Nsereko, "Article 18: Preliminary Rulings Regarding Admissibility”,  in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 627-636.

Author: Melinda Taylor

Updated: 30 June 2016

Article 19

[233] General Remarks
Articles 17 and 19 of the Rome Statute constitute the main statutory provisions defining the complementarity regime of the ICC. While Article 17addresses the substantive conditions for admissibility, Article 19 primarily deals with the procedural aspects related to both jurisdiction and admissibility of a case. Article 19 also differs from Article 18 (on preliminary challenges to admissibility) in that it only applies to concrete and clearly-defined cases, unlike Article 18 which governs challenges to the initiation of an investigation into a situation as a whole [Schabas, 2010, p. 365]. The Article elucidates several procedural matters including, the enteties having standing to make challenges, the timing, those who are entitled to participate in the proceedings and submit observations as well as the competent chambers for deciding admissibility and jurisdictional challenges [Rome Statute, Article 19, and Holmes, 1999, pp. 60 - 65].      
 
Preparatory Work
The drafting history reveals that states had converging views regarding the adoption of Article 19. Among the significant questions contemplated was whether challenges should apply to both admissibility and jurisdictional matters, and there existed a common agreement among delegations regarding the conceptual differences between jurisdiction and admissibility [Holmes, 1999, p. 61]. It is noteworthy that with regard to jurisdiction, it was widely accepted that it is Court’s duty to satisfy itself that it has jurisdiction over a case “throughout all stages of the proceedings”. As for admissibility challenges, the prevailing view was that admissibility “was less the duty of the Court to establish than a bar to the Court’s consideration of a case” [Holmes, 1999, p. 61].  As a result of this conceptual distinction, it was decided that the consideration of admissibility challenges should in principle be limited to the early stages of the proceedings.

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(1)

[234] C. Analysis
1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with Article 17.
Article 19 provides that the admissibility of a given case may be examined either by the Court acting on its own initiative or in response to an admissibility challenge filed by one of the parties referred to in Article 19(2).
   The significance of the Court’s obligation to satisfy itself that it has jurisdiction over the case was highlighted by Pre-Trial II as follows: “notwithstanding the language of Article 19(1) of the Statute, any judicial body has the power to determine its own jurisdiction, even in the absence of an explicit reference to that effect. This is an essential element in the exercise by any judicial body of its functions. Such power is derived from the well-recognised principle of 'la compétence de la compétence'” [Prosecutor v. Bemba, ICC P.T. Ch. II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 23]. See also Kony et al., ICC P.T. Ch., Decision initiating proceedings under Article 19, requesting observations and appointing counsel for the Defence, ICC-02/04-01/05-320, 21 October 2008; Kony et al., ICC P.T. Ch., Decision on the admissibility of the case under Article 19(1) of the Statute, ICC-02/04-01/05-377, 10 March 2009, para. 45 and Ruto et al., ICC P.T. Ch., Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11-1, 08 March 2011, para. 8. In relation to admissibility challenges, it was ruled that “the existence of national proceedings is the sole reason for a possible finding of inadmissibility” [Prosecutor v. Katanga, ICC P.T. Ch. I, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, ICC-01/04-01/07-55, 5 November 2007, para. 20].

Cross-reference:
Rules 59 and 133

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(2)

[235] 2. Challenges to the admissibility of a case on the grounds referred to in Article 17 or challenges to the jurisdiction of the Court may be made by:
(a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under Article 58;
(b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or
(c) A State from which acceptance of jurisdiction is required under Article 12.
The parties entitled to challenge admissibility or jurisdiction are identified in Article 19(2) as follows: (1) the accused or the person for whom a warrant of arrest or summon to appear has been issued; (2) a state party to the Rome Statute (3) or a state that has accepted the jurisdiction of the Court. In addition, the Statute gives the prosecution the right under Article 19(3) to seek a Court ruling on jurisdiction or admissibility. 
   The prosecution, the defence and the victims may participate in Article 19 proceedings. There remain however some doubts as to the status and scope of participation of states in admissibility proceedings, particularly in cases where the proceedings are triggered by a different entity. For instance, it was ruled that the State may not participate in the proceedings on admissibility when such proceedings are initiated by the defence. Pre-Trial Chamber II explained “that a State becomes a participant to the proceedings on admissibility only in particular instances where the interests of a State are envisaged by the Court's statutory documents. This is the case, for example, where the State has challenged the admissibility of the case under Article 19(2)(b) of the Statute. However, this is not the case in the context of the present proceedings as the admissibility challenge was lodged by a suspect - although this does not mean that a State will never have an interest when it is not the triggering entity of such a challenge". [Prosecutor v. Muthaura et al., ICC Pre-Trial Chamber II, Decision on the "Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings, ICC-01/09-02/11-340. 20 September 2011, para. 9]. 

Cross-references:
1. Rule 59
2. Regulation 38(1)(c)

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(3)

[236] 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under Article 13, as well as victims, may also submit observations to the Court.
“The language of Article 19(3) of the Statute and Rule 59(1)(a) of the Rules makes clear that a State shall be informed about an admissibility challenge and provided with a summary of its grounds only if the situation was received by way of a State Party referral as opposed to a proprio motu request submitted by the Prosecutor as is the present case. This approach suggests that the drafters intended to exclude States Parties from proceedings in a scenario” [Prosecutor v. Muthaura et al., ICC Pre-Trial Chamber II, Decision on the "Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings,  ICC-01/09-02/11-340, 20 September 2011, para. 9]. 

Cross-references:
1.  Rules 59 and 60
2.  Regulation 38(2)(b)

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(4)

[237] 4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on Article 17, paragraph 1 (c).
Pursuant to Article 19(4), the admissibility of a case or the jurisdiction of the Court may be challenged only once by the person concerned or the State, but the Court may in exceptional circumstances grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges made after the commencement of Trial may only be based on Article 17(1)(c) addressing instances of double jeopardy. Challenges made after the commencement of the Trial are permissible only if “the person concerned has been already tried for conduct which is the subject of the complaint”.
   The question arose as to whether a challenge made by one of the defendants may prejudice other defendants in the same case or limit the right of the State to lodge another challenge. In this respect, Pre-Trial Chamber II indicated that “nowhere is it said that a challenge brought by either of these parties forecloses the bringing of a challenge by another equally legitimate party, nor that the right of either of the parties to bring a challenge is curtailed or otherwise affected by the Chamber's exercise of its proprio motu powers”. [Prosecutor v. Kony et. al, ICC Pre-Trial Chamber II Decision on the admissibility of the case under Article 19(1) of the Statute, ICC-02/04-01/05-377,10 March 2009, para. 25]. Further, it appears from the ICC jurisprudence that it is possible for a Chamber to make several determinations on admissibility in respect of each of the defendants in the same case. In the case against Al-Gaddafi and El-Senussi, Pre-Trial Chamber I decided that the Government’s first challenge to admissibility would “be understood to only concern the case against Al-Gaddafi” [Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC Pre-Trial Chamber I, Decision on the Conduct of the Proceedings Following the "Application on behalf of the Government of Libya pursuant to Article 19 of the Statute, ICC-01/11-01/11-134, 4 May 2012 para. 8]. With respect to the admissibility challenge concerning Al-Senussi, the Chamber recognized that despite the close link between the two challenges the “unfolding of the proceedings following the Admissibility Challenge cannot be made dependent upon procedural steps in, or conclusion of, proceedings” concerning Mr. Al-Gaddafi [Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC P.T. Ch. I, Decision on the conduct of the proceedings following the ‘Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute, ICC-01/11-01/11-325, 26 April 2013, para. 10].

Timing
As to the appropriate timing for lodging an admissibility challenge, Trial Chamber II indicated the following: “the Chamber considers that the Statute provides a three-phase approach in respect of challenges to admissibility. During the first phase, which runs until the decision on the confirmation of charges is filed with the Registry, all types of challenges to admissibility are permissible, subject to the requirement, for States, to make them at the “earliest opportunity”. In the second phase, which is fairly short, running from the filing of the decision on the confirmation of charges to the constitution of the Trial Chamber, challenges may still be made if based on the ne bis in idem principle. In the third phase, in other words, as soon as the chamber is constituted, challenges to admissibility (based only on the ne bis in idem principle) are permissible only in exceptional circumstances and with leave of the Trial Chamber.” [Prosecutor v. Katanga et al., ICC Trial Chamber II, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-1213-tENG, 16 June 2009, para. 49] 
    While it appears clearly from this pronouncement that the Chamber has defined the commencement of trial as the date at which the Trial Chamber is constituted, it should be noted that Trial Chamber III adopted a different approach. In the Bemba case, the Trial Chamber endorsed the view that the trial commences when “the evidence in the case is called and counsel - by speeches, submissions, statements and questioning - address the merits of the respective cases” [Prosecutor v. Bemba, ICC T. Ch. III, Decision on the Admissibility and Abuse of Process Challenges, ICC-01/05-01/08-802, 24 June 2010, paras. 210-211]. On this basis, it concluded that the admissibility challenge occurring after the constitution of the Trial Chamber and before the delivery of the opening statements should not be treated as exceptional in the sense of Article 19(4) of the Statute [Prosecutor v. Bemba, ICC T. Ch. III, Decision on the Admissibility and Abuse of Process Challenges,  ICC-01/05-01/08-802, 24 June 2010, paras. 210-211].

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(5)

[238] 5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 
Article 19(5) provides that the State challenging the admissibility of a case shall make the challenge at “the earliest opportunity”. Moreover, the Appeals Chamber rejected the argument put forward by Kenya that the “earliest opportunity” requirement implies that the State cannot be “expected to have prepared every aspect of its Admissibility Application in detail in advance of [the date of filing]” of the challenge [Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC A. Ch., Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ICC-01/09-02/11-274, 30 August 2011, para. 45]. Instead the Appeals Chamber clarified that “Article 19 (5) of the Statute requires a State to challenge admissibility as soon as possible once it is in a position to actually assert” that it is investigating the same case. Hence, the provision should not be understood as requiring “a State to challenge admissibility just because the Court has issued a summons to appear” [Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, ICC A. Ch., Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, ICC-01/09-02/11-274, 30 August 2011, para. 45].

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(6)

[239] 6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with Article 82.
Article 19(6) stipulates that the decisions with respect to jurisdiction or admissibility may be appealed before the Appeals Chamber in accordance with Article 82. Article 82(1)(a) of the Statute provides that either party may appeal "a decision with respect to jurisdiction or admissibility". Decisions with respect to jurisdiction or admissibility may be directly appealed by the parties to the proceedings (the Prosecution, the Defence or the State) before the Appeals Chamber, as opposed to other interlocutory appeals brought under Article 82(1)(b), which require prior leave from the first instance chamber. The Appeals Chamber has endorsed a narrow approach in interpreting the scope of Article 19(6), affirming that “the right to appeal a decision on jurisdiction or admissibility is intended to be limited only to those instances in which a Pre-Trial or Trial Chamber issues a ruling specifically on the jurisdiction of the Court or the admissibility of the case”. [Situation in the Republic of Kenya, ICC Appeals Chamber, Decision on the admissibility of the "Appeal of the Government of Kenya against the 'Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence'", ICC-01/09-78, 10 August 2010, para. 16]. The Chamber determined that the phrase “decision with respect to admissibility” requires “that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case. It is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility”. [Situation in the Republic of Kenya, ICC Appeals Chamber, Decision on the admissibility of the "Appeal of the Government of Kenya against the 'Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence'", ICC-01/09-78, 10 August 2010, para. 15]. 
    Proceedings on appeal do not constitute a mere continuation of proceedings before the Trial or Pre-Trial Chamber, but rather "a separate and distinct stage of the proceedings". They are corrective in nature and not de novo, conducted with the purpose of reviewing the proceedings at first instance [Prosecutor v. William Samoei Ruto et. al., ICC Appeals Chamber, Decision on the "Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber's Decision on Admissibility", ICC-01/09-01/11-234, 28 July 2011, para. 13]. The Appeals Chamber clarified that the proceedings on appeal are “determined by the scope of the relevant proceedings before the Pre-Trial Chamber”, which entails that the appellant may not rely on new facts which postdate the admissibility decision in support of its appeal [Prosecutor v. William Samoei Ruto et. al., ICC Appeals Chamber, Decision on the "Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber's Decision on Admissibility", ICC-01/09-01/11-234, 28 July 2011, para. 13].

Cross-reference:
Rule 60

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(7) and (8)

[240] 7. If a challenge is made by a State referred to in paragraph 2(b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with Article 17.
8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court:
(a) To pursue necessary investigative steps of the kind referred to in Article 18, paragraph 6;
(b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and
(c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under Article 58.

When a State makes a challenge to the admissibility of a case before the Court, Article 19(7) provides that the Prosecutor “shall suspend the investigation until such time as the Court makes a determination”. However, the Prosecutor may still seek a ruling from the Court: (a) to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available; (b) to take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and (c) in cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under Article 58. Pursuant to Rules 58 and 61 of the Rules of Procedure and Evidence, the Prosecutor request for provisional measures shall be considered ex parte and in camera, and the Pre-Trial Chamber shall rule on it expeditiously.

Cross-references:
1.  Rules 58 and 61 
2.  Regulation 38(2)(c)

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(9)

[241] 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge.
Article 19(9) specifies that the making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court before it was made. However, it should be noted that in Al-Senussi case, the Pre-Trial Chamber decided that the filing of an admissibility challenge allows the challenging State to postpone the execution of the surrender request pending the determination of the admissibility challenge in accordance with Article 95 of the Statute [Prosecutor v. Saif Al-Islam and Abdullah Al-Senussi, ICC Pre-Trial Chamber I, Decision on the postponement of the execution of the request for surrender of Saif Al-Islam Gaddafi pursuant to Article 95 of the Rome Statute, ICC-01/11-01/11-163, 1 June 2012, para. 37]. This decision was subsequently appealed and is currently under consideration by the Appeals Chamber.

Author: Mohamed Abdou

Updated: 30 June 2016

Article 19(10)

[242] 10. If the Court has decided that a case is inadmissible under Article 17, 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 under Article 17.
Under Article 19(10), the prosecutor may submit a request for the review of the admissibility decision after being satisfied “that new facts have risen which negate the basis on which the case had previously been found inadmissible under Article 17 by the Court. Such a request shall be presented to the Chamber that made the ruling on admissibility, in accordance with the provisions of Rules 58, 59 and 61. The state or states that initially presented the challenge to admissibility shall be notified within a specified time limit to make their representations.
   No application has been submitted by the Prosecution pursuant to Article 19(10) before the Court. In a recent decision on the admissibility of the case against Abdullah Al-Senussi, Pre-Trial Chamber I decided that the case against the defendant was inadmissible before the Court. Despite this finding, the Chamber observed that the Prosecutor may still submit a request for review of the decision in accordance with Article 19(10) [Prosecutor v. Saif Al-Islam and Abdullah Al-Senussi, ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, ICC-01/11-01/11-466-Red,11 October 2013, para. 312]. 
    The language of Article 19(10) demonstrates that admissibility assessment is not static, but must take into consideration the possible changes of circumstances that may have occured over time. The Appeals Chamber explained that “the admissibility of a case under Article 17 (1)(a), (b) and (c) of the Statute depends primarily on the investigative and prosecutorial activities of the States having jurisdiction. These activities may change over time. Thus, a case that was originally admissible may be rendered inadmissible by a change of circumstances in the concerned State and vice versa”. [Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC Appeal Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/04-01/07-1479 OA 8, 25 September 2009, para. 56]. In relation to Article 19(10), the Appeals Chamber stated that “the provision is clear evidence that the Statute assumes that the factual situation on the basis of which the admissibility of a case is established is not necessarily static, but ambulatory”. [Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC Appeal Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case,  ICC-01/04-01/07-1479 OA 8, 25 September 2009, para. 56].

Cross-references:
Rules 62 and 185

Doctrine:

  1. John T. Holmes, "The Principle of Complementarity", in Roy S. Lee (Ed.), The International Criminal Court, The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 41–43, 50, 60–65.
  2. Charles Jalloh, "Kenya vs. The ICC Prosecutor", Harvard International Law Journal Online, vol. 53, 2012, p. 237.
  3. William A. Schabas, The International Criminal Court, A Commentary on the Rome Statute, Oxford University Press, 2010, p. 361-372.
  4. William W. Burke-White/Scott Kaplan, "Shaping the Contours of the Domestic Justice: The ICC and the Admissibility Challenge in the Uganda Situation", in Carsten Stahn and Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, Leiden, 2009, pp. 79-114. 
  5. Mohamed El Zeidy, "From Primacy to Complementarity and Backwards: (Re-)Visiting Rule 11 bis of the Ad hoc Tribunals", International & Comparative Law Quarterly, vol. 57, 2008, pp. 403 – 415.
  6.  Jann K. Kleffner, "The Impact of Complementarity on National Implementation of Substantive International Criminal Law", Journal of International Criminal Justice, vol. 1, no. 1, 2003, pp. 86-113.
  7. William W. Burke-White, "Implementing a Policy of Positive Complementarity in the Rome System of Justice", Criminal Law Forum, vol. 19, no. 1, 2008, pp. 59-85.
  8. Carsten Stahn, "Libya, the International Criminal Court and Complementarity: A Test for ‘Shared Responsibility", Journal of International Criminal Justice, vol. 10, no. 2, 2012, pp. 235–349.
  9. William A. Schabas, "Prosecutorial Discretion and Gravity", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, Leiden, 2009, pp. 229-246. 
  10. Ruth B. Philips, "The International Criminal Court Statute: Jurisdiction and Admissibility", Criminal Law Forum, vol. 10, no. 1, 1999, pp. 61 - 85.

Author: Mohamed Abdou

Updated: 30 June 2016

Article 20

[243] General Remarks
1. Background to Ne Bis in Idem
The principle that a person should not be prosecuted more than once for the same criminal conduct, reflected in the maxim ne bis in idem and also referred to as the rule against double jeopardy, is found among legal systems throughout the world [e.g., Cherif Bassiouni (1993), who surveys approximately fifty national constitutions containing the principle]. The phrase is derived from the Roman law maxim nemo bis vexari pro una et eadam causa (a person shall not be twice vexed or tried for the same cause). The term ‘double jeopardy’ is derived from the wording of the Fifth Amendment to the Constitution of the United States of America, which states, inter alia, ‘‘[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb’’. It is the criminal law version of a broader principle aimed at protecting the finality of judgments and reflected in the doctrine res judicata [Theofanis, (2003)]. Although differing views can be found among writers and publicists, a substantial body of opinion has held to the view that the principle of ne bis in idem has not been recognised as a rule of custom, although there is somewhat more support for the rule as a general principle of international law. In the context of extradition law, ne bis in idem is more generally accepted as a rule of public international law, particularly as between the requested and requesting state where a prior prosecution and/or sentence has been imposed in the former (as opposed to where a prior prosecution took place in a third state) [Oehler (1999), pp. 617-618]. Support also exists, however, fo the contray view in relation to third states, i.e., the view that ne bis in idem is not a rule of international law apart from treaty provisions where the prior trial has occurred in a third state [for example, the judgment of the German Federal Constitutional Court in BverfGE 75, 1 2 BvM 2/86. It can also be argued that an identifiable core of ne bis in idem can be found in international practice as a basis of a customary rule or general principle [Conway (2003)]. Article 20 provides for ne bis in idem to apply both to prior proceedings by the ICC itself (Article 20(1)-(2)) and, somewhat more qualifiedly, to proceedings before national courts related to the same conduct (Article 20(3)). 
    In the context of the ICC, ne bis in idem can be seen as an aspect of the general issue of the complementarity of the jurisdiction of the ICC to the jurisdiction of national courts. The wording of Article 20 of the Rome Statute, on ne bis in idem, closely reflects the wording of Article 17 on admissibility. Article 17 and Article 20 together implement the principle of complementarity and, logically and as indicated by the practice of the ICC (see below), should be dealt with as a preliminary issue [generally see Kleffner (2008), pp. 99-120; El-Zeidy (2008), pp. 239 et seq, 284-286]. Complementarity was seen as a necessary limitation on the powers of the ICC in order to induce states to accept the limitations on their sovereignty that flow from ratification of the Rome Statute [UN Doc. A/51/22 (1996), paras. 153–178]. The ICC is permitted to exercise jurisdiction where national authorities have decided not to prosecute where the decision not to prosecute resulted from an inability or unwillingness of the state concerned to pursue investigation or prosecution (Article 17(2)(a)-(b)) or where a prior national proceeding was for the purpose of shielding a person or was not conducted independently (Article 20(3), cross-referenced in Article 17(2)(c)), Article 17(2) is reflected in the grounds of inadmissibility under Article 17(1), which essentially is the converse of Article 17(2), except that Article 17(1) refers also to ne bis in idem and to a situation where there are grounds of insufficient gravity (Article 17(1)(d)). In Prosecutor v. Saif Al-Islam Gadaffi and Abdullah Al-Senussi, the Appeals Chamber noted that “As the two provisions contain such similar language it is reasonable to assume that they were intended to have the same meaning” [Prosecutor v. Saif Al-Islam Gadaffi and Abdullah Al-Senussi, No. ICC-01/11-01/11 OA 6, Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled "Decision on the admissibility of the case against Abdullah Al-Senussi", ICC-01/11-01/11-565, 24 July 2014, para. 222]. The connection between the jurisdiction of the ICC and ne bis in idem means that Article 20 is “the last safeguard in allocating the tasks of national and international criminal justice according to the notion of complementarity” [Tallgren & Coracini (2008), p. 672].
  The reference to the “the Court” in Article 20 indicates that it is a vertical or ‘upward’ ne bis in idem provision, i.e. it bars prosecution by the ICC for conduct previously tried by the ICC, rather than applying ne bis in idem in a horizontal or ‘downward’ way regarding trials of conduct by other courts [on this terminology, see Ven Den Wyngaert & Ongena (2002), pp. 723-724; Kleffner (2008), p. 119]. However, implicitly, a horizontal application of ne bis in idem is applied in so far as the ICC is barred from prosecuting for the same conducts proscribes under Articles 6,7 or 8 of the Statue unless a previous national trial has been for the purpose of shielding a person or not conducted independently or impartially (Article 20(3)) [Kleffner (2008), p. 119]. Curiously, the wording does present the possibility that a prior trial before a different international court or tribunal would not exclude ICC jurisdiction under Article 20, e.g. if a future international court with jurisdiction over international terrorism were to be established where terrorist offences might overlap with offences within the jurisdiction of the ICC [on an international court for terrorism, see De La Rasilla (2017)].
   Bassiouni notes that a general understanding behind the adoption of the Rome Statute was that contracting States would enact similar crimes to those in Article 5 of the Rome Statute in their national legislation, as otherwise, States will find it difficult to exercise their rights regarding complementarity. The possibility also exists, however, for the ICC to forgo its jurisdiction where a national court tries somebody for a lesser crime than those in Article 5, e.g. a national court tries somebody for murder. He notes that “Article 20’s ne bis in idem limitation supports such an approach, relying more on the similarity of the facts upon which a previous prosecution occurred than on the identity of the charges” [Cherif Bassiouni (2005), p. 100]. Further, it seems that Article 20 would actually automatically prevent an ICC trial after a national trial relating to the same facts or conduct due to the phrasing in Article 20(3) ‘conduct also proscribed under Árticle 6, 7 or 8’, which applies ne bis in idem irrespective of the classification of the crime under national law [Kleffner (2008), pp. 119-120], although the formulation is perhaps ambiguous as to whether it applies ne bis in idem in concreto or in abstracto. A problem could arise whereby a national court charges an accused with a relatively minor offence (e.g. assault), in order to seek to activate Article 20 and prevent a trial by the ICC for more serious conduct [see e.g., Turlan (2005), p. 4]. This is an example of a problem in general with the application of ne bis in idem to convictions in another jurisdiction [Conway (2003), p. 239], but it can be addressed by adopting an interpretation of Article 20(3)(a) that such a prosecution for a minor offence is in reality an attempt to shield an accused from criminal responsibility for crimes within the jurisdiction of the ICC. i.e. the concept of ‘shield’ under Article 20(3) is to be interpreted in conjunction with the rest of the sentence so that prior proceedings are a shield if their purpose is to prevent the gravity of the crimes within the jurisdiction of the ICC being prosecuted against an accused. This may be especially necessary because the Rome Statute as adopted does not distinguish between international crimes and ordinary crimes (discussed further below).
 
2. In concreto and in abstracto applications of ne bis in idem
A central issue in the jurisprudence and literature on ne bis in idem is whether the principle operates to prevent further prosecution on the same facts or cunduct (Article 20 uses the term'conduct') as formed the basis of an existing conviction or acquittal (i.e., an in concreto application, relating to the identity of the conduct) or if only further prosecution for the same offence or legal head of liability is prohibited (i.e., an in abstracto application, relating to the legal identity of the offences). The latter limits the scope of the principle in that the same set of facts could ground a further prosecution so long as the subsequent prosecution charges the accused with a different offence. The Anglo-Saxon tradition has been to apply the ne bis in idem principle in abstracto, i.e. more narrowly, whereas many continental or civil law countries reflect the principle in concreto, i.e. more broadly. The practical difference between the two views could be lessened by the adoption of a ne bis poena in idem rule applied in concreto where ne bis in idem as such or is not accepted is only applied in abstracto. Article 20 of the Rome Statute contains a mixture of ne bis in idem in concreto and in abstracto.  An in concreto formulation is used in Article 20(1), so that the ICC itself may not try an accused regarding the same conduct that formed the basis of a previous acquittal or conviction before the ICC. This seems to exclude the possibility that successive prosecutions could take place before the ICC relating to the same facts, but with a different crime being charged, over which the ICC has jurisdiction, in each prosecution, although the expression ‘conduct which formed the basis of crimes’ is perhaps ambiguous as to in concreto and in abstracto applications. Under Article 20(2), an in abstracto rule clearly applies to other courts (presumably this applies to both national and international courts other than the ICC): they may not try a person for the same crimes for which the person has already been tried before the ICC.  In contrast, under Article 20(3), the ICC may not exercise jurisdiction relating to the same facts, an in concreto rule, as have been the subject of a national trial and, it seems, any national trial, irrespective of where it was [Cherif Bassiouni (2005), p. 160], in a contracting State or otherwise.
   Ne bis poena in idem is a related or corollary principle to that of ne bis in idem and is to the effect that sentencing and penalties already served or paid by an accused for the same offence or set of facts should be discounted when a subsequent penalty is imposed that relates to the same offence or facts. Unlike Article 9(3) of the Statute of the Special Tribunal for Lebanon does not contain a ne bis poena in idem provision [established by Security Council resolution 1315/2000, UN Doc. S/Res/1315 (2000)], the Rome Statute does not provide for ne bis poena in idem.

3. Comparing the Rome Statute with the Statutes of the International Criminal Tribunals
A further feature distinguishing the approach in the Rome Statute and from the Statutes of the ad hoc tribunals is the inclusion in the latter and not in the Rome Statue of the concept of ‘‘ordinary crimes’’: the international tribunals are prohibited from retrying someone if the accused has already been tried for acts constituting serious violations of international humanitarian law except where the act for which he or she was tried was characterised in the national court as an ordinary crime (or where the national trial was essentially a show trial). The Rome Statute eventually omitted the first exception relating to ordinary crimes, confining itself in Article 20 to the ‘show trial exception’, because of disagreement at the negotiations as to the compatibility of the ‘‘ordinary crimes’’ rule with the underlying ne bis in idem protection [Holmes (1999), pp. 57– 58]. It seems that arguments made in favour of including the exception because the characterisation of a crime as an international one had a particular deterrent or retributive effect (greater than that associated with a conviction for ordinary crimes) were rejected [Holmes (1999), p. 58]. The effect is that the Rome Statute applies ne bis in idem largely in concreto to prior national trials, i.e. more fully, and that the international criminal tribunals apply it in abstracto (except for the Special Tribunal for Lebanon).
   In another way, the Rome Statute can be seen as restricting ne bis in idem [see the discussion in Finlay (2009), pp. 221-248]. The reason for this is that the ICC has jurisdiction under the complementarity principle where there has already been a trial, but where the proceedings (a) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the ICC or (b) otherwise were not conducted independently or impartially. In other words, complementarity in effect institutes a qualified ne bis in idem principle. However, this is so in the case of most jurisdictions, given the end to ensure that the guilty are punished [Finlay (2009), p. 224], i.e. ne bis in idem is quite often qualified in some way. Given the seriousness of the crimes over which the ICC has jurisdiction, the moral outrage felt against the accused is likely to be stronger than is the case with ordinary crimes, which increases the importance of ensuring the guilty are brought to justice [Finlay (2009), p. 227].
   The reason for the inclusion of ne bis in idem in the Rome Statute are similar to its operation at national level, albeit that the relationship with national courts in the context of State sovereignty is an additional consideration [Finlay (2009), p. 226 (one dealt with by the complementarity principle in the context of the ICC): consideration of fairness to an accused being the primary consideration. A second trial disadvantages an accused in several respects: i. it subjects the accused to continued and more prolonged anxiety of punishment; ii. it may undermine the defence by allowing the prosecution more advance notice of what will likely be raised by the defence at trial; iii. it puts further strain on the resources of the accused to sustain a defence at trial, and iv. it increases the risk of an innocent person being convicted [Finlay (2009), p. 223, citing Justice Black in Green v. United States, 355 U.S. 184, 187-88 (1957) on points i. and iv. in particular]. Other reasons for ne bis in idem include judicial economy in avoiding repeated trials of the same conduct, the importance of finality and certainty as to the outcome of legal proceedings, and the incentivising of thorough investigations and prosecutions (because the police and prosecutors will only get one opportunity of a trial) [Finlay (2009), p. 226].
   As Kittichaisaree observes, a notable feature of the Rome Statute is that Article 20 appears in Part 2, on jurisdiction, admissibility, and applicable law, rather than Part 3, on general principles of criminal law (in which, inter alia, grounds for excluding criminal responsibility are set out in Article 31) [Kittichaisaree (2001), p. 29] (the Statute of the Special Court for Sierra Leone is not organised into parts). However, this is not necessarily because ne bis in idem is not a ‘general principle of criminal law’ in the broad sense of a general principle used in Article 38(c) of the Statute of the International Court of Justice. As Kittichaisaree notes, the placing of the ne bis in idem provisions in the Statute reflects the fact that ne bis in idem is so closely related in the scheme of the Statute to admissibility; it is a procedural bar to the ICC’s jurisdiction (rather than a ground for excluding responsibility) [Kittichaisaree (2001), p. 29]. More critically, Bassiouni comments:

Finally, there is no valid methodological explanation for the separation and placement of the provisions concerning the presumption of innocence (Article 66) in Part 6 and the provisions concerning ne bis in idem (Article 20) and the applicable law (Article 21) in Part 2. All of these provisions properly belong in Part 3 of the Statute, which deals with the general principles of criminal responsibility. [Cherif Bassiouni (2005), p. 85]

La Rosa points out that the admission of evidence of conduct that has sustained prior convictions, on the basis that it is evidence of a consistent pattern of conduct, may result in a violation of ne bis in idem in that the same evidence could ground further convictions [La Rosa (1997), p. 323]. However, given that the ICC chambers will be staffed by professional and experienced judges, the likelihood that the prejudicial effect of such evidence will unfairly tilt the Court’s findings against the accused is arguably less than is the case in a jury system (the general rationale for the exclusion of character evidence in the common law tradition, as noted above, relates to the role of the jury as triers of fact). One possible approach to the issue would be to admit such evidence, but not to treat it as being alone a sufficient basis for a conviction, other accompanying or corroborating evidence being necessary. Adoption of such an approach in the ICC and other international criminal tribunals, coupled with the role of the judges as arbiters of fact, could ensure that an exaggerated significance is not attributed to evidence that has sustained a prior conviction or that such evidence might be used to compensate for a lack of compelling evidence in a current case [see generally Bogdan (2002); Conway (2003b), pp. 377-382].

Preparatory Works 
Ne bis in idem
as it is referred to now Article 17(1)(c) was omitted from the 1994 Draft Statute prepared by the International Law Commission, as it was considered to be a self-evident principle, but was included in the final Statute subsequently for the sake of clarity after the 1998 Preparatory Committee raised the issue [Tallgren & Reisinger Coracini (2008), p. 68].
   Trial Chamber II in the case of Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui provided an explanation of the drafting process regarding ne bis in idem:

Originally, the ne bis in idem principle was not included in Article 35 (current Article 17) of the Draft Statute for an International Criminal Court. The only reference to ne bis in idem was contained in Article 42 of the Draft Statute (current Article 20), which followed Article 41, which became the current Article 67, which defined the rights of the accused, in Part V “The Trial”.  This belated inclusion of the ne bis in idem principle in Article 17(1)(c) as a basis for challenging admissibility is therefore explained essentially by the need to protect the rights of the accused, in contrast to sub-paragraphs (a), (b) and (d) of the same Article, the purpose of which is to safeguard the sovereign rights of States and to ensure the cases brought before the Court are of sufficient gravity. Moreover, it should be recalled that the ne bis in idem principle is defined in Article 20 to which Article 17(1)(c) only makes reference. [Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), ICC-01/04-01/07-1213-tENG, 16th June 2009, para. 48]

Tallgren & Coracini note that during the last session of the Preparatory Committee in 1998, Article 20(2) was worded so as to include subsequent trials “for conduct constituting a crime referred to in Article 5”, i.e. a broader in concreto application. The committee changed the wording to ensure that a State could charge a person with a crime relating to the same conduct forming the basis of an ICC conviction, i.e. a narrower in abstracto application.  A number of delegations objected “that the proposed additions would undermine the protection of ne bis in idem completely”. [Tallgren & Coracini (2008), p. 686 and further references therein]

Author:
Gerard Conway

Updated:
15 August 2017

Article 20(1) - Except as provided in this Statute

[244] 1. Except as provided in this Statute,
This makes it clear that ne bis in idem is without prejudice to the appeals and revisions that are provided for under Part VIII of the Rome Statute [Finlay (2009), p. 229].

Author:
Gerard Conway

Updated:
15 August 2017

 

 

Article 20(1) - no person shall be tried...

[245] no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.
One of the main issues of interpretation that arises here is the meaning of acquittal, at what stage in proceedings is a person considered to be acquitted. In theory, it might be argued that anytime a prosecution is ceased, there is an acquittal, even if the prosecution is terminated prior to the trial of the merits occurring. The issue is yet to be decided, but has been addressed in submissions to the ICC (see caselaw in the comment on Article 20(3)(b)).

Author:
Gerard Conway

Updated:
15 August 2017

 

 

Article 20(2)

[246] No person shall be tried by another court for a crime referred to in Article 5 for which that person has already been convicted or acquitted by the Court
Article 20(2) prevents a person convicted or acquitted by the ICC from being subsequently tried by another court only for the offenses for which he has already been convicted or acquitted by the ICC. Thus, unlike the provision regarding prior national trials in Article 20(3), subsequent national trials are only subject to ne bis in idem in abstracto, i.e. a national court may try an accused for the same conduct, but just not for the same offence that formed the ICC conviction. As Finlay notes, this also means that a national court could try an accused for an offence under Article 5 of the Rome Statute, so long as that offence had not formed the ICC conviction, e.g. a national court could try for a crime against humanity, after an accused has been convicted for genocide before the ICC [Finlay (2009), p. 230]. This reflects that the crimes over which the ICC has jurisdiction have a very specific mens rea [Finlay (2009), p. 231], which cannot be assimilated to the mens rea of ordinary crimes. If ne bis in idem prevented subsequent national trials on an in concreto basis, there could occur a gap in prosecution, because evidence of mens rea for an Article 5 crime was found to be insufficient at trial before the ICC, but any national prosecution for a ‘lesser’ crime would still be prevented [Finlay (2009), p. 232].
  A practical issue that may arise is the scenario whereby national proceedings, whether investigation or prosecution, would commence while ICC proceedings were ongoing, i.e. where the ICC proceedings had not yet resulted. This is not addressed in Article 20(2). The issue has been raised in submissions of the prosecutor and the Libyan government in its submission in Prosecutor v. Saif Al-Islam Gadaffi and Abdullah Al-Senussi. The Libyan government, for example, noted that this involved a degree of speculation as to what is likely to be the result of both processes and that the test of this issue must be undertaken in a manner appropriate to the stage reached at the time of the admissibility assessment by both the domestic and the international processes and, further, that the question must be whether the co-existence of both the international and the domestic processes could violate the principle of ne bis in idem. Applying this test, it concluded that only where the domestic prosecution has reached a verdict could there be a question of the violation of ne bis in idem [The Libyan Government’s further submissions in reply to the Prosecution and Gaddafi Responses to ‘Document in Support of Libya’s Appeal against the Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, Prosecutor v. Saif Al-Islam Gadaffi and  Abdullah Al-Senussi, ICC-01/11-01/11-454-red, 23rd September 2013, paras. 32-34 (without citing any authority)]. In its response, the Prosecutor commented that it did not wish to rely on ne bis in idem, but that jurisprudence related to ne bis in idem may be of assistance given the close interlink between ne bis in idem and the complementarity provisions, their common function in determining forum allocation and, most notably, the similarity in the inquiry regarding whether the two cases are indeed “the same”, and what “same” means [Prosecution Response to ‘The Libyan Government’s further submissions in reply to the Prosecution and Gaddafi Responses to Document in Support of Libya’s Appeal against the Decision on the admissibility of the case against Saif Al-Islam Gaddafi’, Prosecutor v. Saif Al-Islam Gadaffi and  Abdullah Al-Senussi, 30 September 2013, paras. 43-45 (without citing any authority)].

for which the person has been convicted or acquitted
As with Article 20(1), the main issue of interpretation here under Article 20(2) is what stage an accused could be said to be acquitted. At what stage or point must be reached for a prior ICC proceeding to trigger Article 20, e.g. if the case is dealt with by the Pre-Trial Chamber only, or is withdrawn by the prosecutor during the trial stage, i.e. before the trial chamber? This awaits a judgment from the Appeals Chamber itself, but in 2014, parties to the proceedings, including the prosecution, have argued that ne bis in idem applies only if there is a decision on the merits of the case resulting in a verdict of conviction or acquittal, and not at the confirmation stage before the Pre-Trial Chamber [Prosecutor v. Uhuru Muigai Kenyatta, Prosecutors' Submissions on the Ne Bis In Idem Principle, ICC-01/09-02/11, 10 February 2014; Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-02/11, 10th February 2014; Victims’ Observations on the Ne Bis In Idem Principle,  ICC-01/09-02/11, 17 February 2014]. For example, in Uhuru Muigai Kenyatta, the prosecutor noted that Article 20 should “apply only to res judicata and not to proceedings discontinued for technical reasons” [Prosecutors’ Submissions on the Ne Bis In Idem Principle, Prosecutor v. Uhuru Muigai Kenyatta, p. 5, citing 1996 Preparatory Committee Report, Volume I, art, 42, para. 170]. This argument was supported by the Trial Chamber in December 2014 and March 2015, when the prosecutor withdrew charges following a direction from the Trial Chamber (in December 2014) to withdraw the charges or provide an indication that the evidentiary base had improved to a degree which would justify proceeding to trial. In its decision of December 2014, it had noted the principle of ne bis in idem would not attach, and it would be open to the prosecution to bring 'new charges against the accused at a later date, based on the same or similar factual circumstances, should it obtain sufficient evidence to support such a course of action' [Prosecutor v. Uhuru Muigai Kenyatta, Decision of 3 December 2014, ICC-O 1/09-02111-981, para. 56, cited in Decision of 13 March 2015, ICC-0l/09-02/11, para. 9]
  A further issue is what significance attaches to Rule 150(1) of the Rules of Procedure and Evidence, according to which a conviction becomes non-appealable 30 days after notification of the decision or sentence. The same issue arises here, to use terminology from the USA, as to when ‘jeopardy attaches’: is it immediately upon conviction or acquittal or 30 days after when the possibility of appeal ceases? Tallgren & Coracini note that the wording of Article 20(1) excludes ne bis in idem regarding appeals and revisions under Chapter VIII because it only prevents a person from being subsequently tried before the ICC “except as provided in this Statute”.  This wording would be superfluous if ne bis in idem only applied when a judgment become ‘final’, or non-appealable.  Tallgren & Coracini note that this interpretation strengthens the ne bis in idem protection for an accused [Tallgren & Coracini (2008), pp. 683-684], i.e. in relation to subsequent national trials relating to the same conduct.

Author:
Gerard Conway

Updated:
15 August 2017

Article 20(3)

[247] No person who has been tried by another court for conduct also proscribed under Article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
The main interpretative issue here relates to interpreting the ‘same conduct’. No jurisprudence from the ICC exists on this issue to date. It has been the subject of submissions in Prosecutor v. Saif Al-Islam Gadaffi and Abdullah Al-Senussi (noted above). Essentially, this appears to be a question of fact. One approach may be to apply a Blockburger-style approach. In United States v. Blockburger [284 US 299 (1932)], the United States Supreme Court held that multiple convictions can be imposed under different statutory provisions if each statutory provision re- quires proof of a fact which the other does not. The Blockburger test was confirmed in Rutledge v. United States [517 US 292 (1996)]. Applied to the same conduct scenario here, the issue is whether the same conduct could supply the elements of an offence both before the ICC and at national level. This latter test is potentially less demanding than a ‘same conduct test’ [see, e.g. the discussion in Carter (2010), p. 171], but would depend on how ‘same conduct’ was characterised, narrowly or broadly, and the two approaches could run into each other.
   The distinction between prior conduct and prior offences, i.e. between in concreto and in abstracto applications of ne bis in idem, was confirmed in Prosecutor v. Katanga [Prosecutor v. Germain Katanga, Decision pursuant to Article 108(1) of the Rome Statute, No.: ICC-01/04-01/07 7 April 2016] by the Presidency decision on the scope of Article 108(1) of the Rome Statute. Article 108(1) of the Statute provides that “[a] sentenced person in the custody of the State of enforcement shall not be subject to prosecution or punishment … for any conduct engaged in prior to that person’s delivery to the State of enforcement, unless such prosecution [or] punishment … has been approved by the Court at the request of the State of enforcement”. Article 108(3) provides that this provision ceases to apply if a sentenced person, inter alia, remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court. The Presidency decided that it should apply Article 108(1) in conjunction with Article 20(2), and that in doing so it could not widen the scope of the latter, which only prohibits trial for a crime referred to in Article 5 for which that person has already been convicted or acquitted by the Court and does not prohibit trials for conduct within the ambit of the ICC’s investigations. In other words, when the Presidency considered, under Article 108(1), whether the prospective prosecution of Mr. Katanga could offend the principle of ne bis in idem, it did so by reference only to the content of that rule specified in Article 20(2) [ibid, para. 23], the interpretation of which was not changed by Article 108. This approach reflects a combination of textual and systemic principles and clearly follows the wording and scheme of the Statute.

Author:
Gerard Conway

Updated:
 15 August 2017

Article 20(3)(a)

[248] (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or
This is amongst the more difficult provisions in the Statute to define. It essentially relates to the intention of prosecuting or judicial authorities, which essentially a subjective matter of the state of mind of national authorities. It is unlikely that national authorities would make explicit any intention that national proceedings were be essentially a sham to protect the accused. Thus, it seems that evidence to satisfy this provision would only emerge accidentally or without it being intended by the national authorities involved. As with almost any legal provision, Article 20(3)(a) can be interpreted narrowly or broadly. Here, the narrowness or breadth would seem to depend on what threshold of evidence is required to trigger Article 20(3)(a). By analogy with common law authority on bias as a breach of natural justice, for example, it could be interpreted quite broadly as applying where a reasonable apprehension [e.g.  R v. Gough [1993] AC 658, 668, 670 [1993], 2 All ER 724] could exist that national proceedings were for the purpose of shielding an accused and to allow circumstantial evidence to support this.

Author:
Gerard Conway

Updated:
15 August 2017

Article 20(3)(b)

[249] (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.
Compared to Article 20(3)(a), this is a more objective test. As with that provision, it is open to broader or narrower interpretations. A broad interpretation would allow strict scrutiny of national procedural law to determine its compliance with due process. However, given that the ICC itself is a product of different national legal traditions and has many compromise elements in its procedure, it is more likely that the ICC would apply an approach based on minimum notions of due process reflected in international legal instruments.

Caselaw
Ne bis in idem could arise at various stage of the trial process before the ICC. The Pre-trial Chamber may need to address the issue or it may be raised later by the defence so that the Trial Chamber itself must address it. The Appellate Chamber will ultimately decide on issues of interpretation. To date, the Trial Chambers or Appellate Chamber have not fully dealt with Article 20, but submissions to the ICC in pending cases have been referred to above.
   Case law from the Trial Chambers has dealt with the procedural question of when ne bis in idem should be raised. In Prosecutor v. Mathieu Ngudjolo Chui, the Trial Chamber held that once a trial chamber has been set up, ne bis in idem should only be raised exceptionally and with the permission of the Trial Chamber itself. This indicates that ne bis in idem should normally be dealt with by the Pre-Trial Chamber [The Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-01/07 (2007), Judgment of Trial Chamber II, 12th June 2009, page 4; see also The Prosecutor b. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Decision on the Admissibility and Abuse of Process Challenges, ICC-01/05-01/08-802, 24 June 2010, para. 209].

Cross-references:
Article 17(1)(c)
Article 108
Rule 168

Doctrine:

  1. Attila Bogdan, "Cumulative Charges, Convictions and Sentencing at the Ad Hoc International Tribunals for the Former Yugoslavia and Rwanda", Melbourne Journal of International Law, vol. 3, 2002, pp. 1-32.
  2. Linda E. Carter, "The Principle of Complementarity and the International Criminal Court", Santa Clara Journal of International Law, vol. 8, no. 1, 2010, pp. 165-198.
  3. M. Cherif Bassiouni, "Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions", Duke Journal of Comparative & International Law, vol. 3, 1993, pp. 235-297.
  4. M. Cherif Bassiouni, The Legislative History of the International Criminal Court:  Introduction, Analysis, and Integrated Text, Transnational Publishers, Hardsley, New York, 2005
  5. Gerard Conway, "Ne Bis in Idem in International Law", International Criminal law Review, vol. 3, no. 3, 2003, pp. 217-244 (Conway (2003a)).
  6. Gerard Conway, "Ne Bis in Idem and the International Criminal Tribunals", Criminal Law Forum, vol. 14, 2003, pp. 351-383 (Conway(2003b)).
  7. Ignacio de la Rasilla, ‘An International Terrorism Court In Nuce in the Age of International Adjudication’, Asian Yearbook of Human Rights and Humanitarian Law, vol. 1, 2017 (forthcoming)
  8. Mohamed El-Zeidy, "The Principle of Complementarity in International Criminal Law: Origin, Development and Practice", Brill, The Hague, 2008.
  9. Lorraine Finlay, "Does the International Criminal Court Protect Against Double Jeopardy: An Analysis of Article 20 of the Rome Statute", University of California Davis Law Review, vol. 15, no. 2, 2009, pp. 221-248, p. 222.
  10. John T. Holmes, "The Principle of Complementarity", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results, Kluwer Law International, The Hague, 1999.
  11. Michael G. Karnavas, ‘Amnesty Part III: Ne Bis in Idem in International Criminal Law’, International Criminal Law Blog, at < http://michaelgkarnavas.net/blog/2016/08/01/amnesty-part-iii/ >  
  12. Kriangsak Kittichaisaree, International Criminal Law, Oxford University Press, Oxford, 2001.
  13. Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions, Oxford University Press, Oxford, 2008.
  14. Ann-Marie La Rosa, "A Tremendous Challenge for the International Criminal Tribunals: Reconciling the Requirements of International Humanitarian Law with Those of Fair Trial", International Review of the Red Cross, 1997, pp. 635, 637–642.
  15. Dietrich Oehler, "The European System", in M. Cherif Bassiouni (Ed.), International Criminal Law: Procedural and Enforcement Mechanisms, Second Edition, Transnational Publishers, Berlin, 1999.
  16. Jean Paul Pierini, ‘The Ne Bis in Idem Principle and Alleged Drifts in the International Practice: The “Mistrial Without Prejudice” in the Kenyan ICC Cases’, University of Catania Online Working Paper no. 78 (2016)Immi Tallgren/Astrid Reisinger Coracini, "Article 20: Ne bis in Idem", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Momos, München/Oxford/Baden-Baden, Nomos, Baden-Baden, 2008, pp. 669-699.
  17. Tijana Surlan, ‘Ne Bis in Idem in Conjunction with the Principle of Complementarity in the Rome Statute’, European Society of International Law, 2005, at <   www.esil-sedi.eu/sites/default/files/Surlan_0.PDF >
  18. Rosa Theofanis, "The Doctrine of Res Judicata in International Criminal Law", International Criminal Law Review, vol. 3, no. 3, 2003, pp. 195-216.
  19. Christine Van Den Wyngaert/Tom Ongena, "Ne Bis in Idem Principle, including the Issue of Amnesty", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002.

Author:
Gerard Conway

Updated: 
15 August 2017

Article 21(1)

[250] Applicable law
General Remarks
Article 38(1) of the Statute of the International Court of Justice ('ICJ') is often viewed as a provision that enumerates the “well-established sources of international law” (Prosecutor v. Kupreškić et al., Judgement, TC, ICTY, 14 January 2000, para. 540). There treaty law, customary international law (‘CIL’) and general principles of law are named as the primary sources of international law, and judicial decisions and the doctrine as subsidiary means for the determination of rules of law. Early on the drafters of the ICC Statute, however, felt a need for a special provision on applicable law for the ICC (see further e.g., Schabas, 2010, pp. 383-385). The outcome was Article 21 of the Rome Statute, which includes both ICC-specific (internal) sources of law (Article 21(1)(a) and 21(2)) and general international (external) sources of law (Article 21(1)(b)-(c)) (Bitti, 2009, pp. 288 and 293). The aim of the Article was to modify the applicable law to better suit the criminal law context in which the Court operates (M. deGuzman, 2016, p. 933). This was mainly achieved by enhancing the legal relevance of the Court’s internal written sources of internation law. As the ad hoc tribunals apply the general sources of international law and the ICC follows its Article 21, the applicable law is a part of international criminal law where the law is fragmented. In contrast to the ICTY and ICTR statutes which “are retrospective and [...] not themselves [substantive criminal] law” but “rather, pointers to a law existing in some form in the rarefied sphere of
international law” (Zahar & Sluiter, 2008, p. 80), the Rome Statute is a non-retroactive written instrument
which aim is to function as a code of criminal law and procedure. As such, the roles played
by the internal and the external sources of law are different before the ICC and the ad hoc tribunals.
      Article 21 focuses on enumerating and ranking the applicable legal sources, rather than on elaborating how they should be identified (especially relevant in connection to non-written sources of law) or interpreted (especially relevant in connection to written sources of law). This entails that there are many aspects of the applicable law that still requires recourse to general international law. General international law, for example, guides how CIL and general principles of law should be identified. The relationship between the international sources of law is complicated as the same evidence (most notably State practice. in the form of national legislation and case law) is used to establish both CIL and general principles of law. Treaty law also has a connection to CIL, as treaty ratification is a form of State practice. The inclusion of external sources of law in Article 21 signifies that these complex relationship between the international source of law also part of the ICC system of applicable law. In this regard, Cryer has noted that the "interrelationship of sources is more complex than Article 21's apparently rigid hierarchy implies" as "the overlap between the sources is too complex to reduce to simple formulae, including reference to hierarchy" (Cryer, 2009, pp. 393-394).
    It schould also be observed that, Article 21 does not explicity address the legal relevance of all types of material used in legal argumentation Before the ICC. Article 21 is, for instance, quiet on the legal weight of international case law, the writings of highly qualified publicists, travaux prepratoires, and instruments adopted by international organizations, such as UN General Assembly resolutions. There are also ICC internal legal instruments, such as the Regulations of the Court, which legal position is not explicitly addressed in Article 21. Likewise, for example, the official actions taken by the ICC Assembly of States Parties are not included as a source of applicable law in Article 21 (Prosecutor v. Lubanga, Judgement on the Appeals against the “Decision Establishing the Principles and Procedures to Be Applied to Reparations” of 7 August 2012 with Amended Order for Reparations (Annex A) and Public Annexes 1 and 2, AC, 3 March 2015, para. 46).

Author:
Mikaela Heikkilä

Updated:
16 August 2017

Article 21(1)(a)

[251] 1. The Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
In Article 21(1)(a), the Rome Statute, the Elements of Crime (‘Elements’) and the Rules of Procedure and Evidence (‘RPE’) are enumerated as the legal sources that the Court shall apply in the first place. Article 21(1) thus establishes a hierarchy between the various sources of law and puts the Court’s own internal legal instruments at the top of the hierarchy. Article 21(1)(a) does not, however, clearly settle the internal relationship between these three sources of law. A hierarchy is instead established elsewhere. Article 51(5) provides that in the event of conflict between the Statute and the RPE, the Statute shall prevail. In an explanatory note to the RPE, it is furthermore emphasized that, in all cases, the RPE should be read in conjunction with and subject to the provisions of the Statute. Article 9, on its part, stipulates the Elements shall be consistent with the Statute, and that their function is to assist the Court in the interpretation and application of the crime definitions in the Statute.
    The hierarchical relationship between the Statute and the RPE has been reaffirmed in the Court’s case law. For example, in a decision in the Situation in Democratic Republic of the Congo, a Pre-Trial Chamber (‘PTC’) noted that the RPE are an instrument that is subordinate to the Statute and that a provision of the RPE cannot be interpreted in such a way as to narrow the scope of an Article of the Statute (Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, PTC, 17 January 2006, para. 47). Bitti has, however, argued that the initial strong stance in favour of Statute supremacy today is challenged by some new rules adopted by the Assembly of State Parties, which compatibility with the Statute can be debated. More generally, he expresses concern over the fact that there appears to be explicit disregard for the Court’s main legal texts in some more recent ICC jurisprudence (Bitti, 2015, pp. 416-420 and 443. See also Prosecutor v. Ruto and Sang, ICC T. Ch., Decision on victims’ representation and participation, 3 October 2012, paras 27-29)  
   The question to what extent the judges are obliged to follow the Elements has, however, been more controversial. Whereas Article 21(1) stipulates that the Court shall apply the Elements, Article 9 seems to give them merely an assisting role. The question has been considered in a PTC decision, where the majority held that the Elements must be applied unless a Chamber finds an irreconcilable contradiction between the Elements and the Statute (Prosecutor v. Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, PTC, 4 March 2009, para. 128). The minority Judge, on the other hand, held that the wording in Article 9 of the Rome Statute clearly gives forth that the Elements are not binding for the judges (Prosecutor v. Al Bashir, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Separate and Partly Dissenting Opinion of Judge Anita Ušacka, PTC, 4 March 2009, para. 17). The minority view has been supported by a number of scholars (e.g., Hochmayr, 2014, p. 658, and Triffterer, 2009, pp. 387-388, See also von Hebel, 2001, pp. 7-8).
    The ICC’s internal legal sources furthermore include some instruments, which hierarchical position is not explicitly settled in Article 21. Some of these are, however, anticipated in the Rome Statute. Article 44(3) stipulates that the Assembly of State Parties shall adopt Staff Regulations, and Article 52 that the judges shall adopt Regulations of the Court. The Regulations of the Office of the Prosecutor, the Regulations of the Registry, and the Code of Professional Conduct for Counsel, on the other hand, are foreseen by Rules 9, 14, respectively 8 of the ICC RPE. While it is clear that all these documents are subordinate to the three major internal sources of law, their internal relationship and relationship to the Court’s external sources is not as evident. Schabas has, in this regard, submitted that “in the event of conflict judges will have to find solutions based on general principles of interpretation [...] and with reference to the authority of the body responsible for adopting the text” ( Schabas, 2010, p. 387). All internal written sources of law furthermore appear to rank higher than the Court’s external sources of law. In the Lubanga case, the Appeals Chamber did not find it necessary to consider whether Regulation 55 of the Court was consistent with general principles of international law. The central question was rather whether the Regulation was consistent with the Statute and the RPE (Prosecutor v. Lubanga, ICC A. Ch., Judgement on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 Entitled “Decision Giving Notice to the Parties and Participants that the Legal Characterisation of the Facts May be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court”, 8 December 2009, paras 66-81).  
    When the Court applies its internal legal instruments, the question of how the instruments should be interpreted can be disputed. Interpretation in general is not addressed in the Rome Statute. Article 21(3) only stipulates that interpretations must be consistent with internationally recognized human rights, and Article 22(2) that the definition of crimes shall be strictly construed and shall not be extended by analogy. As the Rome Statute is a treaty, the Court has held that guidance for interpretation can be found in the 1969 Vienna Convention on the Law of Treaties (e.g., Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, AC, 13 July 2006, para. 33; see also Prosecutor v. Lubanga, PT. Ch. I, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, para. 8). Article 31 of the Vienna Convention gives forth that in interpretation, the focus shall be on literal, contextual and teleological considerations. More specifically, the Appeals Chamber has held that:

The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty. (Situation in the Democratic Republic of the Congo, Judgement on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, para. 33)

In line with Article 32 of the Vienna Convention, the travaux préparatoires of the Rome Statute can be used to confirm interpretations made based on literal, contextual and teleological readings (e.g., Situation in the Democratic Republic of the Congo, ICC. A Ch., Judgement on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, paras 40-41, and Prosecutor v. Katanga, ICC A. Ch., Judgement on the Appeal of Mr. Germain Katanga against the Decision of Pre-Trial Chamber I Entitled “Decision on the Defence Request Concerning Languages”, 27 May 2008, para. 50. See also Prosecutor v. Lubanga, ICC T. Ch., Judgement pursuant to Article 74 of the Statute, 14 March 2012, para. 621, and Prosecutor v. Ruto and Sang, ICC A. Ch., Judgment on the appeal of the Prosecutor against the decision of Trial Chamber V(a) of 18 June 2013 entitled “Decision on Mr Ruto’s Request for Excusal from Continuous Presence at Trial”, Joint Separate Opinion of Judge Erkki Kourula and Judge Anita Ušacka, 25 October 2013, para. 11).

Cross-references:
Articles 9(1) and 9(3), 22(2), 44(3), 51(4)-(5) and Article 52
Rules 8, 9, and 14

Author:
Mikaela Heikkilä

Updated:
16 August 2017

Article 21(1)(b)

[252] (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;
Even though the aim of the ICC’s internal legal sources is to comprehensively establish the legal framework according to which the Court shall function, situations can emerge where a legal question cannot be answered with reference to these instruments. As such, it is important that there are other legal sources to which the Court may rely on in situations where the Court’s internal legal sources are quiet or unclear. In this regard, Article 21(1)(b) establishes that the Court shall apply, in the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.
    The phrase “in the second place” emphasizes that the applicable treaties and the principles and rules of international law in the ICC legal system are legal sources that hierarchically are below the legal sources mentioned in Article 21(1)(a). This has also been stressed in case law. The ICC has held that the external sources of law can only be resorted to when two conditions are met: (i) there is a lacuna in the written law contained in the Statute, the Elements and the RPE; and (ii) the lacuna cannot be filled by the application of the criteria of interpretation provided in the Vienna Convention and Article 21(3) of the Rome Statute (Prosecutor v. Al Bashir, ICC PT. Ch. I, Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para. 44. See also e.g., Prosecutor v. Ruto et al., ICC PT. Ch. I, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 289). In this regard, the ICC has in relation to modes of responsibility found that since the Statute in detail regulates the applicable modes of responsibility, it is not necessary to consider whether CIL admits or discards some modes of responsibility (Prosecutor v.Katanga and Ngudjolo Chui, ICC PT. Ch., Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 508).
    Importantly, the fact that a question is not regulated in ICC’s internal legal instruments does not necessarily mean that there is a lacuna that must be filled by applying external legal sources. (See further e.g., Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, AC, 13 July 2006, paras 33-39). Article 21(1)(b) contains the criterion of “where appropriate”, which emphasizes that the judges have a certain discretion in the use of the external legal sources. When deliberating on witness proofing, the Lubanga Trial Chamber indicated that especially in connection to procedural questions a detailed analysis must be conducted before a norm that cannot be found in the internal “ICC legislation” is recognized based on Article 21(1)(b). More specifically, the Trial Chamber held that:

Article 21 of the Statute requires the Chamber to apply first the Statute, Elements of Crimes and Rules of the ICC. Thereafter, if ICC legislation is not definitive on the issue, the Trial Chamber should apply, where appropriate, principles and rules of international law. In the instant case, the issue before the Chamber is procedural in nature. While this would not, ipso facto, prevent all procedural issues from scrutiny under Article 21(1)(b), the Chamber does not consider the procedural rules and jurisprudence of the ad hoc Tribunals to be automatically applicable to the ICC without detailed analysis. (Prosecutor v. Lubanga, ICC T. Ch., Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, TC, 30 November 2007, para. 44).

Schabas has noted that Article 21(1)(b) “actually contains two distinct sources, with no suggested rank amongst them” (Schabas, 2010, p. 390), namely (1) applicable treaties; and (2) principles and rules of international law. As regards treaties, the meaning of the word “applicable” has been debated (see further e.g., Hochmayr, 2014, p. 666, and M. deGuzman, 2016, pp. 938-939). It appears that applicable treaties at least include those to which the Court itself is a party, viz. the Negotiated Relationship Agreement between the International Criminal Court and the United Nations (2004) and the Headquarters Agreement between the International Criminal Court and the Host State (2007). A more difficult question is, however, the applicability of other treaties, such as human rights and international humanitarian law treaties. As noted by Pellet, it is difficult to see how inter-governmental treaties, in general, would be applicable as treaty law before the ICC (Pellet, 2002, pp. 1068-1069). The main rule in connection to treaties is that they only are binding for those States that have ratified them (see further e.g., Milanović, 2011, p. 25 ff.). The ICC has, however, in its jurisprudence, characterized, inter alia, the Vienna Convention on the Law of Treaties, the Convention on the Rights of the Child, and the Genocide Convention as “applicable” (Prosecutor v. Bemba, ICC T. Ch., Judgment pursuant to Article 74 of the Statute, 21 March 2016, para. 70. See also e.g., The Office of the Prosecutor (ICC): Policy on Children (2016), p. 10 (fn 19), and Zeegers, 2016, p. 68)
    Secondly, Article 21(1)(b) refers to the “principles and rules of international law”. This concept is perplexing in that it differs from the concept of customary international law ('CIL') that is generally used in public international law. While most scholars agree that principles and rules of international law include CIL, there are different opinions as to whether there are also other principles and rules of international law (see further e.g., M. deGuzman, 2016, pp. 939-941, and Pellet, 2002, pp. 1070-1073). It should namely be noted that general principles of law derived from national laws of legal systems of the world are covered by Article 21(1)(c). M. deGuzman has, in this regard, suggested that principles and rules could be based on the international legal conscience, the nature of the international community and natural law (M. deGuzman, 2016, p. 904). She thus suggests that there is something that could be characterized as general principles of a genuinely international origin (cf. Schlütter, 2010, p. 75) that are not created by States through their practice and will in the same way as positive international law. The existence of such international law is, however, disputed and as such the M. deGuzman’s submission must be regarded as controversial. There are, however, also other understandings of general principles of law. Some scholars find that there are general principles of international law that generally have their origin in state practice (or the existing sources of international law), but which “have been so long and so generally accepted as to be no longer directly connected with state practice”. (Brownlie, 2008, p. 19. See also e.g., Malanczuk, 1997, pp. 48-49). Exactly how such general principles emerge and how they should be identified is, however, unclear. 
   In this regard, it is interesting that the ICC sometimes has referred to the practice of other international/hybrid criminal tribunals by reference to Article 21(1)(b) (see e.g., Prosecutor v. Mudacumura, ICC PT. Ch. I, Decision on the Prosecutor’s Application under Article 58, 13 July 2012, para. 63, footnote 128). The case law of these tribunals has then often been put forward as evidence of a “widely accepted practice in international criminal law” regarding a certain matter (cf. Lubanga, ICC PT. Ch. I, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, para. 33). The ICC has also referred to case law from other courts, such as the ICJ (see e.g., Prosecutor v. Katanga and Ngudjolo Chui, ICC P. Ch., Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 238). Such argumentation could be seen as evidence of a viewpoint that international case law can function as an autonomous source of law before the ICC. Despite some statements to this effect, it, however, appears that the prevailing approach of the ICC to international case law is that “decisions of other international courts and tribunals are not part of the directly applicable law under Article 21” (Prosecutor v. Lubanga,  ICC T. Ch., Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 603). The case law can only be “indicative of a principle or rule of international law” (Prosecutor v. Ruto et al., ICC PT. Ch. I, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, PTC, 23 January 2012, para. 289), but exactly how remains unclear (on the legal relevance of international case law, see also Nerlich, 2009, pp. 305-325). While the case law of domestic, multinational (Nuremberg) and potentially hybrid (ECCC, SCSL, STL) criminal courts can be seen as evidence of State practice (relevant for, for example, the creation of CIL), the case law of fully international criminal Courts (ICTY, ICTR) cannot readily be characterized as such. It should be noted that also the ICTY and the ICTR have been criticized for their heavy reliance on jurisprudence as evidence of existing law (see e.g., Bantekas, 2006, pp. 128-132). In public international law, case law is generally regarded as a subsidiary means for the determination of rules of law (see e.g., ICJ Article 38(1)(d)).
    Even though the wording of Article 21 gives forth that external sources of law only exceptionally will be applicable in ICC proceedings, it is possible to find many references to treaty law, CIL and international case law in the jurisprudence of the Court. This may be explained with the fact that these sources often have been found relevant when interpreting the Court’s internal legal sources. Sometimes the phrasing of an ICC norm indicates that the drafters of the norm have been aware of a similar provision in another tribunal’s statute or a convention (Cf. Prosecutor v. Mbarushimana,  ICC A. Ch., Judgment on the Appeal of the Prosecutor against the Decision of Pre-Trial Chamber I of 16 December 2011 Entitled “Decision on the Confirmation of Charges”, 30 May 2012, para. 43). In this regard, for example, the 1949 Geneva Conventions, the 1977 Additional Protocols to the Geneva Conventions, and the 1948 Genocide Convention are of importance. Regarding war crimes, the Elements explicitly stipulate that the crime shall be “interpreted within the established framework of the international law of armed conflict including, as appropriate, the international law of armed conflict applicable to armed conflict at sea”. Article 8 in the Rome Statute furthermore makes some references to the 1949 Geneva Conventions. The external norms may also be directed at the same objective as the corresponding ICC provisions (Prosecutor v. Lubanga,  ICC T. Ch., Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 603), which may make them relevant when the ICC norms are interpreted teleologically. External sources of law can, however, generally only be used as interpretational aid when the interpretation has not been predetermined by a more high-level internal norm. In the Lubanga case, the Appeals Chamber found that it did not matter if ICTY Rule 33(B) had the same wording as the ICC Regulation 24bis(1) of the Regulations of the Court, as the legal question was exhaustively settled by explicit provisions in the ICC Statute (Prosecutor v. Lubanga, ICC A. Ch., Decision on the “Registrar’s Submissions under Regulation 24bis of the Regulations of the Court in Relation to Trial Chamber I’s Decision ICC-01/04-01/06-2800” of 5 October 2011, 21 November 2011, para. 16. See also Article 21(3).)

Cross-reference:
Article 8 

Author:
Mikaela Heikkilä

Updated:
16 August 2017

Article 21(1)(c)

[253] (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
If the ICC cannot find a solution to a legal question in its own internal sources of law or in the applicable treaties and the principles and rules of international law, it may seek for the solution in general principles of law derived from national laws of legal systems of the world. The application of this legal source is always dependent on the condition that the application is not inconsistent with the Rome Statute and with international law and internationally recognized norms and standards. The low hierarchical position of general principles of law derived from national laws of legal systems of the world has meant that the ICC has not often made inquiries into domestic legal practices based on Article 21(1)(c). When addressing the acceptability of witness proofing, the Court, however, made such an inquiry (Prosecutor v. Lubanga, ICC PT. Ch. I, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, paras 35-42). See also regarding the right to appeal Situation in the Democratic Republic of the Congo, ICC A. Ch., Judgement on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, paras 5, 32 and 39). The fact that Article 31(3) refers to "a ground for excluding criminal responsability other than those referred to [...in the Statute] where such ground is derived from applicable law as set forth in Article 21" gives forth that general principles of law derived from national laws could also be relevant when identifying factors that can exclude criminal responsability.
    The use of general principles of law derived from national laws of legal systems of the world makes it necessary to decide what domestic legal systems should be examined, as all national laws cannot be considered and the selection of the systems may affect the result of the inquiry. Article 21(1)(c) itself stipulates that at least the national laws of States that would normally exercise jurisdiction over the crime shall be considered as appropriate. This has been found to include at least the laws of the State where the crime was committed and the laws of the State of which the accused is a national (See also M. deGuzman, 2016, p. 944). More generally, it has been submitted that the inquiry should include the principal legal systems of the world, including at least representatives from civil law countries and common law countries, and probably some Islamic law countries (Pellet, 2002, pp. 1073-1074. See also Prosecutor v. Lubanga, ICC T. Ch., Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony, 30 November 2007, para. 41 and Prosecutor v. Katanga & Ngudjolo, ICC PT. Ch. I, Decision Revoking the Prohibition of Contact and Communication between Germain Katanga and Mathieu Ngidjolo Chui, 13 March 2008, p. 12). In connection to admissibility of evidence, the Court emphasized that it is not bound by the national law of a particular State (Prosecutor v. Lubanga, Decision on the Confirmation of Charges, PTC, 29 January 2007, para 69, see also Article 68(9)). The Court may hence, based on Article 21(1)(c) only derive general principles from several domestic legal systems.
    While general principles of law derived from national laws rarely is an applicable legal source per se, practices followed in domestic legal systems can function as an interpretational aid when the Court’s internal legal sources are applied. In the Katanga and Ngudjolo case, a PTC, for example, found that its interpretation of the Statute which incorporated the concept of perpetration through control over an organisation was supported by the fact that “[p]rior and subsequent to the drafting of the Statute, numerous national jurisdictions relied on the concept” (Prosecutor v. Katanga and Ngudjolo Chui, ICC P. Ch., Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 502). As an interpretational aid, general principles of law derived from national laws can therefore, in practice, be influential. In his separate opinion in the Lubanga Trial Judgment, Judge Fulford, in this regard, criticized the Court for an imprudent reliance on domestic practices:

In these two instances, the judges relied heavily on the scholarship of the German academic Claus Roxin as the primary authority for the control theory of co-perpetration, and in the result, this approach was imported directly from the German legal system. While Article 21(1)(c) of the Statute permits the Court to draw upon “general principles of law” derived from national legal systems, in my view before taking this step, a Chamber should undertake a careful assessment as to whether the policy considerations underlying the domestic legal doctrine are applicable at this Court, and it should investigate the doctrine’s compatibility with the Rome Statute framework. This applies regardless of whether the domestic and the ICC provisions mirror each other in their formulation. It would be dangerous to apply a national statutory interpretation simply because of similarities of language, given the overall context is likely to be significantly different. (Prosecutor v. Lubanga, ICC T. Ch., Judgment pursuant to Article 74 of the Statute, Separate Opinion of Judge Adrian Fulford, 14 March 2012, para. 10). 

Similarly, Judge Van den Wyngaert has cautioned for the adoption of domestic practices under the guise of treaty interpretation:

I believe that it is not appropriate to draw upon subsidiary sources of law [...] to justify incorporating forms of criminal responsibility that go beyond the text of the Statute. Reliance on the control over the crime theory [...] would only be possible to the extent that it qualifies as a general principle of criminal law in the sense of Article 21(l)(c). However, in view of the radical fragmentation of national legal systems when it comes to defining modes of liability, it is almost impossible to identify general principles in this regard. [...] Moreover, even if general principles could be identified, reliance on such principles, even under the guise of treaty interpretation, in order to broaden the scope of certain forms of criminal responsibility would amount to an inappropriate expansion of the Court’s jurisdiction. (Prosecutor v. Ngudjolo, ICC T. Ch., Judgment Pursuant to Article 74 of the Statute, Concurring Opinion of Judge Christine Van den Wyngaert, 18 December 2012, para. 17)

Hence, while the ICC at times has allowed “inspirational influences of domestic legal methods for the legal solutions to similar difficulties” (Prosecutor v. Ruto and Sang, ICC T. Ch., Decision on Defence Applications for Judgments of Acquittal - Reasons of Judge Eboe-Osuji, 5 April 2016, para. 192), the imports of domestic practices and legal concepts have often been controversial.

 

Cross-references:
Article 31(3), Article 69(8)

Author:
Mikaela Heikkilä

Updated:
16 August 2017

Article 21(2)

[254] 2. The Court may apply principles and rules of law as interpreted in its previous decisions.
Article 21(2) provides that the Court has the right to apply principles and rules of law as interpreted in its previous decisions. The paragraph uses the noun “may”, which emphasizes that the use of precedent is discretionary. It has been noted that this provisions seems to state the obvious, as it seems evident that the application of the same legal provisions in different cases should result in similar outcomes (Pellet, 2002, p. 1066, and Schabas, 2010, p. 394). The function of Article 21(2) is primarily to reject the doctrine of binding precedent or stare decisis that can be found in some domestic legal systems. According to Bitti, it is possible to find many examples in the ICC jurisprudence where chambers have deviated from earlier case law, which shows that the ICC judges have used the discretion granted to them by Article 21(2) (see Bitti, 2015, pp. 422-425).

Author:
Mikaela Heikkilä

Updated:
16 August 2017

 

Article 21(3)

[255] 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in Article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status
Article 21(3) establishes that the application and interpretation of law pursuant to Article 21 must be consistent with internationally recognized human rights including the non-discrimination principle. The provision thus creates a substantial hierarchy of law which supersedes the formal hierarchy between sources established by Article 21(1) (Pellet, 2002, p. 1077). This kind of “super-legality” (Pellet, 2002, pp. 1079 and 1082) is not unique for the ICC. In many domestic legal systems (and, for example, in EU law), fundamental rights or human rights are given a special legal position. Also in international law there are peremptory jus cogens norms.
      Article 21(3) raises the question of what those human rights are that are “internationally recognized”. Of the various human rights, Article 21(3) only explicitly mentions the non-discrimination principle. While there are some human rights norms that are firmly established, there are also more unestablished human rights norms originating in little ratified treaties and soft law instruments. In its initial case law, the ICC has frequently referred to the ECHR and the ICCPR, but also to other human rights conventions, such as the Convention on the Rights of the Child (e.g., Prosecutor v. Lubanga, ICC T. Ch., Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 604; See also Judge Pikis separate opinion, in which he argues that: “Internationally recognized may be regarded those human rights acknowledged by customary international law and international treaties and conventions”. Prosecutor v. Lubanga, ICC A. Ch., Decision on the Prosecutor’s “Application for Leave to Reply to ‘Conclusions de la défense en réponse au mémoire d'appel du Procureur’”, 12 September 2006, para. 3.). The Court has also mentioned soft law instruments, such as the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (e.g., Prosecutor v. Lubanga, ICC T. Ch., Decision on Victims’ Participation, 18 January 2008, para. 35) and the Cape Town Principles and Best Practices on the Recruitment of Children into the Armed Forces and on Demobilization and Social Reintegration of Child Soldiers in Africa (Prosecutor v. Lubanga, ICC T. Ch.,  Decision Establishing the Principles and Procedures to Be Applied to Reparations, 7 August 2012, para. 185) as legally relevant. See also Prosecutor v. Ngudjolo Chui, ICC Presidency, Decision on “Mr Mathieu Ngudjolo’s Complaint under Regulation 221(1) of the Regulations of the Registry against the Registrar’s Decision of 18 November 2008”, 10 March 2009, para. 27). Also human rights case law has often been referred to (e.g., Prosecutor v. Lubanga, ICC A. Ch., Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I entitled “Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain other Issues Raised at the Status Conference on 10 June 2008”, 21 October 2008, paras 46-47). As such, the ICC seems to give the concept of internationally recognized human rights a broad reading. Also in connection to the non-discrimination principle, Article 21(3) enumerates many possible grounds for discrimination. It has been noted that the possible discriminatory grounds constituted the controversial part of the provision’s negotiations and that the numeration is both provocative (starting with gender) and curious (placing age before the traditional grounds of discrimination, such as race and religion) (McAuliffe deGuzman, 2008, pp. 711-712, and Schabas, 2010, p. 400). See also Prosecutor v. Ruto and Sang, ICC T. Ch., Reasons for the Decision on Excusal from Presence at Trial under Rule 134quater, 18 February 2014, paras 59-60).
   The Appeals Chamber has emphasized that every Article in the Rome Statute has to be interpreted and applied according to Article 21(3) (Situation in the Democratic Republic of the Congo, ICC A. Ch., Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal, 12 July 2006, para 38). In practice, the judges must, however, make a decision whether a particular ICC norm has a human rights dimension or not. In relation to certain questions, it is evident that human rights law must be consulted, for example, in relation to fair trials of the accused (Article 67, see also e.g., Prosecutor v. Bemba, ICC PT. Ch. I, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 24). It is, however, not merely this type of provisions which interpretation and application must be guided by human rights. Human rights law can, for example, be relevant when crimes such as incitement to commit genocide and modes of responsibility such as instigation are addressed. (Cf. in this regard the ICTR Media case, Prosecutor v. Nahimana et al., ICTR T. Ch., Judgement and Sentence, 3 December 2003, paras 983-999). The ICC has also held that victim participation can be considered a question which brings to the fore human rights (see e.g., Prosecutor v. Katanga, ICC T. Ch. II, Decision of the Plenary of Judges on the Application of the Legal Representative for Victims for the Disqualification of Judge Christine Van den Wyngaert from the Case of the Prosecutor v Germain Katanga, 18 February 2014, para. 42), even though the leading human rights instruments do not grant victim’s explicit procedural rights (see further de Brouwer & Heikkilä, 2013, pp. 1337-1341). In relation to victim participation, the ICC has, for example, found that based on “Article 21(3) of the Statute, read in conjunction with Article 12(1) of the Convention on the Rights of the Child, victims cannot be excluded from participation solely on the basis of their age.” (Prosecutor v. Gbagbo and Blé Goudé, ICC T. Ch., Decision on victims’ participation status, 7 January 2016, para. 60).
    Finally, it should be noted that Article 21(3) refers to the interpretation and application of the law. In this regard, the Appeals Chamber has stressed that human rights friendly interpretation is not always enough. It must be ensured that human rights also are applied (Prosecutor v. Lubanga, ICC A. Ch., Judgement on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, para. 37). The application of human rights may support the identification of a lacuna in the ICC internal legal system, which filling demands the use of ICC’s external legal sources. In this regard, the ICC has held that it is possible to order a stay of proceedings in the case of breach of accused’s fundamental rights even though the Court’s internal legal sources do not foresee such a response to a breach (Prosecutor v. Lubanga, ICC A. Ch., Judgement on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, paras 37 and 39). More controversially, Article 21(3) could entail that an ICC norm, even a Statute provision, is set aside or its application is suspended.
   More controversially, Article 21(3) could entail that an ICC norm, even a Statute provision,
is set aside or its application is suspended. Hochmayr has noted that this is not merely a question of “theoretical interest” (Hochmayr, 2014, p. 677). When three detained witnesses in 2011 applied for asylum in the Netherlands, the Court first based on Article 21(3) found that it was unable to return them to the Democratic Republic of Congo according to Article 93(7) to ensure their right to e.g., apply for asylum was not violated (Prosecutor v. Katanga and Ngudjolo, ICC T. Ch. II, Decision on an Amicus Curiae application and on the “Requête tendant à obtenir présentations des témoins DRC‐D02‐P‐0350, DRC‐D02‐P‐0236, DRC‐D02‐P‐0228 aux autorités néerlandaises aux fins dʹasile” (Articles 68 and 93(7) of the Statute), 9 June 2011, para. 73; and, Prosecutor v. Katanga, ICC T. Ch. II, Decision on the application for the interim release of detained Witnesses DRCD02-P-0236, DRC-D02-P-0228 and DRC-D02-P-0350 – Dissenting Opinion of Judge Christiane Van Den Wyngaert, 1 October 2013, para. 3. Also see Prosecutor v. Ngudjolo, Order on the Implementation of the Cooperation Agreement between the Court and the Democratic Republic of the Congo Concluded Pursuant Article 93 (7) of the Statute, AC, 20 January 2014, paras 26-30). More generally, it must be therefore asked to what extent Article 21(3) can function as a legal basis to set aside, for example, a provision of the ICC Statute challenge the internal legal framework of the ICC(see further Bitti, 2015, pp. 438-439 and 442). In this regard, Arsanjani has noted that: “While the original intention behind this paragraph may have been to limit the court’s powers in the application and interpretation of the relevant law, it could have the opposite effect and broaden the competence of the court on these matters. It provides a standard against which all the law applied by the court should be tested”. (Arsanjani, 1999, p. 29). In some domestic legal systems, constitutional law provisions requiring courts to ensure adherence to fundamental human rights have significantly affected interpretations of criminal law provisions. Before the ICC, Judge Blattman  expressed concern over the fact that some judges according to him have overlooked the will of the drafters of the ICC with reference to Article 21(3):

I am concerned by the Majority application of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. While the Majority opinion lists the Basic Principles in the relevant provisions which are taken into account by the Chamber, I caution that this is not a strongly persuasive or decisive authority which the Chamber should be using in its legal determination of victims and in particular the definition of victims and participation. I support and follow Article 21(3), which requires that decisions of the Chamber must be consistent with internationally recognized human rights. However, the particular provisions relied on in the Majority decision were specifically considered and rejected during the preparatory stages of the drafting of the Rome Statute (Lubanga, Decision on Victims’ Participation, Separate and Dissenting Opinion of Judge René Blattman, TC, 18 January 2008, para. 5).

Cross-reference: 
Article 67

Doctrine:

  1. Mahnoush H. Arsanjani, "The Rome Statute of the International Criminal Court", American Journal of International Law, vol. 93, 1999, pp. 22-43.  
  2. Ilias Bantekas, "Reflections on Some Sources and Methods of International Criminal and Humanitarian Law", International Criminal Law Review, vol. 6, 2006, pp. 121-136.
  3. Gilbert Bitti, "Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC", in Carsten Stahn (Ed.), The Law and Practice of the International Criminal Court, Oxford University Press, Oxford, 2015, pp. 411-443
  4. Gilbert Bitti, "Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, Leiden, 2009, pp. 285-304. 
  5. Ian Brownlie, Principles of Public International Law, Second Edition, Oxford University Press, Oxford, 2008.
  6. Robert Cryer, "Royalism and the King: Article 21 of the Rome Statute and the Politics of Sources", New Criminal Law Review, vol. 12, no. 3, 2009, pp. 390-405.
  7. Anne-Marie de Brouwer/Mikaela Heikkilä, "Victim Issues: Participation, Protection, Reparation, and Assistance", in Göran Sluiter et al. (Eds.), International Criminal Procedure – Principles and Rules, Oxford University Press, Oxford, 2013, pp. 1299-1374.
  8. Gudrun Hochmayr, "Applicable Law in Practice and Theory - Interpreting Article 21 of the ICC Statute", Journal of International Criminal Justice, vol. 12, 2014, pp. 655-679.
  9. Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Seventh Edition, Routledge, London, 1997.
  10. Marko Milanović, "Is the Rome Statute Binding on Individuals? (And Why We Should Care)", Journal of International Criminal Justice, vol. 9, 2011, pp. 25-52.
  11. Margaret M. eGuzman, "Article 21 – Applicable Law", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers’ Notes, Article by Article, Third Edition, C.H.  Beck/Hart/Nomos, München/Oxford/Baden-Baden, pp. 932-948.
  12. Volker Nerlich, "The Status of ICTY and ICTR Precedent in Proceedings before the ICC", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, Leiden, 2009, pp. 305-325.
  13. Alain Pellet, "Applicable Law", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Second Edition, Oxford University Press, Oxford, 2002.
  14. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010.
  15. Birgit Schlütter, Developments in Customary International Law – Theory and the Practice of the International Court of Justice and the International Ad Hoc Criminal Tribunals for Rwanda and Yugoslavia, Martinus Nijhoff Publishers, Leiden, 2010.
  16. Otto Triffterer, "Can the “Elements of Crimes” Narrow or Broaden Responsibility for Criminal Behaviour Defined in the Rome Statute?", in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Martinus Nijhoff Publishers, Leiden, 2009, pp. 381-400.
  17. Herman von Hebel, "The Decision to Include Elements of Crimes in the Rome Statute", in Roy S. Lee et al. (Eds), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, New York, 2001, pp. 4-8.
  18. Alexander Zahar/Göran Sluiter, International Criminal Law – A Critical Introduction, Oxford University Press, Oxford, 2008.
  19. Krit Zeegers, International Criminal Tribunals and Human Rights Law: Adherence and Contextualization, Springer/T.M.C. Asser Press, The Hague, 2016.

Author:
Mikaela Heikkilä

Updated:
16 August 2017

Commentary continued - Part 3

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