Book contents
- Frontmatter
- Contents
- Acknowledgments
- Foreword by HE Judge Sang-Hyun Song
- Foreword by Patricia O’Brien
- Foreword by Silvia A. Fernandez de Gurmendi
- List of abbreviations
- Introduction: bridge over troubled waters?
- PART I General reflections
- PART II Origin and genesis of complementarity
- PART III Analytical dimensions of complementarity
- PART IV Interpretation and application
- 14 The application of the principle of complementarity to the decision of where to open an investigation
- 15 Situation and case: defining the parameters
- 16 The inaction controversy
- 17 The admissibility procedures
- 18 The evolution of the ICC jurisprudence on admissibility
- 19 Interpretative gravity under the Rome Statute
- 20 Complementarity and burden allocation
- PART IV (Continued) Interpretation and application
- PART V Complementarity in perspective
- PART VI Complementarity in practice
- Index
- References
18 - The evolution of the ICC jurisprudence on admissibility
from PART IV - Interpretation and application
Published online by Cambridge University Press: 05 November 2014
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Book contents
- Frontmatter
- Contents
- Acknowledgments
- Foreword by HE Judge Sang-Hyun Song
- Foreword by Patricia O’Brien
- Foreword by Silvia A. Fernandez de Gurmendi
- List of abbreviations
- Introduction: bridge over troubled waters?
- PART I General reflections
- PART II Origin and genesis of complementarity
- PART III Analytical dimensions of complementarity
- PART IV Interpretation and application
- 14 The application of the principle of complementarity to the decision of where to open an investigation
- 15 Situation and case: defining the parameters
- 16 The inaction controversy
- 17 The admissibility procedures
- 18 The evolution of the ICC jurisprudence on admissibility
- 19 Interpretative gravity under the Rome Statute
- 20 Complementarity and burden allocation
- PART IV (Continued) Interpretation and application
- PART V Complementarity in perspective
- PART VI Complementarity in practice
- Index
- References
Summary
The principle of complementarity, and the admissibility provisions which implement it, were the subject of little examination in the first years of the International Criminal Court's (ICC) operation. However, between September 2008 and September 2009, three appeal judgments on admissibility were delivered or unsealed. This chapter examines these judgments, and related proceedings, providing a structured analysis of the state of the ICC's jurisprudence on admissibility. It examines both substantive and procedural aspects of admissibility, identifying the elements which have now been settled by the Appeals Chamber, and considers what this emerging jurisprudence tells us about the purpose and focus of the different limbs of Article 17.
Introduction
The principle of complementarity is, without doubt, one of the defining features of the Rome Statute. Nevertheless, despite being described as the cornerstone of the Statute, the admissibility provisions were the subject of relatively little judicial examination during the early years of the Court's operations. Recently, this has changed. A suite of three appeal judgments which were delivered or unsealed between September 2008 and September 2009, and the proceedings which led to these judgments, have now laid a solid foundation for our understanding of the principle of complementarity and the interpretation of the admissibility provisions of the Statute.
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- Information
- The International Criminal Court and ComplementarityFrom Theory to Practice, pp. 558 - 602Publisher: Cambridge University PressPrint publication year: 2011
References
, ‘The Principle of Complementarity’ in R. S. Lee (ed.), The International Criminal Court: the Making of the Rome Statute (1999) 41 at 73Google Scholar
(ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edn, 2009) 605 at 606, para. 1 (‘Art. 17 dealing with admissibility issues is the cornerstone of the Rome Statute’). This has also been recognized by the Court: Prosecutor v. Kony et al., ICC-02/04–01/05–377, 10 March 2009, para. 34
A subsequent decision on a challenge to admissibility in the case of Prosecutor v. Bemba, ICC-01/05–01/08–802, 24 June 2010 has also been appealed (ICC-01/05–01/08–804, 28 June 2010; ICC-01/05–01/08–844, 29 July 2010). However, no judgment has been delivered on this appeal at the time of writing
Prosecutor v. Kony et al., ICC -02/04–01/05–1-US-Exp, 12 July 2005, 2 (unsealed pursuant to ICC-02/04–01/05–52, 13 October 2005)
Prosecutor v. Katanga and Ngudjolo, ICC-01/04–01/07–1497, 25 September 2009, para. 116 (‘Katanga Admissibility Appeal Judgment’)
, ‘The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC’ (2010) 23 LJIL343CrossRefGoogle Scholar
Ibid. para. 79. Thus, while the Prosecutor explicitly set out a policy of prosecuting ‘the leaders who bear most responsibility for the crimes’ (or ‘those who bear the greatest responsibility for the most serious crimes’, ‘Draft Prosecutorial Strategy 2009–2012, 18 August 2009, 6), he has equally made it clear that ‘[i]n some cases the focus of an investigation by the Office of the Prosecutor may go wider than high-ranking officers if, for example, investigation of certain types of crimes or those officers lower down the chain of command is necessary for the whole case’. (ICC OTP, Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003) 3)
(ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001) 321, 334–5
, and (eds.), The Statute of the International Criminal Court: A Commentary (2002) 667, 676–7
and , ‘Shaping the Contours of Domestic Justice: the International Criminal Court and an Admissibility Challenge in the Uganda Situation’ (2009) 7 JICJ 257, 266Google Scholar
In March 2009, the Trial Chamber set the date for the commencement of trial of Prosecutor v. Katanga and Ngudjolo, ICC -01/04–01/07–99924, September 2009. That date was subsequently postponed until 24 November 2009 (Prosecutor v. Katanga and Ngudjolo, ICC -01/04–01/07–1442, 31 August 2009)
, ‘Complementarity: A Tale of Two Notions’ (2008) 19 Crim. LF 87, 88, 96 (referring to the ‘classical vision of complementarity’)Google Scholar
and (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002) 705, 707)
, ‘Implementing a Policy of Positive Complementarity in the ICC System of Justice’ (2008) 19 Crim. LF 59, 66Google Scholar
, ‘“Complementarity in Practice”: Some Uncomplimentary Thoughts’ (2008) 19 Crim. LF 5, 28Google Scholar
, ‘The Gravity Threshold under the Statute of the International Criminal Court’ (2008) 19 Crim. LF 35, 35–6Google Scholar
, ‘Gravity and the Legitimacy of the International Criminal Court’ (2009) 32 Fordham Int'l LJ 1400, 1459–64Google Scholar
Katanga Admissibility Decision, supra note 44, para. 79; Katanga Admissibility Appeal Judgment, supra note 58, paras. 85–6. The Prosecutor has also recognized this duty, see ICC OTP, Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003) 5
Provided that the state cooperates with the Court under Part 9 of the Rome Statute: Katanga Admissibility Decision, supra note 44, para. 79; Katanga Admissibility Appeal Judgment, supra note 58, para. 85. See further ICC OTP, Informal Expert Paper on the Principle of Complementarity in Practice, ICC-01/04–01/07–1008-AnxA (2003) 15, para. 61 and note 24
, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum 59, 66CrossRefGoogle Scholar
, ‘State Sovereignty, Jurisdiction, and “Modern” International Law: the Principle of Complementarity in the International Criminal Court’ (2006) 19 LJIL 1095, 1114–15Google Scholar
(ed.), Commentary on the Rome Statute of the International Criminal Court (2009) 575, 579, paras. 11–12
Schabas, supra note 184, at 13. For an example, see Prosecutor v. Kony et al., ICC-02/04–01/05–68, 2 December 2005, paras. 4–5
In addition, the ICC will only prosecute a small number of cases: ‘there are limits on the number of prosecutions the ICC can bring’ (ICC OTP, Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003) 4
In this regard, the Prosecutor has recognized both the role that admissibility assessments must play in all phases of the proceedings (ICC OTP, Informal Expert Paper on the Principle of Complementarity in Practice, ICC-01/04–01/07–1008-AnxA (2003) 9–13), and has also developed internal policies and practices guiding the selection of cases (as well as on related issues such as gravity, the interests of justice, and positive complementarity, see Draft Prosecutorial Strategy 2009–2012, 18 August 2009, 6)
, supra note 188, at 1403–16
, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’ (2003) 97 AJIL 510, 522, 542CrossRefGoogle Scholar
, ‘Prosecutorial Discretion within the International Criminal Court’ (2004) 2 JICJ 71, 78–9Google Scholar
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