Part II The Relationship to Domestic Jurisdictions, 10 Admissibility Challenges before the ICC: From Quasi-Primacy to Qualified Deference?

Subject(s):

Admissibility — Defences — International criminal law, conduct of proceedings — Prosecution

The ICC has faced admissibility challenges under Article 19 of the Statute in a number of situations and cases. The Court has set a high jurisprudential threshold through its interpretation of the ‘same conduct test’ under Article 17. The Libyan cases (Saif Al-Islam Gaddafi and Abdullah Al-Senussi) have provided some leeway for domestic jurisdictions. But jurisprudence continues to rely on top-down approaches and ‘mirroring’ imagery that is geared towards the replication of international practices at the domestic level. The role of time and the space for parallel engagement of the ICC and domestic jurisdictions have not received sufficient attention. This chapter argues that the modalities of deference to domestic jurisdiction need to be refined. It suggests that some of the existing deficiencies may be mitigated by greater attention to qualified deference, i.e. management of parallel proceedings, strengthening of monitoring structures, and clarification of conditions of deference (‘conditional admissibility’).