Volume I, s.3 Jurisdiction, 18 Issues of Admissibility and Jurisdiction, Ch.18.1 Complementarity: National Courts versus the ICC
John T. Holmes
Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones
The creation of the International Criminal Court is an achievement of historic import. Ironically, however, the provisions of the Rome Statute itself contemplate an institution that may never be employed. The Preamble to the Rome Statute recalls that it is the duty of all States to exercise jurisdiction over those responsible for international crimes.1 The Preamble and Article 1 of the Statute then provide that the ICC ‘shall be complementary to national jurisdictions’.2 Thus, if States fulfil their obligations under international law by exercising effective jurisdiction over the crimes set out in the Rome Statute, then the Court, recognizing the primacy of national jurisdictions explicitly provided for in the Statute, will not be seized of any cases.3
Of course, in reality there is a need for the ICC, since States may be unwilling to exercise jurisdiction over international crimes, despite a duty to do so, especially where the nexus between the State and the crime is limited. Universal jurisdiction References(p. 668) exists with respect to many of the crimes included in the Statute, but States have been reluctant to exercise it.4 It is also the case that those States with the best jurisdictional claims over certain cases may be unable to investigate and prosecute due to ongoing conflicts or other reasons. Moreover, there exists the very real possibility that a State could investigate and even prosecute a case with a view to shielding the persons concerned from any meaningful judicial determination. The drafters of the Rome Statute, having determined that as a matter of principle national jurisdictions should have primacy, were faced with the question of when the ICC could or should assume jurisdiction. The solutions developed were both complex and politically sensitive, reflecting the concerns of States over national sovereignty and the potentially intrusive powers of an international institution.
This chapter will examine the relationship between national jurisdictions and the ICC as reflected in the Rome Statute. In addition to the Preamble and Article 1, where the principle of complementarity is set out, the chapter will examine Articles 15, 17, 18, and 195 of the Rome Statute which elaborates the framework in which the Court will serve to complement the jurisdiction of States. The origins of the provisions on complementarity will be examined briefly, including an analysis of the approach taken in the Statutes of the international criminal tribunals. This approach guided, to some extent, the work on the Draft Statute by the International Law Commission, which in turn influenced the elaboration of the principle in the Rome Statute.
The Security Council, in establishing ICTY and ICTR, faced dissimilar situations on the ground with respect to the question of complementarity. In the former Yugoslavia, the national courts in parts of the country and in the emerging successor States continued to function but effective prosecutions were not initiated.6 However, there were serious concerns that any proceedings initiated by these courts would be attempts to shield individuals from ICTY’s jurisdiction and from serious punishment for the crimes committed. In Rwanda, the judicial system was decimated by the genocide and substantial international assistance was required before the country could begin to prosecute those responsible.7 Put generally, the References(p. 669) Security Council was faced with situations where in the former Yugoslavia, there was an unwillingness to investigate and prosecute effectively those responsible for international crimes and in Rwanda there was an inability to do so.
… obliges States to accede to and accept requests for deferral on the ground of suspension of their sovereign rights to try the accused themselves and compels States to accept the fact that certain domestic crimes are really international in character and endanger international peace and that such international crimes should be tried by an international tribunal, that being an appropriate and competent legal body duly established for that purpose by law.9
Notwithstanding the primacy given to the Tribunals in the event of conflicting claims over prosecution of the most heinous crimes, the international community recognized that concurrent jurisdiction for the Tribunals and national courts was necessary and desirable. It reinforced the international obligation of all States to prosecute international crimes and it took account of the practical impossibilities of the Tribunals punishing all perpetrators. Indeed, the Security Council has urged States to detain suspects with a view to their prosecution by the Tribunals or national authorities.10
How then were conflicts of jurisdiction to be resolved? The rules of procedure for each of the Tribunals provide that they may request a State to defer its national procedures and States are bound to accede to that request. However, the intention of the Council, as reflected in the Statutes, was to limit the Tribunals’ interventions in national proceedings to situations where there was a lack of objectivity and impartiality of the national courts or where there were grounds to believe that the proceedings were instituted to obstruct the jurisdiction of the Tribunal or otherwise shield the accused from criminal responsibility.11 The principle of ne bis in idem, as reflected in the Statutes, reaffirmed the primacy of the Tribunals, since References(p. 670) the principle clearly applied only to States. For the Tribunals themselves, criminal prosecution for the same conduct could proceed if the accused was convicted of an ‘ordinary crime’ before the national court or if the national proceedings were not impartial or independent or were intended to shield the accused.12
It must be recalled that the situations in the former Yugoslavia and Rwanda were considered exceptional cases by the Security Council and the international community. When establishing the Tribunals, some States were explicit in emphasizing the special character of the institutions.13 This fact was of particular relevance when discussions on complementarity were conducted in the ILC and in the Preparatory Committee for the establishment of the ICC, when the question emerged whether the approach adopted by the Security Council could serve as a model for the future court.
The ILC’s intensive work on preparing a Draft Statute for the ICC took place during its 1993 and 1994 sessions, in the aftermath of the creation of ICTY and when the Security Council was seized with the genocide in Rwanda.14 Thus, the ILC was cognizant of the Security Council’s approach of giving concurrent jurisdiction to ICTY and national courts and primacy to the Tribunal. The ILC, on the other hand, gave apparent primacy to national courts, with a residual power for the Court to assume jurisdiction in specific, limited circumstances. The principle of complementarity was included in the Preamble to the ILC Draft Statute. The ICC was ‘intended to be complementary to national criminal justice systems in cases where such trial procedures may not be available or may be ineffective’.15 The premise in the Preamble was that the Court should defer to the jurisdiction of national courts unless such courts were unavailable or were ineffective.
Article 35 of the ILC Draft Statute addressed the question of the admissibility of cases. It allowed for an element of concurrent jurisdiction in that the Court was not specifically prohibited from exercising jurisdiction where a case was also being References(p. 671) investigated or prosecuted by national authorities. Moreover, even where there were conflicting claims, Article 35 stated that the ‘Court may … decide, having regard to the purposes of this statute set out in the preamble, that a case before it is inadmissible …’. While Article 35 used the permissive ‘may’, the presumption in the ILC Statute, reinforced by the reference to the Preamble, was that the Court would cede primacy to national courts: (1) when the case had been duly investigated; (2) when the case was being investigated; or (3) the case was not of such gravity as to justify further action by the Court. Only where valid reasons existed, would the Court rule a case admissible. In the event of a case having been investigated, the Court could proceed with its own case if the national decision not to prosecute was not ‘apparently well-founded’. In the event of an ongoing national investigation, the Court would defer if there was ‘no reason’ for it to proceed.
The ILC conferred a presumption of primacy on national courts, but reserved some residual primacy in limited situations. The criteria in the ILC Statute under which the Court could usurp national primacy were vague—‘apparently well-founded’ and ‘no reason for the Court to take any further action’—and therefore, potentially, the ICC could decide to exercise jurisdiction in many instances. The approach in the ILC Draft Statute served as useful basis of negotiation in the Preparatory Committee for the ICC because the notion of primacy for national procedures fits the sovereignty concerns of many States. However, the permissive approach in the Statute on the determination of admissibility and the general, rather than specific, criteria on which the Court would decide admissibility challenges proved to be the critical issue during negotiations.
As noted in the Introduction, the principle of complementarity is reflected in the Preamble and Article 1 of the Rome Statute. From this principle derive two important components of the actual functioning of complementarity:
(1) How does the Court become aware that there are conflicts between the exercising of its jurisdiction over a situation or case and the assertion and assumption of jurisdiction by a State?
(2) What does the Court do when faced with such a conflict?
The answers to these two questions form the basis of how the complementarity principle is applied in practice. It may seem more logical to commence with a discussion of the first question; the answers to the second, however, reveal the fundamental essence of the complementarity principle, as encapsulated in the Rome Statute. For this reason, it is preferable to commence with an analysis of the second question.
References(p. 672) A. The Court as Arbiter
The ICC is arbiter of its own jurisdiction. Obviously, the Court is bound by the Rome Statute, as Article 1 and other provisions make clear. It cannot, for example, seek to prosecute crimes not included in Articles 5–8.16 It cannot exercise retroactive jurisdiction or seek to prosecute a minor.17 The Court cannot exercise jurisdiction if a case is inadmissible.18 These limits on the exercise of jurisdiction are clearly set out in the Rome Statute. However, there are aspects of jurisdiction and admissibility which potentially are subject to interpretation. With respect to jurisdiction ratione temporis, the Court may be called upon to determine the precise moment when a crime was committed in comparison with a State’s date of accession to the Statute, in order to assess whether it falls within the Court’s jurisdiction. The Court will certainly have to rule on questions of whether specific criminal conduct meets the definition of a crime in the Statute,19 or the elements thereto. In these and other instances, it is the Court itself which must decide. Article 19(1), for example, provides that the Court shall satisfy itself that it has jurisdiction in any case. Article 17(1), states that it is the Court which shall determine whether a case is inadmissible. These and other provisions, plus the fact that the Statute does not assign this authority to any other entity,20 confirm that the Court has the responsibility and statutory authority to determine jurisdictional and admissibility issues.
B. Complementarity Criteria
The importance of the Court acting as sole arbiter cannot be exaggerated, for it was the key factor in the negotiations leading to a solution to the complementarity issue during the Preparatory Committee and later at Rome.21 It was apparent during the negotiations that the overwhelming majority of States favoured the approach broadly set out in the ILC Draft Statute and, conversely, rejected the concept of concurrent jurisdiction as reflected in the Statutes of the international tribunals, with primacy assigned to the latter.22 It proved relatively easy to find broad agreement among delegations that the Court should defer to States if:
References(p. 673) (i) ‘the case is being investigated or prosecuted’;23 (ii) ‘has been investigated … and the State has decided not to prosecute’;24 (iii) ‘the person concerned has already been tried’25 (ne bis in idem); or (iv) ‘the case is not of sufficient gravity to justify further action by the Court’.26 In the first three of these instances (and, possibly, even in the fourth), the national jurisdiction was or had been exercising its jurisdiction and a putative investigation or prosecution by the Court would have led to a conflict. In such circumstances, giving recognition to the principle of complementarity, it was decided that Article 17 should obligate the Court to declare the case inadmissible27—that is, to recognize the primary duty of the State to prosecute these types of crimes.
The difficult aspect of the negotiations was to develop the criteria setting out the circumstances when the Court should assume jurisdiction even where national investigations or prosecutions had occurred. Two broad concepts emerged: unwillingness and inability. A State unwilling to investigate and prosecute or unable to do so because of armed conflict or other circumstance will not have taken any steps which would meet the criteria set out in Article 17. Therefore, there would be no basis for the Court to declare a case inadmissible. What of the State, however, which is able to initiate some steps towards an investigation or prosecution but the chances of these efforts coming to a satisfactory conclusion are remote? For example, a State, completely engulfed in an armed conflict, may have police and prosecution personnel capable of investigating specific conduct and perhaps even laying charges in a case. However, the courts and judiciary may be totally destroyed, making prosecution impossible. Should the ICC declare the case inadmissible because an investigation was underway? With respect to willingness, the actual steps taken by the authorities of a State to investigate could appear to reveal a willingness to proceed. However, other factors may challenge that appearance, revealing sinister motives for the actions taken by the State. Delegations were faced with these questions when endeavouring to develop an approach which ensured respect for the principle of complementarity, founded on national sovereignty and the obligations of States to prosecute, and yet which allowed the ICC scope to assume jurisdiction where doubts existed that States would or could follow through.
In attempting to resolve this issue, delegations were mindful that the ICC was not envisaged as an appellate body to review decisions of domestic courts. To avoid this result, it was said that the criteria permitting ICC intervention should be as (p. 674) objective as possible. The ILC Draft Statute used the term ‘ineffective’28 as a key criterion and in the Preparatory Committee negotiations, there was broad support for using this term. However, a number of delegations stated forcefully that ineffectiveness was too subjective. Other terms, such as ‘good faith’, ‘diligently’, and ‘sufficient grounds’, were also rejected for the same reason. The concern was that the Court should not take the approach that it could do the job of investigation and prosecution better than the domestic courts, which terms such as ‘effectively’ might imply. An example cited during the negotiations was that the Court should not assume jurisdiction simply because the national authorities were proceeding more slowly (i.e. less efficiently) than other States or the Court itself in handling similar cases. The critical factor, to these delegations, was whether there was a defect in the approach taken by the State which inevitably, if left to its conclusion, would result in a travesty of justice.
The negotiators finally settled on the term ‘genuinely’, even though there was no precedent quoted for the utilization of this word. The term captured the concerns of some delegations by being the least subjective concept considered. It excluded elements of efficiency, while at the same time being more precise than sufficient or reasonable grounds. The phrase bearing the most resemblance to genuineness is perhaps the concept of good faith.29 However, that term was not acceptable, since it was thought to be narrower than genuine. For example, a State may in good faith undertake an investigation, but it is apparent to the outside observer that an objective result cannot be achieved, possibly because the domestic judicial system is partially disabled. The inability of the State to effect an investigation or prosecution is not due to lack of good faith but rather to other, more objective, factors. Thus, to the negotiators of Article 17, the attempt by the State would not be a bad faith exercise but one lacking in genuineness. The term ‘genuinely’ is attached in Article 17 to both the concepts of unwillingness and inability. Thus, if doubts are raised about the willingness or ability of a State to investigate or prosecute a case, the entity30 making the allegation must establish to the Court’s satisfaction that the investigation or prosecution was not genuine.
Having agreed to the key determining factor with respect to admissibility, genuineness, it was then left to set out criteria for the Court to consider in assessing whether States were acting genuinely—for both unwillingness to act or inability References(p. 675) to do so. For the former, Article 17(2), makes clear that at least one of the criteria delineated must be met for the Court to determine that a case is admissible. Article 17 states in part that ‘… the Court shall consider … whether one or more of the following exist, as applicable’. Since the Court appears only obligated to consider, could it make an admissibility determination related to a State’s unwillingness based on criteria not included in Article 17? The drafting of this provision would make such an interpretation seem unlikely. In any event, the three criteria on which the Court must rely are relatively broad. The criteria are:
(1) shielding the person from criminal responsibility;
(2) an unjustified delay in the proceedings which is inconsistent with an intent to bring the person to justice;
(3) the proceedings were not conducted independently or impartially and were not conducted in a manner consistent with bringing the person to justice.
The concept of shielding is itself quite broad and an argument could be made that the other criteria, unjustified delay and independence and impartiality, are simply corollaries of the concept. Nevertheless, the drafters of the Statute decided to provide the Court with three separate criteria.
The criteria for determining admissibility in the Rome Statute have been criticized for several reasons, including the relatively high standards the Court (i.e. the Prosecutor) must meet to have a case declared admissible and for the fact that admissibility issues may embroil the Court in highly complex and litigious jurisdictional matters for years.31 Undoubtedly, the standards are high. However, the underlying premise of the complementarity regime was to ensure that the Court did not interfere with national investigations or prosecutions except in the most obvious cases. Establishing that a State is undertaking investigations and prosecutions for the purposes of shielding a person will not be an easy task, but neither will it be impossible. Practically, in any given situation where crimes under the Statute are alleged to have been committed, there will be numerous perpetrators. The fact that the investigations or prosecutions of some perpetrators led to sham proceedings would likely create a presumption on which the Court would rely. Obvious departures from the normal legal procedures of a State would be another factor that could give rise to serious doubts about the legitimacy of an exercise. For example, bypassing the normal criminal (either civil or military) procedures by appointing a special investigator who is politically aligned with persons close to the accused could also be a determining factor. The transfer of the case(s) to secret tribunals would also be relevant. The chapeau of Article 17(2), obligates the Court in making its determinations to have ‘regard to the principles of due process References(p. 676) recognized by international law’.32 It is quite likely that the Court will find that the questionable practice of secret trials does not meet the principles of due process and, therefore, the intent of a State to use this procedure is to shield the accused from international investigation and prosecution.
The addition of the two other criteria, contained in sub-paragraphs 17(2)(b) and (c), will also assist the Court. A State which inadequately pursues an investigation or prosecution may be unable to prevent the Court from assuming jurisdiction if the Court determines that the delays are unjustified and inconsistent with an intent to bring the person to justice. Bearing in mind the chapeau, the Court must assess objective factors in making a finding of an unjustified delay.33 While Article 17 does not specify what these factors are, obviously a comparison of the case at issue with the usual procedures of the State will be most relevant. For example, if an investigation takes six months before charges are brought against an accused, this may not be an unjustified delay, if the national procedures for similar, serious cases take approximately the same period of time. Conversely, proceedings which exceed the usual national practice and which are not convincingly explained may constitute an unjustified delay or even a shielding of the person from criminal responsibility.
The third criteria relates to the independence and impartiality of the proceedings. As with the second criteria, the Court must be satisfied not only that there are doubts concerning the impartiality and independence of any proceedings, but that these doubts lead the Court to believe that the proceedings are being conducted in a manner inconsistent with bringing the person to justice. Proceedings that are aimed at shielding a person from criminal prosecution (the first criteria) can be said to affect independence and impartiality, thus there is, potentially, an overlap between these criteria. Since the original intent behind the inclusion of this ground was to relate to procedural fairness and due process, the Court may eventually, in its jurisprudence, develop a distinction whereby apparently bona fide proceedings may still be determined to be admissible if other aspects of the proceedings seriously affect independence or impartiality. Again, a key factor for the Court to take account of is whether the proceedings are typical of the usual practices relating to the investigation and prosecution of serious criminal cases in the State in question.
The relevance and importance of comparative analysis were reinforced in the Draft Rules of Procedure and Evidence prepared by the Preparatory References(p. 677) Commission.34 Rule 51 provides that a State may choose to bring to the attention of the Court, when the latter is considering admissibility questions, information ‘showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct’ (emphasis added). The Rule merely creates an opportunity to provide such information for the Court’s consideration and does not obligate States to provide such information. However, it is likely that in any admissibility question, the Court, relying on the premise behind Rule 51, will expect States challenging jurisdiction to offer information that the national proceedings are in keeping with its normal investigations or prosecutions for similar conduct, and that these proceedings are in keeping with international standards.35 The failure of a State to offer this type of information will not be fatal to challenges of admissibility, since the onus remains on the Prosecutor to establish admissibility, but given the inclusion of Rule 51, the absence of any information may make the Prosecutor’s burden much easier.
The negotiation of Article 17(3), was less contentious than defining the concept of unwillingness, largely because inability is a more objective, fact-driven notion. The absence of a functioning prosecutor’s office or a court system are facts which either exist or do not and therefore lend themselves to less subjective interpretation. Yet, it was recognized that some, more specific, criteria were needed to assist the Court in making determinations of inability in admissibility cases. The purpose of including inability in the Statute was to address the situation where there has been a collapse of the institutions of the country, including its judicial system. In these instances, the State may be willing, indeed anxious, to prosecute but the ability to do so does not exist. The example of Rwanda after the genocide was cited by many during the negotiations. Article 17, therefore, first requires that there be a collapse or unavailability of the national judicial system. Two kinds of collapse are addressed. The total collapse of the judicial system is both logical and self-evident. A partial collapse was included in the Draft Statute prepared in the Preparatory Committee but this was changed to ‘substantial’ at the Rome Conference. The reason for the change was to preclude the Court from assuming jurisdiction merely because an armed conflict exists in a State and the judicial system is partially affected. Even in such instances, the State may be able, through shifting resources or transferring the trial to other venues, to effect a genuine prosecution. Article 17 requires that there be a substantial impact on the national References(p. 678) judicial system. In considering what constitutes total or substantial collapse, the Court must consider whether at least one of the following factors exists:
(1) the State is unable to obtain the accused;
(2) the State is unable to obtain the necessary evidence and testimony; or
(3) the State is unable to otherwise carry out its proceedings.
The above criteria are essentially determinations of fact, diminishing the potential for subjective interpretations by the Court, although the third criteria does give the Court some latitude to determine admissibility where unforeseen circumstances block national proceedings. The addition of the last phrase was important because the requirements of establishing a collapse or unavailability, combined with proving one of the two factual considerations, could in some cases prevent the Court from admitting a case even if other defects in the national proceedings would impair a genuine investigation or prosecution. The addition of the third criterion would cover most instances beyond the State’s inability to obtain the accused or the necessary evidence or testimony. For example, the absence of sufficient qualified personnel to effect a genuine prosecution could be a determining factor even if the State has the accused and the evidence.
The admissibility criteria will place an onus on the Prosecutor when his or her efforts to investigate or prosecute are challenged. As explained above, sufficient latitude is given to the Court to ensure that the burden is not insurmountable where a State is or has conducted proceedings in a manner which is not genuine. There is one lacunae in the Statute which could allow for abuse by States. If apparently genuine proceedings are conducted and a person is convicted for conduct covered by the Rome Statute, there would appear to be no way for the Court to assume jurisdiction should the person later be pardoned, paroled, or otherwise freed after a brief or non-existent period of incarceration. A proposal to remedy this gap was made at the Preparatory Committee and was considered at the Rome Conference, but was ultimately not included due to opposition from many States over their concerns with the possibility of the Court’s interference in administrative or executive decision-making.36 The inclusion of such a provision would clearly have been desirable to avoid a situation where a person sought by the Court is convicted and immediately pardoned at the national level, thus apparently precluding the admissibility of the case. In some, perhaps most instances, the Prosecutor may still present to the Court the view that the pardon or parole was conclusive evidence of a lack of genuineness from the outset. The onus will be higher on the Prosecutor because the national proceedings will have occurred and the principle of ne bis in idem will be relevant. However, the possibility exists and (p. 679) the Court may look favourably on the Prosecutor’s request, especially if the actions taken by the State are significantly different from the usual national practice for similar conduct.
Two questions were posed at the commencement of this chapter with respect to admissibility. Returning to the first question, how does the Court become aware that there are conflicts between the exercising of its jurisdiction over a situation or case and the assertion and assumption of jurisdiction by a State? The Rome Statute, supplemented by the Rules of Procedure and Evidence, establishes a complex system to address this question. The system is intended to reinforce the approach taken in the Statute on complementarity, that the Court should allow national proceedings to take primacy unless there are compelling reasons to assume jurisdiction. Articles 15, 18, and 19, as well as several other provisions of the Rome Statute and the Rules, create procedures through which States and the Court interact and by which questions of jurisdiction and admissibility can be raised, considered, and determined. Several important principles underlie the system created. First, is the importance of expeditious action in a criminal proceeding. Secondly, related to the first, is for the Court itself to be involved at an early stage to consider and resolve jurisdiction and admissibility questions. Thirdly, is the need to avoid duplication of efforts at the national and international level which could compromise the proceedings of both. Fourthly, is the principle of justice being done and being seen to be done. These principles are reflected in different aspects of the complementarity regime.
As described in other chapters, the Court’s jurisdiction can be triggered by referrals by States or the Security Council, or through investigations initiated by the Prosecutor. For proprio motu investigations, Article 15 provides that the Prosecutor must analyse the information provided and then determine if there is a reasonable basis to proceed. The factors the Prosecutor must consider in determining reasonable basis are set out in Article 5337 and are:
References(p. 680) The addition of the second factor emphasizes the importance of the principle of complementarity, even at this early stage of a proceeding. Before the Prosecutor can begin an investigation, he or she must take account of Article 17, notably whether there is or has been an investigation at the national level. If so, the Prosecutor must defer unless there are doubts about the genuineness of the national proceedings. Having concluded that a reasonable basis exists to proceed, the Prosecutor must then obtain authorization from the Pre-Trial Chamber. Article 15 provides that the Chamber also determines that there is a reasonable basis to proceed, as well as whether the case38 appears to fall within the jurisdiction of the Court. Both factors are intended to ensure that the Prosecutor is not initiating an investigation where national authorities are already acting. Rule 50 gives the Court flexibility to authorize all or any part of the Prosecutor’s request, to cover situations where the request dealt in part with crimes not included in the Statute or where national authorities were conducting some investigations.
The Statute contemplates that many proprio motu investigations will be prompted by information submitted to the Prosecutor by victims. Article 15 and the Rules elaborate procedures whereby victims can, with appropriate restrictions, play a role in support of the Prosecutor and be privy to the determinations by the Court. The motivation for these procedures was to give those most affected a sense that they had a possible remedy and could influence the Court’s consideration of that remedy. Balanced with this objective, was, first, the desire to create a transparent procedure that nevertheless protected the integrity of a potential investigation and the lives and well-being of victims and witnesses. Second, was the necessity of an expedited procedure to permit a rapid decision on authorization of an investigation so as to allow the Prosecutor to begin before valuable evidence became unavailable. The Rules create a balance between these interests, but the balance can be easily upset. Representations by victims at this stage of the proceedings could provide valuable support to the Prosecutor in his or her efforts to obtain authorization for an investigation, for example, by establishing that the crimes committed fell within the jurisdiction of the Court. This was likely the impetus for the inclusion of victims’ representations in the Statute. However, some victims could have other motivations, such as the desire for the international community to hear their stories or to shame States, their leaders or others believed to be directly or indirectly responsible for their plight, regardless of whether an actual case can be made against them. If, as may be likely, many victims could be involved, allowing many or all to be heard could significantly slow the initiation of an investigation. The Rules give the Court flexibility to address these kinds of References(p. 681) problems, but effective management of the process and balancing the interests of all parties will be a challenge.
In situations where the Pre-Trial Chamber has authorized an investigation or where there has been a State referral and the Prosecutor believes there is a reasonable basis to proceed, Article 18 on preliminary rulings will apply.39 One of the more controversial provisions of the Statute, it was introduced late in the Preparatory Committee and only considered in detail at the Rome Conference. Its inclusion in the Statute created an additional stage in the complementarity regime, and one which occurred even before a specific case was identified. The controversy related to the competing interests involved—the desire to avoid over-lapping investigations by giving primacy to the national proceedings, the need to ensure expeditious determinations if questions of admissibility arose, the concern that a State not acting genuinely could use Article 18 and later challenges to delay proceedings and thereby threaten the Prosecutor’s ability to secure evidence. In drafting Article 18 and the Rules which relate to it, there was a recognition that these interests must be balanced. The first issue to be addressed was how to ensure that competing investigations or proceedings did not occur. Article 18 requires the Prosecutor to inform all States Parties and other States which would normally exercise jurisdiction of the intention to conduct an investigation. The information may be provided confidentially and may be limited to protect witnesses and evidence and prevent absconding by persons who may fear prosecution. However, Rule 52 obligates the Prosecutor to provide sufficient information so that a State may determine if it is examining the same situation. If the information is insufficient, then the State can request additional information under the Rule. This is critical, since Article 18 gives States only one month following notification to request the Prosecutor to defer because it has national proceedings underway. The one-month deadline is unaffected by a State’s request for additional information.
The next question relates to the State’s response and the Prosecutor’s reaction. If it wishes to pursue its own proceedings, the State must request the Prosecutor to defer his or her investigation. Article 18 and Rule 53 provide that the information must be sufficiently detailed to demonstrate that the State is investigating or has investigated criminal acts which relate to the information provided by the Prosecutor in the original notification. As in the case of the original notification, the Statute and the Rules encourage a dialogue between the State and the Prosecutor to ensure that there is no overlap in their respective areas of interest. Thus, if the Prosecutor is uncertain about the nature of the national proceedings as a result of the State’s request to defer, he or she can request additional information References(p. 682) from the State. The notion of dialogue is reinforced by Article 18(5), which permits the Prosecutor to request States for periodic updates on the progress in investigations. While only States Parties are obligated to respond, the failure of a State to respond adequately will likely create a presumption that something untoward is afoot. Should the request, and any supplemental information provided by the State, not convince the Prosecutor of the genuine nature of the national proceedings, or that the latter cover different conduct from that which interests the Prosecutor, the latter can seek authorization for an investigation from the Pre-Trial Chamber. This process constitutes a form of challenge, even though the State has only requested a deferral. Paragraph 7 of Article 18 confirms this and limits the State’s ability to bring a subsequent challenge under Article 19, when the investigation teaches the stage of a specific case, unless there are significant new facts. Moreover, Rule 55 confirms that this process is a challenge by providing that the Prosecutor’s request for authorization is to be determined by the Pre-Trial Chamber using the factors set out in Article 17. Decisions on authorization can be appealed by the Prosecutor of the State concerned, in accordance with Article 18(4).
The concern with the inclusion of Article 18 in the Statute was that it would slow the process of initiating an investigation, making the obtaining of evidence, accused, and witnesses more difficult. Both the Statute and the Rules incorporate provisions designed to diminish this possibility. There is no requirement to hold a hearing (although the Chamber may, if it wishes) and neither the State concerned nor victims have a right to make additional representations to the Chamber. The Rules provide that the Chamber can set its own procedure and the only materials required for the Court to make its determination are the request for authorization by the Prosecutor, the request for deferral by the State, and any additional information provided by the State.40 The Statute and the Rules explicitly (Article 18(4), with respect to appeals) or implicitly (Rule 55, sub-rule 3) call on the Court to address these matters in an expedited manner.
Article 19 and Rules 58–62 set out the procedures with respect to challenges to the jurisdiction of the Court or to the admissibility of a case. These procedures become applicable only after the stages described above have occurred, depending on the nature of the trigger mechanism. In the case of proprio motu investigations, the procedures in Article 15 (a determination by the Prosecutor of a reasonable References(p. 683) basis to proceed and an authorization by the Pre-Trial Chamber) must be completed, followed by compliance with Article 18 (notification to States by the Prosecutor and authorization by the Pre-Trial Chamber if a State requests deferral). In both these instances, as well as in the case of Security Council referrals, the Prosecutor, must always be satisfied that there is a reasonable basis to proceed in accordance with the factors set out in Article 53 (a crime within the jurisdiction of the Court appears to have been committed, the case is admissible in accordance with Article 17, and the investigation would serve the interests of justice). In other words, the Prosecutor, is not bound to proceed with an investigation or prosecution unless there is a challenge.41 There is first a duty to ensure that the Article 53 criteria are met. Once these factors are considered and the Prosecutor decides to proceed, the issue of jurisdiction and admissibility challenges become relevant. Once again, the intent behind the Statute and the Rules is to avoid overlapping proceedings at the national and international level unless the former is defective, and to ensure an expedited process to resolve these matters. Again, to meet these objectives, the Statute creates a type of dialogue between States and the Court. Article 19(11) provides that where the Prosecutor defers an investigation in the light of national proceedings, he or she can request periodic information on the status of those proceedings. This provision has the advantage of demonstrating to the State that the Prosecutor remains interested in the situation and may reactivate his or her investigation should doubts emerge as to the genuineness of the State’s actions.
Article 19 provides that questions of jurisdiction and admissibility may be raised by the Court, the Prosecutor, the accused, a State with jurisdiction, or a State from which acceptance of jurisdiction is required under Article 12. Can these questions be raised regardless of the triggering mechanism? The answer is yes. Even where the Security Council has referred a situation and a case emerges, it is still subject to Article 19. If the Council decision is based in large part on a lack of faith that the State or States concerned are willing or able to genuinely carry out investigations and prosecutions, the Council resolution could include such a determination. As the Court is an independent body, it will not be bound by such a determination, however, the Council’s view is likely to carry a great deal of weight when the Court considers any challenges in this regard.
Article 19 and the Rules endeavour to establish as expeditious a procedure as possible. Thus, challenges may be made only once by States or accused, save in exceptional circumstances. States are obligated to make challenges at the earliest possible moment. Decisions by the Pre-Trial Chamber regarding authorizing References(p. 684) necessary investigative steps pending admissibility rulings shall be made on an expedited basis. The Rules entrust the relevant Chamber with the authority to set its own procedures and there is no obligation for a hearing. Notwithstanding these provisions, the potential for delay at this critical stage does exist. Several States may potentially have jurisdiction and they may bring challenges at different times, corresponding to when decisions are taken nationally to launch investigations. There are no sanctions in the Statute or Rules to punish those States which do not challenge at the earliest moment. The accused is not obligated to challenge at an early stage and therefore can delay until the last moment. Thus, the Prosecutor and Court may be faced with multiple challenges. During consideration of the Rules in the Preparatory Commission, proposals were made to force States to initiate challenges and join these with challenges launched by others. However, such proposals, while laudable, were found to be contrary to the Statute and were not included. A rule was included requiring the Court to decide jurisdiction issues first, then admissibility challenges;42 however, this was not seen as a means to expedite proceedings. In addition to the potential for multiple challenges, the Statute and Rules permit victims to make representations,43 which could slow the process down. Whether this proves to be the case will depend upon the Court itself. As it gains experience with jurisdictional and admissibility questions, it will undoubtedly develop the procedures which best meet the needs of transparency, efficiency, respect for national primacy and urgent action where doubts about national proceedings are raised.
Critics of the complementarity regime in the Rome Statute charge that either it is too weighted in favour of national jurisdictions thus placing too great an onus on the Prosecutor, or that it gives the Court too much discretion to declare cases admissible despite the interest of a State in investigating or prosecuting.44 As with any solution to a complex problem, finding the right balance is the key and it would appear that this result was achieved in Rome. The complementarity regime, including the procedural steps to determine admissibility, are complex and to surmount these, the Prosecutor will have to establish facts supporting the contention that the State is not genuine in its investigatory or prosecutory efforts—i.e. that it is actively blocking the pursuit of justice. While this is not an References(p. 685) insurmountable hurdle, the real concern is the time it takes the Court to make a definitive judgment. For in most criminal prosecutions, time is critical to accumulating evidence, identifying and protecting witnesses, and obtaining the accused. It is here that criticisms of the Statute’s approach to complementarity may ring most true. The opportunity for different parties (accused and States) to raise admissibility challenges at different times and for many of these early determinations to be appealed, could tie the Prosecutor’s hand for lengthy periods at crucial stages of a proceeding. Moreover, the opportunity given to victims to present their observations at different stages, while laudable as a principle, may in fact complicate and slow the Court’s consideration of these issues.
It is important to remember that it is the Court itself which will determine its ability to address these questions in an efficient and fair manner and, ultimately therefore, whether the Court is a success or not. The Statute and the Rules are relatively specific and detailed. However, there is also scope for interpretation and growth by the Court, either in the Court’s regulations45 or its jurisprudence. It would seem inconceivable for any Court to create procedures which effectively tie its hands and prevent it from fulfilling the objectives for which it was created. If the complementarity approach proves so complex that investigations by the Prosecutor become difficult to launch, the Court will undoubtedly cause the regime to evolve, through its jurisprudence or regulations. States Parties also have an obligation to ensure that the Court is an effective tool for international justice. If the complementarity regime proves to be an insurmountable hurdle in bringing perpetrators to justice, then changes to the Rules, and perhaps even the Statute, will have to be considered and implemented. The flexibility built into the Statute and the Rules will, hopefully, make this scenario unnecessary.
ICTY and ICTR
- D. Shraga and R. Zacklin, ‘The International Criminal Tribunal for the Former Yugoslavia’, 5 EJIL (1994);
- V. Morris and M. P. Scharf, The International Criminal Tribunal for Rwanda, Vol. 1 (1998);
- J. R. W. D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (2nd edn., 2000).
- P. Kirsch, ‘Keynote Address’, 32 Cornell International Law Journal (1999) 437;
- W. A. Schabas, ‘Follow Up to Rome: Preparing for Entry into Force of the ICC (p. 686) Statute’, 20 HRLJ(1999) 157;
- H. von Hebel, J. G. Lammers, and J. Schukking (eds.), Reflections on the International Criminal Court (1999);
- R. S. Lee (ed.), The Making of the International Criminal Court (1999);
- R. Wedgwood, ‘The International Criminal Court: An American View’, 10 EJIL (1999) 93;
- J. Pejic, ‘The International Criminal Court: An Appraisal of the Rome Package’, 34 International Lawyer Quarterly (2000) 65.
3 ‘[I]t is the essence of the principle [of complementarity] that if a national judicial system functions properly, there is no reason for the ICC to assume jurisdiction.’ Keynote address by Ambassador Philippe Kirsch, 32 Cornell International Law Journal(1999) 438.
13 The statements of China and Nigeria were indicative of the reservations of some States. The Chinese delegation described the Rwanda Tribunal as ‘a special measure taken by the international community to handle certain special problems’. See Morris and Scharf, supra note 7, at 309–310 note 1090.
14 For a discussion of the work of the ILC on the Draft Statute, see H. von Hebel, ‘An International Criminal Court: A Historical Perspective’, in H. von Hebel, J. G. Lammers, and J. Schukking (eds.), Reflections on the International Criminal Court (1999) at 22–31.
20 A discussion of the settlement of dispute provisions in the Rome Statute is contained in T. Neroni Slade and R. S. Clark, ‘Preamble and Final Clauses’, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999), at 431. As the authors indicate, while some issues of dispute may be referred to the Assembly of States Parties or to the International Court of Justice, Art. 119 makes clear that the so-called ‘judicial functions’, including jurisdiction and admissibility issues fall within the purview of the ICC alone.
22 Ibid. Some delegations favoured a more interventionist Court, while others essentially wanted complete national primacy, even where shielding occurred.
30 Normally, this would be the Prosecutor contesting the State’s claim of a genuine investigation or prosecution, but, as will be seen below, the Court may also, on its own motion, consider admissibility and opportunities for others, such as victims, exist for commenting on the genuineness of a State’s actions.
32 This phrase was one of the few additions to Art. 17 added at the Rome Conference. It was intended as a means to reinforce the point that the Court must use objective criteria in considering national procedures (see Holmes, in Lee (ed.), supra note 21, at 53–54).
33 The Draft article negotiated during the Preparatory Committee used the term ‘undue delay’ but this was amended to ‘unjustified delay’ at the Rome Conference to make the criteria more objective (see Holmes, ibid., at 54).
35 The term ‘international standards’ or similar phrases are used in the Rome Statute and the Rules of Procedure and Evidence. While never defined, they are widely regarded as referring to the body of instruments adopted at the international level in fields relevant to the ICC, such as human rights, criminal law, and humanitarian law.
38 Generally, the term ‘case’ in the Statute refers to a specific case against an accused. However, at the stage of an Art. 15 determination where an investigation has yet to be launched, the term ‘case’ should be construed as covering the potential investigations which could give rise to numerous cases.
40 The Rules were carefully drafted to permit States to submit additional information after the Prosecutor requests authorization under Art. 18 but before the Pre-Trial Chamber rules, and the Court is obligated under Rule 55 to consider these observations if submitted in time. However, the possibility of submitting additional views is not a right and the Chamber is under no obligation to wait for a State to submit these additional views.
41 Decisions by the Prosecutor not to proceed may be reviewed by the Pre-Trial Chamber pursuant to Art. 53, on its own initiative or at the request of the referring State or the Security Council. Only decisions based on the interests of justice (Art. 53(1)(c) and (2)(c)) can be ‘overtuned’ by the Court. In other cases, the Prosecutor is only bound to reconsider.
44 See e.g. R. Wedgwood, ‘The International Criminal Court: An American View’, 10 EJIL (1999) 93; Ambassador David J. Scheffer, Statement to the United Nations General Assembly, 53rd Sess., Sixth Committee, 21 October 1998.