A Critical Review of the ICC's Recent Practice concerning Admissibility Challenges and Complementarity

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CONTENTS

I   Introduction
II  The Two-Fold Test in Art 17: From Pragmatic Assistance in Self-
    Referrals to Rejection of State Parties' Admissibility Challenges
III Determining Activity: Exporting the 'Same Person/Same Conduct'
    Test to Contexts where State Parties Challenge Admissibility
IV  Setting Thresholds for Evidence of Investigatory Action at the
    National Level
V   Clarifying Procedural Issues with regard to Admissibility
    Challenges
VI  Should the ICC Judges Have Dismissed Kenya's Admissibility
    Challenge on Grounds of Inaction?
VII Conclusions

I INTRODUCTION

The principle of complementarity, whereby national courts are given priority in the prosecution of international crimes, has often been pointed to as the cornerstone of the Rome Statute of the International Criminal Court ('Rome Statute'), (1) a key concept which permeates the entire structure and functioning of the International Criminal Court ('ICC'). (2) Although the legal literature has been preoccupied with discussing the nature and scope of complementarity under the Rome Statute, until recently the jurisprudence of the ICC has only to a limited extent dealt with a number of key issues pertaining to complementarity. (3)

However, the Court's recent practice--specifically a series of decisions, including two Appeals Chamber decisions, rejecting an admissibility challenge filed by the Government of Kenya (4)--offers a significant contribution to the understanding of complementarity. These decisions have not yet been comprehensively assessed in the literature on the ICC and complementarity. (5) Against the backdrop of existing case law and the literature on the topic, this note identifies four key contributions of these decisions, each of which is explored in turn.

First, as is examined in Part II, the decisions seem to present a final blow to the perception that the principle of complementarity means that the ICC can only step in if a state with jurisdiction is unwilling or unable to investigate and prosecute the crime itself. Instead, the decisions suggest that art 17 of the Rome Statute entails a two-fold test, where it must first be determined whether a national proceeding in fact exists. Only if this can be answered in the affirmative does it then become relevant to examine whether the state in question is unwilling or unable to prosecute the crimes. Inactivity, it is held, therefore automatically renders a case admissible before the Court. While in legal terms this view would simply seem to consolidate the approach taken by the ICC so far, these decisions differ because they relate not to a self-referral, as has been the case previously, but rather to a state party which is opposed to the Court's intervention and challenges admissibility with reference to its willingness and ability to try the crimes. The Court's willingness to challenge Kenya--a state party to the Rome Statute--on this issue points towards the development of a stronger and more self-confident Court, as is discussed in this note's conclusions.

Secondly, as discussed in Part III, the Court's decisions clarify the meaning of 'inactivity'. Once an arrest warrant or a summons to appear has been issued, it is no longer sufficient for determining activity that the state with jurisdiction over the crimes conduct investigations into the violence that triggered the Court's intervention. Instead, it is required that the state in question investigate the same person as well as the same criminal conduct.

Thirdly, the decisions set standards in terms of the evidence required for a determination that national proceedings exist, as is examined in Part IV. For example, the Court clarifies that a state challenging admissibility at the case stage must provide evidence pointing to specific investigative steps that have already been taken, as opposed to simply stating that national proceedings have commenced or offering promises that progress reports will be provided to the Court in the future. …

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