CYIL 2015

ONDŘEJ SVAČEK

CYIL 6 ȍ2015Ȏ

Introduction – Setting the Stage It is almost impossible to start a discourse on complementarity and the International Criminal Court (ICC or Court) without saying that complementarity is the cornerstone of the Rome Statute. 1 The principle of complementarity, as a part of admissibility provided in Article 17(1)(a)(b) of the Rome Statute, limits the exercise of jurisdiction of the ICC: the ICC cannot exercise jurisdiction over a case when the matter is being or has been appropriately dealt with at a national level. 2 Basic features of this principle have already been elaborated on in early case law and are being referred to in a routine manner. In the Katanga and Chui case, the Appeals Chamber (ACH) held that: [I]n considering whether a case is inadmissible under article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability. To do otherwise would be to put the cart before the horse. 3 The principle of complementarity therefore envisages two scenarios: present investigation or prosecution, or past investigation followed by the decision not to prosecute. 4 The basic features (principles) of complementarity were set out by the Pre-Trial Chamber I (PTCH) in the Al-Senussi case as follows: 5 a) a determination of admissibility is case-specific, the constituent elements of a case before the Court being the ‘person’ and the alleged ‘conduct’; accordingly, for the Chamber to be satisfied that the domestic investigation covers the same ‘case’ as that before the Court, it must be demonstrated that: a) the person subject to the domestic proceedings is the same person against whom the proceedings before the Court are being conducted; 6 and b) the 1 STAHN, Carsten. Admissibility Challenges before the ICC. From Quasi-Primacy to Qualified Deference? In: Stahn, Carsten (ed.) The Law and Practice of the International Criminal Court . Oxford: OUP, 2015, p. 228. 2 SCHABAS, William. An Introduction to the International Criminal Court . 2nd edition. Cambridge: CUP, 2004, p. 85. 3 The Prosecutor v. Katanga and Chui . ICC-01/04-01/07-1497. 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, ACH, 25 September 2009, para 78. 4 Decision not to prosecute within the meaning of Article 17(1)(b) of the ICC Statute does not cover the decision of a State to close proceedings against a suspect because of his or her surrender to the ICC. The Prosecutor v . Katanga and Chui , sub 3, para 83. 5 The Prosecutor v. Al-Senussi . ICC-01/11-01/11-466-Red. Decision on the admissibility of the case against Abdullah Al-Senussi, PTCH I, 11 October 2013, paras 32-34. 6 The ACH refused the contention of the Kenyan government that the complementarity requirement would be met even in a situation where domestic authorities investigate and prosecute persons at

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