CYIL 2015

ONDŘEJ SVAČEK CYIL 6 ȍ2015Ȏ prosecution is not or has not been genuine, i.e. where the State is unwilling or unable to genuinely carry out investigation or prosecution. 10 This particular aspect will be analyzed in detail in the next chapter. Complementarity may be assessed discretely (under Article 18 and Article 19 of the ICC Statute) or in the context of other decisions (e.g. issuance of arrest warrant under Article 58 of the ICC Statute). 11 Under Article 18 a State may seek a ruling on admissibility at an early stage of proceedings, even before a ‘case’ has been identified, i.e . when the matter is still at the ‘situation’ stage. 12 This provision has not been applied in practice – C. Stahn considers it to be a dead letter. 13 On the other hand, challenges to admissibility of a case under Article 19 have been used widely by States (Kenya, Libya and Côte d’Ivoire), 14 defendants (Katanga, Bemba, Gbagbo), and even by the Court itself on the basis of Article 19(1) of the ICC Statute (Uganda). Early case law of the ICC shed some light on basic concepts of complementarity; nevertheless it did not escape some critics pointing to the fact that adopting a strict interpretation of Article 17 ( e.g. the same person and substantially the same conduct test or understanding of unwillingness and inability) makes it difficult for States to meet its requirements. 15 Some of the scholars even proposed an alternative approach on how to assess the willingness of States to genuinely carry out investigation and prosecution. 16 These ideas nevertheless extend beyond the scope of the present article 10 Unwillingness is defined in Article 17(2) of the ICC Statute, inability in Article 17(3) of the ICC Statute. Unwillingness and inability are therefore exceptions to the inadmissibility principle. Compare SAFFERLING, Christoph. International Criminal Procedure . Oxford: OUP, 2012, p. 102. 11 In the latter scenario the ACH ruled that the PTCH should exercise its discretion in consideration of admissibility only when it is appropriate in the circumstances of the case, bearing in mind the interest of the suspect. Such circumstances may include instances where a case is based on the established jurisprudence of the Court, uncontested facts that render a case clearly inadmissible. To put it differently, the PTCH should only consider admissibility on an exceptional basis when issuing an arrest of warrant. Situation in the Democratic Republic of the Congo . ICC-01/04-169. Judgment on the Prosecutor’s Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision on the Prosecutor’s Application for Warrant of Arrest, Article 58, ACH, 13 July 2006, para 52. 12 Schabas, W.: sub 8, p. 354. The dividing line between ‘situation’ and ‘case’ is not precise. The potential case starts to become a case in the course of investigation; this process is completed by issuance of an arrest of warrant or a summons to appear. Compare SCHABAS, William. Selecting Situations and Cases. In: Stahn, Carsten (ed.) The Law and Practice of the International Criminal Court . Oxford: OUP, 2015, p. 367. 13 Stahn, C.: sub 1, p. 240. 14 Challenges to admissibility by States were expected in situations where the ICC engaged without consent of domestic authorities, i.e. in the context of the Security Council (SC) referral (Libya) and proprio motu action of the Prosecutor (Kenya). Strategy of Côte d’Ivoire is twofold: with respect to Laurent Gbagbo it sided the ICC, with respect to his wife, Simon Gbagbo, it (unsuccessfully) challenged admissibility and preferred exercise of domestic jurisdiction. 15 PITTS, Christopher. Being Able to Prosecute Saif Al-Isalam Gaddafi: Applying Article 17 (3) of the Rome Statute to Libya. Emory International Law Review . 2013, vol. 27, p. 1339. 16 HELLER, Kevin Jon. A Sentence-Based Theory of Complementarity. Harvard International Law Journal. 2012, vol. 53, no. 1, pp. 86-133.

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