CYIL 2015

274

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.

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.

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.

The principle of complementarity therefore envisages two scenarios: present

investigation or prosecution, or past investigation followed by the decision not to

prosecute.

The basic features (principles) of complementarity were set out by the

Pre-Trial Chamber I (PTCH) in the

Al-Senussi

case as follows:

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;

and b) the

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.

SCHABAS, William.

An Introduction to the International Criminal Court

. 2nd edition. Cambridge:

CUP, 2004, p. 85.

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.

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.

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.

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