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THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME
conduct that is subject to the national investigation is substantially the same
conduct that is alleged in the proceedings before the Court;7
b) the expression ‘the case is being investigated’ must be understood as requiring
the taking of concrete and progressive investigative steps to ascertain whether
the person is responsible for the conduct alleged against him before the
Court; these investigative steps may include interviewing witnesses or
suspects, collecting documentary evidence, or carrying out forensic analyses;
c) the determination of what is ‘substantially the same conduct’ as alleged in the
proceedings before the Court will vary according to the concrete facts and
circumstances of the case and, therefore, requires a case-by-case analysis;
d) the assessment of the subject matter of the domestic proceedings must focus
on the alleged conduct and not on its legal characterization; indeed, the question
of whether domestic investigations are carried out with a view to prosecuting
‘international crimes’ is not determinative of an admissibility challenge and a
domestic investigation or prosecution for ‘ordinary crimes’, to the extent that
the case covers the same conduct, shall be considered sufficient;
Inactivity, or failure by a State to take any measure against those involved in
the commission of crimes falling within the jurisdiction of the ICC renders the case
admissible before the Court. Inactivity on the part of a State having jurisdiction over
the case therefore precludes assessment of unwillingness or inability.8 The ACH has
established an important distinction between inaction, on one hand, and unwillingness
and inability on the other. In this respect, it clarified that the terms unwillingness
and inability under Article 17 refer to a situation that only arises after the opening of
a formal investigation by the State having jurisdiction over the case, while inaction
denotes the absence of any investigative step.9
Even if the case is being or has been investigated or prosecuted by the State
with jurisdiction, the ICC retains admissibility where domestic investigation or
the same level in the hierarchy being investigated by the ICC. The Prosecutor v. Muthaura, Kenyatta
and Hussein Ali. ICC-01/09-02/11-96 Decision on the Application by the Government of Kenya
Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, PTCH II, 30
May 2011, para 50.
7 The ICC refused an alternative test (comparative gravity test) according to which the case is admissible
only if the scope of investigation by the ICC would significantly exceed in gravity the scope of national
investigations. The Prosecutor v. Katanga and Chui. ICC-01/04-01/07-949. Motion Challenging the
Admissibility of the Case by the Defence of Germain Katanga, pursuant to Art 19 (2) (a) of the Statute,
11 March 2009, para 46.
8 SCHABAS, William. The International Criminal Court: A Commentary on the Rome Statute. Oxford:
OUP, 2010, pp. 340-344.
9 The Prosecutor v. Katanga and Chui, sub 3, paras 75-78. ABDOU, Mohamed. Article 17(1)(a). In: Case
.