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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.