The evolution of the ICC jurisprudence on admissibility

doi:10.1017/CBO9781316134115.026

18 - The evolution of the ICC jurisprudence on admissibility

from PART IV - Interpretation and application

Published online by Cambridge University Press: 05 November 2014

Ben Batros

Edited by

Carsten Stahn and

Mohamed M. El Zeidy

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Carsten Stahn: Affiliation:
Universiteit Leiden
Mohamed M. El Zeidy: Affiliation:
International Criminal Court

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Summary

The principle of complementarity, and the admissibility provisions which implement it, were the subject of little examination in the first years of the International Criminal Court's (ICC) operation. However, between September 2008 and September 2009, three appeal judgments on admissibility were delivered or unsealed. This chapter examines these judgments, and related proceedings, providing a structured analysis of the state of the ICC's jurisprudence on admissibility. It examines both substantive and procedural aspects of admissibility, identifying the elements which have now been settled by the Appeals Chamber, and considers what this emerging jurisprudence tells us about the purpose and focus of the different limbs of Article 17.

Introduction

The principle of complementarity is, without doubt, one of the defining features of the Rome Statute. Nevertheless, despite being described as the cornerstone of the Statute, the admissibility provisions were the subject of relatively little judicial examination during the early years of the Court's operations. Recently, this has changed. A suite of three appeal judgments which were delivered or unsealed between September 2008 and September 2009, and the proceedings which led to these judgments, have now laid a solid foundation for our understanding of the principle of complementarity and the interpretation of the admissibility provisions of the Statute.

Type: Chapter
Information: The International Criminal Court and Complementarity
From Theory to Practice
, pp. 558 - 602

DOI: https://doi.org/10.1017/CBO9781316134115.026 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2011

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References

Holmes, J. T., ‘The Principle of Complementarity’ in R. S. Lee (ed.), The International Criminal Court: the Making of the Rome Statute (1999) 41 at 73Google Scholar

Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (2nd edn, 2009) 605 at 606, para. 1 (‘Art. 17 dealing with admissibility issues is the cornerstone of the Rome Statute’). This has also been recognized by the Court: Prosecutor v. Kony et al., ICC-02/04–01/05–377, 10 March 2009, para. 34

A subsequent decision on a challenge to admissibility in the case of Prosecutor v. Bemba, ICC-01/05–01/08–802, 24 June 2010 has also been appealed (ICC-01/05–01/08–804, 28 June 2010; ICC-01/05–01/08–844, 29 July 2010). However, no judgment has been delivered on this appeal at the time of writing

Prosecutor v. Kony et al., ICC -02/04–01/05–1-US-Exp, 12 July 2005, 2 (unsealed pursuant to ICC-02/04–01/05–52, 13 October 2005)

Prosecutor v. Katanga and Ngudjolo, ICC-01/04–01/07–1497, 25 September 2009, para. 116 (‘Katanga Admissibility Appeal Judgment’)

Batros, B., ‘The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC’ (2010) 23 LJIL343CrossRef Google Scholar

Ibid. para. 79. Thus, while the Prosecutor explicitly set out a policy of prosecuting ‘the leaders who bear most responsibility for the crimes’ (or ‘those who bear the greatest responsibility for the most serious crimes’, ‘Draft Prosecutorial Strategy 2009–2012, 18 August 2009, 6), he has equally made it clear that ‘[i]n some cases the focus of an investigation by the Office of the Prosecutor may go wider than high-ranking officers if, for example, investigation of certain types of crimes or those officers lower down the chain of command is necessary for the whole case’. (ICC OTP, Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003) 3)

Lee, R. S. (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001) 321, 334–5

Cassese, A., Gaeta, P. and Jones, J. (eds.), The Statute of the International Criminal Court: A Commentary (2002) 667, 676–7

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In March 2009, the Trial Chamber set the date for the commencement of trial of Prosecutor v. Katanga and Ngudjolo, ICC -01/04–01/07–99924, September 2009. That date was subsequently postponed until 24 November 2009 (Prosecutor v. Katanga and Ngudjolo, ICC -01/04–01/07–1442, 31 August 2009)

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Katanga Admissibility Decision, supra note 44, para. 79; Katanga Admissibility Appeal Judgment, supra note 58, paras. 85–6. The Prosecutor has also recognized this duty, see ICC OTP, Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003) 5

Provided that the state cooperates with the Court under Part 9 of the Rome Statute: Katanga Admissibility Decision, supra note 44, para. 79; Katanga Admissibility Appeal Judgment, supra note 58, para. 85. See further ICC OTP, Informal Expert Paper on the Principle of Complementarity in Practice, ICC-01/04–01/07–1008-AnxA (2003) 15, para. 61 and note 24

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Schabas, supra note 184, at 13. For an example, see Prosecutor v. Kony et al., ICC-02/04–01/05–68, 2 December 2005, paras. 4–5

In addition, the ICC will only prosecute a small number of cases: ‘there are limits on the number of prosecutions the ICC can bring’ (ICC OTP, Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003) 4

In this regard, the Prosecutor has recognized both the role that admissibility assessments must play in all phases of the proceedings (ICC OTP, Informal Expert Paper on the Principle of Complementarity in Practice, ICC-01/04–01/07–1008-AnxA (2003) 9–13), and has also developed internal policies and practices guiding the selection of cases (as well as on related issues such as gravity, the interests of justice, and positive complementarity, see Draft Prosecutorial Strategy 2009–2012, 18 August 2009, 6)

de Guzman, , supra note 188, at 1403–16

Danner, A. M., ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’ (2003) 97 AJIL 510, 522, 542CrossRef Google Scholar

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