Abstract
Current jurisprudential trends empower the International Criminal Court (ICC) Prosecutor to override domestic investigative authorities in a manner that violates the letter and spirit of the Rome Statute. Sovereign states have primary responsibility to document, investigate and prevent atrocity crimes. Yet, current ICC practice subverts domestic enforcement efforts. No provision of the Rome Statute permits the Office of the Prosecutor (OTP) to substitute its unfettered judgment over the good-faith discretion of domestic prosecutors. ICC judges have created de facto institutional jurisdictional primacy by relying upon mere assertions regarding the insufficiency of domestic efforts. This trend is particularly problematic at the liminal phase from the preliminary examination (PE) to an authorised investigation because OTP policy preferences supersede good-faith domestic investigations and prosecutorial assessments. Juridical templates for assessing admissibility have been extrapolated from later phases of particularised cases into the PE phase. Current practice effectively eliminates sovereign prosecutorial discretion. Good-faith exercises of domestic prosecutorial discretion should not be constrained by post hoc Court-created straitjackets. This article dissects this problematic arc and proffers a model for harmonising domestic investigative efforts within the structure and intent of the Rome Statute. Its conclusions recommend reforms to ameliorate a foreseeable crisis of cooperation that could cripple an unreformed Court.
Highlights
The Prosecutor and the Pre-Trial Chambers of the International Criminal Court (ICC) have created a mechanical template for addressing admissibility determinations in the early phases of Downloaded from https://www.cambridge.org/core
In Article 112, after paragraph (4), the following language should be added as a new paragraph (4)bis: The Assembly shall have a standing Complementarity Coordination Committee composed of seven representatives selected by States Parties to serve as the forum for collective consultation with the Court and to develop consensus on admissibility and related matters
A position of latent hostility towards sovereign states that seek to implement their organic prosecutorial capacity forces Chambers to engage in distorted readings of the admissibility provisions of the Rome Statute
Summary
The Prosecutor and the Pre-Trial Chambers of the International Criminal Court (ICC) have created a mechanical template for addressing admissibility determinations in the early phases of. Where no relevant investigations and/or prosecutions were ongoing at the national level, the presumption does not apply.[13] Applying extant jurisprudence, ICC judges infer domestic inaction at later stages of proceedings if a specific perpetrator was not investigated at the domestic level.[14] One of the most distinguished experts in the field refers to this as the ‘third – unwritten – condition of the complementarity test’.15 This results in automatic findings of admissibility that empower the OTP. Applying this latitude at the PE stage when seeking formal authorisation of investigations from Pre-Trial Chambers, the OTP has consistently disregarded domestic investigations and other enforcement efforts.[19] In practice, ICC judges permit the OTP to disregard domestic decisions based on generalised assertions that remain unexamined.[20] Nor do ICC judges require granular analysis of the perceived inadequacies of pre-existing domestic decision making Reliance on such prosecutorial assumptions creates unwarranted asymmetry between the Court and domestic prosecutors, which contravenes the drafters’ intentions. The following sections describe this disconnect and proffer reasoned solutions
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