The application of the principle of complementarity to the decision of where to open an investigation

Abstract

Some authors have expressed the view that ‘the complementarity test under Article 17 of the ICC Statute applies where the investigation into a given country or conflict situation has yielded a case’. Nevertheless, Article 53(1)(b) of the ICC Statute and Rule 48 of the ICC Rules of Procedure and Evidence appear to request the application of the complementarity test at a much earlier stage of the proceedings. As a result, the question arises as to what is the object of such an admissibility assessment, considering the early stage of the proceedings at which it must be carried out, as well as the fact that a case only arises at a significantly subsequent stage of the proceedings. This chapter intends to shed some light on this issue. It first analyses how the ICC Pre-trial, Trial and Appeals Chambers have interpreted so far the distinction between the notions of ‘situation’ and ‘case’ provided for in the ICC Statute. It then turns its attention to the notion of ‘admissibility of situations’ (as opposed to ‘admissibility of cases’). It analyses its content, relevance and, most importantly, whether there is any room for such a notion under the current statutory scheme, as interpreted in the ICC case law so far. Finally, the last section of the chapter advances some guiding criteria for the performance of admissibility assessments of situations. Introduction Up to March 2009, the International Criminal Court (ICC) has been conducting (i) preliminary examinations of a number of ‘situations’, including those of Colombia, Afghanistan, Chad, Kenya, Ivory Coast and Georgia; (ii) investigations into the ‘situations’ in the Democratic Republic of the Congo (DRC), Northern Uganda, Darfur (Sudan) and the Central African Republic (CAR); and (iii) pre-trial or trial proceedings in three ‘cases’ ( Lubanga , Katanga and Ngudjolo and Bemba ). Moreover, trial proceedings in four additional ‘cases’ are on hold pending the suspects’ arrest or voluntary appearance ( Kony et al ., Ntaganda , Harun and Kushayb and Bashir ).