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15 - Situation and case: defining the parameters

from PART IV - Interpretation and application

Published online by Cambridge University Press:  05 November 2014

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

The chapter seeks to unpack the meaning of a number of terms central to the operation of the ICC's complementarity regime, including ‘situation’, ‘case’, ‘investigation’ and ‘prosecution’; examines their application to various stages of the proceedings under Articles 17, 18 and 19 of the Rome Statute; and explores the intersection of complementarity with jurisdiction and gravity.

Introduction

As the International Criminal Court (ICC) establishes its early jurisprudence, a host of issues are starting to give form to the many concepts and terms contained in the Rome Statute. Much, however, remains undefined. The chapter considers the parameters of situations (temporal, territorial, personal, material); the specificity of the term ‘case’ for the purpose of admissibility; and the meaning of the terms ‘investigation’ and ‘prosecution’. It will examine the impact of these definitions on the different stages of the proceedings in order to explore the contours of the Court's admissibility provisions. To the extent that assumptions of complementarity are interwoven into the entire fabric of the Rome Statute, the chapter will also explore the intersection of complementarity with jurisdiction and gravity.

What is a situation?

The term ‘situation’ under the Rome Statute denotes the confines within which the Court determines whether there is a reasonable basis to initiate an investigation and the jurisdictional parameters of any ensuing investigation. As the drafting history reveals, the term was intended to frame in objective terms the theatre of investigations, thereby rejecting the idea that a referring body could limit the focus of the Prosecutor’s activities by reference to a particular conduct, suspect or party.

Type
Chapter
Information
The International Criminal Court and Complementarity
From Theory to Practice
, pp. 421 - 459
Publisher: Cambridge University Press
Print publication year: 2011

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References

Ph.D (LSE), LL.M (Nottingham); Legal Advisor, Office of the Prosecutor, International Criminal Court. The views expressed herein are solely the author's and do not necessarily reflect those of the Office of the Prosecutor or the International Criminal Court. Portions of this chapter are based on an earlier journal publication and are reprinted with the kind permission of the Criminal Law Forum: ‘What is a “Case” for the Purpose of the Rome Statute?’ (2008) 19 Crim. LF 435
Rastan, R., ‘Testing Cooperation: the ICC and National Authorities’ (2008) 2 LJIL441Google Scholar
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Cassese, A., Gaeta, P. and Jones, J. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002) 556–7
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Holmes, J., ‘Jurisdiction and Admissibility’ in R. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001) 326–7Google Scholar
Stahn, C. and Sluiter, G. (eds.), The Emerging Practice of the International Criminal Court (2008) 211
Damaška, M., calling for greater reliance by international criminal courts on national criminal law principles, ‘What is the Point of International Criminal Justice?’ (2008) 83 Chi. Kent L Rev.329Google Scholar
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Prosecutor v. Lubanga, Redacted Version of the Transcripts of the Hearing held on 2 February 2006 and Certain Materials Presented during that Hearing, ICC-01/04–01/06–48, 22 March 2006, 39
see e.g. Report of the Independent Expert Appointed by the Secretary-General on the Situation of Human Rights in the Democratic Republic of the Congo (Titinga Frédéric Pacéré), A/61/475 (2006), repeated in A/HRC/4/7 (2007): ‘The judiciary suffers from a severe lack of financial and human resources and does not have the authority to effectively address the serious crimes committed by warlords or high-placed civil servants’; or A/HRC/7/25 (2008)
see, inter alia, A/60/395 (2005), CCPR/C/COD/CO/3 (26 April 2006), A/HRC/13/63 (8 March 2010)
Kress, C. and Lattanzi, F. (eds.), The Rome Statute and Domestic Legal Orders, vol. I, General Aspects and Constitutional Issues (2000) 29
Stahn, C. and Sluiter, G. (eds.), The Emerging Practice of the International Criminal Court (2009) 135–62
Rastan, R. and Nybondas, M., ‘International Criminal Courts Round-Up’ (2005) 8 YIHL285CrossRefGoogle Scholar
Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court (2008) 692
Kleffner, J. K., Complementarity in the Rome Statute and National Criminal Jurisdictions (2008) 119–23
El Zeidy, M., The Principle of Complementarity in International Criminal Law (2008) 283–92
Rastan, R., ‘What is a “Case” for the Purpose of the Rome Statute?’ (2008) 19 Crim. LF440Google Scholar
Court (2008) 640–4
ICC OTP, Informal Expert Paper on the Principle of Complementarity in Practice, ICC-01/04–01/07–1008-AnxA (2003) 9–10, 15
Olásolo, H., The Triggering Procedure of the International Criminal Court (2005) 40, 145–71
Lee, R. S. (ed.), The International Criminal Court, the Making of the Rome Statute: Issues, Negotiations, Results (1999) 180
ICC OTP, Paper on Some Policy Issues Before the Office of the Prosecutor (September 2003); ICC OTP, Report on Prosecutorial Strategy (14 September 2006)
de Guzman, M. M., ‘Gravity and the Legitimacy of the International Criminal Court’ (2009) 32 Fordham Int'l LJ 1400, 1402Google Scholar
See e.g. Second Joint Report of Seven United Nations Experts on the Situation in the Democratic Republic of the Congo, A/HRC/13/63 (8 March 2010); Advocats sans Frontières, Etude de Jurisprudence: L’application du Statut de Rome de la Cour Pénale Internationale par les juridictions de la République Démocratique du Congo (March 2009)
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