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.