Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary
Key Decisions
Admissibility
Under Article 17(1) of the Rome Statute:
the Court shall determine a case inadmissible where
(a) the case is being investigated or prosecuted by a
State which has jurisdiction over it, unless the State
is unwilling or unable genuinely to carry out the
investigation or prosecution; (b) the case has been
investigated by a State which has jurisdiction over it
and the State has decided not to prosecute the person
concerned, unless the decision resulted from the
unwillingness or inability of the State genuinely to
prosecute; (c) the person concerned has already been
tried for conduct which is the subject of the complaint,
and a trial by the Court is not permitted under Article
20, paragraph 3; (d) the case is not of sufficient gravity
to justify further action by the Court.
Article 17(1) encapsulates the principle of complementarity, one of the key
principles of the Rome Statute. Pursuant to this principle, the ICC can only
exercise jurisdiction over a case if the State Party in question is unable or
unwilling to genuinely prosecute the crimes in question. To determine a State’s
unwillingness, the Court must consider whether the domestic proceedings are
being undertaken to shield the person concerned from criminal responsibility,
whether there is an unjustified delay or whether the proceedings are not being
conducted independently or impartially. 1579 A finding of inability is based on
an assessment as to whether, due to a complete or substantial collapse or
unavailability of the national judicial system, the State is unable to carry out
proceedings and the collection of evidence. 1580
1579 Article 17(2).
1580 Article 17(3).
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