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

Judiciary – Key Decisions Admissibility
encapsulated a high threshold for unwillingness and
inability, Judge Ušacka held that ‘the Court should not
circumvent this threshold created by unwillingness or
inability by requiring a State to prove, eg the existence
of a full-fledged investigation or prosecution of a
case in order to establish that there is no situation of
inactivity’. 1660 She stressed that in its determination
of inactivity, the Chamber should adhere to the spirit
of the Statute. With regards to the case at hand, Judge
Ušacka held that the Pre-Trial Chamber failed to give
sufficient weight to the sovereign rights of Kenya. 1661
She found that the Pre-Trial Chamber failed to
appreciate that it should have employed its discretion
to adapt the proceedings to the current case and
should have accepted the submission of additional
information by Kenya. She held that ‘more importantly,
though, the Pre-Trial Chamber did not fully consider this
matter in light of the fact that, within a short period of
time, Kenya would reach the level of an investigation
that would satisfy the standards of the Pre-Trial
Chamber’. 1662
Fundamentally, Judge Ušacka held that the Pre-
Trial Chamber decision rejecting the admissibility
challenge should be reversed. In her opinion, the Pre-
Trial Chamber should reconsider the admissibility
challenge and the matters arising from it after
conducting the proceedings in a way that fully balances
all relevant interests as required by the principle of
complementarity.
DRC
The Prosecutor v. Callixte Mbarushimana
On 10 January 2011, the Defence challenged the
validity of the Arrest Warrant against Callixte
Mbarushimana, 1663 This was not a direct challenge to
the admissibility of the case against Mbarushimana,
and the Defence acknowledged that a determination
of admissibility was not necessarily a prerequisite for
the issuance of an arrest warrant. However, it cited
an Appeals Chamber decision from the DRC Situation
to the effect that a Pre-Trial Chamber should exercise
its discretion to issue an arrest warrant only when
appropriate to circumstances of the case, circumstances
that could include the issue of admissibility. 1664
The Defence argument rested on the Prosecutor’s
responsibility to provide ‘all decisive information’ to
the Chamber to enable it to exercise its discretion,
including ‘uncontested facts that render a case clearly
1660 ICC-01/09-01/11-336 and ICC-01/09-02/11-342, para 27.
1661 ICC-01/09-01/11-336 and ICC-01/09-02/11-342, para 28.
1662 ICC-01/09-01/11-336 and ICC-01/09-02/11-342, para 28.
1663 ICC-01/04-01/10-32.
1664 ICC-01/04-169, para 52.
inadmissible’. 1665 When submitting his application for
an Arrest Warrant against Mbarushimana under Article
58 in August 2010, the Prosecutor informed the Pre-
Trial Chamber that the criminal acts alleged against
Mbarushimana were not the subject of an investigation
or prosecution in any state. 1666 The Prosecution claimed
that Mbarushimana had been no more than a potential
suspect in the investigations undertaken by the German
criminal authorities, 1667 and went on to emphasise that
no investigation or prosecution was being undertaken
against Mbarushimana for the same conduct in any
national jurisdiction, including the DRC, Rwanda, France
or Germany. 1668 When issuing the Arrest Warrant, the
Pre-Trial Chamber stated that it was satisfied that there
was no reason for it to exercise its discretion to conduct
a proprio motu determination of admissibility in the
case. 1669
The Defence claimed that, contrary to the Prosecutor’s
assertion in August 2010, Mbarushimana was under
investigation by the German authorities at the time
of the issuance of an Arrest Warrant against him. 1670
According to documents cited by the Defence, the German
investigative proceedings against Mbarushimana
were only terminated on 3 December 2010, in order
to facilitate his prosecution before the International
Criminal Court. 1671 The Defence claimed that, by allegedly
withholding this ‘decisive information’ from the Pre-Trial
Chamber, the Prosecutor had prevented the Chamber
from exercising its discretion to rule on admissibility, a
ruling which the Defence believed would have held the
case to be inadmissible. The Defence requested that the
Arrest Warrant be rendered void, since it was sought and
issued at a time when the case against the accused was
inadmissible, and that Mbarushimana should be released
from detention immediately. 1672 On 28 January 2011, the
Defence challenge was rejected by the Pre-Trial Chamber
on procedural grounds, as it was not a valid challenge to
the validity of an Arrest Warrant under Rule 117(3). 1673
Rule 117(3) provides that ‘a challenge as to whether the
warrant of arrest was properly issued in accordance with
article 58(1)(a) and (b), shall be made in writing to the
Pre-Trial Chamber’. In the view of the Chamber and in
accordance with established case law of the Court, issues
relating to the admissibility of a case do not qualify as
issues relevant to determine ‘whether an arrest warrant
was properly issued’ within the meaning of Rule 117(3). 1674
1665 ICC-01/04-169, para 52.
1666 ICC-01/04-01/10-11-Red, para 166.
1667 ICC-01/04-01/10-11-Red, paras 172-173.
1668 ICC-01/04-01/10-11-Red, para 174.
1669 ICC-01/04-01/10-1, para 9.
1670 ICC-01/04-01/10-32, paras 11-13.
1671 ICC-01/04-01/10-32, paras 14.
1672 ICC-01/04-01/10-32, paras 18.
1673 ICC-01/04-01/10-50.
1674 ICC-01/04-01/10-50, para 11.
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