An Introduction To The International Criminal Court - Institute for ...

68 introduction to the international criminal court
same crimes. Moreover, the drafters of the Rome Statute sought to limit the
ability of the Court to try cases over which it has, at least in theory, jurisdiction.
Consequently, they have required that the State’s own courts get the
first bite at the apple. Only when the domestic justice system is ‘unwilling’ or
‘unable’ to prosecute can the International Criminal Court take over. This
is what the Statute refers to as admissibility.
The Rome Statute distinguishes between these two related concepts, jurisdiction
and admissibility. Jurisdiction refers to the legal parameters of the
Court’soperations,intermsofsubjectmatter(jurisdiction rationemateriae),
time (jurisdiction ratione temporis) and space (jurisdiction ratione loci) as
well as over individuals (jurisdiction ratione personae). The question of
admissibility arises at a subsequent stage, and seeks to establish whether
matters over which the Court properly has jurisdiction should be litigated
before it. To a large extent, the question of jurisdiction concerns the Court’s
consideration of a ‘situation’ in which a crime has been committed, whereas,
by the time the issue of admissibility is being examined, prosecution will
necessarily have progressed to the identification of a ‘case’. 4 TheCourtmay
have jurisdiction over a ‘situation’, because it arises within the territory of
a State party or involves its nationals as perpetrators, yet a specific ‘case’
will be inadmissible because the individual suspect is being prosecuted by
a national legal system. ‘Admissibility’ seems to suggest a degree of discretion,
whereas the rules of jurisdiction are strict and brook no exception. The
Court must always satisfy itself that it has jurisdiction over a case, whether
or not the parties raise the issue, whereas its consideration of admissibility
appears to be only permissive. Nevertheless, the Court may decide to examine
the admissibility of a case on its own initiative, even if the issue is not
raised by one of the parties. 5 According to John Holmes, ‘[a]dmissibility, on
the other hand, was less the duty of the Court to establish than a bar to the
Court’s consideration of a case’. 6
But the line between jurisdiction and admissibility is not always easy to
discern, and provisions in the Statute that seem to address one or the other
concept appear to overlap. For example, in a clearly jurisdictional provision,
4 Ruth B. Philips, ‘The International Criminal Court Statute: Jurisdiction and Admissibility’, (1999)
10 Criminal Law Forum 61 at 77.
5 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 (hereinafter ‘Rome
Statute’), Art. 19(1).
6 John T. Holmes, ‘The Principle of Complementarity’, in Roy Lee, ed., The International Criminal
Court: The Making of the Rome Statute: Issues, Negotiations, Results, The Hague: Kluwer Law
International, 1999, pp. 41–78 at p. 61.