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

124 introduction to the international criminal court
inadmissible according to the terms of Article 17, or because it is ‘not in
the interests of justice, taking into account all the circumstances, including
the gravity of the crime, the interests of victims and the age or infirmity of the
alleged perpetrator, and his or her role in the alleged crime’. 20 The State party
or the Security Council, depending on the originator of the case, may apply
to the Pre-Trial Chamber for review of the Prosecutor’s decision not to
proceed. 21 The Statute says that the Pre-Trial Chamber may ‘request’ the
Prosecutor to reconsider the decision. The language is lukewarm, implying
that ultimately the discretion to investigate or not to investigate resides with
the Prosecutor.
Rulings on jurisdiction and admissibility
The principle of complementarity, which is discussed at length in chapter 4,
prevents the Court from investigating or trying cases that are already being
addressed by national legal systems. In order to protect State sovereignty
and ensure that the principle of complementarity is effectively applied, the
Statute saddles the Prosecutor with an onerous procedure that must be
fulfilled before investigation can proceed. Two distinct preliminary proceedings
are envisaged in the Statute allowing for contestation on either
jurisdictional or admissibility grounds. The first, set out in Article 18, is
entitled ‘Preliminary rulings regarding admissibility’, and applies only to
investigations initiated by a State party referral or at the initiative of the
Prosecutor. The second, set out in Article 19, is described as ‘Challenges
to the jurisdiction of the Court or the admissibility of a case’, and applies
generally to cases before the Court.
Pursuant to Article 18, which applies to all cases except those referred
by the Security Council, the Prosecutor is required to publicise his or her
intention to proceed with an investigation. Notice must be sent to all States
parties to the Statute as well as to any and all States that would normally
exercise jurisdiction over the crimes concerned. In practice, this means that
the State where the crime has been committed as well as the State of nationality
of the alleged offender will normally be informed. Indeed, on a generous
interpretation of the requirement, it could be argued that all States
in the world be informed as they may normally exercise jurisdiction over
20 Rome Statute, Art. 53(2).
21 Ibid., Art. 53(3); Rules of Procedure and Evidence, Rules 107–110.