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 RUTH B. PHILIPS*

THE INTERNATIONAL CRIMINAL COURT STATUTE:

JURISDICTION AND ADMISSIBILITY

1. INTRODUCTION

As a permanent, multilateral, treaty-based, international criminal tribunal

with global jurisdiction to prosecute individuals, the International Crim-
inal Court is without precedent or equivalent.1 The creation of the Court
presents a unique puzzle of international institution-building, to which
prior international criminal tribunals are only partial guides. This is
nowhere more apparent than in the quest for a shared and satisfactory
articulation of the Court's juridical authority, and the successful charting
of structures and processes to reflect that delicate consensus. Formal and
informal diplomatic discourse was juxtaposed with doctrine, philosophy
and realpolitik. Negotiations were hampered by a profound lack of con-
sensus over the interpretation and application of basic international law
principles, as well as by the problematic imposition of a working structure
in which relevant articles were visited and modified piecemeal throughout
the two-year Preparatory Committee (PrepCom) process. This is reflected
in the relevant articles and in the placement and content of related pro-
visions which appear in different sections of the Statute, as negotiated in
different Working Groups.
While the Statute is groundbreaking in its articulation of a truly global
and permanent criminal jurisdiction, the inescapable political significance
of these articles made consensus at times insurmountably problematic, and
the final text remains contested. Additionally, while a satisfactory drafting
* Visiting Assistant Professor, University of Connecticut School of Law. J.D., Harvard
University Law School (1989). Professor Philips, a former public defender, participated in
the Rome Diplomatic Conference as a member of the Women's Caucus for Gender Justice
in the International Criminal Court.
1 Rome Statute of the International Criminal Court, adopted by the United Nations
Diplomatic Conference of Plenipotentiaries on the Establishment of an International Crim-
inal Court on July 17, 1998, U.N. Doc. A/CONF.183/9 (1998), <[Link]
[hereinafter ICC Statute].

rA Criminal Law Forum 10: 61-85, 1999.

O © 1999 Kluwer Academic Publishers. Printedin the Netherlands.
62 RUTH B. PHILIPS

of Part 2 is the sine qua non of an independent, impartial and effect-

ive Court, these principles will be tested and measured ultimately by the
degree to which the Court, through the Prosecutor and Pre-Trial Cham-
ber, is able to conduct effective investigations, an inquiry which itself is
determined by the Court's ability to gather information confidentially and
to compel cooperation in the early stages of investigation and prosecution. 2

2. TEMPORAL JURISDICTION

The Court's jurisdiction is strictly prospective, pursuant to the provision

dealing with jurisdiction ratione temporis, or temporal jurisdiction. 3 This
article ensures against ex post facto prosecutions, and accords with the
related principles of nullem crimen sine lege and nulla poena sine lege.4 It
does not, of course, prevent the United Nations from establishing ad hoc
tribunals to prosecute crimes which occurred before the entry into force
of the Statute.5 Thus, for instance, the serious crimes which were commit-
ted in Cambodia or Somalia could not be prosecuted in the International
Criminal Court, but they could be prosecuted before a tribunal established
for such purpose by the United Nations Security Council, acting under
Chapter VII of the Charter of the United Nations.6 Further, States have

2 See ICC Statute, Parts 5, 9.

3 ICC Statute, art. 11:

"1. The Court has jurisdiction only with respect to crimes committed after the entry into
force of this Statute."
"2. If a State becomes a Party to this Statute after its entry into force, the Court may
exercise its jurisdiction only with respect to crimes committed after the entry into force
of this Statute for that State, unless that State has made a declaration under article 12,
paragraph 3."
4 Recognizing, of course, that drafting problems in the current Statute (and the yet-
to-be-drafted "Elements of Crimes") may or may not offend the latter principles, the
retroactivity bar notwithstanding.
5 Presumably, nothing in current law would prohibit the domestic or ad hoc prosecution
of a war crime which cannot be prosecuted before the ICC due to a state's exercise of the
Statute's war crimes opt-out provision (art. 124).
6 Important authorities on this subject include: Juan E. Mendez, In Defence of Trans-
itionalJustice, in TRANSITIONAL JUSTICE AND THE RULE OF LAW IN NEW DEMOCRA-
CIES (A. James McAdams, ed., 1997); Diane F. Orentlicher, Settling Accounts: The Duty
to Prosecute Human Rights Violations of a PriorRegime, 100 YALE L.J. 2537 (1991);
NAOMI ROHT-ARRIAZA, IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW
AND PRACTICE (1995).
 JURISDICTION AND ADMISSIBILITY 63

the right and, increasingly, the obligation, to punish certain international

crimes under the rubric of universal jurisdiction. 7
Articles 12 through 19 form the jurisdictional backbone of the Court,
embodying principles which remain highly contested, in spite of over-
whelming support for the final Statute. These articles establish the pre-
conditions for the exercise of the Court's jurisdiction and outline the three
referral authorities, or trigger mechanisms, and the additional jurisdic-
tional requirements that flow from each referral. For State party referrals
and Prosecutor-initiated investigations, this entails the application of the
complementarity principle.

3. COMPLEMENTARITY

Complementarity, referred to in the Statute as "admissibility," is one of

the central animating principles of the Court. 8 Complementarity strives to
harmonize, wherever possible, multiple and competing sources of jurisdic-
tion over international crimes. 9 It developed as a principled and pragmatic

7 For an examination of universal jurisdiction, see generally Kenneth Randall, Uni-

versal Jurisdiction under InternationalLaw, 66 TEX. L. REV. 785 (198 8); Jonathan I.
Charney, UniversalInternationalLaw, 87 AM. J. INT'L L. 529 (1993).
8 The Preamble to the ICC Statute "[e]mphasiz[es] that the International Criminal Court
established under this Statute shall be complementary to national criminal jurisdictions."
9 For the five bases of prescriptive jurisdiction (territorial, nationality, protective, pass-
ive personality, and universality), see, e.g., BARRY CARTER & PHILLIP R. TRIMBLE,
INTERNATIONAL LAW 726-736 (2nd ed. 1995); IAN BROWNLIE, PRINCIPLES OF PUB-
LIC INTERNATIONAL LAW 298-305 (4th ed. 1990); Bartram Brown, Primacy or Comple-
mentarity: Reconciling the Jurisdictionof National Courts and InternationalTribunals, 23
YALE J. INT'L L. 323, 391-392 (1998). With the exception of the more recent Apartheid
Convention, among the post Second World War humanitarian law instruments, only the
Genocide Convention refers generically to an (unrealized) international criminal tribunal,
see Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948,
78 U.N.T.S. 277, art. VI; International Convention on the Suppression and Punishment
of the Crime of Apartheid, adopted by G.A. Res. 3068 (XXVIII) of 30 Nov. 1973, 28
U.N. GAOR, 1015 U.N.T.S. 244, art. 5. These instrument s are the only international law
sources providing "concurrent jurisdiction" in any federalism sense, as, in the Genocide
Convention, between a (territorial) State and an international body. In the absence of an
international criminal forum, jurisdiction over war crimes or other international crimes
has primarily been exercised through domestic prosecutions. See, generally, e.g., THE
LAW OF WAR CRIMES, NATIONAL AND INTERNATIONAL APPROACHES (Timothy L.H.
McCormack & Gerry J. Simpson eds., 1997). To date, international criminal tribunals,
from the Nuremberg International Military Tribunal (IMT) to the International Criminal
Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for
Rwanda (ICTR), have been created to investigate and prosecute specific atrocities and
are jurisdictionally delimited, temporally and geographically. Moreover, the two charters
64 RUTH B. PHILIPS

way to accommodate the conflicting imperatives of State sovereignty and

the need for a permanent international institution to end impunity for
atrocities at a time of global proliferation of localized armed conflict.
As suggested by the name, it ensures that the ICC complements, rather
than replaces, national judicial systems. In recognizing States' concurrent
jurisdiction over serious violations of international law, the Court is expec-
ted to strengthen national enforcement of human rights and humanitarian
law norms. The Court is authorized to act only when a State is unable or
unwilling to meet its domestic enforcement obligations, whether through
belligerence or the collapse of civil society and a functional national judi-
ciary. 10 Complementarity both empowers and obligates States to act as the
primary enforcers of humanitarian law, thus both recognizing and expand-
ing their pre-existing international obligations. The Court's jurisdiction is
understand as the relationship between the admissibility provisions and
the other core provisions - consent and trigger mechanisms - although the
principle of complementarity is incorporated and implicated throughout
the Statute.
That the ICC is envisioned as a tribunal of last resort is problemat-
ized, to say the least, by the Statute's ambiguity and/or silence over the
application of complementarity to Security Council referrals. The two
ad hoc war crimes tribunals, the International Criminal Tribunal for the
Former Yugoslavia (ICTY) and the International Criminal Tribunal for
Rwanda (ICTR), were created pursuant to the Security Council's broad
powers under Chapter VII of the Charterof the United Nations." These
tribunals were established in response to regional crises which posed a
specific threat to international peace and security. While they recognize
concurrent jurisdiction with national courts in those regions, the tribunals
are conferred with jurisdictional primacy. 12 Significantly, complementar-
ity principles underlie the tribunals' jurisdiction, although they apply very

(IMT and ICTY) have different originating sources in law. The Nuremberg Charter was
drafted by the United States, the United Kingdom, the Soviet Union and France, although
it later obtained the adherence of nineteen other States, and the principles of the Charter
and judgment were unanimously adopted by the United Nations General Assembly, G.A.
Res. 95(1), 1(2) GAOR Res. The ICTY and the ICTR were created pursuant to Security
Council Resolutions and their jurisdiction is binding on all member States.
10 See ICC Statute, art. 18, discussed infra.
11 Charter of the United Nations, Jun. 26, 1945, 59 Stat. 1031, T.S. No. 933, 3 Bevans
1153, art. 39: "The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make recommendations, or decide
what measures shall be taken ... to maintain or restore international peace and security."
12 See Statute of the International Criminal Tribunal for the former Yugoslavia, U.N.
Doc. S/RES/827 (1993), annex, arts. 9, 29; Statute of the International Criminal Tribunal
for Rwanda, U.N. Doc S/RES/955 (1994), annex, arts. 8, 28.
 JURISDICTION AND ADMISSIBILITY 65

narrowly to proceedings already underway in the territory. 13 Additionally,

jurisdiction is conferred on administrative or uniformity grounds, or in the
interest of developing international jurisprudence. 14
Given that armed conflict and/or civic collapse generally accompany
the commission of all atrocities, and that they are always investigated
and prosecuted in the service of restoring peace, peace-keeping or nation-
building (the criminal tribunals vs. truth commission debate notwithstand-
ing), 15 there seems to be little justification, in the context of a permanent
ICC, for a separate regime for Security Council referrals which undermines
the Court's complementary juridical underpinnings and its support. While
acknowledging that the International Criminal Court has no authority to
alter the criteria for the exercise of the Security Council's Chapter VII
powers, the lack of parallel complementarity criteria for Security Coun-
cil referrals to the Court raises the spectre of a Court reduced on some
level to permanent institutionalized Security Council ad hoc-ism, which
re-enshrines Security Council hegemony rather ironically for a formally
independent institution. Ad-hoc-ism and complementarity are incompat-
ible; indeed, complementarity is addressed to the very problem of partiality
13 See Rules of Procedure and Evidence [of the International Criminal Tribunal for the
former Yugoslavia], U.N. Doc. IT/32, Rule 9; Rules of Procedure and Evidence [of the
International Criminal Tribunal for Rwanda], U.N. Doc. ITR/3/Rev. 1, Rule 9.
14 Id. These criteria do not appear in the ICC's legislative history.
15 The tension between the truth commission approach to transitional justice, which
in some cases offers forms of amnesty to members of a prior regime in exchange for
information, acknowledgment and apology, and the criminal prosecution of those same
persons through an international (or national) tribunal is, on a certain level, fundamentally
irreconcilable (although these values certainly animate adversarial plea bargaining). The
peace versus impunity debate is beyond the scope of this paper. For a discussion of this
issue, see, e.g., MARTHA MINON, BETWEEN VENGEANCE AND FORGIVENESS: FACING
HISTORY AFTER GENOCIDE AND MASS VIOLATION (1998); Harvard Law School Human
Rights Program, TRUTH COMMISSIONS: A COMPARATIVE ASSESSMENT: an interdis-
ciplinary discussion held at Harvard Law School in May 1996 (1997); Diane Orentlicher,
InternationalCriminalLaw and the CambodianKilling Fields, 3 ILS A J. INT' L & COMP.
L. 705 (1997); Michael Scharf, The Casefora PermanentInternationalTruth Commission,
7 DUKE J. COMP. & INT'L L. 375 (1997); Priscilla Hayner, Fifteen Truth Commis-
sions - 1974 to 1994: A Comparative Study, 16 HUM. RTS. Q. 597 (1997); Richard
Goldstone, Justice as a Tool for Peace-Making: Truth Commissions and International
Criminal Tribunals, 28 N.Y.U.J. INT'L & POL. 485 (1996); Stephan Landsman, Altern-
ative Responses to Serious Human Rights Abuses: Of Prosecution and Truth Commissions,
59 LAW & CONTEMP. PROBS. 81 (1996); W. Michael Reisman, Legal Responses to Gen-
ocide and Other Massive Violations of Human Rights, 59 LAW & CONTEMP. PROBS. 75
(1996); W. Michael Reisman, Institutions and Practices for Restoring and Maintaining
Public Order, 6 DUKE J. INT'L L. & POL. 175 (1995); Mark Ensalaco, Truth Com-
missions for Chile and El Salvador: A Report and Assessment, 17 HUM. RTS. Q. 656
(1994).
66 RUTH B. PHILIPS

which is inherent in an ad hoc approach to war crimes prosecutions.16

Even assuming, arguendo, that complementarity can somehow be read into
Chapter VII of the Charterof the United Nations, it remains problematic
that this inquiry would be conducted only once, with no articulated stand-
ards, not subject to review, by a select body (Security Council members),
as opposed to a delegated organ of the Court that is authorized, sua sponte,
as well as upon application, to re-visit this question throughout the life of
a case. 17
Throughout the negotiations, complementarity was endorsed unan-
imously in principle. Its interpretation and implementation were highly
contested, however, underscoring the abundance of sovereignty issues,
including the obvious questions of how best to articulate complementarity
criteria to ensure their impartial application, who decides whether these
criteria are satisfied, and at what stage of proceedings these evaluations
are conducted. 18

4. PRECONDITIONS TO THE EXERCISE OF JURISDICTION

The Court has automatic, or inherent, jurisdiction over all core crimes
when the alleged crime is committed on the territory of a State party or
when the accused is a national of a State party. 19 The Court's jurisdiction
16 See, e.g., Gerry J. Simpson, War Crimes: A CriticalIntroduction, in THE LAW OF
WAR CRIMES, supra note 9 at 1-30.
17 See ICC Statute, arts. 17, 18, 53, discussed infra.
18 One proposal would have made the State the arbiter of complementarity with respect
to its own criminal process. Another sought to limit referrals to an "interested" state. For
a helpful overview of the early legislative history of the statute with respect to comple-
mentarity, see Jeffrey L. Bleich, Complementarity, 13 NOUVELLES ETUDES PENALES
231 (1997).
19 ICC Statute, art. 12: "Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the
Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction
if one or more of the following States are Parties to this Statute or have accepted the
jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the State of registration of that
vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under para-
graph 2, that State may, by declaration lodged with the Registrar, accept the exercise
of jurisdiction by the Court with respect to the crime in question. The accepting State
shall co-operate with the Court without any delay or exception in accordance with
Part 9."
 JURISDICTION AND ADMISSIBILITY 67

is thus twofold. One important aspect of article 12 is the Court's "inherent"

jurisdiction over a State party's nationals, which is conferred once, upon
becoming a State party, without any additional or subsequent consent, and
which entails that State party's other treaty obligations as well. In provid-
ing that "[a] State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the [core] crimes," article 12 rep-
resents an important concession by many States who negotiated ardently,
but ultimately unsuccessfully, for an "opt-in consent" regime.
Negotiations over this principle attempted to distinguish degrees of
universality from among the crimes listed in the Statute for the purpose
of establishing a jurisdictional hierarchy of State party obligations. Early
drafts distinguished between genocide as a crime over which there is uni-
versal jurisdiction, and all other crimes, translated into a regime whereby
State parties recognized the Court's automatic jurisdiction over genocide
but had the option of selective consent as to other crimes, either upon
becoming a party or on a case-by-case basis. 20 Of the three categories of
crimes, it is actually war crimes for which black letter law - the Geneva
Conventions - most strongly establishes inherent or automatic jurisdic-
tion. The common articles state "Each High Contracting Party shall be
under the obligation to search for persons alleged to have committed,
or to have ordered to be committed, such grave breaches ... , and shall
bring such persons, regardless of their nationality, before its own courts
... "21 Late in the Rome negotiations, the United States maintained its call
for the genocide/"other crimes" distinction, although earlier negotiations
suggested that both genocide and crimes against humanity would enjoy
automatic jurisdiction by States parties, and only jurisdiction over war
crimes would be on an opt-in basis. 22 The relatively cautious approach
taken by the Preparatory Committee in the articulation of justiciable
crimes lends further support to the argument that the solid custom-
ary international law basis for the court's jurisdiction over all the core
crimes negates any rationale for additional consent requirements or opt-out
provisions.

20 See, e.g., "Report of the Preparatory Committee on the Establishment of an Inter-

national Criminal Court," U.N. Doc. A/CONF.183/2/Add.1, 14 April 1998, at art. 9,
option 2.
21 For an excellent and comprehensive discussion of treaty approaches to concurrent
and universal jurisdiction, see Roger Clark, Offences of InternationalConcern: Multilat-
eral State Treaty Practice in the Forty Years Since Nuremberg, 57 NORDIC J. INT'L L.
49 (1988) (noting the growing trend in treaty practice toward the obligatory exercise of
universal jurisdiction in conjunction with the principle of aut dedere aut judicare, and
noting the persistent lack of guidance in resolving competing claims over a case).
22 U.S. Lays Down Its Cards, TERRAVIVA, Jul. 10, 1998, no. 20, at 1.
68 RUTH B. PHILIPS

Support for a "consent" regime was informed principally by fears that

smaller or weaker countries would be targeted by a Security Council-
dominated court, i.e., a court in which the five permanent members (P-5)
of the United Nations Security Council, namely, the United States, United
Kingdom, France, China, and the Russian Federation (succeeding the
Soviet Union's seat) could self-interestedly use the Security Council to
create a five-country veto over the Court's docket and dominate the referral
process. Smaller countries felt that a "veto" limited to the P-5 was unfair
and that consent should therefore be required in order to democratize the
docket (by allowing all States parties to opt out of the Court's jurisdiction).
This position was articulated powerfully by India and Pakistan on behalf
of the Non-Aligned Movement, whose members generally opposed any
attempts to bind non-State parties, and who called for a stringent jurisdic-
tional nexus (consent or ratification) between all "interested" States and
the Court, in addition to the "opt-in" system of State party jurisdiction.
Ironically, this position was shared either wholly or to some degree by
all of the P-5 members. Sovereignty continues to be the rallying call for
small and large countries alike, although the issue of non-member control
of the Court (through the Security Council) is not obviated by a consent
regime.23
The second crucial aspect of the Court's jurisdiction is that it may be
exercised over any person anywhere if that person is a national of a State
party or committed a crime on the territory of a State party. A non-State
party may consent on an ad hoc basis to the Court's jurisdiction where
necessary, but Security Council referrals may not be undercut by State
non-consent.2 4 Thus, if a territorial state (party or non-party) is willing to
subject itself to the tribunal, that suffices to confer the Court's jurisdiction
over any national. Given, for example, the United States' stubborn aversion
to this principle based on articulated fears over spurious prosecutions of its
"vulnerable" foreign nationals, i.e., United States military personnel pos-
ted abroad, it does appear significant in a treaty of such magnitude that the
ICC can thus exercise jurisdiction over nationals of non-State parties, even
without that State's consent. In fact, however, this is unremarkable. For-
eign nationals are always subject to the jurisdiction of the relevant foreign

23 See, e.g., Ramesh Jaura, India Thumbs Nose at 'European'Court, TERRAVIVA, Jul.
17, 1998, <[Link] Ramesh Jaura, Alison Dickens, U.S.
Speak More Softly, TERRAVIVA, Jul. 16, 1998, <[Link]
Diane F Orentlicher, U.S. Cheats Justice in Opposing World Court, Los ANGELES TIMES,
Aug. 30, 1998, p. M2.
24 See ICC Statute, arts. 12(2), 13(b). Consent is presumed by virtue of the Security
Council's authority. See Charter of the United Nations, supra note 11, arts. 25, 39, 43, 49,
and 51.
 JURISDICTION AND ADMISSIBILITY 69

territory. For example, American citizens are routinely subject to foreign

criminal prosecutions and vice versa. No person would reasonably expect
to commit a crime abroad and evade prosecution in that foreign territory.
Moreover, under international law, a State's jurisdiction is rarely exercised
over a prosecution on the basis of the nationality principle alone (without,
e.g., a territorial nexus). 25 The United States' rejection of the Rome treaty
was fueled by its deep dissatisfaction with article 12, paragraphs (1) and
(2). United States insistence on an opt-in regime, in conjunction with
the additional requirement of consent of an accused's State of national-
ity, was animated not by concerns over cooperation or the logistics of
the Court getting an accused before it, but by the simple and conceded
objective that United States nationals be shielded from the Court's juris-
diction. Given the principle of complementarity, the delegation's nagging
and persistent objection to this non-controversial principle encouraged
the perception that the United States places itself above the law. 26 This
intractability ultimately isolated and weakened the United States in final
negotiations. 27
A less restrictive approach to consent had been proposed by the Repub-
lic of Korea. It listed four alternative requisite sources of jurisdiction
(territory, national state of perpetrator or victim, state of custody). 28
This proposal was among the options that appeared in the Chairman's
final draft, 29 and it received significant if not overwhelming support. 30
Among States that spoke out on the Bureau Proposal on Monday, July 13,
1998, 89% supported the Korean Proposal, and 75% supported automatic
jurisdiction for all core crimes. 31 Proponents of automatic jurisdiction
argued that the multilateral treaty body should not have significantly less
competence or authority to prosecute individuals than what is already
available to States through permissive universal jurisdiction. Automatic
jurisdiction, as it was advocated during the negotiations, falls short of

25 See AMERICAN LAW INSTITUTE, RESTATEMENT OF THE LAW THIRD, THE

FOREIGN RELATIONS LAW OF THE UNITED STATES, Section 402 at p. 242 (1987).
26 On the behavior of the United States in negotiations over this provision, see Diane F.

Orentlicher, supra note 23.

27 The United States continues, post-Rome, to lobby for a document which reflects
American self-interest. See, e.g., Oct. 21, 1998 speech by David Scheffer before the Sixth
Committee of the 53rd United Nations General Assembly, New York, New York.
28 See Proposal Submitted by the Republic of Korea, U.N. Doc. A/CONF.183/C.1/L.6
(1998).
29 Bureau Proposal, U.N. Doc. A/CONF.183/C.1/L.59 (1998).
30 See THE ROME TREATY CONFERENCE MONITOR, SPECIAL ISSUE OF THE NGO

COALITION FOR AN INTERNATIONAL CRIMINAL COURT, Issue 23, Jul. 15, 1998.
31 Ibid.
70 RUTH B. PHILIPS

universal jurisdiction, which permits a state to prosecute any person over

whom it has custody, assuming appropriate national legislation.3 2 That
international interests prevail over national interests in the prosecution
of core crimes, as an underlying premise of universal jurisdiction, does
not, in principle, give the Court a better claim to a particular prosec-
ution than a State has. Indeed, it is the universality principle which
supports and mandates domestic prosecution of core crimes. Thus the
Court's inherent jurisdiction is entirely consistent with the principles of
complementarity. 33
In recognizing that the prosecution of core crimes transcends the
interest of any one State, universal jurisdiction would have given the court
jurisdiction over a crime regardless of the nationality of the perpetrator.
Support for undiluted universal jurisdiction was strong among its few
adherents. This was the unanimous non-governmental organization (NGO)
position. The obligation to bring all perpetrators to justice is embodied in
the principle aut dedere autjudicare.34 In failing to embrace this principle,
the Court is rendered essentially powerless to pierce the shield of impunity
afforded to a belligerent state harboring its own war criminals. There is
an important difference between hobbling the court's jurisdiction at the
outset, as a legal matter, by requiring the consent of certain interested
States, and recognizing that as a practical matter it may be very difficult
to obtain the necessary cooperation in the investigation and prosecution of
a belligerent national. 35 The crucial distinction between establishing the
Court's jurisdiction and establishing the duty of States to cooperate is thus
collapsed by article 12(2).

32 See "The jurisdiction of the International Criminal Court, An informal discussion

paper submitted by Germany," Mar. 23, 1998, U.N. Doc. A/AC.249/1998/DP.2.
33 Initial doubt about whether inherent jurisdiction meant primary (ICC) jurisdiction was
settled in early negotiations. See, e.g., "The Report of the Preparatory Committee on the
Establishment of an International Criminal Court," Vol. I (Proceedings of the Preparat-
ory Committee during March-April and August, 1996) GAOR 51st Session, Supplement
No. 22 (A/51/22) at para.118, p. 28; see also AMNESTY INTERNATIONAL, THE INTER-
NATIONAL CRIMINAL COURT - MAKING THE RIGHT CHOICES - PART I, Jan. 1997
[hereinafter "Making the right choices"], AI Index: IOR 40/01/97, at 13-14; Roger Clark,
Nuremberg and Tokyo in Contemporary Perspective, in THE LAW OF WAR CRIMES, supra
note 9 at 173.
34 See generally CHERIF BASSIOUNI & EDWARD M. WISE, AUT DEDERE AUT
JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL LAW
(1995).
35 See, e.g., HUMAN RIGHTS WATCH, JUSTICE IN THE BALANCE - RECOMMENDA-
TIONS FOR AN INDEPENDENT AND EFFECTIVE INTERNATIONAL CRIMINAL COURT 53
(1998) [hereinafter JUSTICE IN THE BALANCE].
 JURISDICTION AND ADMISSIBILITY 71

In summary, the Statute grants the ICC automatic jurisdiction over

the core crimes without the additional consent of States parties, and
occasionally without the consent of non-States parties in certain limited
circumstances. While the Court does not and could not prevent States
from exercising universal jurisdiction over crimes recognized as having
universal crime status, it does not itself have universal jurisdiction. Thus,
the Court has significantly less subject-matter and adjudicative jurisdiction
over international crimes than States have. One scholar has noted that a
consent regime renders a Court with "less power to bring to justice the
suspect than either the territorial state or the custodial state, each of which
could bring the suspect to justice without the consent of any other state." 36
Human rights advocates agree that the consent requirement of article 12(2)
profoundly undercuts the Court's jurisdiction over heinous crimes, mak-
ing few inroads in the quest to end impunity criminals harbored by a
belligerent State.

5. TRIGGER MECHANISMS

The Court's jurisdiction may be triggered, and an investigation initiated,

by three different referral authorities: a State party, the Security Council,
or the Prosecutor.37 The grant and scope of each authority was heavily
contested throughout the PrepCom process. Specifically, the Court may
exercise jurisdiction with respect to a crime when: (a) a situation is referred
to the Prosecutor by a State party; (b) a situation in which one or more
of such crimes appears to have been committed is referred to the Prosec-
utor by the Security Council acting under Chapter VII of the Charter of
the United Nations; or (c) the Prosecutor has initiated an investigation in
respect of such a crime. Negotiations over referral authority focused upon
whether the Security Council should have veto power over the Court's
docket (spelled out in various ways), and whether the Security Council
should be the sole referring authority. Delegates debated whether all States
parties should have referral powers or only those "interested" States, i.e.,
States with a nexus to the crimes in question. Most countries acknowledged
that all States parties to this treaty have an interest in prosecuting and
investigating the terrible crimes that fall within its jurisdiction. Whether
36 John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAM-
BRIDGE L.J. 337 (1997). See also AMNESTY INTERNATIONAL - MAKING THE RIGHT
CHOICES, supra note 33 at 14. Concededly, the failure to arrest Karadzic is a failure of
international political will; presumably the Security Council has the means to enforce the
service of arrest warrants issued under ICTY auspices.
37 ICC Statute, art. 13.
72 RUTH B. PHILIPS

the Prosecutor should have independent authority to conduct investigations

was among the most contentious issues on the table. Human rights advoc-
ates and many delegations argued that States and the Security Council
have been historically and shamefully inattentive to the plight of victims,
particularly those whose plight is not geopolitically compelling; that States
are sensitive to the political consequences of bringing complaints against
one another; and that an independent Prosecutor would function as an ideal
ombudsman. 38 The distinction between State and Security Council refer-
ral of "situations" and Prosecutor-initiated investigations into "crimes" is
important, and reflects attempts to de-politicize the Court by withholding
State party and Security Council authority to haul individuals before it,
as well as acknowledgement that a prosecutor's attention to a "situation"
(as opposed to whether evidence exists with respect to a particular crime
and a particular individual) would constitute an inappropriate exercise of
political judgment.
The mechanics of a Security Council referral have not been developed.
Whether referral of a situation shall be effected through a formal resolution
or other less formal means is yet undetermined; nor was the binding effect
of such a resolution taken up in negotiations. Attention to the Security
Council's role on the Court was dominated by intense debates over the
scope of its power to block the Court's agenda, and less to its potential to
dominate the referral process in any affirmative way. The binding authority
of a Security Council resolution under article 16 of the Statute, which
blocks investigation or prosecution of a matter on its agenda, is explicit
(the formality of a resolution was exacted as a safeguard against Security

38 See, e.g., the intervention of Kenneth Roth, Executive Director of Human Rights
Watch, at the Diplomatic Conference on Jun. 18, 1998, available at <[Link]
org/icc/speeches/[Link]> (discussing the failure of the Security Council to investigate
the 1988 execution of 100,000 Kurdish men in Iraq, in spite of 18 tons of police docu-
ments and testimony establishing an overwhelming case of genocide); Intervention of Indai
Lourdes Sajor, Asian Centre for Women's Human Rights at the Diplomatic Conference on
Jun. 18, 1998, available at <[Link] (discussing the
failure of the international community to address the impact of armed conflict on women
in spite of its persistence, escalation, and brutality); comments of Ustinia Dolgopol, Senior
Lecturer in Law, The Flinders University of South Australia, at Jun. 25, 1998 panel dis-
cussion, What's At Stake for Women in the ICC, held during the Diplomatic Conference
by Women's Caucus for Gender Justice in the International Criminal Court (transcription
on file with author) (expressing scepticism over partial justice in war crimes trials to date
and suggesting that geopolitical mileage runs out quickly on the issue of sexual violence).
Among the permanent members of the Security Council, China, the United States and
the Russian Federation remained staunchly opposed to a Prosecutor with any propriomotu
powers. Most delegations supported the final article 13(c), subject to the stringent Pre-Trial
Chamber review provisions of article 15, which were developed largely to mollify United
States fears of a runaway prosecutor.
 JURISDICTION AND ADMISSIBILITY 73

Council domination), while the Security Council referral scheme is silent

as to manner, process, or effect. In light of the Security Council's relat-
ive inaction in the face of massive and widespread global atrocities (e.g.,
Algeria, Burundi), whether the Security Council acts as an ally or rival of
the Court (i.e., whether it floods the Court with referrals or blocks it with
article 16 resolutions) remains to be seen. Security Council referral power
is silent on the question of aggression or the effect of any determination
on future Court adjudication. The terse final text of article 13(b) of the
Statute reflects unfinished negotiations over aggression, and the question
of the legal effect of a Security Council finding of aggression was left for
subsequent drafting. This issue was addressed in article 10 of the draft
statute.
Admissibility criteria apply explicitly to State party and Prosecutor-
initiated prosecutions. 39 Article 53 authorizes the Prosecutor to review
Security Council and State party referrals, and to conclude, if warranted,
that "there is not a sufficient basis for a prosecution," subject to Pre-Trial
Chamber review if requested by the referring entity. Moreover, articles
53(1)(b) and 53(2)(b) mandate the Prosecutor to consider the question of
article 17 admissibility, suggesting that complementarity applies to Secur-
ity Council referrals as well, although there are no direct provisions for this
determination. Indeed, article 17 read in conjunction with article 53 sug-
gests that complementarity applies to Security Council referrals as well.
The lack of clarity here was acknowledged in Rome but left unresolved. 40
There is not one cross-reference to article 53 in articles 17 to 19. It can
plausibly be argued that notwithstanding its constitutional authority under
Chapter VII of the Charter of the United Nations, the Security Council
may indeed be required to participate in the Court on a complementary
footing, or else forego an ICC referral and assert its jurisdictional primacy
through ad hoc tribunals. 41
Article 14 allows a referral by a State party of "a situation in which
one of more crimes within the jurisdiction of the Court appear to have
been committed requesting the Prosecutor to investigate the situation for
the purpose of determining whether one or more specific persons should

39 ICC Statute, Art. 18.

40 See Working Paper on article 54, U.N. Doc. A/CONF.183/C.1/W GPM/L.1 (1998),
fn.1.
41 Telephone conversation with M. Cherif Bassiouni, Oct. 2, 1998. Professor Bassiouni's
early writings on this issue cede a decidedly different regime for Security Council refer-
rals. See, e.g., Observations Concerning The 1997-98 PreparatoryCommittee's Work, 13
NOUVELLES ETUDES PENALES (1997) at 22-27. While the ad hoc reversion is an unsa-
tisfactory solution, I maintain my aversion to granting the Security Council any dominant
role on the Court.
74 RUTH B. PHILIPS

be charged with the commission of such crimes." As noted, the Prosecutor

alone determines whom, if anyone, should be charged. Paragraph 2 of this
article urges States parties to be as specific as possible in their referrals,
providing any available supporting documentation. Notably absent is prior
draft language requiring formal Security Council notification of a State
party referral. 42
Article 15 sets forth the Prosecutor's proprio motu powers and estab-
lishes an extensive oversight process by the Pre-Trial Chamber. The
Prosecutor may conduct a "preliminary examination" and for this pur-
pose may seek additional information from States, United Nations organs,
intergovernmental or non-governmental organizations, and "other reliable
sources," and may additionally receive relevant written or oral testimony.
Significantly, the Prosecutor may not proceed with an investigation without
obtaining approval from the Pre-Trial Chamber. Victims and witnesses
may make representations to the Pre-Trial Chamber at this stage, which
is empowered to review the Prosecutor's "reasonable basis" for proceed-
ing, and to undertake a preliminary review of the Court's jurisdiction over
the case. Non-governmental organizations and delegations that were con-
cerned with victims' issues, including the investigation and prosecution of
sexual and other gendered violence and victims' needs, including restitu-
tion, rehabilitation and compensation, lobbied for the specific inclusion of
language authorizing the Prosecutor to receive information at this stage
from victims or their representatives. While such language did not sur-
vive final drafting, nothing in the interpretation of "other reliable source"
precludes the receipt of information from such individuals.
Pre-Trial Chamber review at this stage provides significant checks and
balances on the arbitrary exercise of prosecutorial discretion in seeking to
investigate a core crime. 43 The Prosecutor may re-present the case, based
upon new facts or evidence, if authority to proceed is denied. 44 The Pro-
secutor may also decide not to proceed after evaluating the information, in
which case notice should be provided to relevant parties. After a decision
not to seek a formal investigation, the Prosecutor is not precluded from
reconsidering the case based upon new facts or evidence.
In sum, the strong language of independent proprio motu investiga-
tory power articulated in article 15(1) is substantially undercut by ensuing

42 See Draft Statute for the International Criminal Court, U.N. Doc. A/CONF.183/2/
Add.1 (1998), art. 11.4, Option 2 [hereafter Rome Draft Statute]; see also "Proposal sub-
mitted by the United States of America," U.N. Doc. A/AC.249/1998/WG.3/DP.2 (1998)
(requiring public announcement and State party notification of an investigation).
43 Functions and powers of the Pre-Trial Chamber are addressed in article 57.
44 See ICC Statute, arts. 56 and 57.
 JURISDICTION AND ADMISSIBILITY 75

provisions. 45 Considering admissibility requirements, extensive Pre-Trial

Chamber authority and review procedures, and the availability of inter-
locutory appeal to the Appeal Chambers, warnings against the untram-
melled abuse of power by an independent prosecutor46 are hollow and
disingenuous. Indeed, and in sharp language to the contrary, the repeated
warning from the ICTY and ICTR Prosecutor was that delegates had more
to fear from an impotent Prosecutor.4 7 Far from enjoying untrammelled
powers, the Prosecutor faces an "Olympian obstacle course" before she
may initiate and conduct investigations. 48
The United Nations Security Council provides a further restriction and
check on the Prosecutor's (and State party) power, in its ability to block or
indefinitely delay an investigation or prosecution, presumably at any stage
of the process:

No investigation or prosecution may be commenced or proceeded with under this Statute

for a period of 12 months after the Security Council, in a resolution adopted under Chapter
VII of the Charter of the United Nations, has requested the Court to that effect; that request
49
may be renewed by the Council under the same conditions.

This provision was visited throughout the PrepCom process. Delegations

argued against any reference to the Security Council, on the following
grounds: such reference is gratuitous and expands the powers of the Secur-
ity Council beyond the United Nations Charter; a Security Council role
collapses the crucial political and judicial distinction between the Security
Council and the Court and undermines its legitimacy as a major judicial
institution; and, because neither silence nor text may in any case be inter-

45 Indeed, a careful reading of articles 15(1) and 15(6) suggests that what the Pro-
secutor does before receiving Pre-Trial Chamber authorization is not even formally an
investigation.
46 The invocation of the example of United States special prosecutor Kenneth Starr was
inevitable.
47 Address of Justice Louise Arbour to the Fifth Preparatory Committee Meeting on
the Establishment of an International Criminal Court, Dec. 8, 1997. Justice Richard Gold-
stone, the first Chief Prosecutor of the ad hoc tribunals from 1994 to 1996 went even
further, suggesting that having an ICC Prosecutor who is fettered by the political con-
trol of the Security Council or States parties would raise doubts as to whether such a
Court should be established at all. U.N. Press Release L/ROM/22, Jul. 17, 1998, page
21, <[Link]
48 Diane Orentlicher, No Frankenstein'sCourt, WASHINGTON POST, Jul. 31, 1998, at
P25. These "hurdles" were inserted by the large contingent of "like-minded" delegations,
who consistently and firmly supported an independent prosecutor, in an attempt to appease
the United States delegation. The provisions are viewed largely as a capitulation to the
United States, whose lack of any meaningful public acceptance of the text bred resentment.
49 ICC Statute, art. 16.
76 RUTH B. PHILIPS

preted in a way that contravenes the constitutional authority of the Security

Council under the Charter.
The final language reflects a crucial compromise which was negotiated
over the course of nearly one year. For those States and organizations
seeking to minimize (if not abolish) Security Council oversight of the
Court's docket, the result is an important achievement in its requirement
of a formal United Nations resolution before the Court's agenda may be
affected. For those favoring a predominant Security Council role on the
Court, the final provision is a significant cutback from the ILC draft, which
gave the Council affirmative referral power as well as a broad right of
approval over state referrals, by precluding the commencement of any
prosecutions "arising from a situation which is being dealt with by the
Security Council."5 0 Given the size, scope and longevity of the Security
Council's agenda, this would have essentially conferred near-complete and
virtually unrestricted Security Council control over the Court's docket.
Because of the difficulty of deleting the provision entirely, negotiations
focused on narrowing its scope, while non-governmental organizations
were virtually unanimous in their early wholesale opposition to it.
A possible solution to the problem emerged during the August 1997
PrepCom, which became known as the Singapore compromise; its lan-
guage was developed further and ultimately found expression in the final
statute. The United Kingdom was alone among the P-5 members in its
early support for this proposal. 51 The United States led the opposition,
along with China, the Russian Federation, and France. In late stage nego-
tiations, the United States appeared to soften its stance on the issue of the
Security Council role, but it simultaneously took a harder line than many
delegations had expected on the issue of consent, and remained staunchly
opposed to any independent prosecutorial triggering authority. 52
Article 16's language addresses two important areas of concern: the
lack of temporal restriction, and the lack of transparency of process. While
the final text formally limits the Security Council to what essentially
amounts to a "right to object" to the Court's docket, as opposed to having
a "right of approval" over it, in actuality, and when combined with the
possibility of unrestricted renewals, this provision remains problematic.

50 "Report of the Preparatory Committee on the Establishment of an International

Criminal Court," GAOR, Fiftieth-first Session, Supplement No. 10 (A/51/10), Vol. II,
75
p.
.

51 See John M. Goshko, Britain Differs on UnitedNations Court, WASHINGTON POST,

Dec. 12, 1997, at A51.
52 See U.S. Lays Down Its Cards, TERRAVIVA, Jul. 10, 1998, no. 20, at 1, 5.
 JURISDICTION AND ADMISSIBILITY 77

6. ADMISSIBILITY

Admissibility criteria and procedures are spelled out in articles 17 and 18,
and are applied in conjunction with the double jeopardy principles of art-
icle 20. The Statute establishes a presumption of inadmissibility whenever
a State is exercising, or has exercised, its national jurisdiction over a case.53
Good faith is both presumed and expected in the national adjudication of
such cases, whatever their outcome, subject to the ne bis in idem provision.
The standard for admissibility is articulated as a State's unwillingness or
inability to genuinely carry out an investigation or prosecution. This stand-
ard is applied to prospective and ongoing investigations and prosecutions
as well as a State's decision not to go forward with a prosecution after con-
ducting an investigation. If a State will not or genuinely cannot conduct a
good faith investigation or prosecution, then the ICC may exercise jurisdic-
tion over the case. These standards were developed to address criticism of
the ILC draft which would have left virtually unexamined a national crim-
inal process. 54 Early interventions suggested that a State's own assertion of
a bonafidejudicial process should be enough to block the Court's jurisdic-
tion, or even that the existence of jurisdiction alone is sufficient to confer
national primacy. 55 Versions of this survived into the Rome draft statute
(art. 15). The ILC Commentary (to its draft statute) suggested making the
Court operative only in cases where there is "no prospect" of a national
trial. 56
It should be noted that for the purposes of articulating the language
of admissibility, what is being reviewed is a "case" and not a "situ-
ation." In other words, article 17 presumes that the Prosecutor has already
made a determination that sufficient evidence exists to charge at least
one individual with the commission of a crime or crimes, and that a
State's investigation and/or prosecution corresponds (at least) to that
particular individual. On the other hand, article 18's provision for pre-
liminary rulings refers back to article 12's language of "situation" and

53 ICC Statute, art. 17(1). The Statute is deliberately silent as to the basis of jurisdiction
as well as over the resolution of competing state claims to an accused.
54 "Draft Statute for an International Criminal Court," GAOR, Forty-ninth Session,
Supplement No. 10 (A/49/10), chap. II.B.I.5, U.N. Doc. A/49/355, art. 35; "Report of
the Preparatory Committee on the Establishment of an International Criminal Court,"
GAOR, Fiftieth-first Session, Supplement No. 22A (A/51/22), Vol. II (Compilation of
Proposals) at 159; "Report of the Preparatory Committee on the Establishment of an Inter-
national Criminal Court," GAOR, Fiftieth-first Session, Supplement No. 22 (A/51/22), Vol.
I (Proceedings of the Preparatory Committee during March-April and August 1996).
55 See Jeffrey L. Bleich, supra note 18 at 235-237.
56 Ibid. at 236.
78 RUTH B. PHILIPS

elaborates procedures for determining admissibility at an earlier stage,

which apply to State party referrals to the Prosecutor or its proprio motu
investigations.
In addition, a determination must be made that the case is "of suf-
ficient gravity" to justify further action. "Sufficient gravity" is code for
the widely understood principle that the Court's interest is limited to pro-
secuting only those who bear the greatest responsibility for atrocities,
namely, military or other leaders. There were recommendations that this
language be moved or deleted. 57 By moving it, and thus construing it as
part of other "chapeau" language which set a threshold for justiciability,
it would have lost its meaning as such, given that the Statute makes jus-
ticiable and attaches criminal liability to the conduct of underlings and
superiors alike. Therefore its placement here as an admissibility issue
maintains the distinction between justiciability under articles 5 though 9,
and the Court's exercise of jurisdiction as a policy matter (although com-
plementary jurisdiction per se does not directly address the question of
the Court's choice whom to prosecute from among defendants). This begs
another interesting question, raised by Madeline Morris, as to whether
an accused may use his or her lack of real military status to mount an
admissibility challenge to the future ICC on the grounds of insufficient
gravity.58
Unwillingness is evaluated by examining whether the proceedings
were undertaken for the purposes of "shielding" the person from criminal
responsibility, whether there was an unjustified delay in proceedings, or
whether proceedings were or are not conducted impartially or independ-
ently, and in a manner "inconsistent with an intent to bring the person
concerned to justice" This language is mirrored in two explicit exceptions
to the double jeopardy bar set out in article 20. Human rights advocates
for the effective prosecution of sexual and gendered violence sought more
explicit attention in these provisions to the historical abuse of such victims
at trial and other procedural and evidentiary practices which are discrimin-
atory, inflammatory, or inequitable. Indeed, the experience of survivors of
sexual violence in national prosecutions may be probative in admissibility
determinations on the question of fairness and impartiality of proceed-

57 Draft Statute; supra note 42, art. 15(2), fn. 44.

58 See Madeline Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda,
in Symposium: Justice in Cataclysm: Criminal Trials in the Wake of Mass Violence, 7
DUKE J. COMP. & INT'L L. 349, 366-367 (1997) (without questioning the jurisdictional
primacy of the ICTR per se, Professor Morris questions the way it has been exercised
in the Rwandan context of parallel prosecutions and raises a host of questions as to how
concurrent jurisdiction is to be exercised in the ICC).
 JURISDICTION AND ADMISSIBILITY 79

ings.5 9 The due process standard inserted in article 1760 provides important
guidance in evaluating such proceedings and in recognizing that dispropor-
tionately mild sentences constitute a form of discrimination against classes
of victims.
Inability is determined by inquiring whether, "due to a total or sub-
stantial collapse or unavailability of its national judicial system, the State
is unable to obtain the accused or the necessary evidence and testi-
mony or otherwise unable to carry out its proceedings." This language
was tightened from earlier draft language of "partial" collapse. It leaves
unsolved the problem arising when a requesting State's criminal justice
system contains features which create a due process bar to extradition by
a custodial state. In this circumstance, the Court cannot enforce multilat-
eral co-operation or adherence to the principle of aut dedere autjudicare.
Assuming that the requesting State's criminal process is not abhorrent to
the ICC such that ICC jurisdiction would be triggered (it is shocking that
the availability of execution after conviction is not such a bar), the Court
would be impotent. If one reads "impossibility" into "inability" the result
may be otherwise. 6 1
Inability or unavailability is not a matter of administrative burden
and the Court is not envisioned as an adjunct to a strained national sys-
tem. Inability is problematic when viewed in the context of a post-war
Rwanda, for example, where approximately 120,000 incarcerated defend-
ants/suspects have little hope of adjudication, in spite of a massive overhaul
and streamlining of the Rwanda criminal process. That the ICTR was given
primary jurisdiction and has exercised it exclusively over leaders has prob-
lematized national reconciliation due to disparate sentencing (Rwandan
law provides for capital punishment whereas the ICTR Statute does not)
fuelled by the additional, inevitable pressures upon a successor regime to
punish those most responsible for atrocities. 62
Limited to complementary jurisdiction, however, the ICC Statute
throws prioritizing back to a State, assuming a resuscitated judiciary.
In determining unwillingness or inability, the Court is directed to have
"regard to the principles of due process recognized by international law." 63

59 For example, domestic prosecutions in Rwanda under-punish sexual violence, and

recent rulings by the ICTR addressing sexual torture are difficult to re-apply in the domestic
context.
60 See text at 22, infra.
61 For the suggestion that the Court should "fill in gaps" in jurisdiction, see Amnesty
International making the right choice, supra note 33, at 13-14.
62 For an excellent discussion of these issues and the problem of parallel prosecutions in
the context of Rwanda, see, generally, Madeline Morris, supra note 58.
63 ICC Statute, art. 17(2).
80 RUTH B. PHILIPS

This is an important addition, which appeared for the first time in Rome,
and it mandates the Court to measure national judicial criminal process
against the highest international standards of due process. A close read-
ing of this language suggests that the treaty negotiations did not focus on
the other side of the partiality problem, i.e., overzealous prosecutions by
successor regimes in the interest of national reconciliation or revenge or
both.
Article 18, concerning preliminary rulings regarding admissibility,
applies once a State party referral has led to the Prosecutor's decision
to commence an investigation or when the Prosecutor has otherwise
initiated an investigation as authorized by the Pre-Trial Chamber. The
Prosecutor is required to notify all States parties and any other States
which may normally exercise jurisdiction over the case (presumably "inter-
ested" non-States parties). The Prosecutor has crucial discretion to limit
the scope of information provided to States, if she deems it "neces-
sary to protect persons, prevent destruction of evidence or prevent the
absconding of persons," and to provide notice confidentially. Upon
a State's notice (within one month) to the Prosecutor that an invest-
igation or prosecution is or was underway in respect of "its nationals
or others within its jurisdiction," the Prosecutor "shall defer" to the
national judicial process of the State. Mandatory deferral is consistent
with the spirit and principle of complementarity, and the Prosecutor must
obtain Pre-Trial Chamber authorization to override a State's request for
deferral. 65
The Prosecutor may review her decision to defer to a State, after
six months or at any time when admissibility criteria (unwillingness or
inability) change significantly. This provision allows the Prosecutor to
monitor and re-assess the progress of a State's investigation or prosecution
and, if necessary, re-evaluate that State's ability/willingness to adminis-
ter justice. A State may also challenge a Pre-Trial Chamber ruling upon
receipt of additional facts or a significant change of circumstances. 66 A

6 Notice of any sort can impede an investigation and prosecution. Prosecutorial author-
ity to limit the scope of non-State party notice was added to the final Statute; it did not
appear in the Draft Statute, which called for "public announcement." Supra note 42, at
art. 16(1). On the functions and powers of the Pre-Trial Chamber, for elaboration of
the investigative authority the Pre-Trial Chamber may give the Prosecutor in cases of
non-cooperation of a State, see ICC Statute, at art. 57(d).
65 Article 18, read in conjunction with article 15, suggests that Pre-Trial Chamber
review of a Prosecutor-initiated investigation takes place twice: once at the preliminary
examination stage and once again at the admissibility stage.
66 Draft language was abandoned which allowed the Appeals Chamber to authorize the
Prosecutor to proceed while any appeal was pending.
 JURISDICTION AND ADMISSIBILITY 81

State or the Prosecutor may appeal an adverse Pre-Trial Chamber ruling

to the Appeals Chamber, 67 but there are no provisions for review of a
Prosecutor's decision to defer to a State. 68
In any case where the Prosecutor has deferred to a State investigation,
she may seek authority from the Pre-Trial Chamber to take necessary
measures to preserve evidence where there is a "unique" opportunity to
do so, or where there is a "significant risk" that such evidence may be
subsequently unavailable.

7. CHALLENGING JURISDICTION

Article 19 addresses challenges to the jurisdiction of the Court or the

admissibility of a case, and contains extensive provisions regarding who
may and how to challenge a case. This article confers sua sponte authority
on the Court to make admissibility determinations. 69 In essence, a chal-
lenge may be made by: an accused (once an arrest warrant or summons
has issued); a State with jurisdiction over a case and which is investig-
ating or prosecuting it (admissibility challenge); a non-State party whose
acceptance of jurisdiction is required.
The ambiguity of whether article 19 challenges to the Court's juris-
diction or the admissibility of a case apply to Security Council referrals
remains unresolved. As noted above, the gap between article 53 (man-
dating the Prosecutor to consider admissibility in all referrals) and the
provisions of articles 17, 18, and 19 were noted in the Preparatory Com-
mittee. Whether this gap is administrative, reflecting the distinct mandates
of two different Working Groups, or substantive, reflecting a decision not
to court profound conflict, or both, is perhaps immaterial.
If article 18(7)70 is interpreted as requiring a preliminary article 18
challenge in order for a State to mount a challenge under article 19, then
67 With leave, pursuant to article 82(2).
68 Change of circumstances is a criterion for re-consideration of a Prosecutor's deferral,
but straight appeal, as such, is unavailable. Article 18(7), in conjunction with article 19,
appears to allow a State two challenges to an adverse admissibility determination: once,
pursuant to article 18(4) at the preliminary stages of an investigation, and once pursuant to
articles 18(7) and 19, which may be made once and only before or at the commencement
of trial, unless the Court grants leave, in exceptional circumstances (article 19(4)).
69 Prior to the confirmation of charges, any challenges to admissibility or jurisdiction
shall be made to the Pre-Trial Chamber. After confirmation, challenges are heard by the
Trial Chamber.
70 "A State which has challenged a ruling of the Pre-Trial Chamber under this article
may challenge the admissibility of a case under article 19 on the grounds of additional
significant facts or significant change of circumstances."
82 RUTH B. PHILIPS

States are essentially precluded from contesting a Security Council refer-

ral under article 19. If article 18(7) is read to limit a State's access to
a repeated challenge then this is not the case. Regardless of one's inter-
pretation of article 18(7), there are no provisions for a State to challenge
the Prosecutor's investigation of a Security Council-referred situation on
admissibility grounds. It would appear under article 19 that a State may
only challenge such a referral at the stage where a case has been brought.
The dynamics of an article 53 prosecutorial determination of admissibility
of a Security Council referral are a mystery. Under article 53, the Prosec-
utor may decide not to proceed with a case "in the interest of justice," and
may consider the age or infirmity of a suspect. Some may find it preposter-
ous that the age or infirmity of a suspect is a legitimate consideration not to
proceed in the interest of justice, given that longevity, for a war criminal,
is almost certainly the fruit of impunity. The lack of any formal third-party
notice or challenge to a Prosecutor's deferral, or a Pre-Trial Chamber's
determination of inadmissibility (whether in ruling against a Prosecutor's
referral or acting sua sponte, pursuant to article 19(1)), makes access to
the Court for victims and their representatives at these preliminary stages
unclear. Victims and their representatives are nonetheless given limited
but important access to the Prosecutor and the Pre-Trial Chamber at the
pre-admissibility stage of a preliminary examination/investigation.
The double jeopardy or ne bis in idem provision, article 20 of the Stat-
ute, provides that no person shall be tried before the Court with respect to
conduct which formed the basis of crimes for which the person has been
convicted or acquitted by the Court. Furthermore, a person shall not be
tried before any other court for an article 5 crime for which that person
was acquitted or convicted by the Court, nor shall a person be tried by
the ICC for such offenses unless, essentially, the trial was not conducted
impartially or violated norms of due process, or was inconsistent with an
intent to bring the person to justice. 7 1
When read in conjunction with article 81, this Statute makes it theoret-
ically possible for a person to be re-tried by the Court after being acquitted
by the Court. While an appeal of an acquittal offends the proscription
against double jeopardy under the Fifth Amendment to the United States
Constitution (no person shall "be subject for the same offense to be twice
put in jeopardy of life or limb"), this is not a universal precept of criminal
justice (nor is it an absolute proscription under United States constitutional

71 The Statutes of the Yugoslav and Rwandan tribunals provide somewhat similar non
bis in idem provisions. See ICTY Statute, supra note 12, at art. 10; ICTR Statute, supra
note 12, at art. 9.
 JURISDICTION AND ADMISSIBILITY 83

law). 72 Notably, civil law jurisdictions generally allow the prosecution the
right of appeal from an acquittal.

8. APPLICABLE LAW

Article 21 requires the Court to apply law according to the following

hierarchy: first, the Statute, Elements of Crimes and Rules of Procedure
and Evidence; second, applicable treaties and the principles and rules of
international law; and third, general principles of law from national laws
of legal systems, including, when appropriate, the national laws of the State
with jurisdiction over the case, as consistent with the Statute and interna-
tional law and internationally recognized norms and standards. The Court
has discretion to apply its prior holdings with respect to interpretation of
the Statute. An important final clause of this section states:
The application and interpretation of law pursuant to this article must be consistent with
internationally recognized human rights, and be without any adverse distinction founded
on grounds such as gender, as defined in article 7, paragraph 3, age, race, colour, language,
religion or belief, political or other opinion, national ethnic or social origin, wealth, birth
or other status.

The application of the fundamental principle of non-discrimination is a

significant application of international human rights law within the context
of an international criminal law statute. 73
72 For an overview of the double jeopardy treatment of government appeals of acquit-
tals both in and outside the United States, see Report to the Attorney General on Double
Jeopardy and Government Appeals of Acquittals, Truth in Criminal Justice' Report No. 6,
Office of Legal Policy, in 22 J. L. REFORM 833. Foreign appeals are addressed at 885-888.
For example, the Canadian Charterof Rights and Freedoms is interpreted not to preclude a
prosecution appeal of an acquittal on questions of law under the Criminal Code. While the
double jeopardy principle is accorded "great respect" in the United Kingdom, it is allowed
if the initial proceeding was so "'fundamentally flawed' that it was not a trial at all." New
Zealand, India and Sri Lanka permit government appeals of acquittals on questions of law.
73 See, e.g., Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc.
A/810 (1948), art. 2; International Covenant on Civil and Political Rights, adopted Dec.
19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), arts. 2, 26; Geneva Con-
vention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field, adopted Aug. 12, 1949, 75 U.N.T.S. 31 (entered into force Oct. 21, 1950),
article 12(2); Geneva Convention for the Amelioration of the Condition of the Wounded,
Sick and Shipwrecked Members of the Armed Forces at Sea, adopted Aug. 12, 1949, 75
U.N.T.S. 85 (entered into force Oct. 21, 1950), art. 12(2); Geneva Convention Relative to
the Treatment of Prisoners of War, adopted Aug. 12, 1949, 75 U.N.T.S. 135 (entered into
force Oct. 21, 1950), art. 16; Geneva Convention Relative to the Protection of Civilians,
adopted Aug. 12, 1949, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950), art. 27(3);
Convention on the Elimination of Discrimination Against Women, adopted Dec. 18, 1979,
84 RUTH B. PHILIPS

9. CONCLUSION

The final version of the ICC Statute, adopted in Rome on July 17, 1998,
leaves unanswered many important questions regarding the Court's exer-
cise of complementary jurisdiction. This Statute and Court does not and
cannot address the shortcomings and possible conflicts inherent in the
deployment of an international judicial institution to further national recon-
ciliation and the restoration and maintenance of regional peace. 74 The
Court is not empowered to assist meaningfully in national prosecutions;
it is not a parallel adjudicative body. To this extent, the complementary
exercise of concurrent jurisdiction results in the exercise of exclusive jur-
isdiction, whether by a State or by the Court. 75 The Court's goal of
prosecuting top-level officials, whether military or civilian, is not necessar-
ily consistent with the principle of complementarity, if complementarity,
exercised exclusively, does not address the staggering caseloads or replace
an incapacitated judiciary. Put another way, trying top-level officials, while
it is presumably a goal shared by States and the ICC alike, will not neces-
sarily and may never respond to "incapacity or recalcitrance in a national
system." 76
The exact role of the Security Council, exercising its powers under
the United Nations Charter, is not fully understood and remains highly
contested. If a Security Council referral gives primary, as opposed to
complementary, jurisdiction to the Court, then the spectre of simultaneous
prosecutions indeed arises, and the Statute leaves unanswered the circum-
1249 U.N.T.S. 13, arts. 1, 3; International Convention on the Elimination of All Forms of
Racial Discrimination, adopted Dec. 21, 1965, 660 U.N.T.S. 195, arts. 1, 4; United Nations
Standard Minimum Rules for the Administration of Juvenile Justice, G.A. Res. 40/33
(1985), art. 2.1; Guidelines on the Role of Prosecutors, Eighth United Nations Congress
on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August-7
September 1990, Report prepared by the Secretariat, U.N. Doc. A/CONF.144/28 (1998).
74 Again, that the recognition of victim- and survivor-centered values as they are
served in the truth commission context raises unanswered questions about the efficacy
of adversarial fact-finding, and goes to the heart of conceptions of impartial justice. This is
for another paper, and I am suggesting, without exploring, that "impartiality" for the pur-
poses of complementarity has other problematic dimensions. Another question is whether
a truth commission which promises amnesty to a particular individual meets the criteria
for admissibility. The question of amnesties did not go unraised during negotiations.
75 As such, the problems raised by the ICTR's non-exclusive exercise of primary juris-
diction may not apply in the ICC. Morris calls this stratified concurrent jurisdiction. Morris,
supra note 58 at 367. I use "may" advisedly. Presumably, complementarity eradicates the
spectre of a tug-of-war between the ICC and a State, assuming its ability and willingness
to prosecute powerful war criminals. It does not solve the problem of domestic resource
allocation.
76 Madeline Morris, supra note 58 at 367-368.
 JURISDICTION AND ADMISSIBILITY 85

stances under which this will unfold. Whether the final Statute adopted
in Rome will create a truly important institution remains to be seen. The
Statute is remarkable in its ambition as well as its urgency. Although its
groundbreaking uniqueness is inescapably compelling, whether it is truly
"important" will be determined by the life it acquires outside diplomatic
conference rooms and academic fora. It cannot be over-emphasized that
this Statute carries a grant of much-needed hope for victims and survivors
in desperately violent times.