Some Remarks on the Question of the Admissibility of a Case during Arrest Warrant Proceedings before the International Criminal Court

Leiden Journal of International Law

Volumn 19, Issue 3, 2006, Pages 741-751

  el Zeidy, Mohamed M ^a  

^a Egyptian Ministry of Justice   (Egypt)

Author keywords

admissibility; arrest warrant stage; confirmation hearing; Congo decision; prima facie determination; res judicata; self referral; Uganda decision

Indexed keywords

EID: 85010106211     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003554     Document Type: Article

References (50)

1. The idea of interpreting complementarity as providing national courts with primary jurisdiction is the outcome of the negotiations of the 1995 Ad hoc Committee. For an account of the debates, see Report of the 1995 Ad hoc Committee on the Establishment of an International Criminal Court, paras. 31-4.
2. ICC Statute, Art. 17; see also The idea of interpreting complementarity as providing national courts with primary jurisdiction is the outcome of the negotiations of the 1995 Ad hoc Committee. note 2.
3. ICC Statute, Art. 19(2)(a) reads, ‘An accused or a person forwhom a warrant of arrest or a summons to appear has been issued under Article 58’.
4. RPE, Rule 55(2), ICC Statute; Art. 19(1), RPE; Rule 58.
5. ICC Statute, Art. 53(1)(b).
6. ICC Statute, Art. 18(2); RPE, Rule 55(2).
7. ICC Statute, Art. 53(2)(b).
8. ICC Statute, Art. 18(7).
9. For the distinction, see infra note 21.
10. ICC Statute, Art. 18(7).
11. RPE, Rule 122(2) reads, ‘If a question or challenge concerning jurisdiction or admissibility arises, rule 58 applies.’
12. See ICC Statute, Arts. 19, 58.
13. It is clear from the wording of Art. 18(1) ('When a situation has been referred… ') that Art. 18 is concerned with situations. Art. 58, by contrast, comes into play when a case arises, and individuals have been targeted.
14. It is clear from the wording of Art., Art. 19(1).
15. S. A. Ferna’ ndez de Gurmendi, ‘The Role of the International Prosecutor’, in ICC Commentary, It is clear from the wording of Art. note 2, at 180. On the same distinction but in the context of the Security Council referrals, see L. Yee, ‘The International Criminal Court and the Security Council” Articles 13(b) and 16’, It is clear from the wording of Art., at 147-8.
16. C. K.Hall, ‘Challenges to the Jurisdiction of theCourt or theAdmissibilityof a Case’, inTrifftererCommentary, ‘The Role of the International Prosecutor’ note 2, at 407-8.
17. RPE, Rule 58(2).
18. ‘Challenges to the Jurisdiction of theCourt or theAdmissibilityof a Case’., Rule 58(3).
19. ICC Statute, Art. 19(2)(a).
20. Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS4, VPRS5, and VPRS6, Case No. ICC-01/04, 17 January 2006, para. 65. The Court drew the distinction between cases and situations when it defined the latter as follows” ‘Situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters, such as the situation in the territory of the Democratic Republic of Congo since 1 July 2002, entail proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation,’ ICC Statute, Art.; see also H. Olasolo, ‘The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, andtheRoleof theOfficeof theProsecutor’, (2005)5InternationalCriminalLawReview 121, at125-6(providing some examples of what may constitute a situation within the meaning of the ICC Statute.)
21. Pre-Trial Chamber I citing Hall, ICC Statute, Art. note 17, at 407-8. By looking at the work cited by Pre-Trial Chamber I, one may observe that it lacks a reference that supports this point directly. The author merely argues that ‘cases’ imply formal proceedings that ‘might include an application for a warrant under Article 58,'which is different in meaning than saying ‘proceedings that take place after the issuance of a warrant of arrest or a summons to appear.’
22. It follows that Pre-Trial Chamber I has erred in its ruling that a ‘case’ stage only starts subsequent to the issuance of a warrant of arrest. The reason is that suspects would have already been identified even prior to the issuance of an arrest warrant, which presupposes that a ‘case’ stage may begin from thatmoment.
23. ICC Statute, Art. 19(6) reads” ‘Prior to the confirmation of charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber.’
24. ICC Statute, Art. 58(1).
25. See Arrest decisions on warrants of arrest for Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya, ICC documents ICC-02/04-01/05-53, 13 October 2005, para. 38; ICC-02/04-01/05-54, 13 October 2005, para. 38; ICC-02/04-01/05-56, 13 October 2005, para. 28; ICC-02/04-01/05-57, 13 October 2005, para. 26; ICC-02/04-01/05-55,13 October 2005, para. 26. All documents available are at http//www.icccpi. int/cases/current_situations/Uganda/ug_decision.html.
26. The core idea behind the prima facie determination does not seem to be entirely a novelty of the ICC. The International Court of Justice (ICJ) has initially introduced a parallel standard to be applied for a prima facie determination that there is a basis upon which jurisdiction might be founded at the provisional measures stage, see Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Request for the Indication of Provisional Measures, 5 February 2003, paras. 38-9; Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda), Request for the Indication of Provisional Measures, 10 July 2002, paras. 58-59; and generally, for example, P. H. F. Bekker, ‘ProvisionalMeasures in the Recent Practice of the International Court of Justice’, (2005) 7 International Law Forum du droit international 24. Nevertheless, the Uganda decision lacks any indication as to whether the approach of making a prima facie determination regarding the admissibility of the case may have been influenced by the standard applied by the ICJ.
27. See Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Art. 58, Case No. ICC-01/04-01/06, 10 February 2006, paras. 17-18, emphasis added.
28. Even this conclusion may be deduced from the decision of Pre-Trial Chamber I in the Congo decision. See ICC Statute, Art., paras. 16-17, 19.
29. ICC Statute, Art. 19(1). Art. 19(1) stipulates” ‘The Court may, on its own motion, determine the admissibility of a case in accordancewith Article 17'; concurringHall, ICC Statute, Art. note 17, at 408 ('paragraph 1 provides that the Court… has the discretion, on its ownmotion, to determine the admissibility of a case… in accordancewith Article 17').
30. See Prosecutor v. Joseph Kony, Warrant of Arrest for Joseph Kony issued on 8 July 2005 as Amended on 27 September 2005, Case No. ICC-02/04-01/05, 27 September 2005.
31. ICC Statute, Art.
32. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for aWarrant of Arrest, Article 58, Case No. ICC-01/04-01/06, 10 February 2006, para. 18.
33. ICC Statute, Art. note 31, at, para. 38.
34. This conclusion is even backed by a statement made by Pre-Trial Chamber II to the effect that the prima facie determination would not prejudice subsequent determinations regarding admissibility. ICC Statute, Art.
35. This conclusion is even backed by a statement made by Pre-Trial Chamber II to the effect that the prima facie determination would not prejudice subsequent determinations regarding admissibility. note 33, at paras. 18, 29-40.
36. ICC Statute, Art. 19(2)(a).
37. ICC Statute, Art., Art. 19(1). Interestingly, Art. 19(1) has no limitation on the number of times where the Court may proprio motu examine the question of admissibility. Even the Prosecutor ‘may seek a ruling from the Court regarding a question of jurisdiction or admissibility,’ ICC Statute, Art., Art. 19(3).
38. The use of the word ‘recalls’ or ‘recalling’ as a reminder may be found in most resolutions of the Security Council, and the General Assembly; see inter alia SC Res. 1159, 1325,1441, 1566, and GA Res. 39(I), 51/158, 60/128, 96/860.
39. Assuming that the proper understanding of the decision of Pre-Trial Chamber II that it intended to subject the issuance of an arrest warrant to amandatory determination of the admissibility of the case. But if it is to be understood that the decision does not support this finding, then it could be argued that Pre-Trial Chamber I not only raised the threshold for the issuance of an arrest warrant, but also endorsed a new rule that was lacking in the decision of Pre-Trial Chamber II.
40. ICC Statute, Art. 58.
41. ICC Statute, Art. note 33, at para. 40.
42. ICC Statute Art. 61, ICC Rule 121.
43. ICC Regulation 77, sub-regulations 1, 4.
44. It does not comeas a surprise that defence counsel inthe Congo case challenged Pre-TrialChamber I'sfindings on admissibility. See Appeal by Duty Counsel for the Defence against Pre-Trial Chamber I's Decision of 10 February 2006 on Prosecutor'sApplication for aWarrant of Arrest,Article 58 of 24March 2006, ICC-01/04-01/06; see also Prosecution Response to Thomas Lubanga Dyilo's Brief in Support of the Appeal, Case No. ICC-01/04-01/06, 1May 2006.
45. ICC Statute, Arts. 13(a) and 14. Since a self-referral is in fact a state party referral, the regime governing state parties applies.
46. This does not deny Pre-Trial Chamber I's determination that by the time the President of the Democratic Republic of Congo (DRC) sent the letter of referral of the situation to the Court, the DRC ‘was indeed unable to undertake the investigation and prosecution of the crimes falling within the jurisdiction of the Court committed in the situation in the territory of DRC since 1 July 2002'; see ICC Statute, Arts. note 33, at paras. 33-5.
47. Some discussions have taken place during the drafting history of the Rome Statute in relation to the question whether a state may waive complementarity-related issues. The question was left out, to be addressed in the Rules of Procedure and Evidence. The final text of the latter was adopted without any reference to this question-leaving the question for the Court to decide. See Report of the Ad hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, A/50/22, 1995, para. 47; Decisions taken by the Preparatory Committee at its Session Held from 4 to 15 August 1997, A/AC.249/1997/L.8/Rev.1, 1997, art. 35, at p. 11, n. 17; Report of the Inter-sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands, (A.AC.249/1998/L.13, 1998), art. 11, at 42 n. 53; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Draft Statute and Draft Final Act (A/Conf.183/2/Add.1, 1998), art. 15, at 48, n. 38; A/CONF.183/2/Add.1, art. 15, at 40, n. 38. Some scholars, including myself, have argued in favour of self-referrals and as a result accepting the possibility of waiver of complementarity-related issues by the state concerned; see infra note 49.
48. El Zeidy, ICC Statute, Arts. note 49, at 99-102; Kress, ICC Statute, Arts. note 49, at 945.
49. This requirement was not explicitly mentioned in the pre-trial chamber's decision, butmay be deduced from the entire decision.
50. This requirement was not explicitly mentioned in the pre-trial chamber's decision, butmay be deduced from the entire decision. note 33, at para. 35.