1 See the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), Art. 9(2): ‘The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.’ This principle is embodied in similar terms in Art. 8(2) of the Statute of the International Criminal Tribunal for Rwanda (ICTR), Art. 8(2) of the Statute of the Special Court for Sierra Leone (SCSL), and Art. 4(1) of the Statute of the Special Tribunal for Lebanon (STL).
2 An analysis of the complementarity framework is beyond the scope of our commentary. For more substantial studies, see P. Benvenuti, ‘Complementarity of the International Criminal Court to National Criminal Jurisdiction’, in W. Schabas and F. Lattanzi (eds.), Essays on the Rome Statute of the International Criminal Court (1999), I; J. T. Holmes, ‘Complementarity: National Courts versus the ICC’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), I, 667–86; J. K. Kleffner and G. Kor (eds.), Complementary Views on Complementarity (2006).
4 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Art. 19 of the Statute), Case No. ICC-01/04-01/07, T.C.II, 16 June 2009 (hereinafter TC II Decision).
5 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II on 12 June 2009 on the Admissibility of the Case, Case No. ICC-01/04-01/07 0A8, A.Ch., 25 September 2009 (hereinafter Appeals Judgment).
6 TC II Decision, supra note 4, para. 28.
7 (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under Art. 58;
(b) A state which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or
(c) A State from which acceptance of jurisdiction is required under article 12. (ICC Statute, Art. 19(2))
9 TC II Decision, supra note 4, para. 30.
10 Ibid., paras. 31–32, quoting Art. 31(1) of the 1969 Vienna Convention on the Law of Treaties.
19 ICC Statute, Art. 19(5).
20 TC II Decision, supra note 4, para. 44.
25 Appeals Judgment, supra note 5, para. 36.
28 See Ambos, K., ‘International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?’, (2007) 7 International Criminal Law Review 335.
29 For an analysis of this tension at the ICC, see Jacobs, D., ‘A Samson at the International Criminal Court: The Powers of the Prosecutor at the Pre-trial Phase’, (2007) 6 Law and Practice of International Courts and Tribunals 317. For an example at the ICTR, see D. Jacobs, ‘Commentary on ICTR, Judgment, Prosecutor v. Ntagerura, Bagambiki and Imanishimwe, Case No. ICTR-99–46-T, A.Ch, 7 July 2006’, in A. Klip and G. Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol. 24 (2009), 703.
30 Trial Chamber I, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings and the manner in which evidence shall be submitted, ICC-01/04-01/06 1084, T.C. I, 13 December 2007, para. 39.
31 ICC Statute, Art. 31(3).
32 Rules of Procedure and Evidence, Rule 80(1).
35 ICC Statute, Art. 19(5).
36 ‘When a Chamber receives a request or application raising a challenge or question concerning its jurisdiction or the admissibility of a case . . . it may join the challenge or question to a confirmation or a trial proceeding as long as this does not cause undue delay . . .’ (Rules of Procedure and Evidence, Rule 58).
37 TC II Decision, supra note 4, para. 44.
38 ‘If a challenge to the jurisdiction of the Court or to the admissibility of a case is made after a confirmation of the charges but before the constitution or designation of the Trial Chamber, it shall be addressed to the Presidency, which shall refer it to the Trial Chamber as soon as the latter is constituted or designated in accordance with rule 130’ (Rules of Procedure and Evidence, Rule 60).
39 Quoted in TC II Decision, supra note 4, para. 46. The emphasis is in the quotation, but was not in the original, a fact not mentioned in the decision.
42 TC II Decision, supra note 4, para. 45.
43 For a striking international decision following the same approach, see Prosecutor v. Samuel Hinga Norman, Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman, Case No. SCSL-2003–08-PT, Trial Chamber, 29 October 2003 (the single judge claimed that international defendants had ‘super due-process rights’, a previously unknown category, which allowed the Tribunal to reject the request made by the Truth and Reconciliation Commission in order to protect Norman's rights, such as the right against self-incrimination, despite the defendant himself having given his approval for public testimony).
44 The case (a) is being investigated or prosecuted by a state or (b) has been investigated by a state.
45 The case is not of sufficient gravity.
46 TC II Decision, supra note 4, para. 48.
47 Several defendants have raised the issue of ongoing criminal investigations by national authorities. The case law of the Court has consistently adopted a restrictive ‘same person, same conduct’ test in order to allow investigations for crimes other than those being prosecuted at the national level. See Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for an Arrest Warrant, Art. 58, Case No. ICC-01/04-01/06, P-T Ch. I, 10 February 2006. Such a test implies that only after the confirmation of charges can one can effectively establish whether the same conduct is being investigated at the national level.
48 This explains why only ne bis in idem challenges are allowed at this stage, not only because it is a fundamental human right of the accused (Log, S., ‘The Practical Application of Ne Bis in Idem in International Criminal Law’, in Yee, S. (ed.), (2004) 2 International Crime and Punishment, Selected Issues 169, at 172) but also because it requires a state making the challenge to show not only an investigation, but a successful prosecution. See C. K. Hall, ‘Article 19’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), 637, at 657.
50 ICC Statute, Art. 19(1): ‘The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.’
51 ICC, Situation in the Democratic Republic of the Congo, Judgement on the Prosecutor's Appeal against the Decision of Pre-Trial Chamber 1 Entitled ‘Decision on the Prosecutor's Application for Warrants of Arrest, Article 58, Case No. ICC-01/04, A.Ch., 13 July 2006.
54 ICC, Situation in the Democratic Republic of the Congo, Decision on the Prosecutor's Application for Warrants of Arrest, Article 58, Case No. ICC-01/04, P-T.Ch. I, 10 February 2006.
55 D. Jacobs, ‘Commentary’, in A. Klip and G. Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals, Vol. 23 (2010, forthcoming).