Complementarity

In one line

The Court is complementary to national criminal jurisdictions, so a case is inadmissible where a State with jurisdiction is genuinely investigating or prosecuting it, and the Court may take it only where the State is unwilling or unable, on tests the Statute itself supplies.

Where the principle comes from

Article 1: the Court shall be complementary to national criminal jurisdictions. The Preamble says the same. Article 17 then puts the principle into an operative rule about admissibility, and it opens with the words having regard to paragraph 10 of the Preamble and article 1, which is the drafters telling the Court where to look.

The distinction to hold on to is that jurisdiction and admissibility are different questions. The Court may have jurisdiction over a case and still be obliged to find it inadmissible because a State is dealing with it.

Article 17(1): the four grounds of inadmissibility

The Court shall determine that a case is inadmissible where:

• (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
• (b) the case has been investigated by a State which has jurisdiction and that State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
• (c) the person concerned has already been tried for the conduct which is the subject of the complaint, and a trial by the Court is not permitted under the ne bis in idem article;
• (d) the case is not of sufficient gravity to justify further action by the Court.

Three features of that list decide problems.

The word is "shall". Inadmissibility is not discretionary. Where a ground is made out the Court must so determine.

Ground (b) covers a decision not to prosecute. A State that investigates and then decides against charges keeps the case, unless the decision itself resulted from unwillingness or inability.

Ground (d) is not about the State at all. Gravity is a filter of the Court's own, and it applies even where no State is doing anything.

Article 17(2): unwillingness

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist:

• (a) the proceedings were or are being undertaken, or the national decision was made, for the purpose of shielding the person concerned from criminal responsibility;
• (b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
• (c) the proceedings were not or are not being conducted independently or impartially, and were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.