'Self-Referrals' and 'Waivers of Complementarity': Some Considerations in Law and Policy

Kreß, Claus

doi:10.1093/jicj/2.4.944

Cited by 72 publications

(3 citation statements)

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“…59 In an early piece of commentary on Article 14 Clauss Kress noted that although Article 14 treated the role of the Prosecutor as passive, in practice they had been actively managing referrals and there was a clear obligation within Article 14 that were a state to be unable to carry out an investigation they were "to surrender to an international criminal jurisdiction." 60 This indicates that the choice under Article 14 is at best constrained and the freedom of that choice varies according to the relative level of sovereign inequality experienced by a state.…”

Section: A Article 17's Inherent Imperialism: Complementarity As Colonial Victimhoodmentioning

confidence: 99%

Inherent Imperialism

Cowell¹

2017

Journal of International Criminal Justice

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Since 2008 the International Criminal Court has been subject to criticism for being somehow imperialist and some criticism of the Court has pursued a distinctly anti-imperialist narrative. Whilst such criticism is often motivated by political considerations, this article examines whether such narrative can be to a certain extent due to some provisions of the Rome Statute itself, rather than the contingent choices made by Court organs. This involves analysing the law itself for traces of what this article terms 'inherent imperialism'. This is where the text of an instrument implicitly envisages an unequal or hierarchical legal structure. If some of the Rome Statute's features can be considered inherently imperialist, this could provide a partial justification for some of the political attacks on the Court's choices. This article, by providing a theoretical framework, which interprets claims that the law is imperialist, aims to put the anti-imperialist attacks on the Court in perspective.

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Section: A Article 17's Inherent Imperialism: Complementarity As Colonial Victimhoodmentioning

confidence: 99%

Inherent Imperialism

Cowell¹

2017

Journal of International Criminal Justice

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“…The Appeals Chamber also declined to allow admissibility proceedings to become a forum to debate the impact of self-referrals on the admissibility regime. 65 While self-referral may not have been actively contemplated when the Statute was drafted, 66 the Appeals Chamber did not speculate whether the admissibility provisions might have been drafted differently if states had been focused on selfreferrals, and, if so, how. The Chamber could apply Article 17 to the situation before it without any obvious conflict or absurdity.…”

Section: Restraint In Interpreting the Law And Focus On The Case At mentioning

confidence: 99%

The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC

Batros¹

2010

Leiden Journal of International Law

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This article examines the judgment on Kantaga's appeal against the decision of Trial Chamber II of the International Criminal Court that the case against him was admissible. The Appeals Chamber rejected Katanga's appeal, and affirmed the admissibility of the case. However, it did not do so on the same basis as the Trial Chamber (that the Democratic Republic of the Congo (DRC) was unwilling). Rather, it looked at the plain language of Article 17, and found that at the time of the challenge the DRC was not investigating or prosecuting Katanga. This judgment can be seen as an example of judicial restraint. The Appeals Chamber dealt only with those questions which were necessary to dispose of the appeal. It did not engage in policy debates or seek to create new facts, but rather applied the Statute as drafted to the facts of the case before it. In doing this, the Appeals Chamber confirmed certain basic principles of the admissibility regime. The case also provides an insight into the relationship between admissibility and ‘positive complementarity’.

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“…These scenarios, which apply to all but one 92 of the situations currently pending before the Court, have come to be known in legal parlance as 'self-referrals'. 93 Several views have been expressed in this respect. One the one hand, some scholars have cautioned against admitting voluntary referrals as a basis for admissibility, highlighting that this would run counter to the intentions of the drafters.…”

Section: Complementarity and Self-referralsmentioning

confidence: 99%

State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The Principle of Complementarity in the International Criminal Court

Gioia¹

2006

Leiden Journal of International Law

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The article analyses the main features of the Statute of the International Criminal Court in the context of recent developments in international law. The core submission is made that the states' obligations enshrined in the Statute (namely, to investigate and prosecute the most heineous crimes, and to co-operate with the Court in their investigation and prosecution) are to be construed as obligations erga omnes. Since ending impunity for such crimes transcends the interests of individual states, the Court should act on behalf of the international community in remedying any shortcomings of states' action in this respect. In this perspective, particular attention is devoted to the principle of complementarity: it is argued that it could and should be construed and implemented in such a way as genuinely to allow the achievement of the universal objective of preventing impunity for those crimes of concern to the international community.

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'Self-Referrals' and 'Waivers of Complementarity': Some Considerations in Law and Policy

Cited by 72 publications

References 0 publications

Inherent Imperialism

Inherent Imperialism

The Judgment on the Katanga Admissibility Appeal: Judicial Restraint at the ICC

State Sovereignty, Jurisdiction, and ‘Modern’ International Law: The Principle of Complementarity in the International Criminal Court

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