[63] 1. The Registrar, at the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in article 12, paragraph 3.
2. When a State lodges, or declares to the Registrar its intent to lodge, a declaration with the Registrar pursuant to article 12, paragraph 3, or when the Registrar acts pursuant to sub-rule 1, the Registrar shall inform the State concerned that the declaration under article 12, paragraph 3, has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation and the provisions of Part 9, and any rules thereunder concerning States Parties, shall apply.
This provision was intended by the drafters to limit a State’s discretion in framing the “situation” that may be investigated in accepting the Court’s jurisdiction on an ad hoc basis under article 12, paragraph 3 of the Rome Statute (Gbagbo, ICC PT. Ch. I, Decision on the "Corrigendum of the challenge to the jurisdiction of the International Criminal Court on the basis of articles 12(3), 19(2), 21(3), 55 and 59 of the Rome Statute filed by the Defence for President Gbagbo, ICC-02/11-01/11-129, 15 August 2012, para. 59). This was done to avoid States that had not signed the Statute using the Court “opportunistically” (Gbagbo, ICC PT. Ch. I, ICC-02/11-01/11-129, 15 August 2012, para. 59). There had been concerns that the wording of the Statute would allow the Court to be used by non-States Parties to selectively accept jurisdiction only in relation to certain crimes or parties (Gbagbo, ICC PT. Ch. I, ICC-02/11-01/11-129, 15 August 2012, para. 59). Rule 44 therefore limits the scope of declarations under article 12(3). 
    While States may seek to define the scope of their acceptance of jurisdiction, any such definition ‘cannot establish arbitrary parameters to a given situation’ and must include all crimes that are relevant to that situation. It is for the Court to determine whether the scope of the acceptance under a State’s declaration is consistent with the objective parameters of the situation (Gbagbo, ICC PT. Ch. I, ICC-02/11-01/11-129, 15 August 2012, para. 60). 
    A declaration made under article 12(3) implies acceptance of all crimes within the jurisdiction of the Court relevant to the situation (Situation in the Republic of Côte D’Ivoire, ICC PT. Ch. III, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-14, 3 October 2011, para. 13; see also Situation in the Republic of Côte D’Ivoire, ICC PT. Ch. III, Corrigendum to “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte D’Ivoire”, ICC-02/11-14-Corr, 15 November 2011, para. 13). That is, an acceptance of jurisdiction will be made covering all crimes specified in article 5 of the statute, rather than specific past events, during which such crimes were committed (Gbagbo, ICC A. Ch., Judgment on the appeal of Mr Laurent Koudou Gbagbo against the decision of Pre-Trial Chamber I on jurisdiction and stay of the proceedings, 12 December 2012, ICC-02/11-01/11-321, para. 80). The scope of a declaration is not limited to crimes that occurred in the past, or to crimes that occurred in a specific “situation”. A State may accept the jurisdiction of the Court generally (Gbagbo, ICC A. Ch., ICC-02/11-01/11-321, 12 December 2012, para. 84). A State may also limit the acceptance of jurisdiction, within the parameters of the Court’s legal framework. However, unless such a stipulation is made, the acceptance of jurisdiction is not restricted, either in terms of crimes that pre-date the declaration or to specific "situations" pursuant to article 13 of the Statute (Gbagbo, ICC A. Ch., ICC-02/11-01/11-321, 12 December 2012, paras. 81 – 84).

Cross-reference:
Article 12

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 246,247, 249, 596.
2. John T. Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 325-327.
3.  Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 181-182.
4. William A. Schabas/Giulia Pecoralla, "Article 12", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 684-688.

Author:
Sophie Rigney

Updated:
10 August 2017

[64] A referral of a situation to the Prosecutor shall be in writing.
This provision only provides that communication should be in writing but does not provide any guidance on what the scope of the referral should be, who the written communication should come from, what it must say, or what form it must take (see Fernández De Gurmendi and Friman, 2009, p. 820).

Crossreference:
Article 14

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 255.
2. Fernández De Gurmendi, Silvia, and Friman, Hăkan, "The rules of procedure and evidence and the regulations of the Court", in Doria, José, Gasser, Hans-Peter, Bassiouni, M. Cherif (Eds), The Legal Regime of the International Criminal Court: Essays in Honour of Igor Blishchenko, 795-824, Martinus Nijhoff, 2009
3. John T. Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 327-328.
4.  Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 182.
5. Antonio Marchesi/Eleni Chaitidou, "Article 14", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 715.

Author:
Sophie Rigney

Updated:
10 August 2017

[65] Where information is submitted under article 15, paragraph 1, or where oral or written testimony is received pursuant to article 15, paragraph 2, at the seat of the Court, the Prosecutor shall protect the confidentiality of such information and testimony or take any other necessary measures, pursuant to his or her duties under the Statute.
This provision highlights the emphasis on protection and confidentiality of communications and testimony received by the Prosecutor, when reviewing information provided to them. Relying on this provision and its emphasis on confidentiality, The Office of the Prosecutor has a policy of maintaining the “confidentiality of the analysis process … in accordance with the duty to protect the confidentiality of senders, the confidentiality of information, submitted and the integrity of analysis or investigation” (Office of the Prosecutor, Update on Communications Received, p.4). It follows that, in order to protect the confidentiality of materials provided under article 15, paragraphs 1 and 2, any supporting material provided under article 15, paragraph 3 should be submitted to the Pre-Trial Chamber as a confidential attachment to the request for authorisation.

Doctrine:
1. John T. Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 329-330.
2.  Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 182.
3. Morten Bergsmo/Jelena Pejic/Dan Zhu, "Article 15", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 731.
4.  International Criminal Court, Office of the Prosecutor, Update on Communications Received by the Office of the Prosecutor of the ICC, 10 February 2006.
5.  International Criminal Court, Office of the Prosecutor, Informal expert paper: Fact-finding and investigative functions of the office of the Prosecutor, including international co-operation, 2003.

Author:
Sophie Rigney

Updated:
10 August 2017

[66] 2. When the Prosecutor considers that there is a serious risk that it might not be possible for the testimony to be taken subsequently, he or she may request the Pre-Trial Chamber to take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to appoint a counsel or a judge from the Pre-Trial Chamber to be present during the taking of the testimony in order to protect the rights of the defence. If the testimony is subsequently presented in the proceedings, its admissibility shall be governed by article 69, paragraph 4, and given such weight as determined by the relevant Chamber.
This provision permits testimony to be received by the Prosecutor, and where the Prosecutor considers that there is a “serious risk” this testimony may not be available in future, that the Prosecutor may request the Pre-Trial Chamber to take measures to ensure the efficiency and integrity of the proceedings. Testimony taken under this provision may later be presented in proceedings (subject to the provisions of article 69, paragraph 4).
   This provision’s articulation of protecting the rights of the defence is complemented by Regulation 77, which articulates that the Office for the Public Counsel of Defence is vested with the task of “representing and protecting the rights of the defence during the initial stages of the investigation”, in particular in relation to this Rule.
   It has been suggested that reliance on this paragraph could be used to “significantly shorten the presentation of evidence at the trial stage” and therefore shorten trial length (ICC OTP Informal Expert Panel, p.6). Héctor Olásolo argues that, while there is not an express time-limit placed on the development of preliminary examinations by the OTP under Rule 47, such examinations should be completed “within a reasonable time” (Olásolo, 2004, p. 22).

Cross-References:
Regulation 77

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, pp. 154-155, 157, 392, 341, 495.
2. John T. Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, p. 330.
3.  Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 182-183.
4.  Héctor Olásolo, “The triggering procedure of the International Criminal Court, procedural treatment of the principle of complementarity, and the role of Office of the Prosecutor”, Guest Lecture Series of the Office of the Prosecutor, 26 March 2004.
5.  International Criminal Court, Office of the Prosecutor, Informal expert paper: Measures available to the International Criminal Court to reduce the length of proceedings, 2003.

Author:
Sophie Rigney

Updated:
10 August 2017

[67] In determining whether there is a reasonable basis to proceed with an investigation under article 15, paragraph 3, the Prosecutor shall consider the factors set out in article 53, paragraph 1 (a) to (c).
This provision sets out the steps a Prosecutor must take, to determine whether there is a reasonable basis to proceed with an investigation. It states that a Prosecutor shall consider whether the information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed (article 53(1)(a)); whether the case is or would be admissible under article 17 (article 53(1)(b)); and taking into account the gravity of the crime and the interests of the victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice (article 53(1)(c)) (see Situation in the Republic of Côte D’Ivoire, ICC PT. Ch. III, Corrigendum to “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte D’Ivoire”, ICC-02/11-14-Corr, 15 November 2011, para 17). This rule clarifies that the provisions of article 53(1) apply to investigations commenced proprio motu and not just by referral from the United Nations Security Council or a States Party (Situation in the Republic of Kenya, ICC PT. Ch. II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para 23). This provision makes it clear that complementarity requirements under article 17 must be considered in the pre-investigative phase of proprio motu investigations by the Prosecutor. At this stage, the admissibility assessment refers to the admissibility of one or more potential cases within the context of a situation (rather than a particular case against an identified accused) (Situation in the Republic of Kenya, ICC PT. Ch. II,Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, 31 March 2010, para 48). Under this provision, the prosecutor must take “the interests of justice” into account, when determining whether there is a reasonable basis to proceed. The provision also obligates the Prosecutor to assess the interests of the victims as part of its determination of the interests of justice at this pre-investigation stage. In determining whether there is a reasonable basis to proceed, the Chamber will “bear in mind that the underlying purpose of the procedure in Articles 15(4) of the Statute is to prevent unwarranted, frivolous or politically motivated investigations” (Situation in the Republic of Côte D’Ivoire, ICC-02/11-14-Corr, 15 November 2011, para. 21). 

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 265, 275, 337, 340.
2. Morten Bergsmo/Jelena Pejic/Dan Zhu, "Article 15", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 733.
3. John T. Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 330-331.
4. Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 183.

Author:
Sophie Rigney

Updated:
10 August 2017 

[68] 1. Where a decision under article 15, paragraph 6, is taken, the Prosecutor shall promptly ensure that notice is provided, including reasons for his or her decision, in a manner that prevents any danger to the safety, well-being and privacy of those who provided information to him or her under article 15, paragraphs 1 and 2, or the integrity of investigations or proceedings.

2. The notice shall also advise of the possibility of submitting further information regarding the same situation in the light of new facts and evidence.
This Rule provides the process for notification of a decision on whether or not to proceed with an investigation. Héctor Olásolo frames this as a bundle of three rights: to have the OTP carry out a preliminary inquiry to obtain the necessary information of the proper assessment of the report of the alleged crime; to be informed of the OTP decision not to request the activation of the potential jurisdiction of the Court over the situation; and to transmit additional information to the OTP with regard to the situation, to have the OTP reconsider its decision not to proceed (Olásolo, 2003, p. 34).
   Notice must be given under Rule 49(1) in a way that protects the safety, well-being and privacy of those who provided the information, or the integrity of the investigations or proceedings. There is therefore an emphasis on maintaining the confidentiality of the analysis process and the reasons for the Prosecutor’s decision. Indeed, the Office of the Prosecutor relies upon this provision and its emphasis on confidentiality, for a policy of maintaining the confidentiality of the analysis process.  In the majority of cases, where there has been a decision not to initiative an investigation on the basis of communications received, the Prosecution will submit its reasons for its decisions only to the senders of communications. When notifying of a decision on whether or not to proceed with an investigation, the Prosecutor will advise those who originally provided the information of their right under this Rule to submit further information on the situation.

Doctrine:
1. Morten Bergsmo/Jelena Pejic/Dan Zhu, "Article 15", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 738.
2. John T. Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, p. 331.
3.  Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 183.
4.  Héctor Olásalo, Expert consultation process on general issues relevant to the ICC Office of the Prosecutor: Issues Regarding the General Powers of the ICC Prosecutor under Article 42 of the Rome Statute, 5 December 2003.
5.  International Criminal Court, Office of the Prosecutor, Update on Communications Received by the Office of the Prosecutor of the ICC, 10 February 2006.

Author:
Sophie Rigney

Updated:
10 August 2017

[69] General remarks
This provision provides for and regulates the participation of victims at this early stage in the pre-investigation process.

Author:
Sophie Rigney

Updated:
10 August 2017 

[70] 1. When the Prosecutor intends to seek authorization from the Pre-Trial Chamber to initiate an investigation pursuant to article 15, paragraph 3, the Prosecutor shall inform victims, known to him or her or to the Victims and Witnesses Unit, or their legal representatives, unless the Prosecutor decides that doing so would pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses. The Prosecutor may also give notice by general means in order to reach groups of victims if he or she determines in the particular circumstances of the case that such notice could not pose a danger to the integrity and effective conduct of the investigation or to the security and well-being of victims and witnesses. In performing these functions, the Prosecutor may seek the assistance of the Victims and Witnesses Unit as appropriate.
This provision means that victims may contact the Court (particularly the OTP) with a view to triggering the Prosecutors’ proprio motu investigation powers, prior to a situation or case pending before the Court, and irrespective of whether such a situation or case is pending. Moreover, if the Prosecutor considers it appropriate to exercise its proprio motu powers, victims may be involved in the proceedings conducted under article 15, provided that they are known to the Court (either the Prosecutor or the Victims and Witnesses Unit). Victims are therefore “likely to play a significant role in the procedure leading to the Pre-Trial Chamber's decision as to whether the Prosecutor should be authorised to exercise his proprio motu powers” (Situation in Uganda, ICC PT Ch. II, Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, ICC-02/04-01/05-252, 10 August 2007, p.33). The Regulations of the Registry provide that where the Prosecutor decides to give notice by general means in accordance with this rule, the Registry may take steps to ensure that victims are informed of this. (Regulation 103, Regulations of the Registry). The Registry has argued that victims should be given a detailed explanation of the types of information which might be provided, and that this information should be phrased in a clear way and placed prominently on the notice. Efforts to assist victims in understanding this process could include distributing information materials, providing a standard form, or conducting information sessions with victims and community leaders.

Author:
Sophie Rigney

Updated:
10 August 2017

[72] 2. A request for authorization by the Prosecutor shall be in writing.
This provision does not specify any formal requirements for an authorisation, beyond the fact that it must be in writing. The Registry has not considered a signature to be a necessary requirement for this provision (International Criminal Court, Registry, “Annex A–Public-Registry methodology for conducting prima facie rule 85 assessments”, ICC-02/11-11-AnxA-Red, 30 August 2011, p.6).

Author:
Sophie Rigney

Updated:
10 August 2017

[72] 3. Following information given in accordance with sub-rule 1, victims may make representations in writing to the Pre-Trial Chamber within such time limit as set forth in the Regulations.
Representations undertaken in accordance with this provision must be confined to those who qualify as "victims" within the meaning of rule 85, bearing in mind the specific nature of the article 15 proceedings. The purpose of representations at this stage and the limited scope of these proceedings should be considered. (Situation in the Republic of Kenya, ICC PT I, Order to the Victims Participation and Reparation Section Concerning Victims’ Representations Pursuant to Article 15(3) of the Statute, ICC-01/09-4, 10 December 2009, paras 7-8.)
   Individual victim participants in article 15 proceedings, as permitted under this Rule, will make representations that, to the extent possible, will include “sufficient information about the identity of any individuals who make representations in this context; the harm they suffered; and the link with any crimes coming within the jurisdiction of the Court” (Republic of Côte D’Ivoire, PT. Ch. III, ICC-02/11-6, 6 July 2011, para 10). Collective representatives by community leaders will provide, to the extent possible, sufficient information about the community they represent; the harm suffered by members of that community; and the links to any crimes coming within the jurisdiction of the Court (Situation in the Republic of Côte D’Ivoire, ICC PT. Ch. III, “Order to the Victims Participation and Reparations Section Concerning Victims' Representations Pursuant to Article 15(3) of the Statute”, ICC-02/11-6, 6 July 2011, para 10).
   A Chamber may require the Court’s Victim Participation and Reparation Section of the Registry to undertake an initial prima facie assessment to ensure that only representations coming from sources who may be considered potentially victims under Rule 85 are send to the Chamber for consideration. Such an initial assessment will be unrelated to applications made to participate in the proceedings (Situation in the Republic of Côte D’Ivoire, 6 July 2011. , PT. Ch. III, ICC-02/11-6, 6 July 2011, para 10).

Author:
Sophie Rigney

Updated:
10 August 2017

[73] 4. The Pre-Trial Chamber, in deciding on the procedure to be followed, may request additional information from the Prosecutor and from any of the victims who have made representations, and, if it considers it appropriate, may hold a hearing.
In establishing the procedure for receiving victims' representations, a Trial Chamber must ensure that the proceedings are carried out in an expeditious manner (Situation in the Republic of Côte D’Ivoire, ICC PT. Ch. III, “Order to the Victims Participation and Reparations Section Concerning Victims' Representations Pursuant to Article 15(3) of the Statute”, ICC-02/11-6, 6 July 2011. , para 6)

Author:
Sophie Rigney

Updated:
10 August 2017

[74] 5. The Pre-Trial Chamber shall issue its decision, including its reasons, as to whether to authorize the commencement of the investigation in accordance with article 15, paragraph 4, with respect to all or any part of the request by the Prosecutor. The Chamber shall give notice of the decision to victims who have made representations.
The Registry will assist the Trial Chamber to implement its obligations under Rule 50(5), to give notice of its decision under article 15(4). Steps that may be taken to assist in this manner can include a general-information campaign for the benefit of the entire population in the relevant country, but focussing particularly on the affected communities; holding meetings with victims, victims' groups and the lawyers and associations who are representing them in this process; and writing directly to those victims whose addresses are known. (Situation in the Republic of Côte D’Ivoire, ICC PT. Ch. III, Public Corrigendum to “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte D’Ivoire”, ICC-02/11-14-Corr, 15 November 2011, para 209-210)

Cross-Reference:
Rule 85 and Regulation 103 of the Regulations of the Registry

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 180, 341-342.
2. Morten Bergsmo/Jelena Pejic/Dan Zhu, "Article 15", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 738.
3. John T. Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 331-334.
4.  Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.), International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 183-184.

Author:
Sophie Rigney

Updated:
10 August 2017 

[75] Information provided under article 17 In considering the matters referred to in article 17, paragraph 2, and in the context of the circumstances of the case, the Court may consider, inter alia, information that the State referred to in article 17, paragraph 1, may choose to bring to the attention of the Court showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct, or that the State has confirmed in writing to the Prosecutor that the case is being investigated or prosecuted.
General Remarks
Rule 51 of the Rules of Procedure and Evidence deals with the information provided by States during an admissibility challenge under article 17. On the other hand, rules 58 to 62 details the proceedings to be followed in relation to admissibility or jurisdictional challenges brought in accordance with articles 19 and 17 of the Statute, in terms of participation in the proceeding, the competent organ to which the challenges should be submitted, the provisional measures that may be taken and the conduct of the proceedings by the Chamber.

Preparatory Works
The drafting history reveals that the discussions with respect to rules related to article 19 proceedings resembled those related to article 18. The countries eventually adopted a similar approach to the rules related to article 18, with some exceptions reflecting the differences between both articles, e.g., permitting the Pre-Trial Chamber to decide on the procedure, with a possibility of holding a separate hearing left to its own discretion, as well as presenting the request or applications in writing containing the basis on which they are founded [Holmes, 2001, pp. 345 - 346]. On the other hand, publicizing the proceedings was ruled out, and it was agreed that other parties, as well as victims, were to be informed by means of summaries containing the basis of the challenge with room to submit views, taking into consideration that the scope of information provided in such summaries should be narrowed for reasons or confidentiality, protection of persons and preservation of evidence [Holmes, 2001, p. 345].

Analysis
Rule 51 provides that the Chamber, when assessing the State’s willingness under article 17(2), may consider information provided by the State showing that “its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct”.
   During the negotiations, states were sensitive to reopening consultations on Article 17 or altering its content through the relevant rules [Holmes, 2001, p. 334]. Therefore, it was agreed that additional information may be sought by the Court when considering the State’s unwillingness. It was stressed that the Court should not be obliged to consider additional information, out of the fear that non-bona fide state would use it to obstruct the work of the Court, hence the inclusion of the wording “may consider” and “inter alia” [Holmes, 2001, p. 334]. Moreover, states agreed that the consideration of such information may be permitted as long as it is linked to the particularities of the case, thus the wording “in the context of the circumstances of the case” [Holmes, 2001, pp. 334]. Furthermore, Rule 51 includes reference to additional factors that can assist in cases of doubt on part of the prosecutor, or to help the state prove its genuineness to pursue justice, through the provision of information relating to the previous prosecution of similar conduct [Holmes, 2001, pp. 336-337].
    In Al-Senussi case, the Pre-Trial Chamber I relied on the information provided by Libya under Rule 51 to dismiss the allegations of the Defence and the victims concerning the lack of independence and impartiality of the Libyan judicial system. The Pre-Trial Chamber observed that the admissibility challenge filed by the Libyan Government contained information about the domestic proceedings against several individuals were members of the same government as the defendant. It specifically referred to the trial of the former Prime Minister, Mr. Al-Baghdadi Al-Mahmoudi, who was “detained in the same prison as Mr Al-Senussi” [Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 254]. The Chamber made reference to the fact that the trial of Mr. Al-Baghdadi Al-Mahmoudi “is open to the public and the press [which] indicates a strong desire to give Al-Baghdadi al-Mahmoudi a fair trial” [Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 255]. Furthermore, the Chamber also relied on “the acquittal of the former Foreign Minister, Abdul Ati El-Obeidi, and the former Secretary of the General People's Congress, Mohamed Al-Zway as indicative of the impartiality and independence of the Libyan judiciary.” The Chamber noted “that the acquittal of the two individuals, although for charges related to the 1988 Lockerbie bombing, has reportedly been ‘seen as important because it shows the impartiality and independence of the Libya courts at a time when many voices outside the country claim that a fair trial is impossible in Libya” [Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, para. 255].

Crossreference:
Article 17(2)

Doctrine:
1. Holmes, John T., in Antonio Cassese/Paola Gaeta/John R.W.D. Jones, The Rome Statue of the International Criminal Court, Oxford University Press, Oxford, 2002, p. 677.
2. Holmes, John T., "Jurisdiction and Admissibility", Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Inc., 2001, pp. 345 – 346.
3. Harhoff, Frederik and Mochochoko, Phakiso, International Cooperation and Judicial Assistance, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Inc., 2001, p. 655.

Author:
Mohamed Abdou

Updated: 
31 May 2017 

[76] 1. Subject to the limitations provided for in article 18, paragraph 1, the notification shall contain information about the acts that may constitute crimes referred to in article 5, relevant for the purposes of article 18, paragraph 2.
Rule 52(1) obliges the Prosecution to provide States with information concerning the acts that might constitute crimes under article 5 of the Statute.
   The notion of ‘acts’ is utilised in the Statute to refer to the crime base elements of the various offences (see for example, article 6, “For the purposes of the Statute, ‘genocide’ means any of the following acts […]”).
   The Appeals Chamber has cited the use the of the term ‘acts’ in Rule 52(1) to conclude that the information available at this phase of the proceedings will necessarily be less precise than that which is required to satisfy the same person/same conduct test at the case stage of the proceedings:

Author:
Melinda Taylor

Updated: 
31 May 2017 

[77] 2. A State may request additional information from the Prosecutor to assist it in the application of article 18, paragraph 2. Such a request shall not affect the one month time limit provided for in article 18, paragraph 2, and shall be responded to by the Prosecutor on an expedited basis.
Pursuant to Rule 52(2), a State may request additional information from the Prosecution in order to assist it to determine whether to request the Prosecution to defer its investigations of these particular criminal acts to that State.
   The fact that the State has requested such information, does not, however, affect the one-month deadline within which the States must submit its request for the Prosecution to defer its investigations and prosecutions to the State.
   Although Rule 52(2) facilitates positive complementarity by creating a framework within which States can request information, which could, in turn, assist the State to conduct its own investigations (such as the location of the suspect, or identities of key witnesses), the explicit caveat that such a request does not affect the one month deadline underscores the fact that positive complementarity should not operate to the detriment of the ability of the ICC to ensure effective and expeditious proceedings.  
   Rule 52(2) thus embodies the overarching emphasis of the ICC legal framework on ensuring expeditious proceedings, and the corresponding obligation this places on Court participants to assert their rights in a diligent and timely manner (Prosecutor v. Katanga, ICC-01/04-01/07-2259, AC, ‘Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled "Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings’, 12 July 2010, para 42, footnote 89).

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 323.
2. John Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 338-340.
3. Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 185.
4. Daniel D. Ntanda Nsereko, "Article 18", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 841-842.

Author:
Melinda Taylor

Updated: 
31 May 2017 

[78]  When a State requests a deferral pursuant to article 18, paragraph 2, that State shall make this request in writing and provide information concerning its investigation, taking into account article 18, paragraph 2. The Prosecutor may request additional information from that State.
Rule 53 specifies that if a State wishes the Prosecution to defer to its investigations, it must submit such a request in writing, and provide information concerning its investigations.  This information must “take into account article 18, paragraph 2”. 
   It can be deduced from this explicit cross-reference to article 18(2) that the request should contain sufficient information to enable the Prosecution to assess whether the State is investigating “criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States” (article 18(2)).
   Rule 53 also enables the Prosecution to request additional information from the State in question.  Although the Prosecution ‘may’ request additional information, there is no obligation for the Prosecution to do so, nor is there any express right for the State to supplement a request for deferral, which lacks key details or information.
   It is notable in this regard that ICC jurisprudence has affirmed, in the context of Article 19 admissibility challenges, that “a State has the duty to ensure that its admissibility challenge is sufficiently substantiated by evidence, as it has no right to expect to be allowed to present any additional evidence after the initial challenge.” (Prosecutor v. Gaddafi and Senussi, ICC PTC,  ‘Decision on the "Urgent Application on behalf of Abdullah Al-Senussi for Pre-Trial Chamber to order the Libyan Authorities to comply with their obligations and the orders of the ICC"’, ICC-01/11-01/11-269, 6 February 2013, para. 32, citing Prosecutor v. Kenyatta et al.,  ICC-01/09-02/11, ICC AC, "Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled 'Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute'", ICC-01/09-02/11-274, 30 August 2011, para. 95 (should read para. 96).
   The power of the Prosecutor to request additional information from States also raises the issues to as to whether this rule has any effect as concerns a non-State party, who is under no obligation to cooperate with the Court.
   On the one hand, if a non-State party refuses a Prosecution request for additional information, it might be appropriate for the Prosecution to draw adverse inferences if it refuses to do so, for the purposes of deciding whether the State in question is willing and able to investigate and prosecution the events in question.
   This would be consistent with a recommendation in the ICC Informal Expert Paper on Complementarity that a State’s record of cooperation with the ICC can be a relevant factor in the Court’s assessment as to whether the State meets (or continues to meet) the admissibility criteria (ICC Informal Expert Paper 2003, p. 18).
   Hall has also argued that where information, which might be germane to the ICC’s determination of admissibility, is within the custody of a State and the State fails to proffer it or grant the ICC access to it, it would be appropriate to draw adverse inferences against the State in question (Hall, 2008 at pp. 645 and 652).
    On the other hand, it is also arguable that since a non-State party is under no obligation to engage with the Court in the first place, any decisions of the Prosecution or Pre-Trial Chamber concerning admissibility will have no legal effect concerning the State’s ability to continue with its domestic investigation.  The Prosecutor might thus decide that it is relatively futile to draw adverse inferences in order to justify continuing with the case, if the State has no intention of cooperating with the Court. Key considerations would presumably include whether the suspects and evidence are located on the territory of the non-State party, and whether there is a realistic prospect that the Prosecution could investigate the situation effectively, against the wishes of the State in question. 
   There is therefore a risk that political considerations could end up creating a two-tiered admissibility regime, whereby the Prosecutor might accept requests for deferrals from non-State parties, which are supported by less evidence, or less detailed evidence, than the Prosecutor has required in requests submitted by State parties.  

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 323.
2. John Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 340-341.
3. Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 185.
4. Daniel D. Ntanda Nsereko, "Article 18", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 843.

Author:
Melinda Taylor

Updated: 
31 May 2017 

[79] 1. An application submitted by the Prosecutor to the Pre-Trial Chamber in accordance with article 18, paragraph 2, shall be in writing and shall contain the basis for the application. The information provided by the State under rule 53 shall be communicated by the Prosecutor to the Pre-Trial Chamber.
Rule 54(i) specifies that if the Prosecutor wishes to contest a request for a deferral before the Pre-Trial Chamber, then it must submit such a request in writing, and provide the basis for its application to contest the deferral.

Author:
Melinda Taylor

Updated: 31 May 2017 

[80] 2. The Prosecutor shall inform that State in writing when he or she makes an application to the Pre-Trial Chamber under article 18, paragraph 2, and shall include in the notice a summary of the basis of the application.
Rule 54(ii) obliges the Prosecutor to inform a State in writing if the Prosecutor has contested a request for deferral before the Pre-Trial Chamber.  The Prosecutor is applied to furnish the State with a ‘summary’ of its application, but no more than that. 
   Since article 18(1) allows the Prosecutor to withhold information from States that could impact on the protection of persons, the integrity of evidence, or the ability of the ICC to secure the arrest of suspects, the Prosecutor presumably has the right to redact any information concerning such matters, which might have been included the Prosecutor’s application.
   The recognition of the Prosecutor’s ability to withhold such information would suggest that the Pre-Trial Chamber erred in ruling in the Gaddafi case that the Chamber was precluded from basing its decision on information that had been withheld from the State, which had requested to prosecute the case (Prosecutor v. Gaddafi and Senussi, ICC-01/11-01/11, PTC, ‘ Decision on the OPCD "Request Pursuant to Regulation 23bis of the Regulations of the Court"’, ICC-01/11-01/11-187-Red, 18 July 2012, para. 10). 
   The Appeals Chamber also indicated in the related Senussi proceedings that it had taken into consideration a discrete  ex parte document submitted by the Defence (Prosecutor v. Gaddafi and Senussi, AC, Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi”, ICC-01/11-01/11-565, 24 July 2014, para.  275)
   Although these decisions concerned Article 19 proceedings, it would be illogical to allow the Prosecution to rely on ex parte information for the purposes of contesting an Article 18 request to defer an investigation, but not to do so in response to an Article 19 challenge to the admissibility of the case before the ICC.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 323.
2. John Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, p. 341.
3. Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 185.
4. Daniel D. Ntanda Nsereko, "Article 18", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 843-844.

Author:
Melinda Taylor

Updated: 
31 May 2017 

[81] Rule 55 of the RPE delineates the powers of the Pre-Trial Chamber and criteria for determining an application by the ICC Prosecutor not to defer the ICC proceedings.

Author:
Melinda Taylor

Updated: 
31 May 2017 

[82] 1. The Pre-Trial Chamber shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing.
Rule 55(1) vests the Pre-Trial Chamber with broad discretion for determining the procedure for resolving such an application. For example, whilst Rule 55(1) posits that the Chamber may hold a hearing, it is not obliged to do so (see, by analogy, Prosecutor v. Ruto, ICC-01/09-01/11, AC, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", ICC-01/09-01/11-336, 20 September 2011, at para. 110).

Author:
Melinda Taylor

Updated: 
31 May 2017 

[62] 2. The Pre-Trial Chamber shall examine the Prosecutor’s application and any observations submitted by a State that requested a deferral in accordance with article 18, paragraph 2, and shall consider the factors in article 17 in deciding whether to authorize an investigation.
Rule 55(2) provides that the Pre-Trial Chamber shall examine the Prosecution’s application and any observations from the State, which requested the deferral.
   It can therefore be extrapolated from Rule 55(2) that the State concerned has a right to file observations in response to the ICC Prosecution’s application.
   If the situation was referred a State under article 14, the referring State would have a right to challenge a decision by the Prosecutor not to initiate a prosecution because the case is inadmissible.  There would therefore appear to be good grounds for the Pre-Trial Chamber to allow a referring State to submit observations in connection with proceedings under Rule 55(2) – subject to confidentiality considerations.
   The Appeals Chamber has also confirmed that victims, can in principle, participate in specific judicial proceedings at the situation phase, which impact on their personal interests (DRC situation, ICC-01/04, AC, ‘Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007"’, ICC-01/04-556, 19 December 2008). In the Kenya situation, the Pre-Trial Chamber foreshadowed that judicial review of a decision of the Prosecution not to proceed with an investigation or prosecution could impact on the personal interests of victims (Kenya situation, ICC-01/05, PTC,  Decision on Victims' Participation in Proceedings Related to the Situation in the Republic of Kenya, ICC-01/09-24, 3 November 2010, para. 12). It is therefore likely that subject to confidentiality concerns or timing issues, Pre-Trial Chambers will invite victims to submit their views in connection with Rule 55(2) proceedings.
   The Chamber is obliged to apply the criteria for admissibility, as set out in article 17, in deciding upon the application (Rule 55(2)).  

Author:
Melinda Taylor

Updated: 
31 May 2017 

[84] 3. The decision and the basis for the decision of the Pre-Trial Chamber shall be communicated as soon as possible to the Prosecutor and to the State that requested a deferral of an investigation.
Rule 55(3) embodies the recurring emphasis in the Statute on resolving admissibility issues in an expeditious manner: it obliges the Chamber to commits its decision (and the reasons for the decision) to the Prosecutor and the State, which requested the deferral, “as soon as possible”.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 275, pp. 305, 323.
2. John Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 341-343.
3. Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 185-186.
4. Daniel D. Ntanda Nsereko, "Article 18", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 844.

Author:
Melinda Taylor

Updated: 
31 May 2017 

[85] 1. Following a review by the Prosecutor as set forth in article 18, paragraph 3, the Prosecutor may apply to the Pre-Trial Chamber for authorization in accordance with article 18, paragraph 2. The application to the Pre-Trial Chamber shall be in writing and shall contain the basis for the application.
Rule 56(1) provides that if the Prosecutor decides to review a deferral to a State’s investigation or prosecution, then it must follow the procedure set out in article 18(2), and submit an application in writing, setting out the basis for the application.

Author:
Melinda Taylor

Updated: 
31 May 2017

[86] 2. Any further information provided by the State under article 18, paragraph 5, shall be communicated by the Prosecutor to the Pre-Trial Chamber. 
The Prosecution must provide any further information communicated by the State pursuant to article 18(5) to the Chamber. This refers to the periodic reports concerning the progress of investigations and prosecutions, which the Prosecutor can request from a State that the Prosecutor initially deferred to.

Author:
Melinda Taylor

Updated: 
31 May 2017

[87] 3. The proceedings shall be conducted in accordance with rules 54, sub-rule 2, and 55.
Rule 56(3) incorporates the requirement from rule 54(2) that the Prosecution must inform the State in writing of the application to review the deferral, and to provide a summary of the request for review.  It also confirms that the review proceedings will be governed by the procedures set out in rule 55.

Crossreference:
Article 54

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 323.
2. Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.), International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 186.
3. Daniel D. Ntanda Nsereko, "Article 18", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 845.

Author:
Melinda Taylor

Updated: 
31 May 2017 

[88] An application to the Pre-Trial Chamber by the Prosecutor in the circumstances provided for in article 18, paragraph 6, shall be considered ex parte and in camera. The Pre-Trial Chamber shall rule on the application on an expedited basis.
According to Rule 57, a request by the Prosecution under article 18(6) to conduct necessary investigative steps, pending a ruling by the Chamber on an application to contest a deferral, must be considered on an ex parte basis, and “in camera” (i.e. closed session).
   Since the Prosecution may wish to appeal a decision by the Chamber not to authorise such steps, there must be an official court record of any such proceedings (i.e. a formal transcript of any in camera hearings).
   The Pre-Trial Chamber is obliged to issue an expedited ruling on a request to take necessary investigative steps.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 323.
2. John Holmes, "Jurisdiction and Admissibility" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 343-344.
3. Jürg Lindenmann, "The Rules of Procedure and Evidence on Jurisdiction and Admissibility", in Horst Fischer et al. (Eds.), International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 186-187.
4. Daniel D. Ntanda Nsereko, "Article 18", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 847.

Author:
Melinda Taylor

Updated: 
31 May 2017 

[89] 1. A request or application made under article 19 shall be in writing and contain the basis for it.
With regards to the format, requests and application challenging admissibility or jurisdiction should be presented in writing and contain the basis for the challenge [Rule 58 (1)].

Author:
Mohamed Abdou

Updated:
31 May 2017

[90] 2. When a Chamber receives a request or application raising a challenge or question concerning its jurisdiction or the admissibility of a case in accordance with article 19, paragraph 2 or 3, or is acting on its own motion as provided for in article 19, paragraph 1, it shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. It may join the challenge or question to a confirmation or a trial proceeding as long as this does not cause undue delay, and in this circumstance shall hear and decide on the challenge or question first.
Upon receiving a challenge from any of the parties entitled to present it (a state, the defendant, or the prosecutor) or in case the Court is acting on its own motion, the Chamber should decide on the “procedure to be followed”. It “may take measure for the proper conduct of the proceedings”. Rule 58 enumerates several measures that the Chamber may take in this respect: it may decide to hold an oral hearing or may join the challenge “to confirmation or a trial proceeding”.

Author:
Mohamed Abdou

Updated:
31 May 2017

[91] 3. The Court shall transmit a request or application received under sub-rule 2 to the Prosecutor and to the person referred to in article 19, paragraph 2, who has been surrendered to the Court or who has appeared voluntarily or pursuant to a summons, and shall allow them to submit written observations to the request or application within a period of time determined by the Chamber. 
The Court is entrusted with transmitting the request (by the prosecutor) or the application (by a state or a person) to the parties and participants, who must be given the opportunity to submit written observations to the challenge within a period of time to be determined by the Chamber [Rule 58 (3)].    The Appeals Chamber has emphasized the broad discretion enjoyed by the Court under Rule 58 of the Rules of Procedure and Evidence. Within the framework of the Kenyan cases, it clarified that the rule only requires the relevant Chamber to transmit the challenge to the Prosecutor, the person concerned and the victims, who shall be given the opportunity to make written submissions. It stated that “save for these express stipulations, the Pre-Trial Chamber enjoys broad discretion in determining how to conduct the proceedings relating to challenges to the admissibility of a case.” [Prosecutor v. Francie Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, para. 87]. Therefore, the Appeals Chamber concluded that the Pre-Trial Chamber had the discretion either to limit its consideration to the evidence submitted along with initial admissibility request or to allow the filing of additional evidence [Prosecutor v. Francie Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, para. 87]. Moreover, in response to Kenya’s argument that the Pre-trial Chamber should have convened an oral hearing, the Chamber determined that “the Pre-Trial Chamber may hold a hearing, but is not obliged to do so” and that the “Pre-Trial Chamber’s decision not convene an oral hearing was thus an exercise of its discretion” [Prosecutor v. Francie Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, para. 108]. Likewise, the Appeals Chamber relied on Rule 58 to dismiss Kenya’s argument that the Pre-Trial Chamber should have decided on its request for assistance before making a determination on the admissibility of the case. In this regard, the Appeals Chamber observed that “even though the Pre-Trial Chamber could have first decided on the Request for Assistance and then the admissibility Challenge, it was not obliged to so” [Prosecutor v. Francie Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, para. 121]. It further recalled that any admissibility determination must be made on the basis of “the available evidence” [Prosecutor v. Francie Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohamed Hussein Ali, (Case No. ICC-01/09-02/11-274), ICC Appeals Chamber, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute”, 30 August 2011, para. 121].

Doctrine:
1. Holmes, John T., in Antonio Cassese/Paola Gaeta/John R.W.D. Jones,The Rome Statue of the International Criminal Court, Oxford University Press, Oxford, 2002, p. 677.
2. Holmes, John T., "Jurisdiction and Admissibility", in Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Inc., 2001, pp. 345 – 346. 
3. Harhoff, Frederik and Mochochoko, Phakiso, "International Cooperation and Judicial Assistance", Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, 637 - 671, Transnational Publishers Inc., 2001, p. 655.

Author:
Mohamed Abdou

Updated: 
31 May 2017 

[92] 1. For the purpose of article 19, paragraph 3, the Registrar shall inform the following of any question or challenge of jurisdiction or admissibility which has arisen pursuant to article 19, paragraphs 1, 2 and 3:
Rule 59 provides that in the cases where the prosecutor “seek a ruling from the Court regarding a question of jurisdiction or admissibility” or a challenge is made by a state or a person, the Registrar shall inform those who have referred a situation to the Court, as well as the victims who “have communicated with the Court in relation to that case” or their legal representatives. In doing so, the Registrar shall act in consistence with the duty of the Court regarding the confidentiality of information, the protection of any person, and the preservation of evidence, along with providing a summary of the grounds of the admissibility of jurisdiction challenge. Parties receiving information may make representation in writing to the competent chamber within the framework of the time limit it defines.

Author: Mohamed Abdou

[93] Those who have referred a situation pursuant to article 13;
In Prosecutor v. Lubanga, Decision inviting the Democratic Republic of the Congo and the Victims in the case to comment on the Proceedings pursuant to Article 19 of the Statute, 24 July 2006, PTC I invited the DRC and the victims in this case to make their submissions.
    In Prosecutor v, Muthuara et al., Decision on the "Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings", 20 September 2011, para. 9, the Pre-Trial Chamber stated that "[t]he language of article 19(3) of the Statute and rule 59(l)(a) of the Rules makes clear that a State shall be informed about an admissibility challenge and provided with a summary of its grounds only if the situation was received by way of a State Party referral as opposed to a proprio motu request submitted by the Prosecutor as is the present case. This approach suggests that the drafters intended to exclude States Parties from proceedings in a scenario such as the one sub judice. Thus, the Republic of Kenya cannot be considered as a participant in the instant proceedings and the argument as presented by the Government of Kenya must fail."

Author: Mohamed Abdou

[94] The victims who have already communicated with the Court in relation to that case or their legal representatives.
Rule 59 provides that the “victims who have communicated with the court” shall be authorized to participate in admissibility proceedings in accordance with article 19(3). The phrase “victims who have communicated with the court” designates “those who submitted applications to participate in the proceedings in the present case” [Prosecutor v. William Samoei Ruto et.al., (Case No. ICC-01/09-01/11-31), ICC Pre-Trial Chamber II, Decision on the Conduct of the Proceedings Following the Application of the Government of Kenya Pursuant to Article 19 of the Rome Statute, 4 April 2011, para. 12]. In order to ensure the protection of witnesses and victims as well as the proper and expeditious conduct of the admissibility proceedings, the Court usually appoints the Office of Public Counsel for Victims “to represent all those victims who have submitted applications to participate in the [admissibility] proceedings” and to submit written observations on their behalf within a time period determined by the Chamber [Prosecutor v. William Samoei Ruto et.al., (Case No. ICC-01/09-01/11-31), ICC Pre-Trial Chamber II, Decision on the Conduct of the Proceedings Following the Application of the Government of Kenya Pursuant to Article 19 of the Rome Statute, 4 April 2011, para. 12].

Author: Mohamed Abdou

[92] 2. The Registrar shall provide those referred to in sub-rule 1, in a manner consistent with the duty of the Court regarding the confidentiality of information, the protection of any person and the preservation of evidence, with a summary of the grounds on which the jurisdiction of the Court or the admissibility of the case has been challenged. 
Rule 59(2) of the Rules mandates the Registrar to provide the Security Council and the victims, “in a manner consistent with the duty of the Court regarding the confidentiality of information, the protection of any person and the preservation of evidence, with a summary of the grounds on which the jurisdiction of the Court or the admissibility of the case has been challenged”. The scope of disclosure to the victims has varied across the cases. For instance, in Al-Gaddafi admissibility challenge, the Chamber held the view that Rule 59(2) “will be satisfied if the Security Council and the OPCV are notified of the public redacted version of the Article 19 Application, together with its public annexes, which are currently available in the record of the case” [Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-134), ICC Pre-Trial Chamber I, Decision on the Conduct of the Proceedings Following the “Application on behalf of the Government of Libya pursuant to Article 19 of the Statute”, 4 May 2012, para. 14]. In respect of El-Senussi admissibility challenge, the legal representative for victims was “provided with the confidential redacted version of the Admissibility Challenge” while the Security Council was “notified of the public redacted version of the Admissibility Challenge, together with its public annexes” thereto [Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-325), ICC Pre-Trial Chamber I, Decision on the conduct of the proceedings following the “Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute”, 26 April 2013, para. 14].
    The Appeals Chamber has clarified the scope of Rule 59(2). It held that this provision is not only intended to provide protection to “witnesses and victims and members of their families, but also of others at risk on account of the activities of the Court are indicative of an overarching concern to ensure that persons are not unjustifiably exposed to risk through the activities of the Court” [Prosecutor v. Germain Katanga, (Case No. ICC-01/04-01/07-475), ICC Appeals Chamber, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”, 13 May 2008, para. 53].
    Lastly, the Appeals Chamber has clarified the modalities for victims’ participation in appellate proceedings as follows: “the legal instruments of the Court do not set out any specific procedure regarding the participation of victims in appeals brought under articles 19(6) and 82(1)(a) of the Statute. Therefore, the Appeals Chamber has adopted a scheme for such participation in the first jurisdictional and admissibility appeals that the Chamber has heard. Under this scheme, only those victims who have made observations on the question of jurisdiction or admissibility in the proceedings before the Pre-Trial or Trial Chamber are invited to make observations before the Appeals Chamber, within a time limit set under Rule 59(3) of the Rules of Procedure and Evidence. This may include individuals whose victim status has not yet been determined (so-called "victim applicants"), as long as they have made observations before the first-instance Chamber. In the view of the Appeals Chamber, this scheme for victim participation in appeals under articles 19(6) and 82(1)(a) of the Statute appropriately gives effect to participatory rights of victims under articles 19(3), takes account of the specificities of that participatory regime (if compared to the general regime under article 68(3) of the Statute), and avoids inefficiency in the appellate process” [Prosecutor v. William Samoei Ruto et.al., (Case No. ICC-01/09-01/11-390 OA 3 OA 4), ICC Appeals Chamber, Decision on the “Observations on the ‘Directions on the submission of observations pursuant to article 19(3) of the Rome Statute and rule 59(3) of the Rules of Procedure and Evidence’”, 20 Frebruary 2012, para. 13].

Doctrine:
1. Holmes, John T., Jurisdiction and Admissibility, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Inc., 2001, pp. 345 – 346.
2. Harhoff, Frederik and Mochochoko, Phakiso, "International Cooperation and Judicial Assistance", Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, 637 - 671, Transnational Publishers Inc., 2001, p. 655.

Author:
Mohamed Abdou

Updated: 
31 May 2017 

[96] 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.
Rule 60 addresses instances where admissibility or jurisdictional challenges are made after confirmation of charges but prior to the designation of a trial chamber. In such instances, it prescribes that the challenge in question must be addressed to the Presidency, which shall refer it to the Trial Chamber upon its designation.
   Pre-Trial Chamber II has relied on Rule 60 to declare that the defence lacked “locus standi to challenge the admissibility of the Case at the pre-trial level”, since the Chamber had already decided to confirm some of the charges brought against the defendant [Prosecutor v. Jean-Pierre Bemba Gombo, (Case No. ICC-01/05-01/08-529), ICC Pre-Trial Chamber II, Decision on the «REQUETE AUX FINS DE DIVULGATION DES ELEMENTS PERTINENTS RELATIFS A L'ADMISSIBILITE», 18 September 2009, para. 13]. It noted that even though the confirmation decision “should not be deemed as final before the time limits required for appeal have expired”, the Chamber’s dismissal of Prosecutor's application for leave to appeal renders the decision “final and thus the Defence has no more locus standi to challenge the admissibility of the Case at the pre-trial level” [Prosecutor v. Jean-Pierre Bemba Gombo, (Case No. ICC-01/05-01/08-529), ICC Pre-Trial Chamber II, Decision on the «REQUETE AUX FINS DE DIVULGATION DES ELEMENTS PERTINENTS RELATIFS A L'ADMISSIBILITE», 18 September 2009, para. 14].

Crossreference:
Article 19

Doctrine:
1. Holmes, John T., Jurisdiction and Admissibility, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Inc., 2001, pp. 345 – 346.
2. Harhoff, Frederik and Mochochoko, Phakiso, "International Cooperation and Judicial Assistance", Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Inc., 2001, p. 655.

Author:
Mohamed Abdou

Updated: 
31 May 2017 

[97] When the Prosecutor makes application to the competent Chamber in the circumstances provided for in article 19, paragraph 8, rule 57 shall apply.    
Rule 61 provides that the Prosecutor may apply to the relevant chamber for provisional measures to be taken during the pendency of the admissibility challenge, in order to pursue necessary investigative steps, to take a statement or testimony from a witness or complete the collection and examination of evidence, or prevent the absconding of persons [Rome Statute, Art. 19(8)]. Rule 57 stipulates that the application for such provisional measures shall be considered ex parte and in camera, and the Pre-Trial Chamber shall rule on it expeditiously. 
   It is worth noting that Pre-Trial Chamber I has clarified that the filing of an admissibility challenge by a State entails not only the suspension of the Prosecution investigation, but also enables the State to postpone any request for the arrest and surrender of the defendant in accordance with article 95 of the Statute [Prosecutor v. Sf Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-163), ICC Pre-Trial Chamber I, Decision on the postponement of the execution of the request for surrender of Saif Al-Islam Gaddafi pursuant to article 95 of the Rome Statute, 1 June 2012, paras. 33-34]. Nonetheless, the State continues to be bound with the general legal framework for cooperation with the Court, as set out in Part IX of the Statute [Prosecutor v. Sf Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-163), ICC Pre-Trial Chamber I, Decision on the postponement of the execution of the request for surrender of Saif Al-Islam Gaddafi pursuant to article 95 of the Rome Statute, 1 June 2012, para. 41].

Doctrine:
1. Holmes, John T., Jurisdiction and Admissibility, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Inc., 2001, pp. 345 – 346.
2. Harhoff, Frederik and Mochochoko, Phakiso, International Cooperation and Judicial Assistance, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers Inc., 2001, p. 655.

Author:
Mohamed Abdou

Updated: 
31 May 2017 

[98] 1. If the Prosecutor makes a request under article 19, paragraph 10, he or she shall make the request to the Chamber that made the latest ruling on admissibility. The provisions of rules 58, 59 and 61 shall be applicable.
2. The State or States whose challenge to admissibility under article 19, paragraph 2,  provoked the decision of inadmissibility provided for in article 19, paragraph 10, shall be notified of the request of the Prosecutor and shall be given a time limit within which to make representations.
Under article 19(10) of the Statute, the prosecutor may submit a request for the review of the admissibility decision after being satisfied “that new facts have risen which negate the basis on which the case had previously been found inadmissible under article 17” by the Court. Such a request shall be presented to the Chamber that made the ruling on admissibility, in accordance with the provisions of Rules 58, 59 and 61. The state or states that initially made the challenge to admissibility shall be notified within a designated time limit to make their representations.
    No application has thus far been submitted by the Prosecution pursuant to article 19(10) before the Court. In a ruling on the admissibility of the case against Abdullah Al-Senussi, Pre-Trial Chamber I decided that the case against the defendant was inadmissible before the Court. Despite this finding, the Chamber observed that the Prosecutor may still submit a request for review of the decision in accordance with article 19(10) [Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Case No. ICC-01/11-01/11-466-Red), ICC Pre-Trial Chamber I, Decision on the admissibility of the case against Abdullah Al-Senussi, 11 October 2013, p. 312].

Doctrine:
1. Holmes, John T., Jurisdiction and Admissibility, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, 321 - 348, Transnational Publishers Inc., 2001, pp. 345 – 346    
2. Harhoff, Frederik and Mochochoko, Phakiso, International Cooperation and Judicial Assistance, Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, 637 - 671, Transnational Publishers Inc., 2001, p. 655.

Author:
Mohamed Abdou

Updated: 
31 May 2017