CYIL 2015

THE HUMAN RIGHTS DIMENSION OF THE ICC'S COMPLEMENTARITY REGIME conduct that is subject to the national investigation is substantially the same conduct that is alleged in the proceedings before the Court; 7 b) the expression ‘the case is being investigated’ must be understood as requiring the taking of concrete and progressive investigative steps to ascertain whether the person is responsible for the conduct alleged against him before the Court; these investigative steps may include interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses; c) the determination of what is ‘substantially the same conduct’ as alleged in the proceedings before the Court will vary according to the concrete facts and circumstances of the case and, therefore, requires a case-by-case analysis; d) the assessment of the subject matter of the domestic proceedings must focus on the alleged conduct and not on its legal characterization; indeed, the question of whether domestic investigations are carried out with a view to prosecuting ‘international crimes’ is not determinative of an admissibility challenge and a domestic investigation or prosecution for ‘ordinary crimes’, to the extent that the case covers the same conduct, shall be considered sufficient; Inactivity, or failure by a State to take any measure against those involved in the commission of crimes falling within the jurisdiction of the ICC renders the case admissible before the Court. Inactivity on the part of a State having jurisdiction over the case therefore precludes assessment of unwillingness or inability. 8 The ACH has established an important distinction between inaction, on one hand, and unwillingness and inability on the other. In this respect, it clarified that the terms unwillingness and inability under Article 17 refer to a situation that only arises after the opening of a formal investigation by the State having jurisdiction over the case, while inaction denotes the absence of any investigative step. 9 Even if the case is being or has been investigated or prosecuted by the State with jurisdiction, the ICC retains admissibility where domestic investigation or the same level in the hierarchy being investigated by the ICC. The Prosecutor v. Muthaura, Kenyatta and Hussein Ali . ICC-01/09-02/11-96 Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, PTCH II, 30 May 2011, para 50. 7 The ICC refused an alternative test (comparative gravity test) according to which the case is admissible only if the scope of investigation by the ICC would significantly exceed in gravity the scope of national investigations. The Prosecutor v. Katanga and Chui . ICC-01/04-01/07-949. Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, pursuant to Art 19 (2) (a) of the Statute, 11 March 2009, para 46. 8 SCHABAS, William. The International Criminal Court: A Commentary on the Rome Statute . Oxford: OUP, 2010, pp. 340-344. 9 The Prosecutor v. Katanga and Chui , sub 3, paras 75-78. ABDOU, Mohamed. Article 17(1)(a). In: Case Matrix Network . [online]. ICC Commentary (CLICC). Available at: http://www.casematrixnetwork. org/cmn-knowledge-hub/icc-commentary-clicc/commentary-rome-statute/commentary-rome statute-part-2-articles-11-21/#c1996 (06/18/2015)

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