Journal of International Criminal Justice Advance Access originally published online on November 22, 2005
Journal of International Criminal Justice 2006 4(1):2-11; doi:10.1093/jicj/mqi087
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Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC
* Professor of Law, Collège de France; member of the Journal's Board of Editors. This paper is based on a lecture given at the ICC on 11 March 2005 at the invitation of the ICC Prosecutor; the French text is available online at http://www.icc-cpi.int/library/organs/otp/ICC-OTP_GL_2005March11 (visited 17 October 2005; see also Revue de Science Criminelle (2005), 473–481). The translation is by Naomi Norberg.
[mdelmas-marty{at}libertysurf.fr]
The author discusses the interaction between international and national law in determining whether a case is admissible from the viewpoint of complementarity (Article 17 of the Statute of the International Criminal Court) and with regard to the concept of ‘interests of justice’ (Article 53 of the same Statute). Complementarity does not separate national from international criminal jurisdiction; nor does it put them in conflict with each other — rather, it favours the aforementioned interaction. In addition, the concepts of ‘ability’ and ‘willingness’ tend to ensure an indirect harmonization of national criminal systems around common international criteria. As for reliance on the notion of ‘interests of justice’ when determining whether to initiate proceedings, according to the author, Article 53 envisages a compromise between prosecutorial discretion and strict legality, thereby enshrining a hybridization between various national traditions. The author notes that the decision to open investigations should be objective and foreseeable; to this end, she suggests some general criteria, which are intended to serve as guidelines for establishing whether, in a specific case, the interests of justice warrant the initiation of proceedings.