Section 20p. 20

PUBLIC INTERNATIONAL LAW COMPENDIUM VOLUME I

Deferral of investigation or prosecution

No investigation or prosecution may be commenced or

proceeded with under this Statute for a period of 12

months after the Security Council, in a resolution adopted

under Chapter VII of the Charter of the United Nations,

has requested the Court to that effect; that request may

be renewed by the Council under the same conditions.

ARTICLE 17

Issues of admissibility

1. Having regard to paragraph 10 of the Preamble and

article

1,

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 over it and the 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

conduct which is the subject of the complaint, and a trial

by the Court is not permitted under article 20, paragraph

3;

(d) The case is not of sufficient gravity to justify further

action by the Court.

2. 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, as applicable:

(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 for

crimes within the jurisdiction of the Court referred to in

article 5;

(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 they were or are being

conducted in a manner which, in the circumstances, is

inconsistent with an intent to bring the person concerned

to justice.

3. In order to determine inability in a particular case, the

Court shall consider whether, due to a total or substantial

collapse or unavailability of its national judicial system,

the State is unable to obtain the accused or the necessary

evidence and testimony or otherwise unable to carry out

its proceedings.

ARTICLE 18

Preliminary rulings regarding admissibility

1. When a situation has been referred to the Court

pursuant

to

article

13

(a)

and

the

Prosecutor

has

determined that there would be a reasonable basis to

commence an investigation, or the Prosecutor initiates an

investigation

pursuant

to

articles 13 (c) and 15, the

Prosecutor shall notify all States Parties and those States

which, taking into account the information available,

would normally exercise jurisdiction over the crimes

concerned. The Prosecutor may notify such States on a

confidential basis and, where the Prosecutor believes it

necessary to protect persons, prevent destruction of

evidence or prevent the absconding of persons, may limit

the scope of the information provided to States.

2. Within one month of receipt of that notification, a State

may inform the Court that it is investigating or has

investigated its nationals or others within its jurisdiction

with respect to criminal acts which may constitute crimes

referred to in article 5 and which relate to the information

provided in the notification to States. At the request of

that State, the Prosecutor shall defer to the State's

investigation

of

those

persons

unless

the

Pre-Trial

Chamber, on the application of the Prosecutor, decides to

authorize the investigation.

3. The Prosecutor's deferral to a State's investigation shall

be open to review by the Prosecutor six months after the

date of deferral or at any time when there has been a

significant change of circumstances based on the State's

unwillingness or inability genuinely to carry out the

investigation.

4. The State concerned or the Prosecutor may appeal to

the Appeals Chamber against a ruling of the Pre-Trial

Chamber, in accordance with article 82. The appeal may

be heard on an expedited basis.

5. When the Prosecutor has deferred an investigation in

accordance

with

paragraph

2,

the

Prosecutor

may

request that the State concerned periodically inform the

Prosecutor of the progress of its investigations and any

subsequent prosecutions. States Parties shall respond to

such requests without undue delay.

6. Pending a ruling by the Pre-Trial Chamber, or at any

time when the Prosecutor has deferred an investigation

under this article, the Prosecutor may, on an exceptional

basis, seek authority from the Pre-Trial Chamber to

pursue necessary investigative steps for the purpose of

preserving evidence where there is a unique opportunity

to obtain important evidence or there is a significant risk

that such evidence may not be subsequently available.

7. A State which has challenged a ruling of the Pre-Trial

Chamber

under

this

article

may

challenge

the

admissibility of a case under article 19 on the grounds of

additional

significant

facts

or

significant

change

of

circumstances.

ARTICLE 19

Challenges to the jurisdiction of the Court

or the admissibility of a case

1. The Court shall satisfy itself that it has jurisdiction in any

case brought before it. The Court may, on its own motion,

determine the admissibility of a case in accordance with

article 17.

2. Challenges to the admissibility of a case on the grounds

referred to in article 17 or challenges to the jurisdiction of

the Court may be made by:

(a) An accused or a person for whom a warrant of arrest or

a summons to appear has been issued under article 58;

(b) A State which has jurisdiction over a case, on the

ground that it is investigating or prosecuting the case or

has investigated or prosecuted; or

(c) A State from which acceptance of jurisdiction is

required under article 12.

3. The Prosecutor may seek a ruling from the Court

regarding a question of jurisdiction or admissibility. In

proceedings with respect to jurisdiction or admissibility,

those who have referred the situation under article 13, as

well as victims, may also submit observations to the

Court.

4. The admissibility of a case or the jurisdiction of the

Court may be challenged only once by any person or

State referred to in paragraph 2. The challenge shall take

place prior to or at the commencement of the trial. In

exceptional circumstances, the Court may grant leave for

a challenge to be brought more than once or at a time

later than the commencement of the trial. Challenges to

the admissibility of a case, at the commencement of a

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