Hi, my name is Jo Stigen
I am a Law professor from Oslo, Norway
I have been asked to introduce
article 18 on preliminary rulings
regarding admissibility
Now, you probably already know
that when a Prosecutor has decided
to open an investigation
he or she must already have
assessed the admissibility of
a case, or rather of a situation
in question
Under article 15(3)
the Prosecutor must determine
whether there is a "reasonable basis" to proceed
and one criterion within this
main criterion of reasonable basis
is that he or she must
find that there is one or more
admissible cases
If, alternatively, the Prosecutor has
decided to open an
investigation propriomotu
the Pre-Trial Chamber will have assessed
the admissibly under article 15(4)
Now, article 18
adds yet another layer of
admissibility assessment
Whereas article 19
lets a State challenge the admissibility
once a case has already started
before the ICC
article 18 lets a State raise the
admissibility issue at an earlier stage
in a preemptive manner
Now, according to article 18(1)
when the Prosecutor has decided
that he or she will open an investigation
the Prosecutor must notify
all States Parties and any State
which would normally exercise jurisdiction
over one or more cases in question
And, within one month upon
such notification
any of these States may request
the Prosecutor to defer
The State must then argue
that we are conducting
or there have been conducted
investigations in our States
and that these investigations are, or were,
genuine according to article 17
Now, in light of such a request
the Prosecutor may now either defer
or, alternatively, if he or she find that
there is no genuine true proceeding
or not a sufficient number
of genuine proceedings within the relevant situation,
alternatively, the Prosecutor may then seek
an authorisation from the
Pre-Trial Chamber to proceed
Under Rule 55(2)
the Pre-Trial Chamber shall now consider
the factors in article 17 of
admissibility
Now, having read
the decision of the Pre-Trial Chamber
the Prosecutor or the State concerned
may now, within five days
under article 18 (4)
appeal the Pre-Trial Chamber's decision
Now, this appeal has no suspensive effect
unless the Appeals Chamber so decides
The Appeals Chamber may now either
"confirm, reverse or amend
the decision of the Pre-Trial Chamber"
Under article 18(3)
the Prosecutor may, after six months
review a decision to defer
That is, either a decision that
the Prosecutor made on his or her own
or a decision that is instructed from
the Pre-Trial Chamber, as we just said
The Prosecutor may, that is
review such a decision after six months
or at any point when there has been
a significant circumstance
or a significant change of circumstance
regarding the State's unwillingness or inability
to proceed genuinely
And this provision underscores the obvious
point that national proceedings
must remain genuine until
a final acquittal or conviction
has been handed down, or
the case has been closed for
legitimate reasons
Now, if the Prosecutor, upon such a review,
decides that he or she wants to
take up the investigation
yet, they must now seek an authorization from the
Pre-Trial Chamber
There is another important provision
as well in article 18
and that is article 18(5)
The Prosecutor may request a State to
periodically inform him or her
as to the progress of the national proceeding
Because there is no guarantee that
if this proceeding initially is genuine
there is no guarantee that
the proceeding will remain genuine
There can be apolitical shift
which means that at this later point
the State seeks to shield
the perpetrator from responsibility
This duty of course is only
a duty that a States Party would have
and only upon a request
from the Prosecutor
Lastly, I will mention a certain
safety mechanism in Article 18(6)
The Prosecutor has a special opportunity
to preserve evidence
because despite the one month, the brief one month
limit for States to request a deferral
and despite all these other
provisions in Article 18 aimed at
speeding up things, there is a certain risk
that there would be an unfortunate
delay in the proceedings
So, Article 18(6)
lets the Prosecutor seek an authorization
from the Pre-Trial Chamber to
pursue necessary investigative steps
to preserve evidence
if there is a unique opportunity
to obtain evidence or if
there is a danger that otherwise this
evidences will become unavailable
at a later point
Now, this may seem
a very efficient provision, if you like,
but remember if the Prosecutor
is faced with an unwilling State
there will be enforcement problems whatsoever
So, this provision may look
more efficient than it will actually
turn out to be in reality
That was article 18
Thank you