Article 19 : challenges to the jurisdiction of the Court or the admissibility of a case

Daniel David Ntanda Nsereko, Manuel J. Ventura

Research output: Chapter in Book / Conference PaperChapter

Abstract

The ILC Draft Statute 1994 included a provision permitting challenges to the Court’s jurisdiction, in accordance with the rules, ‘to ensure that the Court adheres carefully to the scope of jurisdiction defined by the Statute’. Challenges to jurisdiction, pursuant to Article 34 (Challenges to jurisdiction), could be made ‘prior to or at the commencement of the hearing, by an accused or any interested State’ and, ‘at any later stage of the trial, by an accused’. In addition, Article 24 (Duty of the Court as to jurisdiction) of the ILC Draft Statute 1994 stated that ‘[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it’. Independently of these two provisions, Article 35 (Issues of admissibility) also provided that the Court might, ‘on application by the accused or at the request of an interested State, at any time prior to the commencement of the trial, or on its own motion, decide, having regard to the purposes of this Statute, that a case before it is inadmissible’ on grounds which are now found, in a more detailed and modified form, in Article 17 of the Rome Statute. Article 36 (Procedure under Articles 34 and 35) of the ILC Draft Statute 1994 provided that the accused and an interested State had the right to be heard and that the challenges would be decided by the TC, or the AC, if the TC considered that because of the importance of the issues they should be referred to that Chamber. This scheme, although modified in a number of important respects, in particular, by the addition of the separate Article 18 procedure (based on a US proposal) for challenging admissibility at an earlier stage than the Article 19 procedure, has largely been retained in the Rome Statute. One particular problem that has been carried over from the ILC Draft Statute 1994 (and which arises in other articles), is that ‘Court’ – defined in Article 34 of the Rome Statute as having six organs – is sometimes used in the Rome Statute to mean simply the PTC or the TC. But in other instances, it appears to include the OTP and other organs as well. As indicated below, Article 19 uses the term ‘Court’ in both its broader and narrower senses. Pursuant to Rule 40(1)(b), ‘all decisions’ issued pursuant to Article 19 concerning the admissibility of a case or the Court’s jurisdiction are decisions that ‘resolv[e] fundamental issues’ before the Court. Thus, pursuant to Article 50(1), they are to be published in the Court’s official languages (Arabic, Chinese, English, French, Russian and Spanish).
Original languageEnglish
Title of host publicationRome Statute of the International Criminal Court: Article-by-Article Commentary
EditorsKai Ambos
Place of PublicationU.S.
PublisherHart Publishing
Pages1033-1089
Number of pages57
Edition4th
ISBN (Print)9781509944057
Publication statusPublished - 2022

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