Challenges to the jurisdiction of the court or the admissibility of a case

The 1994 International Law Commission’s Draft Statute of the International Criminal Court (ILC Draft Statute) included a provision (article 34) 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 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 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 of the ILC Draft Statute 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. The ILC Draft Statute provided that the accused and an interested State had the right to be heard and that the challenges would be decided by the Trial Chamber, or the Appeals Chamber, if the Trial Chamber 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 (and occurs in other articles), is that ‘Court’, which is defined in article 34 as having six organs, is sometimes used in the Rome Statute to mean simply the Pre-Trial Chamber or the Trial Chamber, and sometimes it appears to include the Office of the Prosecutor and other organs as well. In article 19, the term ‘Court’ is used in both its broader and narrower senses, as indicated below.