Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

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.