Self-Referrals on Trial

Authors: Mller, Andreas Th.; Stegmiller, Ignaz

Source: Journal of International Criminal Justice, Volume 8, Number 5, 15 November 2010 , pp. 1267-1294(28)

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Abstract:

Self-referrals, whilst not expressly provided for in the Rome Statute, have become a familiar feature of the early practice of the International Criminal Court (ICC) and, more precisely, of the strategy of the Office of the Prosecutor. Yet, the concept of self-referrals gives rise to a series of questions. The authors begin by clarifying the scope of self-referrals before arguing that existing scholarship has not sufficiently taken into account their character as unilateral acts of states. Self-referrals can be dealt with properly only if their grounding in international law and its implications are duly considered. This prepares the ground for looking into the relevance of self-referrals in the framework of the ICCs complementarity regime. If a self-referral results in deliberate inactivity on the part of the referring state, it may satisfy the complementarity test under the inactivity scenario. However, referral as a trigger mechanism and the complementarity prong of self-referrals must be kept very carefully apart. This distinction also proves helpful in addressing two concepts currently much en vogue, namely waivers of complementarity and withdrawals of referrals. It can be shown that, on closer observation, there is no need for these two as freestanding concepts. The authors then draw four conclusions. The most important of them is that the Prosecutor would be well advised to abandon the over-extensive use of self-referrals and to rely instead on his proprio motu powers.

Document Type: Research article

DOI: http://dx.doi.org/10.1093/jicj/mqq072

Publication date: 2010-11-15

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JICJ aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, JICJ addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions. It is intended for graduate and post-graduate students, practitioners, academics, government officials, as well as the hundreds of people working for international criminal courts.

Self-Referrals on Trial

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