A. Admissibility of Cases before the ICC

On February 10, 2006, Pre-Trial Chamber (PTC) I issued a warrant of arrest for Thomas Lubanga.1 In making its decision on the prosecutor’s application for the arrest warrant, PTC I held that two issues must be evaluated when determining admissibility: first, whether there are national investigations and prosecutions pertaining to the case at hand that might pre-empt ICC jurisdiction, and second, whether the gravity threshold for the ICC is met.2 This decision is important in that it clarifies the criteria used to determine which cases are sufficiently grave and the “type” of perpetrators who will be targeted by the ICC. It is also the first decision by the court pertaining to another key element of the Rome Statute: complementarity.3

1. Complementarity

PTC I first considered whether states with jurisdiction over the Lubanga case had remained inactive or were unwilling or unable to proceed in relation to his case. This was particularly relevant as Thomas Lubanga was in custody in Kinshasa at the time of the decision and had been charged by the Congolese judicial system.

In determining admissibility, PTC I held that “it is a conditio sine qua non for a case arising from the investigation of a situation to be inadmissible that national proceedings encompass both the person and the conduct which is the subject of the case before the Court.”4 (emphasis added)

Observing that the warrants of arrest issued by the Democratic Republic of the Congo (DRC) against Lubanga contained no reference to his alleged criminal responsibility for the crimes charged in the prosecutor’s application, PTC I held that the DRC could not be considered to be acting in relation to the specific case before the court.5

2. Gravity

In identifying suspected individuals for prosecution, the Rome Statute refers simply to the “perpetrators” of “the most serious crimes of concern to the international community as a whole.”6 The scope of potential defendants is therefore broad. To narrow this otherwise broad class of perpetrators who would be eligible for trial by the ICC, the prosecutor has adopted a policy of pursuing “those who bear the greatest responsibility” for crimes within the ICC’s jurisdiction.7

PTC I found that the gravity requirement under article 17(1)(d) “is intended to ensure that the Court initiates cases only against the most senior leaders suspected of being the most responsible for the crimes within the jurisdiction of the Court allegedly committed in any given situation under investigation.”8 In order to meet the gravity threshold, the chamber held that the following three questions must be answered affirmatively:

- “Is the conduct which is the object of a case systematic or large-scale (due consideration should also be given to the social alarm caused to the international community by the relevant type of conduct)?

- Considering the position of the relevant person in the State entity, organization or armed group to which he belongs, can it be considered that such person falls within the category of most senior leaders of the situation under investigation?; and

- Does the relevant person fall within the category of most senior leaders suspected of being most responsible, considering (1) the role played by the relevant person through acts or omissions when the State entities, organizations or armed groups to which he belongs commit systematic or large-scale crimes within the jurisdiction of the Court, and (2) the role played by such State entities, organizations or armed groups in the overall commission of crimes within the jurisdiction of the Court in the relevant situation?”9

In applying these three questions to the Lubanga case, PTC I decided that it met the gravity threshold under article 17(1)(d).



1 Prosecutor v. Thomas Lubanga Dyilo, International Criminal Court (ICC), Case No. ICC-01/04-01/06, Warrant of Arrest, February 10, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-2_tEnglish.pdf.

2 Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, February 24, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-8-US-Corr_English.pdf, para. 29; see also Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf, art. 17(1)(c) (adding that a case is inadmissible where the person concerned has already been tried for the conduct in question).

3 The preamble of the Rome Statute provides that the ICC shall be “complementary to national criminal jurisdictions.”

4 Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, February 24, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-8-US-Corr_English.pdf, , para. 31.

5 Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, February 24, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-8-US-Corr_English.pdf, paras. 38-39.

6 Rome Statute, preamble, art. 5.

7 Office of the Prosecutor, ICC, “Paper on some policy issues before the Office of the Prosecutor,” p. 7; Office of the Prosecutor, ICC, “Criteria for Selection of Situations and Cases,” draft policy paper on file with Human Rights Watch, June 2006, p. 13

8 Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, February 24, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-8-US-Corr_English.pdf, para. 50.

9 Prosecutor v. Thomas Lubanga Dyilo, ICC, Case No. ICC-01/04-01/06, Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, February 24, 2006, http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-8-US-Corr_English.pdf, para. 63.