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- Title
What is 'Substantially the Same Conduct'?
- Authors
Rastan, Rod
- Abstract
After more than a decade of practice, little has provoked more heated debate over the proper interpretation of the Rome Statute than the International Criminal Court (ICC)'s complementarity jurisprudence on the required degree of 'sameness' between a case at the national level and at the ICC. The debate has juxtaposed a view of complementarity as a system requiring the court to defer to any national activity, irrespective of sameness, in the interests of state sovereignty, to an approach looking to the technical usage of statutory terms in determining whether there is a conflict of jurisdictions concerning the same case. This sharp divergence has not been mitigated by the Appeals Chamber's approval of the 'same person, same conduct' test, due to its qualifier that sameness of conduct need only be 'substantially' so. What does this mean and how should it be applied in practice? This article seeks to unpack the meaning of the 'same person, same conduct' test and its 'substantially the same' variant. It explores the rationales behind the alternative visions of complementarity. It argues that the notion of sameness is unavoidable due to the operation of the ne bis in idem principle, to which complementarity is linked, and that its correctness confirmed by interrelated provisions of the Statute. Notions such as substantial sameness are also material in other jurisdictions, particularly in the context of extradition proceedings. The article concludes by suggesting that the emblematic debate over whether the correct person or conduct has been selected for investigation and prosecution by the ICC in the light of other pending national proceedings has been misdirected at Article17. It should properly be directed at the exercise of prosecutorial discretion over case selection.
- Subjects
INTERNATIONAL Criminal Court; STATUTORY interpretation; SOVEREIGNTY; JURISDICTION (Roman law); ADMINISTRATIVE remedies
- Publication
Journal of International Criminal Justice, 2017, Vol 15, Issue 1, p1
- ISSN
1478-1387
- Publication type
Article
- DOI
10.1093/jicj/mqx004