https://afghanistaninquiry.defence.gov.au
...
80. ... This Inquiry has been conducted pursuant to Chief of Army’s request, and subsequently the Chief of the Defence Force’s direction, to the Inspector-General of the Australian Defence Force to do so, and in conformity with Australia’s obligation as a State Party to the Rome Statute of the International Criminal Court. By conducting this Inquiry, the Australian Defence Force has taken ownership of its own problem, as the rumours began to emerge.
...
32. The liaison between the Inquiry and the OTP-ICC served the purposes of furthering the Inquiry’s considerations, by endeavouring to source any information that the OTP may have of relevance to the Inquiry’s terms of reference; demonstrating to the OTP that the Inquiry is a rigorous and independent national investigation, which would meet the requirements of the complementarity principle and ensure that the ICC’s jurisdiction remained dormant; and, consistent with the Inquiry’s approaches to other coalition nations, ensuring that the Inquiry maintained its ’world’s best practice‘ approach, including by gaining insights into means of sourcing evidence from witnesses in Afghanistan, which informed the Inquiry’s decision to gather evidence in Kabul.
...
2. The relevant Law of Armed Conflict (LOAC) for Australia is principally to be found in Division 268 of the Commonwealth Criminal Code Act 1995 (the Criminal Code), through which Australia, as a party to the Rome Statute of the International Criminal Court 1998 (Rome Statute) which established the International Criminal Court (ICC), implemented that instrument in domestic legislation. Division 268 was incorporated into the Criminal Code through Schedule 1 of the International Criminal Court (Consequential Amendments) Act 2002. These amendments commenced on 26 September 2002 and accordingly were applicable throughout the period of relevance to the Inquiry
...
The International Criminal Court – the principle of complementarity
43. The whole of the period under consideration by the Inquiry falls within the jurisdiction of the ICC. In the light of the decision of the Prosecutor of the ICC to open an investigation in respect of Afghanistan, it is important to observe that, under the principle of complementarity, the ICC lacks jurisdiction and the Australian Attorney-General is not to surrender, for example, a member of the ADF to the ICC’s jurisdiction, until Australia has had the full opportunity to investigate or prosecute any alleged crimes. Article 17 of the Rome Statute states:
Article 17: Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
...
45. Pursuant to Article 17 of the Rome Statute, the ICC will only exercise its jurisdiction if a State fails to genuinely investigate and prosecute a situation in which crimes against international humanitarian law have been committed
...
48. The Committee thus concluded that: ‘[T]he ICC Statute confirms the primacy of national jurisdictions and provides that the ICC can act only if the State is unable or unwilling to prosecute’
...
52. There remains some debate as to the way in which contested complementarity; that is, situations where the national jurisdiction claims an effective process is on foot or has been completed, but where the ICC may not agree with this assessment, will be dealt with by both national courts and the ICC. The ICC Prosecutor is entitled to make their own assessment as to the adequacy of any national process cited as an admissibility bar to ICC jurisdiction. ...
53. ... Australia is committed, and has demonstrated through this Inquiry, its commitment to inquire into, investigate, and if appropriate prosecute any allegations that may be amenable to ICC jurisdiction (in the absence of appropriate responses by Australia). Therefore, under the principle of complementarity, so long as Australia can satisfy the ICC Office of the Prosecutor that it is making the requisite inquiries and taking appropriate consequential action, the jurisdiction of the ICC is not enlivened.
...
THE INTERNATIONAL CRIMINAL COURT
...
46. The Office of the Prosecutor launched a preliminary examination of the situation in Afghanistan in 2006 after the receipt of numerous communications about the situation under article 15 of the Rome Statute. ...
...
https://afghanistaninquiry.defence.g...se-Version.pdf
80. ... This Inquiry has been conducted pursuant to Chief of Army’s request, and subsequently the Chief of the Defence Force’s direction, to the Inspector-General of the Australian Defence Force to do so, and in conformity with Australia’s obligation as a State Party to the Rome Statute of the International Criminal Court. By conducting this Inquiry, the Australian Defence Force has taken ownership of its own problem, as the rumours began to emerge.
...
32. The liaison between the Inquiry and the OTP-ICC served the purposes of furthering the Inquiry’s considerations, by endeavouring to source any information that the OTP may have of relevance to the Inquiry’s terms of reference; demonstrating to the OTP that the Inquiry is a rigorous and independent national investigation, which would meet the requirements of the complementarity principle and ensure that the ICC’s jurisdiction remained dormant; and, consistent with the Inquiry’s approaches to other coalition nations, ensuring that the Inquiry maintained its ’world’s best practice‘ approach, including by gaining insights into means of sourcing evidence from witnesses in Afghanistan, which informed the Inquiry’s decision to gather evidence in Kabul.
...
2. The relevant Law of Armed Conflict (LOAC) for Australia is principally to be found in Division 268 of the Commonwealth Criminal Code Act 1995 (the Criminal Code), through which Australia, as a party to the Rome Statute of the International Criminal Court 1998 (Rome Statute) which established the International Criminal Court (ICC), implemented that instrument in domestic legislation. Division 268 was incorporated into the Criminal Code through Schedule 1 of the International Criminal Court (Consequential Amendments) Act 2002. These amendments commenced on 26 September 2002 and accordingly were applicable throughout the period of relevance to the Inquiry
...
The International Criminal Court – the principle of complementarity
43. The whole of the period under consideration by the Inquiry falls within the jurisdiction of the ICC. In the light of the decision of the Prosecutor of the ICC to open an investigation in respect of Afghanistan, it is important to observe that, under the principle of complementarity, the ICC lacks jurisdiction and the Australian Attorney-General is not to surrender, for example, a member of the ADF to the ICC’s jurisdiction, until Australia has had the full opportunity to investigate or prosecute any alleged crimes. Article 17 of the Rome Statute states:
Article 17: Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
...
45. Pursuant to Article 17 of the Rome Statute, the ICC will only exercise its jurisdiction if a State fails to genuinely investigate and prosecute a situation in which crimes against international humanitarian law have been committed
...
48. The Committee thus concluded that: ‘[T]he ICC Statute confirms the primacy of national jurisdictions and provides that the ICC can act only if the State is unable or unwilling to prosecute’
...
52. There remains some debate as to the way in which contested complementarity; that is, situations where the national jurisdiction claims an effective process is on foot or has been completed, but where the ICC may not agree with this assessment, will be dealt with by both national courts and the ICC. The ICC Prosecutor is entitled to make their own assessment as to the adequacy of any national process cited as an admissibility bar to ICC jurisdiction. ...
53. ... Australia is committed, and has demonstrated through this Inquiry, its commitment to inquire into, investigate, and if appropriate prosecute any allegations that may be amenable to ICC jurisdiction (in the absence of appropriate responses by Australia). Therefore, under the principle of complementarity, so long as Australia can satisfy the ICC Office of the Prosecutor that it is making the requisite inquiries and taking appropriate consequential action, the jurisdiction of the ICC is not enlivened.
...
THE INTERNATIONAL CRIMINAL COURT
...
46. The Office of the Prosecutor launched a preliminary examination of the situation in Afghanistan in 2006 after the receipt of numerous communications about the situation under article 15 of the Rome Statute. ...
...
https://afghanistaninquiry.defence.g...se-Version.pdf
Comment