Article 16 Deferral of investigation or prosecution
No investigation or prosecution may be commenced or proceeded with under this Statue for a period of 12 months after the Security Council, in a resolution adopted under chapter VII of the Charter of the United Nations, has requested the Court to that effect; That request may be renewed by the Council under the same conditions.
Article 17 Issues of admissibility
Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuiely to carry out the investigation or prosecution;
The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person the person concerned, unless the decision resulted from the unwillingness or inability of the state genuinely to prosecute;
The person concerned has already been tried for conduct which is the subject of the complaint, and a trial be the Court is not permitted under article 20, paragraph 3;
The case is not of sufficient gravity to justify further action by the Court.
In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
- The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
- There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
The proceedings were not or are not being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
Article 18 Preliminary rulings regarding admissibility
When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all State Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States. Within one month of receipt of that notice, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may consistute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decided to authorize the investigation.
The Prosecutor's deferral ro a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation.
The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82, paragraph 2. The appeal may be heard on an expedited basis.
When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. State Parties shall respond to such requests with without undue delay.
Pending a rule by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available.
A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances.
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