Proposal Submitted by the United States of America - Article 11 bis - Preliminary Rulings Regarding Admissibility - Statement of the United States Delegation Expressing Concerns Regarding the Proposal for a Proprio Motu Prosecutor

Sep 4, 2026

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Proposal submitted by the United States of America addresses Article 11 bis on preliminary rulings regarding admissibility within the framework of the International Criminal Court. It sets out procedures for public notification of referrals, State notifications of ongoing investigations, Prosecutor deferral with review timelines, and appellate confirmation thresholds. It also explains the possibility of periodic reporting following deferral and emphasizes that challenging a preliminary ruling under these articles does not limit challenges to admissibility under Article 12. The submission further details concerns about establishing a proprio motu prosecutor.

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Proposal Submitted by the United States of America

Article 11 bis - Preliminary rulings regarding admissibility

Statement of the United States Delegation - Concerns regarding a Proprio Motu Prosecutor

147 Proposal Submitted by the United States of America on Article 11 bis.—Preliminary Rulings Regarding Admissibility A/AC.249/1998/WG.3/DP.2 25 March 1998 Original: English Preparatory Committee on the Establishment of an International Criminal Court 16 March–3 April 1998 Working Group on Complementarity and Trigger Mechanism PROPOSAL SUBMITTED BY THE UNITED STATES OF AMERICA Article 11 bis. Preliminary rulings regarding admissibility 1. When a matter has been referred to the Court pursuant to article 6 and the Prosecutor has determined that there would be a sufficient basis to commence an investigation of the matter, the Prosecutor shall make such referral known by public announcement and by notification to all States Parties. 2. Within [ ] days of the public announcement of such referral, a State may inform the Court that it is investigating its nationals or others within its jurisdiction with respect to criminal acts that allegedly were committed in the context of the matter referred to the Court and that may constitute offences described in article 5. At the request of that State, the Prosecutor shall defer to the State’s investigation of such persons unless the Prosecutor determines that there has been a total or partial collapse or unavailability of the State’s national judicial system, or the State is unwilling or unable genuinely to carry out the investigation and prosecutions. Before the Prosecutor may commence investigation of such persons, the Prosecutor must obtain a preliminary ruling from a Pre-Trial Chamber confirming the Prosecutor’s determination. The Prosecutor’s deferral to the State’s investigation shall be open for review by the Prosecutor [six months][one year] after the date of deferral. 3. A preliminary ruling of the Pre-Trial Chamber confirming the Prosecutor’s determination may be appealed to the Appeals Chamber by the State concerned. If the preliminary ruling is appealed by the State, [two thirds] [all] of the judges of the Appeals Chamber must confirm that ruling before the Prosecutor may commence the investigation and seek indictments. 4. When the Prosecutor has deferred an investigation pursuant to section 2, the Prosecutor may request that the State concerned report periodically on the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay. 5. That a State has challenged a preliminary ruling under the present articleshall not prejudice its right to challenge admissibility of a case under article 12 1 [or to withhold its consent to the exercise of jurisdiction under article 7] . Statement of the United States Delegation Expressing Concerns Regarding the Proposal for a Proprio Motu Prosecutor THE CONCERNS OF THE UNITED STATES REGARDING THE PROPOSAL FOR A Proprio Motu PROSECUTOR June 22, 1998 The United States strongly supports an effective ICC Prosecutor who will be able to exercise independent judgment and who will be perceived as impartial and fair. The Prosecutor must have independent discretion to decide, free of any outside influence and based on the evidence collected, what charges to file against which people. The United States is strongly of the view that the principles of prosecutorial independence and effectiveness are not only fully consistent with, but ultimately will be best served by, the structure proposed by the ICC under which the Prosecutor’s authority to embark on an investigation is triggered by a referral by a State or the Security Council. It is our firm view that the proposal for a proprio motu prosecutor—one tasked with responding to any and all indications that a crime within the potential jurisdiction of the Court may have been committed—not only offers little 1 Article 12(4) should be revised to require a vote by two thirds of the judges of the Appeals Chamber to decide that a case is admissible. 148 by way of advancing the mandate of the Court and the princi

FAQs

What does Article 11 bis require after a matter is referred to the Court?

After a referral under article 6 and a sufficient basis for investigation is determined, the Prosecutor must make the referral known publicly and notify all States Parties.

When can a State inform the Court that it is investigating related nationals or persons within its jurisdiction?

Within the specified number of days after the public announcement of the referral, a State may inform the Court that it is investigating relevant persons for crimes possibly constituting offences under article 5.

What are the United States’ main concerns about the proposal for a proprio motu prosecutor?

The concerns focus on preserving prosecutorial independence and effectiveness, opposing control of prosecutorial direction through referrals for particular persons, and maintaining a high threshold limiting the Court’s jurisdiction to the most serious international crimes.

Sep 4, 2026

Uploaded by Fahsai