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Contents
- Preliminary Material
- Main Text
- Volume I
- s.1 The Path to Rome and Beyond
- 1 From Nuremberg to Rome: International Military Tribunals to the International Criminal Court
- Preliminary Material
- I Introduction
- II Abortive Early Attempts (1919–1945)
- III Criminal Prosecution in the Aftermath of World War II: The Nuremberg and Tokyo Tribunals (1945–1946)
- IV The Nascent ICC Statute: The Work of the ILC (1950–1954, 1990–1994)
- V Post-Cold War ‘New World Order’: The Development of the Two Ad Hoc Tribunals and the Drafting of the ICC Statute (1991–1998)
- VI Conclusion
- Select Bibliography
- 2 Drafting History and Further Developments
- Preliminary Material
- Ch.2.1 The Work of the International Law Commission
- Ch.2.2 From the International Law Commission to the Rome Conference (1994–1998)
- Preliminary Material
- I The Act of Walking Creates a Road
- II General Assembly 1994
- III The Way to Rome after the ILC Draft Statute: General Remarks
- IV The Ad Hoc Committee 1995
- V General Assembly 1995
- VI Preparatory Committee 1996
- VII General Assembly 1996
- VIII Final Preparations
- IX End of the Road: How to Assess the Achievements on This Part of the Road?
- Ch.2.3 Reaching Agreement at the Rome Conference
- Ch.2.4 The Post-Rome Conference Preparatory Commission
- Ch.2.5 The Role of Non-Governmental Organizations
- Preliminary Material
- I Introduction
- II Civil Society Contributions to the Rome Statute
- III Formation of the Coalition
- IV The Coalition at the Ad Hoc Committee
- V The Coalition at the Preparatory Committee
- VI The Coalition at the Rome Diplomatic Conference
- VII The Coalition on the Road to The Hague
- VIII The Coalition at the Post-Rome Conference Preparatory Commission
- IX Summary
- 3 Entry into Force and Amendment of the Statute
- 1 From Nuremberg to Rome: International Military Tribunals to the International Criminal Court
- s.2 Structure of the ICC
- 4 The Court
- Preliminary Material
- Ch.4.1 Seat of the Court
- Ch.4.2 Legal Status and Powers of the Court
- Ch.4.3 Relationship of the Court with the United Nations
- Preliminary Material
- I Introduction
- II The Legal Nature of the Relationship between the ICC and the UN
- III The Procedure for the Conclusion of the Relationship Agreement between the ICC and the UN
- IV The Contents of the Relationship Agreement between the ICC and the UN
- Select Bibliography
- Ch.4.4 Composition of the Court
- 5 The Office of the Prosecutor
- 6 The Registry and Staff
- 7 Duties of Officials
- 8 Privileges and Immunities
- 9 Assembly of States Parties
- Preliminary Material
- I Introduction
- II Establishment and Membership of the Assembly of States Parties
- A Article 112
- B Paragraph 1
- C Paragraph 2
- • Paragraph 2(a): ‘Consider and adopt, as appropriate, recommendations of the Preparatory Commission’
- • Paragraph 2(b): ‘Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court’
- • Paragraph 2(c): ‘Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto’
- • Paragraph 2(d): ‘Consider and decide the budget for the Court’
- • Paragraph 2(e): ‘Decide whether to alter, in accordance with article 36, the number of judges’
- • Paragraph 2(f): ‘Consider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation’
- • Paragraph 2(g): ‘Perform any other function consistent with this Statute or the Rules of Procedure and Evidence’
- D Paragraph 3: Bureau of the Assembly
- E Paragraph 4: Establishment of Subsidiary Bodies
- F Paragraph 5: Participation of the President of the Court, the Prosecutor, and the Registrar or their Representatives, as Appropriate, in Meetings of the Assembly and of the Bureau
- G Paragraph 6: Meetings of the Assembly
- H Paragraph 7: Decision-Making
- I Paragraph 8
- J Paragraph 9: The Assembly Shall Adopt its own Rules of Procedure
- K Paragraph 10: The Official and Working Languages of the Assembly Shall be Those of the General Assembly of the UN
- 10 Financing
- 4 The Court
- s.3 Jurisdiction
- 11 Jurisdiction Ratione Materiae
- Preliminary Material
- Ch.11.1 Genocide
- Ch.11.2 Crimes against Humanity
- Preliminary Material
- I Customary International Law
- II The Statutes of the ICTY and the ICTR and Main Trends in the Case Law of the Two Tribunals
- III Article 7 of the ICC Statute
- Select Bibliography
- Ch.11.3 War Crimes
- Preliminary Material
- I General Overview
- II Jurisdiction
- III The Definition of War Crimes
- A General Questions
- B Customary Law: The History of the Concept of War Crimes
- C The Concept of War Crimes of the Rome Statute: General Introduction
- D Grave Breaches of the Geneva Conventions (para. 2(a))
- E Other Serious Violations of the Laws and Customs Applicable in International Armed Conflicts (para. 2(b))
- 1 Prohibited Methods of Warfare
- 2 Prohibited Means of Warfare/Weapons
- 3 Attacks on Specially Protected Persons and Objects
- 4 Violations of Human Rights in Armed Conflict
- F Violations of the Law Applicable in Times of Armed Conflicts Not of an International Character (paras. 2(c) to (f), 3)
- 1 Violations of Article 3 Common to the Geneva Conventions (subparas. 2(c) and (d))
- 2 Other Serious Violations of the Laws and Customs Applicable in Armed Conflicts Not of an International Character (para. 2(e))
- G The Savings Clause
- Select Bibliography
- Ch.11.4 The Long Journey towards Repressing Aggression
- Preliminary Material
- I Proclamations of Aggression as an Individual Crime and Instances of Repression in State Practice
- II The Compromise Solution Adopted at the Rome Conference and its Significance under General International Law
- III The Question of Consistency between Repression of Aggression and the UN Charter
- IV The Issue of Defining Aggression
- V Issues Relating to the Jurisdiction of the ICC with Regard to Aggression
- VI The Implications of Article 5 of the ICC Statute for States Parties
- VII Final Remarks
- Select Bibliography
- Ch.11.5 Elements of Crimes
- Preliminary Material
- I The Draft Text on the Elements of Crimes Approved by the Preparatory Commission for the International Criminal Court: Purpose of the Study
- II The Debate on the Elements that Preceded the Diplomatic Conference and the Compromise Reached on the Relevant Provisions of the Rome Statute
- III The Difficulties Faced by the Preparatory Commission: Structure of the Elements, the Implementation of General Principles of Criminal Law, the Question of Coherence with the Statutory Rules on Definition of Crimes. The Main Characteristics of the Text
- IV The General Introduction: The Elaboration of Grounds for Excluding Criminal Responsibility, Mistake of Fact or Mistake of Law and Unlawfulness of the Conduct
- V The Introductions to Crimes Against Humanity and War Crimes. The Comments on Impermissibility of the Conduct ‘under generally applicable law’, on Crimes Perpetrated in Internal Conflicts, and on the Interpretation of the Elements ‘within the established framework of the international law of armed conflict’
- VI The Elaboration of the Mental and Contextual Elements of the Crimes Covered by the Statute
- VII Other Elements which were Especially Controversial or are likely to Raise the Most Delicate Problems of Interpretation and Application by the ICC with regard to Specific Crimes
- VIII The Elements of Crimes: Some Final Remarks
- Ch.11.6 Cumulation of Offences
- Preliminary Material
- I Introduction
- II The Case Law of the International Criminal Tribunals for the Former Yugoslavia and Rwanda—Emerging Principles of International Criminal Law
- III The Problem of ‘cumulation of offences’ in the Rome Statute—Reflections on Future ICC Practice
- Select Bibliography
- Ch.11.7 The Missing Crimes
- Preliminary Material
- I Introduction
- Part One
- II Drug Crimes
- A Brief History of Multilateral Efforts to Deal with Drug Crimes up to 1988
- B Trinidad and Tobago’s Proposal at the United Nations General Assembly in 1989
- C Consideration of Drug Crimes in the ILC
- D Preparatory Work for the Rome Conference: The Ad Hoc Committee and the Preparatory Committee
- E The Rome Conference
- F The Place of Drug Crimes in International Law
- III International Terrorism
- A Brief History of Multilateral and Regional Efforts to Combat International Terrorism
- B United Nations Resolutions
- C Treaties of a Universal Character
- D Regional Instruments
- E Consideration of International Terrorism in the ILC
- F Preparatory Work for the Rome Conference: The Ad Hoc Committee and the Preparatory Committee
- G The Rome Conference
- H The Place of the Crime of International Terrorism in International Law
- IV Mercenarism
- II Drug Crimes
- Part Two
- Select Bibliography
- Annex 1
- Annex 2
- 12 Jurisdiction Ratione Personae
- Preliminary Material
- I Nuremberg and Tokyo: The Reasons for Punishing the Vanquished and for Declaring the Criminality of Nazi Organizations
- II The International Criminal Tribunals for the Former Yugoslavia and Rwanda: In Search of Universal Jurisdiction over Natural Persons
- III The ICC Personal Jurisdiction: The Need for a Compromise Solution
- IV The Question of ‘Incidental or Ancillary’ Jurisdiction over States and/or Persons: The Blaškić Case and Its Legacy
- A Whether International Tribunals are Empowered to Issue Binding Orders to States and to Sanction them for Non-Compliance
- B Whether International Tribunals are Empowered to Issue Binding Orders to State Officials
- C Whether International Tribunals are Empowered to Issue Binding Orders to Individuals Acting in their Private Capacity
- V Final Remarks
- Select Bibliography
- 13 Jurisdiction Ratione Temporis
- Preliminary Material
- I General Overview
- II Comparison with ratione temporis Provisions of the Nuremberg and Tokyo Tribunals, ICTY and ICTR
- III Analysis and Critical Assessment of the Relevant Provisions of the Rome Statute
- A The Development of ICC Provisions with Respect to Jurisdiction ratione temporis
- B Description of the Relevant Provisions and Critical Assessment
- IV Conclusion
- Select Bibliography
- 14 Jurisdiction Ratione Loci
- Preliminary Material
- I General Overview
- II Comparison with ratione loci Provisions of the Nuremberg and Tokyo Tribunals, ICTY and ICTR
- III Analysis and Critical Assessment of the Relevant Provisions of the Rome Statute
- A Basic Principles and Description
- B Operation of the ratione loci Jurisdiction of the International Criminal Court
- IV Conclusion
- Select Bibliography
- 15 Can the Security Council Extend the ICC’s Jurisdiction?
- 16 Preconditions to the Exercise of Jurisdiction
- 17 ‘Trigger Mechanisms’
- 18 Issues of Admissibility and Jurisdiction
- Preliminary Material
- Ch.18.1 Complementarity: National Courts versus the ICC
- Ch.18.2 Possible Conflicts of Jurisdiction with the Ad Hoc International Tribunals
- Preliminary Material
- I Introduction
- II The Jurisdiction of the ICTY and the ICTR
- III The Powers of the Security Council under UN Law and the Obligations of the UN Members
- IV The Relationship between the ICTY and the ICC
- V Enforcing the Jurisdiction: Problems in Practice
- VI New Ad Hoc Tribunals or Referral under Article 13(b)?
- Select Bibliography
- Ch.18.3 Possible Conflicts of Jurisdiction with Truth Commissions
- Ch.18.4 Ne bis in idem Principle, Including the Issue of Amnesty
- Preliminary Material
- I Ne bis in idem, res judicata, autrefois convict, and Double Jeopardy
- II Rationale of the ne bis in idem Rule
- III Ne bis in idem in National Criminal Justice Systems
- IV Ne bis in idem as an Internationally Protected Human Right
- V Ne bis in idem in the Nuremberg Charter and in the Statutes of the ICTY and the ICTR
- VI The ne bis in idem Principle in Article 20 of the Rome Statute
- VII Ne bis in idem and the Issue of Amnesty
- VIII Conclusions
- Select Bibliography
- 11 Jurisdiction Ratione Materiae
- s.4 General Principles of International Criminal Law
- 19 Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law
- Preliminary Material
- Part One Nullum crimen sine lege
- I Introduction
- II The Emergence of nullum crimen sine lege in Customary International Law
- III Nullum crimen sine lege in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda
- IV Nullum crimen sine lege and the Statute of the International Criminal Court (ICC)
- V Conclusion
- Part Two Nulla poena sine lege
- Select Bibliography
- 20 Individual Criminal Responsibility
- Preliminary Material
- I Scope of Article 25 of the ICC Statute
- II Elements For and Lack of a Comprehensive ‘General Part’ of Criminal Responsibility
- III Comparison with National and Customary International Criminal Law
- IV Individual Criminal Responsibility as Distinct from Other Types of Responsibility
- V Perpetration and Participation
- A Basic Models in National Law(s)
- B Survey on Regulations of Perpetration and Participation in International Criminal Law
- C Perpetration (according to Article 25(3)(a) of the ICC Statute)
- D Instigation (Article 25(3)(b) of the ICC Statute)
- E Aiding, Abetting, or Otherwise Assisting (Article 25(3)(c) of the ICC Statute)
- F Complicity in Group Crimes (Article 25(3)(d) of the ICC Statute)
- G Incitement to Genocide (Article 25(3)(e) of the ICC Statute)
- H Complicity after Commission
- VI Attempt and Abandonment
- VII Commission by Omission
- VIII Concluding Assessment
- Select Bibliography
- 21 Superior Responsibility
- Preliminary Material
- I Introduction
- II The Status of Superior Responsibility in Customary Law
- III Article 28 Rome Statute
- A Description of the Provision and Comparison with Earlier Codifications
- B Critical Analysis and Interpretation
- 1 General Considerations
- 2 Actus Reus
- (a) The Status of the Superior
- (b) Effective ‘command and control’ or ‘authority and control’
- (c) Crimes as a ‘result’ of the Superior’s Failure to Exercise Control Properly
- (d) ‘Necessary and reasonable’ Countermeasures ‘within his or her power’
- (e) ‘Prevent’, ‘repress’, or ‘submit to the competent authorities’
- 3 Mens rea
- C Conclusion
- Select Bibliography
- 22 Non-Applicability of Statute of Limitations
- 23 Mental Elements–Mistake of Fact and Mistake of Law
- Preliminary Material
- I Introduction: Progress on Misconceived Propositions
- II Development prior to the Rome Statute
- III Variety of Mental States in the Rome Statute
- IV The Mental Element according to Article 30 of the ICC Statute
- A Underlying Basic Concepts
- B Intention, Intent and/or Knowledge: Relations in Need of Clarification
- C The Object of Intention: The ‘material elements’
- D Reference Points of ‘intent’: Conduct—Consequences
- E ‘Knowledge’ with Regard to Circumstances and Consequences
- F Requisites of ‘awareness’
- G The Relevant Time of Knowledge
- H ‘Wilful blindness’
- I ‘Dolus eventualis’ and ‘recklessness’
- J Mental Element and Complicity
- V Mistake of Fact and Mistake of Law according to Article 32 of the ICC Statute
- VI Concluding Assessment
- Select Bibliography
- 24 Defences
- Preliminary Material
- Ch.24.1 Justifications and Excuses in International Criminal Law
- Ch.24.2 Superior Orders
- Preliminary Material
- I Historical Background: The Defence of Superior Orders before World War I
- II Article 33 of the Rome Statute as Compared to Nuremberg, The Hague, and Arusha
- A Article 8 of the Charter of the International Military Tribunal and Control Council Law No. 10
- B Attempts to Regulate the Defence of Superior Orders in the Geneva Conventions and Additional Protocol I of 1977
- C Work of the International Law Commission
- D Article 7(4) of the Statute of the ICTY and Article 6(4) of the Statute of the ICTR
- III The Application of the Notion of Superior Orders in the Practice of National Criminal Tribunals since World War I
- IV The Application of the Notion of Superior Orders in the Practice of International Criminal Tribunals
- V Superior Order as a Defence in National Legal Orders
- VI The Present Status of Customary International Law on the Matter
- VII Relationship between the Defences of Superior Order and Duress
- VIII Analysis of Article 33 of the Statute of the ICC
- A Drafting History and Contents of Article 33 of the Statute of the ICC
- B The Notion of ‘superior order’ in Article 33(1) of the Statute
- C The Existence of a ‘legal obligation’ in Article 33(1)(a) of the Statute
- D Knowledge as to the Unlawfulness of the Order, Article 33(1)(b) of the Statute
- E The ‘manifestly unlawful’ standard in Article 33(1)(c) of the Statute
- F The Distinction Drawn between War Crimes, on the One Hand, and Genocide/Crimes against Humanity, on the Other, in Article 33(2) of the Statute
- IX Outlook: Article 33 of the ICC Statute—Problems and Perspectives
- Select Bibliography
- Ch.24.3 Official Capacity and Immunities
- Preliminary Material
- I Introduction
- II Customary International Law
- III The Rome Statute
- A Article 27 of the Rome Statute
- B Functional Immunities
- C Personal Immunities
- 1 Irrelevance of Personal Immunities in Criminal Proceedings before the ICC
- 2 Personal Immunities and Cooperation with the ICC: The Scope and Purport of Article 98(2) in Relation to Article 27(2)
- 3 The Legal Regulation of Personal Immunities under the Rome Statute at the Vertical and the Horizontal Level
- D The Impact of Article 27 on National Legislation Concerning Immunities
- IV Concluding Remarks
- Select Bibliography
- Ch.24.4 Other Grounds for Excluding Criminal Responsibility
- 19 Nullum Crimen, Nulla Poena Sine Lege in International Criminal Law
- s.1 The Path to Rome and Beyond
- Volume II
- s.5 The Statute and General International Law
- 25 Applicable Law
- 26 International Criminal Responsibility of the Individual and International Responsibility of the State
- 27 The Statute’s Rules on Crimes and Existing or Developing International Law
- s.6 International Criminal Proceedings
- 28 The Rules of Procedure and Evidence for the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility
- Preliminary Material
- I Introduction
- II The Rules of Procedure and Evidence of the International Criminal Court: General Framework
- III The Adoption and Amendment of Rules of Procedure and Evidence according to the Rome Statute: The Rejection of the ‘Judge-legislator’
- IV Preliminary Conclusions
- V An Overview of Some of the ICC Rules of Procedure and Evidence
- VI Conclusions
- 29 Investigation
- Preliminary Material
- Ch.29.1 Powers and Duties of the Prosecutor
- Preliminary Material
- I Introduction
- II The Question of the Independence of the Prosecutor
- III The notitia criminis and the Decision whether to Investigate
- A The Source of the Information: Three Different Classes of notitia criminis
- B The Preliminary Examination of Any Information Provided, as an Essential Pre-investigative Stage
- C The Manner in which the Preliminary Examination is Carried Out
- D The Extent of the Preliminary Examination
- E The Decision of the Prosecutor, Subsequent to Preliminary Examination, whether to Initiate an Investigation: The Relevant Parameters
- F The Obligation to Inform Those who Provided the Information about the Decision not to Initiate the Investigation
- G The Obligation to Inform the Pre-Trial Chamber about the Decision not to Initiate the Investigation
- H The Remedies against the Decision of the Prosecutor not to Initiate the Investigation
- IV The Investigation
- A The Four Different Classes of Investigation and the Immediate Duties of the Prosecutor
- B The Duty of the Prosecutor to Request the ‘Authorization to Investigate’ from the Pre-Trial Chamber: Limits and Regulation
- C The Duty of the Prosecutor to Notify the States and the Duty to Defer to National Investigation
- D The Duties of the Prosecutor while Conducting the Investigation
- E The Powers of the Prosecutor while Conducting the Investigation
- V The Outcome of the Investigation
- VI Conclusion
- Select Bibliography
- Ch.29.2 Rights of Persons during an Investigation
- Preliminary Material
- I Introduction
- II General Guarantees for Persons during an Investigation under the Norms Governing the Activities of the Nuremberg and Tokyo Tribunals
- III Evolution and Present Status of International Law in Respect of the Due Process Guarantees in the Course of a Criminal Investigation
- IV The Protection of the Rights of Persons during an Investigation in the System of the UN Ad Hoc Tribunals
- V The Provisions of the ICC Statute
- VI Conclusion
- Select Bibliography
- 30 Pre-Trial Proceedings
- Preliminary Material
- Ch.30.1 Powers of the Pre-Trial Chambers
- Preliminary Material
- I Introduction
- II General Background
- III The Continental Law Approach
- IV Powers of the PTC
- V The PTC: The Centre of an Undefined Circle?
- VI The ICTY Precedent
- VII Conclusion
- Select Bibliography
- Ch.30.2 Proceedings before the Pre-Trial Chambers
- Ch.30.3 Arrest Proceedings in the Custodial State
- 31 Trial Proceedings
- Preliminary Material
- Ch.31.1 Powers of the Trial Chamber
- Preliminary Material
- I Introduction
- II The Functions and Powers of the Judges of the Trial Chamber
- III The Powers of the Trial Chamber before the Opening of the Trial
- IV Powers of Judges in the Presentation of Evidence
- Ch.31.2 The Procedure before the Trial Chamber
- Preliminary Material
- I Introduction
- II General Precepts for the Holding of the Trial
- III Procedure before the Trial Chamber
- IV Presentation of Evidence
- V The Protection of Justice
- VI The Trial Chamber’s Decision
- Ch.31.3 The Rights of the Accused
- Preliminary Material
- I Introduction
- II Nuremberg and Tokyo
- III International Law and the Rights of the Accused
- IV The System of the UN Ad Hoc Tribunals
- V The ICC Statute
- A General Remarks
- B The Presumption of Innocence
- 1 The Right of the Accused to be Presumed Innocent as a General Rule for the Treatment of Individuals; Guilty Plea Procedures and the Right of the Accused to Remain Silent
- 2 The onus probandi on the Prosecution (including the Prohibition of Reversal of the onus)
- 3 The Right of the Accused that Guilt, if any, shall be Proved in Accordance with Law and beyond Reasonable Doubt
- C The Right to a Fair and Public Hearing Conducted Impartially
- D The ‘Minimum Guarantees’ and the Right to Obtain Favourable Evidence from the Prosecutor
- VI Conclusion
- Select Bibliography
- Ch.31.4 Protection of Victims and Witnesses
- Preliminary Material
- I History of Article 68
- II The Text of Article 68
- III Appropriate Measures
- IV Relevant Factors
- V Measures Taken by the Prosecutor
- VI Prejudice to or Inconsistency with the Rights of the Accused and a Fair and Impartial Trial
- VII The Victims and Witnesses Unit
- VIII Disclosure of Witness Statements
- Select Bibliography
- Ch.31.5 Protection of National Security Interests
- Ch.32 The Status and Role of the Victim
- Preliminary Material
- I Introduction
- II The Experience of the Ad Hoc Tribunals: The Victim in his Capacity as the ‘passive object’ of International Criminal Proceedings and as a Person Deprived of any Entitlement to Compensation
- III The International Criminal Court and the Victim in his Capacity as the ‘potential subject matter’ of International Criminal Proceedings and as a Person Entitled to Reparation
- V Conclusions
- Select Bibliography
- Ch.33 The Role of the Defence
- Preliminary Material
- I Fair Trial and the Role of the Defence
- II Access to Justice: The Right to Prepare a Defence
- III Privileges and Immunities: Article 48
- IV The Registry: Article 43
- V Equal Consultation
- VI Appointment, Qualifications, and Assignment of Counsel
- VII Professional Conduct and Contempt of Court
- Select Bibliography
- Ch.34 Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings Before the ICC
- Preliminary Material
- I General Observations
- II A Brief Survey of the Accusatorial vs. the Inquisitorial System
- A The Role of the Judge
- B The Parties at the Trial: Prosecution, Defence, and Victims
- C Trial in Presence of the Accused
- D The Influence of the Plea Entered by the Defendant
- E Position of the Defendant at Trial
- F Disclosure
- G The Dossier
- H Rules of Evidence
- I Jury
- J Determination of Guilt and Sentencing Procedure
- K Appeal
- III Nuremberg and Tokyo
- A The Role of the Judge
- B The Parties at the Trial: Prosecution, Defence, and Victims
- C Trial in the Presence of the Accused
- D The Influence of the Plea Entered by the Defendant
- E Position of the Defendant at Trial
- F Disclosure
- G The Dossier
- H Rules of Evidence
- I Jury
- J Determination of Guilt and Sentencing Procedure
- K Appeal
- IV The Ad Hoc Tribunals: ICTY and ICTR
- A The Role of the Judge
- B The Parties at the Trial: Prosecution, Defence, and Victims
- C Trial in the Presence of the Accused
- D The Influence of the Plea Entered by the Defendant
- E Position of the Defendant at Trial
- F Disclosure
- G The Dossier
- H Rules of Evidence
- I Jury
- J Determination of Guilt and Sentencing Procedure
- K Appeal
- V Accusatorial vs. Inquisitorial in the Law of Procedure of the ICC
- A The Role of the Judge
- B The Parties at the Trial: Prosecution, Defence, and Victims
- C Trial in the Presence of the Accused
- D The Influence of the Plea Entered by the Defendant
- E Position of the Defendant at Trial
- F Disclosure
- G The Dossier
- H Rules of Evidence
- I Jury
- J Determination of Guilt and Sentencing Procedure
- K Appeal
- VI Final Observations
- Ch.35 Penalties
- Ch.36 The Appeal Procedure of the ICC
- Ch.37 Revision Procedure under the ICC Statute
- Preliminary Material
- I Introduction
- II Standing to Bring an Application for Revision
- III Decisions Subject to Revision
- IV Grounds for Revision
- V Conditions Attaching to the Application for Revision and Hearing of the Parties
- VI Legal Consequences Attached to a Revision under the ICC Statute
- VII Conclusions
- Select Bibliography
- Ch.38 Compensation to an Arrested or Convicted Person
- 28 The Rules of Procedure and Evidence for the International Criminal Court: A New Development in International Adjudication of Individual Criminal Responsibility
- s.7 International Cooperation and Judicial Assistance
- 39 General Problems
- 40 The Obligation to Cooperate
- Preliminary Material
- I Introductory Remarks
- II The Obligation to Cooperate
- III The Implementation of the Obligation to Cooperate
- IV Limits to the Obligation to Cooperate
- V Remedies for Non-Compliance
- VI Concluding Remarks
- Select Bibliography
- 41 Arrest and Surrender
- Preliminary Material
- I Introduction
- II Surrender for International Crimes in the Aftermath of World Wars I and II
- III Extradition for International Crimes in National and International Law
- IV Surrender and Transfer under the Statutes of the Ad Hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda
- V Arrest and Surrender under the Rome Statute
- Select Bibliography
- 42 Other Forms of Cooperation
- Preliminary Material
- I General Remarks
- II Evidence before International Courts and Tribunals for the Settlement of International Disputes
- III Means for Obtaining Evidence by the Nuremberg and Tokyo Tribunals and the ICTY and ICTR
- IV Taking Evidence Abroad in Criminal Matters in Inter-State Relations
- V Procedures for Obtaining Evidence under the ICC Statute
- VI Concluding Reflections on the Prospects of Functioning of Procedures for the Taking of Evidence under the ICC Statute
- Select Bibliography
- s.8 Enforcement
- 43 Preliminary Remarks
- Preliminary Material
- I Some Matters of Terminology
- II Some Remarks on the Significance of the International Enforcement Regime
- III Some Remarks about the Relative Sparsity of Practice and Doctrinal Debate on the Enforcement of International Sentences
- IV A Brief Outline of the Structure of the Section on Enforcement
- 44 Imprisonment
- Preliminary Material
- I Developments before the Adoption of the ICC Statute
- II The ICC Statute
- A A Brief Summary of the Overall Course of the Negotiations
- B The Analysis of the Enforcement Regime
- 1 The Lack of a General Clause on Recognition and/or Enforcement
- 2 The Selection of the State of Enforcement
- 3 The Duration of the Enforcement
- 4 The Interruption of Enforcement: The Issue of Escape
- 5 The Conditions of Imprisonment, the Supervision of the Enforcement of Sentences by the ICC and the Prisoner’s Remedies in Case of Ill-Treatment
- 6 The Principle of Speciality in the Context of Enforcement
- 7 The Post-Enforcement Stage
- C A Tentative Overall Evaluation of the Regime Established under the ICC Statute to Enforce International Sentences of Imprisonment
- 45 Fines and Forfeiture Orders
- 43 Preliminary Remarks
- s.9 Application and Impact of the Rome Statute
- 46 Settlement of Disputes
- 47 The Rome Statute and its Impact on National Law
- 48 ICC Statute and Third States
- Preliminary Material
- I Possible Effects of the Rome Statute on Third States
- II The Rome Statute as a Constitutive Instrument of an International Institution
- III The Jurisdictional Reach of the ICC
- IV Issues of Immunity
- V Domestic Criminal Procedures in Third States and Cooperation in the Administration of Criminal Justice
- VI The ICC Procedure and Third States
- VII The Rome Statute and General International Criminal Law
- VIII Proposals for Reform and Policy Considerations
- Select Bibliography
- s.10 Final Analysis and Suggestions
- 49 The Rome Statute: A Tentative Assessment
- Preliminary Material
- I Introduction
- II The Court’s Subject-Matter Jurisdiction
- III Complementarity: Will the ICC Replace National Courts in the Prosecution of International Crimes?
- IV Will it be an Independent Court?
- V Will the Court’s Procedures Ensure that Trials are Fair and that the Victims have an Appropriate Role in the Proceedings?
- VI Will the Court be able to Function Effectively?
- VII Conclusion
- 50 The ICC and the Interaction of International and National Legal Systems
- 51 International Criminal Justice: From Darkness to Light
- 49 The Rome Statute: A Tentative Assessment
- s.5 The Statute and General International Law
- Volume I
- Further Material
