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Contents
- Preliminary Material
- Editor’s Preface and Acknowledgements
- Foreword
- Foreword
- Table of Contents
- Table of Cases
- Table of Legislation
- List of Abbreviations
- List of Contributors
- Introduction More than a Court, Less than a Court, Several Courts in One?: The International Criminal Court in Perspective
- Main Text
- Part I Context, Challenges, and Constraints
- 1 The International Criminal Court (ICC) and Double Standards of International Justice
- 2 The ICC and the Politics of Peace and Justice
- 3 The Relationship between the ICC and the United Nations Security Council
- 3.1 Introduction
- 3.2 The Relationship between the Court and the Council: Three Theories
- 3.3 The Framing of Referrals
- 3.4 The Funding of Referrals
- 3.5 Obligations to Cooperate with the Court
- 3.6 Non-Cooperation and Enforcement
- 3.7 Political and Operational Support for Situations Not Referred by the Council
- 3.8 Deferrals
- 3.9 Conclusions
- 4 The ICC and the AU
- 5 How Much Money Does the ICC Need?
- 6 The ICC and the ASP
- 6.1 Introduction
- 6.2 Overview of the ASP
- 6.3 Administrative Oversight
- 6.4 Budgetary Decisions
- 6.5 Legislative Decisions
- 6.6 Elections
- 6.7 Responding to Non-Cooperation
- 6.8 Other Initiatives to Support the ICC and the Rome Statute System
- 6.9 Conclusions
- Part II The Relationship to Domestic Jurisdictions
- 7 Jurisdiction
- 8 Ad Hoc Declarations of Acceptance of Jurisdiction: The Palestinian Situation under Scrutiny
- 9 Self-Referrals as an Indication of the Inability of States to Cope with Non-State Actors
- 9.1 Introduction
- 9.2 Self-Referrals: Genuine ‘Inability’ or Insidious Attempt to Frame One’s Enemies?
- 9.3 Puzzled Trial Chambers Struggling with the Concepts of ‘Inactivity’ and ‘Inability’
- 9.4 The ICC and Non-State ‘Terrorists’
- 9.5 Self-Referrals and the State-Centred Paradigm of International Criminal Justice
- 9.6 Some Final Reflections
- 10 Admissibility Challenges before the ICC: From Quasi-Primacy to Qualified Deference?
- 11 The ICC and its Relationship to Non-States Parties
- 11.1 Introduction
- 11.2 The Rome Statute and Third Parties: The Law
- 11.3 The Practice of the Court with Respect to Third Parties
- 11.3.1 The nature of obligations for non-Party States and their nationals after a Security Council referral
- 11.3.2 Practical aspects of situations referred by the Security Council
- 11.3.3 The ICC and P-1(?): the United States
- 11.3.4 A Prosecutor’s headache: Palestine
- 11.3.5 Situations in other non-Party States
- 11.4 Conclusion
- 12 The Frog that Wanted to Be an Ox: The ICC’s Approach to Immunities and Cooperation
- Preliminary Material
- 12.1 Introduction
- 12.2 Mapping the Interaction between Immunities and Cooperation in the Rome Statute
- 12.3 Preliminary Question: Can the ICC Actually Exercise Jurisdiction in the First Place?
- 12.4 Is There an Obligation to Cooperate with the ICC?
- 12.4.1 An obligation to cooperate as a consequence of the application of Article 27?
- 12.4.2 Finding an independent basis for the removal of immunity under Article 98
- 12.4.3 The special case of the Genocide Convention
- 12.4.4 How to analyse possible conflicting obligations of states under international law
- 12.5 Conclusion
- Part III Prosecutorial Policy and Practice
- 13 Putting Complementarity in its Place
- 14 Investigative Management, Strategies, and Techniques of the ICC’s OTP
- 15 The Selection of Situations and Cases by the OTP of the ICC
- 16 Selecting Situations and Cases
- 17 Accountability of International Prosecutors
- Part IV The ICC and its Applicable Law
- 18 Article 21 and the Hierarchy of Sources of Law before the ICC
- 19 The Rome Statute and the Attempted Corseting of the Interpretative Judicial Function: Reflections on Sources of Law and Interpretative Technique
- 19.1 Introduction
- 19.2 The Rome Statute as a Means of Codifying Judicial Interpretative Restraint
- 19.3 Identifying the Applicable Law—From Nuremberg to the Ad Hoc Tribunals
- 19.4 Articles 21 and 22(2) of the Rome Statute: A Deliberate Effort to Restrict the Creative Capacity of the Bench?
- 19.4.1 Article 21(1) and (2)—the chaperoning of the judicial function and the prioritization of textual interpretation
- 19.4.1.1 The interpretation of Article 25(3)(a): the betrayal of textualism
- 19.4.1.2 Charting the origins of Article 21’s hierarchy of sources and the potential impact on the interpretative judicial function
- 19.4.1.3 Article 21(1)(b)–(c) and Article 21(2): the position of customary international law, general principles of law, and internal and external precedent in the Rome Statute’s interpretative regime
- 19.4.2 Article 21(3)—consistency with international human rights law as a general interpretative provision
- 19.4.3 Article 22(2)—interpretative freedom and the requirements of strict construction
- 19.4.1 Article 21(1) and (2)—the chaperoning of the judicial function and the prioritization of textual interpretation
- 19.5 Conclusions
- 20 Perpetration and Participation in Article 25(3)
- 21 Co-Perpetration: German Dogmatik or German Invasion?
- 22 Indirect Perpetration
- 23 Forms of Accessorial Liability under Article 25(3)(b) and (c)
- 24 The ICC and Common Purpose—What Contribution is Required under Article 25(3)(d)?
- 25 Command Responsibility under Article 28 of the Rome Statute
- 25.1 Introduction
- 25.2 Development of this Mode of Liability
- 25.3 Commanders and Forces, Superiors and Subordinates
- 25.4 Effective Command, Authority, and Control
- 25.5 Duties on Commanders and Superiors
- 25.5.1 Failure to exercise control
- 25.5.2 Duty to ‘prevent’ the commission of the crimes
- 25.5.3 Duty to repress or submit the matter to the competent authorities for investigation and prosecution
- 25.5.4 Taking all necessary and reasonable measures within the commander’s or superior’s powers
- 25.5.5 The ‘crimes committed’ by forces or subordinates
- 25.6 Proof of Causation
- 25.7 Mens Rea Requirements
- 25.8 Brief Concluding Words
- 26 Rethinking the Mental Elements in the Jurisprudence of the ICC
- 26.1 Introductory Observations: The (Quest for) Balance between Intent, Specificity, and Proportionality
- 26.2 The Default Rule of Article 30 ICC Statute: A Groundbreaking Step in the History of ICL or the Source of Irresolvable Interpretative Uncertainties?
- 26.2.1 Anatomy of the default rule of Article 30 ICC Statute
- 26.2.2 The concept of dolu directus of the first degree
- 26.2.3 The requirement of awareness that the result ‘will occur in the ordinary course of events’; its (complex) relation with the area of conscious risk-taking
- 26.2.4 The requirement of ‘awareness that a circumstance exists’; the doctrine of wilful blindness
- 26.3 The Default Rule of Article 30 ICC Statute between Applicability and Non-applicability
- 26.4 Concluding Remarks
- 27 The ICC’s First Encounter with the Crime of Genocide: The Case against Al Bashir
- 27.1 Introduction
- 27.2 The ICC’s Al Bashir Case Law on the Crime of Genocide
- 27.2.1 The teleology behind the law against genocide
- 27.2.2 The basic structure of the crime of genocide
- 27.2.3 The material elements
- 27.2.4 The genocidal intent
- 27.2.4.1 The intent to destroy, in whole or in part, a protected group as such
- 27.2.4.2 The intent to destroy, in whole or in part, a protected group as such
- 27.2.4.3 The intent to destroy, in whole or in part, a protected group as such
- 27.2.4.4 The destiny of the genocide charge in the case against Al Bashir
- 27.3 An Acquittal in re Genocide—A Failure? On the Rhetorics of Genocide
- 28 Crimes against Humanity: A Better Policy on ‘Policy’
- 29 Charging War Crimes: Policy and Prognosis from a Military Perspective
- 30 The Characterization of Armed Conflict in the Jurisprudence of the ICC
- 31 The Crime of Aggression
- 31.1 Introduction
- 31.2 The Kampala Amendments on the Crime of Aggression
- 31.3 Implementing the Kampala Amendments Domestically
- 31.3.1 Should a ratifying state criminalize aggression domestically?
- 31.3.2 Jurisdiction under international law
- 31.3.3 Immunities
- 31.3.4 Par in parem non habet imperium/act of state
- 31.3.5 Are there any additional considerations that a state contemplating exercising victim state or universal jurisdiction might ponder?
- 31.3.5.1 The implications of concurrent jurisdiction
- 31.3.5.2 Action or inaction by the Security Council
- 31.3.5.3 Could the Security Council halt the domestic proceedings?
- 31.3.5.4 Defences/grounds for the exclusion of responsibility
- 31.3.5.5 Should any special consent be required?
- 31.3.5.6 Triggering the prosecutorial function
- 31.4 Conclusion
- 32 La Lutte Continue: Investigating and Prosecuting Sexual Violence at the ICC
- 33 Cumulative Charges and Cumulative Convictions
- Part V Fairness and Expeditiousness of ICC Proceedings
- 34 The International Criminal Standard of Proof at the ICC—Beyond Reasonable Doubt or Beyond Reason?
- 35 Confirmation of Charges
- 36 Trial Procedures—With a Particular Focus on the Relationship between the Proceedings of the Pre-Trial and Trial Chambers
- 37 Proportionate Sentencing at the ICC
- 37.1 Introduction
- 37.2 The ICC’s First Sentencing Judgment
- 37.3 Proportionality Theories
- 37.4 Proportionality Principles in the ICC’s Applicable Law
- 37.5 Rejecting International Retributivism
- 37.6 Preventive International Proportionality
- 37.7 Conclusion
- 38 The Role of the Appeals Chamber
- 38.1 Introduction
- 38.2 The Appeals Chamber in the Context of the ICC
- 38.3 Jurisdiction of the Appeals Chamber
- 38.4 Early Jurisprudence: Cautious Exercise of its Powers
- 39 ‘A Stick to Hit the Accused With’: The Legal Recharacterization of Facts under Regulation 55
- 40 Disclosure Challenges at the ICC
- 41 Sitting on Evidence?: Systemic Failings in the ICC Disclosure Regime—Time for Reform
- 42 The Roads to Freedom—Interim Release in the Practice of the ICC
- 42.1 Introduction
- 42.2 Burden of Proof
- 42.3 Interim Release under Article 60(2): Failing to Meet the Grounds for Detention
- 42.4 Interim Release under Article 60(4): Unreasonable Length of Detention
- 42.5 Interim Release in Exceptional Humanitarian Circumstances
- 42.6 Conclusions and Recommendations
- 43 Testifying behind Bars—Detained ICC Witnesses and Human Rights Protection
- 44 External Support and Internal Coordination—The ICC and the Protection of Witnesses
- 45 Victim Participation Revisited—What the ICC is Learning about Itself
- 45.1 Introduction
- 45.2 Challenges of Victim Participation at the ICC: A Bird’s-Eye View
- 45.3 Implementation of Victim Participation: Problems and Solutions
- 45.3.1 Application process
- 45.3.2 Participation at trial: key modalities
- 45.3.3 Representation
- 45.3.4 Towards a pragmatic system: evolution or devolution of the regime?
- 45.4 Victim Participation as Governance Matter
- 45.5 Conclusion
- 46 The Rome Statute’s Regime of Victim Redress: Challenges and Prospects
- 46.1 Introduction
- 46.2 Overview of Rome Statute’s Regime of Victim Redress
- 46.3 The Character of the Rome Statute’s Reparations Regime
- 46.4 The Failure of Victim Redress at the National Level: Reparations and Complementarity
- 46.5 Early Trends: Towards a More Flexible System of Victim Redress?
- 46.6 Conclusion
- Part VI Impact, ‘Legacy’, and Lessons Learned
- 47 The Deterrent Effect of the ICC on the Commission of International Crimes by Government Leaders
- 48 The ICC and Capacity Building at the National Level
- 49 Completion, Legacy, and Complementarity at the ICC
- 50 A Look towards the Future—The ICC and ‘Lessons Learnt’
- Part I Context, Challenges, and Constraints
- Further Material
