International Criminal Court (ICC)
- International criminal law, conduct of proceedings — Prosecution — Torture — International criminal courts and tribunals, composition
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
A. Historical Background and Objectives of the Court
1 The International Criminal Court (‘ICC’) is the first permanent treaty-based international tribunal to deal with individual criminal responsibility for the most serious international crimes of concern to the international community as a whole where national jurisdictions are unwilling or unable genuinely to investigate or prosecute. The ICC represents a significant step forward in terms of the implementation of international criminal law because it not only contributes to the development of international norms, but also ensures their application in concrete cases of disrespect, with a direct impact on national and international levels (International Law and Domestic [Municipal] Law, Law and Decisions of International Organizations and Courts).
2 The ICC was established under the Rome Statute adopted by 120 States on 17 July 1998 during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome (‘Rome Conference’; Conferences and Congresses, International). The 60th instrument having been deposited on 11 April 2002, the Rome Statute entered into force in line with its Art. 126 (1) on 1 July 2002—at that time, 66 States had ratified the Rome Statute (Treaties, Conclusion and Entry into Force).
3 The ICC is rooted in the early development of the international law of armed conflict (Humanitarian Law, International). Its history began in 1872 when the Swiss president of the International Committee of the Red Cross (ICRC), Gustave Moynier, drafted the first statute for an international criminal court. However, his idea did not find sufficient support, not even after the world had experienced the trauma of World War I. Art. 227 Versailles Peace Treaty (1919), containing a proposition for an ad hoc tribunal to punish the German emperor, was never implemented. After World War II, the victorious Allied Powers, shocked by the large-scale atrocities committed during the war, decided to try those mainly responsible before International Military Tribunals in Nuremberg and Tokyo. These famous proceedings took place in 1945–46 and 1946–48, respectively, laying down the foundations for international criminal justice in terms of both the definition of international crimes and international individual criminal responsibility. Art. 6 Convention on the Prevention and Punishment of the Crime of Genocide (‘Genocide Convention’), which foresees the establishment of an ‘international penal tribunal’, the Universal Declaration of Human Rights (1948), and the Geneva Conventions I–IV (1949) reflect an arising awareness in the international community as a consequence of the foregoing experiences. Nevertheless, initiatives such as the 1950 Principles of International Law Recognized in the Charter and the Judgment of the Nuremberg Tribunal ( vol II UNYBILC 191) as well as the 1954 Draft Code of Offences against the Peace and Security of Mankind ( vol II UNYBILC 112), both adopted by the International Law Commission (ILC), did not result in international treaties or institutions.
4 In the second half of the 20th century, international law developed further, from a system of co-existence to a more integrated system of co-operation. This development was paralleled by the evolution of a system of human rights protection. Nevertheless, States were not yet willing to set aside considerations of sovereignty and the principle of the domaine réservé in the fields of criminal law and prosecution. Moreover, the political division of the world created by the Cold War (1947–91) did not allow for universal solutions in such delicate matters.
5 It was only after the fall of the Berlin Wall that this situation changed fundamentally (Germany, Unification of; Berlin [1945–91]). In response to a motion by Trinidad and Tobago in 1989 to combat drug trafficking by means of an international criminal court (Narcotic Drugs; Transnational Organized Crime), the UN General Assembly (United Nations, General Assembly) invited the ILC to resume the drafting of an ICC Statute, a project the ILC had already commenced in 1949, but interrupted later for lack of support. At the same time, the international community was again aroused by dramatic human catastrophes, with war crimes, crimes against humanity, and even genocide being committed this time in dismembering Yugoslavia (Yugoslavia, Dissolution of) and Rwanda. The UN Security Council (United Nations, Security Council) took decisions under Chapter VII United Nations Charter to create two ad hoc tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994.
6 Energized by the end of the East–West conflict and supported by more and more States, the ILC again began working in earnest on a Draft Code of Crimes against the Peace and Security of Mankind ( vol II part II UNYBILC 94), which was adopted on first reading in 1991, and a Draft Statute for an International Criminal Court, which was adopted in 1994. An Ad hoc Committee of State Representatives was established to continue the drafting work in 1994 (Representatives of States in International Relations). It was followed by a Preparatory Committee for the Rome Conference. The Rome Conference finally took place from 15 June to 17 July 1998. After the adoption of the Rome Statute on the last day of the Rome Conference and its entry into force on 1 July 2002, the ICC was inaugurated in The Hague, and the first 18 judges of the ICC were sworn in on 11 March 2003.
7 The ICC aims to hold individuals accountable for crimes that fall into the category of most grave and large-scale violations of common values of humanity. In that sense, it shall prevent impunity while also setting up a permanent system to deter potential offenders world-wide, especially with regard to those mainly responsible who would try to hide behind high hierarchical positions and influential networks on the national or regional level. An important further objective is the improvement of solidarity within the international community in respect of defending the interests of victims of international crimes by bringing more justice to the world (see also Transitional Justice in Post-Conflict Situations; Victims’ Rights), even to the most remote areas in the world. The ICC must be detached from political or other inappropriate considerations, leading to a suitable selection of cases in order to guarantee equality before the law to all accused, victims, and concerned States. The mere existence of the ICC with its inherent concepts of complementarity and subsidiarity to national jurisdictions could strengthen the functioning of national prosecution of international crimes and encourage its further development (International Criminal Courts and Tribunals, Complementarity and Jurisdiction; International Law and Domestic [Municipal] Law). Last, but not least, a successful ICC open to civil society will also heighten public confidence in and support for the international system as a whole.
B. Structure and Organs
1. The Court
8 The institution created by the Rome Statute is an independent international organization with international legal personality that disposes of the necessary capacities to act on the international scene and that enjoys immunity on the territories of States Parties (International Organizations or Institutions, General Aspects; International Organizations or Institutions, Privileges and Immunities). At the same time, the ICC is a complex judicial machinery for the prosecution and trial of perpetrators of international crimes.
9 The seat of the ICC has been established in The Hague, The Netherlands (International Organizations or Institutions, Headquarters). The funds of the ICC and the Assembly of States Parties (‘ASP’) are provided for through assessed contributions made by States Parties and voluntary donations from private and governmental sources (International Organizations or Institutions, Financing of).
10 As of December 2010, 114 States have ratified the Rome Statute and thereby accepted the jurisdiction of the ICC pursuant to Art. 12 (1) Rome Statute. In that sense, the ICC is on its way to becoming a truly universal judicial body. In 2007, Japan, as a major player amongst the Asian States, ratified the Rome Statute. However, several important States still maintain their more or less firm objections to the institution. Above all, the United States has not ratified the Rome Statute, even though President Obama seems to have abandoned the explicit hostility towards the court which characterized the relations between the ICC and the US government under the administration of George W Bush.
11 As listed in Art. 34 Rome Statute, the ICC is composed of four organs: the two judicial organs, ie the Presidency and the chambers divisions; the Office of the Prosecutor (‘OTP’); and the Registry.
(a) The Judges
12 Making up the two judicial organs and fulfilling the actual judicial function of the ICC, its judges have a central role in the court’s functioning (International Courts and Tribunals, Judges and Arbitrators). According to Art. 36 Rome Statute, the number of judges at the ICC is 18. This number may be increased if the need arises.
13 Judges are nominated by States Parties and elected by the ASP for a term of nine years. Elections take place every three years for one third of the judges. In order to establish this rhythm, the judges elected in the first election in 2003 drew lots in order to determine who was to serve an initial term of three, six, or nine years. Except for those judges who were initially elected for a term of three years, judges generally may not be re-elected once their term of office has elapsed.
14 According to Art. 36 (3) Rome Statute, candidates must be of high moral character, impartiality, integrity, and possess the qualification for the highest judicial offices in their countries. They must be knowledgeable either in criminal law and procedure or in relevant areas of international law. Equally important is the representation of the principal legal systems of the world, an equitable geographic representation, and a fair representation of female and male judges. Finally, States Parties are obliged to take into account the need for judges with expertise in specific fields, such as gender-based crimes, and children and armed conflict.
15 Several rules aim to guarantee the independence and impartiality of judges, chief among them Art. 40 Rome Statute, which prohibits activities that are likely to interfere with the judicial function or to affect confidence in the independence of a judge. Full-time judges may not exercise any other professional occupation at all. According to Art. 41 Rome Statute, a judge may, at request, be excused by the Presidency. Where the impartiality of a judge in a given case is in doubt, the prosecutor or the accused may request the disqualification of that judge. The decision on such request is taken by an absolute majority of the judges (Art. 41 (2) (c) Rome Statute). The Code of Judicial Ethics adopted by the judges in 2005 provides that judges must not only uphold the independence of their office and act impartially, but must also act to further confidence in their independence and the appearance of impartiality.
16 Apart from their mentioned role in the disqualification of a judge, the judges as a group also have other responsibilities under the Rome Statute, inter alia, adopting the Regulations of the Court (‘ICC Regulations’) necessary for its routine functioning (Art. 52 Rome Statute) and proposing amendments to the Rules of Procedure and Evidence (‘RPE’; Art. 51 (2) (b) Rome Statute) and the Elements of Crimes (Art. 9 (2) (b) Rome Statute), which may then be adopted by the ASP.
(b) The Presidency
17 The Presidency consists of the president and a first and a second vice-president, who are elected from among the judges by an absolute majority and serve for a term of three years (Art. 38 Rome Statute). They are eligible for re-election once.
18 The general responsibility of the Presidency is the proper administration and efficient management of the ICC, with the exception of the OTP (Art. 38 (3) (a) Rome Statute). In this sense, the Presidency decides on whether or not to require judges to serve on a full-time basis (Art. 35 (3) Rome Statute) and may propose to the States Parties to increase the number of judges if necessary (Art. 36 (2) (a) Rome Statute). It may also waive the privileges and immunities of the registrar (Art. 48 (5) (b) Rome Statute).
19 Besides this general responsibility, the Presidency has several competencies concerning the actual judicial function of the ICC: it assigns cases to the pre-trial and trial chambers (Art. 61 (11) Rome Statute; Reg. 46 ICC Regulations), deals with requests by a judge (Art. 41 (1) Rome Statute) or the prosecutor (Art. 42 (6) Rome Statute) to be excused from a case, and decides which of the ICC’s decisions are of fundamental importance and, thus, to be published in all the official languages of the ICC (Art. 50 (1) Rome Statute).
20 Besides those competencies of the Presidency, the president also has further competencies, among which are the representation of the ICC in concluding the Relationship Agreement with the United Nations (UN) (‘Relationship Agreement’) and the Headquarters Agreement with the Host State (‘Headquarters Agreement’; Arts 2, 3 Rome Statute). The president is also responsible for oversight over the registrar (Art. 43 (2) Rome Statute).
(c) The Chambers Divisions
21 The chambers of the ICC are organized into three divisions: the Pre-Trial Division; the Trial Division; and the Appeals Division.
(i) The Pre-Trial Division
22 The Pre-Trial Division is composed of not less than six judges who sit in pre-trial chambers made up of three judges. With regard to certain decisions, the function of the pre-trial chambers may be carried out by a single judge elected from among the chamber’s members (Art. 39 (2) (a), (b) (iii) Rome Statute).
23 In general, the pre-trial chamber has two main functions. It decides whether, on the basis of the case brought by the prosecutor, there is prima facie evidence warranting a trial, in which case it confirms the charges (Art. 61 Rome Statute). It also decides most questions relating to jurisdiction and admissibility so that those, in principal, do not burden an eventual subsequent trial.
24 The main responsibility of the pre-trial chamber is to supervise and review the activities of the OTP especially with regard to the exercise of the prosecutor’s proprio motu powers (Art. 15 (3)–(5) Rome Statute) and decisions not to investigate or prosecute (Art. 53 (3) Rome Statute) and to ensure the proper course of the preliminary proceedings.
25 The role of the Pre-Trial Division must still be shaped by practice and jurisprudence. It is neither directly comparable to that of the juge d’instruction in, for example, the French system nor to the role of courts with regard to investigations in other criminal law systems. This is especially true with regard to its powers vis-à-vis the prosecutor: the Rome Statute generally indicates an active role for the judiciary comparable to civil law systems and not the unlimited freedom of action for the prosecution that exists in most common law systems. In the interests of justice and efficiency, a proper balance between the importance of an independent prosecution and the necessity of judicial supervision needs to be found.
(ii) The Trial Division
26 At least six judges form the Trial Division, which is divided into trial chambers composed of three judges (Art. 39 (1), (2) (b) (ii) Rome Statute). The trial chamber is responsible for the main part of the proceedings, ie the actual trial, culminating in the decision on guilt or innocence (Art. 74 Rome Statute) and on a sentence in case of conviction (Art. 76 Rome Statute).
27 The trial chamber can also sanction misconduct before the ICC and has jurisdiction over offences committed against its administration of justice, such as giving false testimony, presenting false or forged evidence, intimidating or retaliating against witnesses and ICC officials, as well as the acceptance of bribes by ICC officials (Arts 70–71 Rome Statute).
(iii) The Appeals Division
28 The president and four other judges are assigned to the Appeals Division, which at the same time constitutes the Appeals Chamber. These judges are the only ones who are excluded from rotation within the chambers (Art. 39 (1), (2) (a), (4) Rome Statute).
29 The Appeals Chamber decides on appeals against decisions on guilt or innocence or on sentence as well as on interlocutory appeals, which may be brought against certain decisions of the pre-trial or trial chambers while the respective proceedings are still on-going (Arts 81–82 Rome Statute).
(d) The Office of the Prosecutor
31 The OTP is an independent organ of the ICC with high internal autonomy for self-organization according to the necessities of its functions. It is responsible for the reception and examination of referrals and information on crimes as well as for carrying out investigations and prosecutions (Art. 42 (1) Rome Statute). The OTP is headed by a prosecutor and one or more deputy prosecutors who shall be persons of high moral character with competency and experience in criminal trials. The ASP elects them for a non-renewable term of nine years during which, in order to guarantee their independence, they may not have other professional occupations or exercise possibly interfering activities. In cases of potential partiality, they can be excused or disqualified (Art. 42 (2)–(5) Rome Statute).
32 Pursuant to Art. 53 Rome Statute, the OTP first proceeds to a preliminary assessment with regard to the jurisdiction of the ICC, admissibility, and interests of justice for the investigation and prosecution. During its investigations, which usually comprise fact-finding missions in the field, the OTP collects, examines, and tests evidence and takes testimonies and statements of witnesses. It must investigate incriminating and exonerating circumstances equally and take into account the interests of victims and witnesses (Art. 54 (1) (a) Rome Statute). In view of the limited resources of the ICC, the prosecutor stated that as a general rule, the OTP should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility such as the leaders of the State or organization allegedly responsible for those crimes (Heads of Governments and Other Senior Officials; Heads of State).
33 The proprio motu powers of the prosecutor are of paramount importance to the idea of independent international justice in criminal matters. Not surprisingly, these powers continue to be a matter of concern for certain States. Under Arts 13 (c) and 15 Rome Statute, the prosecutor is empowered to initiate investigations ex officio solely based on his or her own appreciation of a certain situation or information. However, the OTP needs prior authorization from the pre-trial chamber, which is intended to counterbalance the considerable competencies of the prosecutor by means of proper judicial control (Art. 15 (3)–(5) Rome Statute). In general, the pre-trial chamber also monitors the prosecutor’s activities to ensure the integrity and fairness of the proceedings (Fair Trial, Right to, International Protection).
(e) The Registry
34 The Registry is responsible for the non-judicial aspects of the administration and servicing of the ICC (Art. 43 Rome Statute). The registrar is the principal administrative officer of the ICC. The person is recommended by the ASP, elected by an absolute majority of the judges for a five-year term, and may be re-elected once. The registrar may be assisted by a deputy registrar.
35 The main functions of the Registry can be divided into two general categories: the first is a wide variety of functions within the general administration of the ICC, such as personnel (Art. 44 Rome Statute), budget and finance questions (see the Financial Regulations and Rules), security and safety (Rule 13 (2) RPE), and oversight of persons in the custody of the ICC (Reg. 90 ICC Regulations). Second, the Registry provides assistance in the actual judicial work of the ICC, such as maintenance of official case records, circulation of information and official documents among parties, and staff or translation services. The Registry is also concerned with matters concerning the defence and victims and, therefore, comprises sections concerned with victim participation in trials (Reg. 86 (9) ICC Regulations) and support and protection for victims and witnesses (Art. 43 (6) Rome Statute), as well as a section that assists the defence (see Rules 20–22 RPE). Finally, two independent Offices of Public Counsel, one for victims and one for the defence, are part of the Registry (Regs 77, 81 ICC Regulations).
3. The Assembly of States Parties
36 The specific character of the ICC as an international organization has led to an important role for the ASP. Each State Party has one vote and can send one delegate to the Assembly, which elects a permanent secretariat and a bureau. If possible, the ASP shall reach its decisions by consensus; otherwise, a two-thirds majority for matters of substance and a simple majority for matters of procedure are necessary (Art. 112 Rome Statute; International Organizations or Institutions, Voting Rules and Procedures).
37 The ASP exercises the main legislative and oversight functions: it adopts most of the fundamental legal texts, provides for management oversight regarding the administration of the ICC, and considers and decides on the budget. It elects the judges (Art. 36 Rome Statute), the prosecutor, and the deputy prosecutor(s) (Art. 42 (4) Rome Statute) and can, under specific circumstances, decide upon their removal from office (Art. 46 Rome Statute).
38 Other competencies of the ASP include reacting to non-co-operation by States with the ICC (Art. 87 (5), (7) Rome Statute), the settlement of disputes between States Parties (Art. 119 (2) Rome Statute), and the approval of the Relationship Agreement and of the Headquarters Agreement (Arts 2, 3 (2) Rome Statute). In order to enhance the efficiency and economy of the ICC, the ASP may even create an oversight mechanism for inspection, evaluation, and investigation of the ICC (Art. 112 (4) Rome Statute).
C. Scope and Functioning
1. Jurisdiction and Admissibility
39 The ICC is not a court with universal jurisdiction. One of its fundamental principles is the principle of complementarity with regard to national criminal proceedings, meaning that the ICC will only investigate and prosecute cases in which national courts are unwilling or unable genuinely to investigate or prosecute (Art. 17 (1) Rome Statute). The Rome Statute recognizes the primacy of national prosecutions and, thus, reaffirms State sovereignty, especially the sovereign and primary right of States to exercise criminal jurisdiction (Criminal Jurisdiction of States under International Law; International Criminal Jurisdiction, Protective Principle; Jurisdiction of States). In other words, the scope of activity of the ICC is quite limited and restricted to the highest common denominator States could agree upon, taking into account concerns of certain States of a too powerful independent international justice institution.
(a) Jurisdiction ratione materiae
40 The ICC is competent to deal with an exhaustive list of international core crimes specified in Arts 6 to 8 Rome Statute, further developed in the Elements of Crimes. According to Art. 5 Rome Statute, the selection of core crimes for which the ICC is competent is limited to ‘the most serious crimes of concern to the international community as a whole’.
41 The concept of criminal liability follows the traditional system of definitions of crimes comprising both factual and mental elements. Pursuant to Art. 25 Rome Statute, the ICC may take into account different forms of participation in punishable acts (Criminal Responsibility, Modes of). Besides the actual perpetration, it can also punish various other forms of participation in a crime such as perpetration jointly with or through another person, aiding and abetting, ordering and soliciting, as well as contributing to the commission of a crime by ‘a group of persons acting with a common purpose’ (Art. 25 (3) (d) Rome Statute). Art. 28 Rome Statute provides for the criminal responsibility of commanders and other superiors. In the case of genocide, direct and public incitement may also be punished. There is also a provision for punishment of attempted crimes.
(i) The Crime of Genocide
(ii) Crimes against Humanity
43 Crimes against humanity are laid down in Art. 7 Rome Statute. While the concept of crimes against humanity has been known since the Charter of the International Military Tribunal, Art. 7 Rome Statute together with its Elements of Crimes (Art. 9 Rome Statute) represent the most concrete and detailed international codification of the substantive content of crimes against humanity (Codification and Progressive Development of International Law). It includes several important novel crimes, such as the crime of apartheid, forced pregnancy, and enforced disappearances.
44 Art. 7 (1) Rome Statute lays down that in order to constitute a crime against humanity, acts must be ‘committed as part of a widespread or systematic attack directed against the civilian population, with knowledge of the attack’. Art. 7 (2) (a) Rome Statute further defines the attack as the ‘multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’, thus laying down a compromise between the position held by some States that the requirements ‘widespread’ and ‘systematic’ in Art. 7 (1) Rome Statute should be cumulative and the position that either of the two requirements should suffice. Be that as it may, Art. (7) (2) (a) Rome Statute requires de lege lata that the attack against any civilian population must be ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. A merely passive role in the sense of absence of governmental or organizational action would not be sufficient for an attack, even though footnote 6 of the Elements of Crimes clarifies that ‘a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack’.
45 Art. 7 (1) Rome Statute defines 11 crimes against humanity, including crimes committed against individuals, such as murder, torture (Torture, Prohibition of), enslavement (Slavery; Forced Labour/Slave Labour), crimes of sexual violence, and crimes directed against groups, such as deportation or forcible transfer of population (Forced Population Transfer; Population, Expulsion and Transfer), persecution, and the crime of apartheid. In addition to 10 specified crimes, the Rome Statute also criminalizes ‘[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’ (Art. 7 (1) (k) Rome Statute).
46 Art. 7 (2) Rome Statute further specifies certain crimes as contained in Art. 7 (1) Rome Statute.
47 Art. 7 Rome Statute comprises several acts linkable to genocidal incidents, such as murder, forced pregnancy with the intent of affecting the ethnic composition of a population (Ethnic Cleansing), extermination, persecution, and violations of physical integrity. The article could therefore also serve as a subsidiary provision if a suspect cannot be held responsible for genocide.
(iii) War Crimes
48 The third category of crimes within the jurisdiction of the ICC is war crimes as defined in Art. 8 Rome Statute. The regime is inspired by the law of the Geneva Conventions I–IV and the rules of the (customary) international law of armed conflict and explicitly refers to these sources. This is especially true with regard to Art. 8 (2) (b) and (e), which both criminalize, inter alia, conduct prohibited by Geneva Conventions Additional Protocol I (1977) and Geneva Conventions Additional Protocol II (1977). In order to alleviate concerns of non-Members to the additional protocols that they would, in effect, be bound even by those provisions of the protocols which had not acquired the status of customary international law, the wording ‘within the established framework of international law’ was added to the chapeau of Art. 8 (2) (b) and (e) Rome Statute.
49 Art. 8 (1) Rome Statute stresses that the ICC shall have jurisdiction in respect of war crimes ‘in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’. This so-called threshold clause is the result of a compromise with States worried about an international criminal trial for isolated acts of individuals from their troops.
50 The Rome Statute distinguishes between war crimes in international armed conflicts (Armed Conflict, International) and in armed conflicts not of an international character (Armed Conflict, Non-International), and between violations of the Geneva Conventions I–IV and other violations. Accordingly, the catalogue of altogether 50 war crimes is divided into four lists: grave breaches of the Geneva Conventions I–IV in international armed conflict (Art. 8 (2) (a) Rome Statute); other serious violations of the law of international armed conflict (Art. 8 (2) (b) Rome Statute); serious violations of the common Art. 3 Geneva Conventions I–IV in non-international armed conflict (Art. 8 (2) (c) Rome Statute); and other serious violations of international law in non-international armed conflict (Art. 8 (2) (e) Rome Statute). According to Art. 8 (d) and (f) Rome Statute, acts committed in situations of internal disturbances and tensions, such as, for example, riots, are excluded from the scope of the article (cf Art. 1 (2) Additional Protocol II).
51 The definitions provided for by the Rome Statute and the related Elements of Crimes are very detailed and sometimes more specific than the corresponding rules of the international law of armed conflict. However, the definitions must be read in light of existing international humanitarian law and interpreted ‘within the established framework of the international law of armed conflict including, as appropriate, the international law of armed conflict applicable to armed conflict at sea’, according to the introduction to Art. 8 Elements of Crimes.
52 Pursuant to the Elements of Crimes, there is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international and no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international but only for the awareness of the factual circumstances that established the existence of an armed conflict (Introduction Art. 8 Elements of Crimes). The link, also called ‘nexus’, between the illegal acts and the armed conflict cannot be merely accidental but must represent a true connection.
(iv) The Crime of Aggression
53 The crime of aggression is included in the list of crimes within the jurisdiction of the ICC in Art. 5 Rome Statute (Peace, Right to, International Protection). At the review conference in Kampala in 2010, the States Parties adopted a historic amendment to the Rome Statute, including a definition of the ‘crime of aggression’ and the ‘act of aggression’, as well as determining preconditions and procedural provisions for exercising the ICC’s jurisdiction over the crime of aggression. This jurisdiction needs to be activated by the States Parties on 1 January 2017 at the earliest. The court will only have jurisdiction over cases of aggression committed at least one year after the ratification or acceptance of the amendments by at least 30 States Parties.
54 The most controversial part of the Kampala negotiations was the question whether proceedings can be triggered by actors other than the UN Security Council. The Kampala negotiations had to deal with highly sensitive issues centred on the ICC’s relationship with the UN Security Council in cases of aggression, especially concerning the Security Council’s power under Art. 39 UN Charter to ‘determine the existence of any … act of aggression’. The permanent members of the Security Council and some other States had proposed that such a determination by the Security Council should be a precondition for the exercise of the ICC’s jurisdiction, a position that was opposed primarily by States from the Non-Aligned Movement (NAM). In the final compromise, not only the Security Council but also States Parties as well as the prosecutor can trigger proceedings, although under strict conditions. In respect of a non-State Party the ICC shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory (see Art. 15bis (5) Rome Statute). Furthermore, the exercise of jurisdiction over the crime of aggression committed by a State Party is subject to the authorization by the entire Pre-Trial Division (when proceedings are triggered by a State Party or by the prosecutor) and require the aggressor State’s prior consent. Interestingly, this consent is presupposed unless the State Party ‘has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar’ (Art. 15bis (4) Rome Statute). One aspect of the Kampala compromise which needs to be analysed further is whether this ‘opt-out procedure’ may contradict the provision on amendments in Art. 121 (5) Rome Statute, which states that amendments only apply vis-à-vis those States Parties which accepted them.
(b) Jurisdiction ratione temporis
55 The limitations resulting from the jurisdiction ratione temporis rules of the Rome Statute are considerable. According to Art. 11 (1) Rome Statute, the ICC is only competent with regard to crimes committed after the entry into force of the Rome Statute, 1 July 2002, for original members. With respect to States that later become parties to the Rome Statute, the relevant date is the first day of the month after the 60th day following the deposit of the instrument of ratification, according to Art. 126 (2) Rome Statute. The Rome Statute has thus embodied the principle of non-retroactivity of the effect of international treaties. This is one reason why a different solution in the form of Mixed Criminal Tribunals (Sierra Leone, East Timor, Kosovo, Cambodia) had to be found to deal with crimes committed in Sierra Leone, East Timor (Timor), and Cambodia (Cambodia Conflicts [Kampuchea]). One may say that the ICC’s jurisdiction ratione temporis is set up so as to grant States tabula rasa in respect of their nationals for events happening before the entry into force of the Rome Statute. This principle was a common negotiating basis for most, if not all, States participating in the elaboration of the Rome Statute.
56 With regard to Art. 126 (2) Rome Statute, however, the Statute contains a certain degree of flexibility. First, any non-Member State can make a formal declaration under Art. 12 (3) Rome Statute accepting the jurisdiction of the ICC with regard to certain crimes. Côte d’Ivoire was the first State to use this possibility in 2005. Second, the UN Security Council may refer a situation to the ICC based on Art. 13 (b) Rome Statute; however the ICC remains bound by the limitations to the jurisdiction ratione materiae. In both cases, only the basic rule of Art. 11 (1) Rome Statute—limiting the jurisdiction to crimes committed after 1 July 2002—applies.
57 A restrictive exception is the so-called ‘transitional provision’ of Art. 124 Rome Statute, which allows new States Parties to exclude, for a period of seven years after the entry into force of the Rome Statute for themselves, war crimes involving their territory or nationals from the jurisdiction of the ICC. Up until 2010, two States—Colombia and France—have availed themselves of this option. In 2008 France, however, withdrew its declaration. The effects of the Colombian declaration expired on 1 November 2009.
(c) Jurisdiction ratione loci and Jurisdiction ratione personae
58 Pursuant to Art. 12 (2) (a) and (b) Rome Statute, the ICC has jurisdiction if crimes have been committed on the territory of a State Party including vessels and aircraft if it is the State of registration (Flag of Ships) or if the accused is a national of a State Party (Nationality). Accordingly, the Rome Statute has chosen a quite classical, if not conservative and State sovereignty-oriented, approach with respect to the preconditions for the exercise of criminal jurisdiction. The principle of territoriality and the active personality principle are the two most recognized, indeed, universally accepted, bases for exercising criminal jurisdiction under international law. The necessity for a link between a State Party and the crime means that universality is not, as such, a concept of the Rome Statute. In particular, the jurisdiction is not linked to the custodial State, an omission which has often been criticized. Before and during the Rome Conference, most States had supported a proposal according to which custody of a suspect by a State Party would have been a sufficient basis for the jurisdiction of the ICC. This would have strengthened the deterrent effect of the Rome Statute since perpetrators would not have been able to enter the territory of any State Party without fear of being taken into custody and surrendered to the ICC. Another basis for the ICC’s jurisdiction which was rejected is the passive personality principle, which would have granted jurisdiction where the victim was a national of a State Party.
59 The most crucial exception to the restrictive regime of jurisdiction summarized above is the possibility of a UN Security Council referral pursuant to Art. 13 (b) Rome Statute. This provision gives the UN Security Council the power to refer to the ICC, in a resolution under Chapter VII UN Charter, situations in which crimes under the Rome Statute appear to have been committed regardless of whether the preconditions for the exercise of jurisdiction as referred to in Art. 12 (2) (a) and (b) Rome Statute are fulfilled. In such cases, which may also concern non-Member States, the legal basis of the ICC’s mandate lies in the Security Council’s powers under Chapter VII of the UN Charter. In other words, the ICC may gain some sort of universal jurisdiction if the Security Council actively supports the ICC. Its Resolution 1593 (2005) of 31 March 2005, in which the Security Council ‘decide[d] to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the [ICC]’, constituted the first time that the Security Council used its powers under Art. 13 (b) Rome Statute. In contrast to UNSC Resolutions 827 (1993) of 25 May 1993 and 955 (1994) of 8 November 1994, the mandate resolutions for the ICTY and the ICTR, respectively, Resolution 1593 does not contain a binding obligation on UN Member States to co-operate with the ICC in the fulfilment of its mandate regarding Darfur, Sudan. In the situation regarding Darfur, four cases with six suspects are being heard before a pre-trial chamber. On 4 March 2009 a pre-trial chamber issued an arrest warrant against the current president of Sudan, Omar Hassan Ahmad al-Bashir, on the basis of five counts of crimes against humanity and two counts of war crimes. The majority of the chamber found, however, that the prosecutor did not provide enough evidence to include the crime of genocide in the charges. This decision was appealed by the prosecutor and on 3 February 2010, the appeals chamber directed the pre-trial chamber to decide anew on the inclusion of genocide charges in the warrant of arrest as the standard of proof used by the pre-trial chamber was found to be too demanding. A second arrest warrant was then issued on 12 July 2010, including three counts of genocide. Whereas three suspects appeared voluntarily before the ICC, the other three suspects (among them President al-Bashir) remain at large. It remains to be seen whether UN Security Council members and States Parties will provide enough support for the extremely difficult task of investigating and prosecuting crimes committed in this situation and contribute to the arrest of the suspects at large.
60 A second important exception enlarging the competency of the ICC is the above-mentioned option for non-Member States to accept on an ad hoc basis the ICC’s jurisdiction ‘with respect to the crime in question’ according to Art. 12 (3) Rome Statute (see para. 56 above). In order to avoid the risk that non-Member States may, for their own reasons, adopt a ‘pick and choose’ attitude with respect to the crimes in question committed on their territory and thus, the further risk of so-called ‘asymmetric liability’, a broad interpretation of the term ‘crime in question’ has been chosen in Rule 44 RPE, which refers to a situation and not to a single incident.
(d) The Principle of Complementarity
61 The principle of complementarity, as provided for in particular in Art. 17 Rome Statute, is the decisive basis of the entire ICC system. Complementarity entails that judicial proceedings before the ICC are only admissible if and when States which would normally have jurisdiction are either unwilling or unable genuinely to exercise their jurisdiction. It is important to understand the principle of complementarity as the common response of the international community to the question of the relationship between the jurisdiction of the ICC and the various national criminal jurisdictions. Consensus among UN Member States on the sovereignty-friendly principle of complementarity, as summarized above (para. 39), was the decisive basis for the future ICC and was, therefore, the conditio sine qua non for the convening of the Rome Conference, the adoption of the Rome Statute, and the subsequent establishment of the ICC. Thus, in order not to challenge the jurisdiction of Nation States per se, the ICC was given a complementary nature as expressed in the 10th paragraph in the Preamble to the Rome Statute and Art. 1 Rome Statute. Functioning as a subsidiary instance and as a court of last resort, it takes over the tasks of passive, unwilling, or dysfunctional internal jurisdictions as in failing States when there is a need to preserve the interest of the international community as a whole. The principle of complementarity was preferred to the concept of concurrent jurisdiction adopted for the ad hoc international criminal tribunals. It is now reflected in several important procedural provisions of the Rome Statute.
62 First of all, the principle of complementarity is applicable regardless of the trigger mechanism. The Office of the Prosecutor must analyse the role that national jurisdictions play in a certain situation at the very beginning of the preliminary examination on whether there is a sufficient basis to proceed (Art. 53 (1) (b) Rome Statute). The rules on admissibility in Art. 17 Rome Statute clearly express that the ICC is not competent if a case is investigated or prosecuted on the national level; if, after an investigation, the national jurisdiction has decided not to prosecute; or if the suspect has already been tried for the conduct in question (Ne bis in idem). In that respect, national proceedings must encompass both the person and the conduct which is the subject of the case before the ICC. Only if a State is or has been unwilling or unable genuinely to investigate or prosecute can the ICC claim competency.
63 In order to determine a case of unwillingness, Art. 17 (2) Rome Statute states in broad terms the relevant criteria: proceedings undertaken for the purpose of shielding a person; unjustified delay or conduct of proceedings inconsistent with the intent to bring the person to justice; or a lack of independence and impartiality. It seems noteworthy that these standards have been criticized as too high. Future decisions will show to what extent doubts in that respect are appropriate. In addition, the wording of the provision provides no answer to the question of how the ICC should deal with amnesties, pardon, or parole granted in the aftermath of a national trial, which might be attempts by the State to shield a perpetrator. In such situations, the ICC may also have to take into account the principle of ne bis in idem as referred to in Art. 20 Rome Statute.
64 Inability can be asserted if the State is unable to obtain the accused or necessary evidence and testimony or if it is otherwise unable to carry out its proceedings either due to the national judicial system’s total or substantial collapse or its unavailability. Based on Art. 19 (1) Rome Statute, the ICC may determine admissibility on its own motion. Moreover and according to Art. 19 (2) Rome Statute, the suspect, a State with jurisdiction over the case, or a State coming under the categories of Art. 12 Rome Statute have the right to challenge admissibility prior to, or at, the commencement of the trial. In case of such a challenge, the execution of requests for co-operation may be postponed by the concerned States (Art. 95 Rome Statute).
65 The additional safeguard clause of Art. 18 Rome Statute obliges the prosecutor to notify all States Parties and States which normally would exercise jurisdiction so that they are in a position to demand the deferral of the investigation of the persons concerned in order to investigate themselves. Consequently, the States remain in a priority position to decide about their role even after the prosecutor has decided that there would be a reasonable basis to proceed in light of Art. 17 Rome Statute. If the State so demands, the prosecutor must defer to the State’s investigation but may request that the State make periodic progress reports (Art. 18 (2), (5) Rome Statute).
66 Only upon the application of the OTP can the pre-trial chamber authorize a continuation of the ICC’s investigations or necessary investigative steps to preserve evidence. The concerned State can appeal a decision by the pre-trial chamber and then challenge the admissibility of the case under Art. 19 Rome Statute. A deferral may be reviewed by the prosecutor if there is a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation. It is obvious that the multiple possibilities to challenge admissibility on the ground of complementarity can delay and hinder the course of proceedings and investigations, possibly leading to important obstacles, for example, with regard to the collection of evidence. The goodwill of States and their confidence in the ICC is particularly crucial at this point because large room for manoeuvre was left to them, which in turn might be used for obstruction.
67 Cases are also inadmissible if not of sufficient gravity (Art. 17 (1) (d) Rome Statute). This additional threshold is not precisely defined in the Rome Statute, but its aim is to ensure that the ICC will indeed deal only with crimes of a grave dimension.
2. Applicable Law
68 Pursuant to the hierarchy of Art. 21 (1) Rome Statute, the ICC applies in the first place the Rome Statute, the Elements of Crimes, and the Rules of Procedure and Evidence. In general, these instruments constitute a quite comprehensive and largely self-sustaining legal regime for the ICC. Furthermore, in the framework of its self-organization competencies, the ICC has further developed important texts such as the ICC Regulations (see Art. 52 Rome Statute), the Code of Judicial Ethics, and the Staff Regulations.
69 Besides the principles referred to elsewhere in this contribution, the Rome Statute details several general principles of criminal law applicable in the proceedings of the ICC. These include, first, several principles also found in national jurisdiction, such as the principle of nullum crimen, nulla poena sine lege (Arts 22, 23 Rome Statute), the exclusion of criminal jurisdiction over persons under a certain age (in the ICC’s case 18 years [Art. 26 Rome Statute]), norms on the required mental element (Art. 30 Rome Statute), and grounds for excluding criminal responsibility (Arts 31, 32 Rome Statute). Other norms are more peculiar to the ICC system, such as norms on the irrelevance of official capacity (Art. 27 Rome Statute) and the relative irrelevance of the superior orders excuse (Art. 33 Rome Statute), as well as on command responsibility (Art. 28 Rome Statute; International Criminal Courts and Tribunals, Defences).
70 In the second place, the ICC will, in its proceedings, apply treaties and principles and rules of international law, including the established principles of the law of armed conflict (General International Law [Principles, Rules and Standards]; Sources of International Law). Finally, if the other sources do not provide for the answer needed, the ICC may consider general principles of law derived from national laws of legal systems of the world (Art. 21 (1) (b), (c) Rome Statute). The actual relevance of secondary sources will be determined by the judges in future jurisprudence.
71 The ICC is not bound by its previous decisions regarding the interpretation of principles and rules (Stare decisis) but may rely on them (Art. 21 (2) Rome Statute). Its application and interpretation of the sources must be consistent with internationally recognized human rights (Art. 21 (3) Rome Statute). This rule, which indicates the special importance of keeping international criminal law in line with human rights law, has already led in the first decisions to quite some reliance on international human rights instruments and their interpretation by treaty bodies.
(a) The Pre-Trial Phase
(i) Trigger Mechanisms
72 The proceedings at the ICC can be triggered by way of three different mechanisms listed in Art. 13 Rome Statute (International Criminal Courts and Tribunals, Procedure). As a variation of the classic State complaint, every State Party can refer a situation to the prosecutor (Art. 13 (a) Rome Statute). Consistent with the concept of the international legal interest in the liability for international crimes and its fundamental value for the international community, there is no requirement of reciprocity or of a specific interest in the matter. Even though State complaints (Human Rights, State Complaints) have turned out to be of quite limited practical relevance for most international courts and human rights treaty bodies (Human Rights, Treaty Bodies), the ICC’s first three situations have been State referrals. More precisely, the referrals by Uganda, the Democratic Republic of the Congo (‘DRC’; Congo, Democratic Republic of the), and the Central African Republic were so-called self-referrals, where the concerned State itself expressed its will that the offenders be brought to justice by the ICC. In general, it seems to be recognized that in making such referrals, States may refer situations to the ICC without explicitly stating that their legal systems are unable or unwilling to investigate or prosecute. In certain constellations, self-referrals may thus be understood as waiver[s] of complementarity, at least as far as Art. 17 (1) (b) Rome Statute is concerned.
73 A second and somewhat sensitive trigger mechanism is the proprio motu power of the prosecutor based on Arts 13 (c) and 15 Rome Statute, which is supposed to strengthen the independence and efficiency of the ICC. The prosecutor has the authority to initiate an investigation on the basis of information received. After an analysis of such information, the prosecutor is to state a conclusion on whether a reasonable basis to proceed exists. However, in order actually to start the investigation, the prosecutor needs authorization by the pre-trial chamber. This control mechanism was instituted to meet States’ concerns about a too powerful prosecutor who might engage in politically motivated investigations. The pre-trial chamber gives its authorization if it agrees that there is a reasonable basis to proceed and that the ICC has jurisdiction. The prosecutor for the first time in the history of the ICC sought authorization from a pre-trial chamber on 26 November 2009 for opening an investigation proprio motu in relation to the post-election violence in Kenya 2007–8. His request has been granted with regard to crimes against humanity by the competent Pre-Trial Chamber II, by majority decision of 31 March 2010. In a dissenting opinion, the author of this article concluded that there was ‘no reasonable basis to believe that crimes … were committed in an “attack directed against any civilian population” … “pursuant to or in furtherance of a State or organizational policy to commit such attack” as required by article 7(2)(a) of the Statute’ (Decision pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya [Dissenting Opinion of Judge Hans-Peter Kaul] ICC-01/09-19-Corr [31 March 2010] para. 4).
74 The third trigger mechanism is an expression of the important relation of the ICC with the UN system. The UN Security Council may, in a resolution under Chapter VII UN Charter, refer a situation to the prosecutor (Art. 13 (b) Rome Statute). As mentioned above (para. 59), the Security Council can enlarge the scope of activity of the ICC in that it can refer situations in which core crimes have allegedly been committed even if the concerned States are not parties to the Rome Statute. The Security Council first made use of this important mechanism by referring the situation in Darfur, Sudan to the ICC in its Resolution 1593 (2005).
75 A counterpart to the power of the UN Security Council to refer situations to the ICC is the Security Council’s power under Art. 16 Rome Statute to halt an investigation or prosecution for a renewable period of 12 months in a resolution adopted under Chapter VII UN Charter. It is widely recognized that the rationale for this provision is to provide the Security Council in a complex international situation in which the search for international peace and security may be at odds with efforts to ensure criminal justice with discretionary power to give preference for a period of 12 months to efforts to achieve international peace and security through negotiation[s] even with those who might be responsible for international crimes (Peaceful Settlement of International Disputes). The UN Security Council, on the initiative primarily of the US, generally invoked Art. 16 Rome Statute in UNSC Resolution 1422 (2002) of 12 July 2002 and UNSC Resolution 1487 (2003) of 12 June 2003 exempting UN peacekeepers not nationals of a State Party from the jurisdiction of the ICC for two consecutive periods of 12 months each (Peacekeeping Forces). The adoption of these two resolutions has been criticized by many, including numerous States Parties. It was argued that invoking Art. 16 Rome Statute was not consistent with the letter and spirit of the Rome Statute and might even constitute an abuse of that norm. When the second 12-month period under Resolution 1487 (2003) ran out in 2004, efforts to extend it once more through a further resolution failed due to a lack of support from Security Council members.
(ii) Investigation and Prosecution
76 The prosecutor carries out the preliminary examination, notably the determination on whether there is a reasonable basis to proceed under the Rome Statute in accordance with Art. 53 Rome Statute. This first evaluation of available information comprises a test regarding jurisdiction and admissibility (Art. 53 (1) (a), (b) Rome Statute). The prosecutor has a significant margin of discretion with respect to a third criterion, namely the question of whether or not an investigation would serve the interests of justice, taking into account the gravity of the crime and the interests of the victims (Art. 53 (1) (c) Rome Statute). The prosecutor has to inform the pre-trial chamber on the decision that there is no reasonable basis to proceed. The pre-trial chamber can review this decision at the request of the State making the referral or the UN Security Council or, if it was solely based on the interests of justice, on its own motion (Art. 53 (3) Rome Statute).
77 Once the prosecutor has started an investigation, he or she is, pursuant to Art. 54 (1) (a) Rome Statute, under a duty to establish the truth, covering all relevant facts and evidence whether incriminating or exonerating. In order to collect and examine evidence, investigation teams can be sent to the territory of a State and enter into co-operation agreements with States and international organizations (International Organizations or Institutions, External Relations and Cooperation). The prosecutor is under a firm obligation to respect the interests of victims and witnesses and to keep the necessary confidentiality. For the purposes of the investigation, the prosecutor can request the pre-trial chamber to issue a warrant of arrest or a summons to appear. The Rome Statute even guarantees that persons arrested in States Parties be promptly brought before the competent judicial authority in the custodial State in order to control the correct application of the arrest warrant with a possibility of applying for interim release (Art. 59 (2), (3) Rome Statute).
(iii) Pre-Trial Hearings and Hearing on the Confirmation of Charges before Trial
78 Once a suspect or other person has been surrendered to the ICC, the pre-trial chamber is tasked, in a first appearance session, with satisfying itself that the person has been duly informed of the charges against him or her and his or her rights under the Rome Statute (Art. 60 (1) Rome Statute). The chamber also decides initially and periodically afterwards on the question of detention or interim release and ensures that the period of detention is not prolonged unduly because of delays caused by the prosecutor (Art. 60 (2)–(4) Rome Statute).
79 Most importantly, according to Art. 61 Rome Statute, the pre-trial chamber decides on whether or not to confirm the charges on which the prosecutor intends to seek trial. In order to do so, it holds a hearing during which both the prosecutor and the defence may present evidence. In exceptional circumstances, the confirmation hearing may be held in the absence of the charged person.
(b) The Trial
80 Subsequent to the confirmation of charges by the pre-trial chamber, the Presidency constitutes a trial chamber which is responsible for the ensuing proceedings. The trial, which is public, must be fair and impartial as well as expeditious. It must ensure the rights of the accused and the protection of victims and witnesses. The presence of the accused is mandatory. The presumption of innocence—according to which guilt must be proven by the prosecutor and the court must be convinced beyond a reasonable doubt—is the guiding principle of the trial according to Art. 66 Rome Statute. When deciding upon the admissibility of evidence, the trial chamber may declare evidence inadmissible if it has been obtained by means of a violation of the Rome Statute or internationally recognized human rights (Art. 69 (7) Rome Statute).
81 Some inquisitorial elements indicate that the procedural regime of the ICC refrains from applying the pure accusatorial model and gives an active role to the trial chamber: the judges can require the attendance and testimony of witnesses and the production of documents and other evidence (Art. 64 (6) (b) Rome Statute; International Courts and Tribunals, Evidence). They have explicit authority to request all evidence necessary to establish the truth (Art. 69 (3) Rome Statute). Nevertheless, pursuant to Art. 74 (2) Rome Statute, the judges in their decisions are limited to the facts and circumstances contained in the charges of the prosecutor.
82 At the end of the trial, the judges, after a secret deliberation, reach their final decision on innocence or guilt and in the latter case, on the sentence. A majority of judges is sufficient for any decision; however, judges are expected to attempt to achieve a unanimous decision (Art. 74 Rome Statute). The decision may only be based on evidence submitted and discussed at the trial. ‘Plea bargaining’ between the prosecutor and the defence does not bind the ICC. Before finding an accused guilty on an admission of guilt, the ICC must satisfy itself, inter alia, that the admission is consistent with the material already presented in the proceedings. This is to protect the accused from false statements and to safeguard the interests of justice.
83 When convicted, offenders may be sentenced to imprisonment for up to 30 years or, in exceptional circumstances, to life imprisonment. The ICC may also impose fines and order forfeiture of proceeds, property, and assets derived directly from that crime (Art. 77 Rome Statute). The death penalty cannot be imposed.
(c) Appeal and Revision
84 Part 8 Rome Statute provides for different kinds of appeals to the Appeals Chamber, which decides on the application by a majority in open court and disposes of the powers of the pre-trial and trial chambers mutatis mutandis. Decisions of acquittal or conviction can be appealed by the prosecutor based on procedural errors, errors of fact, or errors of law. The convicted person or the prosecutor on that person’s behalf may make an appeal on the same grounds and in addition, on any other ground that affects the fairness or reliability of the proceedings or decision. An appeal against a sentence may be brought forward on the basis of disproportion between crime and sentence (Art. 81 Rome Statute). The decision or sentence can be reversed or amended or a new trial can be ordered. There is an explicit rule against changing a decision to the detriment of the convicted person if the appeal was brought by that person or the prosecutor on that person’s behalf (Art. 83 Rome Statute). Finally, orders regarding reparations to victims are also subject to appeal (Art. 82 (4) Rome Statute).
85 In addition to appeals against final decisions, parties may also bring interlocutory appeals against certain decisions of the trial or pre-trial chambers according to Art. 82 Rome Statute. Decisions that may be appealed in this way include those concerning jurisdiction or admissibility, release of the accused, measures to preserve evidence, and investigative steps. Any other decision may only be appealed with the leave of the pre-trial or trial chamber concerned if it ‘involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial’ (Art. 82 Rome Statute). If the Appeals Chamber finds by a majority of judges that the appeal is well-founded, it is empowered to reverse or amend the decision or sentence or to order a new trial.
86 Finally, the convicted person or, after the person’s death, certain other specified persons as well as the prosecutor on the convicted person’s behalf, may apply for revision of the conviction or sentence upon discovery of new evidence or of the fact that decisive evidence taken into account at trial was false, forged, or falsified. Revision may also be based on serious misconduct or a serious breach of duty by a judge participating in the conviction or the confirmation of charges (Art. 84 Rome Statute). In the case of a meritorious application, the Appeals Chamber may reconvene the original trial chamber or constitute a new trial chamber. It may also itself, after hearing the parties, decide whether the judgment should be revised.
(d) Specific Aspects
(i) Defence and Procedural Guarantees for the Accused
87 As Arts 55 and 67 Rome Statute demonstrate, great importance was attributed to the rights of suspects not only during trial but also during the investigation. Art. 55 contains a number of due process guarantees in the pre-trial phase of criminal proceedings. They should be read in light of the presumption of innocence as referred to in Art. 66 Rome Statute as the guiding principle. Art. 55 Rome Statute contains a prohibition of coercion; duress; threat; torture or other form of cruel, inhuman, or degrading treatment; and of arbitrary arrest and detention (Detention, Arbitrary) or deprivation of liberty (Liberty, Right to, International Protection). Furthermore, no person shall be compelled to incriminate himself or herself or to confess guilt, and every person questioned has the right to get the assistance of a competent interpreter or translator if needed. A person who is believed to have committed a crime within the jurisdiction of the ICC has further rights, of which the person must be informed along with the grounds for the suspicion. These are the right to remain silent, the right to legal assistance, and the right to be questioned only in the presence of counsel.
88 Art. 67 Rome Statute lists the minimum fair trial guarantees applicable in all stages of the proceedings. These include the right to be informed and to remain silent, the right to prepare the defence in appropriate conditions and to legal assistance, the right to question the witnesses, and the right to have interpretation. The accused also has a right to be present at trial but may be removed from the courtroom if he or she continues to disrupt the trial (Art. 63 Rome Statute). There are currently no rules regarding the procedure in the case of an accused person refusing to appear before the ICC or being hindered to do so on medical reasons.
89 The accused person is entitled to conduct the defence in person or through legal assistance of his or her own choice. If the interests of justice so require or the person lacks sufficient means to pay, a defence lawyer can be assigned by the ICC. An Office of Public Counsel for the defence was set up by the Registry to safeguard the rights of the defence in the early stages of an investigation and to provide support, assistance, and information to defence counsel and suspects or accused (Reg. 77 ICC Regulations). The chambers take measures to allow the defence to prepare properly and the pre-trial chamber protects the rights of the defence in unique investigative opportunities (see Art. 56 Rome Statute).
90 One aspect which is of special importance for the fair and equitable conduct of the proceedings is the disclosure of evidence by the Office of the Prosecutor to the defence. This concerns not only evidence that the OTP intends to rely on at the confirmation hearing or at trial but also evidence that is potentially exculpatory or otherwise material to the preparation of the defence (Arts 61 (3) b, 67 (2) Rome Statute; Rules 76, 77 RPE). The rules on disclosure contained in the Rome Statute and the Rules of Procedure and Evidence are, to a large extent, based on those contained in the US Federal Rules of Criminal Procedure and the RPE, those of the ICTY and the ICTR. While it is, in the first place, up to the OTP to decide which items it intends to disclose, the pre-trial or trial chamber is the final arbiter in this regard. The refusal on part of the prosecution to disclose potentially exculpatory evidence to the accused with reference to Art. 54 (3) (e) Rome Statute caused Trial Chamber I of the ICC on 13 June 2008 to impose a stay on the proceedings in Prosecutor v Thomas Lubanga Dyilo. Art. 54 (3) (e) Rome Statute allows the prosecutor not to disclose documents or information that he or she obtained on the condition of confidentiality and which are not for use at trial but solely for the purpose of generating new evidence. The chamber found that the prosecution had misused the provision with the effect of improperly inhibiting the opportunities for the accused to prepare his defence as he was not able to access a significant body of exculpatory evidence obtained from such providers as the United Nations or non-governmental organizations (‘NGOs’; The Prosecutor v Thomas Lubanga Dyilo [Decision on the Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain Other Issues Raised at the Status Conference on 10 June 2008] ICC-01/04-01/06-1401 [13 June 2008]). The chamber subsequently lifted the stay of proceedings only after the prosecution had agreed to make the confidential material available to the ICC.
91 The defence, for its part, also has certain disclosure obligations, but in keeping with the right not to be forced to incriminate one’s self, it must only disclose material it intends to use at the confirmation hearing or the trial (Rule 78 RPE) and inform the chamber and OTP if it intends to rely on an alibi or grounds for excluding responsibility (Rule 79 RPE).
(ii) Protection of Victims and Witnesses
92 Of its own motion or upon request, a chamber shall, according to Art. 68 Rome Statute, take appropriate measures to protect the safety, physical, and psychological well-being, dignity, and privacy of victims and witnesses. Especially during the investigation, the prosecutor also has a specific duty to ensure such protection. Examples of such measures are proceedings in camera, audio-visual, and electronic presentation of evidence and the summary presentation of evidence that could endanger the security of witnesses. A Victims and Witnesses Unit in the Registry, as envisaged by Art. 43 (6) Rome Statute, gives advice on appropriate protective measures, security arrangements, counselling, and assistance.
93 At the same time, these protection measures must be reconciled with the rights of the defendant. The provisions on witness protection in the Rome Statute state that such measures shall not be prejudicial to defence rights (see Art. 68 (1) Rome Statute). Finding the correct balance between those competing interests will be one of the first tasks for the pre-trial and trial chambers.
(iii) The Role of Victims in the Proceedings
94 One important innovation of the Rome Statute is the attention paid to the interests of victims, especially by allowing them to take an active part in the proceedings (Art. 68 (3) Rome Statute). This provision also lays down that victims’ participation must not prejudice or be inconsistent with the rights of the accused and the conduct of a fair and impartial trial. Finding a proper balance between these two interests will be another task for the chambers.
95 Rule 85 RPE defines victims as ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court’ and ‘organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes’. The notion of ‘harm’ comprises physical and emotional suffering as well as economic loss (see Art. 75 (1) Rome Statute).
96 According to Pre-Trial Chamber I decision of 17 January 2006 regarding the situation in the DRC, victims have a right to participate in the investigation phase, ie before any warrants for arrest of individuals have been issued. At this stage, they must show sufficient grounds to believe that they have been harmed. Under Rule 89 (3) RPE, other persons, notably NGOs, are entitled to make an application for participation on behalf of victims with their consent.
97 The ICC may make an order for reparations to be made to the victims by the convicted person (Art. 75 (2) Rome Statute). In addition, victims may request reparations according to Rules 94 to 99 RPE. The ASP has established a victims’ trust fund pursuant to Art. 79 Rome Statute through which the ICC may order that awards for reparations be made (Rule 98 RPE).
98 The ICC relies on States with regard to the enforcement of the sentences. Art. 103 Rome Statute provides that sentences ‘shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons’. The first State to sign an agreement with the ICC on the enforcement of sentences was Austria on 27 October 2005.
99 Fines, forfeiture measures, and reparation orders are enforced after a co-operation request of the Presidency by the State with which the sentenced person or victim ‘appears to have direct connection by reason of either nationality, domicile or habitual residence or by virtue of the location of [his or her] assets and property’ (Rule 217 RPE).
4. International Co-operation and Judicial Assistance
100 According to the Rome Statute, the ICC generally has no executive powers and no police force of its own or other executive units. Consequently, international co-operation with States and judicial assistance are vital prerequisites for the functioning of the ICC. The ICC is totally dependent on the full, effective, and timely co-operation in particular of States Parties. This is especially true with regard to the crucial question of the effective execution of arrest warrants and surrender of suspects to The Hague. As foreseen and planned by the founders of the ICC, the court is characterized by the structural weakness that it does not have the competencies and means to enforce its own decisions. As already shown with regard to the principle of complementarity, it was also the wish of the ICC’s creators that States’ sovereignty prevails in this respect.
101 On the other hand and in order to compensate for this structural weakness of the ICC, a detailed regime of obligations for co-operation has been introduced into the Rome Statute. No reservations may be made to the Rome Statute (Art. 120 Rome Statute; Treaties, Multilateral, Reservations to). The co-operation regime is meant to ensure that the ICC can effectively obtain what is necessary to reach the persons it is supposed to try. Furthermore, the expertise and field-presence of international organizations and NGOs are extremely important for a successful conduct of the proceedings. This reaffirms that the ICC depends and relies on co-operation and executive means provided by others.
(a) Relationship with the United Nations
102 The project of the ICC was born and developed within the UN before becoming an independent judicial institution. The two organizations are still closely interlinked, a relationship defined by the Rome Statute and the Negotiated Relationship Agreement between the International Criminal Court and the United Nations (‘Relationship Agreement’) concluded in conformity with Art. 2 Rome Statute. The Preamble of the Rome Statute expresses this relationship also by ‘[r]eaffirming the Purposes and Principles of the Charter of the United Nations’ and by calling for an ‘independent permanent International Criminal Court in relationship with the United Nations’. It also aims for consistency and compatibility with the UN Charter, eg with regard to the exercise of jurisdiction over the crime of aggression (Art. 5 (2) Rome Statute). As outlined above (at para. 54), the permanent members of the UN Security Council had raised concerns regarding a potential clash between the Security Council’s power to determine the existence of any act of aggression under Art. 39 UN Charter and the ICC’s exercise of jurisdiction over cases of aggression which had not been referred to the court by the Security Council. However, the fact that France and the United Kingdom have abstained from blocking the consensus reached in Kampala shows that the Security Council’s crucial role in safeguarding international peace and security is not threatened by extending the trigger mechanisms of the ICC’s jurisdiction beyond the monopoly of the Security Council. A particularly important aspect of the relationship between the ICC and the UN is the power of the Security Council, already referred to above in para. 59, to refer situations to the ICC under Art. 13 (b) Rome Statute or to defer an investigation or prosecution under Art. 16 Rome Statute (see para. 75 above).
103 Art. 3 Relationship Agreement lays down a general duty of close co-operation and consultation, whenever appropriate, on matters of mutual interest. In more detail, the agreement provides for reciprocal representation in the form of a standing invitation to the UN Secretary-General (United Nations, Secretary-General) to attend certain hearings of the chambers and all public meetings of the ICC, as well as the granting of observer status within the UN to the ICC (Art. 4 Relationship Agreement; International Organizations or Institutions, Observer Status; Observers). Another important aspect is the exchange of information and documents of mutual interest, especially with regard to documents and information that could be of interest for the proceedings of the ICC (Art. 5 Relationship Agreement).
104 The agreement also sets rules for the relationship between the UN Security Council and the prosecutor, especially with regard to Security Council referrals and deferrals and cases of non-co-operation by States subsequent to a Security Council referral (Art. 17 Relationship Agreement). UN co-operation with the prosecutor is also envisaged, especially in the context of an investigation (Art. 18 Relationship Agreement). Several rules concern the protection of confidential information (eg Arts 18 (4), 20 Relationship Agreement). Where a suspected person falls under the Convention on the Privileges and Immunities of the UN, the UN shall co-operate to waive any privileges and immunities in accordance with that convention and the relevant rules of international law.
105 Finally, other areas of co-operation include administrative matters, personnel, services, and facilities.
106 In addition to the Relationship Agreement, the UN and its Secretary-General have special responsibilities under the Rome Statute, such as the deposition and consideration of signatures, ratifications, accessions, withdrawals, declarations, and amendments to the Rome Statute (Arts 125–127 Rome Statute) and the convening of review conferences (Art. 123 Rome Statute; Depositary).
(b) Co-operation with States Parties
107 The States have not agreed to create an executive mechanism with a world-wide mandate for the ICC. Instead, they have agreed to an extensive set of obligations for States Parties concerning international co-operation, judicial assistance, and enforcement contained in Part 9 Rome Statute. To be able to fulfil the obligations contained in the Rome Statute, a significant number of Member States have adapted their national legislation concerning co-operation in criminal justice matters.
108 The main obligation of States Parties is to co-operate fully with the ICC (Art. 86 Rome Statute). The ICC is authorized to make a request for co-operation, which the State must handle confidentially and, upon request by the ICC, in a manner that protects the safety of victims, potential witnesses, and their families (Art. 87 Rome Statute). States Parties are obliged to create appropriate national procedures for the execution of requests by the ICC (Art. 88 Rome Statute).
109 Another key obligation of States is to arrest and surrender persons found in their territory or to allow the transit of persons being surrendered to the ICC through their territories (Art. 89 Rome Statute; Safe-Conduct and Safe Passage). Procedures are foreseen for dealing with cases of ne bis in idem challenges, competing requests, and persons being prosecuted or having been convicted for crimes not covered by the Rome Statute (Arts 89 (2), (4), 90 Rome Statute). Other forms of co-operation, as detailed in Art. 93 Rome Statute, include information on the identification and whereabouts of persons, the taking of evidence including testimony, the examination of places or sites, the temporary transfer of persons in custody, and the protection of witnesses and victims. Requests may be denied by the State where they would be in conflict with a national ‘existing fundamental legal principle of general application’ or where the documents or evidence concerned relate to its national security (Art. 93 (3), (4) Rome Statute). The execution of requests may also be postponed for reason of an ongoing national investigation or prosecution or an admissibility challenge pending before the ICC (Arts 94, 95 Rome Statute).
110 Given the sensitive nature and potential interest of third parties in these procedures, the Rome Statute foresees consultation[s] in cases of problems arising in the context of a co-operation request from the ICC (especially Art. 97 Rome Statute). Finally, Art. 98 Rome Statute provides that where complying with a request for surrender or assistance would require the State requested to breach its obligations towards another State, including the obligation to first obtain the consent of that State, the ICC may not proceed with the request without first obtaining the co-operation of the third State (see also Mutual Legal Assistance in Criminal Matters).
111 It was this provision that the US government under the Bush administration relied on in its Bilateral Non-Surrender Agreements concluded between 2002 and 2005 with numerous States, including States Parties, in order to prevent the possibility of US personnel being surrendered to the ICC. Since President Obama, as well as members of his administration have recently stated the intention of the US re-engage with the ICC and repealed the decision to refuse aid payments to States unwilling to sign the bilateral agreements in question, the practical and legal relevance of these agreements seems to be diminishing.
112 In exchange for States’ co-operation with the ICC, the court may also provide assistance to a State Party or even a non-Member State which is conducting an investigation or trial in respect of crimes within the jurisdiction of the ICC or other serious crimes (Art. 93 (10) Rome Statute).
(c) Non-Member States and International Organizations
113 Following the pacta tertiis non nocent principle, non-Member States are not bound by the general co-operation rule of Art. 86 Rome Statute. However, when the UN Security Council refers a situation to the ICC pursuant to Art. 13 (b) Rome Statute, it may also, under Chapter VII UN Charter, oblige non-Member States to co-operate with the ICC. In this vein, in Resolution 1593 (2005) referring to the ICC the situation in Darfur, Sudan—which is not a State Party to the Rome Statute—the Security Council ‘[d]ecide[d] that the Government of Sudan … shall cooperate fully … and provide any necessary assistance’ (at para. 2). Thus, universal co-operation with the ICC may become mandatory in certain situations through decisions of the Security Council under Chapter VII UN Charter.
114 Art. 87 (5) Rome Statute states that non-Member States may also be invited by the ICC to provide information and assistance on the basis of an ad hoc or general agreement; if they fail to comply with obligations arising thereunder, the ICC may inform the Assembly of States Parties or, in case of a Security Council referral, the Security Council. The ICC may also ask international organizations for information or documents. In this regard, co-operation with organizations with special capacities, experience, and technical know-how in the field of international tracing, police, and justice networking, such as Interpol and Europol, may be of particular importance.
(d) Civil Society
115 The role of civil society is not formalized or institutionalized in the Rome Statute. Nevertheless, private individuals and NGOs can be relevant to the activities of the ICC as sources of important information, especially in the field, given their often close contacts with victims and local networks of human rights defenders. Information coming from NGOs and other private sources will be taken into account by the OTP at a very early stage when deciding on whether to begin an investigation. The prosecutor must analyse information provided and must inform those who has given information on the decision not to open an investigation (Art. 15 (2), (6) Rome Statute). The prosecutor may also, in beginning an investigation, seek additional information from NGOs and other reliable sources pursuant to Art. 15 (2) Rome Statute and Rule 104 (2) RPE.
116 The ICC may even, in exceptional circumstances, employ the expertise of gratis personnel offered by NGOs to assist with the work of any of the organs of the ICC (Art. 44 (4) Rome Statute). Finally, Rule 103 RPE provides that not only States but also organizations or persons may make amicus curiae submissions to the ICC (International Courts and Tribunals, Amicus Curiae).
D. Current Challenges and Future Perspectives
117 On 1 July 2002, the date the Rome Statute entered into force, a so-called ‘ICC Advance Team’, composed of the first five members of the staff of the future ICC, entered a completely empty office building in The Hague to start building up the ICC. Since then, all the ICC’s organs have been established and the ICC has grown from a small embryonic unit in 2002 and 2003 to a new emerging international organization with a staff of approximately 1100 in 2010. Nevertheless, it cannot be overlooked that there are still many important challenges to overcome in the foreseeable future.
118 One challenge is the ongoing task to turn the ICC—a new and unique international organization with many novel and untested features—into a fully operational and well-functioning judicial institution. The ICC must aim to be fully understood, accepted, and supported by the international community. In this process of internal and external consolidation, the emphasis will shift more and more from organizational build-up to intensified investigations and, finally, criminal trials. It remains essential that the ICC continues to show—through the way it conducts all these activities—that it is a purely judicial, objective, neutral, and non-political institution.
2. Role of the Prosecutor
119 The prosecutor and the OTP as the driving force or ‘engine’ of the ICC bear a special responsibility for the entire ICC. They are called upon to use the legal framework of the Rome Statute and the RPE for the sustained development of a system of investigations and prosecutions and related working methods that is as fair and efficient as possible. Without such efficacious working methods and work of the OTP, the ICC cannot function, and there may be no or too few concrete cases.
120 Effective criminal co-operation with the ICC is of vital importance. It is therefore indispensable that the OTP continues to build up an increasingly solid and reliable network of efficient international co-operation with States Parties and other actors. This system will ideally be based on mutual respect, trust, and confidence and the readiness to co-operate with each other without delay. A similar priority is the ongoing development and implementation of best practices of international criminal co-operation: fast, creative, flexible, and unbureaucratic, with a flow of information and supportive measures as direct as possible. Special attention must be given to the critical and unresolved question of arrest and surrenders to the ICC, which are a prerequisite of ICC trials since Art. 63 Rome Statute requires the presence of the accused during the trial.
121 Beyond this, it should not be overlooked that there are also other limitations and constraints which inevitably reduce the efficiency of the ICC and its chances to work with the same degree of success as well-established national courts. This concerns both factual limitations and difficulties and legal limitations inherent in the Rome Statute.
122 The gravest limitation on the factual side is the enormous difficulty of carrying out investigations and collecting evidence regarding mass crimes committed in situations and regions which, as the examples of Uganda, the DRC, and Darfur show, may often be unstable and unsafe. The considerable distance of many situations from the seat of the ICC creates additional logistical and technical problems. Another grim reality is the notorious scarcity of financial and other resources available for investigations and other work and activities of the ICC.
123 With regard to legal limitations and safeguards contained in the Rome Statute, commentators have observed that the complementarity regime of the ICC is quite strong, if not too strong. On the other hand, it has been observed that the regimes of jurisdiction and co-operation as referred to in Parts 2 and 9 Rome Statute are quite weak, if not too weak.
124 At the same time, it does not seem wise to try to alleviate some of these problems through amendments to the Rome Statute under Art. 123 Rome Statute. It can be assumed that neither States Parties nor the ICC itself have had enough time and experience for a thorough and comprehensive assessment of the practicability of the Rome Statute. In such a situation, it seems all the more necessary to avoid amendment proposals which might be divisive or might create risks for a coherent and uniform treaty regime. In this respect, the States Parties have shown prudence and political wisdom when they decided, in November 2009, to limit the discussion on amendments at the review conference in May 2010 in Kampala to three proposals: a possible revision of Art. 124 Rome Statute; the possible adoption of a provision regarding the crime of aggression; and the inclusion of the use of certain weapons as war crimes in the context of an armed conflict not of an international character. The States Parties have demonstrated determination and unity in their adoption of the package proposal on the crime of aggression (see paras 53–54 above) and the amendment of Art. 8 Rome Statute in order to include, in a non-international armed conflict, the war crime of employing certain poisonous weapons and expanding bullets, asphyxiating or poisonous gases, and all analogous liquids, materials, and devices (Weapons, Prohibited). In adopting these two proposals, the Member States complement the ICC’s jurisdiction over crimes already referred to in the Rome Statute. On the other hand, the Assembly decided to retain Art. 124 Rome Statute to continuously give new Member States the opportunity to exclude from the ICC’s jurisdiction war crimes allegedly committed by its nationals or on its territory for a period of seven years. As the ICC is still a relatively young and emerging international court, stability and continuity of its treaty regime are probably in the well-understood interest of all concerned in the international community.
125 In sum, the founders of the ICC have created a new system of international criminal jurisdiction consisting of two levels which complement each other.
126 The first level is constituted by States and their national criminal law systems. As confirmed by the principle of complementarity as the primary basis of the Rome Statute, States continue to have the primary duty to exercise their criminal jurisdiction over those responsible for international crimes.
127 The second level is constituted by the ICC. According to the principle of complementarity, the ICC can only act as a last resort in cases in which national criminal law systems are unwilling or unable genuinely to carry out the investigation or prosecution.
128 This complex system apparently needs more time to be fully accepted and adhered to by all concerned in order to develop its full potential. States Parties need to get used to the necessity of direct, full, and sustained support for and co-operation with ‘their’ court. The ICC itself needs full consolidation. It must gradually develop coherent and consistent jurisprudence. This jurisprudence must set or reaffirm legal standards which are then observed on a world-wide level. This may contribute to more international justice.
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