(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.

(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).

(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.

(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 60^th 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 10^th 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.

(a)  The Pre-Trial Phase

(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

(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).