The Rome Statute for the International Criminal Court : Analysis of the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and Supplementary Instruments [1 ed.] 9789004189676, 9789004186132

Citation preview

The Rome Statute for the International Criminal Court

The Rome Statute for the International Criminal Court Analysis of the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and Supplementary Instruments

By

Georghios M. Pikis

LEIDEN • BOSTON 2010

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Pikis, Georghios M. The Rome Statute for the International Criminal Court : analysis of the statute, the rules of procedure and evidence, the regulations of the court and supplementary instruments / by Georghios M. Pikis. p. cm. Includes index. ISBN 978-90-04-18613-2 (hardback : alk. paper) 1. International Criminal Court. 2. International Criminal Court–Rules and practice. 3. Rome Statute of the International Criminal Court (1998) I. Title. KZ6310.P55 2010 345'.01–dc22 2010037459

ISBN 978 90 04 18613 2 Copyright 2010 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.

To my grandchildren Nepheli, Odysseas and Nedy

CONTENTS

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi List of Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii List of Cases of the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . xv Chapter One. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. The establishment of the International Criminal Court . . . . . . . . . . . . II. The Preamble to the Rome Statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The Rules of Procedure and Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V. Regulations of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 1 12 15 17 18

Chapter Two. Status, Complexion and Inherent Powers of the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21

Chapter Three. Composition of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Election of judges and their assignment to Divisions . . . . . . . . . . . . . . . III. The Office of the Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. The Registry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Election of the Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Election of the Registrar and Deputy Registrar . . . . . . . . . . . . . . . . . . . Staff Rules and Regulations—Registry regulations . . . . . . . . . . . . . . . V. The Presidency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VI. Plenary sessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27 27 28 32 33 33 35 36 37 40

Chapter Four. Competence—Jurisdiction—Admissibility . . . . . . . . . . . . . . . . . I. Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Crimes amenable to the jurisdiction of the Court . . . . . . . . . . . . . . . . . . . The crime of genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crimes against humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. The general introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Genocide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43 43 50 54 59 59 60 64 68 69 70

viii

contents c. Crimes against humanity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. War crimes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

71 74

Chapter Five. The law applicable under the Rome Statute . . . . . . . . . . . . . . . . . I. Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article . (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article . (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article . (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

77 77 79 81 82 83 89

Chapter Six. The Judiciary: Pre-Trial, Trial and Appeals Chambers . . . . . . . I. Independence and impartiality of Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Functions of the Pre-Trial Chamber. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exercise of the functions of the Pre-Trial Chamber . . . . . . . . . . . . . . . Functions and Powers of the Pre-Trial Chamber . . . . . . . . . . . . . . . . a. Article .(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Article .(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Article .(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Article .(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Article .(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other functions of the Pre-Trial Chamber . . . . . . . . . . . . . . . . . . . . . . . a. Articles  and  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Summons to Appear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Arrest proceedings in the custodial State . . . . . . . . . . . . . . . . . . . . . Proceedings before the Pre-Trial Chamber. . . . . . . . . . . . . . . . . . . . . . . a. Article  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. The prelude to the confirmation hearing . . . . . . . . . . . . . . . . . . . . c. The confirmation hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitution of the Trial Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Seat of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Trial in the presence of the accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Functions and Powers of the Trial Chamber . . . . . . . . . . . . . . . . . . . . . a. Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Article .(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Article .(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f. Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

91 92 97 97 99 100 102 102 103 104 104 104 106 116 118 122 122 133 138 144 144 145 146 147 149 151 152 154 155 155

contents g. Article .(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . h. Article .(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i. Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . j. Article  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Sentencing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Determination of sentence: relevant considerations . . . . . . . . . Reparations—Article  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Principles governing reparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Regulations of the Trust Fund for Victims . . . . . . . . . . . . . . . . . . IV. Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Composition of the Appeals Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . . . Jurisdiction, competence and powers of the Appeals Chamber . a. Appellate Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Article  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Article .(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Mounting an appeal—Powers of Appeals Chamber. . . . . . . . . e. Article  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f. Powers of the Appeals Chamber . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g. Discontinuance of an Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revision of conviction and sentence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ix 158 166 167 167 169 172 178 178 179 182 183 183 186 187 188 188 192 193 194 197 205 209 214 222 223

Chapter Seven. Offences against the administration of justice and Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 I. Offences against the administration of justice . . . . . . . . . . . . . . . . . . . . . . 229 . General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 . List of offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 a. “Giving false testimony when under an obligation pursuant to article , paragraph , to tell the truth”. . . . 230 b. “Presenting evidence that the party knows is false or forged” 231 c. “Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence” . . . . . . . . . . . . . . . . . . . . . . . . . . 232

x

contents d. “Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties” . . . . . . . . . . . . . . . . . . . . . . . . . . . . e. “Retaliating against an official of the Court on account of duties performed by that or another official” . . . . . . . . . . . . f. “Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties” . . . . . . . . . . . . . Principles and procedures governing the exercise of the jurisdiction of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Sanctions for misconduct before the Court . . . . . . . . . . . . . . . . . . . . . . . . .

232 232 233 233 237 239

Chapter Eight. The Office of the Prosecutor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Privileges and immunities of Judges, the Prosecutor, Deputy Prosecutor(s), the Registrar and Other Persons. . . . . . . . . . . . . . . . . . . . . III. Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IV. Proprio Motu Investigations by the Prosecutor . . . . . . . . . . . . . . . . . . . . . V. Article  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

243 243 250 251 262 267

Chapter Nine. Victims and Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Protection of victims and witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Participation of victims in judicial proceedings. . . . . . . . . . . . . . . . . . . . . III. The Definition of a Victim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

277 277 290 303

Chapter Ten. Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Right to legal assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Qualifications for enrolment in the roster of Defence Counsel . . . . III. Code of Professional Conduct for Counsel . . . . . . . . . . . . . . . . . . . . . . . . . IV. Office of Public Counsel for the Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . .

307 307 309 310 313

Chapter Eleven. International Cooperation and Judicial Assistance . . . . . . . 315 I. Areas of Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321 Annex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333

ACKNOWLEDGMENTS

I wish to acknowledge the help received in the preparation and transcription of the text of this book from the following persons. First and foremost, I acknowledge the aid given me by Franziska Eckelmans, a very wise person thoroughly versed in the law, in the research of the material analysed, the editing of the footnotes, in part the transcription of the book and very much her ideas in relation to the arrangement of a number of things and suggestions as to the layout of the book. And, to Katerina Charitou, another brilliant student of the law, I owe as much. She helped me in a variety of ways, not only in the transcription of the book but also with very many suggestions about its structure. Her encouragement was a constant companion keeping my enthusiasm about writing this book at a very acute angle. Daphne Anayiotos, an accomplished lawyer and a keen student of international criminal law, also aided me in the transcription of the book and with many intelligent suggestions. Annika Jones, a PhD student with a fine mind, likewise helped me considerably in the transcription of the book ever ready in her calmness to make beneficial observations and suggestions. I wish to express my gratitude to each one of them. I do however take total and absolute responsibility for whatever is written in this book emanating from my dictations.

LIST OF ABBREVIATIONS

AC All E.R. a.o. Court court

Appeal Cases All England Law Reports among others the International Criminal Court a Chamber of the International Criminal Court except when mentioned in another context ed. edition et. seq. and the following HL House of Lords ibid. ibidem, mentioned in previous footnote ICC International Criminal Court ICJ International Court of Justice ICTY International Criminal Tribunal for the former Yugoslavia ICTR International Criminal Tribunal for Rwanda IMT International Military tribunal of Nuremberg infra. see below p. page pp. pages para. paragraph paras. paragraphs Regulations Regulations of the International Criminal Court Rules Rules of Procedure and Evidence supra See above Statute Rome Statute of the International Criminal Court v. against, versus VWU Victims and Witnesses Unit

LIST OF CASES OF THE INTERNATIONAL CRIMINAL COURT

Pre-Trial Chamber I Prosecutor v. Ahmad Harun and Al Kushayb, Decision on the Prosecution Application under Article  () of the Statute,  April  (ICC-/– /–) § , , ,  Prosecutor v. Katanga, Decision on the Defence Motion for Leave to Appeal the First Decision on Redactions,  December  (ICC-/–/–) §  Prosecutor v. Katanga, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of the Warrant of Arrest for Germain Katanga,  November  (ICC-/–/–) § ,  Prosecutor v. Katanga, First Decision on the Prosecution Request for Authorisation to Redact Witness Statements,  December  (ICC-/–/–) §  Prosecutor v. Katanga/Chui, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga,  November  (ICC-/–/–) § ,  Prosecutor v. Lubanga Dyilo, Decision concerning Pre-Trial Chamber I’s Decision of  February  and the Incorporation of Documents into the Record of the case against Mr. Thomas Lubanga Dyilo,  February  (ICC-/– /–-US-Corr reclassified as public by ICC-/–/–) § , , ,  Prosecutor v. Lubanga Dyilo, Decision on the confirmation of charges,  January  (ICC-/–/–) § , , ,  Prosecutor v. Lubanga Dyilo, Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims’ Participation of  January   February  (ICC-/–/–) § 

xvi

list of cases of the international criminal court

Prosecutor v. Lubanga Dyilo, Decision on the Defence request for leave to appeal the Oral Decision on redactions and disclosure of  January ,  March  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo, Decision on the Practices of Witnesses Familiarisation and Witness Proofing,  November  (ICC-/–/–) §  Situation in Darfur, Sudan, Decision on Request for leave to appeal the “Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation ()(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor”,  January  (ICC-/–) §  Situation in the Democratic Republic of the Congo, Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation ()(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor,  January  (ICC-/–) §  Situation in the Democratic Republic of the Congo, Decision on the Requests of the Legal Representative of Applicants on application process for victims’ participation and legal representation,  August  (ICC-/–) § 

Pre-Trial Chamber II Prosecutor v. Ahmad Harun and Al Kushayb, Decision on the Prosecution Application under Article () of the Statute,  April  (ICC-/– /–) § , , ,  Prosecutor v. Kony a.o., Warrant of arrest for Dominic Ongwen,  July  (ICC-/–/–) §  Prosecutor v. Kony a.o., Warrant of arrest for Okot Odhiambo,  July  (ICC/–/–) §  Prosecutor v. Kony a.o., Warrant of arrest for Raska Lukwiya,  July  (ICC/–/–) §  Prosecutor v. Kony a.o., Warrant of Arrest for Joseph Kony issued on  July  as amended on  September ,  September  (ICC-/–/–) § 

list of cases of the international criminal court

xvii

Prosecutor v. Kony a.o., Warrant of arrest for Vincent Otti,  July  (ICC/–/–) §  Situation in Uganda “Decision on the Prosecutor’s Application for Warrants of Arrest Under Article ”  July  (ICC-/–/–) §  Situation in Uganda, Decision on the Prosecutor’s Application that the PreTrial Chamber Disregard as Irrelevant the Submission filed by the Registry on  December ,  March  (ICC-/–/–) § 

Pre-Trial Chamber III Prosecutor v. Bemba Gombo, Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa,  August  (ICC/–/–) §  Prosecutor v. Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo,  June  (ICC/–/–-tENG) § 

Trial Chamber I Prosecutor v. Lubanga Dyilo, Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation () of the Regulations of the Court,  July  (ICC-/–/–) § 

Trial Chamber II Prosecutor v. Katanga/Chui, Order on the organization of common legal representation of victims,  July  (ICC-/–/–) § 

xviii

list of cases of the international criminal court Appeals Chamber

Prosecutor v. Bemba Gombo, Decision on the Request of the Prosecutor for Suspensive Effect,  September  (ICC-/–/–) §  Prosecutor v. Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on application for interim release”,  December  (ICC-/–/–), para. . § , , , ,  Prosecutor v. Bemba Gombo, Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa”,  December  (ICC /– /–-Red) § ,  Prosecutor v. Bemba Gombo, Reasons for the “Decision on the Participation of Victims in the Appeal against the ‘Decision on the Interim Release of JeanPierre Bemba Gombo’ ”,  October  (ICC-/–/–) §  Prosecutor v. Bemba Gombo, Reasons for the “Decision on the Participation of Victims in the Appeal against the “Decision on the Interim Release of JeanPierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa”,  October  (ICC-/–/–), see also, Dissenting Opinion by Judge Song,  November  (ICC-/–/–) §  Prosecutor v. Katanga, Decision on the “Prosecution’s Urgent Application for Extension of Time to File Document in Support of Appeal,  December  (ICC-/–/–) §  Prosecutor v. Katanga, Decision on the Prosecution’s request for Leave to Reply,  January  (ICC-/–/–) §  Prosecutor v. Katanga/Chui, Further directions on the submission of observations pursuant to article () of the Rome Statute and rule () of the Rules of Procedure and Evidence,  July  (ICC-/–/–) § 

list of cases of the international criminal court

xix

Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/– /–) § , , , , ,  Prosecutor v. Katanga/Chui, Judgment on the Appeal Against the Decision on Joinder rendered on  March  by the Pre-Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Chui Cases,  June  (ICC-/–/– ) §  Prosecutor v. Katanga/Chui, Judgment on the appeal of Mr Germain Katanga against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorization to Redact Witness Statements”,  May  (ICC-/–/–) § ,  Prosecutor v. Katanga/Chui, Judgment on the appeal of Mr Mathieu Ngudjolo against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses  and ”,  May  (ICC-/–/–) § ,  Prosecutor v. Katanga/Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of  June  on the Admissibility of the Case,  September  (ICC-/–/–) §  Prosecutor v. Katanga/Chui, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled “Decision on the Defence Request Concerning Languages”,  May  (ICC-/–/–) §  Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to redact Witnesses Statements”,  May  (ICC/–/–) § , , , ,  Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article () of the Statute and Rule  of the Rules” of Pre-Trial Chamber I,  November  (ICC-/–/–) § ,  Prosecutor v. Katanga/Chui, Reasons for the “Decision on the ‘Application for Extension of Time Limits Pursuant to Regulation  of the Regulations of the

xx

list of cases of the international criminal court

Court to Allow the Defence to Submit its Observations on the Prosecutor’s Appeal regarding the Decision on Evidentiary Scope of the Confirmation Hearing and Preventative Relocation’ ”,  June  (ICC-/–/–) §  Prosecutor v. Kony a.o., Decision of the Appeals Chamber on the Unsealing of Documents,  February  (ICC-/–/–), § , ,  Prosecutor v. Lubanga Dyilo Decision on the application by Counsel for Mr. Thomas Lubanga Dyilo to extend the time limit for the filing of the response to the Prosecutor’s document in support of the appeal,  July  (ICC-/– /–) §  Prosecutor v. Lubanga Dyilo Decision on the Request by Mr. Thomas Lubanga Dyilo for an Extension of Time,  October  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre-Trial Chamber / In the Alternative discontinuance of the appeal,  September  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo Decision on Thomas Lubanga Dyilo’s Brief relative to Discontinuance of Appeal  July  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo, Appeals Chamber’s Decision to Extend Time Limits for Defence Documents,  April  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a// to a// and a// concerning the “Directions and Decision of the Appeals Chamber” of  February,  June  (ICC-/–/–) § , , ,  Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber upon the Registrar’s Requests of  April ,  April  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo, Decision on the “Prosecutor’s Motion for Extensions of the Time and Page Limits”,  July  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo, Decision on the admissibility of the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la confirmation des charges” of  January ,  June  (ICC-/–/–) § , , 

list of cases of the international criminal court

xxi

Prosecutor v. Lubanga Dyilo, Decision on the appellant’s application for an extension of the time limit for the filing of the document in support of the appeal and order pursuant to regulation  of the Regulations of the Court,  May  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo, Decision on the participation of victims in the appeal,  August  (ICC-/–/–); Dissenting opinion of Judge Pikis,  August  (ICC-/–/–-Anx) § ,  Prosecutor v. Lubanga Dyilo, Decision on the Prosecutor’s “Application for Leave to Reply to ‘Conclusions de la défense en réponse au mémoire d’appel du Procureur’ ”,  September  (ICC-/–/–) § , ,  Prosecutor v. Lubanga Dyilo, Decision on the request of Mr. Thomas Lubanga Dyilo for suspensive effect of his appeal against the oral decision of Trial Chamber I of  January ,  April  (ICC-/–/–) and dissenting opinion of Judge Pikis,  May  (ICC-/–/–-Anx) §  Prosecutor v. Lubanga Dyilo, Decision on the request of the Prosecutor for suspensive effect of his appeal against the “Decision on the release of Thomas Lubanga Dyilo”,  July  (ICC-/–/–) §  Prosecutor v. Lubanga Dyilo, Decision on the requests of the Prosecutor and the Defence for suspensive effect of the appeals against Trial Chamber I’s Decision on Victim’s Participation of  January ,  May  (ICC-/–/– ) §  Prosecutor v. Lubanga Dyilo, Decision, in limine, on Victim Participation in the appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision entitled “Decision on Victims’ Participation”,  May  (ICC-/–/– ) §  Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–) § , , , , , , , ,  Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “Second

xxii

list of cases of the international criminal court

Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/–/–) § , , , , ,  Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “First Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/–/–) § , , , , ,  Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–) § , , , , , , , , ,  Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of nondisclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC-/–/–) § , , , , , , , , , ,  Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the release of Thomas Lubanga Dyilo”,  October  (ICC-/–/–) § ,  Prosecutor v. Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of  January ,  July  (ICC-/–/–) § , , ,  Prosecutor v. Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of  January  Partly Dissenting Opinion of Judge Philippe Kirsch,  July  (ICC-/–/–-Anx) §  Prosecutor v. Lubanga Dyilo, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule  () and () of the Rules of Procedure and Evidence”,  October  (ICC-/– /–) § , , , 

list of cases of the international criminal court

xxiii

Prosecutor v. Lubanga Dyilo, Reasons for Decision of the Appeals Chamber on the Defence Application “Demande de suspension de toute action ou procédure afin de permettre la désignation d’un nouveau Conseil de la Défense” filed on  February  issued on  February ,  March  (ICC-/–/– ) § , ,  Prosecutor v. Lubanga Dyilo, Reasons for the “Decision of the Appeals Chamber on the request of counsel to Mr. Thomas Lubanga Dyilo for modification of the time limit pursuant to regulation  of the Regulations of the Court of  February ” issued on  February ,  February  (ICC-/– /–) § ,  Prosecutor v. Lubanga Dyilo, Reasons for the Appeals Chamber’s Decision to Extend Time Limits for Defence Documents issued on  April ,  April  (ICC-/–/–) § ,  Prosecutor v. Thomas Lubanga Dyilo, Reasons for Decision of the Appeals Chamber on the Defence Application “Demande de suspension de toute action ou procédure afin de permettre la désignation d’un nouveau Conseil de la Défense” filed on  February  issued on  February ,  March  (ICC-/–/–) § , ,  Situation in Darfur, Sudan, Decision on Victims Participation in the appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December  and in the appeal of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December ,  June  (ICC-/–) §  Situation in Kenya, Request for authorisation of an investigation pursuant to Article ,  November  (ICC-/–) §  Situation in the Democratic Republic of the Congo, Decision on the Prosecution’s request for Leave to Reply,  January  (ICC-/–/–) §  Situation in the Democratic Republic of the Congo, Decision on the Unsealing of the Judgment of the Appeals Chamber issued on  July ,  September  (ICC-/–) § , , , , , ,  Situation in the Democratic Republic of the Congo, Decision on Victim Participation in the appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December  and in the appeals of the

xxiv

list of cases of the international criminal court

Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December ,  June  (ICC-/–) §  Situation in the Democratic Republic of the Congo, Decision on Victim Participation in the appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December  and in the appeals of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December ,  June  (ICC-/–) §  Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the Decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest,” Article , (ICC-/–  reclassified as public by ICC-/–-PUB-Exp) § , , , ,  Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC-/–) § , , , , , , , ,  Situation in the Democratic Republic of the Congo, Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of  December  and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of  December ,  December  (ICC-/–) § 

chapter one INTRODUCTION

I. The establishment of the International Criminal Court . The establishment of the International Criminal Court by the Rome Statute constitutes a milestone in the history of man. For the first time a court was established with jurisdiction over individuals across the world, responsible for crimes afflicting the core of humanity irrespective of race, nationality, residence or position. Countries that can legitimately assume jurisdiction for the trial of those accused of committing such offences are not freed from the obligation to bring them to justice. The International Criminal Court is there to see that they carry out this duty. And if they are unable or unwilling to do so the Court will assume the task. . The ICC is a multifaceted institution. Parallel to the judicial authorities, the Rome Statute makes provision for a prosecutorial authority cast as an independent organ of the Court, separate from the Judiciary and independent of any other authority, invested with power to investigate and bring those responsible for the commission of crimes, falling within the jurisdiction of the court, to justice, subject to the principle of complementarity. The jurisdiction of the Court as proclaimed in the Preamble to the Rome Statute and articulated in its provisions is complementary to national criminal jurisdictions. The two organs of the Court, other than the judiciary and the Office of the Prosecutor are the Presidency, endowed with ultimate administrative authority and other powers of a judicial or quasi-judicial nature and the Registry, the principle administrative authority servicing the Court. . Tracing the background to the genesis of the International Criminal Court is to a large extent tantamount to tracing the history of the world, turbulent as it has been, fraught with conflicts and crimes against humanity the consequences of which were exacerbated by technological advances and the emergence of weapons of mass destruction. . Law is at the nucleus of social organisation. Without law and mechanisms for its enforcement there can be no social cohesion. Law is the element and the



chapter one

force that binds individuals into the societal complex. Aristotle defined man as a political animal,1 a being with a natural tendency to cohabit and function with others for the fruition of human nature. Law is what weaves the fabric of society. . From early days, social intercourse and trade were not confined to citizens of the polis but extended to neighbouring cities, and, as the means of communication improved, so did contact expand on a wider plane. But as interests and pursuits of emerging states varied, conflicts often erupted between them, not infrequently resulting in warfare as a means of resolving them. The need for the establishment of rules to govern their relationship in the various spheres and walks of life, including warfare, was strongly felt. Here, we may trace the roots of the development of law transcending state boundaries. The code of rules expanded over the years, in order to regulate intercity and interstate relations over an ever-increasing range of subjects identified in time as the Law of Nations. The commitment to humanitarian ethics in antiquity is evidenced by the case of Arginusae in ancient Athens. Humanitarian obligations do not abate in time of war as the sequel to the sea battle at Arginusae (an island near which it was waged) demonstrates. The Athenian navy won a great battle at sea against Sparta with which it was engaged in war near the island of Arginusae. The victorious Athenian admirals at the sea battle were put on trial before an Athenian court for failing to come to the aid of those shipwrecked and also for failure to recover the bodies of dead sailors lying at sea. The accused were found guilty, condemned to death and executed.2 . With the rise of empire, city states and generally small states were enveloped in a broader mantle, that of vast organisations, limiting the opportunity of conflict between segments of the empire on the one hand, but having to address conflicts between groups of persons living within its boundaries on the other. Unjust and oppressive laws, serving, as a rule the interests of those in power, were a cause of suffering for sections of society seeking relief through the introduction of fairer laws to alleviate human suffering. Aristotle propounded

1

p. .

Aristotle, S. Everson (translator) Aristotle: The Politics and the Constitution of Athens (),

2 Naumahia Arginuson (Ναυμαχα Αργινουσν in greek) by Eleftherios Arg. Vourvahes. The trials of the Generals have been severiously criticised for failing to observe the requisites of due process. The criticism centres on the fact that they were tried by the City Assembly, (Ekklesia of the city) instead of the ordinary criminal court meeting at Heliea. Socratis, who was a member of the Assembly, disagreed with the process followed and sequential conviction.

introduction



equity,3 the transcendent principle of justice, as the means of remedying injustice defining epiky as reason stripped of human passion. It makes room for the rectification of legal norms by reference to the immanent laws of humanity. Theodor W. Adorno in his work on negative dialectics attributes to Aristotle “imperishable glory” (p.  of his book) for this contribution to justice, the evolution of the doctrine of equity-equitas deriving from the Greek word εικτης. To go to a judge, Aristotle remarks, is to go to justice for the ideal judge is sought to speak justice personified.4 The function of the ruler, as stated elsewhere,5 is to be the guardian of the law. The Stoics advocated life according to nature as definitive of the rules that should govern life in society, evolved in Roman times as the natural law. . The emergence of national states given formal recognition by the Treaty of Westphalia6 changed the scene in Europe. The term “national” in this context signifies homogeneity of identity and often creed, separating and distinguishing nationals from those belonging to other nations frequently referred to as “aliens”. The proposition may be ventured that national states erected new barriers between human estates. On the other hand, it energised the subjects of empires who shared common identity to seek their liberation from their masters by the establishment of their own states. . The identification of the principles and rules governing the conduct of nations with one another, especially when in adversity, and their spirited expression by the great Dutch jurist Hugo Grotius in  in his work “On the Laws of War and Peace”7 provided an impetus for the recognition, classification and refinement of the rules of international law. These rules had little impact on nations when their interests collided and less still did they stem the tendency of powerful nations to dominate weaker ones. . A consoling factor in the opposite direction was the agitation, especially in the th century, for the recognition of the Rights of Man,8 independently of nationality, race or creed. Colonisation, on the other hand, by European nations

Deriving from the Greek word eikotes (εικτης) that passed into Latin as aequitas, and in English “equity”. 4 Aristotle, Nichomachean Ethics, translated by H. Rackham, Book V, p. . 5 Ibid. p. . 6 , Treaty of Westphalia. 7 H. Grotius, Ivre belli ac pacis libri tres, first published in . 8 T. Paine Rights of Man (), a reply to Edmund Burke, Reflections on the Revolution in France. 3



chapter one

of countries beyond their continent and boundaries, created a new state of affairs that exploded in the th century, bringing misery and great loss of life in its wake. . The concert of Europe, the offspring of the Treaty of Vienna of ,9 witnessed the emergence of the contracting states as the guardians of order in Europe. This was short-lived as the interests of the overseers did not always coincide, putting them on a perilous course of conflict. The Franco-German war of  administered the death knell to the Accords between the signatories of the Vienna Treaty arousing humanity at the same time to the catastrophic effects of modern warfare. Gustav Monnier, the president of the Red Cross was the first to assert, in the aftermath of this war, the need for the establishment of an international criminal court to deal with what Caspar Bluntschli coined as “war crimes”.10 . The Brussels Declaration of  provided a comprehensive statement of the laws and customs of war that became in time the subject of review at the Hague Conference of .11 The conference claims paternity of the Permanent Court of Arbitration advocated by the English and American delegations to the conference. The American proposal for the establishment of a permanent international court put forward at the following Hague Conference of 12 met with opposition; but not for long. A Permanent Court of International Justice was set up after World War I. Provision for its establishment was made in the Covenant of the League of Nations at its inaugural session, held in . The Court was dissolved in  and replaced by the International Court of Justice under the Charter of the United Nations. The Hague Conference of , it must be added, completed the first codification of the laws and customs of war. . World War I witnessed the collapse of world order. International law was ignored and violated on a scale not seen before. Within the domain of the Ottoman Empire, civilians were displaced at will on a massive scale, reportedly to facilitate war action. The worst atrocity, unprecedented in the annals of the modern history, was the planned and ruthlessly executed elimination of a whole ethnic group, the Armenians living within the Ottoman empire; a pro-

9

Congress of Vienna,  November  to  June . See W.A. Schabas, An Introduction to the International Criminal Court, (rd ed., Cambridge University Press ), p. . 11 The First Peace Conference was held between  May and  July  and entered into force on  September, . 12 The conference was held from  June to  October . 10

introduction



cess subsequently dubbed by Raffael Lemkin,13 a distinguished jurist, as “genocide”.1415 The allies, entente cordiale, were unable to stop the sinister plan or do anything to halt its execution. They did, however, issue a declaration in 16 describing what was happening as a crime against humanity and civilisation, committing themselves not to let those responsible for the commission of the heinous crimes go unpunished, a promise never fulfilled. . The Treaty of Versailles,17 concluded in the aftermath of World War I, envisaged a special tribunal to try Kaiser Wilhelm II;18 a plan abandoned when the Netherlands, where the Kaiser had taken refuge, refused to surrender him. The Treaty also provided for the establishment of special tribunals to try the German military for war crimes.19 The relevant provisions of the Treaty were strongly opposed by Germany. Eventually a compromise was reached and German courts assumed the task of trying Germans who committed acts violating international law. The trials came to be known as the “Leipzig trials” named after the city of Germany where they were held. Only twelve persons were indicted, several of whom were acquitted. Commentators have labelled these trials as farcical, save for the case of the German naval officers who sank the British hospital ships “Dover Castle” and “Llandovery Castle” accused of gunning down the survivors. The accused were found guilty and sentenced to four years imprisonment,20 a punishment that begs belief, given the magnitude of the crimes. . The post-World War I era saw the establishment of the League of Nations in  cast as a guardian of peace and security worldwide. Alongside, the

13

R. Lemkin Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington DC: Carnegie Endowment for World Peace, ). 14 The word derives from the Greek word “γενοκτονα” (γνος + κτνω) that passed into Latin as “gens”, “genus” race nation, people, i.e. the destruction of the genus. 15 H. Morgenthau, Ambassador Morgenthau’s Story, (Garden City New York, ) V. Dadrian, Warrant for Genocide: The Key Elements of the Turko-Armenian Conflict (New Brunswick N.j./London, Transaction Publishers ), and R. Fisk The Great War for Civilisation. The Conquest of the Middle East (Harper Perennial ), T. Akçam A shameful act. The Armenian Genocide and the Question of Turkish Responsibility (The Zoryan Institute , ). 16  May  France, Great Britain and Russia Joint Declaration. 17  Treaty of Versailles for the Peace between the Allied and Associated Powers and Germany, T S . 18 See ibid. article . 19 See Treaty of Versailles, article  to . 20 See German War Trials, Reports of Proceedings Before the Supreme Court in Leipzig (London: His Majesty’s Stationery Office, ); see also James F. Willis, Prologue to Nuremberg: The Politics an Diplomacy of Punishing War Criminals of the First World War (Westport, CT: Greenwood Press, ,); Gerd Hankel, Die Leipziger Prozesse (Hamburg: Hamburger Edition, ).



chapter one

Permanent Court of International Justice was established, endowed with jurisdiction to resolve disputes between states provided the preconditions for the invocation of its jurisdiction were satisfied.21 . The prospect for the creation of an international criminal court was not abandoned. In  Baron Descamps recommended to the Advisory Committee of Jurists which framed the statute of the Permanent Court of International Justice, the creation of a High Court “to judge certain cases which the Assembly or Council of the League of Nations will submit to it by reason of their exceptional gravity with regard to international public order, as would be for instance crimes against the universal law of nations”.22 The Inter-Parliamentary Union at their Conferences in Bern and Washington in  and  advocated the establishment of a criminal chamber within the Permanent Court of International Justice with jurisdiction to try persons accused of international crimes.23 . Following the murder of King Alexander of Yugoslavia in , France proposed the establishment of an international criminal court in addition to the adoption of a convention to combat terrorism. A draft was prepared by the distinguished Romanian jurist Vespasian Pella which was submitted to the Committee of the League of Nations for Combating Terrorism. In  the Committee submitted to the League of Nations a draft code providing for the creation of an international criminal court. The draft convention with minor amendments was adopted by the  Intergovernmental Conference of Geneva.24 Thirteen states subscribed to it. The events leading to World War II frustrated its enforcement. . World War II erupted on the st September  with the invasion of Poland by Nazi Germany after a prior secret agreement with the Soviet Union to partition the invaded country by force. Feeling his eastern flank secure, Hitler turned to wage war against practically every other state of Europe, not allied to Germany, and European colonies in North Africa. He overran nearly the whole of Europe before turning eastwards to invade the Soviet Union. The Nazi regime 21

See supra. Procés verbaux of the Proceedings of the Committee of International Jurists, Second Meeting (Private), held at the Peace Palace, The Hague,  June ; Annex No. ; available at: http: // www.worldcourts.com / pcij / eng / documents / .._proces_verbaux / .. / index.htm, p. . 23 See N.H.B. Jorgenson, The responsibility of States for international crimes, (Oxford Reprint ), p. . 24 Convention for the Creation of an International Criminal Court, League of Nations OJ Spec.Supp.No.  (), L N Doc. C. (I).M.(I)..V(). 22

introduction



brought human catastrophe and caused immense material loss in the occupied areas such that the continent had not witnessed before. Especially abhorrent was the treatment of people of Jewish origin, residing in Germany and occupied countries. Initially they were deprived of their citizenship, then of their right to work in several spheres of life and sequentially their liberty, before Hitler and his Nazi entourage decided upon what they labelled the “final solution”, i.e. the physical extermination of every person of Jewish origin within their reach. The plan was carried out ruthlessly, resulting in the murder of about six million people of Jewish origin coming to be known as the “holocaust”.25 Inhabitants of the occupied areas, other than Jews, were also murdered on a large scale and subjected to unimaginable acts of depravity; many were forced to flee their homes creating room for German territorial expansion whereas others were enslaved in labour camps that became notorious for the cruelty of those running them. Human existence was debased and the dignity of man was torn to pieces. . The German allies in the Far East, the Japanese, committed untold of brutalities against the people in the areas they occupied before their defeat, causing immense human loss and suffering. . World War II provided firsthand experience of the infinite capacity of man for evil when law breaks down, when the word of rulers becomes a substitute for law. . The London Agreement26 concluded amongst the victorious allies on the th of August  provided for the establishment of a military tribunal to be convened at Nuremberg (Germany) to try the leaders of the Nazi regime for war crimes, crimes against peace and crimes against humanity. Attached to the agreement was the Charter of the International Military Tribunal, known as the “Nuremberg Charter”.27 Significantly, the Charter provided that the official position of those to be prosecuted afforded them neither immunity nor mitigation of punishment. Furthermore, superior orders would be no defence. What they might provide, in appropriate circumstances, was mitigation.

25

Deriving from the Greek word holokauston, meaning the burning of the whole.  August  London Agreement The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT)  U.N.T.S . 27 See ibid. Annex ()  UNTS . 26



chapter one

. The military tribunal was composed of four judges emanating from each one of the four allies, namely France, the Soviet Union, the United Kingdom and the USA. The ring leaders of the Nazi regime were prosecuted before the Nuremberg tribunal. By Control Council Law 28 military tribunals were established by the four occupying powers in their respective regions with jurisdiction to try persons accused of offences within the ambit of the Nuremberg Charter. After the end of occupation, jurisdiction to that end was assumed by German courts and many accused of Nazi atrocities were prosecuted before them, convicted and punished.29 . Criticisms of the Nuremberg Charter, on grounds of criminalising conduct ex post facto, were answered by reminding that the crimes, the subject-matter of the Charter involved in essence conduct criminalised by The Hague Conventions and the Kellogg-Briand Pact (),30 criminalising acts directed against peace. . The Tokyo Tribunal was set up the year following the establishment of the Nuremberg tribunal, in , its Charter being modelled on the corresponding provisions of that of the Nuremberg Tribunal. The membership of the second international criminal tribunal was wider than that of the first. It included not only judges from the four principal allies but from every other country with which Japan was at war or whose territory Japan attacked namely, Australia, Canada, China, India, the Netherlands, the Philippines and New Zealand. . The establishment of the two international criminal tribunals and especially the confinement of their jurisdiction to crimes committed by the vanquished came under criticism, branded as instruments of “victor’s justice”. The criticism is not without merit. The allies too committed crimes during the war punishable under the Charters. Amongst them one may catalogue the Soviet invasion of Poland, displacement of populations during the war and the murder of the Polish officers who took sanctuary in the Soviet Union, the bombing of Dresden by the British when the city was defenceless, leaving behind thousands of dead and injured civilians; and more lethal still, the dropping by the USA of two atom bombs on Hiroshima and Nagasaki. On the other hand, one cannot deny that the Nuremberg Tribunal, be it within its limited jurisdictional mandate, 28

 December  Control Council No.  Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Official Gazette Control Council for Germany No. ,  January , pp.  et seq. 29 See A. Rückerl, NS-Verbrechen vor Gericht (nd ed., ), pp.  et seq. 30  August  Kellogg-Briand Pact, Treaty between the United States and other Powers providing for the renunciation of war as an instrument of national policy.

introduction



carried out its functions fairly with due commitment to its mission. The crimes within its material jurisdiction were viewed in their proper perspective in light of their nature and implications for humanity. International humanitarian law was reinforced. The Nuremberg Tribunal is credited with recognising genocide as a crime against humanity and acknowledging aggression in the form of violation of the territorial integrity of another state as a crime under customary international law. . The establishment of the United Nations after World War II in  renewed the hope of humanity for lasting peace and security, declaring, in its Charter, the will of peoples for a better world. The Preamble to the Charter recounts the untold of sufferings of mankind during the two world wars and reaffirms faith in fundamental human rights and commitment to the sustenance of justice and respect for international law.31 . The Universal Declaration of Human Rights adopted by the General Assembly on th December  is another landmark in the history of man, one that has since influenced developments in the law worldwide. Regional conventions incorporating the salient aspects of the Universal Declaration that followed earmarked the legal domain in many parts of the world.32 The Convention on the Prevention and Punishment of the Crime of Genocide33 adopted by the 31 The Preamble reads: “We the Peoples of the United Nations Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, And for these Ends to practise tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, Have Resolved to Combine our Efforts to Accomplish these Aims accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.” 32 See for example  November  European Convention for the Protection of Human Rights and Fundamental Freedoms,  United Nations Treaty Series  et seq., registration no.  () and protocols thereto;  November  American Convention on Human Rights “Pact of San José, Costa Rica”, entered into force on  July ,  United Nations Treaty Series ;  June  African Charter on Human and Peoples Rights, entered into force on  October ,  United Nations Treaty Series . 33  Convention on the Prevention and Punishment of the Crime of Genocide,  UNTS ; entered into force on  January .



chapter one

General Assembly of the United Nations on th December  defines the crime of genocide comprehensively, a definition adopted in due course by the Rome Statute. As stipulated in article  of the Genocide Convention, persons accused of genocidal acts are liable to be prosecuted before the courts of the country in the territory of which the crime was committed or “by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted this jurisdiction.” The establishment of an international criminal court is envisioned as a possibility and began to attract the interest of the General Assembly as from the year . . In the same year, the General Assembly requested the International Law Commission, a body of experts, to prepare a draft statute for the establishment of an international criminal court. Sequentially, in , a committee made up of representatives of seventeen states was entrusted with the task of preparing a draft statute for the creation of an international criminal court.34 A proposal to that end was submitted to the General Assembly by the International Law Commission in .35 The whole effort was abandoned as the Cold War intensified, overshadowing activity directed towards the development of settled humanitarian legal standards. The matter was taken up anew by the General Assembly in , requesting the International Law Commission to revive efforts for the preparation of a draft statute for the establishment of an international criminal court.36 The Committee reported back in . . Meantime, another movement for the establishment of an international criminal court was initiated in  inspired by the need to combat rampant crime that bedevilled the world, prompted inter alia by the need to stem the proliferation of drugs.37 In  the Law Commission submitted to the General Assembly its draft code for the creation of an international criminal court. In November  the General Assembly of the United Nations issued a directive to the International Law Commission (ILC) to draft a statute for an international criminal court “as a matter of priority”. In response the ILC submitted a draft statute in . Following the comments of states, the ILC set up a working group to prepare a redraft of the statute, the text of which was finalised by an ad hoc committee, with the participation of states, submitted to 34 See UN Doc. A/ (), Report of the Committee on International Criminal Court Jurisdiction. 35 See UN Doc. A/ (), Report of the Committee on International Criminal Court Jurisdiction. 36 UN Doc. A/Res// ( December ), Draft Code of Offences Against the Peace and Security of Mankind. 37 UN Doc A/C.//L. ( November ).

introduction



the th session of the General Assembly. There followed the establishment of a Preparatory Committee in November  charged with responsibility for the preparation of a “consolidated text”, laying the ground for “the next step towards consideration by a diplomatic conference of plenipotentiaries”. The final report of the Preparatory Committee, including a consolidated text of the Statute, was submitted to the st session of the General Assembly where it was decided to convene a diplomatic conference of plenipotentiaries in . The conference was held in Rome. It began its work on  June  and ended on  July  with the adoption of the Rome Statute. . One hundred and fourty-eight states took part at the conference. When the Statute was finalised and its adoption was put to the vote a hundred and twenty countries voted for, seven states sided against and twenty-one abstained. Thereafter one hundred and thirty-nine states signed the Statute including the USA, albeit a signature that was subsequently withdrawn by Mr Bush who succeeded Mr Clinton in the office of President of the United States. . In accordance with its terms, the Statute came into force after its ratification by sixty states, something accomplished by the st July . Since, fiftythree additional countries have ratified the Statute bringing the total of States Parties to the Rome Statute to one hundred and thirteen.38 The operational framework of the ICC was completed by the adoption of the Rules of Procedure and Evidence, envisaged by article  of the Statute during the First Assembly of Member States in .39 The Elements of Crimes,40 envisioned by article  of the Statute as an aid to the interpretation and the application of articles ,  and  of the Statute, were also approved by the Assembly of States Parties in . The Regulations of the Court, contemplated by article  of the Statute, regulatory of the routine functioning of the Court, were adopted by the judges of the Court on  May  and came into force six months later in the absence of objections from a “majority of States Parties”.41

38 The last ratifications of the Rome Statute took place on  August , with the Seychelles and Saint Lucia becoming the th and th member states respectively on  November . 39 Held – September  (ICC-ASP//, part II-A). 40 Adopted on  September  (ICC-ASP//, part II-B). 41 See Article  of the Statute.



chapter one II. The Preamble to the Rome Statute The States Parties to this Statute, Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time, Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity, Recognizing that such grave crimes threaten the peace, security and well-being of the world, Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation, Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State, Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole, Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions, Resolved to guarantee lasting respect for and the enforcement of international justice, Have agreed as follows

. The Preamble identifies in eleven paragraphs the reasons that led to the creation of an international criminal court and the objectives sought to be achieved by its establishment. The common nature of man and aspirations bonding humanity and the shattering of human societies by the tragic and scarring events of the th century, brought to the surface the vulnerability of man to serious crimes apt to tear the fabric of mankind. The foremost

introduction



objective of the Statute can be identified as the wish to institutionalise justice on the world plane in the interests of humanity. The International Criminal Court is meant to shield man from the worst side of human nature finding expression in institutions cultivating selfishness, greed and hatred. The penal measures that the Court may take are depicted as the means to end impunity of the perpetrators of crimes offending the core of humanity and, through fear of punishment, to deter potential culprits. The first five paragraphs of the Preamble disclose the reasons necessitating the creation of an international criminal court for the good of humanity. . States are not relieved of the duty to prosecute those responsible for crimes within the jurisdiction of the ICC, committed on their territory, but are dutybound to do so.42 In paragraph  of the Preamble, it is clarified that the jurisdiction of the ICC is complementary to that of states. The jurisdiction of the ICC is not intended to supplant national jurisdictions but to ensure that their jurisdiction is exercised effectively. If not, jurisdiction for the prosecution and trial of those accused for crimes within the jurisdiction of the Court will be assumed by organs of the ICC, the Office of the Prosecutor and the judicial branches of the Court. . In paragraph , States reaffirm their commitment to the purposes and principles of the Charter of the United Nations binding them to refrain from the threat of use or the use of force against the territorial integrity or political independence of any state and refrain from acting in any manner inconsistent with the purposes of the United Nations. It is worth noting that the commitment extends to the “political independence” of a state underlining the disapproval of any interference in the domestic affairs of another country, a fact emphasised in the paragraph of the Preamble following (paragraph ). Not only states are prohibited from threatening or using force but nothing in the Statute as emphasised in paragraph  should be taken as “authorising” any State Party to intervene in an armed conflict or the internal affairs of any state. The essence of paragraphs  and  is that no State Party should resolve by unilateral means differences with any other country. . Determined to achieve the proclaimed objectives, parties to the Statute assert, in paragraph , their determination to establish an international criminal court “in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a

42

See para.  of the Preamble.



chapter one

whole.” The Court is postulated to be “independent” and “permanent”. Independence signifies the autonomy of the Court and its separateness from every external authority or institution. Permanence is an attribute of a court of law with a diachronic mandate to sustain the law and do justice. And inasmuch as law is the foundation stone of human societies, the Court is premised to be of lasting duration. The association of the ICC with the United Nations underscores its nexus with the objectives of the Charter of the United Nations, peace, security and justice but does not institutionally connect the Court with it. . The jurisdiction of the Court is confined to the most serious crimes of concern to the international community. Gravity as such is not the determinative consideration. The denominator is the nature of the crime and in addition thereto international concern about it. And as the concern of the international community about crime cannot be static, new crimes may be added to the list of offences within the jurisdiction of the Court by an amendment of the Statute. . The final paragraph of the Preamble records the resolution of the makers of the Statute “to guarantee lasting respect for and the enforcement of international justice”. Indeed, the theme of the Statute is the establishment of judicial mechanism to do justice worldwide. . Although the Preamble is part of the Statute, it is not of itself definitive of the measures to be taken to give effect to the ends outlined therein. This is achieved by the several provisions of the Statute seen in context. The interpretational usefulness of the Preamble lies in the delineation of the background to the Statute and the objectives sought to be achieved by its enactment. Article . of the Vienna Convention on the Law of Treaties43 includes the Preamble as an aid to the interpretation of a treaty and the identification of its purpose. It reads: The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

The International Court of Justice has, on a number of occasions, had regard to the Preamble of a treaty as an aid in the determination of its objects and purposes.44

43

 May  Vienna Convention on the Law of Treaties,  United Nations Treaty Series , (entered into force on  January ). 44 See Permanent Court of International Justice Competence of the ILO to Regulate Agricultural Labour Case, PCIJ (), Series B, No. , p. . ICJ Rights of the United States Nationals in Morocco, Judgement of  August , ICJ Rep (), pp. ; see also Oppenheim’s International Law, (th ed. Vol. , ) p. .

introduction



. The following extract from the decision of the Appeals Chamber of the ICC in the case “Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March , Decision Denying Leave to Appeal”, sheds light on the relevance of the Preamble as a guide to the interpretation of an international treaty. The subject under appeal was the interpretation of the provisions of the Statute pertinent to the determination of the appeal. [ . . . ] The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose.45 The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety.46 Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty.47

The Preamble can neither override nor put a gloss on the meaning of statutory provisions other than the one warranted by their wording. Its interpretative value lies in identifying the wider objectives of a treaty and the drawing of its parameters.

III. The Rules of Procedure and Evidence . The Rome Statute is supplemented by the Rules of Procedure and Evidence, an enactment designed to establish the procedural framework, the adjectival law, within which proceedings before the Court should be initiated and conducted. Moreover, it regulates matters pertaining to the reception of evidence and proof of matters at issue. Article  makes provision for the adoption of such a code by a two-thirds majority of the members of the Assembly of States Parties. Other than what may be inferred from the descriptive name of the subject matter of the Rules, no indication is provided by article  about their content. Reference to the Rules is made in other articles of the Statute either correlating their application to the Rules of Procedure and Evidence or

45

See also International Court of Justice, Case concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgement of  February , para. , International Court of Justice Case concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v Bahrain), Judgement of  February , para. . 46 See  Vienna Convention on the Law of Treaties article .. 47 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of the Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July , (ICC-/–), para. .



chapter one

qualifying their application by reference thereto.48 The only proviso respecting the content of the Rules is that they must not conflict with the Statute (article .). The same applies to amendments effected thereto that can have no retrospective effect (article .). In the event of conflict between the Rules and the Statute, the latter shall prevail (article .). . The content of the Rules is not foreseen or adumbrated by article . Procedural rules, of their nature, are directed towards regulating the exercise of rights, the manner of the discharge of duties and, in the event of contest, judicial proceedings associated therewith; in other words, the mechanics of seeking and doing justice. They cannot create rights nor impose obligations outside the ambit of the Statute. The Rules must be streamlined along the edicts of the Statute providing the means for their assertion and application. The absence of conflict denotes the absence of contradiction, that is, the absence of antinomy to the Statute. Procedural rules must conform to the spirit and letter of the Statute and must, moreover, give expression to matters specifically delegated by the Statute to be addressed and adjusted by the Rules of Procedure and Evidence. The body responsible for the promulgation of the Rules of Procedure and Evidence is the Assembly of States Parties. . Amendments to the Rules may be proposed by “(a) Any State Party (b) The judges acting by an absolute majority; or (c) The Prosecutor” (article .). As in the case of the adoption of the Rules of Procedure and Evidence, an amendment thereto must also be approved by a two-thirds majority of the Assembly of States Parties. . In urgent cases where the Rules fail to make provision on a subject that could be expected to be covered by the Rules of Procedure and Evidence, the judges of the Court, by a two-thirds majority, may draw up a provisional rule or provisional rules that will find application until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties (article .). . The Rules make extensive provision about various facets of the administration of justice from the initiation of an investigation to the execution of a judgment or sentence. They are divided into twelve chapters, containing two hundred and twenty five rules. 48 Article . provides that decisions of the Assembly on all matters of substance must be taken by a two thirds majority whereas decisions on matters of procedure must be taken by a simple majority by states parties present and voting.

introduction



. The interpretation of the Rules of Procedure and Evidence and the determination of the range of their application are subject to the same rules as the Statute. The two are in pari materia. They were enacted by the same body and serve the same purpose designed to enable the Court to carry out its functions and fulfil its mission. Article  of the Vienna Convention of the Law of Treaties49  provides that a subsequent agreement between the same parties to a treaty on the application of its provisions shall be taken into account in interpreting its terms.

IV. Evidence . The principles governing the submission of evidence are prescribed by article  of the Statute. Provision is made therein that, before testifying, a witness must give an undertaking that the evidence to be given shall be true (article .).50 Evidence is tendered orally, subject to exceptions provided for in article  of the Statute. The same article makes provision for measures deemed necessary for the protection of victims and witnesses and their participation in judicial proceedings, while the Rules regulate matters affecting the admission of evidence including agreements between the Prosecutor and the Defence as to uncontested facts (see rule ). The agreement binds the court, unless the Chamber is of the view that a complete presentation of the facts by the witnesses testifying to them is warranted by the interests of justice. Article . introduces a further exception to the oral testimony rule, by allowing, in specified circumstances, the adduction of evidence by means of video or audio technology provided such measures are not prejudicial to or inconsistent with the rights of the accused. The same subject is addressed in rules  and . Section I of Chapter  of the Rules deals with the subject of submission of evidence. . Evidence is acceptable if relevant to the subject matter of the proceedings and admissible. Logic is the measure of relevance. Relevant is evidence that tends to inform on or illuminate one or more facts at issue. Admissibility has to do with the quality of the evidence, importing power to reject evidence otherwise relevant. Article . links both relevance and admissibility to the probative value of the evidence and the prejudicial effect it may have on a fair trial or the fair evaluation of the testimony of a witness in accordance with the Rules of Procedure and Evidence. The probative value of evidence is 49 50

See supra note . See rule  and also rules  and .



chapter one

juxtaposed to the prejudice it may occasion and, sequentially, the fairness of the proceedings. The poor quality of testimony may neutralise its evidential value. . Article . renders evidence obtained in violation of recognised human rights inadmissible if a) the violation casts substantial doubt on the reliability of the evidence; or b) the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings. The submission of evidence is in the hands of the parties subject to the power of the court in any one case “to request the submission of all evidence that it considers necessary for the determination of the truth” (article .).

V. Regulations of the Court . Article  binds the judges of the Court to evolve and adopt Regulations of the Court necessary for its routine functioning to be adopted by an absolute majority of the judges. The Regulations must be established in accordance with the Statute and the Rules of Procedure and Evidence. Regulation . gives effect to this provision warranting that the Regulations “shall be read subject to the Statute and the Rules”. Regulations of the Court also known in some jurisdictions as Rules of Court are, as a rule, made by the Judiciary, the body best equipped to identify the needs for the proper administration of justice. Practice Directions issued by the judiciary often provide a supplement to the Rules of Court filling gaps therein. . The Regulations of the Court follow closely the order and structure of the Rules of Procedure and Evidence. They address issues relevant to the invocation of the jurisdiction of the Court, the form and content of procedural steps and the submission of evidence. In other words, they regulate the exercise of rights given by law, responses thereto and residual powers of the court to take up a matter on its own accord. . The following extract from a decision of the Appeals Chamber explores the implications of article . of the Statute on the interpretation and application of the Rules of Procedure and Evidence and the Regulations of the Court: The Rules of Procedure and Evidence form part of the applicable law under the Statute (see article  () of the Statute) and as such must be construed in accordance with the provisions of article  (); and in the event of conflict with the Statute the latter shall prevail (See article  () of the Statute). Furthermore, the Regulations of the Court must be evolved “in accordance with the Statute and the Rules of Procedure and Evidence” (Article  () of the Statute) and

introduction



must be “read subject to the Statute and the Rules” as laid down in regulation () of the Regulations of the Court. Evidently, they must conform to the Statute. Article () of the Statute is an integral part of the Statute applicable in the case of the Regulations of the Court too. The provisions of article  () of the Statute govern the interpretation and application of both the Rules of Procedure and Evidence and the Regulations of the Court.51

51 Prosecutor v Lubanga Dyilo, Decision on the Prosecutor’s “Application for Leave to Reply to ‘Conclusions de la défense en réponse au mémoire d’appel du Procureur’ ”,  September  (ICC-/–/–), p. .

chapter two STATUS, COMPLEXION AND INHERENT POWERS OF THE INTERNATIONAL CRIMINAL COURT

. Article  stipulates that the International Criminal Court shall be “a permanent institution”. Its mandate is not limited nor is its jurisdiction territorially confined. The Court is vested with jurisdiction over persons committing the “most serious crimes of international concern, as referred to in this Statute”. The subjects of the jurisdiction of the Court are individuals, of whatever rank or position in society. The material jurisdiction of the Court is confined to serious crimes of international concern, those “referred to in the Statute”. The meaning of “refer” and its derivatives is “trace”,52 “mention”.53 The crimes identified in article  are those enumerated in article .54 These are the crimes that scourged humanity during the two world wars of the th century and wars of lesser magnitude; the crimes that hurt humanity the most and defaced civilization. Article  declares, as does paragraph  of the Preamble, that the jurisdiction of the Court shall be “complementary to national criminal jurisdictions”. Lastly, article  states that a) the jurisdiction and b) the functioning of the ICC “shall be governed by the provisions of the Statute”. The compass of the jurisdiction of the Court and the framework within which it can function, must be sought in the Statute, the charter of the International Criminal Court. . The International Criminal Court is collectively identified in article  as “the Court” encompassing all its organs enumerated in article .55 . The word “Court” is used throughout the Statute as signifying the vestee of judicial, prosecutorial or administrative functions of the International Criminal Court. The word “court”, in its ordinary connotation and usage, denotes a court of law. To which branch of the ICC the word “Court” refers to in the various

52 Shorter Oxford English Dictionary on Historical Principles, (th ed., Vol.  Oxford University Press) p. . 53 Concise Oxford English Dictionary, (th ed., Oxford University Press) pp. –. 54 a) the crime of genocide, b) the crimes against humanity, c) war crimes d) the crime of aggression. 55 a) the Presidency, b) an Appeals Division, a Trial Division and a Pre-Trial Division, c) the Office of the Prosecutor, d) the Registry.



chapter two

articles of the Statute must be deduced from the wording and the context of the legislative provision where it appears. Depending on the context “the Court” may signify the ICC as an indivisible entity. . Article  endowes the Court with international legal personality, an institution of international order associated with the promotion and fulfillment of the objects and purposes of the Statute. It further affirms, in paragraph , that the Court shall “have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes”. These are, first and foremost, the powers that a court of law must necessarily possess in order to carry out its judicial mission. Such powers are known as the “inherent powers” of a court of law imported by the very notion of a body trusted to dispense justice. The judicial power must, by definition, be autonomous in its domain, separate from any other power or authority, and sovereign in the sphere of its jurisdiction. Inherent may be depicted as those powers that are indespensable for a court of law to carry out its duties. The word “Court” in this article is not confined to the judicial branch of the ICC but embraces all its branches, the Office of the Prosecutor, the Presidency and the Registry. Each organ in its domain, is vested by virtue of the provisions of article  with such power, in addition to the powers specifically conferred upon it, which is indespensable for carrying out its mandate. . In accordance with article .: The Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.

This provision in essence extends the territorial jurisdiction of the Court to the expanse of States Parties and, by agreement, to any other State. It is submitted that this provision does not delimit the territorial jurisdiction of the Court with respect to Security Council referrals (article .b) that extend the jurisdiction of the Court globally. . The Statute, the Rules of Procedure and Evidence and the Regulations of the Court establish the legal framework within which the Court must function and the adjectival law governing its operation. Article  is a residual provision enabling the Court to assume powers that it ought, by its nature, to enjoy and for which no provision is made in the Statute and instruments with which it is endowed. Article . may be invoked to gauge gaps, the filling of which is essential for the carrying out of the judicial mission. It emerges from the judgment of the Appeals Chamber in “Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction

status, complexion and inherent powers



of the Court pursuant to article ()(a) of the Statute of  October ”,56 that for a power to be assumed by the judiciary pursuant to article ., it must be of a character indispensable for the performance of the duties of the Court; “an inseverable attribute of the judicial power”. The Appeals Chamber was concerned to decide whether power inheres in or resides with the Appeals Chamber to stop proceedings for abuse of process. A negative answer was given to the question as such power is not an inseverable element of the due execution of its duties. The Appeals Chamber added that it “[did] not examine the implications of article () of the Statute for under no circumstances can it be construed as providing the power to stay proceedings for abuse of process.”57 . Article  provides that the Court must be brought into relationship with the United Nations by an agreement to that end between the Assembly of States Parties and the United Nations. Several articles of the Statute refer to the Secretary General trusting or empowering him to convene a) a conference to examine amendments to the Statute after the lapse of seven years from its entry into force (article ), b) a conference to examine proposals for amendments to the Statute of an institutional nature (article ) and c) to circulate to members amendments adopted at a meeting of the Assembly of States Parties or at the Review Conference (article ).58 Article  acknowledges power to the Security Council, in exercise of its powers under Chapter VII of the Charter of the United Nations, with regard to threats to peace, breaches of peace and acts of aggression, to refer to the Prosecutor a situation in which one or more crimes within the purview of the Court have been committed. . The agreement envisaged by article  between the United Nations and the Assembly of State Parties was concluded on  October .59 It addresses matters of common interest to the Contracting Parties affecting cooperation and exchange of information in areas of mutual concern.

56 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Tyilo against the Decsion on the Defence Challenge to the Jurisdiction of the Court pursuant to article ()(a) of the Statute of  October ,  December  (ICC-/–/–). 57 Ibid., p. . 58 To be found in articles , . and , , , .. and  (first two sentences), . to , .  and , , ,  and . 59 Negotiated Relationship Agreement between the International Criminal Court and the United Nations, ICC-ASP//Res. , adoption on  October , entry into force on  October .



chapter two

. Article . provides for the establishment of the seat of the Court at The Hague in The Netherlands. The Hague is by and large the seat of the international Judiciary. It was the seat of the International Permanent Court of Justice subsequenty becoming the seat of its successor, the International Court of Justice. Moreover it is the seat of the Permanent Court of Arbitration and the International Criminal Tribunal for the Former Yugoslavia. Article . envisages the execution of a headquarters agreement between the International Criminal Court and the host State, duly concluded between the parties in . The agreement was ratified by the Dutch Parliament and promulgated on  March .60 . The agreement implements the provisions of the Statute relevant to the privileges and immunities of the International Criminal Court. The privileges and immunities of Judges, the Prosecutor, the Deputy Prosecutor, the Registrar and Deputy Registrar and the personnel of the Court are prescribed in Article  of the Statute.61 The same article makes provision for the treatment to be accorded to counsel, experts, witnesses and any other person required to be present at the seat of the Court. Other matters dealt with by the headquarters agreement relate to the status of the Court, waiver of privileges and immunities, cooperation between the Court and the host State and detention facilities. . Article . lays down that the “Court” may sit in a place other than the seat of the Court “whenever it considers it desirable, as provided in this Statute”. “Court” in this context signifies the court in the discharge of its judicial duties, an interpretation reinforced by article  of the Statute providing: Unless otherwise decided, the place of the trial shall be the seat of the Court.

. Juxtaposing article . and article , one may infer that a) only the trial of a case may be held, wholly or in part, at a place other than the seat of the Court as opposed to any other part of the judicial process, b) the test to be applied in determining whether the trial should be held elsewhere than at the seat of the Court is whether such a course is desirable, meaning, in the interests of justice. . Rule  establishes the prerequisites for holding the trial elsewhere than at the seat of the Court and the course to be followed in reaching such a decision. Paragraph  provides: 60

See Headquarter Agreement between the International Criminal Court and the Host State, ICC-BD/--, adopted on  June , entered into force on  March . 61 See also Agreement on the Privileges and Immunities of the ICC, ICC-ASP//, adopted on  September , entered into force on  July .

status, complexion and inherent powers



In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State.

. The desirability of holding proceedings at a place other than the seat of the Court is determined, as one might expect, by the interests of justice. The word “Court” in this context cannot be construed as meaning any organ of the Court other than the Judiciary. The body best suited to determine where the interests of justice lie is the Trial Court. It has knowledge of the evidence to be adduced, the location where the witnesses reside and the need arising for their protection on account of evidence given or to be given before the court. Sub-rules  and  of rule  do not render the trial court the arbiter of where the trial should be held. They provide that a decision as to where the trial should be held may be taken “at any time after the initiation of an investigation”, on the application of either the Prosecutor, or the Defence or upon the recommendation of the “majority of the judges of the Court”. Article . empowers the Presidency to constitute the trial chamber that shall try a case after the confirmation of charges.62 Necessarily then, any decision for a change of the venue of the trial before the constitution of the trial chamber must be taken by a body other than the trial court. The meaning to be attached to the word “Court” in the context of rule . raises a perplexing question. It may mean either the PreTrial Chamber, the Trial Chamber or the totality of the judges of the Court. Reference to the “majority of judges of the Court” lends support to the view that the makers had in mind the majority of the entirety of the judges of the ICC. Ordinarily, we would not refer to a decision of a judicial Chamber independently of whether it was taken unanimously or by a majority. Also, it is unusual for a court in the exercise of its duties to recommend the course that the judicial process should follow and not determine it. We may therefore assume that the above reference to the majority of the judges of the Court was a reference to the totality of the judges of the Court and not to the majority of the judges of any Chamber. Against this, one may argue that it is unlikely to have been in the contemplation of the legislators to assign a question concerning the evaluation of the interests of justice in a particular judicial cause to anybody other than a judicial Chamber dealing with a cause or matter, the body best suited to evaluate the interests of justice in any particular case. Nevertheless, the view that the Court in the context under consideration denotes the judges of the Court in their totality as the body in question is reinforced by sub-rule  of rule  laying down that a decision entailing a change of the seat of trial shall “be taken by the judges, in plenary session, by a two-thirds majority”.

62

See also rule .



chapter two

. Rule  distinguishes between an application and a recommendation for a change of venue. The recommending body is the majority of the judges of the “Court”. Does “Court” signify a Chamber dealing with an application for a change of venue or does it signify a Chamber judicially seized of a case with the recommendation coming from the majority of the judges composing it? The time at which an application for a change of venue may be made i.e. after initiation of an investigation, before the mounting of a prosecution, supports the former. Rule . provides that before a decision is taken, with regard to the holding of a trial the Presidency shall “consult the State where the Court intends to seat”. Seemingly, the Presidency must, after an application or a recommendation for a change of venue, consult with the State where it is suggested that the trial should be held before a final decision is taken at a plennary session of judges.

chapter three COMPOSITION OF THE COURT

I. Introduction . The International Criminal Court is a multifaceted institution. It embraces within its fold the judicial, prosecutorial and administrative authorities of an institution trusted to bring to justice and try persons responsible for the heinous crimes within the jurisdiction of the Court. The judicial and prosecutorial branches of the Court are institutionally separate and functionally distinct while the Registry is made responsible “for the non-judicial aspects of the administration and servicing of the Court”.63 The Registry’s domain is charted “without prejudice to the functions and powers of the Prosecutor in accordance with article ”.64 The administration of the Office of the Prosecutor is under the management and control of the Prosecutor including the employment of staff.65 Thus, there is a dual administrative structure within the framework of the International Criminal Court. . There are areas of mutual concern to the Registry and the Office of the Prosecutor.66 Mechanism had to be devised for coordination of action of the two organs of the Court. Regulation  makes provision for the establishment of a Coordination Council made up of the President, representing the Presidency, the Prosecutor, representing the Office of the Prosecutor and the Registrar representing the Registry. . The investigatory and prosecutorial power is conferred exclusively upon the Office of the Prosecutor.67 The Registry provides par excellence the administrative infrastructure of the Judiciary.

63 64 65 66 67

Article .. Article .. See articles . and . See e.g. rule . See article ..



chapter three

. The Presidency, comprised of the President of the Court, the First and Second Vice Presidents,68 is another organ of the Court with varied powers; some of an administrative, others of a judicial or quasi-judicial nature and others still of a ceremonial character. The judicial functions of the Court are carried out in each division by Chambers notably the a) Appeals Chamber, b) Trial Chambers and c) Pre-Trial Chambers. . The Presidency, the judicial divisions of the Court (Appeals Division, Trial Division and Pre-Trial Division), the Office of the Prosecutor and the Registry are identified in article  as the four organs of the Court. The judicial divisions and the Presidency are staffed by the judges of the Court. Not all the powers of the Court are vested in the four organs. There is yet another body composed of the plenitude of the judges of the ICC, namely, judges in plenary session. The functioning of judges in plenum is regulated by the provisions of rule . Amongst its powers, are the assignment of judges to divisions and the elections of members of the Presidency. This list is not exhaustive. Other powers too are entrusted to the judges sitting en banc such as the power to recommend to the Assembly of States Parties the removal of a judge from office (article ..a) and the making of the Regulations of the Court pursuant to the provisions of article .

II. Election of judges and their assignment to Divisions . Article  specifies the qualifications a person must possess to be eligible for election to the office of a judge of the Court. The number of judges, fixed by the Statute to be eighteen,69 is liable to increase depending on the volume of judicial work.70 Such increase may be effected upon a recommendation of the Presidency and its approval by a two-thirds majority of the Assembly of States Parties. Thereafter the number of judges may be decreased by resolution of the Assembly of States Parties upon the recommendation of the Presidency provided the number does not fall below the one stipulated for in article ., notably, eighteen. Rule  makes provision for the replacement of judges for objective and justified reasons.

68 69 70

See article .. See article .. See article ..

composition of the court



. Alternative qualifications are stipulated for the election of judges, considered essential for endowing the Judiciary with the necessary talent and skills to carry out its mission. The first list of qualifications (“List A”) requires established competence in criminal law and procedure, coupled with the necessary experience in those fields of law, gained in the capacity of a judge, a prosecutor, an advocate or in any other capacity in criminal proceedings.71 “Criminal proceedings” is the area where the necessary expertise must be gained. The alternative list of qualifications (“List B”) requires “established competence” in relevant areas of international law exemplifying this domain by reference to international humanitarian law and the law of human rights associated with “extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court”.72 Established competence signifies acknowledged capability in the particular field of law. Candidates satisfying the requirements of both lists A and B have a choice to decide in which list they should be included for election purposes. No less than nine of the eighteen judges should emanate from List A and no fewer than five from List B.73 In the selection of judges, States Parties are enjoined, to “take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world;”.74 The defining word in this context is “representation”, that is, the body of judges of the ICC must include in its midst law persons tutored in the legal systems specified therein. What must be clarified is that judges need not emanate exclusively from the specified legal systems. The next defining word is “principal” legal systems. The word denotes the leading or most prevalent legal systems worldwide. The system must be widespread in terms of application. For a faculty to qualify as a system it must adhere to a pattern with distinct characteristics. The word “principal” in the context in which it appears may be contrasted with “secondary” delimited by the smallness of the area where the system finds application. The identification of the principal legal systems is left to the States Parties who are, in their multitude, in an excellent position to determine them. An indispensable qualification for election to the Office of the judge in the ICC is laid down in article .(c), which provides that “[e]very candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court”, which are English and French. A candidate for election must have a perfect command of either of the two languages.

71 72 73 74

See article .(b)(i). Article .(b)(ii). See article .. Article .(a)(i).



chapter three

. The length of service of judges is stipulated to be nine years, non-renewable.75 The service of the first judges who were elected was made to run for three (one-third), six (one-third) and nine years (one-third) in order to ensure the periodic renewal of the Judiciary of the ICC.76 In this way one-third of the judges would be replaced every three years. The length of service of the first eighteen judges, spreading to three, six or nine years, was determined by lot. Judges whose service was limited to three years were eligible for re-election for a full term of nine years.77 In the event of a vacancy, the judge elected to fill the gap should serve for the remainder of his/her predecessor’s term. Again, if the duration of service is limited to three years or less, the judge shall be eligible for re-election for a full term of nine years.78 . The tenure of judges assigned to a Trial or the Appeals Chamber may be extended to enable them “to complete any trial or appeal the hearing of which has already commenced before that Chamber”.79 Extension of service to complete a hearing is limited by the plain provisions of article . to judges of the Trial and Appeal Divisions. The term “hearing” denotes the reception of oral evidence and oral submissions. It is arguable that in the context of the judicial process, the term “hearing” has acquired a wider meaning, namely, the reception of the views of the two sides, be it in writing, that is, the views of the contestants in a judicial cause. . Judges are elected as full-time members of the Court,80 importing an obligation, to serve on a full-time basis when called upon to do so. Power to call judges to serve on a full-time basis resides with the Presidency after due evaluation of the workload of the Court and prior consultation with the judges affected. Judges are entitled to a pension after three years of full-time service calculated by reference to the length of their service.81 . After the election of judges, the Court “shall organize itself into [ . . . ] divisions”,82 namely the Appeals Division, the Trial Division and the PreTrial Division. Newly elected judges, must as earlier explained, be assigned to 75

See article .(a). See article .(b). 77 See article .(c). 78 See article .. 79 Article .. 80 See article .. 81 See Conditions of Service and Compensation of Judges of the ICC, ICC-ASP//, Annex , Article V, and Appendix  “Draft pension scheme regulations for judges of the International Criminal Court” Article I. 82 Article .. 76

composition of the court



divisions by the plenum of judges. Four judges must be assigned to the Appeals Division who, in addition to the President of the Court who serves in that Division virtute officii, compose that branch of the Judiciary. No fewer than six judges must be assigned to either of the other two divisions. The eighteenth judge may be assigned to either the Trial or the Pre-Trial Division, as the exigencies of the service may require. Judges assigned to the Appeals Division shall serve exclusively in that division of the Court.83 By virtue of the provisions of article .(b): Judges assigned to the Appeals Division shall serve in that division for their entire term of office.

The same is reiterated in the opening sentence of article .: Judges assigned to the Appeals Division shall serve only in that division.

The term “entire” means the whole, with no part excepted.84 Inevitably, judges assigned to the Appeals Division can only serve in that division for the whole term of their service. This does not apply to the President of the Court who is not assigned to the Appeals Division but serves therein by virtue of his/her Office. Upon election to the position of President his/her previous assignment to a division lapses. Therefore, if the judge elected as President emanates from the Trial or Pre-Trial Division upon termination of the judge’s tenure as President, he/she cannot be assigned to serve in the Appeals Division inasmuch as judges assigned to that Division must serve solely and exclusively in the appellate bench of the Court. Judges assigned to the other divisions may be reassigned to the other of the two divisions of the Court after the lapse of three years.85 Power is conferred upon the Presidency to attach temporarily a judge of the Trial Division to the Pre-Trial Division and vice-versa, if this is sensed to be in the interest of the efficient management of the workload of the Court.86 The meaning of the word “attachment” in the context under consideration is “join, tight to” whereupon the question arises whether a judge’s secondment to another division detaches him/her for the duration of the assignment from the division where he/she is assigned. . In assigning judges to divisions, the Statute requires, as laid down in article ., that regard be had to the qualifications and experience, on the one hand, of elected judges and the functions of the division, on the other, in order to ensure a proper balance of expertise in the two spheres of law envisaged by 83 84 85 86

See article .(b). Shorter Oxford Dictionary (Part I, th ed.), p. . See article .(a). See article ..



chapter three

the Statute. The two judicial layers of the Court, the Trial and Pre-Trial Division, shall be composed predominantly by judges with criminal trial experience.87

III. The Office of the Prosecutor . The Office of the Prosecutor is established as an independent organ of the Court, charged with responsibility for a) the investigation of crimes within the jurisdiction of the Court b) overseeing, in the context of complementarity, the investigatory, prosecutorial and judicial process in states exercising jurisdiction over crimes within the purview of the Court in order to ensure that the processes are undertaken and carried out bona fide, and c) the prosecution of persons before the Court. The Office of the Prosecutor is headed by the Prosecutor who may be assisted by one or more Deputy Prosecutors. The Prosecutor and Deputy Prosecutor(s) shall be of different nationalities destined to serve on a full-time basis from the date of their election.88 . The qualifications needed for election to either of the two offices, Prosecutor and Deputy Prosecutor, are the following: a. High moral character b. High competence coupled with extensive practical experience in the prosecution or trial of criminal cases. Experience of the necessary length in either area appears to satisfy the requisites of the law. c. Excellent knowledge and fluency in at least one of the working languages of the Court viz. English and French.89

. Fluency entails ease of expression, orally and in writing, reflecting excellent knowledge of a language. Like judges, the Prosecutor is elected by the Assembly of States Parties. Election is through a secret ballot, but unlike judges, the majority required is an absolute majority of the members of the Assembly and not the two-thirds majority of the members present and voting required for the election of judges.90 The Statute does not prescribe the mode of nomination of candidates for the position of the Prosecutor. The matter is addressed in a Resolution of the Assembly of States Parties91 providing that nominations shall follow the same pattern as the one envisaged for the nomination of judges.92 By the same 87 88 89 90 91 92

See article .. See article . and . See article .. See article .. Resolution ICC-ASP//Res. . See ibid., rule  of the Resolution.

composition of the court



Resolution,93 it is declared to be desirable that nominations “should preferably be made with the support of multiple States Parties”. Failing a consensus among the States Parties as to the choice to be made, balloting must follow as the Resolution provides. If, on the first three ballots, no candidate secures the requisite majority, balloting shall be suspended to provide an opportunity for the withdrawal of candidatures. At the resumption of balloting, if no candidate secures the necessary majority in the first ballot, further ballots shall be restricted to the two candidates securing the “largest number of votes”. The same procedure must be followed for the election of a Deputy Prosecutor, among the three candidates nominated for the purpose by the Prosecutor.94 The term of service of the Prosecutor and Deputy Prosecutor(s) is nine years unless a shorter term is fixed at the time of their election.

IV. The Registry . Election of the Registrar . The authority of the Registry is defined by article . of the Statute rendering it responsible for the “non-judicial aspects of the administration and servicing of the Court”.95 The exercise of such duties shall, by the terms of the same statutory provision, be “without prejudice to the functions and powers of the Prosecutor in accordance with article ”.96 The meaning of this phrase can best be identified by contrasting it with the judicial aspects of the work of the Court, which embrace every aspect of the judicial process. The administrative services constitute the infrastructure of the Court underpinning and facilitating the operation of the judicial process. The Office of the Prosecutor is also assigned administrative duties. The two departments, though operating separately, are required by various provisions of the Statute and the Rules to consult one another on matters of common concern and interest. . A contentious issue is whether the Registrar is legitimised to move a Chamber to take measures within the Registry’s sphere of competence or make submissions to it on a sub-judice issue. The matter debated here is distinguishable from the advice and help that the Victims and Witnesses Unit may, as envisaged

93 94 95 96

Rule  of the Resolution. Rule  of the Resolution. Article .. Article ..



chapter three

by the Statute,97 provide the Chamber with for the protection of victims and witnesses. What we are inquiring into is whether the Registrar can, in his / her own right, take steps in the judicial process or make submissions before a Chamber on a matter at issue; in other words, whether he/she has a locus standi in judicial proceedings. . In its decision on the “Prosecutor’s application that the Pre-Trial Chamber disregard as irrelevant the submission filed by the Registry on  December ”,98 Pre-Trial Chamber II adopted the position that the Registrar is entitled to move autonomously and petition a Chamber or make submissions before it on matters perceived to be within the sphere of his/her statutory responsibilities.99 Expression was given to this perception of the authority of the Registrar by regulation  bis fashioned as follows:100 Submissions by the Registrar . The Registrar, when necessary for the proper discharge of his or her functions, in so far as they relate to any proceedings, may make oral or written submissions to a Chamber with notification to the participants. . The Registrar may file a document ex part “Registrar only” if knowledge by the participants of the content of the document filed would defeat its purpose. The Chamber shall decide whether notice of the existence of the filing is to be provided to the participants. . Nothing in this regulation shall be taken to restrict other types of communication between Chambers and the Registrar.

This regulation shall apply mutatis mutandis to proceedings before the Presidency. . It is difficult to reconcile the above decision or regulation  bis with the limitation of the authority of the Registrar under the Statute to the non-judicial aspects of the administration and the servicing of the Court. Intervention or participation in judicial proceedings is an inseverable facet of the judicial process involving action interwoven with the administration of justice. Any other interpretation would inevitably involve the President of the Court, under whose authority the Registrar functions, as a participant in the judicial process. 97

See article ., rule , regulation . Situation in Uganda, Decision o the Prosecutor’s Application that the Pre-Trial Chamber Disregard as Irrelevant the Submission filed by the Registry on  December ,  March  (ICC-/–/–), p. . 99 See also Situation in the Democratic Republic of the Congo, Decision on the Requests of the Legal Representative of Applicants on application process for victims’ participation and legal representation,  August  (ICC-/–). 100 Adopted on  November , entered into force on  December . 98

composition of the court



The compatibility as well as the reconcilability of regulation  bis with the Statute, in particular with article ., is called into question. Regulation  bis appears to be antinomous to the Statute and the Rules subject to which both instruments must be read, as provided in regulation .. Conformity with the Statute and the Rules is a prerequisite for the validation of every regulation. . Article . establishes the Registrar as the principal administrative officer of the Court.101 As provided therein, the Registrar shall exercise his/her functions “under the authority of the President of the Court”. Here as elsewhere,102 administrative duties are assigned to the President of the Court reflecting the overall responsibility of the Presidency for the proper administration of the Court.103 This does not, of course, diminish the responsibilities of the Registrar as the Head of the Department or his/her authority over personnel and, certainly, neither the President nor the Presidency can have any say in decisions of the Registrar subject to review by the Presidency such as decisions for inclusion, removal or suspension of counsel from the list of counsel, for which provision is made in Regulations –. . By virtue of rule , the Registrar is made responsible for the security of the Court, a function that must be carried out in consultation with the Presidency, the Prosecutor and the host State. A distinct statutory task cast on the Registrar is the setting up of a Victims and Witnesses Unit responsible for the provision of protective measures, security arrangements and appropriate assistance to victims and witnesses who, on account of their testimony, are in need of protection.104 The measures to be taken must be decided upon in consultation with the Prosecutor. . Election of the Registrar and Deputy Registrar . Candidates for the position of Registrar and Deputy Registrar must have the following qualifications. They must be: a) of high moral character; b) highly competent and; c) possess excellent knowledge of and fluency in at least one of the working languages of the Court.105 101 102 103 104 105

See article .. See inter alia, article . See article ..a. See article .. See article ..



chapter three

. Although the area of competence of candidates for the aforesaid positions is not expressly specified by the Statute, it can be fairly assumed that it refers to administrative capabilities corresponding to the tasks of managing a department accommodating many disciplines as the Registry does. . The Registrar shall be elected by an absolute majority of the judges of the Court through a secret ballot taking account of “any recommendation by the Assembly of States Parties”.106 . The Presidency must in the first place establish a list of candidates which shall be transmitted to the Assembly of States Parties with a request for any recommendation it may wish to make to be submitted the soonest.107 The recommendation, it must be underlined, is not binding upon the judges. The modalities governing the election of the Registrar are specified in rule . which provides: In the event that no candidate obtains an absolute majority on the first ballot, successive ballots shall be held until one candidate obtains an absolute majority.

. The process of election is similar, if not identical, to that applicable to the election of judges provided for in article .. Successive ballots must be held if no candidate secures at the first or any subsequent ballot the support of the majority of the judges of the Court (rule .). . Depending on the needs of the Registry, the Registrar may recommend to the President of the Court the filling of the position of Deputy Registrar. The existence of such a need must be endorsed by the majority of judges at a plenary session. The election of a Deputy Registrar is subject to the same rules and process as the election of the Registrar. . The Registrar and Deputy Registrar shall hold office for a term of five years and shall be eligible for re-election once for a term of equal duration. . Staff Rules and Regulations—Registry regulations . Pursuant to article . of the Statute, the Registrar, with the agreement of the Presidency and the Prosecutor, shall submit Staff Regulations to the Assembly of States Parties for their approval. Such regulations were submitted to

106 107

Article .. See rule ..

composition of the court



and approved by the Assembly of States Parties on  September  at its second session held between  and  September .108 . Regulation . empowers the Registrar, again with the agreement of the Presidency and the Prosecutor, to prepare Staff Rules subject to the approval of the Assembly of States Parties at liberty to approve, amend or reject the proposed rules. Such Rules were submitted to and approved by the Assembly of States Parties. Provision is made therein for the appointment, duration and conditions of service of personnel and matters incidental thereto.109 . The governing principle for the selection of Court personnel is set out in article . of the Statute requiring “the highest standards of efficiency, competency and integrity”. In the selection of personnel, regard must be had to the provisions of article . warranting that those appointed must emanate from the principal legal systems of the world and further reflect an equitable geographical representation as well as a fair representation of the two sexes. . Rule . binds the Registrar to put in place, in consultation with the Prosecutor and subject to the approval of the Presidency, regulations governing the operation of the Registry. Rule . envisages that such regulations “shall provide for defence counsel to have access to appropriate and reasonable administrative assistance from the Registry”. Such rules came into force on  March .110

V. The Presidency . The Presidency is a distinct organ of the Court composed of the President, the First Vice-President and the Second Vice-President elected by an absolute majority of the judges.111 Their term of office shall be for a period of three years or for a shorter period corresponding to the term of office of individual judges. Consequently, eligibility is not dependant on amenity to serve the full term of three years. Judges elected to the Presidency are eligible for re-election once, as laid down in article .. Article  deals with the composition, the election of members and the powers of the Presidency. The Presidency is a collective

108

Under the insignia ICC-ASP//Res. . See Staff Rules of the International Criminal Court, Annex to ICC/AI//. 110 Regulations of the Registry, ICC-BD/--, adopted on  March , entered into force on  March . 111 See article .. 109



chapter three

body functioning in unison. Article  provides inter alia, as already noted, that its members “shall be eligible for re-election once”. Re-election refers to election as a member of the Presidency not to the particular position held by any one member of it. Hence, no judge can be elected to serve as a member of the Presidency more than two terms.112 . Article . makes the Presidency responsible for: a) The proper administration of the Court, with the exception of the Office of the Prosecutor; and b) The other functions conferred upon it in accordance with this Statute.113

In discharging its administrative responsibilities, the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.114 . The Presidency bears ultimate responsibility for the administration of the Court. Only in a context of strict separation of the administrative and judicial duties can the judicial and administrative functions of the judges comprising the Presidency be reconciled. In addition to the administration of the Court, the Statute assigns a number of distinct functions and duties to the Presidency. Some of these are of a judicial or quasi-judicial nature such as the duty assigned to the Presidency to excuse a judge from the exercise of judicial duties in any given case.115 Like power is granted to the Presidency to recuse, on his/her application, the Prosecutor or the Deputy Prosecutor from carrying out prosecutorial duties in a particular case.116 The procedural framework, within which such power must be exercised, is delineated in rule . . Disciplinary power is conferred upon the Presidency over judges, the Registrar and the Deputy Registrar respecting misconduct, of a character, less serious than misconduct entailing removal from office.117 The penalties that may be imposed for misconduct of a less serious character are a) a reprimand and b) a fine (pecuniary sanction) that may not exceed six months of the salary of the misdoer.118

112 113 114 115 116 117 118

See article .. Article .. See article .. See article .. See article .. See rules ,  and , regulations , . See rule .

composition of the court



. Complaints against a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar for either a serious breach of duty or misconduct of a less serious character must, according to rule  and regulation , be submitted to the Presidency. The processing, examination and evaluation of such complaints is dealt with in Chapter  of the Regulations.119 Regulation  acknowledges to the Presidency power to initiate disciplinary proceedings on its own initiative or accord. . The Presidency is also charged with the administrative duty to notify the Bureau of the Assembly of States Parties of the death or resignation of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar.120 . Regulation . provides: The Presidency shall be responsible for the replacement of a judge pursuant to rule  and in accordance with article  and shall also take into account, to the extent possible, gender and equitable geographical representation.

On the face of the provisions of this regulation, power is conferred upon the Presidency to effect replacements of judges “pursuant to rule  and in accordance with rule ”. Rule  identifies the circumstances under which “for objective and justified reasons” need for the replacement of a judge arises. These are: (a) (b) (c) (d) (e)

Resignation; Accepted excuse; Disqualification; Removal from office; Death.

The resignation, removal from office and death of a judge leave a vacancy to be filled, as specifically provided in article , by the election of a new judge who shall serve for the remainder of his/her predecessor’s term. Consequently, replacement in this area is in the hands of the Assembly of the States Parties and not the Presidency. The only power conferred upon the Presidency in this connection is the one given by article . to attach temporarily, whenever the efficient management of the Court or workload so necessitates, a judge of the Trial Division to serve the Pre-Trial Division and vice versa. Need may arise for such a course inter alia if a judge is excused by the Presidency from the exercise of judicial duties in any one case or, if disqualified, eventualities for which provision is made in article  of the Statute. Therefore, no power can be 119 120

Notably by regulations  to . See rules  and .



chapter three

assumed by the Presidency to replace judges for any reasons other than those stipulated for in article . of the Statute. Among the powers entrusted to the Presidency is the nomination of an alternate judge in the composition of a trial chamber pursuant to the provisions of article . and rule . Responsibility is acknowledged to the Presidency by Regulation  to establish a duty roster of judges, whereas under the provisions of rule , the Presidency is specified as the organ embodying “the Court” with regard to the enforcement of judgements under Part  of the Statute.

VI. Plenary sessions . As earlier explained, although not identified as an organ of the Court, the plenum of judges is trusted with power to deal with and determine a number of issues of an administrative, judicial, quasi-judicial and legislative character. Such power is assigned to the plenum by various provisions of the Statute, the Rules and the Regulations. . Meetings of the plenitude of judges are regulated by rule  under the title “Plenary sessions”. Judges must meet not later than two months after their election and thereafter at least once a year to exercise functions assigned to them by the Statute, the Rules and the Regulations. Additional plenary sessions may be held at the instance of the President or at the request of one half of the judges.121 . The Statute and the Rules make provision for the majority needed to take decisions on matters entrusted to the plenum.122 Unless otherwise provided in the Statute or the Rules, decisions at plenary sessions are taken by a majority of the judges present and voting. In the event of equality of votes, the President has a casting vote.123 . The following decisions of an essentially judicial character, entailing the imposition of sanctions or obligations or the recusal of judges from the exercise of judicial functions, are assigned to plenary sessions:

121

See rule .. See e.g. articles ., .., ., .(c), ., ., ., ., ., ., ., ., rules ., ., . 123 See rule .. 122

composition of the court



a. The compatibility of any extra-mural activity of judges with the necessary confidence that the public must repose in their independence;124 b. The compatibility of any engagement of a judge with the duty of a full-time judge not to engage in any other occupation of a professional nature;125 c. Questions respecting the disqualification of a judge to take part in a case on grounds of apparent bias;126 d. Recommendations to the Assembly of States Parties for the removal of a judge from office;127 e. Decisions for the removal of the Registrar or Deputy Registrar from office;128 f. Waiver of the privileges and immunities of a judge or the Prosecutor;129 g. Decisions approving the holding of judicial proceedings at a place other than the seat of the Court at the host State.130

The above decisions must be taken by an absolute majority of judges save for a recommendation for the dismissal of a judge or authorisation to a Chamber to sit elsewhere than the seat of the Court that must be sanctioned by a two-thirds majority. . Decision-making on the following matters of an essentially legislative character is assigned to the plenum of judges: a. Proposals for amendment of the Elements of Crimes;131 b. Proposals for amendment of the Rules of Procedure and Evidence;132 c. Adoption of provisional rules to regulate a specific situation not addressed by the Rules of Procedure and Evidence;133 d. Adoption of the Regulations of the Court;134 e. Adoption of a Code of Judicial Ethics.135

Save for the enactment of provisional rules that requires a two-thirds majority of the judges, all other decisions must be approved by an absolute majority of judges.

124

See article . and . See article . and . 126 See article . and rule . 127 See article ..a. 128 See article .. 129 See article ..a. 130 See rule . 131 See article ..b. 132 See article .. 133 See article .. 134 See article . 135 See regulation ; Code of Judicial Ethics, ICC-BD/--, adopted on  March , entered into force on  March . 125



chapter three

. The following decisions of an administrative character are entrusted to the plenum of judges: a. The election of the President and the two Vice-Presidents of the Court;136 b. The election of the Registrar137 and Deputy Registrar.138

All the above decisions must be taken by an absolute majority of the judges.

136 137 138

See article .. See article . and rule .. See article . and rule ..

chapter four COMPETENCE—JURISDICTION—ADMISSIBILITY

I. Competence . The avowed aim of the Statute resolutely proclaimed in paragraphs  and  of the Preamble is to end the impunity of the perpetrators of grave crimes involving inhuman conduct that forms the subject-matter of the Statute, and through their punishment, set its standard of disowning such conduct as unbefitting humanity; such crimes have ravaged humanity in the past and are apt to do so if repeated in the future. This is the principal object of the Statute sought to be achieved by the establishment of the ICC upon which jurisdiction is vested to try, subject to the principle of complementarity, individuals accused of committing crimes within the jurisdiction of the Court as declared in article . The subjects of the jurisdiction of the Court are individuals, every individual, irrespective of capacity or position, who commits a crime within the jurisdiction of the Court. Accountability is personal and so is criminal responsibility. Article . specifically provides that the jurisdiction of the Court is exercised over natural persons for criminal acts for which they are responsible. Individual responsibility for criminal conduct is at the root of the Statute. Official capacity as stated in article  is irrelevant. It does not absolve one of criminal responsibility nor does it dissociate him/her from a criminal act committed in cohort. No one from the Head of State downwards is exempt from the jurisdiction of the Court and no immunities under national or international law can exclude the actors from the writ of the Court. The underlying principle is that no excuse can ever justify conduct violative of the essence of humanity, conduct unpardonable under any circumstances. . The jurisdiction of the Court and the serious crimes within its purview are defined by article . Article . reads: The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: a. The crime of genocide; b. Crimes against humanity; c. War crimes; d. The crime of aggression.



chapter four

. The assumption of jurisdiction over the crime of aggression is by virtue of the provisions of article . subject to the following proviso: No jurisdiction can be assumed or exercised over acts amounting to aggression until a definition of the crime is provided, contemplated to take place by amendment of the Statute at the Review Conference of the General Assembly of States Parties to be held within seven years after entry into force of the Rome Statute, as envisaged in articles  and . The definition of aggression must, as stated in article , be “consistent with the relevant provisions of the Charter of the United Nations”. Article . provides that seven years after the entry into force of the Statute the Secretary-General of the United Nations shall convene a Review Conference to consider amendments to the Statute. It is of interest to note that the Nuremberg and Tokyo Charters acknowledged the planning, preparation and the waging of war as crimes against peace and many indictments and convictions were founded on this understanding of international law. . There was no lack of definition of the crime of aggression at the time of the establishment of the Rome Statute. It had been defined by a resolution of the General Assembly as follows: Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.139

. The International Law Commission did not provide the Rome Conference, where the provisions of the Statute were elicited, with a definition of aggression, a fact that left a gap in the delineation of its ingredients leading to a suspension of its enforceability. At the Kampala Review Conference of the Rome Statute, a definition was agreed.140 . Article  limits the jurisdiction of the Court to what are perceived by the makers of the Statute as the most serious crimes of concern to the international community. Without this limitation, one could identify other grave crimes that have bedevilled the world and scarred humanity such as trading in narcotics. As may be gathered from the nature of the crimes within the jurisdiction of the ICC, the concern of the international community is focused on crimes, which, in addition to debasing humanity, have dire consequences on world order. . The jurisdiction of the Court over the crimes specified in the Statute is not unqualified. It is subject to the relevant provisions of the Statute prescribing 139 United Nations General Assembly, Definition of Aggression,  December , UN Doc. A/Res/ (XXIX). 140 See “Annex”.

competence—jurisdiction—admissibility



the prerequisites for the assumption of jurisdiction and its exercise. Such conditions, complementarity in particular, delimit the competence of the Court to take cognisance of cases that would otherwise fall within its mandate. . The most serious crimes of concern to the international community are those listed in article  and defined in the three articles of the Statute that follow, articles ,  and . The element of gravity inherent in the commission of such offences is the measure for their classification as the serious crimes amenable to the jurisdiction of the Court. There is no further qualification for the exercise of the jurisdiction of the Court other than the nature of the crimes. The jurisdiction of the Court is not limited to the most serious of the crimes categorised to be within the jurisdiction of the Court. The decision of Pre-Trial Chamber I (made public in a redacted form) in Prosecutor v Lubanga Dyilo141 to the contrary cannot be reconciled with the wording of the Statute, its aims and purposes. In its analysis of the jurisdiction of the Court in the aforesaid case, the view was adopted that article  introduces a gravity threshold by reference to the seriousness of the particular offence, in addition to a second gravity criterion introduced by article .(d) with respect to the admissibility of a case.142 According to the decision of the Pre-Trial Chamber, the crimes triable by the Court are confined to those committed by the top leadership of a State, organisation or entity. The leadership consists of those who can “effectively prevent or stop the commission of those crimes”, having the power to “negotiate, sign and implement cease fires or peace agreements”. Moreover, for a crime to be amenable to the jurisdiction of the Court, it must have caused “social alarm” to the international community.143 The Pre-Trial Chamber addressed the question of jurisdiction of the Court and the gravity threshold identified in its judgment, established by articles  and .(d) in order to determine whether the warrant sought for the arrest of a suspect (case Prosecutor v. Ntaganda) in conjunction with the facts founding war crimes attributed to him constituted a proceeding admissible before the Court. It concluded that the case was inadmissible. The question was determined in 141 Prosecutor v. Lubanga Dyilo, Decision concerning Pre-Trial Chamber I’s Decision of  February  and the Incorporation of Documents into the Record of the case against Mr Thomas Lubanga Dyilo,  February  (ICC-/–/–-US-Corr reclassified as public by ICC-/–/–). 142 Ibid., para. . 143 Prosecutor v. Lubanga Dyilo, Decision concerning Pre-Trial Chamber I’s Decision of  February  and the Incorporation of Documents into the Record of the case against Mr. Thomas Lubanga Dyilo,  February , (ICC-/–/–-US-Corr reclassified as public by ICC-/–/–), para. ; see also W.A. Schabas, Prosecutorial Discretion v. Judicial Activism at the International Criminal Court, Journal of International Criminal Justice   (), pp. –.



chapter four

the absence of the accused or the State Party that referred the case to the Court and victims.144 On appeal, the decision was reversed. Two judgments were given, one by the majority and a separate judgment by a member of the Court145 dissenting as to the outcome, in that, whereas the majority after the reversal of the judgment of the Pre-Trial Chamber remitted the case back for reconsideration of the application for the warrant of arrest by the same PreTrial Chamber, the dissenting member was of the view that the issue should be resolved by the Appeals Chamber. In other respects the views of the majority and the minority converge to a large extent. . The reasons for which the decision was reversed were: a) The decision of the Pre-Trial Chamber to determine on its own motion the question of admissibility at the stage of an application for the issuance of a warrant of arrest was exercised without regard to material considerations that might have an impact on the core of the decision. b) The assumption of the Pre-Trial Chamber that limiting the jurisdiction of the Court to the top leadership of the perpetrators would enhance the deterrent effect of the judicial process is questioned as fallacious. According to the majority “[t]he predictable exclusion of many perpetrators on the grounds proposed by the Pre-Trial Chamber could severely hamper the preventive, or deterrent, role of the Court which is a cornerstone of the creation of the International Criminal Court, by announcing that any perpetrators other than those at the very top are automatically excluded from the exercise of the jurisdiction of the Court.”146 In another passage of the judgment it is stated: “[i]t seems more logical to assume that the deterrent effect of the Court is highest if no category of perpetrators is per se excluded from potentially being brought before the Court.”147

. The parallelism made by the Pre-Trial Chamber of the jurisdiction conferred upon the Court with the jurisdiction vested in the ICTY, was found to be misleading148 inasmuch as the jurisdiction of the Tribunal is confined to the “most senior leaders suspected of being most responsible for crimes within the jurisdiction of the tribunal”. The element of social alarm introduced by the Pre-Trial Chamber as among the considerations defining the jurisdiction of the Court and admissibility of cases before it has no legal foundation. As stated in the majority judgment, “it is not mentioned in the Statute at all”. The crimes 144

See article .. Judge Pikis. 146 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the Decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article ”,  July  (ICC-/– reclassified as public by ICC-/–-PUB-Exp), para. . 147 Ibid, para. . 148 See e.g. Security Council Resolution ,  March . 145

competence—jurisdiction—admissibility



identified in the Preamble and articles  and  are, according to the majority, the “crimes [ . . . ] considered the most serious crimes of international concern”. The subjective criterion of social alarm therefore is not a consideration that is necessarily appropriate for the determination of the admissibility of a case pursuant to article .(d) either.149 In the same decision it is explained that the gravity thresholds set out in the judgment of the Pre-Trial Chamber are flawed. The following passage from the judgment of the majority is telling on the subject: They ignore the highly variable constitutions and operations of different organizations and could encourage any future perpetrators to avoid criminal responsibility before the International Criminal Court simply by ensuring that they are not a visible part of the high-level decision-making process. Also, individuals who are not at the very top of an organization may still carry considerable influence and commit, or generate the widespread commission of, very serious crimes. In other words, predetermination of inadmissibility of the above grounds could easily lead to the automatic exclusion of perpetrators of most serious crimes in the future.150

. Another stand of the Pre-Trial Chamber found to be fallacious, was that for a crime to fall within the jurisdiction of the Court, it must form part of systematic or large-scale criminal conduct. This view is, according to the Appeals Chamber, totally unwarranted. The ingredients of the crimes that fall within the jurisdiction of the Court are those specified in articles ,  and  of the Statute and none other. One may remind, in this connection of the provisions of article ., that the definition of a crime must be strictly construed and not extended by analogy. . To the same effect is the approach on the subject in the separate and partly dissenting opinion of a member of the Court151 reflected in the following passage: The second sentence of article  () of the Statute makes it abundantly clear that “the Court has jurisdiction” over all the crimes that are defined in the Statute. It reads: “The Court has jurisdiction in accordance with this Statute with respect to the following crimes (a) [ . . . ] (b) [ . . . ] (c) [ . . . ] (d) [ . . . ].”

149

See (also for the previous citation) Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the Decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article ”,  July  (ICC/– reclassified as public by ICC-/–-PUB-Exp), para. . 150 Ibid., para. . 151 Judge Pikis.



chapter four The jurisdiction of the Court under article  is not dependant upon any gravity requirement or threshold in relation to conduct criminalized by articles ,  and  of the Statute. The jurisdiction of the Court embraces every act or species of conduct made a crime thereunder. A gravity requirement for purposes of admissibility is only set down in article ()(d) of the Statute. This interpretation of article  tallies with the avowed aims of the founders of the Statute to criminalise internationally conduct that has torn the world apart during the th century involving crimes threatening the peace, the security and the well-being of the world. The crimes over which jurisdiction subject to complementarity is vested in the ICC have the attributes of the abhorrent conduct that the Statute criminalises universally; crimes that have scarred humanity.152

The arbitrariness of introducing social alarm as an element for the justiciability of a crime is depicted in the following passage from the same opinion: The causing of social alarm to the international community is an element unknown to the law that can find no justification anywhere in the Statute. The alarm of the international community from the commission of the grave crimes universally criminalized by the Statute is manifested by the Statute itself, intended to ban from the face of the earth the offences that constitute its subject-matter.153

In the same opinion it is emphasised that, subject to complementarity, the ICC has “jurisdiction over every crime punishable under the Statute. In the Preamble of the Statute, it is proclaimed that every State Party must ‘exercise its criminal jurisdiction over those responsible for international crimes’, i.e. the crimes penalised by the Statute. If they do not, a corresponding duty is cast upon the Court to investigate, prosecute and try the persons liable for the commission of one or more crimes punishable under the Statute.”154 With regard to the ambit of article .(d), the following passage from the same opinion depicts the import and criteria relevant to its interpretation: Which cases are unworthy of consideration by the International Criminal Court? The answer is cases insignificant in themselves; where the criminality on the part of the culprit is wholly marginal; borderline cases. A crime is insignificant in itself if, notwithstanding the fact that it satisfies the formalities of the law, i.e. the insignia of the crime, bound up with the mens rea and the actus reus, the acts constituting the crime are wholly peripheral to the objects of the law in criminalising the conduct. Both, the inception and the consequences of the crime must be negligible. In those circumstances the Court need not concern itself with the crime nor will it assume jurisdiction for the trial of such an offence, when 152 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the Decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article ”,  July  (ICC-/– reclassified as public by ICC-/–-PUB-Exp), para.  of the separate and partly dissenting opinion [footnote omitted]. 153 Ibid., para.  of the separate and partly dissenting opinion. 154 Ibid., para.  of the separate and partly dissenting opinion [footnote omitted].

competence—jurisdiction—admissibility



national courts fail to do so. Any other construction of Article  () (d) of the Statute would neutralize its avowed objects and purposes and to a large extent empty it of content. The subject-matter must be minimal, so much so that it can be ignored by the Court155

. In relation to jurisdiction, the Pre-Trial Chamber’s decision is, as pointed out in the separate and dissenting opinion, contradictory to the duty imposed upon states to bring to justice everyone committing crimes within the jurisdiction of the Court, and if they fail or omit to do so, the Court can assume jurisdiction in the matter. The following passage is suggestive: The interpretation accorded by the Pre-Trial Chamber to article  () (d) of the Statute puts in reality the Judiciary in the position of defining the crimes that are subject to its jurisdiction. They make the Court the arbiter of which crimes come within the ambit of the Statute for purposes of investigation and trial. If justiciable crimes were circumscribed in the way indicated by the Pre-Trial Chamber, this would not only apply to crimes investigated by the Prosecutor but also to crimes over which the Court may exercise complementary jurisdiction. The jurisdiction of national courts of States Parties and the complementarity jurisdiction of the International Criminal Court are coincidental. If crimes within the ambit of the jurisdiction of the Court were limited as suggested by the Pre-Trial Chamber to those who planned or directed the execution of the grave crimes universally criminalized by the Statute the complexion of the Statute would be wholly different; there would be no reason to impose a duty upon State Parties to bring to justice everyone offending against the provisions of the Statute. Had the makers of the Statute intended to limit the jurisdiction of the Court to the principal perpetrators of the offences criminalized therein, the Statute would be differently worded and its objects and purposes differently defined. The decision of the Pre-Trial Chamber defies fundamental aims of the Statute, expressed in every relevant provision of it, not to suffer or leave unpunished the perpetrators of the crimes defined therein. This is wherefrom the deterrent effect of the Statute derives, holding each and sundry from the head of the State downwards liable for the grave crimes that form the subject-matter of the Statute. Had it been the intention of the law-makers to limit justiciable crimes under the Statute to the most serious ones, they would have established the necessary criteria for their classification.156

. In the aforementioned decision,157 the Pre-Trial Chamber identified two elements of gravity that should necessarily be satisfied in addition to everything else in order for a crime to qualify as sufficiently grave to become the subjectmatter of investigation, prosecution and trial. The facts founding the charge 155

Ibid., para.  of the separate and partly dissenting opinion [footnotes omitted]. Ibid., para. . 157 Prosecutor v. Lubanga Dyilo, Decision concerning Pre-Trial Chamber I’s Decision of  February  and the Incorporation of Documents into the Record of the case against Mr. Thomas Lubanga Dyilo,  February  (ICC-/–/–-US-Corr reclassified as public by ICC-/–/–), para. . 156



chapter four

must “[p]resent particular features which render it especially grave”.158 The criminal conduct must, as the Pre-Trial Chamber stated, a) be “systematic” (pattern of incidents) or large-scale and b) cause “social alarm” to the world-atlarge. The ingredients of the offences punishable under the Statute are explicitly laid in articles , , and  and are to an extent exemplified by the Elements of Crimes. Where the legislator intended to make the existence of a system or the scale of crimes an element of the offence, he did so by express words as in the case of crimes against humanity, where a systematic attack directed against the civilian population is in itself an ingredient of the offence. Whenever systematic conduct is made a definitive element of a crime, anyone committing crimes that form part of the system is criminally responsible. The culprit need not himself/herself be either the person who evolved or the one who has committed crimes on a large scale. Any person who commits a crime within the context of the system is guilty of the offence and criminally liable under the provisions of the Statute. The causing of social alarm to the international community is an element unknown to the law that can find no justification anywhere in the Statute. The alarm of the international community from the commission of the grave crimes universally criminalised by the Statute is manifested in the Statute itself, intended to ban from the face of the earth conduct criminalised therein. Crimes within the jurisdiction of the Court are, by definition, the crimes of concern to the international community.

II. Jurisdiction . Article  lays down the preconditions for the assumption of jurisdiction by the Court to deal with a case, in other words, it defines the competence of the Court to take cognisance of a case. For the Court to assume jurisdiction to deal with any matter referred to it, the crime must have been committed a) on the territory of a state party, extended to crimes committed on a sea vessel or aircraft registered in the country and b) by nationals of a state party wherever the crime may have been committed. Essentially the jurisdiction of the Court is limited to crimes committed within the territory of a State party or by nationals of a State party. . Article  provides that a State party may refer a situation to the Prosecutor in which one or more crimes within the jurisdiction of the Court appear to have been committed coupled with a request to the Prosecutor to investigate

158

Ibid.

competence—jurisdiction—admissibility



the situation with a view to determining whether one or more specific persons should be charged with the commission of such crimes. To the extent possible, the referrals must specify the relevant circumstances surrounding the commission of a crime accompanied by supporting material available to the referring state. Rule  requires that such a referral should be made in writing. . Only crimes committed after the entry into force of the Statute are amenable to the jurisdiction of the Court. As laid down in article ., the jurisdiction of the Court is limited to crimes committed after the Statute comes into force. This occurred on the st July , the first day of the month after the lapse of sixty days following the deposit of the sixtieth instrument of ratification, acceptance, approval or accession to the Statute with the Secretary General of the United Nations.159 Where a state accedes to the Statute after its entry into force, the jurisdiction of the Court is limited to crimes committed thereafter.160 A proviso must be added hereto. Crimes within the jurisdiction of the court committed prior to the entry into force of the Statute, may lay the ground for future offences within the jurisdiction of the Court where, as in the case of the persecution against any identified group or collectivity and the crime of imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. The same goes for acts of torture in occupied territories and, generally, persecution. The crime of apartheid too, as defined in article .(f) of the Statute may be committed following the unlawful occupation of any land. The transfer of population, directly or indirectly, by an occupying power or parts of it of civilian population into the territory it occupies with a view to changing the character of the area (article .(b)(viii)). Continued occupation, given the freedom of the occupiers to end it, imports continued intention to stay put in the area occupied preventing thereby the indigenous population from returning to their homes and land. Intentionally directing attacks against religious and historic monuments, hospitals and other places, pursued independently of acceptable military objectives are also crimes prohibited by the Statute independently and irrespective of the original act of occupation (article .(e)(iv)). A crime defined by the Statute is beyond the reach of the Court if committed prior to  July , when all the ingredients as manifested in action and completed before the Statute came into force. However, acts constituting crimes under the Statute, committed after its entry into force, by an occupying power, come, in my view, within the fold of the Statute. Else the Statute would be construed as exonerating an occupying power 159

See article . See article ..; the acceding State can make a declaration acknowledging the jurisdiction of the Court retrospectively starting earliest on  July . 160



chapter four

from criminal acts committed after the entry into force of the Statute, sequential to occupation. If that were the case, an occupying power would be provided with a carte blanche to do as they choose following their original misdeeds. . It is implicit from the provisions of article . that jurisdiction to try crimes listed under article , derives exclusively from the Statute. In accordance with its provisions, no one is liable for acts committed before the Statute came or comes into force. In the event of a change of the law applicable where a case is under trial but before final judgment, the law more favourable to the person being investigated, prosecuted or convicted shall apply. A pertinent question is whether the change of the law envisaged in article . refers exclusively to substantive law or whether it extends to procedural law too. The second must be the case as the term “law”, in this context, embraces both substantive and adjectival law. This view is reinforced by the provisions of article . concerning applicable law and the inclusion therein of the Rules of Procedure and Evidence as part of it. . This limitation of the territorial and personal jurisdiction of the Court does not apply to proceedings arising from a referral to the Prosecutor by the Security Council under Chapter VII of the Charter of the United Nations. This chapter empowers the Security Council to take measures deemed necessary to confront breaches of peace and acts of aggression. Thus whenever the Security Council deems appropriate to refer to the ICC, in furtherance of its mandate, crimes committed within the jurisdiction of the Court, the crimes committed in the context of such a situation are not subject to the territorial or personal limitations of the jurisdiction of the Court. The mandate of the Security Council to uphold the objectives entrusted to it extends worldwide. Geographically coextensive is also the jurisdiction of the Court to deal with crimes referred to it by the Security Council. The only limitation is that such crimes must have been committed after the entry into force of the Statute. The jurisdiction of the ICC over crimes, the subject-matter of a referral, by the Security Council, may appropriately be characterised as universal. But the assumption of jurisdiction is subject to the principle of complementarity adumbrated in the Preamble and given expression to in article . . Paragraph  of article  extends the jurisdiction of the Court to crimes committed in the territory of a non-party State where such a State declares by notice lodged with the Registrar of the Court that she accepts the jurisdiction of the Court with regard to a particular crime or crimes. Rule  prescribes the form of such a declaration. Interestingly, rule . provides that the Registrar of the Court may, at the request of the Prosecutor, inquire of a non-party State

competence—jurisdiction—admissibility



whether it intends to make a declaration along the lines of article .. As may be gathered, such a query may be made whenever a crime within the purview of article  has been committed on the territory of the addressee. Such a step is obviously designed to prompt a state to make a declaration along the lines of article .. . Article  excludes or removes from the ambit of the jurisdiction of the Court crimes committed by persons under the age of . Consequently, the jurisdiction of the Court is delimited to crimes committed by persons aged  or over at the time of the commission of the offence. . As a rule, criminal responsibility is associated with or linked to the capacity of the perpetrator to understand the nature of his/her act, especially the difference between right and wrong. In the laws of a number of countries,161 persons below a certain age, usually fixed around the age of  are irrebuttably presumed to be incapable of forming the necessary intent for the commission of a crime. Between the age of total incapacity and  or  years, there is a rebuttable presumption that a person lacks capacity to form the necessary criminal intent for the commission of an offence. Above that age, children are equated with adults in terms of capacity to commit a criminal offence but different rules apply with regard to their punishment. In other countries the age of incapacity to commit a crime is fixed at around the age of . Between the age of  and , the capacity of a minor to commit a crime depends on his/her mental maturity. Reference to mental maturity under the laws of different countries on criminal responsibility listed above, is by no means exhaustive. The provisions of article  appear to be at odds with the general perception of the capacity of persons to commit a criminal offence. Tracing the history of the enactment of article , it appears that the capacity of a person to commit a crime attracted the attention of the Preparatory Commission. The matter was debated at some length before opting to exclude persons under  from the fold of criminal responsibility under the Statute.162 . Questions may arise as to the application of article  where a crime is conceived and planned before majority163 and committed thereafter. The answer must be that the minor who turned adult after , may be held criminally liable 161

See Convention on the Rights of the Child,  November , UN Doc. A/RES//; article  states that the age of majority is fixed at eighteen. 162 See R.S. Clark, O. Triffterer, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, (nd Edition, ), Article , paras –. 163  November , Convention on the Rights of the Child, article  states that the age of majority is fixed at eighteen, UN Doc. A/RES//.



chapter four

given that the intent formed during minority, must have subsisted after attaining majority constituting the prelude to the commission of the crime. If the preparatory acts, which is often the case, constitute a separate crime, such as the crime of conspiracy, surely the person cannot be tried for that offence but may be tried for the planned substantive crime if he / she takes part in its commission after attaining the age of . . In Prosecutor v. Lubanga Dyilo,164 the Appeals Chamber identified the parameters of the jurisdiction of the Court in the passages of its judgment cited below: The jurisdiction of the Court is defined by the Statute. The notion of jurisdiction has four different facets: subject-matter jurisdiction also identified by the Latin maxim jurisdiction ratione materiae, jurisdiction over persons, symbolized by the Latin maxim jurisdiction ratione personae, territorial jurisdiction—jurisdiction ratione loci—and lastly jurisdiction ratione temporis. These facets find expression in the Statute. The jurisdiction of the Court is laid down in the Statute: Article  specifies the subject-matter of the jurisdiction of the Court, namely the crimes over which the Court has jurisdiction, sequentially defined in article , and . Jurisdiction over persons is dealt with in articles  and , while territorial jurisdiction is specified by articles  and  (b), depending on the origin of the proceedings. Lastly, jurisdiction ratione temporis is defined by article . The Statute itself erects certain barriers to the exercise of the jurisdiction of the Court, those set up by article , referable in the first place to complementarity (Article  ()(a) to (b)) in the second to ne bis in idem (Article  () (c), ) and thirdly to the gravity of the offence (Article  () (d)). The presence of anyone of the aforesaid impediments enumerated in article  renders the case inadmissible and as such non-justiciable.165

III. Admissibility . The commission of a crime within the jurisdiction of the Court does not automatically render it a subject over which the Court may exercise jurisdiction. The assumption and exercise of jurisdiction by the judicial authorities, as earlier noted, is subject to the principle of complementarity, a norm pervading the Statute. The jurisdiction of the Court is ancillary to that of States having jurisdiction to deal with a crime. Jurisdiction to bring to justice persons accused 164

Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–). 165 Ibid., paras –.

competence—jurisdiction—admissibility



of crimes triable by the ICC rests in the first place with States having jurisdiction over that matter. Article  deals primarily with the issue of complementarity; it provides that a case is inadmissible as the subject of proceedings before the Court if a) it is investigated or prosecuted by a State having jurisdiction over it unless “the State is unwilling or unable genuinely to carry out the investigation or prosecution”,166 b) “the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute”167 and c) the person against whom an accusation is made, has already been tried and a new trial is impermissible under the provisions of article ..168 . Article . articulates the factors evidencing unwillingness on the part of a State to bring the accused to justice. Unwillingness may be discerned where: a) the proceedings were undertaken with a view to shielding the person involved from criminal responsibility for crimes within the jurisdiction of the Court, b) unjustified delay in circumstances revealing inconsistency with an intent to bring the person concerned to justice; the delay must be inexcusable and be of a character negating the existence of intent to bring the accused to justice; or c) the proceedings are not conducted independently or impartially or where they are conducted in a manner inconsistent with true intent to bring the person concerned to justice.

In its recent decision Prosecutor v. Katanga/Chui,169 the Appeals Chamber addressed the interpretation and application of articles .(a) and (b), with a view to determining when the Court may fairly conclude that a state is either unwilling or unable to prosecute the offenders in good faith. In the first place, the Appeals Chamber decided that a question of unwillingness or inability to prosecute is: relevant only where due to ongoing or past investigations or prosecutions in that State, the case appears to be inadmissible. Article ()(a) of the Statute covers a scenario where, at the time of the Court’s determination of the admissibility of the case, investigation or prosecution is taking place in a State having jurisdiction. This is expressed by the use of the present tense, “[t]he case is being investigated or prosecuted by a State (emphasis added)”.170 166

Article .(a). Article .(b). 168 See article .(c). 169 Prosecutor v. Katanga/Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of  June  on the Admissibility of the Case,  September  (ICC-/–/–). 170 Ibid., para. . 167



chapter four

Article .(b) comprises, as the Appeals Chamber identified, two cumulative elements that have to be fulfilled for a case to be inadmissible: the case must have been investigated, and the State having jurisdiction must have “decided not to prosecute”.171

The first question, at the time of consideration of the issue of admissibility is whether “at that time there were ongoing investigations or prosecutions”. Thereafter the purpose of article .(b) of the Statute, as the Court observed, is to ensure that the Court respects genuine decisions of a State not to prosecute a given case, thereby protecting the State’s sovereignty. However, the provisions must also be applied and interpreted in light of the statute’s overall purpose, as reflected in the fifth pararaph of the Preamble, namely “to put an end to impunity”172

There is an element of ambiguity as to the implications of a State otherwise having the means to investigate and prosecute a suspect, relinquishing jurisdiction in favour of the ICC. In the first place it is asserted: [ . . . ] there may be merit in the argument that the sovereign decision of a State to relinquish its jurisdiction in favour of the Court may well be seen as complying with the “duty to exercise [its] criminal jurisdiction”, as envisaged in the sixth paragraph of the Preamble.

Thereafter, the Chamber added: Be this as it may, however, the Appeals Chamber is mindful that the Court, acting under the relevant provisions of the Statute173 and depending on the circumstances of each case, may decide not to act upon a State’s relinquishment of jurisdiction in favour of the Court.174

Ultimately, the position is propounded: In the Chamber’s view, the general prohibition of a relinquishment of jurisdiction in favour of the Court is not a suitable tool for fostering compliance by States with the duty to exercise criminal jurisdiction.175

Unwillingness or inability of a State to conduct the necessary investigations and bring those appearing responsible to justice is in no way qualified by the sovereign right of a State to relinquish jurisdiction. Failure to investigate and/or prosecute for any reason in light of evidential material warranting either or both courses, signifies per se unwillingness evidenced by the delay to bring those responsible to justice (article .(b)), stigmatising the State responsible with 171 172 173 174 175

Ibid., para. . Ibid., para. . Footnote omitted. Ibid., para. . Ibid. para. .

competence—jurisdiction—admissibility



failure to fulfil its obligations under the Statute. A State Party has a duty under the Statute to both investigate and prosecute crimes within the jurisdiction of the Court, a duty from which it cannot abdicate. Refraining from so acting betrays unwillingness to carry out the State’s duties and, on that account, the Court may assume jurisdiction. . Independence of the investigatory and prosecutorial authorities signifies freedom from any source or sphere of influence that might derail, taint or divert the authorities from their tasks. Impartiality denotes lack of bias on the part of the authorities especially on the part of judges, actual or apparent; the appearance of bias revolves around the perceptions of a reasonable onlooker informed of the facts of the case. The maxim that justice must not only be done but be seen to be done is the guide to the assessment of the impartiality of the Judiciary. . Inability to deal with a case involving crimes within the jurisdiction of the Court, may be demonstrated by a total or substantial collapse or unavailability of the national judicial system or inability to arrest the accused or gather evidence and tender testimony or inability to otherwise carry out the necessary investigations.176 In Prosecutor v. Kony a.o. “Warrant of arrest for Joseph Kony issued on  July ”,177 Pre-Trial Chamber II found that the inability of the State of Uganda to arrest the ring leaders of the crimes committed in the situation referred to the ICC and sequentially, as may be surmised, inability to conduct the necessary investigations established inability on the part of the State to deal with the crimes referred to the ICC. Following this finding, the Court did assume jurisdiction to deal with the case before it, namely, an application for the issuance of warrants of arrest of named persons for crimes committed within the territory of the referring State. Decisions to the same effect, founded on the same reasoning, were issued in the same case.178 . A State lacking ability to bring the accused to justice owing to a breakdown or the absence of the indispensable attributes of its judicial system may acknowledge inability to assume jurisdiction and refer the case to the ICC. 176

Article .. Prosecutor v. Kony a.o., Warrant of Arrest for Joseph Kony issued on  July  as amended on  September ,  September  (ICC-/–/–), p. . 178 Prosecutor v. Kony a.o., Warrant of arrest for Vincent Otti,  July  (ICC-/–/– ); Prosecutor v. Kony a.o., Warrant of arrest for Raska Lukwiya,  July  (ICC-/–/– ); Prosecutor v. Kony a.o., Warrant of arrest for Okot Odhiambo,  July  (ICC-/– /–); Prosecutor v. Kony a.o., Warrant of arrest for Dominic Ongwen,  July  (ICC/–/–). 177



chapter four

Article  does not restrict or qualify in terms the right of a State Party to refer to the ICC crimes committed within its jurisdiction if, for any one of the reasons stipulated for in the Statute, the State lacks the means to do so herself. The test for referring a case to the Court, laid down in article , is whether the subject situation is one “in which one or more crimes within the jurisdiction of the Court appear to have been committed [ . . . ]”.179 So far the ICC has had three self-referrals by three states on grounds of inability to deal with the crimes referred to the Court, namely, by Uganda on  January , by the Democratic Republic of the Congo on  April  and by the Central African Republic on  December .180 . Article  incorporates the rule against double jeopardy, one of considerable antiquity—ne bis in idem—a fundamental principle of law assuring the right of a person not to be tried more than once for the same act(s). The principle embodied in article . is that no one tried and acquitted or convicted by a court of law for a crime within the jurisdiction of the ICC shall be tried again by another court of law. This principle is subject to the following qualification; notably that persons who have been tried for conduct proscribed by articles ,  and  shall not be tried again unless the proceedings leading to conviction or acquittal were held for the purpose of shielding the person from criminal responsibility.181 The very object of the first proceedings must have been to shield the person tried from subsequent prosecution for the same offence. The existence of such an intent may be proved directly or indirectly by establishing a) that material evidence was not adduced before the Court as well as failure on the part of the prosecuting authorities to confront flimsy excuses of the conduct of the accused that do not stand to reason and b) where the proceedings were not conducted independently or impartially in accordance with the norms of due process, or were conducted in a manner inconsistent with a genuine intent to bring the accused to justice. . Article .(d) provides that a case may be held to be inadmissible if it “[ . . . ] is not of sufficient gravity to justify further action by the Court”. In the opinion of Pre-Trial Chamber I this provision of the law establishes, as earlier noted, an “additional gravity threshold to the one imposed by article ”. The combined effect of the two articles is, according to the aforesaid decision, to

179

Article .. See inter alia Press releases of the Prosecutor “Re Uganda and Congo” dated  January  and Prosecutor’s letter to the President of the Court dated  December  regarding the Central African Republic. 181 Article .(a). 180

competence—jurisdiction—admissibility



limit the persons subject to the jurisdiction of the Court to the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the Court. The Appeals Chamber reversed the decision for reasons earlier stated.182 The judgment of the Appeals Chamber was adhered to by Pre-Trial Chamber I in a subsequent case.183 . The lack of gravity envisaged by article .(d), must stem from the insignificance or immateriality of the mens rea or actus reus, or both, in the commission of the offence. The criminality of the accused must be wholly peripheral to the commission of the offence bordering the de minimis rule. Both the inception and the consequences of the crime must be negligible such as to merit no further action by the Court. “Further” in the context of article .(d) denotes action additional to action already taken against the person in question.

IV. Crimes amenable to the jurisdiction of the Court . The crime of genocide . The background to the emergence of the crime of genocide can be traced to the declaration of the allies of  describing the mass killing with a view to elimination of the Armenian population by the Ottoman Empire as a crime against humanity and civilisation. Genocide was prosecuted as a crime against humanity before the Nuremberg and Tokyo tribunals. Raphael Lemkin184 as earlier noted is credited with coining the term ‘genocide’ first by reference to the destruction of the Armenian population in the First World War.185 Subsequently, the term was adopted as an appropriate characterisation of the planned and merciless elimination of the Jewish population of Europe by Nazi Germany. In  the General Assembly of the United Nations by Resolution (I) declared genocide to be a crime against humanity and called for the preparation of a Convention condemning genocide as an identifiable crime against humankind. Such a Convention was prepared and adopted by the 182

See supra paras –. See Prosecutor v. Katanga, Decision on the Evidence and Information Provided by the Prosecution for the Issuance of the Warrant of Arrest for Germain Katanga,  November  (ICC-/–/–). 184 First used the term in print: R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (, Columbia University Press; later edition, ), p. . 185 R. Fisk, The great war for civilization: the conquest of the Middle East, (October ) (London, Fourth Estate; xxvi), p. . 183



chapter four

General Assembly (Resolution  (III)) on  December .186 In Akayesu,187 The International Criminal Tribunal for Rwanda acknowledged genocide as part of customary international law forming part of jus cogens. A decision to the same effect was delivered by the International Criminal Tribunal of Former Yugoslavia, in Prosecutor v Kristic.188 The definition of genocide in the Statute is fashioned to the definition of the corresponding crime in the United Nations Convention of  (article ). Article  defines genocide thus: For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. Killing members of the group; b. Causing serious bodily or mental harm to members of the group; c. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d. Imposing measures intended to prevent births within the group; e. Forcibly transferring children of the group to another group.

. The criminal acts, the actus reus of the crime of genocide, must be accompanied with intent to destroy in whole or in part the human groups identified in article  of the Statute. The intent, the motivating force for the prohibited physical acts, must be to destroy in whole or in part defined groups of human beings. “Destroy” in this context signifies annihilation or such mutilation and defacement going to the core of a group; such as to eliminate its existence. . Crimes against humanity . The history of crimes against humanity can again be traced back to the allied declaration of .189 The Nuremberg Charter identified crimes against humanity as a distinct category of international crimes.190 The Charter 186 Convention on the Prevention and Punishment of the Crime of Genocide,  December , UN Doc. A/RES/ (III). 187 Trial Chamber I, Prosecutor v Jean-Paul Akayesu, Judgment of  September , para. , Case No. ICTR-–-T. 188 Appeals Chamber, Prosecutor v. Radislav Kristic, Judgment of  April , Case No. IT–-T. 189 See supra para. . 190  August  London Charter of The International Military Tribunal (or Nuremberg Charter), see article : “The Tribunal established by the Agreement referred to m Article  hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties,

competence—jurisdiction—admissibility



of the Tokyo Tribunal likewise acknowledged crimes against humanity and many were convicted for the commission of such crimes.191 The Draft Code of Offences against Peace and Security of Mankind of  acknowledges crimes against humanity as forming part of customary international law. The statutes of the ICTY192 and ICTR193 incorporate as their subject crimes against humanity. A number of statutes have categorised conduct as constituting crimes against humanity or outlawed conduct offensive to human dignity. Amongst them are a) the International Convention on the Suppression and Punishment of the Crime of Apartheid 194 categorising apartheid as a crime against humanity, b) the Inter-American Convention on the Forced Disappearance of Persons, ,195 binding member states to criminalise such conduct. Another step relevant in this connection is the Declaration of the General Assembly196 on the Protection of all persons from forced disappearance, conduct deemed offensive to human nature coupled with an invitation to member states to criminalise such conduct in national legislation.

agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” 191 See article  c) of the Charter of the International Military Tribunal of the Far East as attached to the Proclamation by the Supreme Commander for the Allied Powers of  January : “Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” (as re-printed in M. Boot, Genocide, Crimes against Humanity, War Crimes: Nullum crimen sine lege and the subject-matter jurisdiction of the International Criminal Court, (), pp. –). 192 UN Doc. S/RES/ ( May ). 193 UN Doc. S/RES/ ( November ). 194 International Convention on the Suppression and Punishment of the Crime of Apartheid, UN Doc. A/RES/ (XXVIII),  November  entered into force on  July . 195  Inter-American Convention on the Forced-Disappearances of Persons, entered into force  March ,  UN Treaty Collections . 196 Declaration on the Protection of All Persons from Forced Disappearance,  December , UN Doc. A/RES//  U.N GAOR Supp. (No. ), at .



chapter four

. The definition of crimes against humanity encompasses criminal conduct acknowledged by customary international law as constituting crimes against humanity expanded by treaties, conventions and declarations of the General Assembly of the United Nations, adding to the list forced pregnancy and enforced sterilisation. . Crimes against humanity are thus defined by the Statue: Article  . For the purposes of this Statute, “crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: a. Murder; b. Extermination; c. Enslavement; d. Deportation or forcible transfer of population; e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; f. Torture; g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity; h. Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph , or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; i. Enforced disappearance of persons; j. The crime of apartheid; k. Other inhumane acts or of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

. A principal element of crimes against humanity, enumerated in article , is that they should be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. “Widespread”197 can be contrasted to “isolated”.198 The prohibited conduct must be spread over a wide area or cover a multitude of people or both. “Systematic”199 can be contrasted to “random”. “Systematic” is conduct adhering to a system, a pattern, repetitive, revealing by its recurrence, a “system”.

197 198 199

Shorter Oxford English Dictionary, (th ed. Volume ), p. . Shorter Oxford English Dictionary, (th ed. Volume ), p. . Shorter Oxford English Dictionary, (th ed. Volume ), pp. –.

competence—jurisdiction—admissibility



. In Prosecutor v. Harun (“Ahmad Harun”) and Abd-Al-Rahman (“Al Kushayb”),200 Pre-Trial Chamber I adverts, in the passage cited below, to the notions of “widespread” and “systematic” in article : . The reference to a widespread or systematic attack has been interpreted as excluding random or isolated acts of violence from the notion of crimes against humanity.201 Nevertheless, it is still necessary to assess the systematic or widespread nature of the attack. In light of these arguments, the Chamber is of the view that “widespread” refers “to the large-scale nature of the attack and the number of targeted persons”, while “systematic” refers to “the organised nature of the acts of violence and the improbability of their random occurrence”. The Chamber is also of the view that the existence of a State or organisational policy is an element from which the systematic nature of an attack may be inferred.

The same approach is reflected in the decision of Pre-Trial Chamber I in the subsequent case of Prosecutor v Katanga.202 . The concept of “attack directed against any civilian population” is interpreted by paragraph  of article  as follows: (a) “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph  against any civilian population pursuant to or in furtherance of a State or organizational policy to commit such attack;

In accordance with this definition, the onslaught against civilian population must adhere to a plan; the offspring of a policy directed to that end. The perpetrators must act “with knowledge of the attack”, that is, they must be aware that the prohibited act they are committing is aimed at inflicting damage to civilian population. . Article . defines and exemplifies the basic ingredients of crimes against humanity postulated in article . of the Statute. Conduct amounting to a crime against humanity must be directed towards the a) extermination, b) enslavement, c) deportation or forcible transfer of population, d) torture, e) forced pregnancy, f) persecution, g) the crime of apartheid or h) enforced disappearance of persons as articulated in article .. 200 Prosecutor v. Ahmad Harun and Al Kushayb, Decision on the Prosecution Application under Article  () of the Statute,  April  (ICC-/–/–), paras –. 201 Prosecutor v. Rutaganda, Trial Chamber Decision, Case No. ICTR-–-T T.Ch. I,  December . 202 Prosecutor v. Katanga/Chui, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga,  November  (ICC/–/–).



chapter four . War Crimes

. War crimes are comprehensively defined by article  of the Statute. Paragraph  reads: The Court 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.

. “Plan” and “policy” are distinguished. “Plan”, in this context, denotes a settled arrangement with defined parameters for action to be taken. “Policy” denotes a course of action to be pursued. In either case the object is the same. The third alternative, “large-scale commission of such crimes”, signifies the commission of the prohibited physical acts on a grand or massive scale, independently of any pre-existing plan or policy. The phrase “in particular” is often used to instantiate a species of conduct but not so in the context of article .. Here, it singles out the species of mens rea that must accompany the commission of the physical act(s) listed in article . . Paragraph (a) of article  defines war crimes as follows: (a) Grave breaches of the Geneva Conventions of  August , namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

Eight such acts203 are enumerated thereunder. Paragraph (b) adds another category of war crimes encompassing “other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:” Twenty-six such violations are listed thereunder.204 . By and large, the crimes identified here involve breaches of acceptable or tolerable ways and means of waging war, breaches of the fundamental rights of civilians and combatants and breaches of the special protection to which identified categories of persons and buildings are entitled to. War does not supersede the fundamental rights of the non-combatants nor does it subordinate them to the need of a warring party to win the war. Specific reference must be made to the provisions of paragraph (b)(xx) of article  envisaging the identification and prohibition of the use of “weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury to unnecessary suffering or which are inherently indiscriminate in violation of the international 203 204

Article ..(i)-(vii). Enumerated in Article .(b)(i)-(xxvi).

competence—jurisdiction—admissibility



of armed conflict” to be included in an annex to the Statute to be introduced by an amendment thereto at the Review Conference envisaged by articles  and , of a nature apt to cause superfluous injury or unnecessary suffering. Nuclear weapons are a preeminent candidate for prohibition. . The subject of article .(b) is the violation of the law and customs applicable in an international armed conflict. An international armed conflict is distinguished from an “armed-conflict not of an international character”. Breaches of the rules applicable in the latter case are the subjects of paragraph (c), (d) and (e). An international armed conflict involves an armed conflict between two or more states whereas a non-international conflict involves a conflict between combatants within a state.205 . Pre-Trial Chamber I addressed the differences between the two species of conflict and noticed instances where the two may overlap in its decision Prosecutor v Lubanga Dyilo.206A conflict erupting within the boundaries of a state may acquire an international character if engineered and/or supported by a State assisting one of the embattled parties. In the aforesaid decision, Pre-Trial Chamber I identifies the parameters of an international armed conflict in the way specified in the paragraph following: . The Chamber considers an armed conflict to be international in character if it takes place between two or more States; this extends to the partial or total occupation of the territory of another State, whether or not the said occupation meets with armed resistance. In addition, an internal armed conflict that breaks out on the territory of a State may become international—or, depending upon the circumstances, be international in character alongside an internal armed conflict—if (i) another State intervenes in that conflict through its troops (direct intervention), or if (ii) some of the participants in the internal armed conflict act on behalf of that other State (indirect intervention).

Further down, the court indicates that if the armed forces of a country are not involved, an internal conflict may have the attributes of an international armed conflict if a foreign state plays a significant part in encouraging and assisting one of the parties to the conflict in its pursuit. The matter is put thus: . The Chamber holds the view that where a State does not intervene directly on the territory of another State through its own troops, the overall control test will be used to determine whether armed forces are acting on behalf of the first State.

205

G. Werle, Principles of International Law, (TCM Asser Press, The Hague, ), p. . See also I. Brownlie, Principles of Public International Law, (th ed. ), p. . 206 Prosecutor v. Lubanga Dyilo, Decision on the confirmation of charges,  January  (ICC-/–/–).



chapter four The test will be met where the first State has a role in organising, co-ordinating or planning the military actions of the military group, in addition to financing, training and equipping the group or providing operational support to it.

. An armed conflict unfolding within the boundaries of a state would acquire the attributes of an international conflict if one of the parties to the conflict acts as a surrogate of a foreign state. In appraising the elements of an international as opposed to a non-international armed conflict Pre-Trial Chamber I in its aforesaid decision derived support from the judgment of the ICJ in Democratic Republic of the Congo v Uganda.207 In its judgment the ICJ identifies the nature of the support and the implications of the involvement of one State in another in order to qualify as an armed conflict between two states. The case concerned the Republic of Uganda and the Democratic Republic of the Congo the question being whether Uganda had intervened in Ituri, part of the territory of the Democratic Republic of the Congo. The ICJ gave a positive answer to the question in light of evidence that Uganda had actively extended “military, logistic, economic and financial support to irregular forces having operated in the territory of the DRC violated the principle of non-use of force in international relations and the principle of non-intervention and that it can be considered as an occupying Power.”208 . Occupation of a foreign country, as noted in the above case, involves not only the stationing of forces in that country but the substitution of their authority for that of the government of the occupied country over the whole or any part of that country.209 . A neat question is whether foreign intervention in a country in the grip of an internal armed conflict for purely humanitarian reasons, unaffected by the promotion of the interest of any one of the combatants would turn the conflict into an international one. Inasmuch as the protection of humanity from the horrors of war is a universal goal, it may be legitimately argued, that intervention for purely humanitarian purposes can never convert the act into one of war. In such circumstances, the unfolding conflict would not forfeit its internal character.

207 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgement of  December . 208 Prosecutor v. Lubanga Dyilo, Decision on the confirmation of charges,  January  (ICC-/–/–), para. . 209 See ibid.

competence—jurisdiction—admissibility



. Paragraph (c) of article  identifies acts constituting crimes committed in the context of an armed conflict “not of an international character” that form the subject-matter of the four Geneva Conventions of  August  namely: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

. Paragraph (d) distinguishes armed conflicts not of an international character from internal disturbances and tensions such as “riots, isolated and sporadic acts of violence or other acts of a similar nature” confining the application of paragraph (c) to the former. Whether an upheaval assumes the character of a conflict is a matter of fact and degree. The intensity of opposition to the government in power, the area over which it is manifested, and the means used to evince opposition are factors relevant to the drawing of the dividing line between the two. . Paragraph (e) incorporates within the prohibitory range of the Statute “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts . . . ”. The acts identified thereunder correspond in large measure to criminal conduct categorised in article .(b). Paragraph (f) of article  clarifies that paragraph (e) and paragraph (c) have no application to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence or other acts of a similar nature. Paragraph (f) of article  illuminates the scene with regard to the nature of an armed conflict not of an international character. It provides: It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

. At the end of paragraph  of article , it is clarified: Nothing in paragraph  (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.



chapter four . Elements of Crimes

. Article  lays down: . Elements of Crimes shall assist the Court in the interpretation and application of articles ,  and . They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. . Amendments to the Elements of Crimes may be proposed by: (a) Any State Party; (b) The judges acting by an absolute majority; (c) The Prosecutor. Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties. . The Elements of Crimes and amendments thereto shall be consistent with this Statute.

. Pursuant to the provisions of article , the Elements of Crimes were adopted by the General Assembly of States Parties at its first session on  September .210 They constitute a unique legal instrument, unprecedented, so far as I am aware, in the annals of treaty laws criminalising conduct on the international plane. . The interpretation of law is a judicial function, an incident of the judicial power. The Legislature makes the law and the Judiciary interprets and applies it. The interpretation of law is interwoven with its application in the diverse circumstances covered by a legislative enactment. The Elements of Crimes are not by the express terms of article  intended to supplant the interpretative role of the Court but to provide, as declared, assistance in the interpretation of the law on condition that such aid as may be provided does not come into conflict with the wording of the relevant statutory provisions. The aid provided as may be gathered from a reading of the Elements of Crimes is intended to exemplify more than interpret applicable law. The Elements of Crimes leave unaffected the rules governing the interpretation of the Statute such as the Vienna Convention on the Law of Treaties. . Consistency with the Statute requires that the interpretative assistance provided by the Elements of Crimes must conform to the meaning of the statutory provisions as it emerges from the language used. If not, the assistance provided would be incompatible with statutory provisions and as such ultra vires the Statute. 210

See ICC-ASP// (part II-B), adopted on  September , entered into force on  September .

competence—jurisdiction—admissibility



. The Elements of Crimes are divided into four parts; the general introduction and the three chapters following thereafter articulating the elements of each of the three crimes defined in articles ,  and . Each chapter is preceded by an introduction furnishing a guide to the interpretation, ambit and compass of the elements of the crimes or some of them. a. The general introduction . Save for paragraph , the general introduction adds little to the scheme of the Statute as to the principles relevant to the determination of criminal responsibility. It affirms that in the absence of indication to the contrary, article  requires that acts founding the material elements of a crime must be committed with intent and knowledge. Thereafter, exceptions to the principles enshrined in article  are identified going beyond instantiating the application of article  in the diverse circumstances in which a crime within the jurisdiction of the Court may be committed. . Paragraph  states: “Existence of intent and knowledge can be inferred from relevant facts and circumstances.” This is nothing other than a repetition of the inevitable. Intent and knowledge cannot be founded in the abstract. Nowhere in the Statute or the Rules of Procedure and Evidence is the meaning of “intent and knowledge” qualified. . In paragraph  it is explained that grounds excluding criminal responsibility or identifying its absence are not specified in the Elements of Crimes; nor is unlawfulness under the Statute or international law. In paragraph  we are informed of the sequence in which the Elements of Crimes are presented namely, specification of the: a) conduct, b) consequences and c) circumstances associated with each crime. The mental element is listed, as explained, after the articulation of the offensive conduct, consequences or circumstances surrounding the commission of the crime. . Paragraph  reads: With respect to mental elements associated with elements involving value judgement, such as those using the terms ‘inhumane’ or ‘severe’, it is not necessary that the perpetrator personally completed a particular value judgement, unless otherwise indicated.

. The above paragraph aims to redefine the mental element as an ingredient of the conduct criminalised. Value judgment signifies assessment or evaluation of a situation or a given set of facts. For a crime to be committed, the perpetrator



chapter four

must intend the consequences of his/her acts or be aware that they will follow in the ordinary span of events. If the law requires intent to commit an act characterised as inhuman or severe, the intent must be to commit the act that has the attributes of the inhumane conduct. If the object of paragraph  is to do away with the above, then we are confronted with a case of modification of the definition of a crime provided by the Statute. On the other hand, if paragraph  is construed as confined to clarifying that the perpetrator need not be aware of the legal characterisation of the act that he commits as e.g. inhumane conduct, paragraph  would be superfluous for criminal intent is only associated with the commission of the acts that constitute the offence, with the perpetrator intending to bring about the consequences prohibited by law or being aware that they will follow as a natural consequence. . Hereafter, we shall refer to the introduction to the crimes, the subjectmatter of articles ,  and . b. Genocide . The introduction to the identification of the elements of the crime of genocide, in other words, the ingredients of the offences catalogued thereunder, reads as follows: With respect to the last element listed for each crime: The term ‘in the context of ’ would include the initial acts in an emerging pattern; The term ‘manifest’ is an objective qualification; Notwithstanding the normal requirement for a mental element provided for in article , and recognizing that knowledge of the circumstances will usually be addressed in providing genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis.

. The meaning attached to “in the context of ” and “manifest” adds nothing to their ordinary meaning. The term “initial acts in an emerging pattern” exemplify the formation of mens rea for the physical acts planned to follow. If my reading of the introduction to the crime of genocide is correct, the Court should refrain from identifying the mental element involved in the commission of a crime and confine itself to doing so on a “case-by-case basis”. The Statute criminalises intent to destroy a group. Consequently the acts of the perpetrator must aim to destroy. His/her physical acts must be done with a view to achieving that object in contrast to merely injuring the person with a view to harming him/her. The above introduction does acknowledge that the actor must be aware of the reason why he attacks one or more individuals. What is difficult

competence—jurisdiction—admissibility



to understand is that the exercise of identifying intent must be carried out on a “case-by-case” basis. If this is meant to convey that the Court must in every case evaluate the evidence with a view to determining the presence of the necessary intent, it does nothing other than repeat the obvious. On the other hand, if the object is to refrain from identifying, in the process of interpretation, the ingredients of a crime, this would be a self-defeating exercise in that it would deprive the world of knowledge and certainty about the ingredients of the offence. Certainty about the ingredients of the crime is a fundamental norm of criminal law, essential for the conviction of the offender, making known, in advance, the implications of specified conduct. There must be certainty about the criminality of conduct. The mental element involved in the commission of any offence is a vital ingredient of a crime and as such must be of universal purport and effect. Not only the aforesaid part of the introduction to the crime of genocide could be of no assistance to the Court in the interpretation of the Statute but, in many ways, it derogates from the definition of the crime of genocide under the Statute. The facts of the case are relevant in determining whether the ingredients of the offence, as set out in the Statute, are present or absent in the conduct of the accused. The mental element cannot be singularly identified by reference to the facts of a particular case. c. Crimes against humanity . The introduction in the Elements of Crimes to crimes against humanity reads as follows: . Since article  pertains to international criminal law, its provisions, consistent with article , must be strictly construed, taking into account that crimes against humanity as defined in article  are among the most serious crimes of concern to the international community as a whole, warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world. . The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack. . ‘Attack directed against a civilian population’ in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article , paragraph , of the Statute against any civilian population,



chapter four pursuant to or in furtherance of a State or organizational policy to commit such attack The acts need not constitute a military attack. It is understood that ‘policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population.

. Paragraph  adds little, if anything, to the interpretation of the Statute. That crimes under the Statute must be strictly construed and in case of ambiguity interpreted in favour of the accused is laid down in clear terms in article . Individual criminal responsibility is the centrepiece of the Statute spelled out in no uncertain terms in article . The meaning of the third component of paragraph  is hard to discern: “[ . . . ] and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.” The prohibited conduct is specified in the Statute. In fact the definition of the various crimes against humanity derives from international law. If the aim here is to add another ingredient to the crimes identified and defined by the Statute, the exercise is wholly impermissible. This is not an aid to the interpretation of the Statute but a provision inconsistent with it. One may query whether the conduct should be prohibited by national law or by the laws of acceptable legal systems. That is an additional ground for questioning the legitimacy of the relevant part of this introduction. . Reference in paragraph  to the fact that crimes against humanity as defined in article  are “among the most serious crimes of concern to the international community as a whole” is hard to comprehend. All three crimes listed by article  belong to this category of crimes, so identified because of their gravity and the concern of the international community about their commission. If this part of paragraph  is intended to convey that crimes against humanity are, from the perspective of their seriousness, differentiated from the other two, this runs counter to the wording of the Statute, its spirit and effect. . Paragraph  reads as follows: The last two elements for each crime against humanity describe the content in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack.

. The beginning of paragraph  is explanatory of the elements of crimes against humanity and, to the extent that this aim is accomplished, it can be of

competence—jurisdiction—admissibility



help to the Court in interpreting the Statute. The passages that follow do not reflect a proper understanding of the law. The “last element” of each offence is identified as follows “[t]he perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population”. This should not be interpreted as requiring proof that the perpetrator “had knowledge of all the characteristics of the attack or the precise details of the plan or policy of the State or organization”. This may be construed as an attempt to loosen the mental element of the crime as defined by the Statute. The perpetrator should be aware, as the Statute plainly lays down, that the conduct was part of or was intended to be part of what is criminalised by the law, i.e. a widespread or systematic attack against a civilian population. The person must be aware of the material facts constituting the nature of the intended attack. To the extent that the passage reduces what must be proved, it cannot be reconciled with the Statute. The relevant passage can only be reconciled with the Statute if interpreted as meaning that the perpetrator need not have had knowledge of all the details of the plan or policy, save for the material aspects of it. . In reality, the aforesaid paragraph aims to qualify the meaning of the relevant provisions of the Statute. The Court is not aided but directed how to interpret the relevant provisions of the law, namely, that the requisite intent under the Statute is “satisfied if the perpetrator intended to further such an attack”. Whether this is the meaning that the statutory definition of the crime bears or not, we need not explore. We must point out that if the intent, as identified in the above clause, is not reconcilable with the provisions of the Statute, to that extent, the directive must be disregarded as inconsistent with it. In determining whether paragraph  above contradicts, extends or delimits the provisions of the Statute defining intent, regard must be had to article  of the Statute that reads: . Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

Furthermore, account must be taken of the provisions of article : . The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.

. Insofar as paragraph  seeks to provide assistance in interpreting the notion of “attack” in the context of article , it may be regarded as superfluous for the clarification of the term “attack” sought to be provided is inherent in



chapter four

the concept of an attack. The word “attack” in relation to offensive conduct by one person against another involves aggressive conduct involving, as a rule, the use of violence.211 The means employed in the attack are not confined to any particular species. d. War crimes . The introduction to war crimes reads as follows: The elements for war crimes under article , paragraph  (c) and (e), are subject to the limitations addressed in article , paragraph  (d) and (f), which are not elements of crimes. The elements for war crimes under article , paragraph , of the Statute shall be 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. With respect to the last two elements listed for each crime: – 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 noninternational; – In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international. – There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms ‘took place in the context of and was associated with’.

. The first paragraph reproduces the provisions of the Statute as to the impact of paragraphs (d) and (f) on the nature of the crimes enumerated in paragraphs (c) and (e) of the same article respectively. . Paragraph  of the introduction is prima facie another attempt to provide an interpretation of the Statute in that the meaning of its relevant provisions is correlated to sources extraneous to it. In reality, it adds nothing to the definition provided by the Statute founded on international law. Where it may be regarded as helpful it is in underlining that the notion of an armed conflict is not confined, as it is not, to conflicts occurring on land. Armed conflicts at sea or in the air are also embraced by the notion of armed conflict as identified in the Statute. The test for the identification of an armed conflict is the use of arms 211

Shorter Oxford English Dictionary, (th ed. Volume , Oxford University Press ), pp. –: “noun . . . . an act of attacking with violence or weapons; an attempt to defeat, kill, or injure; offensive action”, “verb, verb trans act against with violence or force of arms; see to kill or injure”.

competence—jurisdiction—admissibility



by the opposing sides in the pursuit of their goals. We may, in this context, cite with benefit the following passage from the judgment of the Appeals Chamber in Situation in the Democratic Republic of the Congo212 on the interpretation of the Statute guided by the principles established by the Vienna Convention on the Law of Treaties, ,213 articles  and  in particular: The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty . . . The self-evident purpose of the Statute is to make internationally punishable the heinous crimes specified therein in accordance with the principles and the procedure institutionalised thereby.214

. The third paragraph of the introduction attempts to provide an interpretation of the ingredients of the offence. The meaning of clause  of this paragraph is not altogether clear; specifically the passage: [ . . . ] a legal evaluation [ . . . ] as to the existence of an armed conflict or its character as international or non-international.

. Does it mean that the perpetrator need not be aware of the facts relevant to the conflict or does it merely refer to their implications in law? If the latter is the case, it adds little to legal reality inasmuch as knowledge of the facts associated with the formation of a criminal intent does not import knowledge of their legal character as such. On the other hand, if construed as meaning that the perpetrator need not be aware of the facts giving rise to the existence of the conflict, the proposition is hard to reconcile with the provisions of article  read in conjunction with article  which require not only knowledge of such facts, but that such knowledge should be the moving force of the physical acts that follow. 212 See Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July , (ICC-/–), para. ; see also Prosecutor v. Lubanga Dyilo, Decision concerning Pre-Trial Chamber I’s Decision of  February  and the Incorporation of Documents into the Record of the case against Mr. Thomas Lubanga Dyilo,  February , (ICC/–/–-US-Corr reclassified as public by ICC-/–/–), para. , Prosecutor v Lubanga Dyilo, Decision on the Practices of Witnesses Familiarisation and Witness Proofing,  November , (ICC-/–/–), para. . 213  United Nations Treaty Series , signed on  May  and entered into force on  January . 214 Situation in the DRC Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC/–), paras , .



chapter four

. If clause  of paragraph  of the introduction is read as meaning that the perpetrator need not be aware of the dimensions of the conflict, whether it be one of an international or non-international character, it is perfectly compatible with the Statute. But if construed as meaning that the perpetrator need not be aware of the existence of the conflict, it would be objectionable on grounds of inconsistency with the Statute. That the latter is not the meaning ascribed to the relevant clause by the legislator is made clear by the provisions of clause  of paragraph  which clarifies that the facts giving rise to an armed conflict, are amongst the ingredients of the offence. . The articles enumerated in the Elements of Crimes under each category of crimes, purport to identify the ingredients of each offence as they emerge from their statutory definition. Stripped of the objectionable parts of the introduction, they may provide a useful guide to the identification of the ingredients of the offences and their purport.

chapter five THE LAW APPLICABLE UNDER THE ROME STATUTE

. Article  specifies the law applicable by the Court, by every organ of it, in the exercise of its jurisdiction, competence and powers. Paragraph  is sub-divided into three paragraphs, setting out, in a descending order, the law finding application under the Statute. Paragraph  establishes that decisions of the Judiciary of the ICC on the interpretation of the applicable principles and rules of law provide a source of law whereas paragraph  renders internationally recognised human rights the bedrock for the application and interpretation of applicable law.

I. Article . . Article  () reads: The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

Below we shall analyse the content of each one of the aforesaid sub-paragraphs of article .. . Paragraph (a) is given “first place”. It signifies the predominant position of the Statute and instruments envisaged therein in the hierarchy of applicable laws. The term “[i]n the first place” may be contrasted with the term “[i]n the second place” encountered in sub-paragraph  denoting a supplemental position in the hierarchical order of applicability. The third sub-paragraph is introduced by “[f]ailing that” meaning that, in the absence of legal provision in either of the preceding sub-paragraphs governing a matter, its provisions come into play. The second comes in place of the first and the third in the



chapter five

absence of provision in either of the first two. The judgement of the Appeals Chamber in Situation in the Democratic Republic of the Congo confirms this analysis: Article () of the Statute provides that the Court must apply firstly the Statute, Rules of Procedure and Evidence and Elements of Crimes, secondly applicable treaties and the principles and rules of international law and thirdly, “[f]ailing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the Statute and with international law and internationally recognized norms and standards.”215

. The same decision sheds light on the process of identifying the absence of legal provision in the Statute regulatory or determinative of a given matter. As decided, if a matter is exhaustively defined by the first category of applicable law no recourse should be had to any other source for the identification of the law to be applied. And as the Court held, inasmuch as the right to appeal is comprehensively defined by the Statute, there is no room for recourse to any other source of law for the identification of appealable decisions or judgments. . The above judgment was followed by the Appeals Chamber in the subsequent case of Prosecutor v. Lubanga. The passage cited below reveals the approach of the Appeals Chamber to the subject of the hierarchy of laws under the Statute: The previous decision of the Appeals Chamber in Situation in the Democratic Republic of the Congo “Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal” is instructive on the interpretation of article  () of the Statute, particularly whether a matter is exhaustively dealt with by its text or that of the Rules of Procedure and Evidence, because in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject.216

215 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC-/–), para. . 216 See Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–), para. .

the law applicable under the rome statute



. Article . (a) . The enactment of the Elements of Crimes and the Rules of Procedure and Evidence is envisaged by the Statute. The “Elements of Crimes” is a unique legal instrument. It is meant, according to article —the enabling provision— to provide an aid to the interpretation and application of articles ,  and , defining the crimes of genocide, crimes against humanity and war crimes respectively. The applicability of the Elements of Crimes is conditioned, by article , by the need to be consistent with the provisions of the Statute. Provisions incompatible therewith fall outside the mandate of the Statute and, on that count, inapplicable.217 . Article  is not exhaustive of the authority conferred on the Assembly of States Parties to enact Rules of Procedure and Evidence. Numerous provisions of it envisage the complementation of the Statute by such rules, as well as the exercise of powers and competencies in the manner to be specified therein. . The Rules of Procedure and Evidence constitute, as their name implies, a combined code of procedure and evidence. Except where a matter is specifically assigned by the Statute to be regulated by the Rules of Procedure and Evidence, no limitation is imposed on the content of the code other than the one imported by the descriptive names “procedure and evidence” and the provisions of article ., laying down: In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.

Conflict arises if a provision of the Rules of Procedure and Evidence clashes with provisions of the Statute as may be discerned from the rules governing its interpretation. Compatibility or, better still, harmony with the provisions of the Statute is what denotes the absence of conflict.218 . Reference will be made hereafter to provisions of the Statute that assign regulation of specific subjects to the Rules of Procedure and Evidence. Article .(a) provides that a judge may be disqualified from sitting in a case for the reasons specified therein and, in addition thereto, for any other grounds to be set out in the Rules of Procedure and Evidence. Article . leaves the subject of use of any language other than the working languages of the Court, English and French, as the working language, in any one case, to be regulated by the Rules of 217 218

See supra paras –. See supra para. .



chapter five

Procedure and Evidence. Paragraph  of the same article authorises the establishment through the Rules of Procedure and Evidence of the criteria relevant to publishing important decisions of the Court in languages other than the working languages of the Court. Article . prescribes that not only the procedures but also the principles relevant to the exercise of the jurisdiction over offences against the administration of justice, should be established by the Rules of Procedure and Evidence. Authority for prescribing through the Rules of Procedure and Evidence sanctions, additional to those provided for in the Statute for the punishment of persons guilty of misconduct before the Court is bestowed by article .. Article .(d) envisages the adoption through the Rules of Procedure and Evidence of measures to protect national security information additional to those laid down in the Statute. A fine in addition to imprisonment may be imposed as provided in article .(a) in accordance with criteria to be established by the Rules of Procedure and Evidence. Victims of a miscarriage of justice may, at the discretion of the Court, be awarded compensation according to criteria set out in the Rules of Procedure and Evidence as stated in article .. Upon review of a sentence with a view to reduction, pursuant to the provisions of article .(c), factors tending to establish a change of circumstances sufficient to justify reduction are to be provided by the Rules of Procedure and Evidence. In paragraph  of the same article, it is envisioned that if no reduction of a sentence is approved on the first review, reduction of sentence shall be reconsidered thereafter at such intervals and in accordance with such criteria as provided in the Rules of Procedure and Evidence. Many other provisions of the Statute219 contemplate the enactment of specific rules primarily governing procedural matters by the Rules of Procedure and Evidence. . Article  binds the judges of the ICC to introduce Regulations governing the routine functioning of the Court. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments thereto. The regulations approved by judges must be submitted to the Assembly of States Parties. Thereafter, “[i]f within six months there are no objections from a majority of States Parties, they shall remain in force” (article .). It must be noticed that the Regulations of the Court are not included in the sources of law itemised in paragraph (a) of article .. The omission is explicable by the fact that such Regulations are not stricto sensu laws. They are rules governing the exercise of judicial power. One may argue that the establishment of such rules by the Judiciary is an aspect of its autonomy and sovereignty in 219 See inter alia articles ., .(a), ., .(b)(iii) ., ..a, ., ., .(b), .(e), ., ., ., ., ., ., ., ., ., ., .(a), .(c)(ii), ., ., ., ., ., ., ., .(c), .(a), .(g).

the law applicable under the rome statute



its domain. The Judiciary is in a unique position to set down rules regulating the exercise of judicial power and identify the requisites of its due exercise. It is no coincidence that the ambit of the Rules is confined, by article , to the routine functioning of the Court. In many national jurisdictions, regulations of the kind envisioned by article  are characterised as “Rules of Court” and treated as an incident of the exercise of the judicial power. Article  establishes that the Court shall be possessed of “such legal capacity as may be necessary for the exercise of its function and the fulfilment of its purposes”. The establishment of rules regulating the exercise of judicial power is a necessary element of the discharge of judicial duties. . Article . (b) . Article . (b) provides: The Court shall apply: [ . . . ] In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.

. We have already alluded to the meaning of “[i]n the second place”, signifying the absence of provision bearing on a subject in the law applicable “in the first place”. The phrase “where appropriate”, the second defining element of the paragraph of article  under consideration, is not easy to decipher. Does the term mean appropriate in the circumstances of the case or does it signify that the legal issue under consideration must be one addressed by treaty or international customary law? We cannot readily equate “where appropriate” with absence of provision on the subject in sub-paragraph (a), for that is implicit in the term “in the second place”. The word “appropriate” signifies “suitability” or “propriety”.220 The second meaning befits the spirit of the law. The meaning of the word “applicable” must also be addressed. The term “applicable treaties” refers to treaties whose provisions have a bearing on the sub judice issues before the Court. Principles and rules of international law encompass both, substantive and adjectival law. Reference to the inclusion of established principles of international armed conflict is meant to emphasise, without adding to what is preceded thereto, that the branch of international law in question is among the subjects of article .(b).

220

See meaning of “appropriate” in Concise Oxford English Dictionary, (th ed., Vol. , Oxford University Press ), p. .



chapter five . Article .(c) The Court shall apply: [ . . . ] Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

. We have already adverted to the meaning of “[f]ailing that” signifying absence of provision regulating a subject in the foregoing paragraphs. The principles of law deriving from national laws must be of “a general character”, that is, general principles of law in contrast to particular provisions individuating to the legislative needs of a country. The second requisite for the identification of such principles is that national laws must belong to “legal systems of the world”. They must adhere to a jurisprudential pattern widespread in its application to the extent of qualifying it as a system. Juxtaposing the aforesaid two phrases, “general principles” and “legal systems of the world”, we may fairly infer that the relevant principle of the law must be one common to national laws reflecting the approach of a legal system to the subject. A system in this context can be contrasted to indigenous or isolated legislation, rule or custom. . The next hurdle to be overcome in interpreting this part of article . is the identification of the meaning of “as appropriate”. This term is preceded by the word “including” meaning encompassment in what is in the subject preceding it. What is sought is to include national laws of states that would normally exercise jurisdiction in the case in the category of states whose laws adhere to a legal system. The key question here is whether the national law should form part of the category of laws made applicable by the preceding provisions of paragraph (c), that is, whether they should belong to or adhere to a system of law. This must be the case for otherwise we would be confronted with divergent sources of law in the absence of any guide as to the choice to be made. The interpretation of the expression “including as appropriate the national laws of states that would normally exercise jurisdiction over a crime” is not free of difficulty. The word “including” clarifies the breadth of what precedes it, embracing national laws of specified states conforming to the pattern of a legal system. It would be proper to have regard to such legislation—appropriate—if national courts would normally exercise jurisdiction over a crime, the subject matter of a judicial proceeding. General principles of law emanating from a legal system embody principles of a universal character as opposed to particular principles finding application in a specific country.

the law applicable under the rome statute



If different legal systems adopt different general principles bearing on a subject before the court, which of the two should apply? The answer must be found in the proviso to article .(c) that the application of general principles to which expression must be given should not be “inconsistent with the Statute and with international law and internationally recognized norms and standards”. Compatibility with the principles applicable under article .(c) with the proviso is a sine qua non for their applicability. Moreover, in case of conflict or divergence between general principles of legal systems, the ones to be applied should be those closer to the spirit and letter of international law and internationally recognised norms and standards. . The applicability of principles of law encompassed by article .(c) is subject to the following proviso: “[t]hey must not be inconsistent with the Statute and with international law and internationally recognized norms and standards”. The notion of inconsistency with the Statute in this context does not signify conflict with a specific provision of the Statute. For in that case principles introduced by sub-paragraph (c) would not come into play. Inconsistency refers to the general framework, objects, purposes and tenor of the Statute viewed as a whole. International law, the next component of this paragraph, needs no further explanation. The last part of this paragraph, “internationally recognized norms and standards”, signifies, on the one hand, fundamental principles of law universally recognised and the norms of due process of law on the other, the only acceptable way of doing justice, enshrined in the concept of a fair trial.

II. Article . . Article , paragraph , reads: The Court may apply principles and rules of law as interpreted in its previous decisions.

Firstly it must be clarified that paragraph  is independent of paragraph  and, as such, not subject to the hierarchy of sources of law delineated therein. It is an independent source of law coexisting with the sources specified in paragraph  but with a different remit; its subject-matter is not applicable law but the interpretation of applicable law by the Court. In the Separate Opinion of one of the judges of the Appeals Chamber in Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, the value of judicial decisions as a source of law is appraised as follows:



chapter five Judicial decisions identify the law applicable, determine its meaning, and delineate the range of its application as may be gathered from the object and purposes of the law revelatory of the spirit of a legislative enactment.221

. No distinction is made between decisions of the first instance courts of the ICC and those of the Appeals Chamber. Decisions of first instance courts reversed on appeal forfeit their jurisprudential value. Their significance as a source of law is diminished. Otherwise, article . does not distinguish between judgments of first instance courts and judgments of the Appeals Chamber. In the nature of things, decisions of the Appeals Chamber carry a greater weight inasmuch as they reveal the final word of the Court on a given subject. A contrary view of a first instance court can foreseeably be expected to be reversed on appeal. Article . does not, in terms, import the rule of stare decisis as known to common law jurisdictions. It is early days to tell whether previous decisions of the Appeals Court will acquire the status of binding precedent in relation to first instance decisions. For the sake of history we may recount that the rule of binding precedent as fashioned over the years in the UK has been mitigated by the House of Lords in its Practice Note of .222 Need was felt to mitigate the rigour of binding precedent in England by acknowledging amenity to the final court of appeal of the land, the House of Lords, to depart from previous decisions of its own when the principle enunciated or espoused therein a) is incontrovertibly wrong, b) leads to manifest injustice and c) it is irreconcilable with changed circumstances.223 Increasingly greater emphasis is laid on the soundness of the reasoning of a decision. Although a legal principle founded on a fallacious reasoning is not as such a ground for departing from a precedent, it often leads, as Lord Reed observes in Jones v Secretary of State for Social Service,224 to distinguishing a previous case as a way out bypassing thereby its binding force. Binding precedent has its roots in the need to ensure certainty about the law regarded as essential for its efficacy.225 On the other hand, decisions founded on erroneous or elliptical reasons are ab initio vulnerable to the extent that their ill-founded reasoning is detectable from the start and for that reason, cannot provide a firm guide as to the state of the law. Certainty about the law is the principle guide of a citizen in the conduct of his/her affairs. The rule of binding precedent serves that purpose but, like every rule, its 221 Prosecutor v. Kony a.o., Decision of the Appeals Chamber on the Unsealing of Documents,  February , (ICC-/–/–), para.  of the separate opinion of Judge Pikis. 222 ()  All E.R. ; see also R v Shipvuri ()  All E.R. ,  (HL). 223 See inter alia Practice Statement of the House of Lords—Note ()  All E.R. , R v Shivpuri ()  All E.R. ,  (HL). 224   All ER ,. 225 R v Hoare   All ER .

the law applicable under the rome statute



defects must be remedied, especially when ill-founded in reason, the common denominator in the transaction of the affairs of man and the discernment of truth. . Decided cases tend to reveal the trend emerging with regard to precedent. In Prosecutor v. Katanga Pre-Trial Chamber I followed two previous decisions of the Appeals Chamber226 considering it necessary “to strictly comply with the standards set down by the Appeals Chamber”.227 The same approach is reflected in another decision, that of Prosecutor v. Katanga.228 Other decisions of the Pre-Trial Chamber adhering to legal principles adopted in judgments of the Appeals Chamber concern the framework and interpretation of article .(d), especially the preconditions that must be met in order to justify an appeal.229 So far, principles emerging from judgments and decisions of the Appeals Chamber are followed by the Pre-Trial Chamber. The Trial Chamber too appears to follow this course insofar as they define the law applicable on any given subject, its interpretation and range of application. In Prosecutor v. Lubanga Dyilo, the trial court followed, as specifically stated in its decision, the judgment of the Appeals Chamber, “Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal”230 of  July  with regard to the analysis of article .(d), especially the

226 See Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “First Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC/–/–) and Prosecutor v Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “Second Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/–/–), paras –. 227 Prosecutor v. Katanga, First Decision on the Prosecution Request for Authorisation to Redact Witness Statements,  December  (ICC-/–/–), para. . 228 Prosecutor v. Katanga, Decision on the Defence Motion for Leave to Appeal the First Decision on Redactions,  December  (ICC-/–/–). 229 See ibid.; Prosecutor v. Katanga, First Decision on the Prosecution Request for Authorisation to Redact Witness Statements,  December  (ICC-/–/–); Situation in Darfur, Sudan, Decision on Request for leave to appeal the “Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation ()(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor”,  January  (ICC-/–), pp. –; Situation in the Democratic Republic of the Congo, Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation ()(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor,  January  (ICC-/–), pp. –. 230 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC-/–).



chapter five

prerequisites to be satisfied in order for leave to appeal to be granted.231 The same is true of its earlier decision in Prosecutor v Lubanga Dyilo both in relation to the majority and the minority of the Trial Chamber insofar as the identification of the applicable principles is concerned.232 Characteristically one of the Judges in his separate and partly dissenting opinion, speaking of the decision of the Appeals Chamber “Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal” of  July , says: I find this appeals judgement to be extremely useful in guiding the Trial Chamber’s deliberation and have strived in my analysis of the issues to apply Article  () (d) with strict adherence to the Appeals Chamber’s guidelines.233

The meaning of “decision” in article . is not confined to the dispositive part of a judgment, decision or ruling of the Court in that it does not of itself inform on the interpretation of the law, the text of the decision and its reasoning leading to the outcome of the case. If the Court is not unanimous as to the reasons founding the result of a case, both the majority and minority views that underpin the outcome constitute part of the decision and do provide a source of guidance. A decision in the context of article . is not confined to the ratio decidendi but extends to the whole of the judgement. Where the Court is not unanimous as to the reasons underpinning the outcome of a case, guidance may be derived both from the majority and minority opinions. Both form part of a decision of the Court. A more difficult question is whether article .. leaves room to consult and derive guidance from dissenting opinions. The statutory provisions refer to “decisions” without reference to their status. Article . requires that a judgment of the Appeals Chamber should contain, in the absence of unanimity “the views of the majority and the minority”. That a right is conferred upon judges of the Appeals Chamber to write a separate or dissenting opinion does not disembody their views from the judgment of the Court. Consequently reference in article . to a decision of the Appeals Chamber cannot be confined to a part of it. Sequentially it can be persuasively argued that both the majority and dissenting opinions do provide a source wherefrom guidance may be derived under article .. Naturally the majority view is a safer guide for first instance courts to follow not only because of its numerical strength but also because of the likelihood of it being followed 231 Prosecutor v. Lubanga Dyilo, Decision on the Defence request for leave to appeal the Oral Decision on redactions and disclosure of  January ,  March  (ICC-/–/– ), para. . 232 Prosecutor v. Lubanga Dyilo, Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims’ Participation of  January ,  February  (ICC/–/–), para. . 233 Ibid. para.  of the partly dissenting opinion.

the law applicable under the rome statute



in the future. On the other hand, if the dissenting opinion exposes the reasoning of the majority as ill-founded or fallacious, reason if nothing else, would warrant its adoption. . It is worth noting that in its decision of  June  entitled Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ,234 Trial Chamber I followed and applied the previous decision of the Appeals Chamber of  December 235 acknowledging that power vests in the court to stay judicial proceedings if impossible to hold a fair trial. . Another aspect of the matter is whether the ratio decidendi of previous decisions of the Appeals Chamber should, as a rule, be followed by the Appeals Chamber in its subsequent judgments or decisions. As earlier indicated, in the judgment in Prosecutor v. Lubanga236 the Appeals Chamber regarded a previous decision of its own as instructive on the interpretation of article . of the Statute. In Prosecutor v. Katanga237 the Court followed its previous decision with regard to what amounts to a good cause for the purpose of extending the time stipulated for taking procedural measures under the Regulations of the Court. The following laconic statement provides an indication of its approach to the subject: [ . . . ] what amounts to a good cause has been addressed in a previous decision of the Appeals Chamber (ICC-/–/–).

234

Prosecutor v. Lubanga Dyilo, Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ,  June  (ICC-/–/–). 235 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article () (a) of the Statute of  October ,  December  (ICC-/–/); see also Prosecutor v. Lubanga Dyilo Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC/–/–). 236 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–). 237 Prosecutor v. Katanga, Decision on the “Prosecution’s Urgent Application for Extension of Time to File Document in Support of Appeal”,  December  (ICC-/–/–), para. .



chapter five

. In the same spirit, in Prosecutor v. Katanga238 the Appeals Chamber followed its previous decision239 determinative of the absence of a right on the part of the appellant to reply to a participant’s response to the document in support of the appeal. In its last decision on the subject,240 the Appeals Chamber followed its previous decision on the theme of victim participation in appeal proceedings declining to depart therefrom on the ground that the court did “not find any convincing reasons to depart from its previous jurisprudence”241 leaving the impression that, if such reasons did exist, they could or might provide ground for departure from the previous jurisprudence of the court on a given subject. . Certainty about the law entailing opportunity to identify its principles and forecast its application is at the root of the subject we are discussing. What must be added is that the English doctrine of binding precedent in the field of criminal law has never been applied with the strictness with which it finds application in other areas of the law. However, the applicability of article . does not, as already explained, depend on the principle of stare decisis but on previous decisions constituting a source of law. The principle of binding precedent was evolved in common law jurisdictions by judges. What is binding is the ratio decidendi, that is, the reasons immediately founding the result of a case. Whether the principle of binding precedent will be adhered to by the judiciary of the ICC, and to what extent, is early days to tell. Lastly, it must be clarified that recourse to previous decisions as to the effect of the law is not obligatory but discretionary. The crucial term is “may” empowering the Court to have regard to previous decisions at its discretion. Nevertheless, enriching the scope of decision-making by reference to previous decisions can be regarded as counsel of wisdom.

238 Prosecutor v. Katanga, Decision on the Prosecution’s request for Leave to Reply,  January  (ICC-/–/–). 239 Prosecutor v. Lubanga Dyilo, Decision on the Prosecutor’s Application for Leave to Reply to “Conclusions de la defense en réponse au mémoire d’appel du Procureur”,  September  (ICC-/–/–). 240 Prosecutor v. Bemba Gombo, Reasons for the “Decision on the Participation of Victims in the Appeal against the ‘Decision on the Interim Release of Jean-Pierre Bemba Gombo’ ”,  October  (ICC-/–/–). 241 Ibid., para. .

the law applicable under the rome statute



III. Article . . Article . provides: The application and interpretation of the law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article , paragraph , age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

. Article . is a fundamental provision of the Statute, in fact, a cornerstone for both its application and interpretation. The word “must” in the context of article . imposes an obligation upon the Court to construe and give expression to applicable law consistently with internationally recognised human rights. There are no exceptions to the rule. The significance of article . in the interpretation and application of the law is depicted as follows in the judgment of the Appeals Chamber in Situation in the Democratic Republic of the Congo:242 Like every other article of the Statute, article  must be interpreted and applied in accordance with internationally recognized human rights, as declared in article  () of the Statute. Is a right to appeal against every decision of a hierarchically subordinate court to a court of appeal, or specifically an interlocutory decision of a criminal court to the court of appeal, acknowledged by universally recognized human rights norms? The answer is in the negative. Only final decisions of a criminal court determinative of its verdict or decisions pertaining to the punishment meted out to the convict are assured as an indispensable right of man. This is reflected in article  () of the International Covenant on Civil and Political Rights and many regional conventions and treaties giving effect to universally recognized human rights norms. This right is assured to the accused under article  of the Statute.

. In a similar vein the universality of the application of article . is identified in the following passage in the separate opinion of one of the judges in Prosecutor v. Lubanga Dyilo:243 Article  () of the Statute ordains the application and interpretation of every provision of the Statute in a manner consistent with internationally recognized human rights. Internationally recognized human rights in this area, as may be distilled from the Universal Declaration of Human Rights and international 242 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC-/–), para.  [footnotes omitted]. 243 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–), Judge Pikis, para.  of the separate opinion [footnotes omitted].



chapter five and regional treaties and conventions on human rights, acknowledge a right to an arrested person to have access to a court of law vested with jurisdiction to adjudicate upon the lawfulness and justification of his/her detention. Such a right is afforded to the arrestee from the outset. Detention can only be sanctioned on the authority of a judicial warrant in accordance with the provisions of article  () of the Statute. Moreover, a right is bestowed on the detainee to question the need for the continuation of his/her detention at any time thereafter with no limitation as to the number of times that he/she may invoke the jurisdiction of the court for this purpose (See articles  () and  () of the Statute).

. On two occasions, decisions of the Pre-Trial Chamber were set aside for lack of due reasoning.244 Due reasoning of a judgment is a fundamental attribute of a fair trial. It is a bulwark against judicial arbitrariness and an indispensable means of accountability of the Judiciary. In the first of the aforesaid cases, the Appeals Chamber stressed that the duty to reason a judgment is not mitigated by the fact that proceedings are conducted ex parte. In the second, a decision of the Pre-Trial Chamber on the authorisation of disclosure of witnesses’ statements and other documents was declared to be ill-founded for lack of due reasoning. The Appeals Chamber stressed: The reasons for a decision should be comprehensible from the decision itself. It is not sufficient for the Pre-Trial Chamber to identify simply which filings were before it.245

Earlier, it was pointed out that recitation of the relevant provisions of the law governing a given subject without providing reasons why and how it finds application in the case, falls short of the requisite reasoning.

244 See Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “First Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC/–/–) and Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “Second Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/–/–). 245 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “Second Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/–/– ), para. .

chapter six THE JUDICIARY: PRE-TRIAL, TRIAL AND APPEALS CHAMBERS

. The exercise of the judicial power of the ICC is entrusted to the three judicial divisions of the Court, i.e. the Pre-Trial, the Trial and the Appeals Chambers. The jurisdiction, competence and powers of each division are defined by the Statute, exercised by Chambers, set up in the manner ordained by the Statute. The Rules of Procedure and Evidence enacted pursuant to the provisions of article  and the Regulations of the Court adopted by reference to the provisions of article , complement the statutory framework within which judicial power is exercised. The functions of each division of the Court within the parameters of the legal framework elicited above are the subject of this chapter. Hereafter, we shall endeavour to analyse the jurisdiction, competence and powers of each of the three judicial layers of the Court. . An overview of the domain of authority of each judicial division confirms that each branch is assigned functions corresponding to its description. The Pre-Trial Chamber is invested with authority to deal with pre-trial issues, that is, issues preliminary to the trial of a case. Its functions include the authorisation of investigations and issues incidental thereto, the arrest and detention of a person or his/her summoning before the Court, the elicitation of evidence and disclosure to the counterparty prior to the confirmation hearing, and the holding of a hearing for the confirmation of charges. Power is also conferred upon the Trial Chamber to authorise measures for the protection of victims, witnesses and members of their families as provided in the Statute and the Rules of Procedure and Evidence. . The Trial Chamber, as its name suggests, is invested with competence to try every person committed to trial following the confirmation of charges and, in case of conviction, deal with every matter sequential thereto, such as imposing sentence upon a person found guilty (articles ,  and ), awarding reparations to victims (article ), and revising conviction or sentence where such an issue is remitted to it by the Appeals Chamber, under the provisions of article .(a) and (b) or hold a re-trial of a case where so directed by the Appeals Chamber (article .(b)).



chapter six

. Appellate jurisdiction is vested in the Appeals Chamber, the second and highest tier of the judiciary of the ICC. Specified decisions of first instance courts, the Pre-Trial and Trial Chambers, are appealable before the Appeals Chamber. The procedures governing the exercise and conduct of appellate proceedings are laid down in the Rules and the Regulations of the Court. The Appeals Chamber is vested with original jurisdiction in three areas: a) the revision of conviction or sentence at any time after their pronouncement upon the application of a person empowered to seek such a remedy under the provisions of article , b) the reduction of sentence after a person has served two thirds of the period of his/her prison sentence or  years in the case of life imprisonment, as provided in article . The jurisdiction of the Appeals Chamber in the latter case is exercised by three members of it, appointed for the purpose by the Appeals Chamber, as provided in rule  and c) questions of disqualification of the Prosecutor and Deputy Prosecutor to deal with any one case as provided in article . of the Statute.

I. Independence and impartiality of Judges . The independence and impartiality of the judiciary is a pillar of the administration of justice. Judges must be independent from every source of power, influence or authority and must so appear to be. In the discharge of their duties, judges must personify justice, inspiring confidence that their decisions are the command of the law. Bias in the discharge of judicial duties is anathema to justice. The appearance of partiality of the judiciary is no less damaging to the judicial mission than the existence of bias itself. Lord Devlin in his book “The Judge”246 says that the appearance of bias undermines the neutrality of the Judiciary just as much as bias itself. Confidence in the impartiality of the Judiciary is crucial for the administration of justice. Not only must judges be impartial and so appear to be, but they must also consciously suppress to the point of extinction every trace of prejudice generated by their schooling, their social or religious environment treating every person coming to court as having an equal right to justice. Doing justice to man is what the judicial mission is about. The aphorism of Lord Hardwick in St. James Evenings Post Case247 that nothing is of greater significance for freedom than the keeping of the stream of justice unpolluted so that everyone can have recourse to the court without fear 246 247

Lord Devlin, The Judge, (Oxford University Press, , ). St. James Evening Post Case ()  Atk. .

the judiciary



of consequences for his person or his reputation, is as valid today as it has ever been. Seeking to influence the course of justice is equally offensive. Generating prejudice against a litigant defies the right to a fair trial and undermines the mission of the Judiciary as the sole arbiter of the rights and duties of man. . Article . postulates the independence of judges as a basic attribute for the performance of judicial functions. It provides: The judges shall be independent in the performance of their functions.

The word “shall” makes the independence of judges a prerequisite for the discharge of judicial functions. Article  articulates in broad terms what judges must refrain from doing or engaging in, in order to safeguard their independence and the appearance of it. . Article . provides: Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.

This paragraph of Article  has a pre-emptive character, requiring judges to refrain from engaging in any activity likely to interfere with a) their judicial functions and b) public confidence in their independence. Assumption of judicial duties entails limitation of a judge’s activities in and out of court, requiring avoidance of action that may potentially expose his/her independence and impartiality to doubt. . Article . reads: Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature.

Judicial duties are assumed and exercised by full-time judges. Judges assume full-time duties at the request of the Presidency whenever it determines that the workload of the Court so requires. It is worth noting that article . states that “[a]ny such arrangement shall be without prejudice to the provisions of article ”, requiring that full-time judges should not engage in any other “occupation of a professional nature”. Professional occupation imports the notion of settled employment or systematic engagement in any activity usually accompanied, in either case, by benefits or rewards. . Article . provides: Any question regarding the application of paragraphs  and  shall be decided by an absolute majority of the judges. Where any such question concerns an individual judge, that judge shall not take part in the decision.



chapter six

The majority required should comprise more than half of the judges of the Court. . Article  requires a member of a Chamber to excuse himself/herself from the exercise of judicial functions in any one case, whenever the judge perceives lack of the attributes of independence and impartiality on his/her part. After all, a judge, more than anybody else, is expected to be ever alert to sustain the independence and impartiality of the court, as well as the appearance of it. The same article makes provision for the disqualification of judges in case of objections raised to their participation in a judicial proceeding. Article  reads: . The Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence. . (a) A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence. (b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph. (c) Any question as to the disqualification of a judge shall be decided by an absolute majority of the judges. The challenged judge shall be entitled to present his or her comments on the matter, but shall not take part in the decision.

. The test for disqualification is objective. The expression “can be reasonably doubted” signifies doubts entertained by a third party. The doubts must be founded on reason such as may be formed in the mind of a reasonable man, acquainted with the facts relevant to the subject. . Paragraph  of article , in conjunction with rule , clarifies that a judge, having reason to believe that his/her independence and impartiality can be doubted, should seek to excuse himself/herself from sitting in a case independently of any request for disqualification. A judge trusted to pass judgment on others should be in a position to determine whether he/she possesses the attributes of independence and impartiality. A request for recusal must be addressed to the Presidency as rule  provides. The Presidency has discretion in the matter. In its exercise, regard must be had to the freedom of conscience of a judge and his or her sense of duty. In the nature of things it would be difficult

the judiciary



for the Presidency to refuse an application for recusal. Questions of freedom of conscience of the judge enter the equation. Nevertheless, the Presidency may hold otherwise. Any such decision cannot stop a litigant from seeking the disqualification of a judge from the exercise of judicial functions in any one case. . In accordance with article .(a), a judge shall be disqualified if, inter alia, he or she was previously involved in any capacity in any case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. Mandatory disqualification is also imported on other grounds; those specified in rule . These are: a. personal or family interest, or a professional or subordinate relationship with any of the parties; b. involvement in legal proceedings where the person investigated or prosecuted was an opponent; c. performance of functions prior to assuming office in the context of which he or she could be expected to have formed an opinion about the case, the parties or their legal representatives that would objectively affect the expected impartiality of the judge; and d. Expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned. Paragraph (d) is a far-reaching provision, requiring the judge to refrain from expressing opinions or engaging in actions that could taint his/her impartiality. A relevant question is whether this paragraph applies to the expression of opinions prior to the assumption of judicial office. We have it from article . that actions of a judge prior to the assumption of judicial office may disqualify him from sitting in any given case. Rule .(d) on the other hand does not correlate the expression of such opinions by a judge to any particular period of time. Paragraph (c) of rule  reinforces the view that the prohibitory provisions of article  affect opinions expressed at any time. We can justifiably infer that paragraph (d) applies to opinions expressed prior to the assumption of judicial office. Disqualification arises from the expression of extra-judicial opinions, not opinions expressed in a legal ruling, decision or judgment. Importing disqualification with regard to opinions expressed in the context of judicial proceedings would inevitably suffocate the judicial process. The opinions expressed must give rise to bias perceived by a reasonable onlooker. The criterion is objective. To justifiably come to this conclusion, the opinion renderer must disclose a settled predisposition on a sub judice issue putting into question his/her credentials of independence and/or impartiality.



chapter six

. Both the Prosecutor and the person being investigated may seek the disqualification of a judge as provided in article .(b). Rule . requires that a motion for disqualification should be made by an application setting down the grounds upon which it is based. The judge is assured the right to present written comments on any such motion. . If a question of disqualification arises it must, by virtue of the provisions of article .(c), be determined by an absolute majority of the judges after hearing the judge concerned, the judge in question being ineligible to take part in the voting. . Rules  and  address questions pertaining to the resignation of judges and their replacement. Regulation  touches upon the same subject. . The Prosecutor and Deputy Prosecutor may be disqualified from participating in the investigation or prosecution of a case on grounds similar to those applicable to judges.248 . Regulation  makes provision for the adoption of a Code of Judicial Ethics by the majority of judges sitting in a plenary session. It reads: . The Presidency shall draw up a Code of Judicial Ethics, after having consulted the judges. . The draft Code shall then be transmitted to the judges meeting in plenary session for the purpose of adoption by the majority of the judges.

. A Code of Judicial Ethics was adopted pursuant to the provisions of regulation .249 The Code is fashioned in the spirit of the provisions of articles  and  and rule . What is new is the specification of the diligence required in the discharge of judicial functions, entailing a duty, on the part of judges, to maintain and enhance knowledge, skills and personal qualities (article  of the Code). The very assumption of judicial office entails a duty to cultivate judicial attributes and capacity in every way, coextensive with the duty of a judge to ready himself/herself for the judicial mission. A judge is expected to behave impeccably, in and out of court, providing a living example of a just person. . Article  of the Code lays down that, in their extra-judicial activities, judges must exercise their freedom of expression and association in a manner 248

See rule .. See Code of Judicial Ethics, ICC-BD/--, adopted on  March , entered into force on  March . 249

the judiciary



befitting their office without exposing judicial independence and impartiality to doubt (article . and . of the Code). Article . of the Code provides: While judges are free to participate in public debate on matters pertaining to legal subjects, the judiciary or the administration of justice, they shall not comment on pending cases and shall avoid expressing views which may undermine the standing and integrity of the Court.

This article acknowledges a right to judges to take part in debates on legal subjects and matters pertaining to the administration of justice, save that they must refrain from commenting on pending cases, subject to the proviso that in doing so, they do not undermine the integrity and standing of the Court. Does the proviso stop a judge from expressing views about the inadequacies of the system of justice or the shortcomings of the processes within which it is administered? In my view, not. Stifling expression in this way may be counterproductive considering that judges are best qualified to notice and articulate inadequacies of the system. The proviso should be applied strictly, confining its application to comments denigrating or questioning the mission of the judiciary. . In accordance with article . of the Code “[j]udges shall not exercise any political function”. The principle of separation of powers is given expression in the Code warranted by the need that judges should steer clear of societal controversies and interests that lie behind them. . The last article of the Code (article ) underlines the advisory character of the provisions of the Code, proclaiming that “[n]othing in this Code is intended in any way to limit or restrict the judicial independence of the judges”.

II. Functions of the Pre-Trial Chamber . Exercise of the functions of the Pre-Trial Chamber . Article . lays down that the Pre-Trial Chamber shall exercise its functions in accordance with the provisions of article  unless otherwise provided; meaning, elsewhere in the Statute. . Article .(a) stipulates that orders and rulings of the Pre-Trial Chamber made pursuant to the statutory provisions specified therein must be “concurred in by a majority of its judges.” These orders and rulings, requiring such a majority are those envisaged by articles , , , ., . and . The



chapter six

majority of the Pre-Trial Chamber is made up of two of the three members composing it. Article .(b)(iii) requires that the functions of the Pre-Trial Chamber shall be “carried out either by three judges of the Pre-Trial Division or by a single judge of that division”. Sequentially decisions within the ambit of article .(a) must be issued by the Pre-Trial Chamber functioning en banc. Consequently, the concurrence needed is that of the majority of the members of the Pre-Trial Chamber. . In all cases other than those itemised in paragraph (a) of article , the functions of the Pre-Trial Chamber may, not must, be exercised by a Single Judge unless provision to the contrary is made in the Rules of Procedure and Evidence or unless otherwise decided by a majority of the Pre-Trial Chamber. Rules ., . and . provide that decisions taken pursuant to the provisions of articles .(a), .(b) or .(a) respectively must be concurred in by a majority of the judges of the Pre-Trial Chamber, implying thereby that issues relevant to the aforesaid subjects must be addressed by the Pre-Trial Chamber in full composition. The word “may” in the context of article .(b) imports discretion. The Pre-Trial Chamber is under no obligation to assign a Single Judge for the discharge of any of its duties, but can do so where permitted if it so deems appropriate. . Rule  regulates the exercise of the power to appoint a Single Judge, and establishes the criteria by reference to which such assignment may be made. Sub-rule  provides that whenever the Pre-Trial Chamber designates a Single Judge in accordance with article .(b)(iii), it shall do so “on the basis of objective, pre-established criteria.” The inference is that such criteria must be established prior to the exercise of the power to assign a Single Judge to deal with one or more issues arising in the cause before it. Regulation  envisions that these criteria should be established by “the Pre-Trial Chamber,” denoting the Pre-Trial Chamber seized of a case. They include, in the first place, seniority of age and criminal trial experience. It must be noted that age as such does not determine the seniority of a judge of the ICC. According to regulation ., precedence of judges is determined by reference to the commencement of their term of office. Only when judges commence their term of office on the same day is age decisive as to their seniority. It appears that regulation  makes seniority of age, in contrast to precedence, the criterion to which regard should be had. Other criteria prescribed by regulation  for the choice of a judge to be designated as a Single Judge are: a) the nature of the issues involved, b) the circumstances of the proceedings before the Chamber, c) the distribution of work among the members of the Chamber and d) the proper management and efficiency in the handling of cases. Regulation . clarifies

the judiciary



that the designated Single Judge shall, as far as possible, act throughout the duration of the case, subject to the power of the Pre- Trial Chamber to designate more than one Single Judge, as the workload of the case may warrant, or the efficient management of the case may dictate. The assignment of a Single Judge constitutes an exception to the rule that the functions of the court are exercised by the plurality of its members. The object of designating a Single Judge cannot be explicated except by reference to the need to increase the capacity of the Court to respond to the exigencies of the administration of justice. It is implicit in the provisions of article .(b), and affirmed by rule ., that the nomination of a Single Judge may be recalled by a decision of the Pre-Trial Chamber, either generally or in relation to a specific issue or matter. The expedient of appointing a Single Judge to deal with one or more issues arising in the cause is a matter of frequent occurrence as the practice of Pre-Trial Chambers suggests. Neither the Statute nor the Rules of Procedure and Evidence make provision for the establishment and composition of a Pre-Trial Chamber. Provision to this effect is made by regulation . which reads “[t]he Presidency shall constitute permanent Pre-Trial Chambers with fixed compositions.” As may be gathered, the provisions of this regulation emulate those of article . wherein provision is made for the constitution of a Trial Chamber. In accordance with regulation , the Prosecutor must inform the Presidency, as early as a situation is referred to him by a State Party under article  or by the Security Council under article (b) or of any intention on the part of the Prosecutor to submit a request for the authorisation of an investigation under article ., so that the Presidency may expeditiously assign a situation to a Pre-Trial Chamber, as required by regulation .. A Pre-Trial Chamber so constituted shall be responsible “for any matter, request or information arising out of the situation assigned to it”.250 Pre-trial matters arising outside the compass of a situation shall, as provided by regulation ., “be directed by the President of the PreTrial Division to a Pre-Trial Chamber according to a roster established by the President of that Division”. . Functions and Powers of the Pre-Trial Chamber . Article . reads: In addition to its other functions under this Statute, the Pre-Trial Chamber may: [ . . . ].

To identify such functions, recourse must be had to the provisions of this paragraph of article . 250

See regulation ..



chapter six

a. Article .(a) Sub-paragraph (a) of article . provides: At the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation.

. The word “order,” in the context of judicial proceedings, has a wide meaning. It includes, in the first place, interlocutory orders—orders not dispositive of the subject-matter of the proceedings—, and in the second, final orders determinative of a cause or matter. Furthermore, it includes directions and instructions the Chamber may issue for the proper discharge of its functions.251 Examples of directions and instructions that may be given by the Pre-Trial Chamber, in the exercise of its order-making power, are furnished by article : a) recommendations as to the procedures to be followed in relation to a unique investigative opportunity, b) the keeping of a record of the proceedings and c) the appointment of experts to assist.252 The word “decision”, it must be noticed, is rarely used to characterise determinative acts of the Pre-Trial Chamber, an example being article .(b) in relation to a “decision” of the Pre-Trial Chamber to sanction the collection of evidence on its own initiative in the context of a unique investigative opportunity. The Statute and the Rules make reference to “rulings” of the Pre-Trial Chamber,253 another term signifying decisionmaking. The term “decision” is primarily used to characterise final decisions of the Trial Chamber,254 whereas the term “judgement” is used to describe determinations of the Appeals Chamber.255 As noted in a separate opinion256 to the judgment of  February  in the case of Prosecutor v. Lubanga Dyilo: The word “ruling” in a judicial context has a settled meaning. It denotes “the outcome of a court’s decision either on some point of law or on the case as a whole.”257

251

See the meaning of the word “order” and its derivatives in Black’s Law Dictionary, (th ed.) beginning with the word “order” as a noun, p. . 252 Other measures include a) authorizing counsel to participate b) appoint counsel to attend and represent the interests of the defence or c) taking any action to collect or preserve evidence. 253 See, inter alia, articles , ., ., . and Chapter , Section III of the Rules. 254 See article .. 255 See article .. 256 Judge Pikis. 257 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–), para.  of Judge Pikis’ separate opinion.

the judiciary



In many respects, the terms “order”, “decision” and “judgment” are synonymous,258 and certainly the term order in the context of article .(a) refers to a determination of the Pre-Trial Chamber. . According to Black’s Law Dictionary, the word “warrant” as a noun carries the following meaning “a writ directing or authorizing someone to do an act, esp. one directing a law enforcer to make an arrest, a search, or a seizure”.259 Specific provision is made in article  for the issuance of a warrant of arrest. An order or a warrant is distinguishable from a request that the Trial Chamber may address to a State to provide assistance with regard to investigations or prosecutions, such as the identification of the whereabouts of persons, the questioning of a person being investigated or prosecuted, and the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance, envisaged by article . The element of command and sequential compulsion, inherent in an order or a warrant, is missing from a request seeking the cooperation of a State in the investigation of a case and the prosecution of persons charged with crimes within the jurisdiction of the Court. This does not detract from the duty of a State Party to respond to a request of the Court for cooperation as provided in Part  of the Statute. . By way of illustration, we may identify species of orders, decisions and rulings the Pre-Trial Chamber is empowered to make under the provisions of the Statute: a) the authorisation of an investigation under the provisions of article ; b) the authorisation of an investigation under the provisions of article .; c) determination of the admissibility of a case under article ; d) a decision of the Pre-Trial Chamber to act on its own initiative with respect to the existence of a unique investigative opportunity under article .(a); e) a decision of the Pre-Trial Chamber under article .(b), reviewing on its own initiative a decision of the Prosecutor not to initiate an investigation, pursuant to the provisions of article .(c) and article .(c); f) a decision ordering the continuation of the detention of an arrested person or his/her release pursuant to the provisions of article ; g) a decision authorising victim participation pursuant to the provisions of article .; h) a ruling entailing restriction of disclosure by the Prosecutor under the provisions of Chapter , Section II of the Rules of Procedure and Evidence; i) a decision under article . resolving doubts as to the applicability of its provisions in any given case; and j) an order for the medical, psychological or psychiatric examination as provided in rule .. 258 259

See also the French version of the Statute and the Rules. Black’s Law Dictionnary (th ed.), p. .



chapter six

. The power of the Pre-Trial Chamber to issue orders, decisions, rulings and warrants extends to the entire field of its jurisdictional mandate. It underlines its essential role in monitoring and overseeing investigations, issuing directions with regard to the collection of evidence, making provision for the disclosure of evidence to the opposite side, shielding evidence from disclosure, taking measures for the protection of victims and witnesses, and finally, addressing the confirmation of charges. b. Article .(b) In addition to its other functions under this Statute, the Pre-Trial Chamber may: [ . . . ] b) Upon the request of a person who has been arrested or has appeared pursuant to a summons under article , issue such orders, including measures such as those described in article , or seek such cooperation pursuant to Part  as may be necessary to assist the person in the preparation of his or her defence;

. By virtue of the provisions of this sub-paragraph, power is acknowledged to the Pre-Trial Chamber to issue orders and take measures stipulated for by the Statute at the request of a person arrested or appearing in response to a summons. This is a wide-ranging provision, not confined to measures relating to a unique investigative opportunity under article  or cooperation under Part , designed to afford a person under investigation or the accused freedom to invoke the assistance of the Court in the preparation and advancement of his/her defence. The cooperation of a State may be sought at the instance of a person under investigation or the accused for the preparation and advancement of the defence. Important in this connection is the power to enlist the help of States Parties, under article ., for the collection of evidence, the protection of victims and witnesses and the service of documents. In fact, the person may solicit every kind of assistance not prohibited by law, as specified in article .. A principal object of article .(b) is to assure equality of arms between the prosecution and the defence in relation to the preparation of their case. This accords with the right of the accused under article .(b) “to have adequate time and facilities for the preparation of the defence.” A similar right is conferred upon the arrestee or a person responding to a summons to appear by virtue of the provisions of rule . of the Rules of Procedure and Evidence. c. Article .(c) In addition to its other functions under this Statute, the Pre-Trial Chamber may: [ . . . ] (c) Where necessary, provide for the protection and privacy of victims and witnesses, the preservation of evidence, the protection of persons who have been arrested or appeared in response to a summons, and the protection of national security information.

the judiciary



. The protection of the safety, physical and psychological well-being, dignity and privacy of victims and witnesses is a recurring theme of the Statute. The subject is directly addressed by the provisions of articles .,  and . Rules  and  confer a right upon victims and witnesses to move a Chamber to take measures for the protection of their safety. A similar right is bestowed on both the Prosecutor and the defence. The Court itself, acting on its own motion, may take appropriate measures for the protection of victims and witnesses. By the terms of the same rules, measures may be taken for the protection of a nonpetitioner at risk on account of testimony given. In the same way, measures may be taken for the protection of the arrestee and persons appearing in response to a summons. . The preservation of evidence is a subject with respect to which the cooperation of a State Party may be sought under the provisions of article .(j). Evidence in this context encompasses both incriminatory and exculpatory evidence. . The protection of national security and measures that may be taken on that account is addressed by article . Information pertaining to national security is not characterised by the term “confidential” but the object is the same, to screen from view material relating to national security. d. Article .(d) In addition to its other functions under this Statute, the Pre-Trial Chamber may: [ . . . ] (d) Authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part  if, whenever possible having regard to the views of the State concerned, the Pre-Trial Chamber has determined in that case that the State is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part .

. The extraordinary measures authorised by the above provision of article  may be sanctioned if the investigatory authorities of the country are, in a broad sense, in a state of total or partial collapse; partial to the extent of being unable to execute a request for cooperation. Rule  specifically authorises the submission by the Prosecutor of a written request to the Pre-Trial Chamber for authorisation to take measures pursuant to the provisions of article .(b). Before determination of any such request the Pre-Trial Chamber is bound to take into account any views expressed by the State Party concerned.



chapter six

e. Article .(e) In addition to its other functions under this Statute, the Pre-Trial Chamber may: [ . . . ] (e) Where a warrant of arrest or a summons has been issued under article , and having due regard to the strength of the evidence and the rights of the parties concerned, as provided for in this Statute and the Rules of Procedure and Evidence, seek the cooperation of States pursuant to article , paragraph  (k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims.

. Article .(e) empowers the Court, after the arrest or appearance of a person in response to a summons, to seek the cooperation of States Parties to take what may be described as precautionary measures for the forfeiture of property that may be ultimately disposed of for the benefit of victims. Rule  clarifies that such measures may be ordered by the Chamber, acting on its own motion, or on the application of the Prosecutor, or at the request of victims and their legal representatives. . It emerges from the provisions of article  that the Pre-Trial Chamber is invested with competence to determine a multitude of subjects affecting the investigation, the collection of evidence, the protection of victims and witnesses as well as the protection of the accused and every potential accused and third parties in need of protection. Moreover it has a significant role to play in the pre-prosecutorial process culminating in the confirmation of charges. In all these areas, the Pre-Trial Chamber has a decisive, a supervisory and a corrective role. . Other functions of the Pre-Trial Chamber a. Articles  and  . The Prosecutor may conduct an investigation into the commission of a crime, or crimes, in either of two cases. Firstly, where information is received or has come to his/her knowledge that a crime or crimes within the jurisdiction of the Court have been committed, whereupon, after an initial inquiry into the creditworthiness of the material and information received, he/she may request the authorisation of an investigation pursuant to the provisions of article .. The Pre-Trial Chamber may sanction an investigation where, upon examination of the request and the material supporting it, it considers that there is a reasonable basis, in other words, good reason, to proceed with an investigation, provided the alleged crimes fall within the jurisdiction of the Court (article .).

the judiciary



. Secondly, where a situation is referred to the Prosecutor by a State Party under the provisions of article 260 or the Security Council under the provisions of article (b), the Prosecutor may, after evaluation of the information passed to him/her, initiate an investigation, but not so if of the view that there is no reasonable basis to proceed, that is to say that the information received does not disclose that crimes within the jurisdiction of the Court have been committed. In determining whether to proceed with an investigation, the Prosecutor must consider, inter alia, a) whether the information provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed (article .(a)), and b) whether the case “is or would be admissible under article ” (article .(b)). The wording of this provision tends to suggest that the Prosecutor may seek a ruling on admissibility before initiating an investigation. Article . leaves the door open for such a course by providing, inter alia, that “[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility”. In the context of article .(b) the word “is” must be contrasted with the word “would”. The latter word covers belief on the part of the Prosecutor that the court would regard the case as admissible, whereas the word “is” signifies certainty about the fact arising from a ruling of the Court to that effect. . Another consideration that the Prosecutor must evaluate is the one envisaged by article .(c): Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

. A decision not to proceed with an investigation on the ground that such a course is not in the interests of justice must be communicated to the Pre-Trial Chamber, which may, on its own initiative, review such a decision. If the PreTrial Chamber decides to review the decision of the Prosecutor, the decision shall forfeit its force unless confirmed by the Trial Chamber. If not confirmed, the Prosecutor must proceed with an investigation (article .(b)). . Article . is important in that it signals the first step in the prosecutorial process. It reads “If upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: [ . . . ]”. The inference is that the material in the hands of the Prosecutor must justify a prosecution before application is made for a warrant of arrest. The reasons founding a decision to proceed or refrain from so doing, with an application for a warrant of arrest, 260

See also article (a).



chapter six

are similar to those enumerated in articles .(a), (b) and (c). In the first place, the Prosecutor may refrain from proceeding if there is insufficient legal or factual basis to seek a warrant of arrest and, in the second, if “[t]he case is inadmissible under article ”. Inadmissibility postulated in the affirmative implies the existence of a ruling of the Court declaring the case inadmissible. Thirdly, the Prosecutor may keep back from seeking a warrant of arrest if of the view that such a course is not in the interests of justice for the reasons set out in article .(c). In the latter case, the Prosecutor must inform the Pre-Trial Chamber of the fact. The Court may review, on its own motion, the decision whereupon it would forfeit its effect unless confirmed by the Trial Chamber. The obligation of the Prosecutor to inform the Pre-Trial Chamber of any decision not to proceed either with the investigation or the prosecution of a case applies to both investigations initiated on information reaching the Prosecutor under article . and . and referrals made to the Prosecutor by either a State Party or the Security Council. . The Prosecutor is duty bound by the provisions of article .(c) and (c) to inform a State Party or the Security Council, as the case may be, of any decision not to proceed either with the investigation or the prosecution of a case. Rules  and  of the Rules of Procedure and Evidence specify whom the Prosecutor must notify of any decision not to initiate an investigation pursuant to article . and of any decision not to prosecute pursuant to article .. . By the provisions of article .(a) the referring State or the Security Council may move the Pre-Trial Chamber to review a decision of the Prosecutor not to conduct an investigation or mount a prosecution. After due consideration of the matter, the Pre-Trial Chamber may request the Prosecutor to reconsider his/her decision. But no power vests in the Court to order the Prosecutor to proceed with the case. It must be noted that the Prosecutor is free to reconsider a decision not to investigate or prosecute a crime or crimes, where new facts or information so warrant (article .). b. Arrest Article  (Arrest) . At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and

the judiciary



(b) The arrest of the person appears necessary: (i) To ensure the person’s appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances.

. The first prerequisite for the issuance of a warrant of arrest is the existence of reasonable grounds to believe that a person committed a crime within the jurisdiction of the Court (article .(a)). In its decision of  February  in Prosecutor v. Lubanga Dyilo,261 Pre-Trial Chamber I held that the term “reasonable grounds to believe” in this context bears the same meaning as “reasonable suspicion”, the standard set by article .(c) of the European Convention on Human Rights, justifying the restriction of the liberty of a person with a view to bringing him before the Court. A similar position is adopted in the subsequent decision of the same Pre-Trial Chamber of  April .262 The following passage from this decision reflects the approach of the Pre-Trial Chamber to the subject: The Chamber is of the view that, as required by article . of the Statute, the expression ‘reasonable grounds to believe’ must be interpreted and applied in accordance with internationally recognized human rights. Thus, in interpreting and applying the expression ‘reasonable grounds to believe’ the Chamber will be guided by the ‘reasonable suspicion’ standard under article ..c of the European Convention on Human Rights and the jurisprudence of the Inter-American Court of Human Rights on the fundamental right to personal liberty under article  of the American Convention on Human Rights.263

. The principles formulated in the aforesaid decisions relevant to the interpretation of “reasonable grounds to believe” were followed in yet another decision of Pre-Trial Chamber III, notably that of  June  in Prosecutor v. Bemba Gombo.264 Article . provides that the Statute, in its entirety, must be interpreted and applied in a manner consistent with internationally recognised human rights. What this entails is that the provisions of the Statute as formulated therein must be interpreted and applied in accordance with 261 See Prosecutor v. Lubanga Dyilo, Decision concerning Pre-Trial Chamber I’s Decision of  February  and the Incorporation of Documents into the Record of the case against Mr. Thomas Lubanga Dyilo,  February  (ICC-/–/–-US-Corr reclassified as public by ICC-/–/–). 262 See Prosecutor v. Ahmad Harun and Al Kushayb, Decision on the Prosecution Application under Article  () of the Statute,  April  (ICC-/–/–). 263 Ibid., para. . 264 See Prosecutor v. Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo,  June  (ICC-/–/–-tENG), para. .



chapter six

internationally recognised human rights, not that its provisions should be altered or modified in order to accord with the prevalent provisions of human rights instruments. Under any circumstances, this could not be the case where the Statute imposes more stringent provisions for the protection of human rights compared to those of other treaties or conventions safeguarding human rights as the European Convention on Human Rights. . The crucial passage in article .(a) is “reasonable grounds to believe.” The term “reasonable grounds” denotes the existence of sound premises which logically justify a belief. “Ground” conveys the notion of something solid, which in this context can only be provided by evidence. “Belief ” signifies the acceptance of something as true or correct,265 but not certainty as to its validity. So, in order to establish “reasonable grounds to believe” there must be evidence justifying, as a matter of reason and good sense, acceptance that the person whose arrest is sought has committed a crime within the jurisdiction of the Court. As explained in the separate opinion of a judge266 in the judgment of the Appeals Chamber of  February  in Prosecutor v. Lubanga Dyilo: The founding of a valid cause for the detention of the person does not rest on reasonable suspicion, but on “grounds” founded on evidential material giving rise to a reasonable belief that a crime has been committed by the appellant (article . of the Statute).267

Belief imports, as stated in the same opinion, “a higher standard of acceptability of something compared to suspicion”.268 Thereafter, the judge added, on the same subject: What elevates further the test of acceptability of an application for an arrest warrant under the Statute is that such belief must be founded on concrete facts cogent to the extent of creating a reasonable belief that the person committed the crimes for which his/her arrest is sought. That the investigation of the Prosecutor may continue after the arrest of a person does not qualify his obligation to produce before the Pre-Trial Chamber such evidential material as to reasonably justify the belief that the person committed the crimes attributed to him/her.269

265 See Shorter Oxford English Dictionary (Volume I) p. ; See also Blacks Law Dictionary, (eighth ed.), p. . 266 Judge Pikis. 267 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–), separate opinion of Judge Pikis, para. . 268 Ibid. 269 Ibid.

the judiciary



The majority of the Appeals Chamber did not, because of the conclusions reached, consider it necessary to consider in the above case “the human rights aspects of the Appellants’ Pre-Trial detention”. Acceptance must relate to the fact of commission of the crime for which the arrest is sought. The court must, in light of the evidence before it, be reasonably led to believe that the person whose arrest is sought is implicated in the commission of a crime. Short of that the application must be dismissed. “Suspicion” in contrast to “belief ” imports the notion of something being possible or likely, a faint belief.270 “Reasonable grounds to believe” on the other hand, signifies a firm belief. In its judgment of  December 271 given in proceedings pertaining to the application of the arrestee made under the provisions of article ., the Appeals Chamber (majority decision) determined: In order to ensure both equality of arms and an adversarial procedure, the defence must, to the largest extent possible, be granted access to documents that are essential in order effectively to challenge the lawfulness of detention, bearing in mind the circumstances of the case. Ideally, the arrested person should have all such information at the time of his or her initial appearance before the Court. To allow this to take place, the Appeals Chamber considers that the Prosecutor should have this in mind when submitting an application for a warrant of arrest under article  of the Statute and should, as soon as possible, and preferably at that time, alert the Pre-Trial Chamber as to any redactions that he considers might be necessary.272

Notwithstanding their affirmation that, [i]n the instant case, and as seen above, (paragraph ) by the time of his Application for Interim Release on  July  which resulted in the Impugned Decision the Appellant had not received all of the material relied upon by the Pre-Trial Chamber nor had he received all of the material that was “essential in order effectively to challenge the lawfulness of detention”,273

they determined that the right “to the immediate disclosure of such material is not absolute. The Appeals Chamber considers it appropriate to consider the circumstances of the case.” Earlier it is explained: [ . . . ] The nature and timing of such disclosure must take into account the context in which the Court operates. The Right to disclosure in these circumstances

270 See the meaning of the words suspect and suspicion, Shorter Oxford Dictionary, (th ed.), pp.  and , respectively. 271 Prosecutor v. Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on application for interim release”,  December  (ICC-/–/–). 272 Ibid., paras  and . 273 Ibid., para. .



chapter six must be assessed by reference to the need, inter alia, to ensure that victims and witnesses are appropriately protected (see article () of the Statute and rule  of the Rules). The Court has jurisdiction over genocide, crimes against humanity and war crimes; the gravity of the crimes is such that the protection of victims and witnesses is a paramount consideration. An additional consideration is the need to safeguard ongoing investigations. Finally, the Pre-Trial Chamber should ensure that in the disclosure process priority is given to those documents that are essential for the person to receive in order effectively to challenge the lawfulness of detention.274

The dissenting member of the court asked: How can a person defend him/herself in this connection without total disclosure of everything leading to the creation of the conviction of implication in the commission of a crime?275

Earlier, the judge drew attention to the provisions of rule  assuring that, subject to the provisions of articles . and ., a person applying for his/her release “shall enjoy the rights set forth in article ”, including no doubt, the right to be informed promptly and in detail of the case against the person. Rule . of the Rules, in his opinion, . . . extends the right of the accused to timely disclosure of the evidence founding the case against him/her, guaranteed by article  of the Statute, to every person arrested or summoned before the Court; whereas article () assures to every individual the right to effectively contest the deprivation of liberty.276

The judge observed “the right to contest an accusation involving the loss of liberty is an inseverable aspect of a fair trial”. Reference is made in the dissenting opinion to the earlier judgment of the Appeals Chamber of  June 277 where it was stated: The provisions of the Statute relevant to detention, like every other provision of it, must be interpreted and applied in accordance with “internationally recognized human rights”. This is underlined in Prosecutor v. Mr. Thomas Lubanga Dyilo “Human rights underpin the Statute; every aspect of it, including the existence of the jurisdiction of the Court”.278

. If the Pre-Trial Chamber concludes that there are reasonable grounds to believe that the person committed the crime or crimes in respect of which his/her arrest is sought, it may order the arrest of the person if it appears neces274

Ibid., para. . Ibid. para.  of dissenting opinion of Judge Pikis. 276 Ibid. para.  of dissenting opinion of Judge Pikis. 277 Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–). 278 Ibid. para.  [footnotes omitted]. 275

the judiciary



sary for any one or more of the three grounds listed thereunder (article .(b)). The phrase “appear necessary” signifies something surfacing as essential. The word “appear”, as reasoned in the judgment of the Appeals Chamber of  June  in Prosecutor v. Katanga/Chui,279 does not import inevitability. The question, as stated in the aforesaid judgment, “revolves around the possibility, not the inevitability, of a future occurrence.”280 . The grounds upon which the arrest of a person may be ordered are the following: (i) “To ensure the person’s appearance at trial”, (ii) “To ensure that the person does not obstruct or endanger the investigation or the court proceedings”, or (iii) “Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances”.281 The three causes for which arrest may be ordered are separately listed, postulated independently of one another. As stated by the Appeals Chamber in its judgment of  February ,282 “[ . . . ] the reasons for detention pursuant to article  ()(b)(i) to (iii) of the Statute are in the alternative [ . . . ]”.283 Nevertheless, there is an indirect link between (i) and (ii). Ground (ii) is intended to shield the process of investigation and court proceedings from any interference by the person believed to have committed a crime/crimes. It is referable to the efficacy of the judicial process like ground (i) is. Ground (iii) provides authority for the arrest of a person in order to forestall the perpetuation of the commission of crimes similar to the one/ones the person is believed to have committed. Both the crime believed to have been committed as well as the crime to be averted must arise in the same context. . The confirmation hearing must be held in the presence of the person under charge, as provided in article ., unless the person waives this right or he/she has fled and exhaustive steps taken have failed to secure his/her appearence (article .). But the presence of the accused at the trial is indispensable at all times, a prerequisite for the hearing of a case. Article . provides: “The accused shall be present during the trial.” Hence, the importance of ground (i) of article .(b) for the issuance of a warrant of arrest, which may justifiably be identified as the principal cause for the detention of a person. 279

Ibid. Ibid., para. . 281 Article .(b). 282 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–). 283 Ibid., para. . 280



chapter six

In the separate opinion of a member of the Appeals Chamber in Prosecutor v. Lubanga Dyilo,284 it is explained that the arrest of a person is not intended as an aid to the investigation of a case, but as a means of ensuring his/her appearance at the trial.285 The presence of reasonable grounds to believe that a person has committed an offence foreshadows in many ways the charging of the person, making his/her trial not a mere probability, but a real one. As earlier explained, the issuance of a warrant of arrest signals the commencement of the prosecutorial process. . The gravity of the offence is a major consideration in forecasting the likelihood of the accused presenting himself/herself at his/her trial. As stated in the judgment of  February  in Prosecutor v. Lubanga Dyilo: If a person is charged with grave crimes, the person might face a lengthy prison sentence, which may make the person more likely to abscond.286

. In a subsequent judgment of the Appeals Chamber,287 it is pointed out that “[e]vading justice in fear of the consequences that may befall the person becomes a distinct possibility; a possibility rising in proportion to the consequences that conviction may entail”.288 The gravity of the offence, in conjunction with the likely consequences that may befall the accused, is not the only consideration relevant to forecasting the likelihood of the accused turning up to stand his/her trial. Every fact tending to inform on this likelihood is relevant and should be duly weighed. At the end of the day, it must appear that the arrest of the accused is necessary in order to ensure the person’s appearance at the trial. . An application for the issuance of a warrant of arrest must, as provided in article ., contain the following: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; (c) A concise statement of the facts which are alleged to constitute those crimes; (d) A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and (e) The reason why the Prosecutor believes that the arrest of the person is necessary. 284

Ibid. Ibid., separate opinion of Judge Pikis. 286 Ibid., para. . 287 Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–). 288 Ibid., para. . 285

the judiciary



The evidence to which reference is made comprises the facts tending to prove that a crime has been committed by the person whose arrest is sought. Such evidence is usually to be found in witness statements. Information is distinguishable from evidence. It denotes the impartment of knowledge about sources of evidence. The facts constituting the crime as they emerge from the evidence must be singled out and be succinctly stated. The reasons leading the Prosecutor to believe that the arrest of the person is necessary must also be specified. . Article . specifies the content of an arrest warrant, requiring articulation of: a. The name and particulars of the person to be arrested; b. The crimes for which the arrest of the person is sought; and c. A statement of the facts constituting the crimes.

. Article . establishes that the warrant of arrest shall remain in force until otherwise ordered by the Court. Sequentially, the accused shall, subject to any subsequent release pursuant to the provisions of article , remain in custody for as long as necessary for the materialisation of the objective for which detention was ordered. . After its issuance, the Prosecutor may seek the amendment of the warrant of arrest in either of two ways a) by modifying the crimes in respect of which the warrant was issued or b) by the addition of further crimes. The test for approving the amendment of the warrant of arrest in either case lies in the establishment of reasonable grounds to believe that the person committed the modified or the new crime(s). The process for the amendment of the warrant of arrest is the same as that governing its issuance in the first place. The arrestee enjoys the same rights in relation to the new charges as those conferred on a person whose arrest is sought at the outset. . Article . provides, “[o]n the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part .” Article  binds States Parties to cooperate fully in both the investigation and the prosecution of crimes within the jurisdiction of the Court. Also, the cooperation of a non-State Party may be sought pursuant to the provisions of article .(a) on the basis of an ad hoc arrangement or agreement. The help of inter-governmental organisations may also be sought, as provided in article ..



chapter six

. Article  gives, in the first place, expression to the fundamental right of the arrestee to contest his/her detention before the judicial authorities and, in the second, makes provision for monitoring detention with a view to ensuring that a) it is not abused, b) it does not violate the rights of the person to fair treatment and c) the necessity of the continued detention of the person. Article . ordains that the custodial state must deliver the surrendered person to the Court as soon as possible. Article . prescribes that upon appearance before the Court, the person must be apprised of the right to apply for “interim release” pending trial, a process governed by the provisions of article .. On application for interim release of the detainee, the Pre-Trial Chamber must examine whether the conditions set by article . are met and, if so, order the continuation of the detention of the person and if not so satisfied, order his/her release conditionally or unconditionally. As pointed out in the judgment of the Appeals Chamber of  June ,289 “[t]he human right of a person to have recourse to judicial review of a decision affecting his liberty is entrenched in article  of the Statute”.290 The framework within which an application for interim release of the arrestee must be made is outlined in the following paragraph of the judgment of the Appeals Chamber of  June : Article . of the Statute aims to provide the detainee with an early opportunity to contest his or her arrest and sequential detention. This he may do by reference to article  of the Statute, which defines the legal framework within which justification of his detention may be examined. Thereupon, the Chamber must address anew the issue of detention in light of the material placed before it.291

The need for examination of the justification of the detention anew is also underlined in the dissenting opinion of a member of the Appeals Chamber292 in the judgment of  December .293 289 Prosecutor v. Lubanga Dyilo, Decision on the admissibility of the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la confirmation des charges” of  January ,  June  (ICC-/–/–). 290 See article . of the Statute and also Article . of the International Covenant on Civil and Political Rights, General Assembly Resolution A(XXII), U.N. Document A/ () entered into force  March ,  United Nations Treaty Series ; Article . of the Convention for the Prosecution of Human Rights and Fundamental Freedoms ( November ),  United Nations Treaty Series  et seq., registration no. ; Article . of the American Convention on Human Rights, “Pact of San José, Costa Rica”, signed on  November , entered into force on  July ,  United Nations Treaty Series . 291 Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–), para. . 292 Judge Pikis. 293 See Prosecutor v. Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on application for interim release”,  December  (ICC-/–/–), para. .

the judiciary



. Instrumental to the configuration of the scope of article  is the judgment of the Appeals Chamber of  June : In evaluating the justification for the continued detention of the arrestee, the first element to which regard must be had is the crimes attributed to him. A pre-requisite for the issuance of a warrant of arrest is that the Chamber must be satisfied that there are reasonable grounds to believe that the person committed the crimes in question. The same applies in proceedings for interim release under article . of the Statute. The belief must be founded upon grounds such as to warrant its reasonableness. Suspicion simpliciter is not enough. Belief denotes, in this context, acceptance of a fact. The facts placed before the Chamber must be cogent to the extent of creating a reasonable belief that the person committed the crimes.294

. A ruling of the Pre-Trial Chamber under article . sanctioning the continuation of the detention of the arrestee or his/her interim release is subject to review on the application of the Prosecutor or the person concerned and periodically by the Pre-Trial Chamber itself as provided in article .. That the subject of review is a previous decision of the Pre-Trial Chamber under article . is made clear in the judgment of the Appeals Chamber of  February .295 In a separate opinion of a member of the Court in the aforesaid case, it is pointed out that article . is intended to provide safeguards against the unjustified prolongation of the detention of a person.296 . Article . provides: The Pre-Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions.

This provision tallies with the right of the accused under article .(c) to be tried without undue delay. In its judgment of  December ,297 the Appeals Chamber stresses that detention pending trial cannot be determined in abstracto, but only in the context of the concrete circumstances of each case. In the dissenting opinion, article . is described as a “free-standing provision, designed to ensure that the judicial process is not protracted and sequentially 294

Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–), para. . 295 See Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–). 296 Ibid., separate opinion of Judge Pikis. 297 Prosecutor v. Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on application for interim release”,  December  (ICC-/–/–).



chapter six

detention of the person is not extended because of unjustified delays on the part of the Prosecutor”.298 The effect of articles . and . is depicted in the following passage of the judgment of the Appeals Chamber of  June :299 The Statute provides safeguards against the undue prolongation of the period of detention. Article . of the Statute binds the Pre-Trial Chamber to review periodically (at the latest within  days) any previous ruling on the release or detention of a person in order to ascertain whether the circumstances bearing on the subject have changed, and if so, whether they warrant the termination of detention. The object of the law is to ensure that detention is not extended beyond what is necessary to secure the ends of justice. Moreover, paragraph  of article  of the Statute casts a duty upon the Pre-Trial Chamber to make certain that the detention of a person is not prolonged for an unreasonable period of time owing to inexcusable delay on the part of the Prosecutor; delay in this context signifies a failure to take timely steps to move the judicial process forward, as the ends of justice may demand. If such a delay is noticed, the Chamber is empowered to release the person, conditionally or unconditionally.300

. The acquittal of the accused entails his/her immediate release, save in the exceptional circumstances envisaged in article .(c)(i), where the Trial Chamber may maintain detention pending appeal. The release of the detainee is also the inevitable outcome of a refusal on the part of the Pre-Trial Chamber to confirm the charges. The fact that the Prosecutor may, by virtue of the provisions of article ., renew his application for the confirmation of the charges by reference to additional evidence provides no ground for the nonrelease of the person under investigation. If the charges are not confirmed, the foundation for the detention of a person collapses. c. Summons to Appear . Article . envisions the issuance of a summons to appear as an alternative to a warrant of arrest, open to the Prosecutor, as a means of securing the appearance of the person before the Court. The pursuit of this alternative is an option solely open to the Prosecutor. The first requisite, as in the case of a Prosecutor’s application for the issuance of a warrant of arrest, is the existence of reasonable grounds to believe that the person committed the crime or crimes specified in the Prosecutor’s application. Secondly, and equally importantly, it must appear that a summons is “sufficient to ensure the person’s appearance.”

298

Ibid., para.  of the dissenting opinion of Judge Pikis. Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–). 300 Ibid., para. . 299

the judiciary



The word “sufficient” in this context implies a reasoned forecast of the likelihood of the person appearing before the court in response to the summons. . According to Pre-Trial Chamber I’s “Decision on the Prosecution Application under Article . of the Statute”,301 for the Chamber to issue a summons to appear, it must “be satisfied that a summons to appear would be equally effective as a warrant of arrest to ensure the person’s appearance before the Court”.302 The Chamber adopts the position that a summons should only be issued if the Prosecutor’s application and the material supporting it “provide sufficient guarantees that the person will appear before the Court”.303 According to this decision, the application of article . is restricted “to cases in which the person can and will appear voluntarily before the Court without the necessity of presenting a request for arrest and surrender as provided for in articles  and  of the Statute”.304 The application for the issuance of a summons to appear was refused by this Pre-Trial Chamber on the ground that the voluntary appearance of the persons to be summoned could not be foreseen with a fair degree of certainty. One of the two persons sought to be summoned, was in custody in his country, Sudan, ruling out a priori his voluntary appearance before the Court. The Court noted: “a summons to appear is intended to apply only to persons who are not already being detained.”305 The fact that the Sudanese authorities publicly declared that they would not cooperate with the Court, claiming sovereignty over their citizens, was treated as a weighty factor in rejecting the application of the Prosecutor. Having rejected the application of the Prosecutor for the issuance of a summons to appear, Pre-Trial Chamber I proceeded to issue warrants for the arrest of the two persons, a step they considered open to the Court in proceedings under article .. . Article . does not prescribe in terms the issuance of a warrant of arrest as an alternative to a summons to appear in the same way that it does not envisage a summons to appear as an alternative to a warrant of arrest in the context of article .. The question then arises whether power lies with the Pre-Trial Chamber to issue a warrant of arrest in proceedings under article .. To my mind, the answer must be in the negative. Article ., like every provision of the Statute, must be interpreted and applied in accordance 301

Prosecutor v. Ahmad Harun and Al Kushayb, Decision on the Prosecution Application under Article  () of the Statute,  April  (ICC-/–/–). 302 Ibid., para. . 303 Ibid., para. . 304 Ibid., para. . 305 Ibid., para. .



chapter six

with internationally recognised human rights, a root principle of which is that no one’s liberty should be restricted except upon express authority conferred by law. Article . does not confer power to order the arrest of a person. The alternative envisaged by this article is a course open to the Prosecutor entitling him/her to seek the issuance of a summons to appear instead of a warrant of arrest. Neither expressly nor by necessary implication does article . confer power upon the Pre-Trial Chamber to order the arrest of a person if not satisfied that the person will respond to the call of the summons to appear. The dismissal, of course, of an application for a summons to appear does not disentitle the Prosecutor from seeking the arrest of the person under the provisions of article .. This understanding of the relevant provisions of the Statute is supported by the judgment of the Appeals Chamber of  June ,306 where it was affirmed that a summons to appear is not an alternative open to the Court in proceedings for the issuance of a warrant of arrest. The following passage is to the point: A summons to appear is not at issue in proceedings for the arrest of the person. Nor is a summons to appear an alternative open to the Chamber, upon application of the Prosecutor, for the issuance of a warrant of arrest. A summons to appear is an alternative only when the Prosecutor seeks to secure the attendance of the person before the Court through that process.307

In the same way, a warrant of arrest is not an alternative to a summons to appear. . Where the court approves the issuance of a summons to appear, it may do so “with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear” (article .). A summons to appear must, in accordance with article ., specify the crimes attributed to the person, provide a concise statement of the facts founding them, give the name and particulars of the person and, lastly, specify the date on which he/she is required to appear before the Court. d. Arrest proceedings in the custodial State . Article  stipulates the measures to be taken by the State receiving a request to execute a warrant of arrest. The measures must accord with the provisions of Part  of the Statute. The State must proceed immediately with

306

Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–). 307 Ibid., para. .

the judiciary



the arrest of the person.308 Thereafter, the arrestee must be promptly brought before “the competent judicial authority in the custodial State”. Such judicial authority must determine whether: a. The warrant applies to the person. The judicial authority must be satisfied that the person brought before it is the one whose arrest was sanctioned by the ICC. b. The person has been arrested “in accordance with the proper process”. The process in question is the one envisaged by national legislation providing authority for the arrest of a person pursuant to a warrant of arrest of the ICC. So construed, the issuance of a warrant of arrest by the judicial authorities of the ICC must provide authority for the arrest of the person in the State where he/she is arrested. c. The judicial authority must ensure that “the person’s rights have been respected”. Reference to a person’s rights cannot mean anything other than the human rights of a person subject to a warrant of arrest. They include the right to be informed of the reason for his/her arrest, the right to silence, and the right to consult a lawyer. These rights are assured to the person by the Statute, especially by the provisions of articles  and , and rule . By acceding to the Statute, a State Party must incorporate the Statute, the norms embodied therein into national legislation. Countries having the monistic system of incorporating into national legislation treaties and conventions by their ratification need do no more. Countries having the dualistic system whereby accession to a treaty or convention does not entail incorporation of its provisions into national law, must enact legislation incorporating them into domestic law. . Article . vests a right in the person arrested to apply to the competent judicial authority of the custodial State for his/her interim release. In determining any such application, the national judicial authority charged with the implementation of the warrant of arrest, must consider whether, “given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court”. This provision emphasises the duty of the custodial State to surrender the person arrested to the ICC. Only urgent and exceptional circumstances can ground an application for interim release. Urgent are pressing circumstances meriting immediate attention. The existence of such circumstances cannot of itself justify release. Such circumstances must, in addition, be 308

See article ..



chapter six

of an “exceptional” character, that is, extraordinary, not pressing circumstances that may arise in the daily span of life. Article . clarifies that the competent judicial authority of a State lacks power to review the propriety of the order of arrest made by the Pre-Trial Chamber of the ICC. Interim release may be authorised “pending surrender”. The implication is that “surrender” is decided upon and release is ordered pending implementation of that order. This position is reinforced by the provisions of article . requiring in mandatory terms that a state party shall “comply with requests for arrest and surrender”. . Article . provides: The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision.

This is an unusual provision having a bearing on the exercise of judicial functions, entailing as a rule the autonomy of the decision-makers in the decisionmaking process. Making recommendations to a court of law with respect to the exercise of its judicial functions, albeit by another judicial authority, is uncommon. By the provisions of article ., a role is acknowledged to the Pre-Trial Chamber regarding the interim release of the person with a view to ensuring that release will not lead to or facilitate the escape of the person. . Article . reads: If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release.

The Pre-Trial Chamber must consequently keep under surveillance interim release with a view to ensuring that enforcement of the order to surrender the arrestee is not unreasonably impeded or frustrated. Article . lays down that an order for surrender entails delivery of the person to the ICC “as soon as possible”. Article . provides that a person whose surrender is sought, may, in proceedings before the judicial authorities of the requested state, challenge the jurisdiction of the ICC to deal with it on the basis of the principle of ne bis in idem incorporated in article . If such a challenge is raised, the requested State shall immediately consult with the Court “to determine whether there has been a relevant ruling on admissibility”. If the answer is that there is a ruling declaring the case to be admissible, the State shall proceed with the execution of the request for surrender. If an admissibility ruling is pending, the requested State

the judiciary



may postpone the execution of the request pending determination of the issue. Article  is silent as to the implications of the absence of a ruling on admissibility. In its judgment of  July ,309 the Appeals Chamber decided that a ruling on the admissibility of a case is not a prerequisite for the issuance of a warrant of arrest. Although a Pre-Trial Chamber is vested, under the provisions of article ., with the power to make a determination on the admissibility of a case, as a rule, it is undesirable to do so, no less because the issue of admissibility will have to be decided in the absence of the person who is, by the provisions of article .(a), entitled to challenge the admissibility of a case after appearance before the Court. As affirmed by the judgment of the Appeals Chamber in the aforesaid case, only when the uncontested facts of the case clearly indicate the inadmissibility of the case should the Court address the question of admissibility on its own accord.310 Should the national judicial authorities, in the absence of a ruling on admissibility, decide themselves the challenge to the jurisdiction of the ICC to deal with the case on grounds of double jeopardy? As a rule, challenges to the jurisdiction of a court of law are determined by the court dealing with the matter. In this case, the application of the rule of ne bis in idem is correlated to the provisions of the Statute, articles .(c) and  in particular. No provision is made in the Statute entitling national judicial authorities to request a ruling on admissibility by the judicial authorities of the ICC, pending determination of the challenge to the jurisdiction of the ICC raised before it. Article .(b) has no application in this context. Its range is confined to challenges to the admissibility of a case raised by a State on the ground of investigation or prosecution of a case before the national authorities. The Statute is silent as to the implications of the impasse that may arise in the absence of and the non-pendency of a ruling of admissibility before the ICC. Construing article . by reference to internationally recognised human rights, one may be led to the view that the national courts dealing with the request for surrender can determine the issue by reference to the principles embodied in article  of the Statute. Any other approach would prolong the detention of a person while denying him/her the right to contest its legitimacy. Arguably the same conclusion can be justified by reference to the spirit of article . conferring power upon the person to raise the issue of double jeopardy before national courts. If the national court determines that the rule of ne bis in idem is inapplicable, it must proceed with the implementation of the request for surrender. 309

Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the Decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article ”,  July  (ICC-/– reclassified as public by ICC-/–-PUB-Exp). 310 Ibid., para.  of the majority judgment and para.  of the separate and partly dissenting opinion of Judge Pikis.



chapter six . Proceedings before the Pre-Trial Chamber

a. Article  . The title of article , “Initial proceedings before the Court,” confirms that the surrender of a person to the Court or his/her appearance before it signals the commencement of the judicial process in relation to the crimes that the person is believed to have committed. As stated in the judgment of the Appeals Chamber in the case Prosecutor v. Katanga and Chui: The issuance of a warrant of arrest paves the way for the commencement of proceedings with regard to the crimes the person is believed to have committed.311

. Article . provides that upon the surrender of a person or his/her appearance in response to a summons to appear “the Pre-Trial Chamber shall satisfy itself that the person has been informed” a) “of the crimes which he or she is alleged to have committed”, and b) “of his or her rights under this Statute, including the right to apply for interim release pending trial.” . The inquiry with regard to both a) and b) refers to facts antecedent to the appearance of the person before the Court. They include information imparted to the person by the national judicial authorities on appearance before them. The object is to ensure that the arrestee is informed of his/her rights, especially the “right to apply for interim release pending trial”. Rule  enjoins the Court, on being informed that a person has been arrested, to take the necessary steps to ensure that the detainee receives a copy of the arrest warrant and “any relevant provisions of the Statute” in a language that the person understands and speaks. The information to which rule . alludes is set out in the provisions of the Statute relevant to the issuance of a warrant of arrest, alongside the evidence supporting it and more so the rights of a person, especially the right to contest a decision entailing deprivation of his/her liberty. Regulation . requires that the following documents be served on the person: a) b) c) d)

Warrants of arrest; Summonses to appear; Documents containing the charges; and Such other documents, decisions or orders ordered by the Chamber to be notified by way of personal service.

311 Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–), para. .

the judiciary



Regulation  on the other hand specifies the information that must be passed to the arrestee on arrival at the detention centre. The two documents, with which the detainee must be supplied with, in a language that he/she fully understands, are a) the regulations of the Court and b) the regulations of the Registry relevant to detention. . The rights of the person are those prescribed by the Statute read and applied in the spirit of article .. The rights of the person under investigation are set out in article . Such rights include the right to have access to a lawyer, to be questioned in the presence of counsel and the right to remain silent. Rule . provides that the arrestee may make a request to the Pre-Trial Chamber for the appointment of counsel to assist him/her in the proceedings before the Court, whereupon the Chamber is bound to make a decision in response to such a request. By the provisions of rule ., a person subject to a warrant of arrest or a summons to appear shall enjoy, subject to the provisions of article  and , the rights of the accused under article . . Under the same paragraph of rule , the Pre-Trial Chamber must, on the first appearance of the person before it, set the date “on which it intends to hold a hearing to confirm the charges”. This indicates the speed with which the prosecutorial process must be conducted safeguarding thereby the right of the accused under article .(c) “to be tried without undue delay”. The word “undue” in this context means time taken unwarranted by the exigencies of the judicial process as fashioned by the Statute the Rules and Regulations. . It must be clarified that under the provisions of the Statute the arrest of a person is not designed to facilitate the investigation of a case but a vital step in the process of bringing him/her before the Court for the crimes that the person has allegedly committed. As stated in one of the separate opinions in the judgment of  February  in the case of Prosecutor v. Lubanga Dyilo: [ . . . ] the arrest of a person is not intended as an aid to the investigation of a case but as a means of securing his/her appearance before the Court in proceedings sequential thereto.312

. Article . leaves the door open to the arrested person to move the Pre-Trial Chamber for his/her interim release on first appearance before the Court. This is reiterated in rule .. Any application for interim release raised 312

Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–), para.  of the separate opinion of Judge Pikis.



chapter six

subsequently to the person’s first appearance before the Court must be made in writing in the manner envisaged by rule .. The two stages at which applications for interim release may be made and the manner in which they should be framed are noticed in the separate opinion of a judge of the Court313 in paragraph  to the above-mentioned judgment: Unlike a motion for interim release that may be made orally on the first appearance of the detainee before the Pre-Trial Chamber, any subsequent application to that end must be made in writing in accordance with the provisions of rule . of the Rules of Procedure and Evidence.

. Neither the Statute nor the Rules set a timetable for making an application for interim release. Such application may be made at any time after the first appearance of the person before the Court. This right is assured to the person by the provisions of article . which provides: A person subject to a warrant of arrest may apply for interim release pending trial.

. The criteria by reference to which the motion for interim release must be evaluated and judged are those set out in article . as a whole not merely those of article .(b) concerning the necessity for detention. Evidently the provisions of article . were formulated in accordance with internationally recognised human rights which assure to a person arrested the right to contest the justification and necessity of a warrant entailing restriction of liberty.314 Therefore, the Chamber must inquire not only into the necessity of the detention but also into its justification by reference to article .(a) Under articles . and . the Court must be satisfied that there are “reasonable grounds to believe” that the person committed the crimes identified in the accusations levied against him/her. What differs between the two statutory provisions is the time perspective from which the justification of arrest is determined. In proceedings under article . only one side is heard, the Prosecutor, whereas in proceedings under article . the arrestee is also heard in defence of his/her right to liberty. The following passage from a separate opinion in the judgment of the Appeals Chamber of  February  in the case of Prosecutor v. Lubanga Dyilo is to the point:

313

Judge Pikis. See article  of the International Covenant on Civil and Political Rights, General Assembly Resolution A (XXI), U.N. Document A/ () entered into force  March ,  United Nations Treaty Series ; article  () of the Convention for the Protection of Human Rights and Fundamental Freedoms ( November ),  United Nations Treaty Series  et seq., registration no. . 314

the judiciary



The difference between the two provisions of the Statute (articles . and .) lies in the change of the time perspective from which justification and necessity of the detention are to be judged.315

. The judgment of the Appeals Chamber of  June  in Prosecutor v. Katanga and Chui sheds light on the criteria relevant to the determination of the justification of arrest at the two stages of the process: Article . of the Statute aims to provide the detainee with an early opportunity to contest his or her arrest and sequential detention. This he may do by reference to article  of the Statute, which defines the legal framework within which justification of his detention may be examined, Thereupon, the Chamber must address anew the issue of detention in light of the material placed before it. The Pre-Trial Chamber in that case concluded that the prerequisites for detention, set out in article . of the Statute, were satisfied, warranting the continued detention of the appellant.316

In proceedings under article . the arrestee has the right to contest both the premises of his/her arrest as well as the necessity for detention. . The Chamber must inquire anew into the necessity of arrest and make the necessary findings independently of the original determination of the Pre-Trial Chamber with regard to the issuance of a warrant of arrest or any findings made by a prior decision of the Court. This is emphasised in the following passage of the same judgment: A judge, the Single Judge in this case, is duty-bound to appraise facts bearing on sub judice matters, determine their cogency and weight and come to his/her findings, as the Single Judge was bound to do in this case but failed to do.317

Later on, the Appeals Chamber stressed, “it was the responsibility of the judge in this case to assess the facts pertinent to her decision, and ground her judgment thereupon.”318 . The subject-matter of proceedings under article . is, in the first place, the foundation of the crime(s) attributed to the person. The Court must determine whether there are reasonable grounds to believe that the person 315 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–), para.  of the separate opinion of Judge Pikis. 316 Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–), para. . 317 Ibid., para. . 318 Ibid., para. .



chapter six

committed the crime or crimes he is accused to have committed. In face of such grounds, the Court must inquire, in the second place, whether need arises for the detention of the person for any one of the reasons set out in article .(b)(i), (ii) and (iii). The correctness of the decision pertaining to the issuance of a warrant of arrest is not as such, the subject of the proceedings under article .. A ruling under article . of the Statute overrides in every respect a decision under article ., being the only decision taken after hearing the person against whom it is directed. A question of release subject to conditions can only arise if the Court concludes that there are reasonable grounds to believe that the person did commit the offence(s) laid against him but the necessity for detention has not been established. . It is worth noting in this context that the judgment of Prosecutor v Bemba Gombo319 underlines that the right to equality of arms and an adversarial process applies at every stage of the proceedings; therefore, “the defence must, to the largest extent possible, be granted access to documents that are essential in order to effectively challenge the lawfulness of detention bearing in mind the circumstances of the detention”.320 Nevertheless the duty to disclose material is not absolute. In the dissenting opinion of a member of the Chamber a contrary view was taken as to the whether the Prosecutor may withhold disclosure of material to the person. In his view, it is incumbent upon the Prosecutor to disclose every piece of evidence relied upon in support of detention. The judge pointed out “the right to contest an accusation involving the loss of liberty is an inseverable element of a fair trial”.321 . The conditions that may be imposed upon the release of a person are specified in rule .. They include the location where a person must reside, attendance before the authorities, keeping away from victims and witnesses, and non-association with certain persons. Regulation  provides: For the purposes of a decision on interim release, the Pre-Trial Chamber shall seek observations from the host State and from the State to which the person seeks to be released.

In this context we may note that in the Headquarters Agreement no provision is made for the interim release of a person in the Host State. 319 Prosecutor v. Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on application for interim release”,  December  (ICC-/–/–). 320 Ibid., para. . 321 Ibid., para.  of the dissenting opinion of Judge Pikis.

the judiciary



. Article . provides mechanism for the review of previous rulings on detention or release of a person pending trial. The first sentence of it reads: The Pre-Trial Chamber shall periodically review its ruling on the release or detention of the person, and may do so at any time on the request of the Prosecutor or the person.

Review is the object of the exercise. The word “review” denotes viewing a subject anew;322 revisiting a subject in the context of judicial proceedings.323 It involves re-examination of the resolution of an issue for the purpose of determining its validity. The subject of review is the previous ruling of the PreTrial Chamber on the subject of detention or release of an arrested person. The Appeals Chamber clarified, in its judgment of  February ,324 that the ruling, the subject of review under paragraph  of article , is the decision of the court under article ., rejecting the submission of the appellant that the ruling in question is the decision of the Pre-Trial Chamber authorising the issuance of a warrant of arrest.325 In the separate opinion of a member of the Chamber, it is pointed out that paragraph  of article  is meant to provide safeguards against the unjustified prolongation of the detention of the person arrested. The terms “ruling” and “decision,” as pointed out in the judgment of the court326 and in the separate opinion,327 are synonymous. . Paragraph  of article  makes it incumbent upon the Pre-Trial Chamber to review a previous ruling on release or detention of a person. The duty to review arises both in the case of detention and release of the person. The court is duty-bound to review, on its own initiative, such a ruling “at least every  days”, and as indicated therein by the word “periodically” and stated in rule ., it may do so at any time at the request of either the Prosecutor or the person. The duty to review every  days lasts for as long as the person is detained. The powers of the Pre-Trial Chamber upon review are specified in paragraph  of article : Upon such review, it may modify its ruling as to detention, release or conditions of release, if it is satisfied that changed circumstances so require.

322

See “review” in Shorter Oxford English Dictionary, (Part II, M to Z, th ed.), p. . Black’s Law Dictionary, (th ed.) p. . 324 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–). 325 See ibid., paras , . 326 See ibid., para. . 327 See ibid., separate opinion para. . 323



chapter six

A provision hard to interpret is the last sentence of rule ., dealing with requests for a review of a ruling given under article .. It states: “[a] hearing must be held at least once every year.” Does it imply that periodic review will be held on written submissions whereas every year the parties will be heard viva voce in open court or does it signify that once a year a hearing will take place to examine the justification of detention given the lapse of a long period of time? One may fairly infer that the latter is the case. Not least because of the right of the person to be tried without undue delay. . The Pre-Trial Chamber may “modify its ruling as to detention, release or conditions of release”.328 The word “modify” means to change or alter, and, in this context, to change or alter the ruling under review in any direction. Modification is warranted, according to article ., where the Pre-Trial Chamber is satisfied “that changed circumstances so require”. Circumstances may change for a multitude of reasons. One such circumstance is, no doubt, the length of time for which the person has been in custody. In the judgment of the Appeals Chamber of  February , it is stated: [ . . . ] there is a distinct and independent obligation imposed upon the Pre-Trial Chamber to ensure that a person is not detained for an unreasonable period prior to trial under article  () of the Statute. While the review under article  () ensures that any ruling upon an application for interim release is specifically reconsidered at least every  days, there is, in addition, an obligation upon the Pre-Trial Chamber to review the overall period of the detention of the suspect under article  (). In addition, other provisions of the Statute also have a bearing upon the obligation to ensure that a person subject to a warrant of arrest is not detained for an unreasonable period. Foremost amongst them is the fundamental right, guaranteed by article  () (c) of the Statute, that an accused shall be entitled to a fair trial without undue delay.329

As noted in the separate opinion of a member of the Court in the same case: Article . of the Statute adds an additional safeguard to the armoury of the law for the protection of the right of a person not to be exposed to unjustified prolongation of his/her detention.330

Elsewhere in the same opinion it is affirmed: Ensuring that a person is tried within a reasonable time is a paramount duty of the Court. Delay in the proceedings cannot be at the expense of the detainee.331

328 329 330 331

Article .. Ibid, para. . See ibid., para.  of the separate opinion of Judge Pikis. See ibid., para.  of the separate opinion of Judge Pikis.

the judiciary



The same approach to the interpretation of article . is reflected in the subsequent judgment of the Appeals Chamber of  June 332 the following passage of which is characteristic: The object of the law is to ensure that detention is not extended beyond what is necessary to secure the ends of justice.333

In the decision of Pre-Trial Chamber II of  August ,334 jurisdiction being exercised by a Single Judge, on the third periodic review of the detention of the person, ordered his release subject to conditions to be identified after hearing the views of the person, the Prosecutor, States concerned and victims. The Court came to this decision after concluding that further detention of the person was not warranted for any of the reasons that could legitimise such confinement of liberty under article .(b) of the Statute. The judge held: In conclusion, the Single Judge holds that the continued detention of Mr JeanPierre Bemba does not appear necessary to ensure his appearance at trial in accordance with article ()(b)(i) of the Statute. The Single Judge also concludes that the continued detention is not necessitated by the other two alternatives encapsulated in article ()(b)(ii) and (iii) of the Statute. Recalling that the decision on continued detention or release is not of a discretionary nature, and mindful of the underlying principle that deprivation of liberty is the exception and not the rule, the Single Judge decides that Mr Jean-Pierre Bemba shall therefore be released, albeit under conditions.335

Reference is made in the decision to rule . of the Rules of Procedure and Evidence requiring the Court, before imposing conditions restrictive of liberty, upon approving the release of a detained person, to hear the views of every one that could have a say in the matter as stated in her judgment. Thus, the conditions to be imposed, as the judge stated: will be determined subsequently by the Single Judge, after the views of the Prosecutor, Mr Jean- Pierre Bemba, the relevant States and victims in that case

332

Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–). 333 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–). para.  of the separate opinion of Judge Pikis. 334 Prosecutor v. Bemba Gombo, Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa”,  August  (ICC-/–/–). 335 Ibid. para. .



chapter six have been sought. As to the Defence, the Single Judge will consider the proposed conditions and “personal guarantees” offered during the Hearing of  June  and provided in writing thereafter.336

At the end, the Single Judge decided to grant the release of the detainee subject to conditions to be imposed after conclusion of the inquiry into the subject earmarked by the judge. Pending a decision in which State Jean-Pierre Bemba Gombo will be released and which set of the conditions shall be imposed on him;

The two-stage process outlined above and adopted pursuant to the provisions of rule  for the conditional release of a person is problematic in that the two issues, release and conditions relevant thereto, are interconnected, linking release to conditions such as may ensure the appearance of the person at the trial. The second stage of the process, if any, should be linked to compliance by the person with the conditions imposed. The above decision was reversed on appeal taken by the Prosecutor.337 In the first place, the Appeals Chamber dismissed the submission of the Defence that the appeal was premature in that the decision under review had not been finalised by the specification of the conditions under which the detainee could be released. Attention is drawn to the provisions of article .(b) rendering appealable a decision granting or denying release of a person being investigated or prosecuted. In the second they determined: The fact that implementation of the decision has been deferred does not negate the fact that a determination on release has been made. There is therefore no ground for declaring the appeal inadmissible. The Impugned Decision is a decision on release and as such the Appellant may, as a matter of right, lodge his appeal.338

The position of the Appeals Chamber is questionable. The power vested in the Court by the provisions of article . is to modify a previous ruling in view of changed circumstances. The ruling that the Court may issue is referable to detention or release or conditions of release. In fact, the power residing in the Court is to release a detained person with or without conditions. The decision of the Pre-Trial Chamber on the subject is not finalised until the conditions of release are determined. Otherwise, two appeals may follow; one against the 336

Ibid. para. . Prosecutor v. Bemba Gombo, Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa”,  December , (ICC /–/–-Red). 338 Ibid., para. . 337

the judiciary



determination, in principle, of release subject to conditions and one against the conditions imposed. The Court upheld the suggestion: [ . . . ] that the Pre-Trial Chamber erred in deciding that Mr Bemba should be released with conditions without also specifying the appropriate conditions or identifying a State willing to accept Mr Bemba and enforce the conditions.339

The Appeals Chamber was critical of the approach of the Pre-Trial Chamber, to first determine a conditional release and then inquire into the conditions that should be imposed concluding: [ . . . ] Thus in the instant case, the Impugned Decision is flawed because the Pre-Trial Chamber failed to specify the appropriate conditions that make the conditional release of Mr Bemba feasible.340

In reviewing the sub judice ruling of the Court ordering the release of Mr Bemba, be it subject to conditions to be specified, the Appeals Chamber was guided by the following extract from its earlier judgment of  June :341 Appraisal of the evidence relevant to continued detention lies, in the first place, with the Pre-Trial Chamber. The Appeals Chamber may justifiably interfere if the findings of the Pre-Trial Chamber are flawed on account of a misdirection on a question of law, a misappreciation of the facts founding its decision, a disregard of relevant facts, or taking into account facts extraneous to the sub judice issues.342

In its judgment the Appeals Chamber determined that the Pre-Trial Chamber erred in finding that there existed a change in circumstances that necessitated the conditional release of Mr Bemba. To begin, the Pre-Trial Chamber overlooked the gravity of the charges, as a vital determinant in foreshadowing the possibility of the released person turning up to stand his trial. The fact that the charges against the detainee had been confirmed increased, according to the Appeals Chamber, the likelihood of the accused absconding. The Appeals Chamber concluded that: The Pre-Trial Chamber misappreciated the weight to be attached to the factor to which it had previously attached much importance.343 339

Ibid., para. . Ibid. para. . 341 Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–), para. . 342 Prosecutor v. Bemba Gombo, Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa,”  December , (ICC /–/–-Red), para.  [footnote omitted]. 343 Ibid. para. . 340



chapter six

Other reasons for which the Appeals Chamber found the decision of the Pre-Trial Chamber to be in error were a) disregard of relevant factors “that it previously considered to be important and thus the Pre-Trial Chamber erred”,344 b) disregard of facts in relation to the behaviour of Mr Bemba whilst in detention,345 c) failure on the part of the Pre-Trial Chamber to evaluate “Mr Bemba’s international contacts and ties and his financial situation [ . . . ]”.346 A person breaching the conditions upon which he/she was released may be rearrested as provided in rule . cited below: If the Pre-Trial Chamber is convinced that the person concerned has failed to comply with one or more of the obligations imposed, it may, on such basis, at the request of the Prosecutor or on its own initiative, issue a warrant of arrest in respect of the person.

. The word “convinced” as may be underlined, imports certainty as to the breach. The released person must be afforded an opportunity to be heard in any proceedings concerning breach of the conditions of his/her release unless, of course, the person has disappeared and his/her whereabouts are unknown. . Article . provides a safety net against detention of a person for an unreasonable period of time prior to the trial “due to inexcusable delay by the Prosecutor”. The notion of “unreasonable period of time” in this context is evidently linked to the right of the accused, safeguarded by article .(c), to be tried without undue delay. As the Appeals Chamber determined in its judgment of  February , “the unreasonableness of any period of detention prior to trial cannot be determined in the abstract, but has to be determined on the basis of the circumstances of each case”.347 The complexity of the case, the volume of evidence and the location wherefrom it is or may be collected, are factors relevant to the evaluation of the reasonableness of the duration of detention. . The delay of the Prosecutor is inexcusable if it cannot find justification in law, regard being had to the scheme of the Statute and the Rules with respect to the timeframe within which proceedings should be conducted. . If a Chamber finds the Prosecutor guilty of inexcusable delay, “the Court shall consider releasing the person with or without conditions”.348 The notion 344

Ibid. para. . Ibid. para. . 346 Ibid. para. . 347 Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–), para. . 348 Article .. 345

the judiciary



of release in this connection is not free from ambiguity. Does it mean the unconditional release of a person from captivity or his release pending trial? The words accompanying reference to release, “with or without conditions”, suggest that the latter is the case. The conditions that may be imposed are designed to ensure the appearance of the person at the confirmation hearing, and sequentially the trial if the charges are confirmed. The non-imposition of conditions is justified whenever there are firm indications that the person will respond to any call to appear before the Court. It must be underlined that release, in the event of a finding of inexcusable delay, is not automatic or inevitable. The Court has discretion in the matter, to be exercised judicially by reference to the interests of justice generally and specifically the right of the accused to be tried without undue delay. Inexcusable delay has an impact on the fairness of the proceedings and the right to a fair trial, a trial that must be held without undue delay, as mandated by the rights of the accused, and expeditiously, as ordained by article .. Where a fair trial is impossible, proceedings can be stayed, as decided by the Appeals Chamber in its judgment of  December .349 Delay in the holding of judicial proceedings is a factor with direct implications on the fairness of a trial, a fact recognised by the Appeals Chamber in its judgment of  October .350 As stated therein, “the time that has elapsed,” meaning inordinate delay, may render a fair trial “permanently and incurably impossible”.351 The following passage from the dissenting opinion of one of the members of the Appeals Chamber reflects the same position with regard to the effect of delay on the holding of a fair trial: The reasonableness of the time within which judicial proceedings are conducted and concluded and the absence of undue delay constitute an inseverable element of a fair trial, forming part of internationally recognized human rights.352

b. The prelude to the confirmation hearing . Article . reads: Subject to the provisions of paragraph , within a reasonable time after the person’s surrender or voluntary appearance before the Court, the Pre-Trial Chamber 349

Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–). 350 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC-/–/–). 351 Ibid., para. . 352 Ibid., para. .



chapter six shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel.

The term “within a reasonable time”, in the context of article ., must be construed as meaning as early as may be feasible. The ground for a prospective prosecution is laid by the issuance of a warrant of arrest. The facts founding the crimes attributed to the person are put before the Pre-Trial Chamber, to the extent of establishing reasonable grounds to believe that the person committed the crimes attributed to him/her. Disclosure must precede the confirmation hearing by a period of time such as would enable the person under investigation to prepare his/her defence at the confirmation hearing in conformity with the person’s rights under article .(b) of the Statute requiring “adequate time and facilities for the preparation of the defence [ . . . ]”. Here, evidence denotes written records, copies of witness statements as well as a record of real evidence. . The facts founding the charge(s) must be none “other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered”. These are the facts on the basis of which a warrant of arrest was issued. This is the “rule of speciality” as described in the chapeau of article  confining charges to those deriving from the facts supporting the issuance of a warrant of arrest. This restriction may be waived by the surrendering state at the request of the Court as provided in article .. . Regulation  lays down what the document containing the charges shall disclose the name and other information identifying the person, a comprehensive statement of the facts supporting the charges, and the legal characterisation of the facts in a manner corresponding to the definition of crimes as specified in articles ,  and . The facts enfolding the case within the jurisdiction of the Court must also be indicated. Moreover, the part played by the person in the commission of the crime must be identified in light of the provisions of articles  and . At the outset of the confirmation hearing, the presiding judge must ask the officer of the Registry assisting the Chamber to read out the charges to the person without requiring him/her to make answer thereto (rule .). Moreover directions must be given regarding the conduct of the hearing and the presentation of evidence contained in the record of the proceedings. . Before the hearing, the Prosecutor is at liberty to continue the investigations and may amend or withdraw the charges, as provided in article .. As

the judiciary



affirmed by the Appeals Chamber in its judgment of  October 353 the Prosecutor has the right to continue investigations after the confirmation hearing whenever necessary to establish the truth of a matter. Ideally, the Court observed, “it would be desirable for the investigation to be completed by the time of the confirmation hearing”.354The Court also explained: “[ . . . ] before the confirmation hearing the Prosecutor may continue his investigation, amend or withdraw charges without the permission of the Pre-Trial Chamber”. . Charges not confirmed by the Pre-Trial Chamber or withdrawn by the Prosecutor shall, as provided in article ., cease to have any effect, and the warrant of arrest to that extent will forfeit its efficacy. . Article . expressly provides that a hearing shall be held “to confirm the charges on which the Prosecutor intends to seek trial”. The charges and their justification, by reference to the material adduced to support them, are the subject-matter of the confirmation hearing. Article . stipulates that the presence of the person at the confirmation hearing is necessary. It provides: The hearing shall be held in the presence of the Prosecutor and the person charged, as well as his or her counsel.

. However, article . empowers the Court, at the request of the Prosecutor or on its own motion, to hold a hearing to confirm the charges in the absence of the person against whom they are directed. Rule  provides that a person whose arrest is ordered or who is summoned to appear before the Court must be informed of the possibility of the confirmation hearing being held in his/her absence. This may occur in either of two cases: when the person has: (a) Waived his or her right to be present; or (b) Fled or cannot be found and all reasonable steps have been taken to secure his or her appearance before the Court and to inform the person of the charges and that a hearing to confirm those charges will be held.

. The right of the person to be present at the confirmation hearing may be waived as provided in rule ., by a written request to the Pre-Trial Chamber, “which may then hold consultations with the Prosecutor and the person concerned, assisted or represented by his or her counsel”. Waiver may be approved, as provided in rule ., if the Pre-Trial Chamber is “satisfied that the person concerned understands the right to be present at the hearing and the 353 Prosecutor v. Lubanga Dyilo, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule  () and () of the Rules of Procedure and Evidence”,  October  (ICC-/–/–), para. . 354 Ibid., para. .



chapter six

consequences of waiving this right”. At the same time, the Pre-Trial Chamber may make provision, as laid down in rule ., “for the person to observe the hearing from outside the courtroom through the use of communications technology, if required”. Finally, rule . provides that waiver of the right to be present at the confirmation hearing does not prevent the Pre-Trial Chamber from receiving observations from the person on the issues arising for determination. Article .(b) does not envision the arrest of the person or the communication of a summons to appear as prerequisites for holding the confirmation hearing in the absence of the person. The words “fled or cannot be found” indicate impossibility to trace the person, notwithstanding reasonable efforts in that direction. The steps for locating the person must be exhaustive, given the use of the word “all” in the context of article . Rule . provides that the Court may hold consultations with the Prosecutor at the request of the latter, or on its own initiative, in order to determine whether there is cause “to hold a hearing on confirmation of charges under the conditions set forth in article ..b”. If the person has counsel who represents him/her, the consultations must be held in his/her presence. Importantly, article . clarifies that the issuance of a warrant of arrest firstly and the effluxion of a reasonable time for its execution, secondly, are a sine qua non for the holding of a confirmation hearing in the absence of the accused. . Independently of the disclosure provisions of article ., the Prosecutor is duty-bound to disclose to the person exculpatory evidence in his possession or control as soon as practicable, meaning soon after such evidence is obtained. Exonerating evidence may be of crucial importance at the confirmation hearing. According to the judgment of the Appeals Chamber of  October ,355 the obligation of the Prosecutor to disclose exonerating evidence to the person investigated or prosecuted admits of no exceptions. It applies equally to material received by the Prosecutor in confidence under the provisions of article .(e). In relation to the conflict of duty, with which the Prosecutor may be confronted, to keep evidence in his possession confidential and the duty to disclose imposed by article . of the Statute, the Court observed: There might be circumstances in which this tension can be resolved by reverting to some or all of the measures referred to by the Prosecutor, in his Document in

355 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”,  October  (ICC-/–/–).

the judiciary



Support of the Appeal and summarised at paragraph  above, in particular if only small numbers of documents are concerned.356

Attention was drawn to the provisions of article .(c) to fully respect the rights of persons arising under the Statute including the right to a fair trial. The following passage of the majority judgment is indicative of the importance attached to the right of a fair and expeditious trial and respect for the rights of the person: The last sentence of article () of the Statute provides that “[i]n case of doubt as to the application of [article () of the Statute], the Court shall decide.” This indicates that the final assessment as to whether material in the possession or control of the Prosecutor has to be disclosed under that provision will have to be carried out by the Trial Chamber and that therefore the Chamber should receive the material. This understanding of the last sentence of article () of the Statute coincides with the overall role ascribed to the Trial Chamber in article () of the Statute to guarantee that the trial is fair and expeditious, and that the rights of the accused are fully respected.357

In the separate opinion of a member of the court it is noted: Disclosure of exculpatory evidence is, under the provisions of article . of the Statute, a fundamental right of the accused and a corresponding duty of the Prosecutor. Confirmation of charges is neither automatic nor free from an evaluation of the evidence adduced, with a direct bearing on the decision of the Pre-Trial Chamber whether to confirm the charges or not.358

In another passage of the same opinion the following is said: The failure of the Prosecutor to bring forth and disclose evidence tending to exonerate the accused is not confined to the trial, but extends to the confirmation hearing too, where disclosure of exculpatory evidence to the person under investigation is also assured as his/her fundamental right. Rule  () of the Rules provides, inter alia: Subject to the provisions of article  and , the person shall enjoy the rights set forth in article .359

. Article . of the Statute makes provision for the withholding of evidence likely to put the security of witnesses or their families to great danger. The subject of non-disclosure in the interest of the safety of victims and witnesses is addressed in a separate chapter specifically devoted to the topic.360

356 357 358 359 360

Ibid. para. . Ibid. para. . Ibid. para.  of the separate opinion of Judge Pikis. Ibid. para.  of the separate pinion of Judge Pikis. See Chapter IX.



chapter six

. The Pre-Trial Chamber, as stated in article ., may issue necessary orders directing disclosure of evidence or information for the purposes of the confirmation hearing. For that purpose a status conference may be held. A judge of the Pre-Trial Chamber shall be appointed in each case to organise the conference on his or her own motion, or at the request of the Prosecutor or the person.361 The person too, if minded to introduce evidence at the confirmation hearing must, pursuant to the provisions of rule ., provide a list of such evidence to the court  days prior to the confirmation hearing, which the PreTrial Chamber must transmit, without delay, to the Prosecutor. In the event of a person adducing evidence in response to an application of the Prosecutor to amend the charges, he/she must furnish the Prosecutor with a list of such evidence.362 Evidence disclosed by either party must be communicated to the court.363 In accordance with rule ., no charges or evidence presented after the time limit set for their presentation will be considered. Power vests in the court to postpone the confirmation hearing at the request of the Prosecutor or the person, or on its own motion.364 At every stage of the disclosure process the person has a right to be represented by counsel of his/her choice, or by counsel assigned to the person by the chamber.365 c. The confirmation hearing . Article . provides: At the hearing, the Prosecutor shall support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged. The Prosecutor may rely on documentary or summary evidence and need not call the witnesses expected to testify at the trial.

The test for the confirmation of charges is “substantial grounds to believe”. The Pre-Trial Chamber is required by article . to apply this test in determining whether the evidence produced is sufficient to satisfy this standard, a standard that cannot be characterised as anything other than a standard of proof. . Article . does not require or bind the Prosecutor to call the witnesses on whose testimony he relies to testify at the confirmation hearing. He may instead rely on documentary or summary evidence. The meaning of “documentary” in this context is not wholly unambiguous. Does it mean the documents 361 362 363 364 365

See rule .(b). See rule .. See rule .(c). See rule .. See rule .. and article .(d).

the judiciary



containing witness statements, or does it refer to documents constituting real evidence? A summary of evidence is envisaged as an alternative to documentary evidence, a fact that lends support to the view that the former is the case. What is conveyed by the expression “documentary or summary evidence” is that the Prosecutor may rely upon the statements of witnesses themselves, or a summary thereof. Article ., enumerates the grounds upon which a person may contest the confirmation of charges. The person has the right to: (a) Object to the charges; (b) Challenge the evidence presented by the Prosecutor; and (c) Present evidence.

Objection to the charges may be taken for either or both of two reasons that a) the charges do not disclose the elements of the crimes with which the person is accused, or b) the evidence submitted in support of the charges, oral or real, does not solidify the charges, inadequately supporting them. The definition of the right to challenge evidence is problematic. Article . says that the Prosecutor need not call the witnesses upon whose statements he relies to give evidence viva voce, but may rely on the statements of witnesses or summaries of them. Does that confine the bounds of disputation of the written evidence relied upon by the Prosecutor? In other words, are the challenges that may be raised by the person confined to those that may be articulated by reference to the implications of the written evidence? If that is the case, then the challenge to the credibility of the witnesses is, to a large extent, minimised. Article .(b) does not, in terms, confine the meaning of the term “challenge the evidence” in any way. The word “challenge” in its ordinary connotation and as a term of art in the field of law denotes contest, question, confront. How can one question the evidence relied upon without the witness coming forth to testify? The notion of “challenge” could be limited to written evidence if the test for the confirmation of charges was confined to the face value of the evidence. Here, the test is not confined in that way i.e. to the prima facie implications of the evidence, but requires that it be sufficient to establish not grounds, but substantial grounds to believe that the person committed each of the crimes laid against him/her. It entails a value judgment on the worth and credibility of the evidence. The notion of “challenge” in this context is, to my mind, all-embracing. . Lastly, the person has the right to present evidence (paragraph .(c)). What does the notion of “present” in this context convey? In the case of the Prosecutor specific provision is made enabling him to bypass the adduction of oral evidence and file instead “documentary or summary evidence” as earlier explained. No such qualification is appended in the case of the person presenting evidence. The verb “present” in a judicial context denotes bring or lay before



chapter six

a court.366 It can be safely inferred that article .(c) entails the production of oral evidence. If the person is minded to present evidence at the confirmation hearing, this, we may remind, a list of such evidence may be presented no later than  days before the date of the hearing (rule .). . At the conclusion of the confirmation hearing, the Pre-Trial Chamber must determine “whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”.367 . As specifically provided in article ., the warrant of arrest shall cease to have any effect with respect to unconfirmed charges or altogether if none of the charges founding it are confirmed. In accordance with article ., the warrant of arrest forfeits its effect if the Chamber so determines at any stage in the process. . Depending on the determination of the Pre-Trial Chamber respecting the validation of the charges, the Pre-Trial Chamber has the following options. The first is to confirm the charges for which there is sufficient evidence and commit the person to trial accordingly. The second option open to the PreTrial Chamber is to refuse to confirm the charges if it determines that there is insufficient evidence to confirm them. The third option open to the Pre-Trial Chamber, as depicted in article .(c), is to: Adjourn the hearing and request the Prosecutor to consider: (i) Providing further evidence or conducting further investigation with respect to a particular charge; or (ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.368

The first alternative is hard to justify in the context of article , inasmuch as it involves a judicial body aiding the Prosecutor to supplement his/her case. The adjudicatory function of the Pre-Trial Chamber, elicited in article ., is to determine “whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged”. This is, by the use of the word “shall”, the mandatory duty of the Pre-Trial Chamber in proceedings for the confirmation of the charges. The burden of establishing, through the adduction of evidence, substantial grounds generating reasonable belief that the person committed the crimes specified in the charges lies with the Prosecutor. Failure to establish such a case leads, inevitably, to the collapse of the charges. Any involvement of the Chamber with a view to providing the 366 367 368

Shorter Oxford Dictionary, (Part II, M to Z, th ed.), p. . Article .. Article ..

the judiciary



Prosecutor with another chance to establish his case for the confirmation of the charges is antithetical to the spirit and essence of article  and contradictory to the principles of an adversarial hearing that permeate the Statute. Moreover, the principle of equality of arms is violated insofar as no corresponding right is conferred on the defence. Rule . affirms that the Pre-Trial Chamber shall not take into consideration charges and evidence presented after the expiration of the time limit for the disclosure of evidence, a rule tallying with the principle embodied in article .(a) and (b), applicable to confirmation proceedings in accordance with rule .. The provisions of article .(c)(i) envision, in reality, the Pre-Trial Chamber stepping into the arena of the contest by affording a chance to one of the adversaries to fill gaps in his/her case. . Reservations can be expressed about the reconcilability of sub-paragraph (c)(ii) of article . with the general order prescribed by article . By its provisions, the Pre-Trial Chamber may invite the Prosecutor to amend the charge if the evidence adduced does not disclose the charge laid against the person. According to the decision of Pre-Trial Chamber I in the case of Prosecutor v. Lubanga in the “Decision on the confirmation of charges” of  January , it is open to the Pre-Trial Chamber to proceed to amend the charges on its own motion where it concludes that the facts before it give rise to a crime within the jurisdiction of the Court other than the one specified in the charge.369 In support of its decision, the Pre-Trial Chamber cites regulation , acknowledging power to the Trial Chamber to change the legal characterisation of the facts in order to accord with the crimes under articles ,  and , or the form of participation of the accused under articles  and . By analogy, the Court held that the Pre-Trial Chamber is vested with a similar power. . The application of regulation  is confined to trial proceedings and the means of giving procedural effect to the application of article ., which reads: The Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial.

. Regulation  does not, in terms, confer power upon the Trial Chamber to amend the charges on its own initiative. The power conferred relates to the “legal characterisation of facts to accord with the crimes under articles ,  or , or to accord with the form of participation of the accused under articles  and ”. This is not equivalent to the amendment of a charge, importing the 369

Prosecutor v. Lubanga Dyilo, Decision on the confirmation of charges,  January  (ICC-/–/–).



chapter six

commission of a crime other than the one charged. The object of regulation  is neither to add nor to deduct facts founding a charge. What is envisaged by regulation  is the identification of the legal implications of such facts. . Sub-paragraph (c)(ii) of article  does not in terms confer, directly or indirectly, power upon the Pre-Trial Chamber to amend the charges. What it does is to invest the Court with power to invite the Prosecutor to consider the amendment of a charge following an invitation by the court to consider such a course of action. If the Prosecutor fails to proceed in that direction, the inference is that the Pre-Trial Chamber must decline to confirm the relevant charge or charges. If the Prosecutor does seek to amend the charge or charges a proper opportunity must be afforded to the defence to contest the motion in accordance with article .. . Article . acknowledges power to the Prosecutor to amend the charges after their confirmation. If the Prosecutor seeks such amendment, either by the addition of new charges or the substitution of new charges for the existing ones, a hearing must be held for the confirmation of these charges. Article . lays down that the Pre-Trial Chamber “shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial”. A hearing is required for the confirmation of any charge in relation to which the Prosecutor seeks to put the person on trial. . The non-confirmation of charges by the Pre-Trial Chamber does not preclude the Prosecutor from seeking the confirmation of charges anew “if the request is supported by additional evidence”. No res judicata arises from the non-confirmation of the charges. But a new application for the confirmation of the same charges must be supported by additional evidence, i.e. evidence not earlier presented before the Pre-Trial Chamber. In the absence of additional evidence, i.e. evidence other than that earlier placed before the Court, the Pre-Trial Chamber is bound to reject the request, to that extent res judicata does arise. If the application is granted and the Prosecutor is permitted to submit additional evidence, the person must be afforded proper opportunity to object to the charges, challenge the evidence as well as himself/herself present evidence as provided in article .. . Lastly, we shall address the standard of proof required for the confirmation of charges. “Sufficient” denotes something adequate or enough for a purpose.370

370

Shorter Oxford Dictionary, (Part II, M to Z, th ed.), p. .

the judiciary



In determining the adequacy of evidence what counts is not only its volume but its cogency too. The evidence must be sufficient to establish substantial grounds to believe that the person committed each of the crimes of which he/she is accused. The meaning of the word “establish” in this context is to prove, to prove substantial grounds, i.e. establish a firm basis giving rise to the belief that the person committed the offences laid against him/her. The Court must conclude that the charges are well founded. It is a high standard of proof, higher than the one envisaged by article .(a) for the issuance of a warrant of arrest, but lower than the standard required for conviction of a person at trial, i.e. proof beyond reasonable doubt (see article .). In its decision in the case of Prosecutor v. Lubanga Dyilo of  January , Pre-Trial Chamber I refers to the substantiation of charges as importing an evidential burden cast on the Prosecutor to “offer concrete and tangible proof demonstrating a clear line of reasoning underpinning its specific allegations. Furthermore, the ‘substantial grounds to believe’ standard must enable all the evidence admitted for the purpose of the confirmation hearing to be assessed as a whole.”371 Unlike the trial (article .), the Statute does not in terms refer to a burden of proof being cast on the Prosecutor, at the confirmation hearing, but this is, in reality, the case, given the obligation imposed upon the Prosecutor to substantiate, by the adduction of evidence, the charges to the degree envisaged by article . . Another decision of Pre-Trial Chamber I bearing on the same subject is that of Prosecutor v. Katanga and Chui of  September .372 The following passage from the aforesaid decision cannot escape comment: Throughout the proceedings the Chamber consistently reiterated this principle and asserted that the confirmation hearing has a limited scope and purpose and should not be seen as a ‘mini-trial’ or a ‘trial before the trial’.373

What is meant by a mini-trial, or trial before the trial, is not explained. If it is meant to convey that the confirmation hearing does not have the attributes of a preliminary hearing, it cannot be supported. The confirmation hearing has many features in common with a trial. The Prosecutor must at the confirmation hearing, as at the trial, submit the evidence upon which he/she rests their case. The obligation of substantiating the charges at the pre-trial stage, in much the same way as the onus of the proof of guilt at the trial, rests with the Prosecutor. There is a corresponding burden in either case. Both at the 371 Prosecutor v. Lubanga Dyilo, Decision on the confirmation of charges,  January  (ICC-/–/–), para. . 372 Prosecutor v. Katanga/Chui Decision on the confirmation of charges,  September  (ICC-/–/–). 373 Ibid., para. .



chapter six

confirmation hearing and at the trial the defence is entitled to challenge the evidence presented by the Prosecutor and adduce evidence in support of its case. The material difference between the two processes is the standard of proof required for making out the case for the prosecution; “substantial grounds to believe” in the case of the confirmation hearing and “proof beyond reasonable doubt” at the trial. In both cases the Prosecutor must disclose evidence upon which he/she intends to rely. Time should be allowed to the person or the accused, as the case may be, to prepare his/her defence (see articles ., .(c), .(a) and (b) and rule .). Moreover, rules ,  and  make provision respectively for pre-trial disclosure relating to prosecution witnesses, inspection of material in possession or control of the Prosecutor and material in possession or control of the defence. . Regulation  provides: The written decision of the Pre-Trial Chamber setting out its findings on each of the charges shall be delivered within  days from the date the confirmation hearing ends.

A court must conclude judicial proceedings within a reasonable time.374 This is an axiom of a fair trial. Reasoning a decision is another.375 Having regard to the issues involved in a confirmation hearing, the maximum interval of  days is a reasonable one, but not a period to be exhausted independently of the complexity of the case. The decision must be given “within” not at the expiration of  days.

III. The Trial . Constitution of the Trial Chamber . Once the charges are confirmed, the Presidency shall constitute the Trial Chamber responsible for the trial of the case376. As early as the decision con374

Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC-/–/–), separate opinion of Judge Pikis. 375 See Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “First Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/– /–). 376 See article ..

the judiciary



firming the charges, and sequentially the commitment of the accused to trial, the decision and record of the proceedings must be transmitted to the Presidency. The decision itself must be notified to the Prosecutor, the accused and his/her counsel.377 Thereafter, the Presidency shall constitute the Trial Chamber and transmit the decision and the record to the Chamber charged with the trial of the case.378 . The Seat of the Court . Article  provides that the trial shall be held at the seat of the Court, “unless otherwise decided”. Article . lays down that the seat of the Court shall be at The Hague, in The Netherlands, establishing thereby where the Court must exercise its judicial functions. Rule . provides: “In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sit in a State other than the host State”. The provisions of this rule are not, in terms, strictly confined to the trial. The word “case” bears a number of meanings, including one encompassing a defined subject before a judicial body, not necessarily the trial court. To provide an example, the word “case” is used in this sense, in article . Yet, the only exception to the provisions of article , requiring the court to function at The Hague, is that in article , confining this possibility to the trial. Giving the word “case” in the context of rule . the broad meaning earlier explored would inevitably bring it into conflict with the provisions of article  and those of article , to the extent that they earmark the holding of a trial as the only exception to the provisions of article . One of the distinct meanings that the noun “case” does bear is “a legal action or suit, especially one brought to trial”.379 We may fairly assume that the drafters of the Statute intended the word “case”, in the context of rule ., to bear this meaning. The attachment of any other sense to the word “case” would bring its provisions into conflict with articles  and . . Rule . specifies the preconditions for the hearing of a case elsewhere than at the seat of the Court. Such an issue may arise on the application or recommendation seeking a change of venue by the Prosecutor, the defence, or by “a majority of the judges of the Court”. Does reference to the “judges of the Court” signify the totality of the judges, the plenum of judges envisaged in rule  or the judges of the Chamber dealing with the case? Construing this

377 378 379

See rule . See rules  and . Shorter Oxford English Dictionary, (Volume , th ed.), p. .



chapter six

provision as reference to the totality of the judges or the plenum of judges would be hard to reconcile with the realities of the subject, in that only the judges of the Trial Chamber could be expected to be acquainted with the facts of the case and evaluate how best the interests of justice could be served by holding the trial elsewhere than at the seat of the Court. Another oddity of treating the relevant provisions of rule . as referring to the totality of the judges of the Court is that the same body would be both recommending and deciding the issue as provided in rule .. On the other hand, in accordance with rule ., any recommendation for a change of venue should be addressed to the Presidency, which, before taking any other step in the matter, “shall satisfy itself of the views of the relevant Chamber”, that is to say, of the views of the judges who are seized of the case. Ponderation of the provisions of rule  in their totality leads to the view, strange as it may appear, that the legislator had in mind the judges of the Court en banc, and not the individual members of the Court who compose the Chamber addressing the application or recommendation. If the recommendation emanated from the Chamber dealing with a case, there would be no need for the Presidency to consult the members of the Chamber in order to elicit views already known. This lends support to the position that the body that the legislator had in mind was that made up of the totality of the judges and not the judges of a Chamber dealing with the case. If the State expresses willingness to host the Court, a decision on the subject must be taken, as already noted, “by the judges, in plenary session, by a two-thirds majority”. . The procedure envisaged by rule  for a change of venue with regard to the sittings of the Court is cumbersome and, one may argue, unrealistic. In the nature of things, the body best suited to determine the issue is the Chamber dealing with the case but that is not what rule  provides. . Trial in the presence of the accused . Article . prescribes that “[t]he accused shall be present during the trial”, rendering the presence of the accused an indispensable element at every stage of the trial process. The presence of the accused is a prerequisite for the holding of a trial. If the accused disrupts the proceedings by misconducting himself/herself, the Court may direct his/her removal from the courtroom and make provision thereupon “for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology if required” (article .). Therefore the removal of the accused should not hinder or impede him/her from watching the proceedings and instructing counsel as need may arise.

the judiciary



. The removal of the accused from the courtroom is a measure of last resort, to be taken “only in exceptional circumstances”, after reasonable alternatives have proved inadequate;380 a call to order is one such alternative; a short adjournment to enable the accused to calm down, another; the third is a warning that misconduct in Court may expose the accused to removal from the courtroom and/or the payment of a fine. . Functions and Powers of the Trial Chamber . Article . provides: The functions and powers of the Trial Chamber set out in this article shall be exercised in accordance with this Statute and the Rules of Procedure and Evidence.

Functions and powers, in this context, encompass the judicial process is its entirety. The powers and functions of the Court must be exercised within the framework and parameters of the Statute and the Rules of Procedure and Evidence. . Article . binds the Trial Chamber to ensure that the trial is both “fair and expeditious”. The provisions of this article are, by and large, coincident with internationally recognised human rights. A fair trial is a fundamental right of man, to be assured by the judiciary at all times and in all circumstances.381 As stated in the judgment of the Appeals Chamber of  December : Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court. Its provisions must be interpreted and more importantly applied in accordance with internationally recognised human rights, first and foremost, in the context of the Statute.382

. The Court stressed in the same decision: “A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped”. A fair trial is interwoven with the rights of the person under investigation and those of the accused set out in article  (and rule .) and article  respectively. If a fair trial becomes impossible owing to breaches of the fundamental rights of the person under investigation or the accused by his/her accusers, the Appeals Chamber underlined in the same case: 380

See article .. See e.g. Article  of the International Covenant on Civil and Political Rights, Article  of the European Convention on Human Rights. 382 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–), para. . 381



chapter six

“it would be a contradiction in terms to put the person on trial. Justice could not be done”.383 Where breaches of the rights of the accused, as declared in the same judgment “are such as to make it impossible for him/her to make his/her defence within the framework of these rights, no fair trial can take place and the proceedings can be stayed.” Thereafter the Appeals Chamber pronounced significantly, “[u]nfairness in the treatment of the suspect or the accused may rupture the process to an extent making it impossible to piece together the constituent elements of a fair trial. In those circumstances, the interest of the world community to put persons accused of the most heinous crimes against humanity on trial, great as it is, is outweighed by the need to sustain the efficacy of the judicial process as the potent agent of justice.” The interpretation of the Statute in accordance with internationally recognised human rights is a recurring theme in the jurisprudence of the Court.384 In its judgment of  October  the Appeals Chamber upheld the decision of the Trial Chamber to stay proceedings on account of impossibility to hold a fair trial.385 Stay had been ordered because of inability on the part of the Prosecutor to disclose to the accused exculpatory evidence in his possession in breach of the duty of the Prosecutor and the corresponding right of the accused laid down in article .. . Trial within a reasonable time is a norm of a fair trial. Article .(c) assures to the accused the right to be tried “without undue delay”. In a separate opinion in the above appeal, the following is said with regard to the timeliness of the proceedings: The reasonableness of the time within which judicial proceedings are conducted and concluded and the absence of undue delay constitute an inseverable element of a fair trial, forming part of internationally recognized human rights. The Statute assures the trial of the accused without undue delay as his/her fundamental right.386

Article ., in mandatory terms, requires that proceedings be held expeditiously. In the dissenting opinion of the same member of the Appeals Chamber 383

Ibid., para. . See inter alia Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC-/–). 385 See Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC-/–/–). 386 Ibid., para. ; see also Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the release of Thomas Lubanga Dyilo”,  October  (ICC-/–/–). 384

the judiciary



in a parallel judgment,387 it is explained that the notion of “expeditiousness” introduces a more stringent requirement respecting the time within which judicial proceedings should be conducted and concluded. This is reflected in the following passage: Not only is trial without undue delay assured as a right of the accused, but the Statute goes a step further. Article . of the Statute binds the Court to hold, not only a fair, but an expeditious trial too. Expeditiousness denotes the speedy doing or transaction of something. The standard introduced by article  () of the Statute is more stringent than the one imported by the requirement of trial being held without undue delay, which is incorporated in the notion of a fair trial; a standard that the Court is duty bound to uphold.388

. The proceedings must, as provided in the same sub-paragraph, be conducted at all times with full respect of the rights of the accused, safeguarded by article , and with due regard to the right of victims and witnesses for protection. The corresponding duty of the Court to sustain them is embodied in article . a. Article . . Upon assignment of a case to it, the Trial Chamber must, in the first place, hold a status conference with the parties for the purpose of paving the ground for the trial. . Its first task should be to set the date of trial, as provided for in rule . In so doing, account must be taken of the right of the accused to be afforded adequate time and facilities for the preparation of his/her defence. The same rule provides that the date of trial may be postponed if the exigencies of the case so require. This may be done by the Trial Chamber on its own motion or at the request of either party. Additional status conferences may be held if the needs of the case so require for setting the stage for the trial. Status conferences may take, as indicated in regulation , the form of a hearing, which may be held, whenever necessary, through audio- or video-link technology. Standard forms tabulating the questions to be ordinarily addressed, may be evolved. Regulation  details subjects that may be addressed at a status conference and orders that may be issued. They include disclosure of evidence,

387

Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the release of Thomas Lubanga Dyilo”,  October  (ICC-/–/–). 388 Ibid., para.  [footnote omitted].



chapter six

embracing disclosure of witness statements and the use of expert evidence. The list of the subjects that may be addressed is not exhaustive. Amongst matters that may be the subject of an order of the court are the following: a) the length and content of legal arguments, including the opening and closing statements, b) the length of the evidence to be relied upon and c) the length of questioning of witnesses. Regulation of the last two matters in the way envisaged by regulation  is hard to justify. Neither the length of the questioning of witnesses nor the volume of the evidence to be adduced can be restricted a priori, save through agreements between the parties as to evidence pursuant to rule . Such restrictions would inevitably interfere with the right of either party to establish its case before the court without let or hindrance. The only test for the reception of evidence is set down in article , providing that it should be relevant and admissible. Article . entitles the parties to submit evidence relevant to their case in accordance with article , which in no way limits the right of a person to submit evidence or the number of questions that may be asked. Article .(e) assures to the accused the right to examine witnesses against him/her, without imposing any restrictions on the number of questions that may be asked. The only questions that may be disallowed in the process of the trial are irrelevant ones or questions designed to introduce inadmissible evidence, repetitive questions or questions of an abusive character. Repetitive questions tend to prolong proceedings unjustifiably, while irrelevant questions are ipso facto impermissible. Abusive questions, involving intimidation or insults to witnesses are, again, objectionable as they tend to tamper with the freedom a witness should enjoy in testifying. . Also objectionable is another provision of regulation , the following: The defences, if any, to be adduced by the accused.

Neither the Statute, nor the Rules of Procedure and Evidence require the accused to disclose the defence in advance. In fact, the defence of the accused may vary depending on the progress of the case for the prosecution and the implications of the evidence adduced by the accusers. The only exception to this principle is to be found in rule  that requires the accused to disclose any intention to raise either of the following defences; a) the existence of an alibi, or b) exclusion of criminal liability under article . of the Statute. Such defences must be notified to the Prosecutor sufficiently in advance. These defences have a distinct character, involving factual impossibility in the first case and legal incapacity in the second. But even if the accused fails to make such disclosure, he/she is not debarred from raising them in the course of the trial, as laid down in rule ..

the judiciary



b. Article .(b) . Article .(b) reads: Determine the language or languages to be used at trial.

It is only natural that the language of the proceedings should be addressed ahead of the trial. . Article .(a) assures the accused of the right to be informed both promptly and in detail of the nature, cause and content of the charge in a language he/she fully understands and speaks. Sub-paragraph (f) of the same paragraph requires that assistance by a competent interpreter free of cost be made available to the accused, in a language that he/she fully understands and speaks. Documents should also be made available to the accused, as well as translations of documentary evidence, again in a language he fully understands and speaks. . “Cause” in the context of article .(a) denotes the subject-matter of the proceedings. The interpretation of article .(a) and (f) came up for consideration in the judgment of  May .389 The Appeals Chamber debated at length the meaning and implications of the aforesaid provisions of article  with emphasis laid on the phrase “fully understands and speaks”. Comparing this provision with broadly corresponding provisions in other international treaties or conventions, the Appeals Chamber ascertained: There seems to have been an intention to grant the accused before the Court, rights of a higher degree than in other courts referred to.390

The Court concluded: The subject of understanding is exclusively the accused. Thus, the Chamber must give credence to the accused’s claim that he or she cannot fully understand and speak the language of the Court. This is because it is the accused who can most aptly determine his or her own understanding and it should be assumed that he or she will only ask for a language he or she fully understands and speaks.391

A person, it was pointed out, fully understands and speaks a language:

389 Prosecutor v. Katanga/Chui, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber I entitled “Decision on the Defence Request Concerning Languages”,  May  (ICC-/–/–). 390 Ibid., para. . 391 Ibid., para. .



chapter six when he or she is completely fluent in the language in ordinary, non-technical conversation; it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer.392

Where the accused masters two languages to an equal level and he or she professes in bad faith to fully speak and understand only one of them to the requisite level, the Court may conclude, as stated in the aforementioned judgement, that the person is malingering and direct that translation be made in the language most facilitatory in the circumstances. c. Article .(c) . Article .(c) makes provision for disclosure of documents and information not previously disclosed, sufficiently in advance of the hearing to enable adequate preparation for the trial. In its judgment of  October ,393 the Appeals Chamber determined that the Prosecutor is not precluded from continuing investigations into the crimes, the subject-matter of the confirmed charges after their confirmation. The court noted that “ideally, it would be desirable for the investigation to be complete by the time of the confirmation hearing—a matter that the Prosecutor acknowledges.”394 Otherwise, the Appeals Chamber accepted “the argument of the Prosecutor that in certain circumstances to rule out further investigation after the confirmation hearing may deprive the Court of significant and relevant evidence, including potentially exonerating evidence—particularly in situations where the ongoing nature of the conflict results in more compelling evidence becoming available for the first time after the confirmation hearing.” Rule . confines the evidence admissible at the confirmation hearing to evidence disclosed not later than  days prior to the hearing, ruling out consideration of charges and evidence presented after that point of time (rule .). No provision of the Statute entitles the Prosecutor to amend the charges after the commencement of the trial. However, he/she may withdraw them with the permission of the court (article .). It may therefore be fairly assumed that the subject of disclosure under article .(b) is evidence or information relating to the charges upon which the accused was put on trial.

392

Ibid., para. . Prosecutor v. Lubanga Dyilo, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule  () and () of the Rules of Procedure and Evidence”,  October  (ICC-/–/–). 394 Ibid., para. . 393

the judiciary



. It is interesting to notice that the subjects of disclosure under article .(c) are “documents or information”. Does this provision include documents containing witness statements? . Paragraph (c) of article  refers to disclosure of documents or information “not previously disclosed”. A comparison of the relevant provisions of article . with those of article . is helpful in discerning the meaning of “documents and information” in the context of article .(c). Article .(b) requires that the person under investigation be informed prior to the confirmation hearing “of the evidence on which the Prosecutor intends to rely at the hearing”. In sub-paragraph (b) of the same article, reference is made to the disclosure of evidence. A distinction is drawn between, on the one hand, “evidence” and, on the other “information”. Must the provisions of article .(c) be read subject to this distinction? The terms “evidence” and “information” import different notions. According to Black’s Law Dictionary395 the word “evidence” denotes in the first place “oral, documentary and real evidence in the form of tangible objects”.396 “Information”, on the other hand, imports communication of knowledge and facts about a particular subject or event.397 The word “information” also carries a technical meaning in English law, denoting the indictment laid before the Court. . I incline to the view that information in the context of article .(c) does not encompass evidence in the form of material that may be the subject of proof, but knowledge of facts of which the Prosecutor has come to be aware not amounting to evidence. Such information may be useful to the accused for the preparation of his/her defence, especially in tracing evidence. In its ordinary usage, the word “document” signifies a piece of paper, the contents of which constitute in itself evidence of what is recorded therein, such as an agreement, a receipt or a title deed. According to Black’s Law Dictionary, the word may also be used in a wider sense, indicating “written instruments used to prove a fact”.398 The object of article .(c) is to make provision for the disclosure to the defence of evidential material not earlier divulged. It is the right of the accused to have such disclosure in order to gain knowledge of facts essential for the preparation of his/her defence. After all, the Prosecutor is not bound by the terms of article .(b) to disclose the totality of material in his/her

395 396 397 398

See Black’s Law Dictionary (th ed.), p. . See also Shorter Oxford Dictionary, (Volume , th ed.), p. . Shorter Oxford Dictionary, (Volume , th ed.), p. . (th ed.), p. .



chapter six

possession at the confirmation hearing but only evidentiary material “on which the Prosecutor intends to rely at the hearing”. Rule . provides: The Prosecutor shall subsequently advise the defence of the names of any additional prosecution witnesses and provide copies of their statements when the decision is made to call those witnesses.

Furthermore, rule  obliges the Prosecutor to make available to the defence for inspection “books, documents, photographs and other tangible objects in the possession or control of the Prosecutor” which are a) essential for the preparation of the defence, or b) are intended for use by the Prosecutor at trial. It is significant to note that the word “document” is evidently used in the wider sense earlier identified. We may therefore justifiably infer that disclosure under article .(c) encompasses the totality of evidential material in the possession of the Prosecutor, as well as information bearing on the case. d. Article . . Article . confers power upon the Trial Chamber whenever necessary “for its effective and fair functioning” to refer preliminary issues “to the PreTrial Chamber, or, if necessary, to another available judge of the Pre-Trial Division”. Preliminary issues are not identified or specified. In the context of a trial, preliminary issues are those that must be addressed before the commencement of the trial. Included amongst them are, by virtue of article .(a), functions of the Pre-Trial Chamber referred to in article ., empowering the Trial Chamber to exercise any of the functions of the Pre-Trial Chamber save ruling on the admissibility or relevance of evidence and maintaining order in the course of trial proceedings. Disclosure, envisaged by the provisions of article .(c), is another preliminary issue that may be assigned for consideration to a Pre-Trial Chamber. . The provisions of article . are not propitious to securing the best ends of justice. Preliminary issues are interlinked with the needs of the trial in the context of the requirements of a fair trial. Resolution of preliminary issues is an inseverable aspect of the trial to be addressed by the body trusted to hold the trial, the Trial Chamber. Assignment of preliminary issues to another body is a derogation from the rule of autonomy of the trial court over the trial and what goes with it.

the judiciary



e. Article . . Article . provides: Upon notice to the parties, the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused.

Rule  lays down that persons jointly charged shall be tried together unless the Court, either on its own motion, or at the request of the Prosecutor or the defence decides that the accused should be separately tried a) in order to avoid serious prejudice to the accused, b) in order to protect the interests of justice, or c) where one of the co-accused has pleaded guilty (article .). It is significant to note that rule . envisages that joinder should in no way delimit the rights of any one of the co-accused. The same rights should be assured to every coaccused as if he/she were tried separately. . Article . was the subject of interpretation by the Appeals Chamber in its judgment of  June .399 As indicated therein, the power to sever charges against more than one accused “presupposes that the charges against him are the subject of the same accusation”. The justification for the joinder of two or more persons in the same indictment is addressed in the following passage of the aforementioned judgment: “The phrase ‘persons accused jointly shall be tried together’ is founded on the premise that joinder of more than one person in the same document containing the charges is the norm. No one is treated by or referred to in the Statute or the Rules of Procedure and Evidence as ‘the accused’ prior to the confirmation of charges. Until that moment, the persons facing the charges are persons under investigation.”400 The guiding principle in determining issues of joinder and severance, as explained in the aforesaid judgment, is the assurance of the fairness and efficacy of the judicial process. f. Article . . Article . enumerates functions that the Trial Chamber may have to perform prior to or during the trial. In the first place it may exercise the functions of the Pre-Trial Chamber identified in article ., embracing the totality of the functions of the Pre-Trial Chamber that might find application in trial proceedings. These functions were itemised in the preceding section of this chapter. 399

Prosecutor v. Katanga/Chui, Judgment on the Appeal Against the Decision on Joinder rendered on  March  by the Pre-Trial Chamber in the Germain Katanga and Mathieu Ngudjolo Chui Cases,  June  (ICC-/–/–). 400 Ibid., para. .



chapter six

. Challenges to the jurisdiction of the Court, or the admissibility of a case, may be raised at the commencement of the trial and with the leave of the Chamber at any subsequent stage. Rule  defines the context within which challenges to the jurisdiction of the Court or the admissibility of a case may be raised and the procedural framework within which they should be considered. Article ., we may remind, provides that a challenge to the jurisdiction of the Court to take cognisance of a case, or its admissibility, may be raised only once. Such a challenge shall take place prior to or at the commencement of the trial, and only exceptionally may the Pre-Trial or Trial Chamber, as the case may be, grant leave to challenge the admissibility of a case more than once or at a time subsequent to the commencement of the trial. . The framework within which challenges to the jurisdiction of the Court or the admissibility of the case can be made is addressed by rule . The Court may join a challenge, for purposes of disposition, to the confirmation hearing or trial proceedings provided such course will not cause undue delay. The Chamber confronted with a challenge to the jurisdiction of the Court or the admissibility of a case must establish the procedure to be followed, including the holding of a hearing. The application submitted for the purpose must, if made by a State, be notified to the Prosecutor and the person surrendered to the Court or appearing in response to a summons, who may thereafter submit written observations within a specified period of time.401 If both the jurisdiction of the Court and the admissibility of a case are challenged, the issue of jurisdiction must be decided first and, sequentially, admissibility, if the Chamber possesses jurisdiction to deal with the case. . Motions relating to the conduct of the proceedings must, as provided in rule , be addressed prior to its commencement. Any such motion must be framed in writing. Of course, the Chamber may raise an issue affecting the conduct of the proceedings on its own motion, affording thereafter an opportunity to the parties to be heard in the matter. Rule . requires the Trial Chamber, at the commencement of the trial, to elicit from the parties “whether they have any objections or observations concerning the conduct of the proceedings which have arisen since the confirmation hearings”. The object is to afford the parties an opportunity to bring to the notice of the Court any irregularities occurring in the processes following the confirmation hearing. Rule . is categorical that such objections cannot be raised at any subsequent stage of the proceedings without the leave of the Chamber.

401

See rule ..

the judiciary



. Article .(b) requires “the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute”. This provision gives expression to the inherent power of a trial court to ensure that the judicial process serves the purpose it is intended to promote, by securing the attendance of witnesses at the trial with a view to testifying and producing documents relevant to the issues before it. The cooperation of States may have to be sought in this connection. Article .(e) requires States Parties to facilitate the voluntary appearance of persons as witnesses or experts before the court. By the provisions of article .(i), States are equally bound to facilitate the provision of records, including official records, and documents relevant to the proceedings. The protection of victims and witnesses and the preservation of evidence are also matters in relation to which State cooperation may be sought.402 . Article .(c) makes provision for the protection of confidential information, meaning, as may be gathered, information covered by the provisions of article .(e) (documents or information obtained by the Prosecutor on condition of confidentiality), article  (protection of national security information) and article  (third party information or documents). Specific provision is made in rule  setting down the procedure for the protection of confidential information under article .(e). Rule . empowers the Court, at the request of any of the parties, or a State, or on its own motion, to take steps necessary for the protection of the safety of victims and witnesses, and members of their families, envisioned in article , and the confidentiality of information imparted under the provisions of articles ,  and . . Article .(d) confers authority to “[o]rder the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties”. What evidence the legislator had in mind is hard to discern. The word “production” implies material in the possession of a party or material that the party is in a position to tender. The word is qualified by what follows, that is to say evidence additional to that already collected prior to the trial or adduced during the trial. Does this provision empower the Trial Chamber to direct new enquiries considered necessary for the elucidation of evidence on a given subject? The investigation of a case is the realm of the Prosecutor, whereas the preparation of the defence that of the accused. The burden of proof is on the Prosecutor. The Court has no role in the supplementation of the case of either the Prosecutor or the defence. One may correlate this provision of the Statute

402

See article .(j).



chapter six

to that set out in article ., empowering the Court “to request the submission of all evidence that it considers necessary for the determination of the truth”. It can be assumed that what was intended by article .(d) was to vest power in the Court to seek evidence with a view to ascertaining the truth of a fact by seeking the clarification of obscure or equivocal evidence in conformity with its authority under article .. g. Article .(e) . Article .(e) states that the Trial Chamber may, “[p]rovide for the protection of the accused, witnesses and victims”. Provision for the protection of the two classes of persons and members of their families is made in article .,  and , rule ., and rules  and . The protection and privacy of the person arrested, victims and witnesses and the protection of national security information is the subject of article .(c). Orders protective of the aforementioned subjects may be made pursuant to the provisions of article .(e). . Article .(f) is a residual provision, acknowledging power to the court to “[r]ule on any other relevant matters”. The term “relevant” in this context denotes a subject having a bearing on the issues before the Court. One may say that such power inheres in a court of law if it is to live up to its mission. . Article . reads, “[t]he trial shall be held in public. The Trial Chamber may, however, determine that special circumstances require that certain proceedings be in closed session for the purposes set forth in article , or to protect confidential or sensitive information to be given in evidence”. Trial in public is an element of a fair trial and a component of internationally recognised human rights. Exceptions to the rule are equally well acknowledged. In the case of article  of the European Convention on Human Rights, the press and the public may be excluded from all or part of a trial “in the interest of morals, public order, or national security in a democratic society, and whenever the interests of juveniles or the protection of private life of the parties may so require”. In the case of article ., the reasons for which the press and/or the public may be excluded are “special circumstances” relating to the protection of victims, witnesses and members of their families (article ) or the protection of a) confidential, or b) sensitive information. . Regulation , attuned to the provisions of article ., provides that all hearings shall be held in public unless otherwise provided by the Statute, the Rules, or the Regulations of the Court. Under the same regulation, the reasons for holding trial proceedings, or any part of them, in closed session must

the judiciary



be made public. Proceedings held in camera, or any part of them, may subsequently be made public if the reasons for withholding their publication subsequently eclipse (regulation ). Publicity of proceedings beyond the courtroom, through broadcasting, release of transcripts and recordings, is addressed by regulation . Rule  requires that proceedings held with a view to determining the relevance or admissibility of evidence relating to the consent of a victim of a crime of sexual violence should be held in camera. Rule  establishes that consent of a victim of sexual violence cannot be inferred from the circumstances specified therein, nor can it be inferred “by reason of the sexual nature of the prior or subsequent conduct of a victim or witness”. In determining the admissibility of evidence in this context, regard must be had, as provided in rule ., to its probative value. . It is interesting to notice that Article . refers to the protection of both “confidential” and “sensitive” information. Sensitive information is information other than confidential information. Confidential information is information protected as such by various provisions of the Statute and rules to which we have referred. We may also presume that sensitive information is information other than information relevant to the need for the protection of victims, witnesses, or members of their families, the subject of article . Sensitive information, as may be gathered, is referable to personal matters apt to hurt the individual by their disclosure, information intruding into the private domain of a person. . Article .(a) reads, “[a]t the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the PreTrial Chamber. The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with article  or to plead not guilty”. . The reading of the charges to the accused heralds the commencement of the hearing of the case. Reading the charges to the accused does not exhaust the duty of the Trial Chamber to ensure that the accused understands the charge. The court must satisfy itself, as provided in article .(a), that this is the case. If in any doubt as to the capacity of the accused to understand the charge(s) and appreciate their nature, the Trial Chamber may direct the medical examination of the accused, pursuant to the provisions of rule . Aside from the provisions of article .(a), the Court may order a medical examination “for any other reasons”. Such reasons, as may be surmised, would be reasons affecting the mental and psychological health of the accused. Moreover, the Court may order the medical examination of the accused at the request of any party. Provision is made in rule  for the collection of information regarding the state of health



chapter six

of the person under investigation. An order to that effect may be made either on the initiative of the Court or at the request of any party to the proceedings. Rule  refers to the powers of a Pre-Trial Chamber. Like power is acknowledged to the Trial Chamber by the provisions of rule .. The Trial Chamber may appoint one or more experts with a view to assessing the mental state of the accused. If the Court determines that the accused is unfit to stand trial, the case shall be adjourned. Fitness to stand trial is not coincident with lack of criminal responsibility. The issue is confined to the mental capacity of the accused at the time of the trial, his capacity to understand the charges, his ability to make his defence and instruct counsel. A finding of unfitness to plead does not terminate the proceedings. . At the request of any of the parties, or on its own motion, the Trial Chamber may review its ruling that the accused is unfit to plead at any subsequent time. It is bound to do so every  days “unless there are reasons to do otherwise” (rule .). Such reasons may be provided by a medical prognosis of the mental state of the accused ruling out changes within the period of  days or suggesting an earlier improvement. . Regulation  makes detailed provision for the protection of the health and safety of detainees. In addition to the availability of medical services in prison, a person in custody may be hospitalised whenever his/her health so requires. Specific provision is made therein that necessary arrangements be made for the care of mentally ill persons or persons who suffer from a serious psychiatric condition. By order of a Chamber, a mentally ill detainee who suffers from a serious psychiatric condition may be transferred to a specialised institution for appropriate treatment (regulation .). . No provision is made in either the Statute or the Rules about the outcome of the trial proceedings in the event of a person being permanently, or for a foreseeably long period of time, unable to understand and appreciate the nature of the charges and sequentially unable to follow criminal proceedings and defend himself / herself. Holding a trial within a reasonable time is a requisite of a fair trial and the expeditious holding of the proceedings, a dictate of article . of the Statute. Being tried without delay is assured as a right of the accused by the provisions of article .(c). In its decision of  December ,403 the Appeals Chamber noted that power resides with the Court to stay 403 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–).

the judiciary



the proceedings. Impossibility to hold the trial, let alone a fair trial, can have no different consequences. As the court explains: The power to stay proceedings is par excellence a power assumed by the guardians of the judicial process, the judges, to see that the stream of justice flows unpolluted.404

The court underscored: The impossibility of embarking upon the trial of the accused after the lapse of such a length of time was in itself a consideration with a direct impact upon a decision to stay the proceedings. The time perspective from which impossibility to hold a fair trial is judged, is the time at which the trial should be held.405

In a subsequent decision of  October ,406 the Appeals Chamber adhered to its previous judgment, affirming that where a fair trial is impossible, the Court can stay the proceedings. The majority of the court held that stay may be conditional, but not indefinite, adding: At the same time, the right of any accused person to be tried without undue delay (article ()(c) of the Statute) demands that a conditional stay cannot be imposed indefinitely. A Chamber that has imposed a conditional stay must, from time to time, review its decision and determine whether a fair trial has become possible or whether, in particular because of the time that has elapsed, a fair trial may have become permanently and incurably impossible. In the latter case, the Chamber may have to modify its decision and permanently stay the proceedings.407

One may therefore conclude that where it is made to appear that the accused will be in no condition to understand the charges and defend himself owing to mental incapacity, and his or her condition appears to be irreversible within such time as may be judged reasonable for the holding of the trial, the proceedings should be stayed. . Article .(b) states, “[a]t the trial, the presiding judge may give directions for the conduct of proceedings, including to ensure that they are conducted in a fair and impartial manner. Subject to any direction of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute”. It must be noticed that it is the Presiding Judge, not the Trial Chamber, 404

Ibid., para. . Ibid., para. . 406 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC-/–/–). 407 Ibid., para. . 405



chapter six

who gives directions for the conduct of the proceedings. The provisions of rule . are problematic. It provides that in the event of the presiding judge failing to give directions relating to the conduct of the proceedings, the Prosecutor and the defence shall agree on the order and manner in which evidence shall be submitted to the Trial Chamber. This is a curious provision, acknowledging power to the parties to determine the order and manner in which proceedings should be conducted, a power that inheres in a court of law, in fact a power that the Court is duty bound to exercise. Furthermore, the Statute itself foreshadows the order in which evidence shall be adduced. Article . lays down that the accused is presumed to be innocent until proven guilty before the Court, in accordance with applicable law. So, in the event of no submission of evidence, the accused must be acquitted and discharged. The onus of proof is cast exclusively on the Prosecutor. Necessarily, evidence for the prosecution must be introduced before the submission of any evidence by the defence. Knowledge of the case of the prosecution is a prerequisite for the preparation and the advancement of the defence of the accused; a right assured to a person under accusation by article .(b). In light of the above, questions of consistency of rule  with the Statute do arise. Article .(b) in no way envisages an agreement between the parties as to the order or manner in which the evidence will be adduced. On the contrary, article .(a) provides that, “subject to any directions” of the presiding judge, the parties may submit evidence. In other words, in the absence of directions of the presiding judge respecting the conduct of the proceedings the parties will submit evidence in the natural order, the order warranted by an adversarial hearing. Rule  appears to be in conflict with the Statute to the extent that it acknowledges power to the parties to determine the order in which evidence may be adduced. . The examination of witnesses and matters incidental thereto are prescribed by paragraph  of rule . The party calling a witness has the right to examine him/her. Examination of a witness by the opposite party may extend to any matter relevant to the sub judice issues. The worth of the evidence of a witness is associated with the reliability of his/her testimony and credibility. The opposite party is entitled to cross-examine a witness with a view to testing professed knowledge of a fact, opportunity to perceive it, the accuracy of memory and the veracity of the witness. The Court may question a witness before or after the witness is examined by either party. It would be rare for the Court to examine a witness before the party calling him/her. Equally unlikely is for the Court to examine a witness before the opposite party. By the terms of rule , no right vests in a party calling a witness to re-examine him or her. Examination of a witness by either party must be confined to relevant and admissible evidence.

the judiciary



. Rule .(d) states, “[t]he defence shall have the right to be the last to examine a witness”. This provision is meant to assure that in the event of the Court examining a witness after the conclusion of his/her examination by the parties, the accused has the right to examine the witness anew primarily, one may assume, in relation to matters arising from his/her answers to the questions of the Court. Attention must be drawn to the provisions of rule ., binding the Chamber to “[ . . . ] be vigilant in controlling the manner of questioning a witness or victim so as to avoid any harassment or intimidation, paying particular attention to attacks on victims of crimes of sexual violence”. The object of this provision is to stem abuse of the right to examine a witness, not to screen the questions put. Repetitive questions may also be a source of harassment. Moreover, they are a source of delay of the proceedings apt to be disallowed for that reason too. The object of examination of a witness is to elicit his/her testimony, not to dictate to or lead the witness into what should be said. The examination of a witness is intended to reveal the knowledge of a witness of facts relevant to the cause of the proceedings, the source of knowledge and matters relevant to the reliability and accuracy of the witness’s perception of the events. The reliability of the testimony of a witness puts the credibility of the witness in issue a weighty consideration in the assessment and evaluation of his/her veracity. Questions designed to intimidate, threaten or insult a witness must be disallowed. . A witness must not be present when testimony is given by another witness, although breach of this requirement, embodied in rule ., does not disqualify the witness from subsequently testifying. But the fact of such presence during the testimony of another witness must be recorded and be duly taken into account in the ponderation of the witness’s testimony. . Article . provides that in addition to the grounds specified therein, by reference to which criminal responsibility may be denied, additional grounds for the exclusion of criminal responsibility may be advanced. It provides, “[a]t trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph  where such a ground is derived from applicable law as set forth in article . The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence”. Rule  does that. Notice must be given of an intention to raise such a ground, sufficiently in advance of the trial, to enable the Prosecutor to prepare adequately for the trial. Following the notice envisaged by rule , a hearing shall be held, with the participation of both sides in order for the Court to determine “whether the defence can raise a ground for excluding criminal responsibility”. If the answer is in the affirmative, the Court may grant the



chapter six

Prosecutor an adjournment to address the issues raised thereby. It is a two-stage process. In the first place, the Court must decide whether such a ground can be raised and, if the motion is upheld, the Court will, in the second place, address the merits of such a ground. Neither article . nor rule  throw light on what grounds, other than the ones specified in article , criminal responsibility may be excluded. Article  enumerates four grounds, substantiation of any one of which would free the accused from responsibility for a crime committed. These are: a) mental disease or a defect of the mind, b) intoxication to the degree of a person forfeiting the capacity to appreciate the unlawfulness or nature of his/her acts, c) self-defence, and d) duress. Other grounds for the exclusion of criminal responsibility must derive from applicable law under article . By the terms of article ., the Court is not bound to accept a defence recognised by the law, finding application under article , but may do so. The crucial words of paragraph . in this connection are, “[a]t trial, the Court may consider a ground for excluding responsibility other than those referred to in paragraph  [of article ] [ . . . ]”. In a way, the Statute leaves the determination of applicable law to the Court, which is unusual. In such circumstances, the guiding principle for the Court should be the spirit of the provisions of article  viewed in their entirety in conjunction with the interests of justice. The object of article  is to free from criminal liability persons who lacked at the time of the commission of the offence the mental capacity to reflect and appreciate the nature of their acts; and, in the case of duress, persons who ceased to be free agents on account of compulsion; also persons acting in self-defence coincident with self-preservation. . Article .(a) provides, “[t]he Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to: (a) Rule on the admissibility or relevance of evidence”. To be received, evidence must be relevant to matters at issue in the proceedings. What is relevant to any given issue is a matter of logic. As earlier mentioned, evidence bearing on the credibility of a witness is also relevant as it sheds light on the reliability of his/her testimony. In determining the admissibility of evidence, the Court should be guided by the provisions of article ., which reads, “[t]he Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence”. Probative value in this context signifies the value of evidence with regard to the proof of a fact or facts in issue. Evidence obtained in breach of the Rules of Procedure and Evidence, as may be the case with evidence obtained contrary to the provisions of rules  and , or contrary to the provisions of article , may be rejected whenever the Court

the judiciary



determines that its provenance casts doubt on its probative value. Recounting an event about which the witness feels uncertain does diminish the probative value of the testimony, especially its cogency. Rule  provides that questions of relevance and admissibility must be raised at the time when the evidence is tendered. If a fact having a bearing on the relevance or admissibility of testimony comes to the notice of a party after the submission of the evidence, the party may raise the issue in writing, whereupon the Court shall determine whether the issue will be re-opened. Rule . establishes that evidence rejected as irrelevant or inadmissible should be disregarded for all purposes. . According to article ., “[e]vidence obtained by means of a violation of this Statute or internationally recognized human rights” shall not be admitted in either of two cases, where “(a) [t]he violation casts substantial doubt on the reliability of the evidence; or (b) [t]he admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings”. This provision is consonant with article ., acknowledging that the offspring of a violation of human rights cannot, as a rule, be trusted as an agent of truth. Violation of human rights is apt to sap a person’s freedom of expression, rendering him liable thereafter to tell less than the truth or conform to the wishes of the interrogator for fear of consequences. . Rejection of evidence obtained in breach of human rights of a person is a potent means for their protection by discouraging potential violators from engaging in such practices and, as earlier stated, violation of the fundamental rights of a person tends to sap free will, making a person vulnerable to accommodate the wishes of his/her interrogator or tormentor. . Rule . provides, “[w]ithout prejudice to article , paragraph , a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence”. The object of this provision is to establish that corroboration of the testimony of any witness on any given matter is not legally required. This does not preclude the Court from rejecting evidence where corroboration in the nature of things should be expected. The need for corroboration in delicate spheres of human affairs can be regarded as a counsel of caution. In such areas of life, such as sexual ethics, people have a tendency to live up to a picture of themselves agreeable to societal standards that may lead them to colour their evidence or put a different gloss on their acts. . Apparent consent to sexual activity expressed by words or conduct should be disregarded, as provided in rule , if the consent giver is under compulsion



chapter six

and, on account of that, unable to provide genuine consent. Moreover, consent cannot be inferred by reason of the silence of or lack of resistance by a victim of sexual violence. Evidence of conduct prior or subsequent to the alleged crime does not constitute a factor undermining the credibility of the complainant in a crime of sexual violence. If it was not for rule , such evidence would be admissible as it is relevant to the credibility of the alleged victim of sexual assault, as well as the impression left on the alleged perpetrator by the conduct of the victim at the time of the alleged commission of the offence. . The parties may come to an agreement as to one or more facts set out in the charges, the contents of documentary evidence and the indisputability of a witness’s statement. Provision for this is made in rule , with the addition that agreed facts may be treated as proven unless the Chamber considers that the interests of justice and more so those of the victims require a more complete presentation of the facts covered by the agreement, in which case, the testimony bearing on the subject must be adduced in order to illuminate the factual issue in question. . When the submission of evidence ends, the fact must be noticed and declared by the presiding judge signifying thereby the end of the production of evidence. Thereafter, the same judge shall invite the parties to make their closing statements, with the defence being assured the right to address the Trial Chamber last. h. Article .(b) . The Trial Chamber must take, as provided in article .(b) every step necessary to ensure order during the hearing of a case. The orderly and unimpeded conduct of the proceedings is a consequential factor for the due administration of justice. . Article  empowers the Trial Chamber to sanction persons guilty of misconduct such as disruption of the proceedings or deliberate refusal to comply with the directions of the Court. The wrongdoers may be punished, as stated therein, “by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence”. The use of the word “administrative” in this context is hard to explain or justify for sanctions such as the imposition of a fine have a penal character. Furthermore, the Court is not an administrative but a judicial body trusted to ensure the orderly conduct of proceedings before it. Rule  provides that persons other than the accused

the judiciary



disrupting the proceedings may be removed from the courtroom and, in case of repeated misconduct, may be interdicted from attending the proceedings after being duly warned of the implications of their disruptive conduct. Rule  provides that persons refusing to obey an oral or written decision accompanied by a warning as to the sanctions that may befall them, may be excluded from the courtroom for a period of up to  days. If their misconduct is of a serious nature, they may be fined. If the wrongdoer is an official of the Court, defence counsel or a legal representative of victims, they may likewise be interdicted from exercising their functions for a period of up to  days. If the presiding judge is of the opinion that a longer interdiction is warranted, the matter may be referred to the Presidency, which may, after holding a hearing, order a longer or permanent period of interdiction. Rule . limits the maximum fine that may be imposed for misconduct in Court to  euros. In cases of continuing misconduct, “a new fine may be imposed on each day that the misconduct continues, and such fines should be cumulative” (rule .). . Before the imposition of any sanctions upon a person, the perceived illdoer must be afforded an opportunity to be heard. i. Article . . It is the responsibility of the Trial Chamber to ensure, as required by article ., that a complete record of the proceedings is kept, accurately recording what has transpired during the trial. Such record must be kept and maintained by the Registrar. Rule  details what the record should include. An accurate record of all proceedings must be kept, including transcripts, audio- and video- recordings and other means of capturing sound or image. Rule  requires the Registrar to keep a record of the evidence in its entirety “and other materials offered during the hearing”, subject to any order of the Court modifying this duty. j. Article  . Article  prescribes the process that should be followed on admission of guilt. In the first place, the Court must ascertain and determine that the accused understands the nature and consequences of admission. . The Trial Chamber must satisfy itself that the accused is fully aware of the implications of admission and the penalties to which he/she is liable to. In the second place, the Trial Chamber must probe the voluntariness of the admission made and whether it is an informed one, i.e. that it is made



chapter six

after due consultation with defence counsel if represented. Thirdly, and most importantly, the Trial Chamber must determine whether the admission is duly supported by the facts founding the charges, the material relied upon by the Prosecutor for the proof of the charges and any other evidence presented by either party to the proceedings. . If the Trial Chamber determines that the conditions set out in article . are satisfied and the facts supporting the charges establish all the ingredients of the offences, the Trial Chamber may proceed to convict the accused of the crimes admitted (article .). Evidently, the admission of guilt does not import, as under the common law system, the automatic conviction of the person. The admission of guilt must, in essence, be verified in every respect. . Article . reads: Where the Trial Chamber is satisfied that the matters referred to in paragraph  are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime.

The word “may” in the above context is an empowering provision, signifying the power of the court to convict in face of fulfilment of the conditions of paragraph  of article . The word “may”, in this context, does not relieve the Court of the duty to convict if the conditions enumerated above are fulfilled. . If the Trial Chamber is not satisfied that the requisites of paragraph  are present, it “shall”, as laid down in article ., “consider the admission of guilt as not having been made, in which case it shall order that the trial be continued under the ordinary trial procedures provided by this Statute and may remit the case to another Trial Chamber”. The power to refer the case to another Trial Chamber is intended to ensure the independence and impartiality of the Chamber trying the case. So, if the Trial Chamber considers that its evaluation of the facts surrounding the case and inferences that may be drawn therefrom predispose it in any way, or so it may appear to a reasonable onlooker that the court has formed a view, albeit preliminary, about the implications of the facts and possible outcome of the proceedings, the case may be referred to another Trial Chamber. . Article . provides: Where the Trial Chamber is of the opinion that a more complete presentation of the facts of the case is required in the interests of justice, in particular the interests of the victims, the Trial Chamber may (a) Request the Prosecutor to

the judiciary



present additional evidence, including the testimony of witnesses; or (b) Order that the trial be continued under the ordinary trial procedures provided by this Statute, in which case it shall consider the admission of guilt as not having been made and may remit the case to another Trial Chamber.

Recourse may be had to article .. (a) where further elucidation of facts is regarded as essential for doing justice in the case, especially the illumination of the harm suffered by victims and for any other purpose warranted by the interests of justice. . If the facts in respect of which complementation is needed relate to the criminal responsibility of the accused, the obvious course is to have recourse to the provisions of article .(b). In this case too, power vests in the Trial Chamber to remit the case to another Trial Chamber for trial. What must be clarified is that a decision to proceed with the trial of the case either by the same chamber or another chamber entails disregard of the plea of guilt for all purposes. . Article . acknowledges the legitimacy of a process in the nature of pleabargaining. It provides: Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.

It may be legitimately inferred that discussion between the two parties on the subject of plea-bargaining can be brought to the notice of the Court. Such discussions would be of consequence if an agreement is reached between the parties on the subjects under consideration. What is clear is that an agreement between the parties as to the plea or sentence to be imposed does not bind the court, being free to reject it if deemed unwarranted by the facts of the case. This is a welcome provision, as the court should at all times be the sole arbiter of the course of justice and every fact relevant to guilt and the punishment to be meted out. The autonomy of the court must be assured at all times in the dispensation of justice. Plea-bargaining is regarded by many as a dubious process that tends to undermine the authority of the court. Plea-bargaining may save the court time, but its consequences may be detrimental to the rule of law, requiring that the law speaks through its only agent; the judiciary. . Article  . Article  contains three very important provisions: –

Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.



chapter six – –

The onus is on the Prosecutor to prove the guilt of the accused. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

. Enshrined in article  is the foundation of liberty; freedom from arbitrary arrest, groundless prosecution, and peremptory conviction. Article  incorporates fundamental norms of justice. In the dissenting opinion of a member of the court, in the judgment of the Appeals Chamber of  October ,408 the presumption of innocence is characterised as the “emblem of liberty”.409 Criminal responsibility of the accused for the commission of a crime is judged at the trial, the venue of justice. The presumption of innocence is universally recognised as a human right, a material element of a fair trial.410 Historically, it has safeguarded the freedom of man from arbitrary detention and summary conviction. . The trial process is largely fashioned to the needs of the presumption of innocence, requiring proof for the conviction of a person to the extent of unequivocally displacing this presumption. No burden lies on the accused to establish his/her innocence. The presumption itself implies that the burden of proof lies squarely on the shoulders of the accuser. As acknowledged in the separate opinion of a member of the Appeals Chamber in a judgment of  October , the presumption of innocence is an inseverable element of a fair trial, adding “[t]he guarantee of a fair trial is not confined to the trial itself but extends to the preparatory process preceding the trial, indeed to every aspect of the proceedings”.411 The presumption finds application at the preliminary stage of the criminal process, involving the issuance of a warrant of arrest (article .), in proceedings under article . and at the confirmation hearing. At all three stages, the court is required to make a preliminary or presumptive finding of complicity in the commission of an offence. Sequentially, the presumption of innocence does come into play, requiring the accuser to discharge the burden cast on the Prosecution, under the relevant provisions of the Statute, to establish complicity. 408 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the release of Thomas Lubanga Dyilo”,  October  (ICC-/–/–). 409 Ibid., para.  of the dissenting opinion of Judge Pikis. 410 See article  of the Universal Declaration of Human Rights, article  () of the International Covenant on Civil and Political Rights, article  () of the American Convention on Human Rights. 411 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC-/–/–), para.  of the dissenting opinion of Judge Pikis.

the judiciary



. Article . specifically provides that the onus of proof lies on the Prosecutor. This is an all-embracing provision, casting the burden of proof exclusively on the Prosecutor. To discharge this burden, the Prosecutor must produce evidence, proving the guilt of the accused. It is not the court’s responsibility or task to inquire into the criminality of the accused, and by reference to the outcome of such an inquiry, to determine the outcome of the case. The accused has no burden to discharge. The guarantee embedded in article .(e), equally applicable by virtue of the provisions of rule . to pre-trial proceedings, assures the accused of the right to confront witnesses testifying against him / her, giving prominence to adversity in the judicial process. Casting the burden of proof exclusively on the Prosecutor gives an accusatorial character to the proceedings, positioning the parties as adversaries with regard to the discharge of the burden of proof. A series of decisions of the European Court of Human Rights412 acknowledges that the attributes of a fair trial warrant an adversarial hearing. . Article . lays down: In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

To convict, the court must be convinced, that is, it must be certain to the extent of entertaining no reasonable doubt about the guilt of the accused. Reasonable doubt is a doubt warranted by reason, the logic of things, arising from the findings of the court. The judgment of the court must be reasoned, another prominent feature of a fair trial. The findings of the court and its resulting verdict must be duly reasoned. . The burden of proving the guilt of the accused beyond reasonable doubt pervades every aspect of the proceedings, including the raising by the accused of special defences excluding criminal responsibility set out in article . The fact that the accused is bound to disclose such defences in advance, as laid down in rule , in no way mitigates the duty of the Prosecutor to prove his case,

412

See Lietzow v. Germany, judgment of  February , Application no. /; Jasper v. The United Kingdom, judgment of  February , Application no. /; Ruiz-Mateos v. Spain, judgment of  June , Application no. /; Brandstetter v. Austria, judgment of  August , Application no. /; /; /; Windisch v. Austria, judgment of  September , Application no. /; Lamy v. Belgium, judgment of  March , Application no. /; Barberà, Messegué and Jabardo v. Spain, judgment of  December , Application no. /; Sanchez-Reisse v. Switzerland, judgment of  October , Application no. /.



chapter six

every aspect of it, beyond reasonable doubt. No burden is cast on the accused to prove special defences. It suffices if at the end of the day the court is in doubt as to their existence. The court must be certain beyond reasonable doubt that a special defence is ill founded or unfounded. . Article  . Article . provides: All the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations. The Presidency may, on a case-by-case basis, designate, as available, one or more alternate judges to be present at each stage of the trial and to replace a member of the Trial Chamber if that member is unable to continue attending.

The requirement that judges should take part in the proceedings, at every stage of them, and participate in the deliberations, can be regarded as a universal prerequisite for the exercise of judicial functions. How can you judge without hearing a case? A judge cannot absent him / herself from any aspect or part of the proceeding, nor delegate his/her responsibilities. Participation at every stage of the proceeding is a sine qua non for rendering judgment on any matter before the Court. Should one or more nominated alternate judge(s) participate at every stage of the trial, and the deliberations of the court? Attendance at every stage of the trial provides the raison d’être for their appointment, for that is the only course open to acquaint themselves with the facts, issues and submissions before the court, putting them in a position to replace one of the judges of the Trial Chamber in the event of his/her inability to continue participating in the proceedings. In those circumstances, the gap is filled by the alternate judge replacing the absent member, assuming responsibility, along with the other members of the Trial Chamber, to bring judgment to bear on the issues before it. What is not equally clear is whether an alternate judge should participate in the deliberations of the judges of the Trial Chamber. Article . of the Statute does not specify whether an alternate judge should be present at the deliberations of the court. Rule  does so, providing that alternate judges “shall sit through all proceedings and deliberations of the case [ . . . ]”, adding that they “may not take any part therein and shall not exercise any of the functions of the members of the Trial Chamber hearing the case”. The inference is that alternate judges must be present at the deliberations of the court but must refrain from participating in the process. . Regulation  provides that alternate judges may be designated by the Presidency as need arises, “first taking into account the availability of judges from the Trial Division, and thereafter from the Pre-Trial Division”. Rule 

the judiciary



makes provision for the replacement of a judge for objective reasons, such as resignation, accepted excuse, disqualification, removal from office and death. Regulation  assigns the replacement of judges to the Presidency. In choosing the judge to replace the one who has ceased to be a member of the court, the Presidency, as provided therein, shall take into account, to the extent possible, gender and equitable geographical representation. Earlier we expressed reservations about the compatibility of regulation  with rule  and article , subject to which its provisions must be read and applied. Replacement of judges within the Appeals Chamber may be made, as provided in regulation , on a temporary basis from amongst the judges of the Trial or Pre-Trial Division. . Article . reads: The Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial.

There is an apparent contradiction between the first and third sentence, the following: Whereas, in accordance with the first sentence, the decision of the court shall be based not only on the evaluation of the evidence but “the entire proceedings” too, in accordance with the third sentence, the court may base its decision only on the evidence adduced, without reference to “the entire proceedings”. The contradiction is more a matter of appearence than reality, inasmuch as under both sentences, the determination of the Court must be based solely upon the evidence submitted. Reference to the entire proceedings is seemingly intended to earmark the framework of the proceedings and every step taken in the process, including objections to the admissibility of evidence. The term “the entire proceedings” is therefore limited to proceedings before the Trial Chamber, and not to any proceedings antecedent thereto. The middle sentence of article . is the crucial one, requiring that the decision should not stray from the facts recited in the charges or in any amendments thereto. The corollary is that evidence surfacing at the trial outside the framework of the charges, that is, the facts founding them, must be disregarded. The decision must be confined to the facts founding the charges. This provision may be correlated to the rights of the accused embodied in article , requiring disclosure of the case for the prosecution on the one hand, and affording adequate time and facilities to him/her to prepare the defence on the other. . A question arises whether the Trial Chamber can find the accused guilty of an offence other than the one charged when its findings of fact, confined, as they must be, within the parameters of the charges, give rise to another offence.



chapter six

Under the common law system, this is permissible, provided the possibility of prejudice to the accused is ruled out. Under the Statute, it is debatable whether such an option is open to the Court. The Trial Chamber is vested with power, by the provisions of article , in addition to those specifically conferred upon it, to exercise the powers of the Pre-Trial Chamber, those envisaged in article .. Therein it is provided that the Trial Chamber may “exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings”. Article .(c)(ii) empowers the Pre-Trial Chamber to ask the Prosecutor to consider the amendment of charges. It would thus appear that a similar power vests in the Trial Chamber, to be exercised in a manner not prejudicial to the rights of the accused. No prejudice could be expected to result to him/her where the relevant facts giving rise to a different offence are part of the facts founding the charges facing the accused. Neither article  nor any provisions of article  or , or the rules relevant thereto, empower the Trial Chamber to amend the charges on its own motion. One may argue that such a power inheres in a court of law as incidental to the discharge of judicial duties, but the question is not free from doubt. The accused has a right to be informed of the case against him/her including, no doubt, the nature of the charge. Failure on the part of the prosecution to establish its case beyond reasonable doubt entitles the accused to be acquitted. Unlike the confirmation hearing the determination of the Trial Chamber entails finality, importing the application of the rule against double jeopardy enshrined in article . In light of these considerations, it can be asserted that the power bestowed by article .(c) is, in the words of article ., neither “relevant” nor “capable of application” in trial proceedings. . Moreover, article .(c)(iii) specifically envisages the amendment of charges originating from the Prosecutor, not from the Pre-Trial Chamber. It is significant to note in this respect that the power to amend the charges after their confirmation lies with the Prosecutor subject to permission by the PreTrial Chamber.413 . Article . states: The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges.

The meaning of the word “attempt” in this context must be identified. Does it mean making anything other than an effort to agree, or does it mean strive to agree? In its ordinary connotation the word conveys a notion of an act “of 413

See article ..

the judiciary



making an attempt to accomplish something uncertain or difficult”.414 This is the meaning to be ascribed to the word “attempt” in this context; that is judges must make a bona fide effort to agree but nothing beyond that. Certainly, no judge should ever agree to something he/she considers wrong or unacceptable. Anything of that nature would be an antinomy to the freedom of thought and conscience of a judge, to be sustained at all times. Notwithstanding the provisions of article . of the Statute that the decision of the Trial Chamber shall not exceed the facts and circumstances described in the charges and any amendments to the charges, and those of article . providing that amendment of charges can only be approved by the Pre-Trial Chamber on application by the Prosecutor, regulation . seeks to confer power on the Trial Chamber to change the legal characterisation of the facts in the course of the trial. Legal characterisation of the facts denotes the crime(s) disclosed by the facts founding the charge, the crime(s) in respect of which the accused is put on trial. In its decision of  July ,415 the Trial Chamber determined by majority that regulation . of the Regulations of the Court not only allows the Trial Chamber to re-characterise the facts, that is, amend the crime(s) that the accused faces but also that the Trial Chamber is free to amend the facts and circumstances of the case.416 As stated in the majority judgment: Regulation (), applicable at any stage during trial proceedings, contains no limitation to the “facts and circumstances described in the charges”. Therefore, a right to examine again previous witnesses, to call new witnesses and to present new evidence is expressly provided for in order to allow the defence the opportunity to challenge whether the evidentiary threshold required by procedural law has been met, and accordingly, a new factual basis has been established.417

According to the minority opinion of a member of the court, paragraph  of regulation  must be read in the context of the regulation as a whole, establishing “an indivisible or singular process”.418 Attention is drawn to the provisions of article . that the ambit of the Regulations is confined to the routine functioning of the Court and the provisions of article . that the 414

See the definition of the word “attempt” provided by the Shorter Oxford English Dictionary, (th ed.), p. . 415 Prosecutor v. Lubanga Dyilo, Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation () of the Regulations of the Court,  July  (ICC-/–/–), and dissenting opinion of Judge Fulford: Decision issuing a second corrigendum to the “Minority opinion on the “Decision giving notice to the parties and participants that the legal characterisation of facts may be subject to change in accordance with Regulation () of the Regulations of the Court” of  July ”,  July  (ICC-/–/–-Anx). 416 Ibid., para. . 417 Ibid., para. . 418 Ibid., para.  of the dissenting opinion of Judge Fulford.



chapter six

decisions of the Trial Chamber shall not exceed the facts and circumstances set out in the charges. The provisions of article . are underlined confining the power of the Prosecutor after the commencement of the trial to the withdrawal of the charges. According to the minority opinion: Inevitably, it follows that a modification to the legal characterisation of the facts under Regulation  must not constitute an amendment to the charges, an additional charge, or a withdrawal of a charge, because these are each governed by article ().419

The dissenting member left the question of compatibility of regulation  with article . open, in light, inter alia, of his interpretation of regulation  as a singular and indivisible provision, concluding: The scheme of Regulation  indicates that a decision to modify the legal characterisation of facts will not only occur at a late rather than an early stage in the trial [ . . . ]420

It is hard to reconcile the provisions of regulation  with the Statute. Power to amend the charges vests solely in the Pre-Trial Chamber as explicitly provided in article .. Furthermore, authority to seek an amendment of the charges lies exclusively with the Prosecutor. As noted elsewhere in this book,421 if application is made for the amendment of the charges, the new charges must be confirmed in the same way as the original charges were confirmed. The confirmed charges form the subject-matter of the trial. No power vests in the Trial Chamber to amend the charges in any way. This is understandable given the rights of the accused embodied in article .(a) and (b) to be informed a priori of the nature, cause and content of the charges sufficiently in advance to provide him with adequate time and facilities for the preparation of the defence. Moreover, article  binds the Trial Chamber to rest its judgment on the facts and circumstances described in the charges. Not only does regulation  not accord with the Statute but it is contradictory to its provisions; it cannot survive the test of compatibility with the Statute, subject to which the Regulations must be read.422 . Article . states: The deliberations of the Trial Chamber shall remain secret.

This is generally the rule in relation to judicial deliberations deemed essential for the unrestrained exchange of views between members of the court. The 419 420 421 422

Ibid., para.  of the minority opinion of Judge Fulford. Ibid., para.  of the minority opinion of Judge Fulford. See supra paras –. See regulation ..

the judiciary



secrecy of deliberations of the Trial Chamber is re-iterated in rule . After reaching its decision, the Trial Chamber must inform all those who participated in the proceedings of the date on which the Trial Chamber’s decision will be pronounced. The decision must be given within a reasonable time after the retirement of the Court to deliberate. Reasonableness of time in this connection, as elsewhere, is determined by reference to the volume of the evidence, the complexity of the issues involved, and the time ordinarily needed to bring judgment to bear on the specific issues. As detailed in rule , the Trial Chamber shall render decision on each charge separately, and if there are more than one accused, it shall decide separately on the charges against each one of them. . Article . reads: The decision shall be in writing and shall contain a full and reasoned statement of the Trial Chamber’s findings on the evidence and conclusions. The Trial Chamber shall issue one decision. When there is no unanimity, the Trial Chamber’s decision shall contain the views of the majority and the minority. The decision or a summary thereof shall be delivered in open court.

The reasoning of a judgment is an indispensable element of a fair trial. Paragraph  of article  requires that the findings of the Trial Chamber be reasoned by reference to the evidence. Its conclusions too must be reasoned, that is, explain how and why its findings lead to the result arrived at. The reasoning of a judgment, as stated in a dissenting opinion in a judgment of the Appeals Chamber of  December ,423 is the benchmark of accountability of the Court for the exercise of judicial power, and a safeguard against arbitrariness. The reasoning must not be confined to the specification of the facts accepted, but must set out the reasons why the facts before the court justify its findings. Sequentially, the findings of the court must be correlated to the law applicable as identified by the court, and beyond that, explain the logical inferences of its findings, warranting its conclusions. One decision shall be issued, but, in the absence of unanimity, the Trial Chamber’s decision shall contain or embody the views of both the majority and the minority. The court is duty-bound to pronounce its judgment in open court, or provide a summary thereof. If a summary of a decision will be pronounced, it must make reference to every salient aspect of the decision. According to rule , every decision of the Trial Chamber on the a) the admissibility of a case, b) the jurisdiction of the court, c) criminal responsibility of the accused, d) sentence and e) reparations must be pronounced in

423 Prosecutor v. Bemba Gombo, Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled “Decision on application for interim release”,  December  (ICC-/–/–).



chapter six

public, and whenever possible, in the presence of the Prosecutor, the accused, victims, or legal representatives of victims participating in the proceedings. . Sentencing . Article  prescribes the process following the conviction of the accused. Article . provides that, in determining the punishment of the convicted person, the Trial Chamber, “shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence”. Evidence indicative of the gravity of the offence must be taken into account. So must mitigating circumstances. The injury occasioned to victims of the crime is another relevant factor to be pondered, as well as every fact relevant to the determination of sentence specified in article . a. Sentencing Procedure . Article . provides: Except where article  applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.

What this article provides is that, although the court is not bound to hold a hearing, specifically directed to further illuminating the scene with regard to the magnitude of the crime, it may do so wherever necessary for the elucidation of the personal circumstances of the accused, the harm occasioned to victims and every other fact bearing on sentencing on which the evidence might shed light. Issues relevant to sentence encompass facts occurring after the commission of the offence, such as expressions of remorse or efforts on the part of the accused to compensate or alleviate the ill done to victims of the crime(s). . As a rule, a hearing should be held on a date subsequent to the pronouncement of the verdict of the Trial Chamber with a view to hearing evidence, which is forthcoming from the parties, as well as the submissions of the parties pertinent to the implications of facts relevant to sentence. A sentencing hearing is obligatory if requested by either party. If such a hearing is to be held, article . provides that, “any representations under article  shall be heard during the further hearing referred to in paragraph  and, if necessary, during any additional hearing.” The date of any further hearing must be set by the Presiding Judge, as specified in rule . A sentencing hearing can be postponed in

the judiciary



exceptional circumstances by the court on its own motion, or at the request of any of the parties or the legal representatives of victims. . Article  provides that sentence must be pronounced in public and, whenever possible, in the presence of the accused. Rule  envisages that in addition to the accused, the decision on sentence, like the decision on the accused’s criminal responsibility, must be given in the presence of the Prosecutor and victims participating in the proceedings. b. Penalties . Article  makes provision for the penalties the Trial Chamber may impose for the commission of crime(s) within the jurisdiction of the Court of which the accused is guilty. It must be noticed that the sections of the Statute creating the offences of genocide, crimes against humanity and war crimes make no provision for the penalties to which the offenders are liable, which is ordinarily the case in national legislation criminalising conduct. In fact, the punishment to which the culprit is liable is often regarded as part of the definition of the crime, an indicator of its gravity. The punishment that a person guilty of an offence under articles ,  or  of the Statute is liable to, is imprisonment. The length of imprisonment is in the discretion of the court. The maximum punishment to which a person may be sentenced is  years imprisonment. And in cases of extreme gravity of the crime committed, appraised together with the individual circumstances of the convicted person, life imprisonment.424 . Article . provides that a person shall not be released before the expiry of the sentence imposed by the Court. The Court may reduce the sentence in the circumstances envisaged in article  after hearing the person (article .). Article . provides: When the person has served two thirds of the sentence, or  years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.

A mandatory duty is imposed upon the Court to review the sentence after the lapse of the specified period of internment with a view to determining whether the sentence should be reduced. Rule . provides: For the application of article , paragraph , three judges of the Appeals Chamber appointed by that Chamber shall conduct a hearing, unless they decide otherwise in a particular case, for exceptional reasons [ . . . ] 424

See article .



chapter six

Evidently, the aspect of rule  itemised above conflicts with the provisions of article . that imposes a positive obligation upon the Court to review sentence after the lapse of the period of detention specified therein. The process of review envisaged by article  involves no reconsideration of the sentence imposed or its propriety by reference to the criteria set out in article  and rule . That is the task of the Appeals Chamber on appeal against sentence pursuant to the provisions of article . . Article . identifies the factors that militate for a reduction of sentence. It reads: In its review under paragraph , the Court may reduce the sentence if it finds that one or more of the following factors are present: (a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions; (b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or (c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.

These factors are specified in rule (a) to (e). They relate to the conduct of the detainee, good if it has so been, and genuine dissociation from the crime, the prospect of re-socialisation and successful resettlement, action taken for the benefit of victims and personal circumstances including the deterioration of health. A factor that may militate against reduction of sentence is the likelihood of the release of the detainee causing significant social instability. . Factors to be taken into account in relation to reduction of sentence refer primarily to the conduct of the prisoner after sentence, especially facts evincing amelioration of the accused’s sense of social responsibility often evidenced by acts of contrition. . Article . lays down that, after the initial review of sentence for the purposes of reduction pursuant to article ., the Court may, if reduction is refused on the first review, revisit the question of reduction of sentence every three years, by reference to the criteria laid down in the law; unless the Court by its original decision establishes a period shorter than three years for considering the issue of reduction of sentence anew in case of significant change of circumstances. In that eventuality, the three judges constituting the reviewing bench may allow a sentenced person to apply for review

the judiciary



within the three-year period, or a shorter one, as they may deem appropriate. The procedure for review respecting reduction of sentence is outlined in rule . . Article . provides: In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

Both a fine and a forfeiture order are punishments additional to, and in no circumstances a substitute for, a sentence of imprisonment. The rule establishing the criteria relevant to the imposition of a fine is rule . To begin, the Court must consider whether the sentence of imprisonment constitutes a sufficient penalty. The sufficiency of a penalty is correlated to the gravity of the offence and the personal circumstances of the accused. Sentence must, as a rule, befit the offence and the offender. The two in conjunction constitute the determinants of sentence. Should the court impose a lesser term of imprisonment if minded to impose a fine? The answer appears to be in the negative. This may be inferred from the provisions of rule , providing that in determining whether to impose a fine, the principal consideration is the sufficiency of imprisonment as a penalty. What is singled out is the sufficiency of the mode of punishment, namely imprisonment. A fine is a different form of punishment, a monetary one. The financial capacity of the convicted person is stated to be a relevant consideration, viewed in conjunction with any forfeiture (article ..b) or reparation order (article ) made against the convicted person. Another factor relevant to any decision to impose a fine is “[ . . . ] whether and to what degree the crime was motivated by personal financial gain” (rule .). The object here is to demonstrate that crime motivated by a desire to enrich oneself does not pay. . If a fine is imposed, the Trial Chamber must allow the convicted person a reasonable time within which to pay it. The court may order the payment of the totality of the fine in one instalment or direct that it be paid by instalments over a period of time. But the amount of the fine should under no circumstances exceed   of the convicted person’s identifiable assets after deduction of an appropriate amount for the financial needs of the convicted person and his/her dependants. Article  provides that States Parties must give effect to fines or forfeiture orders made by the Court. The Presidency shall assist a State in the enforcement of fines, forfeiture or reparation orders, as provided in rule . In cases of continued and wilful non-payment of a fine, the Presidency either on its own motion or at the request of the Prosecutor may, if satisfied



chapter six

that all available enforcement measures have been exhausted, extend the period of imprisonment up to one-quarter of the term of imprisonment imposed, or five years, whichever is less, provided the period of imprisonment added thereby does not lead to a total exceeding  years. Moreover, no period of imprisonment can be added to a life sentence. In determining the length of imprisonment to be added, regard must be had to the amount of the fine, and whether any part of it was paid. . Proceedings for the extension of the period set for the payment of a fine shall be held by the Presidency in camera. In the context of this hearing the views of the convicted person and the Prosecutor will be listened to. The convicted person has the right to be assisted by counsel. . Lastly, in imposing a fine, the court must warn the convicted person of the consequences that may befall him or her in case of failure to pay what he/she has been ordered to. c. Determination of sentence: relevant considerations . Article . enumerates the facts and circumstances that have a bearing on sentence. It provides, “[i]n determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person”. As earlier noted, the gravity of the crime and the personal circumstances of the offender constitute the principal determinants of sentence. The aphorism that the higher one stands the greater his/her responsibility for the commission of a crime finds expression in the sentencing process. More is expected of a person who has had opportunity to cultivate a developed sense of social responsibility and has acquired the capacity to evaluate the consequences of criminal conduct on the victim and society than from a less privileged person, educationally and socially. . Rule  indicates the circumstances that may count in mitigation or aggravation of punishment, including the conduct of a person after the commission of the crime, especially efforts to compensate the victim(s) and cooperate with the Court. The court must, as directed by rule , balance aggravating and mitigating circumstances. In so doing, regard must be had to the harm occasioned to victims and their families. The nature of the unlawful conduct and the means employed to carry out the crime, the degree of participation in the commission of the offence, the nature of intent, as well as the age, education, social and economic condition of the convicted person,

the judiciary



are among the factors to be considered. The following are specified in rule .(a) as mitigating circumstances: (i) The circumstances falling short of constituting grounds for exclusion of criminal responsibility, such as substantially diminished mental capacity or duress; (ii) The convicted person’s conduct after the act, including any efforts by the person to compensate the victims and any cooperation with the Court.

. The following are listed as factors aggravating the crime: - previous convictions for crimes within the jurisdiction of the Court, or for crimes of a similar nature; - abuse of power or official capacity; - committing the crime when the victim was defenceless; - the cruelty of the means employed in the commission of the crime; - the number of persons victimised thereby; - commission of a crime motivated by discriminatory objectives, identified in article .; - other circumstances similar to the ones identified above. . Life imprisonment may be imposed whenever justified by the extreme gravity of the crime and the individual circumstances of a person, evidenced by one or more of the aggravating circumstances enumerated above. The position and authority of a person in a multiple criminal venture and the objectives behind it, may configure a crime of extreme gravity. . Reparations—Article  a. Principles governing reparations . Article  of the Statute deals with reparations to victims. Article . provides: The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.

. Reparation imports the notion of making amends for a wrong. The wrong to be remedied through reparations is not confined to any particular species of damage. On the contrary, the notion is all-embracive considering what is specifically included, i.e. restitution meaning restoration to one’s former position, compensation, including damage for the loss suffered and rehabilitation, entailing recovery of expense incurred in the recovery of one’s health,



chapter six

physical, mental, or psychological, plus loss suffered on account of the diminution of one’s capacity for work. . The principles by reference to which reparations should be assessed or estimated are left to be established by the Court. In so doing, the Court may derive guidance from principles governing the award of damages applicable in national jurisdictions, reflecting principles finding application under systems of law. The notion of just and equitable compensation, or moral damages, as elsewhere identified, is intended to compensate the victim as best as money can do. Expression must be given to every species of damage arising from a violation of the human rights of man. The word “Court” in the context of the paragraph of article  that we examine signifies the Trial Chamber dealing with reparations, pursuant to the provisions of article . The Trial Chamber is the body responsible for the award of reparations. A decision on reparations is appealable under the provisions of article . at the instance of the convicted person, the bona fide owner of property affected by the order or the legal representative(s) of victims. . A question of reparations can be addressed either upon the request of a victim or in exceptional circumstances by the court raising the issue on its own motion. What these circumstances are is not specified in the Statute. One may presume that such circumstances may arise in the face of evidence emerging at the trial indicating who the victims are and the nature of the damage suffered as a result of the crime in circumstances making it manifestly unjust to deny them reparations. . Rule  makes provision for the contents of a request for reparations and outlines the procedure to be followed for its determination. A written application must be submitted to the Trial Chamber specifying the nature of the damage, loss or injury elucidating what should be made good by the award of reparations, as well as the particulars relevant to the crime causing the injury and the loss suffered. The persons believed to be responsible for the injury, loss or harm must be identified. The claim must be itemised by reference to compensation, rehabilitation or restitution. In addition to that, witnesses who can testify about the events leading to the infliction of harm must be identified. Where restitution is sought, the property to be restored must be specified, while claims for compensation and rehabilitation must be duly particularised. . Rule  specifies the procedure applicable where the court on its own motion raises the issue of reparations. The court may ask the Registrar to notify

the judiciary



the persons against whom the court is considering making a determination and affected victims. If in response thereto a victim makes a request for reparations, the procedure laid down by rule  must be followed. On the other hand, if the victim requests in response thereto that the court should refrain from making an order for reparations, the court shall abandon the initiative (rule .). . Article . reads: The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.

Where appropriate, the court may order that the award for reparations be made through the Trust Fund, envisaged by article . . Reparations can only be adjudged against a convicted person. The venue for the adjudgment of reparations is a criminal not a civil court, a court nonetheless well equipped to address reparations considering that it is the same court which conducted the trial leading to the conviction of the accused on the one hand and had opportunity to hear the views and concerns of victims, where expressed, about the implications of the crime on their being, on the other. . Rule  specifies that individual awards for reparations shall be made against a convicted person, ruling out the possibility of awards being made against any other category of individuals. The sum awarded may, by directions of the court, be deposited with the Trust Fund where it is impossible or impracticable to make individual awards directly in favour of each victim. The amount to be recovered may be paid to the Trust Fund, where “the number of the victims and the scope, forms or modalities of reparations makes a collective award more appropriate.” . Rule . provides that other resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article . But neither the Statute nor the Rules of Procedure and Evidence confer a right upon victims to claim reparations for harm suffered from the Trust Fund. Rule  acknowledges discretion to the Trial Chamber, where there are more victims than one and the Chamber so deems appropriate, to make an award on an individual or a collective basis, or both. The court may, at the request of either the victims or the convicted person or on its own motion, appoint experts to assess and determine the extent of damage, loss or injury suffered. Expert reports shall be put before representatives of the convicted person and the victim(s).



chapter six

. Where the issue of reparations is raised by the court, pursuant to article ., the proceedings must be brought to the notice of any persons or States having an interest in the matter, as laid down in rule . Thereafter, if a victim makes a request for reparations, the proceedings shall follow the process set forth in rule . It must be underlined that participation in the judicial proceedings leading to the conviction of the accused is not a prerequisite for making a claim for reparations. Of course, the injury or damage sought to be recovered must derive from one or more of the crimes of which the accused was convicted. Rule  prescribes the modalities and extent of the publicisation of the proceedings, acknowledging power to the court, whenever necessary, to seek the cooperation of States Parties in bringing the proceedings to the notice of interested parties. Regulation  of the Regulations of the Court envisions the evolvement by the Registrar of standard forms for raising a claim for reparations. In this context, we must remind that if a further hearing is held for the purposes of sentencing in accordance with the provisions of article ., representations relevant to reparations will be addressed in the context of such a process and not in separate proceedings. We may also remind that Rule  provides that, in determining whether to penalise a convicted person with a fine in addition to imprisonment, regard must be had to any order of reparations made by the court. Article . empowers the Court, whenever necessary for the implementation of an order for reparations, to seek the cooperation of States Parties under article .. In accordance with article ., a State Party is bound to give effect to a decision ordering reparations to victims, as if the provisions of article  were applicable. In the same way that States Parties must give effect to orders entailing the imposition of a fine or a forfeiture order, they must do likewise in implementing an order for reparations. b. Trust Fund . Article  envisages the establishment, by the Assembly of States Parties, of a Trust Fund “for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims”. Although article . provides that the funds of the Trust must be devoted for the benefit of victims and their families, no right vests in victims or members of their families to seek reparations from the Trust Fund through the judicial or any other legal process. The Trust Fund is, in many respects, a sui generis institution. . Article . provides: The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.

the judiciary



“Other property”, in the context of this provision of the Statute, signifies both corporeal and incorporeal property; fines belonging to the former category and forfeited property to the latter. The Trust Fund, as laid down in article ., “shall be managed according to criteria to be determined by the Assembly of States Parties”. By a decision of the Assembly of States Parties,425 the Trust Fund envisaged by article . was established, and sequentially thereto, the Regulations of the Trust Fund for Victims were put in place.426 Rule . repeats that awards for reparations must be made directly against a convicted person. However, if it is either impossible or impracticable to make individual awards directly to each victim, the award for reparations against a convicted person may be deposited with the Trust Fund (rule .). Likewise, the court may direct that reparations against a convicted person may be paid through the Trust Fund where the number of victims and “the scope, forms and modalities of reparations make a collective award more appropriate” (rule .). Following consultations with interested parties, the court may direct that an award for reparations be made through the Trust Fund or an intergovernmental, international or national organisation approved by the Trust. Rule . reiterates that resources of the Trust Fund other than reparations may be used for the benefit of victims generally. . Rule . confers power on the Presidency, after consultation with interested parties, to give directions with regard to the disposition or allocation of property or assets realised through enforcement of an order of the court. Rule . provides that in the disposition of money deriving from the sale of assets of the convicted person, priority must be given to satisfaction of reparation orders. c. Regulations of the Trust Fund for Victims . The Regulations of the Trust Fund make provision for the collection and allocation of resources for the benefit of victims and their families. It must keep funds collected for different purposes in separate accounts. Regulation  itemises the funds of the Trust by reference to their source, such as a) voluntary contributions from governments, international organisations, individuals, corporations and other entities, b) money collected through fines or forfeitures pursuant to article ., c) money representing reparation awards pursuant to rule , and d) resources, other than assessed contributions, as the Assembly of States Parties may decide. 425 ICC-ASP//Res.  on the establishment of a fund for the benefit of victims of crimes within the jurisdiction of the Court and of the families of such victims. 426 ICC-ASP//Res. , Regulations of the Trust Fund for Victims.



chapter six

. Regulation  provides that the Trust Fund may accept voluntary contributions from sources other than governments, earmarked by the donor up to one-third of the contribution for disposal at his/her wish, for the benefit of victims and their families. Acceptance of such contributions is subject to the proviso that allocations for specified beneficiaries should involve no element of discrimination on grounds of race, colour, sex, language, religion, political opinion, national, ethnic, or other origin. Regulation  binds the Trust Fund to refuse voluntary contributions inconsistent with the goals of the Trust Fund or offensive to the provisions of regulation  or the independence of the Trust Fund, or where the earmarking of funds would “result in a manifestly inequitable distribution of available funds and property among the different groups of victims”. Awards for reparations made through the Trust Fund must be kept separate from other resources of the Fund (regulation ). Regulation  provides that the board of the Trust Fund must respond to any request of the Chamber, made under rule  of the Rules of Procedure and Evidence, to make representations, oral or written, respecting the transfer of fines or forfeitures to the Trust Fund. In the absence of stipulation by the Assembly of States Parties respecting the disposition of contributions, other than governmental contributions, such contributions will be used for the benefit of victims so qualifying under rule . Regulation  affirms that the resources of the Trust Fund shall be used for the benefit of victims of crimes within the jurisdiction of the Court and members of their families. It is important to note that victims are not confined to persons who were afflicted by crimes committed by convicted persons, but extends to every victim qualifying as such under the provisions of rule , or members of their families. Regulations  to  make provision for the allocation of resources collected through fines or forfeitures, and awards of reparations, entitling the board of directors to seek, whenever necessary, further instructions from the Chamber that imposed the fine or directed the forfeiture, as to the implementation of such orders. A like power is vested in the board of directors with regard to funds coming into its possession as a result of orders or directions of the Court. The final list of beneficiaries of resources of the Trust Fund must, as provided in regulation , be approved by the board of directors.

IV. Appeals . Composition of the Appeals Chamber . The Appeals Division is one of the three judicial branches of the International Criminal Court. The five members of it, that is, the President of the Court

the judiciary



and four judges assigned to this division by the plenum, function en banc. The coram of the court is made up of the five judges of it. Provision for the composition of the Appeals Chamber, as in the case of the other judicial branches of the Court, is made in article , stipulating the criteria by reference to which judges should be assigned to the three divisions of the Court. . The Appeals Chamber shall, as provided for in Article .(b)(i), be composed of all the judges of the Appeals Division. Judges assigned to the Appeals Division shall serve in that division only, as laid down in article .(b). The President of the Court becomes a member of the Appeals Division virtute officio. This means that judges assigned to the Appeals Division are not liable to reassignment during their entire term of office. Judges assigned to the other two divisions, that is, the Pre-Trial and Trial Division, may be reassigned to either of them after the completion of a period of three years service, “and thereafter until the completion of any case the hearing of which has already commenced in the division concerned” (article .(a)). The wording of article .(b), read in conjunction with the first sentence of article ., “Judges assigned to the Appeals Division shall serve in that division for their entire term of office”, leads to the conclusion that judges of the Appeals Chamber can serve in no other division. And the opposite too, that judges assigned to either the Pre-Trial or the Trial Division cannot become members of the Appeals Chamber. Any other interpretation would conflict with the plain provisions of the Statute, requiring that judges of the Appeals Division shall serve in that division for the duration of their entire term of office. The word “entire” means complete in itself, constituting a whole, without anything left out, unbroken.427 Judges assigned to the Appeals Division must serve the whole of their term in that Division. They cannot serve part of their term in any other division. This limitation, it must be underlined, applies to judges “assigned to the Appeals Division”. The President of the Court serves as a member of the Appeals Division virtute officio, as provided in article .. Consequently, unless elected from amongst judges of the Appeals Division, the provisions of article .(b) and  find no application in his/her case. In accordance with rule  the election of the President and Vice President and the assignment of judges to divisions must take place in that order, not later than two months after their election. The election of the President precedes the assignment of judges to divisions. The term of office of one third of the judges expires every three years. Therefore it is unlikely, but not impossible, for the Court to be confronted with a situation where five members assigned to the Appeals Division, including the President,

427

Shorter Oxford English Dictionary, (th ed.), p. .



chapter six

remain in office after the expiration of three years. Can a judge emanating from a division other than the Appeals Division be elected as President of the Court? Neither the Statute nor the Rules confine the election of the President to judges of the Appeals Division. Judges of the ICC enjoy equal status, their seniority being determined by reference to the date of assuming office and, if the same, by reference to their age. Does service of the President in the Appeals Chamber tie him/her to that division of the Court? The Statute offers no direct answer to the question but does so, indirectly, by exclusively confining service in the Appeals Division to judges who are assigned thereto. The President serves in the Appeals Division solely by virtue of his/her office. Upon assumption of the office of the President, he/she relinquishes any prior assignment to a division of the Court becoming liable, after the expiration of service as President to be assigned to a division of the Court subject to the following qualification: he/she can only be assigned to the Appeals Division if, prior to becoming President, he/she had served exclusively in that division. . Judges of the Pre-Trial and Trial Division may be attached temporarily to the other of the two divisions if the Presidency considers that the efficient management of the workload of the Court so requires; subject to the proviso that judges of the Pre-Trial Division who participated in the pre-trial phase of a case shall be ineligible to sit as members of the Trial Chamber hearing the same case.428 The word “attach” in this context means join or connect functionally to “especially a person to a group et cetera”.429 For as long as the attachment lasts the judge attached to the division other to the one to which he/she is assigned is tied to that division, severing links with the division wherefrom he/she was detached. No provision is made in the Statute for judges rendering service to two divisions at the same time. And no provision is made in the Statute for the temporary attachment of a judge of the Pre-Trial or Trial Division to the Appeals Chamber to fill a gap left by the absence, inability or disqualification of an appeals judge to sit in a case. . Regulation  seeks to fill this statutory vacuum. It provides that in the event of a judge of the Appeals Division being either disqualified or unavailable for a substantial reason to participate in the hearing of an appeal, the Presidency may, on a temporary basis, assign a judge from any one of the other two Divisions to replace him/her for the duration of his or her absence or unavailability. Arguably, this regulatory provision can find justification in article  of

428 429

See article .. Shorter Oxford English Dictionary, (th ed.), p. .

the judiciary



the Statute, investing the judiciary of the International Criminal Court with the necessary legal capacity to exercise its functions and fulfill its mission without hindrance. . Rule  provides for the replacement of judges “for objective and justified reasons” identified, albeit not exhaustively, in rule ., that reads; “(a) Resignation; (b) Accepted excuse; (c) Disqualification; (d) Removal from office; and (e) death”. The rule makes no reference to the organ of the Court vested with authority to ascertain the need for replacement and its effectuation. Provision for it is made in the Statute under the chapeau “Judicial Vacancies”. Article  reads: . In the event of a vacancy, an election shall be held in accordance with article  to fill the vacancy. . A judge elected to fill a vacancy shall serve for the remainder of the predecessor’s term and, if that period is three years or less, shall be eligible for re-election for a full term under article .

In light of the provisions of article , a permanent vacuum in the judiciary of the Court must be filled by the election of a new judge by the Assembly of States Parties in accordance with the provisions of article . Resignation, removal from office and death leave such a vacuum. Accepted excuse and disqualification of a judge from participating in any case do not leave a judicial position vacant, nor do they require its filling under the provisions of article . . In accordance with rule ., “[r]eplacement shall take place in accordance with the pre-established procedure in the Statute, the Rules and the Regulations”. To the extent of filling temporarily a vacuum left in the functionality of the judiciary through provision being made in the Regulations of the Court, regulations  and  do find legitimation. Otherwise, regulation . cannot be reconciled with the provisions of the Statute regarding the filling of a judicial vacancy. It reads: The Presidency shall be responsible for the replacement of a judge pursuant to rule  and in accordance with article  and shall also take into account, to the extent possible, gender and equitable geographical representation.

The conferment of power on the Presidency for the filling of vacancies contradicts the plain provisions of article  and, as such, can find no justification. Consequently, the application of the provisions of regulation  must be confined to the temporary replacement of judges who cannot participate in proceedings on account of recusal or disqualification. In that regard, the provisions of regulation . cannot be objected to, considering that the Presidency is the authority, entrusted by the provisions of article ., to temporarily attach a



chapter six

pre-trial or trial judge to the other of the two divisions when the efficient management of the Court’s workload so requires. In the same spirit, the Presidency may fill a temporary vacuum in the composition of a Chamber. . Regulation . provides that replacement within the Appeals Chamber shall take place in accordance with regulation , to which we have already referred.430 . Jurisdiction, competence and powers of the Appeals Chamber . The jurisdiction vested in the Appeals Chamber is, with few exceptions, appellate. The very notion of appellate jurisdiction denotes review of the correctness of a decision of a hierarchically lower court. Articles  and  define the subject-matter of the appellate jurisdiction. Article  confers appellate jurisdiction over final decisions of a Trial Chamber, that is, decisions on the guilt or innocence of the accused, and sentence in case of conviction. Article  makes appealable specified decisions of first instance courts. Moreover, a right to appeal identified decisions of first instance courts is conferred by other provisions of the Statute. Article .(c)(ii) makes decisions of the Trial Chamber ordering the continuation of the detention of an acquitted person in the exceptional circumstances envisaged by article .(c)(i) appealable in accordance with the Rules of Procedure and Evidence. Article . confers upon a state or the Prosecutor a right to appeal a decision of the Pre-Trial Chamber under article . authorising an investigation notwithstanding notification by a state that it is investigating or it has investigated its nationals or others for the crime at issue. The decision in question is an interlocutory one. A right of appeal outside the ambit of article  is also conferred by the provisions of articles . and .. We may legitimately assume, despite the absence of provision to that end in article , that the appeal will be governed by its provisions and procedural rules relevant thereto. . The Statute establishes a two-tier system of justice, involving decisionmaking by either of the two first instance courts and review, on appeal, by the Appeals Chamber. The grounds upon which final decisions of the Trial Chamber can be contested on appeal, by either party, are set out in article . The appellate process is modeled on the review of the soundness of first instance decisions, not the re-trial of the case. The subject of appeal is the decision under appeal and the object of review is determination of its soundness and

430

See supra para. .

the judiciary



correctness. Article  does not specify the grounds of contestation of decisions appealable under its provisions. But, as the case law of the Appeals Chamber acknowledges, they are not dissimilar to those set down in article .431 . The remedies at the disposal of the Appeals Chamber with respect to final decisions of the Trial Chamber are laid down in article , and those that may be granted in appeals under article  are set out in rules  and . It must be noticed that decisions appealable under article ., notably orders for reparations, are governed by the provisions of rules  and  treated in this regard like final decisions of the Trial Chambers. . By the terms of the Statute, the Appeals Chamber is invested with original jurisdiction in three areas, involving adjudication on a) the validity of a conviction or sentence in the light of evidence emerging or coming to light after conviction as provided in article , b) the determination of questions affecting the disqualification of the Prosecutor or Deputy Prosecutor for which provision is made in article ., and c) the review of reduction of sentence in accordance with article . Jurisdiction in the latter case is exercised by three judges of the Appeals Chamber, so nominated by the Chamber itself, as provided in rule . a. Appellate Jurisdiction . In accordance with article  of the Statute, “[t]he jurisdiction and functioning of the Court shall be governed by the provisions of this Statute”. The appellate jurisdiction and powers of the Appeals Chamber are defined by articles , ,  and, sequentially, by the provisions of Chapter  of the Rules. The exercise of these powers is regulated by Section  of Chapter  of the Regulations. The relevant provisions of the Statute, and instruments sequential thereto, must be interpreted and applied in accordance with the provisions of article .. The right of the accused to challenge on appeal conviction or sentence constitutes an internationally recognised human right. Article . of the International Covenant on Civil and Political Rights432 acknowledges to a convicted person the right to appeal decisions determinative of the verdict of the court or decisions pertaining to the punishment meted out to the convicted person. Such a right is assured to a convicted person by the provisions of article . 431

See Prosecutor v. Lubanga Dyilo, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule  () and () of the Rules of Procedure and Evidence”.  October  (ICC-/–/–). 432 General Assembly Resolution Aa (XXI), U.N. Document A/ (), entered into force  March ,  United Nations Treaty Series .



chapter six

. In its judgment of  July ,433 the Appeals Chamber determined that decisions that may be made the subject of an appeal are those identified, and so specified, by the Statute. No appellate jurisdiction can be assumed or exercised outside the parameters delineated by the Statute. The rules governing the interpretation of the Statute are those set down in articles  and  of the Vienna Convention on the Law of Treaties.434 The following passage from the aforesaid judgment illuminates the position of the Appeals Chamber on the subject: The inexorable inference is that the Statute defines exhaustively the right to appeal against decisions of first instance courts, namely decisions of the Pre-Trial or Trial Chambers. No gap is noticeable in the Statute with regard to the power claimed in the sense of an objective not being given effect to by its provisions. The lacuna postulated by the Prosecutor is inexistent.435

. The same position on the subject is reflected in the subsequent decision of the Appeals Chamber of  June .436 The Appeals Chamber, treading along the lines of its earlier decision, affirms that “the Statute defines exhaustively the right of appeal, ruling out the invocation of such a right outside the parameters of the relevant provisions of the Statute defining the right to appeal decisions of first instance courts”. b. Article  . Article . provides that a decision of the Trial Chamber taken under Article  may be appealed in accordance with the provisions of the Rules. Article  covers, as mentioned earlier, decisions of the Trial Chamber determinative of the guilt or innocence of the accused and, in the case of conviction, the punishment imposed upon him/her. The time within which an appeal may be taken, the framework within which it must be raised, and rules governing the appellate process, are the subject of Chapter  of the Rules of Procedure and Evidence. The framing of an appeal, response thereto and their content are regulated by Section  of Chapter  of the Regulations of the Court. 433

Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC-/–). 434  United Nations Treaty Series , signed on  May . 435 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC-/–), para. . 436 Prosecutor v. Lubanga Dyilo, Decision on the admissibility of the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la confirmation des charges” of  January ,  June  (ICC-/–/–), para. .

the judiciary



. The grounds upon which the Prosecutor may appeal decisions given under article  are specified in article .(a). They are “(i) Procedural error, ii) Error of fact, or iii) Error of law”. (i). Procedural Error . A procedural error, as the term suggests, is an error occurring in the conduct of judicial proceedings, in the context of which the decision under appeal is taken. The norms of a fair trial define, by and large, the rules of procedure that should obtain in the exercise of judicial power. These rules are fashioned by the norms of a fair trial, founded on principles and rules designed to ensure that the process is fair and, as such, apt to yield a just result. Human rights largely configure the principles of a fair trial. Article . requires that the Statute be interpreted and applied in accordance with internationally recognised human rights, a fair trial being one of the pillars of such rights. . Article . binds the Trial Chamber, as earlier noticed, to ensure that the trial is “fair and expeditious” and that it should be conducted with full respect “for the rights of the accused and due regard for the protection of victims and witnesses”. Trial within a reasonable time is one of the norms of a fair trial. The aphorism “justice delayed is justice denied” finds full expression in the Statute. In the separate opinion of a member of the Appeals Chamber in its judgment of  October ,437 attention is drawn to the fact that the Statute not only binds, by the provisions of article .(c), the Trial Chamber to hold a trial without undue delay, but also mandates, by the provisions of article ., that the trial be held expeditiously, involving a more stringent time condition for the holding of a trial. In the words of the Judge, “[t]he timeliness of the proceedings is singled out in mandatory terms as a distinct element of a trial under the Statute, not only as an attribute of a fair trial”.438 The significance of the procedural rights of the accused is nowhere better identified than in the judgment of Justice Frankfurter in the case of McNabb v. United States of America,439 encapsulated in the following proposition; “the history of liberty has largely been the history of procedural rights”.

437 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”,  October  (ICC-/–/–). 438 Ibid., para.  of the separate opinion of Judge Pikis. 439  Law Ed. , p. .



chapter six

. What must be underlined is that the rules of a fair trial are designed to safeguard the rights of every litigant, not only those of the accused, such as the right to confront witnesses of the adversary, equality of arms and the right to have justice bearing fruition within a reasonable time, and most importantly, adjudication by an independent and impartial tribunal. (ii). Error of Fact . Facts, in the context we are examining, denote events emerging from the evidence adduced at trial. A factual error may arise in a variety of circumstances. In the first place, by the court ignoring or overlooking evidence relevant to a finding of the court. Misapprehension or misappreciation of a given fact may likewise found an error of fact. Taking into consideration facts extraneous or irrelevant to an issue may also give rise to an error of fact. An error of fact, as can be said, is the offspring of a misconception, misappreciation or disregard of a fact relevant to the decision of the court. . The process of ponderation of evidence, if faulty, that is, not attuned to or not in conformity with a proper process of reasoning, may also lead to erroneous findings, that is to say findings that cannot stand to reason. The duty to reason a judgment requires that reasons be given for the acceptance or rejection of a fact or state of affairs, and generally for coming to a finding. (iii). Error of Law . An error of law must be contrasted to a procedural error. The rules of procedure are rules of law of a distinct kind, often referred to as adjectival law. Rules of law, stricto sensu, are those conferring rights, imposing obligations or defining relationships between persons, or between persons and the state, also known as rules of substantive law. The definition of crimes and the ingredients of the offence form part of substantive law. The presumption of innocence and the burden of proof, fundamental norms of justice, have the attributes of both procedural and substantive law. . Misdirection of the court with respect to the meaning, ambit and effect of a legislative provision amounts to an error of law. Disregard of an aspect of substantive law in the determination of an issue posing for resolution also defines an error of law. Misinterpretation or misapplication of the law provides a classic instance of a legal error. An error affecting the jurisdiction and competence of the Court to take cognizance of, or deal with, a case are self-evidently errors of law that may ground an appeal.

the judiciary



c. Article .(b) . Article .(b) lays down that the convicted person may bring an appeal on the same grounds as the Prosecutor may do and, in addition thereto, on “[a]ny other ground that affects the fairness or reliability of the proceedings or decision”. . The conferment upon the Prosecutor of the right to appeal a decision on behalf of the convicted person is an unusual provision, blunting to an extent the adversarial character of the appellate process. The bestowal of such a power may find justification only where fundamental principles of justice have been breached, in which case, the Prosecutor as an officer or functionary of justice, may take the matter up to set aright the course of justice. But, it is not an unnatural one in the context of the Statute considering the Prosecutor’s investigatory and prosecutorial duties, binding him to recover and bring before the Court every piece of evidence bearing not only on the guilt, but also on the innocence of the accused. . Before exploring the field further in this respect, we must quote the introductory provisions of article .(b): The convicted person, or the Prosecutor on that person’s behalf, may make an appeal on any of the following grounds:

The crucial question in interpreting this provision of the law is whether the Prosecutor may raise an appeal on behalf of a person without his/her prior agreement or request. The word “behalf ” bears a number of meanings, such as the agent or representative of another person; in the name of; on the part of, or proceeding from; in the interests or for the benefit of another person.440 The meaning befitting the expression “on that person’s behalf ” in this context is representing a person, a concept importing agency, making authorisation by the convicted person to the Prosecutor to represent him a pre-requisite to the mounting of an appeal on his behalf. The attachment of this meaning to the relevant provisions of article .(b) is reinforced by the provisions of rule ., requiring the Prosecutor to communicate an intention to discontinue an appeal filed on behalf of a convicted person to the latter in order to give him or her the opportunity to continue the proceedings himself or herself. If the meaning of “on that person’s behalf ” adopted herein is incorrect, this might land the Appeals Chamber with more than one appeal against conviction; one

440

See Shorter Oxford English Dictionary, (th ed.).



chapter six

by the Prosecutor and one by the convicted person, which, we may validly presume, could not have been in the contemplation of the makers of the Statute. . The accused may challenge by way of appeal a final decision of a Trial Chamber on grounds additional to those on which the Prosecutor may contest the decision. Article .(c) provides as follows: Any other ground that affects the fairness or reliability of the proceedings or decision.

Any other ground is a ground of appeal other than one founded on procedural error, error of fact or error of law. Fairness imports the standards of a fair trial. As earlier indicated, the norms of a fair trial establish the framework within and rules according to which the trial should be conducted as directly mandated by the provisions of article .. Fairness in the context of article .(c) has a broader meaning, encompassing the process in its entirety from investigation up to and including the verdict of the Court. . In the judgment of the Appeals Chamber of  December ,441 it is acknowledged that the notion of a fair trial embraces “the judicial process in its entirety”,442 allowing the court to stay the proceedings if, in face of unfairness in the treatment of the accused, its elements are ruptured to the extent of making impossible the holding of a fair trial.443 The notion that a fair trial extends to the process preceding the trial, indeed to every aspect of the proceedings, is reaffirmed by the judgment of the Appeals Chamber of  October .444 Article .(b)(iv) is designed to guard against unfairness at every stage of the proceedings creeping in to pollute the process. . Reliability of the proceedings is, in many respects, a notion coincident with that of a fair trial, but not exhaustively so. It entails an overview of the case in its entirety, with a view to determining whether the outcome of the case leaves a lurking doubt as to the guilt of the accused. It is a residual power entitling the Court to put under the microscope the conviction of the accused with a 441

Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–). 442 Ibid., para. . 443 Ibid., para. . 444 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”,  October  (ICC-/–/–).

the judiciary



view to determining whether reasonable doubts can be entertained about its validity. The notion of fairness and reliability to the extent to which they refer to the final decision of the Trial Chamber bring to the fore the burden and standard of proof and their discharge by the evidence submitted, its relevance, admissibility and creditworthiness. . Article .(a) provides that the sentence imposed on a convicted person may be appealed in the manner envisaged by the Rules of Procedure and Evidence. A right to appeal a sentence vests in both the Prosecutor and the convicted person “on the ground of disproportion between the crime and the sentence”. The ground of appeal envisaged in this provision of article  is confined to the proportionality of sentence vis-à-vis the crime. Here, the word “crime” denotes the gravity of the offence, not its definition or description as such. Does this provision exclude the personal circumstances of the convicted person as a consideration relevant to the assessment of the propriety of the sentence imposed? If that were the case it would be odd, because it would introduce a standard for the evaluation of the acceptability of punishment different from the one governing the exercise of the power to impose sentence by the trial court. Article . expressly provides that in passing sentence, the Trial Chamber “shall take into account such factors as the gravity of the crime and the personal circumstances of the convicted person”. Is the court of appeal required to assess the sentence imposed independently of the individual circumstances of the convicted person? This could not be the case. One may easily reason that the personal circumstances of the accused in themselves constitute a component of the gravity of the offence. As earlier explained, the principles governing determination of sentence require that it should fit both the offence and the offender. . On appeal against sentence, if the court considers that there are grounds on which the conviction “might be set aside, wholly or in part”, it may invite the Prosecutor and the convicted person to submit grounds of appeal under article .(a) in the case of the Prosecutor, or .(b) in the case of the convicted person. An appeal raised at the invitation of the court, pursuant to the provisions of article .(b) or (c), shall be determined by reference to the same criteria as those governing the disposal of appeals envisaged by article . . Do the provisions of article .(b) oblige the Appeals Chamber to inquire, in the case of an appeal against sentence, into the validity of the conviction and in the event of an appeal against conviction into the appropriateness of the punishment imposed (article .(c))? That would involve the Appeals Chamber in an inquisitorial exercise overriding the basic adversarial character



chapter six

of the appellate process that cannot be readily reconciled with the adversarial system of justice. Moreover, it would, to an extent, preempt the outcome of an appeal against a final decision of the Trial Chamber without hearing the parties. It is submitted that the provisions of article .(b) and (c) can be justifiably invoked only in the event of an apparent or manifest error, flawing the decision, prompting the court to bring it to the fore. The power of the court under article .(b) and (c) extends to inviting the parties to take an appeal. Is the invited party under an obligation to take up the invitation? The answer depends on the meaning to be ascribed to the word “invite” in the context of the relevant provisions of the Statute. The foremost meaning of the term is to make a courteous request in contrast to a directive. An invitation may normally be taken up or declined. It does not involve any element of compulsion leaving it to the invitee to accept the invitation or refuse it. . Article . provides: Subject to the provisions of paragraph  (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings.

Suspension entails the non-enforcement of a decision or the sentence imposed by the trial court. Rule . provides that, unless an appeal is taken against conviction or acquittal, in accordance with paragraphs  to  of the same rule, the decision on conviction, the sentence or a reparation order of the Trial Chamber shall become final. It can be validly argued that the finality of judgment will be extended to a date subsequent to the one prescribed by rule  when the time for filing an appeal is extended for good cause, as provided in rule .. Regulation . prescribes the procedure for recourse to the Court to extend the time limit for filing an appeal by application made before the lapse of the time limit set by the Rules. What may found a good cause is debated in the decision of the Appeals Chamber of  February .445 The following passage from this judgment is indicative: “Good cause” in this context imports the existence of valid reasons for noncompliance with the procedural obligations of a party to the litigation. What amounts to a good cause was debated, albeit not exhaustively, in a number of previous decisions of the Appeals Chamber. Such reasons as may found a good cause are necessarily associated with a party’s duties and obligations in the judicial process. A cause is good, if founded upon reasons associated with 445

Prosecutor v. Lubanga Dyilo, Reasons for the “Decision of the Appeals Chamber on the request of counsel to Mr. Thomas Lubanga Dyilo for modification of the time limit pursuant to regulation  of the Regulations of the Court of  February ” issued on  February ,  February  (ICC-/–/–).

the judiciary



a person’s capacity to conform to the applicable procedural rule or regulation or the directions of the Court. Incapability to do so must be for sound reasons, such as would objectively provide justification for the inability of a party to comply with his/her obligations.446

. Regulation . provides that the time for raising an appeal may, in the circumstances specified therein be extended after the expiration of the time limit set for the purpose. Rule . does not specify the time within which an application for the extension of time may be made. Rule ., on the other hand, provides “If an appeal is not filed as set out in sub-rules  to , the decision, the sentence or the reparation order of the Trial Chamber shall become final”. The very notion of extension implies the existence of something amenable to extension. Therefore, if the time limited by rule . for taking an appeal expires nothing is left to extend. Regulation . makes, as earlier noted, provision for extending the time limit after a judgment becomes final, limiting the opportunity to the specific circumstances identified therein providing that “an extension of time may only be granted if the participant seeking the extension can demonstrate that he or she was unable to file the application within the time limit for reasons outside his or her control”. The Statute as well as the Rules must be interpreted and applied in accordance with internationally recognised human rights as stated in article .. Access to the court for the exercise of a right is an internationally recognised human right, in the absence of which the right would be denuded of substance. In the case of a person being disabled by forces beyond his/her power to exercise a right within the prescribed period, denying him/her the opportunity to have access to the court would be tantamount to a denial of the right. Therefore, it can be persuasively argued that the provisions of regulation . can find legitimation in the inalienability of the right of man to have access to the court for the assertion of his/her rights. Outside the limitations of the relevant provisions of regulation ., no justification can be found for non-adherence to the time limits within which rights should be exercised and justice be administered. . As indicated in the last mentioned decision of the Appeals Chamber, exceptional circumstances may justify the invocation of rule . after the expiration of the period set for exercising the right of appeal. In that case, the Appeals Chamber found that illness preventing a party from taking a step in litigation within the time envisaged by the Rules and Regulations, for reasons outside his/her control, provided due justification for extension of time after the expiration of the time limited for the purpose. The gap left was occasioned 446

Ibid., para. .



chapter six

by the illness of the applicant’s counsel, preventing him from carrying out his representational duties and taking in time a step in litigation. The Appeals Chamber determined: Illness and sequential inability to carry out one’s duties or complete his/her work in a cause outside one’s control. And as such may legitimize the completion of one’s address; vindicating thereby a party’s right to effective representation before the Court.447

In its judgment of  December 448 the Appeals Chamber rejected the Defence’s application for the extension of time for the submission of the response to the document in support of the appeal indefinitely on account of delay in the payment of defence fees rendering counsel “unmotivated to work since they were not being paid”. The Appeals Chamber determined that a) regulation  of the Regulations of the Court “requires, by its very terms, a definite date”,449 b) “[t]he argument does not demonstrate good cause, justifying an extension of the time limit”.450 The judgment of the Appeals Chamber is also instructive as to the ambit of corrigenda, that is, permissible corrections to a document submitted. The power is confined to corrections of “typographical errors” and not a means “to circumvent time or page limits stipulated in the legal instruments of the Court or by a Chamber”.451 . Article .(a) reads: Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal.

. The essence of this provision is that conviction entails custody pending appeal. The authority vested by a warrant of arrest to detain a person expires with the completion of the trial which, in the case of conviction, terminates with the imposition of sentence. According to article ., a further hearing may be held for the determination of the sentence to be imposed. An appeal may be filed against conviction, sentence or a reparation order within  days after their pronouncement and notification. As provided in rule . an appeal against any one of the aforementioned decisions of the Trial Chamber must 447

Ibid., para. . Prosecutor v. Bemba Gombo, Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II’s “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa”,  December , (ICC /–/–-Red). 449 Ibid. para. . 450 Ibid. 451 Ibid. para. . 448

the judiciary



be taken within  days from the day of its notification. Theoretically, the convicted person may file three appeals against the three species of decisions of the Trial Chamber and the Prosecutor two appeals against acquittal and sentence. However one may legitimately argue that the trial of the convict is not concluded before sentence is passed, the inevitable corollary of conviction. The two processes are entwined to an extent that finality ensues with the imposition of sentence; so construing the relevant provisions of the Statute and Rules would leave the door open to the convicted person to raise an appeal against conviction and sentence after the imposition of punishment. The same would apply to the Prosecutor. . Article .(b) postulates that if the time spent in custody exceeds in chronological duration the term of imprisonment imposed upon the convicted person, the latter must be released unless the Prosecutor appeals the sentence imposed, in which case the Trial Chamber may, in the context of the powers vested in it under article .(c)(i), order otherwise. We must underline that the provisions of article .(b) find application only in the event of the Prosecutor appealing sentence, but not so in the case of the accused appealing sentence. An appeal against sentence by the convicted person cannot operate as a barrier to his/her release. Article . provides that a decision appealed by the convicted person against either conviction or sentence, or both, “cannot be amended to his or her detriment”. . Article .(c)(i) provides: In case of an acquittal, the accused shall be released immediately, subject to the following: Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal.

This provision of the Statute applies to cases covered by the provisions of both sub-paragraphs (b) and (a) of article . This provision cannot be readily reconciled with internationally recognised human rights, requiring the release of an acquitted person as well as the release of a detainee who has spent his/her term in prison. Be that as it may, detention may be ordered under the Statute in face of an appeal against acquittal. As earlier explained, an appeal may be taken within  days. The meaning of “pending appeal” must be clarified. Does it cover the period within which an appeal may be taken,  days, or does it cover in addition thereto, the period needed for the determination of any appeal that may be filed. The word “pending” signifies “during, throughout the continuance



chapter six

of ” and “while awaiting, until”.452 The first meaning of the word would cover the entire period; the one leading to the mounting of the appeal and, thereafter, until its determination, whereas the second would only cover the period up to the taking of an appeal. Article . provides: Subject to the provisions of paragraph  (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings.

With the exception of paragraphs (a) and (b), the above paragraph of article  does suggest that the makers of the Statute intended the term “pending appeal” to include both the period within which an appeal may be taken and, if so, the period following thereafter until its disposition. One can say an appeal is potentially pending after the issuance of a decision and continues to be pending once an appeal is filed. . This provision of article .(c)(i) can only find application in exceptional circumstances. The expression “and having regard, inter alia”, in the context of this provision, is critical. Are exceptional circumstances to be found in matters specified thereunder, or do those matters define in themselves exceptional circumstances? The answer appears to be that in determining the presence or absence of exceptional circumstances, the Court must invariably have regard to the considerations itemised in sub-paragraph (c)(i). Exceptional circumstances are circumstances out of the ordinary, casting a case outside the experientially expected span of events. The probability of success on appeal is one of the considerations to which the Chamber should have regard in making any decision to prolong detention. “Probable” is something that is demonstrable, that may reasonably be expected to happen or be the case, something likely to occur;453 not something merely possible. Probable in this context imports a visible chance of success. . Article .(c)(ii) lays down that a decision to detain an acquitted person, pursuant to the provisions of sub-paragraph (c)(i), is appealable in accordance with the Rules of Procedure and Evidence. Provision for that is made in rule .. . Article . envisages that subject to the provisions of article .(a) and (b), execution of a decision or sentence shall be suspended pending an

452 453

Shorter Oxford English Dictionary, (th ed.) p. . See, inter alia, Shorter Oxford English Dictionary (th ed.).

the judiciary



appeal and, if an appeal is filed, for its duration. Suspension, as earlier noted, is conditioned by the provisions of paragraphs (a) and (b). d. Mounting an appeal—Powers of Appeals Chamber . Rule  provides that parts  and  of the rules governing respectively Pre-Trial and Trial Chamber proceedings “shall apply mutatis mutandis” to proceedings before the Appeals Chamber. This applies equally to appeals taken under article , as well as appeals under article . The Appeals Chamber is thus invested with power to hold status conferences and generally to issue directions about the conduct of the proceedings and the submission of evidence. The application of these rules in appeal proceedings is subject to such changes as necessary to befit the appellate process. The necessary analogies must be kept. . In accordance with rule ., final decisions of the Trial Chamber and appeals against a reparation order pursuant to article . must be filed not later than  days from the date of notification of the decision to the parties and persons affected by them. This time limit may, in accordance with the provisions of rule ., be extended for “good cause”. Regulation  provides that time may be extended upon application by a prospective appellant, made orally or in writing. Regulation . envisions that the time limit may be extended for good cause in applications made before the expiration of the time set for filing an appeal. By the terms of the same regulation, time may, as explained, be extended on application being made after the expiration of the relevant time limit if the delay is due to “reasons outside his or her control”. Good cause is the criterion for extending the time for taking a procedural step before the effluxion of the time limited for taking an appeal. Justice must bear fruition within a reasonable time. Any deviation therefrom must be duly justified in time, safeguarding thereby the norms of a fair trial and the expeditiousness of the proceedings. Good cause is not the yardstick by reference to which time may be extended after the lapse of the period for taking a procedural step, but impossibility, due to no fault of the litigant. . Theoretically, you can only extend something that is extant. So, one may argue that the second part of regulation . contravenes the provisions of rule . that confer power for an extension of time. Rule . does not specifically limit the time within which application may be made, except inferentially, that you cannot extend the inexistent. Provision for the extension of time, thereafter, may, as earlier indicated, find justification in the norm of human rights for access to the court for the vindication of a right. For a person who is by extraneous circumstances prevented from exercising his/her rights



chapter six

cannot be denied access to the court for their assertion. With this in mind and with due regard being had to the provisions of article ., incompatibility of regulation . with rule . can be ruled out. . What may amount to a good cause was the subject of a decision of the Appeals Chamber of  February  earlier quoted.454 In the above decision of the Appeals Chamber, illness of counsel and sequential inability to take necessary steps on behalf of his client within the period envisaged was found to justify extension. In a previous decision of  May ,455 technical problems in the way of preparing and submitting the appeal grounded a good cause for extending the time for appealing. In two other decisions of the Appeals Chamber, those of  July 456 and  October ,457 the complexity of the matters at issue was found to provide a good cause for extension of time. Consequently, extension of time was granted to defence counsel to respond to the Prosecutor’s document in support of the appeal. . In yet another decision of the Appeals Chamber, that of  July ,458 counsel’s heavy burden of work, arising from parallel obligations in the proceedings, was accepted as providing sufficient justification for extending the time within which response could be made to the document of the Prosecutor. The complexity of the issues that had to be addressed was yet an additional reason for accepting the application for extension. . The Appeals Chamber reviewed the case law pertaining to the identification of a good cause in its decision of  June .459 The court reminded 454 Prosecutor v. Lubanga Dyilo, Reasons for the “Decision of the Appeals Chamber on the request of counsel to Mr. Thomas Lubanga Dyilo for modification of the time limit pursuant to regulation  of the Regulations of the Court of  February ” issued on  February ,  February  (ICC-/–/–). 455 Prosecutor v. Lubanga Dyilo, Decision on the appellant’s application for an extension of the time limit for the filing of the document in support of the appeal and order pursuant to regulation  of the Regulations of the Court,  May  (ICC-/–/–). 456 Prosecutor v. Lubanga Dyilo, Decision on the “Prosecutor’s Motion for Extensions of the Time and Page Limits”,  July  (ICC-/–/–). 457 Prosecutor v. Lubanga Dyilo Decision on the Request by Mr. Thomas Lubanga Dyilo for an Extension of Time,  October  (ICC-/–/–). 458 Prosecutor v. Lubanga Dyilo Decision on the application by Counsel for Mr. Thomas Lubanga Dyilo to extend the time limit for the filing of the response to the Prosecutor’s document in support of the appeal,  July  (ICC-/–/–). 459 Prosecutor v. Katanga/Chui, Reasons for the “Decision on the ‘Application for Extension of Time Limits Pursuant to Regulation  of the Regulations of the Court to Allow the Defence to Submit its Observations on the Prosecutor’s Appeal regarding the Decision on Evidentiary Scope of the Confirmation Hearing and Preventative Relocation’ ”,  June  (ICC-/– /–).

the judiciary



of what had been said in an earlier decision, that of  April ,460 that steps in the judicial process, including extension of time, must be taken “in a manner attuned to and consistent with the principles of a fair trial”, including those designed to ensure that the proceedings are conducted and concluded within a reasonable time. In the above case, the time for taking a step in the process was extended but for a period shorter than the one requested. . The format and content of an appeal is addressed by the Regulations of the Court. Regulation  stipulates what the notice of appeal should contain, requiring specification of the name of the appellant and the number of the case, the date of the decision under appeal and whether it is directed against the whole or part of the decision, and, lastly, the relief sought. The notice is followed by the submission of the document in support of the appeal. Regulation  provides that the document in support of the appeal must specify the grounds of appeal, the factual and/or legal reasons supporting each one of them, articulated in separate paragraphs. Grounds of appeal may be advanced cumulatively or in the alternative, subject to the limitation that the document must not exceed one hundred pages in length. Regulation  clarifies that addenda to the document in support of the appeal, setting out verbatim parts of the Statute, the Rules or Regulations of the Court, as well as appendices containing references, authorities, copies of the records and exhibits, and any other relevant non-argumentative material, shall not be taken into account in computing the permissible number of pages of the document in support of the appeal. . In exceptional circumstances, the page limit may be extended, as provided in regulation .. Exceptional, as the term suggests, are extraordinary circumstances. The Regulations of the Court are designed to meet the ordinary, or foreseeable, needs of litigation. That is the premise upon which the Regulations are founded. When extraordinary needs must be attended to, room is provided for making exception as regulation . provides. . The document in support of the appeal must be filed within  days of notification of the decision appealed.461 Response thereto must, in accordance with regulation , be made within  days from receipt of the document in support of the appeal. As stated therein, each ground of appeal must be

460 Prosecutor v. Lubanga Dyilo, Reasons for the Appeals Chamber’s Decision to Extend Time Limits for Defence Documents issued on  April ,  April  (ICC-/–/–). 461 See regulation .



chapter six

answered separately, indicating whether it is opposed wholly or in part, together with the grounds put forward in support of the response. Moreover, it must specify whether the relief sought is opposed wholly or partly. If the respondent relies upon facts not contained in the document in support of the appeal, reference must be made to the relevant part of the record or any other document or source of information. Like the document in support of the appeal, the response may extend to one hundred pages, set out in the same order as the document in support of the appeal. . The appellant has no right to reply, a fact affirmed by the decision of the Appeals Chamber of  September .462 The majority of the court reasoned that, inasmuch as the application of regulation , the only regulation that makes provision for a reply, is confined to appeals taken under rule , no corresponding right is conferred on the appellant in appeals under rules  and . Regulation . of the Regulations of the Court, making provision for reply with the leave of the Chamber “unless otherwise provided in these regulations”, could find no application. In a separate opinion of a member of the court463 it was pointed out that equality of arms left no room for a reply. Furthermore, the provisions of regulation  did not confer a right on the appellant to make reply. Power to direct the submission of a reply rests with the court exercisable in the interests of justice. In the same opinion, attention is drawn to the provisions of regulation ., empowering the court to order participants in the proceedings “to clarify or to provide additional details on any document within a time limit specified by the Chamber”. Lastly, emphasis is laid on the fact that article . applies equally to the interpretation and application of the Statute, the Rules and the Regulations. . Any reply ordered by the court under regulation  must not exceed fifty pages and must conform to the pattern envisaged for the submission of the document in support of the appeal, and that in response thereto. One may presume with a fair degree of certainty that any direction for the submission of a reply would, in the interest of equality of arms, provide the respondent with a proper opportunity to make answer thereto.

462

Prosecutor v. Lubanga Dyilo, Decision on the Prosecutor’s “Application for Leave to Reply to ‘Conclusions de la défense en réponse au mémoire d’appel du Procureur’ ”,  September  (ICC-/–/–). 463 Judge Pikis.

the judiciary



e. Article  . Article  confers upon a litigant a right to appeal specified classes of decisions of the Pre-Trial and the Trial Chamber, other than final decisions of the Trial Chamber determinative of the guilt or innocence of the accused and punishment in the event of conviction. Paragraph  specifies four categories of decisions that may be made the subject of appeal under its provisions. . Article . confines the right to appeal to the parties, the prosecution and the defence, in much the same way as article  does with regard to final decisions of the Trial Chamber. Victims participating in first instance proceedings have no right to appeal either final or interlocutory decisions issued under either article  or article . or . . The subjects of appeal are decisions of the Court involving, in the case of article .(a), (b) and (c), decisions of a specified nature. In the case of paragraph (d), the subject of appeal is again a decision of a first instance court, considered by the first instance court to involve a subject meriting immediate resolution by the Appeals Chamber. . Paragraph .(a) reads, “[a] decision with respect to jurisdiction or admissibility”. Article , as previously explained, identifies cases that are inadmissible by reference to the principle of complementarity, whereas article  makes provision for challenges to the jurisdiction of the Court to take cognizance of a case or its admissibility as the subject of judicial proceedings before the Court. In the latter case, referring States and victims are assured the right to submit observations to the Court. The decision of the Appeals Chamber of  July 464 sheds light on the character of a decision that may constitute the subject-matter of an appeal under article .(a). The Pre-Trial Chamber had dismissed the application of the Prosecutor for the issuance of a warrant of arrest on grounds of inadmissibility of the case. The Chamber determined, pursuant to the provisions of article .(d), that the case lacked the necessary gravity to form the subject-matter of a prosecution before the Court. The decision had been given in ex parte proceedings, raised for the issuance of a warrant of arrest under article  of the Statute. As inadmissibility of the case was the ground upon which the warrant of arrest was rejected, the Appeals 464

Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the Decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article ”,  July  (ICC-/– reclassified as public by ICC-/–-PUB-Exp).



chapter six

Chamber treated it as a decision on admissibility and entertained the appeal. What emerges is that the Appeals Chamber would, under the provisions of article .(a), heed and determine any first instance decision, the outcome of which is determinative of the justiciability and admissibility of a case. . Article .(b) reads, “[a] decision granting or denying release of the person being investigated or prosecuted”. This is a straightforward provision, conferring upon either party a right to appeal decisions granting or denying the release of a person investigated or prosecuted. The Appeals Chamber, by its decision of  June ,465 adjudged a decision prolonging the detention of the arrestee as a decision coming within the ambit of article .(b). On the other hand, the appeal of the accused against an order confirming the charges against him was found to be inadmissible inasmuch as the decision was not in itself determinative of the detention or release of the person. The court underlined that article .(b) defines succinctly what decisions may be subject to appeal, leaving no ambiguity as to its purport. The position of the court is reflected in the passage that follows: Article ..b of the Statute is explicit in what it imports. It confers a right to appeal decisions ‘granting or denying release’. Such decisions may be given in the context of article  of the Statute, as the Prosecutor submits. The decision confirming the charges neither grants nor denies release. The effect or implications of a decision confirming or denying the charges do not qualify or alter the character of the decision.466

. Article .(c) states: A decision of the Pre-Trial Chamber to act on its own initiative under article , paragraph .

. Article . empowers the Pre-Trial Chamber to direct measures for the preservation of evidence essential for the defence if satisfied that the Prosecutor’s failure to request such measures is unjustified. . Article .(d) provides: A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. 465 Prosecutor v. Katanga/Chui, Judgment in the Appeal by Mathieu Ngudjolo Chui of  March  against the Decision of Pre-Trial Chamber I on the Application of the Appellant for Interim Release,  June  (ICC-/–/–). 466 Prosecutor v. Lubanga Dyilo, Decision on the admissibility of the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la confirmation des charges” of  January ,  June  (ICC-/–/–).

the judiciary



Evidently, this provision of article . qualifies the introduction of article ., providing that “either party may appeal any of the following decisions”, by restricting the right to decisions involving an issue that the court itself considers as meriting consideration by the Appeals Chamber. Therefore, parties to the proceedings have no autonomous right to appeal decisions coming within the scope of article .(d). . Article .(d) was the subject of detailed analysis in the decision of the Appeals Chamber of  July .467 To begin, the court noted: Evidently, article ()(d) of the Statute has two components. The first concerns the prerequisites for the definition of an appealable issue and the second the criteria by reference to which the Pre-Trial Chamber may state such an issue for consideration by the Appeals Chamber.

Sequentially, the Appeals Chamber analysed in detail the provisions of paragraph (d) of article .. The first component of this provision is that only an issue may form the subject-matter of an appealable decision. An “issue”, the court explained, is “an identifiable subject or topic requiring a decision for its resolution, not merely a question over which there is disagreement or conflicting opinion”. Thereafter, the court stressed, “An issue is constituted by a subject the resolution of which is essential for the determination of matters arising in the judicial cause under examination. The issue may be legal or factual or a mixed one”. The court proceeded to say that not every issue could found the subject of an appeal. So to qualify the issue “must be one apt to ‘significantly affect’, i.e. in a material way, either a) ‘the fair and expeditious conduct of the proceedings’ or b) ‘the outcome of the trial’ ”. The term “fair” in the context of this provision of the Statute is associated with the norms of a fair trial. The expeditious conduct of the proceedings is also singled out as a distinct consideration that the referring court must have in mind. The “outcome of the trial”, as indicated in the same case, is a separate consideration, warranting the certification of an issue for consideration by the Appeals Chamber “where the possibility of error in an interlocutory or intermediate decision may have a bearing thereupon. The Pre-Trial or Trial Chamber must ponder the possible implications of a given issue being wrongly decided on the outcome of the case. The exercise involves a forecast of the consequences of such an occurrence”. The identification of an issue having the above attributes does not automatically qualify it as the subject of an appeal. The issue must be one “for which in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber 467 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July , (ICC-/–), paras –.



chapter six

may materially advance the proceedings”. The object is to rid the process from possible mistakes “that might taint either the fairness of the proceedings or mar the outcome of the trial”. Freeing a decision from doubt, as the court stated, is a safety net for the integrity of the proceedings. The court determined: A right to appeal arises only if the Pre-Trial or Trial Chamber is of the opinion that any such decision must receive the immediate attention of the Appeals Chamber. This opinion constitutes the definitive element for the genesis of a right to appeal.468

. In essence, as the Appeals Chamber indicated, the Pre-Trial or Trial Chamber is vested with power “to state, or more accurately still, to certify the existence of an appealable issue”.469 A Trial or Pre-Trial Chamber may certify such a decision on its own initiative or on the application of any party to the proceedings, as rule  provides. Regulation  prescribes the form that the application for leave to appeal must take, requiring specification of the reasons warranting immediate resolution of the defined issue by the Appeals Chamber. By the provisions of the same regulation, the content of the response thereto is prescribed. . Article . reads: A decision of the Pre-Trial Chamber under article , paragraph .d, may be appealed against by the State concerned or by the Prosecutor, with the leave of the Pre-Trial Chamber. The appeal shall be heard on an expedited basis.

. Article .(d) empowers the Pre-Trial Chamber to authorise the Prosecutor to take specific investigative steps on the territory of a State Party without her prior consent. This may be done when the prosecutorial and judicial authorities of the State are in a state of collapse, facilitating thereby what ought to be done, otherwise unachievable. The need for expedition requires that the appeal should be dealt with the soonest possible. . Article . provides: An appeal shall not of itself have suspensive effect unless the Appeals Chamber so orders, upon request, in accordance with the Rules of Procedure and Evidence.

Unlike appeals against final decisions of the Trial Chamber, appeals under the provisions of article  do not entail the suspension of the enforcement of the appealed decision. A series of decisions of the Appeals Chamber provide a guide to the interpretation and application of this provision of article . 468 469

Ibid., para. . Ibid.

the judiciary



In the first decision of the Appeals Chamber on the subject, that of  April ,470 the court held that suspension is justified “when the implementation of the Impugned Decision would create an irreversible situation that could not be corrected, even if the Appeals Chamber eventually were to find in favour of the appellant”. According to the dissenting opinion of a member of the court, the guiding principle in the exercise of the Court’s discretion under article . lies “in the evaluation of the consequences that enforcement of an erroneous decision, if that is found to be the case by the decision of the Appeals Chamber, could have on the proceedings before the first instance court. Would enforcement of the decision be likely to have negative consequences on any one or more of the aforesaid aspects of the proceedings, such that suspension of the decision could forestall?”471 In its subsequent decision of  May ,472 the Appeals Chamber underscored that neither article . nor rule , “stipulate in which circumstances suspensive effect should be ordered, this decision is left to the discretion of the Appeals Chamber”.473 Discretion must be exercised judicially for the promotion of the purposes for which it is given, which in this case are the prevention of the irreversible consequences in the event of the sub judice decision being reversed. The same approach is reflected in the decision of the Appeals Chamber of  July ,474 in which case the court granted suspensive effect to a decision of the Trial Chamber, ordering the release of the accused in light of its decision to stay the proceedings on grounds of impossibility of holding a fair trial. In its decision of  September ,475 the court endorsed the following practice direction with regard to a motion for suspension. The application for giving suspensive effect to a decision under appeal a) “ought to be decided as expeditiously as possible” and b) “should be presented in the appeal together with the reasons in support of the request as prescribed in rule  () of the Rules of Procedure and Evidence.”476 The decision of the Pre-Trial Chamber to order the conditional release of the 470 Prosecutor v. Lubanga Dyilo, Decision on the request of Mr. Thomas Lubanga Dyilo for suspensive effect of his appeal against the oral decision of Trial Chamber I of  January ,  April  (ICC-/–/–) and dissenting opinion of Judge Pikis,  May  (ICC-/–/–-Anx). 471 Ibid., para.  of the dissenting opinion of Judge Pikis. 472 Prosecutor v. Lubanga Dyilo, Decision on the requests of the Prosecutor and the Defence for suspensive effect of the appeals against Trial Chamber I’s Decision on Victim’s Participation of  January ,  May  (ICC-/–/–). 473 Ibid., para. . 474 Prosecutor v. Lubanga Dyilo, Decision on the request of the Prosecutor for suspensive effect of his appeal against the “Decision on the release of Thomas Lubanga Dyilo”,  July  (ICC/–/–). 475 Prosecutor v. Bemba Gombo, Decision on the Request of the Prosecutor for Suspensive Effect,  September , (ICC-/–/–). 476 Ibid. para. .



chapter six

accused was suspended pending the determination of the appeal before the Judge settled the conditions to which the release of the accused would be subject. . Article . provides, “[a] legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article  may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.” Appeals against reparation orders are governed by the same procedural rules as those against decisions determinative of the guilt or innocence of the accused and sentence. Rule . lays down that an appeal against a reparation order must be taken within  days, in much the same way as appeals against conviction, acquittal or sentence. Similar regulations govern the submission of the document in support of the appeal, and response thereto.477 The powers of the court in relation to the disposition of appeals under article ., on the other hand, are not identical to those entrusted to the court respecting appeals under article . Rule  provides that the court may confirm, reverse or amend an order of reparations, a provision coinciding with the corresponding powers of the Appeals Chamber with regard to appeals under article , specified in rule .. f. Powers of the Appeals Chamber . Article . provides: For the purposes of proceedings under article  and this article, the Appeals Chamber shall have all the powers of the Trial Chamber.

Similar provision is made in rule , in relation to the powers of both the Trial and Pre-Trial Chambers. Rule  incorporates, subject to necessary changes, the rules governing proceedings and the submission of evidence before the PreTrial and Trial Chambers. So the Appeals Chamber is endowed with power to confront every eventuality within the appellate process, including power to hold status conferences, to direct disclosure of evidence and to hold proceedings in camera whenever deemed necessary. . Article . defines the powers of the Appeals Chamber to deal with and dispose of appeals raised before it. Its remit is confined to appeals against final decisions of the Trial Chamber, the subject of article . It provides, “[i]f the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence, or that the 477

See Section IV of the Regulations of the Court.

the judiciary



decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may: (a) Reverse or amend the decision or sentence; or (b) Order a new trial before a different Trial Chamber.” Article  echoes the provisions of article .(b)(iv) and article .(a) and (b)(i), (ii), (iii) and (iv). It must be stressed that whereas the fairness or reliability of proceedings is a ground upon which the verdict of the Court may be contested only at the instance of the accused, under the provisions of article . the fairness and reliability of the proceedings is a ground by reference to which the validity of the impugned decision may be tested independently of which party is the contestant. Article . does not postulate unfairness as such as justifying interference with the first instance judgment. To be potent, unfairness must have affected the reliability of the decision or sentence, that is, it must go to the core of the decision. Denial of the rights of the accused and the transgression of norms of a fair trial do provide examples of the erosion of the basis of a decision, rendering it unreliable. Article  identifies in essence two grounds for overturning, wholly or in part, a final decision of the Trial Chamber; a) unfairness to the extent of demolishing the basis of the judgment, and b) error of fact, law, or a procedural error, materially affecting the decision. The crucial word is “materially”. The identification of error in any one of the three areas identified above is not in itself decisive for the outcome of the appeal. The error must have had a “material” impact on the decision. “Material” in this context denotes influence affecting the core of the sub judice decision to an extent, rendering its outcome unsafe or unreliable. . The word “reverse” denotes the opposite or the contrary of something.478 As a remedy in judicial proceedings, it has a settled meaning as a term of art.479 It connotes the overturning of a judicial decision by a hierarchically superior court, the court of appeal. The term “reverse” also imports power to set aside a decision or judgment, that is, to annul or vacate it. The two uses of “reverse” in judicial proceedings mark the success of the appeal by the court of appeal allowing it. . To amend means “to correct, reform, convert”.480 In legal terminology, it conveys the notion of putting something aright, correcting, or rectifying it.481

478 479 480 481

Shorter Oxford Dictionary (Vol. II, th ed.), p. . See Black’s Law Dictionary (th ed.), p. . Shorter Oxford Dictionary (Vol. I, th ed.), p. . Black’s Law Dictionary (th ed.), p. .



chapter six

In its decision of  April ,482 the Appeals Chamber identified the remedies available to the Appeals Chamber as those conferred by article  in the case of appeals taken under article  and the remedies available in appeals taken under article , those identified in rules  and , namely empowerment to confirm, reverse or amend the decision under appeal. In its decision of  July ,483 the Appeals Chamber determined, by majority, that upon reversal of a decision appealed under article , the Appeals Chamber is vested with power to remand examination of the sub judice issues back to the first instance court for reconsideration of the issue at stake. The Appeals Chamber, in that case, reversed the decision of the Pre-Trial Chamber, dismissing the application of the Prosecutor for the issuance of a warrant of arrest on grounds of misdirection with regard to the intrinsic gravity of a crime as an ingredient of offences within the jurisdiction of the Court. The grounds upon which the decision was reversed provided the legal framework within which the decision should be re-addressed. The dissenting member of the court,484 expressed serious doubts whether remitting the case back for reconsideration is compatible with the notion of reversal in the context of rule .. Attention was drawn to the fact that where the legislator intended to bestow such a power upon the Appeals Chamber, this was done explicitly, as in the case of article .. In the opinion of the dissenting member of the court, power to reverse imports or incorporates power to substitute a new decision for the one set aside. The remit of reversal was revisited by the Appeals Chamber in its decision of  October 485 with similar results, the majority and minority adhering correspondingly to the views earlier espoused. . The meaning of “reversal” was also explored by the Appeals Chamber in two decisions given on  December .486 Directing a new trial of the case before a different Trial Chamber is an option open to the Appeals Chamber in appeals taken under article . Article . provides no guidance as to when a 482 Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber upon the Registrar’s Requests of  April ,  April  (ICC-/–/–). 483 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the Decision of the Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article ”,  July  (ICC-/– reclassified as public by ICC-/–-PUB-Exp). 484 Judge Pikis. 485 Prosecutor v. Lubanga Dyilo, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule  () and () of the Rules of Procedure and Evidence”,  October  (ICC-/–/–). 486 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “First Decision on the Prosecution Request and

the judiciary



new trial should be ordered, other than establishing that a new trial is a remedy available to the court for curing errors, discrepancies or irregularities in the judicial process. Retrial constitutes an exception to the rule that a person should not be put on trial more than once for the same act(s). Article  incorporates the rule of ne bis in idem, prohibiting the trial of a convicted or acquitted person anew for conduct forming the basis of a crime for which he/she was tried. Of course, the application of the rule is subject to the proviso introduced by the introductory words of article ; “except as provided in this Statute”. What the Statute does, by the provisions of article .(b), is to invest the Appeals Chamber with power to order a new trial before a different chamber. It does not specify in what circumstances recourse to this power should be had. The Statute postulates the power to order a new trial as an alternative to the reversal or amendment of the sub judice decision respecting the verdict or the sentence of the court. The rule against double jeopardy is a fundamental norm of justice that constitutes an internationally recognised human right that has a bearing on the interpretation and application of every provision of the Statute. It is submitted that the remedy provided for by article .(b) is not a remedy open to the court as an alternative to the evaluation of the merits of the case resulting in the approval of the sub judice decision by dismissing the appeal, its reversal or amendment. If the decision of the Trial Chamber is flawed in the way and to the extent envisaged by article . the inevitable remedy should be the reversal of the decision or its amendment in a manner befitting its foundations. The alternative power vested in the Appeals Chamber to order a retrial could find justification only if the trial itself was abortive in a way making it impossible in law for a valid verdict or sentence to emerge therefrom. Any other construction of article .(b) would bring it into conflict with the rule against double jeopardy, founded on the principle that the accused should be tried once, not twice for the same acts. Invocation of the power granted by article .(b) can only find justification if the trial process is stillborn, or flawed to the extent of nullifying the trial proceedings. In determining whether to order retrial in face of grounds invalidating the proceedings, the time element does come into play. Such an order can be made only if the delay in holding the trial does not transgress the right of the accused to trial without delay, or the norms of a fair and expeditious trial entrenched in article . as preconditions for a valid trial. The one option that should be invariably ruled out by the Appeals Chamber is

Amended Requests for Redactions under Rule ”,  December  (ICC-/–/–); Prosecutor v Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “Second Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/–/– ).



chapter six

to order a retrial when it is unclear what the outcome of the trial would be if the errors flawing the decision were not present. Retrial is not a means of correcting errors flawing the trial process and the decision of the trial court. Uncertainty on the part of the Appeals Chamber as to what the outcome of the case would be if the process was free of the errors committed cannot justify retrial. . One other aspect of article . is that on appeal of the accused against conviction or sentence, the decision of the court on either subject cannot be varied or amended to his/her detriment. By way of example, if the accused challenges on appeal his conviction or sentence, he/she cannot be convicted for either more serious crimes or be imprisoned for a longer period than the one ordered by the Trial Chamber. This course would be open to the Appeals Chamber if there is a cross appeal by the Prosecutor with respect to conviction and sentence. . Article . provides: If in an appeal against sentence the Appeals Chamber finds that the sentence is disproportionate to the crime, it may vary the sentence in accordance with Part .

The penalties sanctioned by the Statute and the principles governing the imposition of sentence are set out in articles  and , further elaborated in chapter  of the Rules of Procedure and Evidence (rules  to ). As provided in Article , the two factors that have a bearing on sentence are (a) the gravity of the crime and (b) the personal circumstances of the offender. There is, at first sight, an element of inconsistency between article . on the one hand and article  on the other. The conflict is illusory, not real, considering that the gravity of a crime is inextricably connected or associated with the personal circumstances of the accused. A poor person stealing a loaf of bread to subsist is in a different position from a person stealing a loaf of bread to enrich himself or herself. Consequently, we can view the contradiction between the two provisions of the Statute as a matter of first sight appearance not reality. . Article . provides, “[t]he judgement of the Appeals Chamber shall be taken by a majority of the judges and shall be delivered in open court. The judgement shall state the reasons on which it is based. When there is no unanimity, the judgement of the Appeals Chamber shall contain the views of the majority and the minority; but a judge may deliver a separate or dissenting opinion on a question of law.” This provision is consonant with the independence of judges and safeguards their freedom of thought and conscience. Unanimity for the sake of unanimity is not an end of justice. What is consequential

the judiciary



is that judicial decisions should reflect the views of the Court making known to the public the different strands of opinion, if any, in the interpretation, application and enforcement of the law . Reasoning a judgment is a fundamental attribute of a fair trial, finding expression in article .. This is a safeguard against arbitrariness in the exercise of judicial functions, acknowledging reason as the most reliable tool in ascertaining the truth of a matter. By the terms of article ., the reasoning of a judgment is a sine qua non for its validity; as much is acknowledged in the judgment of the Appeals Chamber of  February .487 The nature, extent and complexion of reasoning will necessarily depend on the circumstances of the case. The factual premises of a decision must be reasoned as well as the legal context defining the issues to be addressed. Reasons must be provided why application of the law to the facts of the case warrants the decision taken. In the above case, lack of reasoning led to a reversal of the decision, coupled with an order remitting the case back to the Pre-Trial Chamber to bring a reasoned judgment resolving the issues before it. The same approach to the need for reasoning is reflected in a subsequent decision of the Appeals Chamber.488 The issuance of separate or dissenting opinions on questions of law is a frequent phenomenon of judgment rendering in the Appeals Chamber. On one occasion, differing views of members of court in the context of a unanimous decision were recorded within the body of a common decision, that of  March .489 . Principles emerging or rules of law deriving from the decisions of the Judiciary of the ICC constitute, by the provisions of article ., a source of law. In a separate opinion of a member of the Appeals Chamber,490 reference is made to the implications of article . and their jurisprudential value. Article .

487

Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “First Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December , (ICC-/–/–). 488 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “Second Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December , (ICC-/–/– ). 489 Prosecutor v. Lubanga Dyilo, Reasons for Decision of the Appeals Chamber on the Defence Application “Demande de suspension de toute action ou procédure afin de permettre la désignation d’un nouveau Conseil de la Défense” filed on  February  issued on  February ,  March  (ICC-/–/–). 490 Prosecutor v. Katanga/Chui, Judgment on the appeal of Mr Mathieu Ngudjolo against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses  and ”,  May  (ICC-/–/–).



chapter six

does not introduce the principle of binding precedent, stare decisis, in the way it finds expression in common law jurisdictions, binding hierarchically inferior courts to follow decisions of superior courts and, not infrequently, binding superior courts themselves to follow their previous decisions. Article . makes previous decisions of Chambers of the International Criminal Court on the interpretation of applicable law, and rules emerging therefrom, a source of law; a source wherefrom guidance as to the content and effect of the applicable law may be derived from. The nature of guidance is not confined to majority decisions, but to separate opinions too, founding the judgment of the Court. A more difficult subject is the significance and remit of dissenting opinions as a source of law. Do they provide a legitimate source of guidance in the interpretation and application of the law? It can be argued that previous decisions of the Court are confined to judicial rulings founding the outcome of a case or resolving an interlocutory issue. It is equally arguable that “decisions” in the sense of article . embrace dissenting opinions inasmuch as they are likewise pronouncements emanating from the judiciary of the ICC. Moreover, as it is made clear by article ., the views of both, the majority and minority are embodied in the judgment of the Appeals Chamber. As legal history informs, albeit not frequently, dissenting opinions have a decisive influence on the identification of the future development of the law, as the decision of the dissenting opinion of Lord Atkin in the decision of Liversidge v. Anderson suggests.491 A lot depends on the meaning to be attached to the word “decisions” in the context of article .. Is the meaning of the word confined to the determinative part of the ruling of the Court, or does it embrace the decision of the Court on the subject-matter of the proceedings in its entirety? The latter meaning should be attached to the word “decisions” if the object of article . was to introduce the principle of stare decisis but this is not the object of this provision of the law. What is made a source of law are principles and rules of law as interpreted in previous decisions of the Court. Different approaches may be reflected in this area in unanimous decisions as well as in majority decisions. The question is whether the approach of dissenting members should be ruled out as a source of guidance. Does a dissenting opinion not form part of the decision of the Court with regard to the interpretation and application of principles or rules of law? The object of article . is to identify sources of law wherefrom guidance may be derived, not to impel applicability of previous decisions. Consequently, there are grounds for suggesting that previous rulings, decisions and judgments of the Court, in their entirety, may provide guidance with regard to the interpretation of principles and rules of law.

491

Liversidge v. Anderson [] AC .

the judiciary



. Rules . and . provide that the judgment of the Appeals Chamber in appeals taken under article  must also be delivered in public. Subject to defined exceptions, the publication of judgments and decisions of the Court is a duty that cannot be by-passed, except where provision is made for exception to this rule.492 Holding proceedings in public, as acknowledged in the aforesaid decision, is postulated as an element of a fair trial.493 In the same case a member of the Appeals Chamber drew attention in a separate opinion to the significance and importance of judgments and decisions of the Court as a source of law. The following passage is indicative: Judicial decisions identify the law applicable, determine its meaning, and delineate the range of its application as may be gathered from the object and purposes of the law revelatory of the spirit of a legislative enactment. Making the case law known is a condition of its applicability. Withholding publication of judgments/decisions is tantamount to secreting their existence, making the principles deriving therefrom inaccessible to the public.

. Both the Statute and the Rules make provision for holding proceedings in camera and withholding the publication of a decision or judgment. Article . authorises such steps for the protection of victims and witnesses as well as the accused. Rule  makes provision for under seal proceedings, covering both the process before the Court and its judgment or decision. As determined by the Appeals Chamber in its decision of  March ,494 the mere labeling by the parties of a document filed “under seal” does not attach a seal to the proceedings unless sanctioned by the Court. The seal may be lifted, as laid down in rule . and provided in regulation ., wholly or in part, when the “reasons for ordering the non-disclosure of the proceedings” cease to exist. . As the Appeals Chamber emphasised in its decision of  February ,495 “[t]he existence of a factual and legal basis for the continuation of the ‘under seal’ classification must be shown. Where the basis for the classification no longer exists the Chamber may order a reclassification of the record.” In a separate opinion concurring in the lifting of the seal it is indicated that

492

See Prosecutor v. Kony a.o., Decision of the Appeals Chamber on the Unsealing of Documents,  February  (ICC-/–/–). 493 See Article  of the European Convention on Human Rights, Article  of the International Covenant on Civil and Political Rights and Article  of the Pact of San Jose. 494 Prosecutor v. Lubanga Dyilo, Reasons for Decision of the Appeals Chamber on the Defence Application “Demande de suspension de toute action ou procédure afin de permettre la désignation d’un nouveau Conseil de la Défense” filed on  February  issued on  February ,  March  (ICC-/–/–). 495 Prosecutor v. Kony a.o., Decision of the Appeals Chamber on the Unsealing of Documents,  February  (ICC-/–/–).



chapter six

withholding publication of a judgment or decision is by definition a temporary measure “a reality reflected in the Appeals Chamber’s Directions of  November  asking the Prosecutor to identify reasons, if any, why the decision should be kept under seal”.496 In its decision of  September ,497 the Appeals Chamber removed the seal and made a judgment of the Appeals Chamber public after determining that the reasons for the imposition of the seal eclipsed. .

g. Discontinuance of an Appeal . Rule . provides that a party may discontinue his/her appeal at any time before judgment. This may be done by the appellant filing with the Registrar a written notice to that effect. In its decision of  July ,498 the Appeals Chamber held that a notice to discontinue an appeal puts, automatically, an end to the proceedings. No prior leave of the Appeals Chamber is needed, not even the acknowledgement of the notice by the court. But, discontinuance, subject to reservation, is neither foreseen by the Rules of Procedure and Evidence, nor can it bring about the end of the appeal. As much is acknowledged in the decision of the Appeals Chamber of  September .499 In a subsequent decision of the Appeals Chamber,500 the court reiterated that the notice of discontinuance must deal exclusively with the discontinuance of the appeal. In the separate opinion of two members of the Appeals Chamber,501 the question of the possibility of an appeal being withdrawn in part is left open. In the appeal under consideration, the reasons that led the court to certify the given issue as the subject of appeal had disappeared, its substratum had disintegrated and no arguments had been advanced in relation thereto by either party; whereupon the court treated the appeal as abandoned, as the issue raised had become a theoretical one.

496

Ibid., para.  of the separate opinion. Situation in the Democratic Republic of the Congo, Decision on the Unsealing of the Judgment of the Appeals Chamber issued on  July ,  September  (ICC-/–). 498 Prosecutor v. Lubanga Dyilo “Decision on Thomas Lubanga Dyilo’s Brief relative to Discontinuance of Appeal”  July  (ICC-/–/–). 499 Prosecutor v. Lubanga Dyilo Decision on Thomas Lubanga Dyilo’s Application for Referral to the Pre-Trial Chamber / In the Alternative discontinuance of the appeal,  September  (ICC-/–/–). 500 Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article () of the Statute and Rule  of the Rules” of Pre-Trial Chamber I,  November  (ICC-/–/–). 501 Judge Pikis and Judge Nsereko. 497

the judiciary



. Revision of conviction and sentence . Article  makes provision for the revision of both conviction and sentence at any time after they become final in light of new evidence casting doubt on the validity or propriety of the conviction or sentence. It is a salutary process, designed to remedy miscarriages of justice and remove the stigma of conviction that afflicts the status of man in society. There is no time limit for the invocation of this remedial process to which recourse may be had, either during the lifetime of the convicted person or posthumously. . Article . provides: The convicted person or, after death, spouses, children, parents or one person alive at the time of the accused’s death who has been given express written instructions from the accused to bring such a claim, or the Prosecutor on the person’s behalf, may apply to the Appeals Chamber to revise the final judgment of conviction or sentence on the grounds that . . . .

As stated earlier, there is no time limit to having recourse to this provision of the Statute. During the lifetime of a convicted person the jurisdiction of the Court can only be invoked by himself/herself and, thereafter, by any person belonging to the class of relations specified in the Statute. The Statute does not correlate the right to seek revision of the decision of the trial court to affirmation of the conviction or sentence on appeal. So long as the judgment on conviction or sentence is final it can be made the subject of proceedings for revision. It cannot go unnoticed that the term “judgment” is used in the context of article ., the term used by the Statute to describe decisions of the Appeals Chamber, as opposed to the term “decision” that characterises judgments of the Trial Chamber, determinative of its verdict and the sentence imposed. The two terms signify, in the context of the judicial process, the same thing. The term “judgment” denotes wherefrom a decision emanates, from the judiciary, whereas the term “decision” conveys the notion of determination of a judicial cause. One cannot, therefore, conclude that the term “judgment” imports, in the context of Article ., the notion of a decision of the Trial Chamber and its sustenance on appeal. . In addition to the specified class of relations of the deceased person who can pursue revision, a person specifically nominated by the deceased during his/her lifetime to take up the cause of revision may do so. Written instructions to that end must be given during the deceased’s lifetime in the hope or expectation that evidence will emerge in due course casting doubt on the reliability of the verdict or the soundness of the sentence. The Prosecutor, too, may, on behalf of the nominated person, apply for the revision of the final



chapter six

judgment and sentence of the Court. It is none too clear whether the phrase “on the person’s behalf ” includes both the convicted person as well as the person nominated to take up the cause after his death. The convict and his/her representative are distinguished, the first being referred to as the “convicted person”, and the other as the “person”. We may legitimately assume that the person on whose behalf the Prosecutor may take up the cause of revision is the representative of the deceased. The decision of the Trial Chamber becomes final after the effluxion of the period of time stipulated for mounting an appeal (rule .). . The grounds upon which revision may be sought are specified in paragraphs (a), (b) and (c) of article .. Paragraph (a) reads, “[n]ew evidence has been discovered that: (i) Was not available at the time of trial, and such unavailability was not wholly or partially attributable to the party making application; and (ii) Is sufficiently important that had it been proved at trial it would have been likely to have resulted in a different verdict.” The unavailability of evidence denotes absence of knowledge of its existence. Such evidence must have existed at the time of the trial, but not produced before the court. The unavailability of the evidence must not be due, either wholly or in part, to lack of effort on the part of the accused in tracing it. In bringing judgment to bear on the subject, regard must be had to the means available to the accused to prepare his/her defence. Another relevant consideration is the duty of the Prosecutor imposed by the provisions of article .(a) to “investigate incriminating and exonerating circumstances equally”. Exonerating evidence must be disclosed to the defence. If exonerating evidence could reasonably be expected to be brought to light by the Prosecutor during his investigations, the convict cannot be blamed for the delay. The Trial Chamber must ensure prior to the opening of the trial that evidence not previously disclosed must be revealed to the accused, a provision given procedural effect by rule . Rule  assures the accused of the right to inspect material in the possession of the Prosecutor. The accused may therefore reasonably anticipate that evidence gathered by the Prosecutor tending to weaken the case for the prosecution, or supporting his/her innocence, will invariably be disclosed to the defence. . The evidence that has come to light must be “sufficiently important”, that is, significant enough to the extent that had it been adduced at the trial, the outcome is “likely to have been different”. “Likely” denotes something which is probable to happen, or is reasonably expected. The test is one that revolves around probabilities, not certainties, in accord with the standard of proof. In sum, the evidence relied upon must be such that it is probable that it might have had a decisive impact on the verdict of the court or the sentence imposed.

the judiciary



. Article (b) reads: It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified.

The evidence that may trigger the application of this provision of law must have been newly discovered. It must have come to light recently, that is, not long before the initiation of proceedings for revision. Learning of its existence but not moving the process for a long period of time may disentitle the person from seeking revision (article .(b)). “Decisive evidence” is evidence that had a significant impact upon the findings of the Court, going to the foundation of the conviction. The relevant evidence must be false, that is untrue or falsified, in other words given a different complexion from its real one. The notion of “forge” is associated with forgery, that is, making something written appear to be other than what it records. It is principally associated with forged documents, coins and banknotes. In relation to court proceedings, it applies primarily to documents. . Article .(c) provides: One or more of the judges who participated in conviction or confirmation of the charges has committed, in that case, an act of serious misconduct or serious breach of duty of sufficient gravity to justify the removal of that judge or those judges from office under Article .

Judicial misconduct, tainting the proceedings in the aforementioned manner, may have taken place at the stage of the confirmation of the charges or at the trial. Rule  defines the acts that may constitute serious misconduct, involving serious breach of duty. Judicial impropriety may be of a kind causing serious harm to the proper administration of justice or to the internal functioning of the Court. This is the definition of serious misconduct. Some such acts are itemised in rule .(a)(i), (ii), and (iii). They involve the disclosure of facts coming to the judge’s knowledge on a sub judice matter, in circumstances where such disclosure would be seriously prejudicial either to the judicial proceedings or to any individual, concerning information or circumstances sufficiently serious as would have precluded the judge from holding office. Article .(a) prescribes high moral character, impartiality and integrity as essential qualifications for holding judicial office. Abuse of judicial office with a view to obtaining favour from any authorities, officials or professionals is another species of offensive conduct with serious implications on the standing of the Court; in other words disgraceful conduct unbefitting an officer of justice. Rule . defines serious breach of duty as involving grossly negligent performance of duties or knowingly acting in contravention of judicial duties, including the following; (a) failure to be excused from sitting in a case, and (b)



chapter six

repeated delays in the initiation, prosecution or trial of cases, or in the exercise of judicial duties. Article  establishes the process of removal of a judge from office. Article .(a) binds a judge not to participate in any case in which his/her impartiality might reasonably be doubted on any ground. A judge must not only be impartial but also appear to be impartial. Bias or the appearance of bias to an informed, reasonable onlooker is the test for the reclusion of a judge from participating at the hearing of any case. Article .(a) provides, inter alia: A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground.

The test for disqualification is the appearance of bias. Article .(a) further provides: A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence.

It must be underlined that paragraph (c) of article . does not link misconduct or serious breach of duty with the repercussions of such conduct or outcome on either the confirmation hearing or the trial. In the same way that bias invalidates the proceedings and the decision in the cause, so does impropriety in the sense of Article .(c). The subject is conduct inherently likely to taint the proceedings. . Article . states: The Appeals Chamber shall reject the application if it considers it to be unfounded. If it determines that the application is meritorious, it may, as appropriate: (a) Reconvene the original Trial Chamber; (b) Constitute a new Trial Chamber; or (c) Retain jurisdiction over the matter, with a view to, after hearing the parties in the manner set forth in the Rules of Procedure and Evidence, arriving at a determination on whether the judgment should be revised.

Revision is a two-stage process. In the first place, the Appeals Chamber must examine the merits of the application. If unfounded, that is if it is baseless, the application must be dismissed. An application may be regarded as meritorious if the facts founding it could justify revision if accepted as creditworthy in the judicial proceedings that would follow. . Where the application is found to be meritorious, the Appeals Chamber has the three options enumerated above. In the event of retaining jurisdiction, the Appeals Chamber shall be vested with the powers of a trial court, under

the judiciary



Part VI of the Statute.502 In conducting the hearing, the rules governing the proceedings and submission of evidence in the Pre-Trial and Trial Chambers shall apply. Rule  prescribes the form and content of an application for revision, supplemented by the provisions of regulation . Rule  lays down that the original Trial Chamber, or a newly constituted Trial Chamber, or the Appeals Chamber in the event of retaining jurisdiction “shall hold a hearing to determine whether the conviction or sentence should be revised.” The form and framework of the hearing is not detailed. The word “hearing” prima facie signifies proceedings involving the reception of evidence and submissions by the parties. What is less clear is whether the hearing envisaged would take the form of retrial or whether it should be confined to the reception of evidence tending to suggest that the allegations vitiating conviction or sentence are well founded. It is unlikely that the legislator had in mind retrial of the case considering that revision could take place years after the original trial, as well as after the death of the convicted person. Witnesses may have passed away in the meantime, while the memory of those alive may have been dimmed by the passage of time. The object of the proceedings, as distilled in article . is to enable the Court to arrive “at a determination on whether the judgment should be revised” and not to re-determine the guilt or innocence of the accused. In revision proceedings the Court must determine whether the evidence adduced, not available at the trial of the accused, warrants revision of the sub judice decision. Revision is warranted if the Court concludes that if the evidence adduced in support of revision was before the trial court, its verdict is likely to have been different.

502

See rule .

chapter seven OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE AND MISCONDUCT

I. Offences against the administration of justice . General . Offences against the administration of justice are designed to uphold the efficaciousness of the judicial process, allowing the stream of justice to flow unimpededly. Criminalising conduct calculated to interfere with the administration of justice or interrupt the process is an expression of commitment to its mission. The dispassionate conduct of judicial proceedings is an indispensable element for the due administration of justice. Offences against the administration of justice are encountered in every system of law. So much so that it would be strange if such conduct was not criminalised with a view to shielding the judiciary of the international criminal court from acts adverse, contradictory or antagonistic to the administration of justice. . Article  of the Statute defines offences against the administration of justice and makes provision for the punishment of the offenders: The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally.

Intentionality of conduct is a vital ingredient of every offence against the administration of justice. “Intent” in this context cannot have a meaning other than the one ascribed to it by article . Article . provides that “intent” where postulated as an ingredient of a crime “within the jurisdiction of the Court” has the meaning attributed to it by article ., importing wilful conduct aiming to bring about the consequences that follow or awareness that such consequences will follow in the ordinary course of events. Wilful conduct embarked upon with knowledge of what its consequences will be cannot dissociate a person from a desire to bring them about. . In consequence, conduct constituting an offence against the administration of justice must be the offspring of the will of the actor. The



chapter seven

consequences must be intended or foreseeably anticipated. Criminal responsibility for the commission of an offence against the administration of justice, as well as for any crime within the jurisdiction of the Court, is prescribed by article . . List of offences . The following are the offences created by article : a. “Giving false testimony when under an obligation pursuant to article , paragraph , to tell the truth” . Article . prescribes the giving of an undertaking to tell the truth as a precondition for giving testimony before the Court. What is envisaged is an undertaking, not an oath, premised on the universal obligation of man to tell the truth. Rule . articulates the undertaking to be given: “I solemnly declare that I will speak the truth, the whole truth and nothing but the truth”. Justice can only be founded upon truth while untruth is an agent of miscarriage of justice. The offence is committed if the undertaking is breached. If no undertaking is given, no offence can, so far as one may gather, be committed. False testimony signifies the making of a factual statement, untrue to the knowledge of the maker. The offence created by article .(a) is a species of perjury. The untruth of the statement must be evidenced by facts demonstrating its falsity. Disbelief by the court of the evidence of the witness in itself cannot ground the offence. In other words, judicial evaluation of the evidence of the witness simpliciter cannot found the crime. There must be evidence exposing the falsity of the testimony. Rule . binds the Court to inform the witness before testifying of the offence defined by article .(a) and of the consequences of giving false testimony that may befall him/her. . Article  provides that the Court shall have no jurisdiction over any person under the age of  at the time of the commission of a crime. Is the application of its provisions confined to crimes specified in article ? There is nothing in article  restricting the scope of its provisions to the specific crimes. Persons under  cannot be held criminally liable for illegal conduct manifested at that stage of their life. . Rule . specifically provides that a person under the age of  or a person whose judgement has been impaired, and on that account, becoming unable to understand the nature of a solemn undertaking, may be allowed to give evidence without giving the undertaking. This is a difficult provision

offences and misconduct



to interpret so far as it concerns persons under . Does it exempt persons under that age from giving an undertaking to tell the truth or does it merely confer discretion upon the court to excuse them from giving that undertaking? Rule . requires the court to warn a witness giving the undertaking of the consequences that may befall him or her if they give false testimony. A person under  cannot be visited with such consequences in light of the provisions of article . Rule . in mandatory terms requires the administration of the warning to every person giving an undertaking. The provisions of Rule  viewed against the background of article  lead to the conclusion that a person under  cannot give a solemn undertaking; yet he/she may be allowed to testify if the conditions of Rule  are satisfied. b. “Presenting evidence that the party knows is false or forged” . The word “party” denotes a litigant to the proceedings having the right to present evidence before the Court.503 A party usually acts through his/her counsel if represented. The intermediacy of counsel does not absolve the party from the obligation not to present false or forged evidence. A prerequisite for the commission of the offence provided for by this part of article  is knowledge of the falsity of evidence or of the forgery of a real piece of evidence. Knowledge, as an ingredient of an offence under the Statute, bears the meaning attributed to the term by article .. In the context of article .(b) it means awareness of the existence of a fact that is false or forged. The term “forgery” signifies the change or alteration of a document to read something other than it states or conveys. . Does counsel representing a party commit an offence under article  if he knows that the evidence presented is false or forged? Counsel is, in many respects, the alter ego of the client. Under the Code of Professional Conduct envisaged by rule  and enacted on  December ,504 counsel is disciplinarily liable if aware of pending misconduct but fails to take reasonable steps to stop or remedy it. Rule . makes communications between client and counsel privileged, not subject to disclosure unless “(a) The person consents in writing to such disclosure; or (b) The person voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure”. If evidence is forthcoming that counsel was aware of the falsity or forgery of the evidence and took part in its presentation, he cannot but

503 504

See, inter alia, article .. Resolution ICC-ASP//Res. , adopted on  December , by consensus.



chapter seven

be criminally liable for the offence under article .(b). In accordance with article .(a), a person is criminally liable if he commits a crime jointly with another. c. “Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence” . Corruptly influencing a witness imports bribing a witness, or inducing him/her by promises of favour or reward to change his/her testimony according to the wishes of the corrupter. Placing obstacles in the way of, or preventing the attendance of a witness or the giving of evidence are also species of conduct criminalised by this provision of article . The impediment put in the way of a witness must affect either his/her attendance in court or the giving of evidence, or both. Retaliation is an act of revenge; avenging one who you believe has damned you. Retaliation is criminalised insofar as its object is to do harm to a witness for giving evidence unfavourable or unwelcome to the retaliator. Destroying evidence, tampering with it or placing obstacles in the way of its collection also constitute crimes under article .(c). d. “Impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties” . The provision under consideration is not confined to any class of officials. The word “Court”, in this context, embraces every person holding office in any department of the Court, not just in the judicial branch. “Impeding” signifies stopping or placing obstacles in the way of the performance of the duties of an official. “Intimidating” imports adverse consequences designed to frighten the official with a view to desisting from doing his or her duty. “Corruptly influencing” denotes conduct involving monetary or tangible rewards, or promises to that effect, designed to dissuade an official from performing his/her duty in the manner required by rule or departmental directions. e. “Retaliating against an official of the Court on account of duties performed by that or another official” . The notion of retaliation entails; (a) avenging an official for performing his/her duties and not doing otherwise and (b) punishing the same for the acts of another official involving an element of group punishment of the service.

offences and misconduct



f. “Soliciting or accepting a bribe as an official of the Court in connection with his or her official duties” . This provision is intended to punish corrupt officials who trade the discharge of their duties by seeking or accepting benefits for not carrying out their duties. . Principles and procedures governing the exercise of the jurisdiction of the Court . Article . provides: The principles and procedures governing the Court’s exercise of jurisdiction over offences under this article shall be those provided for in the Rules of Procedure and Evidence. The conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State.

The process of reporting, investigating and bringing to justice persons committing offences against the administration of justice, is set out in the Rules of Procedure and Evidence. Responsibility for investigating a crime under article  lies, as with every other crime within the jurisdiction of the Court, with the Prosecutor. . The Prosecutor may initiate an investigation on his own motion, on information reaching him/her or on the basis of information communicated by a Chamber or by any reliable source (rule .). The Chamber may communicate evidence surfacing in the course of the proceedings to be false or forged or contradictory as a subject of investigation. The court may also communicate to the Prosecutor any decision or judgment containing findings about the falsity of evidence as the subject of investigation. A “reliable source” is one that, in the nature of things, is expected to know the truth about an event. . The Prosecutor may petition the arrest of a person who appears to have committed offences against the administration of justice pursuant to the provisions of article  or seek the issuance of a summons calling the person to appear before the court. Correspondingly, the person enjoys the safeguards provided for in article . The charges against the person must be approved at a confirmation hearing in the same way, and subject to the same principles, as charges under article , and  may be confirmed under article , save for the power of the Pre-Trial Chamber to direct written submissions from the parties without holding a hearing. This provision does not diminish the rights of the person against whom the charges are levied under article ., including the



chapter seven

right to challenge the evidence presented by the Prosecutor. In any event, such a course should not be adopted if the interests of justice require otherwise (see rule .). . Before the Court assumes jurisdiction to deal with accusations that a person has committed offences against the administration of justice, the Court may consult with States Parties that may have jurisdiction over the offence (rule .). The State to be consulted must have jurisdiction over the offences against the administration of justice committed in relation to proceedings before the International Criminal Court. In other words, offences against the administration of justice under the Statute must be criminalised, and be likewise punished, by national legislation. Whatever the impact of this provision may be, it cannot be denied that offences against the administration of justice, involving the giving of false testimony, must, as a rule, be dealt with by the judicial authorities of the Court before which the witness testified. Offences against the administration of justice involving the tampering with witnesses or intended to impede the course of justice, committed within the territory of a State Party, may justifiably be made the subject of prosecution before the judicial authorities of that state. . Rule . provides: In making a decision whether or not to exercise jurisdiction, the Court may consider, in particular: (a) the availability and effectiveness of prosecution in a State Party; (b) the seriousness of an offence; (c) The possible joinder of charges under article  with charges under articles  to ; (d) The need to expedite proceedings; (e) Links with an ongoing investigation or a trial before the Court; and (f) Evidentiary considerations.

. Rule . tends to suggest that in a matter concerning offences against the administration of justice, the Court must determine whether to exercise jurisdiction having regard to several factors enumerated in paragraphs (a) to (f) of the same sub-rule. The introductory words of sub-rule , “in making a decision”, do suggest that the Court must determine in any given case whether jurisdiction should be assumed. This is reinforced by the words that follow, “whether or not to exercise jurisdiction”, leaving the two options open to the Court. In many respects, the Court must make a value judgment as to whether it is worth proceeding with the case, whether the evidence prima facie supports the charge and give consideration to procedural factors such as the desirability of joining the offences with charges brought under articles  to , as well as the need to expedite proceedings in the context of which the offences were committed. The alternative possibility of the offences being heeded by the authorities of a

offences and misconduct



State Party is another factor to be pondered. The seriousness of the offence is yet another consideration to be taken into account. “Seriousness” refers to the gravity of the offence. If the damage to the administration of justice occasioned by the offence is minimal the Court may hold back from exercising jurisdiction. Rule .(e) raises interpretational problems. We can fairly assume that it does not refer to a possible joinder, which is the subject of rule .(c). What is probably contemplated is that the Court should address the implications of assuming jurisdiction on the progress of an investigation or its impact and effect on a trial before the Court, not necessarily the trial in the context of which the offence was allegedly committed. The Court may desist from exercising jurisdiction if such a course is likely to interfere with either the investigation or trial proceedings before the Court. . Rule . reads: The Court shall give favourable consideration to a request from the host State for a waiver of the power of the Court to exercise jurisdiction in cases where the host State considers such a waiver to be of particular importance.

The reasons for which the host State may seek waiver of the power to exercise jurisdiction are not set out. Any such request appears, by the text of this provision, to be binding on the Court, a fact signified by the expression “shall give favourable consideration”. . Rule . reads: If the Court decides not to exercise its jurisdiction, it may request a State Party to exercise jurisdiction pursuant to article , paragraph .

. Rule  prescribes a -year period for limitation of offences against the administration of justice. The period is interrupted if within the -year period either an investigation into the case commences or a prosecution is mounted by the Court authorities or by the authorities of a State party having jurisdiction pursuant to article .(a). . Rule . provides: Unless otherwise provided in sub-rules  and , rule  and rules  to , the Statute and the Rules shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in article .

By the provisions of this rule, principles governing the investigation and prosecution of offences defined by articles ,  and  and punishment of offenders laid down in the Statute and the Rules of Procedure and Evidence do find application in proceedings affecting investigation, prosecution and proof of



chapter seven

offences against the administration of justice. Rule  bestows upon the Court, as already explained, discretion not to assume jurisdiction. Rules  and  lay down the rules that should govern the prosecution and trial of offences of the category under consideration. . Rule . provides: The provisions of Part , and any rules thereunder, shall not apply, with the exception of article .

Part  of the Statute refers to the crimes falling within the jurisdiction of the Court, the prelude to the investigation of a case, the ambit of the jurisdiction of the Court and the admissibility of a case as the subject of judicial proceedings. Article  incorporates in the Statute the principle of ne bis in idem, i.e. the rule against double jeopardy, the application of which, although excluded by rule ., is re-introduced by the specific provisions of rule . Rules comparable to those governing the assumption of jurisdiction and the admissibility of a case, embodied in articles ,  and , find expression in rule . . Article , definitive of applicable law in proceedings before the Court, finds application in proceedings involving offences against the administration of justice. It must be reminded that persons investigated, prosecuted and tried for offences against the administration of justice enjoy the rights of the person under investigation (article  and rule .) and the accused (article ). . Reference has already been made to the rules applicable to proceedings relating to offences against the administration of justice. A provision to which attention must be drawn in this context, is rule , establishing that when an offence against the administration of justice is committed in the face of the Court the Prosecutor may request, and the Chamber may order, the arrest of the ill-doer. Rule  deals with international cooperation in matters relating to offences against the administration of justice. Chapter , governing cooperation of States Parties, finds application in this area as in other fields of the law. . As laid down in article ., proceedings in a State party, in the context of cooperation, “shall be governed by the domestic laws of the requesting State”. Procedural effect to this is given by rule .. It reads, “[t]he conditions for providing international cooperation of judicial assistance to the Court with respect to offences under article  shall be those set forth in article , paragraph ”. The subject under review in this area is proceedings relevant to cooperation, not proceedings for the investigation, prosecution and trial of a case by a State party.

offences and misconduct



. Punishment . Article . makes provision for the punishment of persons guilty of offences against the administration of justice. It reads: In the event of conviction, the Court may impose a term of imprisonment not exceeding five years, or a fine in accordance with the Rules of Procedure and Evidence, or both.

The fine that may be imposed is left to be specified by the Rules of Procedure and Evidence. The subject is addressed by rule . . The Statute sanctions the imposition of a fine as an alternative to imprisonment, but also as a cumulative punishment. Rule ., it must be noticed, envisages a third form of punishment, notwithstanding the absence of provision to that effect in article .. It provides: Article , and any rules thereunder, shall not apply, with the exception of an order of forfeiture under article , paragraph .b, which may be ordered in addition to imprisonment or a fine or both.

Article  prescribes punishment for crimes within the jurisdiction of the Court. Naturally, it has no application to proceedings under article  and rules supplementary thereto as the subject-matter of offences against the administration of justice is wholly different from that of offences enumerated in article . What is hard to explain and justify is the power acknowledged by rule . to impose, in addition to the sanctions provided for by article ., a forfeiture order. Article . leaves no room for the prescription of sanctions additional to those envisaged therein by the Rules of Procedure and Evidence. What is left to be determined by the Rules of Procedure and Evidence is the magnitude of the fine that may be imposed. The punishment of a crime is not a matter of procedure or evidence, but the subject of statutory affixture. In the absence of delegation of power to determine sentence or aspects of it through the Rules of Procedure and Evidence, no justification can be found for the addition by the Rules of Procedure and Evidence of penalties to which the offender is liable to. The inevitable inference is that, to the extent that rule . provides, a punishment not envisaged by substantive law, it is in conflict with the Statute. Conflict imports antithesis between two propositions denoting irreconcilability, that is, the two cannot coexist. . The imposition of a fine, and the height of it, are, by the terms of article ., left to be determined by the Rules of Procedure and Evidence. Rule . prescribes that where the accused is convicted for more offences than one, he/she may be fined separately for each offence, subject to the total cumulative



chapter seven

amount not exceeding the maximum fine that may be imposed. This is  percent of the value of the convicted person’s identifiable assets, after deduction of an appropriate amount for the support of the convict and his/her dependants. Reasonable time may be afforded to the convicted person to pay the fine imposed.505 If unpaid, article  and the rules made thereunder506 come into play. Article  makes, inter alia, provision for the enforcement of fines, whereas rules ,  and  identify the measures to be taken for the collection of fines. If a fine remains unpaid after exhausting measures for its collection, the Presidency may, on its own motion or at the request of the Prosecutor, impose a sentence of imprisonment within the confines of article ., i.e. for a term not exceeding  years. In imposing a sentence of imprisonment for failure to pay a fine, account must be taken of any amount paid towards it. . An important provision of the rules governing enforcement of sanctions relating to offences against the administration of justice is rule .. It provides: The provisions of Part , and any rules thereunder, shall not apply, with the exception of articles , ,  and .

. Part  of the Statute deals with enforcement generally. The four articles made applicable to the enforcement of sentences imposed for the commission of offences against the administration of justice deal with a) the designation of a State where sentence will be served and the factors bearing on a decision on the subject (article ), b) the transfer of the prisoner upon completion of sentence to a country that is obliged to receive him/her or to another state that agrees to receive the person (article ), c) the enforcement of fines and forfeiture measures (article ), and d) the escape of a prisoner and measures that may be taken for his/her recapture (article ). Chapter  of the Rules deals with enforcement. The rules appearing thereunder are applicable to the extent they refer to the aforementioned four articles of the Statute, which appears to be the case with rules  to , , ,  to  and . . Lastly, reference must be made to rule , stating that the person offending against the administration of justice in the presence of the Court may, upon request of the Prosecutor, be arrested by an order of the Court. The duration of the arrest is not specified, save that it cannot be different from the implications of arrest under article , primarily intended to assure the appearance

505 506

See rule .. See rules  to .

offences and misconduct



of the person at his/her trial. Attention must also be drawn to the provisions of rule , providing that, when an offence against the administration of justice is committed in the face of the court, the process to be followed is the one sanctioned by article  and rules  to . . Article .(a) provides: Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative of judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals.

By virtue of the provisions of this sub-paragraph of article , State Parties must streamline their legislation with regard to investigation, prosecution and trial of offences against the administration of justice along the lines of article  of the Statute, with regard to offences committed on its territory or by its nationals in the territory of any other state. They must criminalise conduct constituting an offence against the administration of justice in accordance with the Statute, enabling them thereby to assume and exercise jurisdiction over such offences whenever necessary, either on their own initiative or at the request of the International Criminal Court. A clear implication of this provision is that States Parties must criminalise offences against the administration of justice before the International Criminal Court. . Paragraph (b) of Article . complements the provisions of paragraph (a) as follows: Upon request by the Court, whenever it deems it proper, the State Party shall submit the case to its competent authorities for the purpose of prosecution. Those authorities shall treat such cases with diligence and devote sufficient resources to enable them to be conducted effectively.

. In light of the above provision of article , a State party is duty-bound to investigate, prosecute and try cases submitted to it by a Chamber of the ICC. An unqualified duty is imposed upon the State to deal with such cases without fail, devoting whatever resources may be necessary to carry out this responsibility proficiently.

II. Sanctions for Misconduct before the Court . Article  makes provision for the unimpeded and unobstructed conduct of judicial proceedings and the imposition of sanctions on those who interrupt or derail them from their course. What the Statute penalises here is a form



chapter seven

of contempt in the face of the court. Persons who interfere with the conduct of judicial proceedings, either by interrupting the proceedings or evincing disrespect to the court, may be sanctioned as provided in article . . The sanctions consist of punishment other than imprisonment. Article . provides: The Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions, by administrative measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures provided for in the Rules of Procedure and Evidence.

. Conduct disruptive of judicial proceedings as well as conduct involving disrespect to the court and its mission, is antinomous to the ends of justice. Judicial proceedings are conducted according to rules designed to uphold the unobtrusive atmosphere befitting the administration of justice, requiring calm and concentration conducive to the unimpeded conduct of judicial proceedings. Misconduct in court is antithetical to the due administration of justice. Disruption of judicial proceedings and deliberate refusal to comply with directions of the court are specifically identified as conduct prejudicial to the judicial process. Article  confers power upon the court to stop misconduct as well as punish a person guilty of it by the imposition of a fine or other measures envisaged by the Rules of Procedure and Evidence. Imprisonment is excluded. Rule  provides that the presiding judge of a Chamber may order a person disrupting judicial proceedings to leave the court, or order his/her removal from the courtroom. In cases of repeated misconduct, the presiding judge of a Chamber may order his/her interdiction, prohibiting thereby the misdoer from attending the proceedings. . Article . specifically addresses misconduct on the part of the accused occasioning disruption of the proceedings. In face of such conduct, the Trial Chamber may direct the removal of the accused from the Court, albeit without depriving him/her of the opportunity to follow the proceedings from a spot outside the courtroom, or to instruct counsel. In such eventuality, arrangements must be made for the accused to observe the proceedings from a place outside the courtroom, and provide him/her with facilities to communicate with counsel by the use, whenever necessary, of communication technology. Removal of the accused from the courtroom is characterised as an exceptional measure of last resort.507 Whenever ordered, it should be for a period no longer than 507

See article ..

offences and misconduct



strictly necessary. The presence of the accused at the trial is assured as a fundamental right of the person by article .(d). The use of the right for a purpose other than the one for which it is given, that is to disrupt and not to follow the proceedings, may legitimise in extreme cases of abusive conduct, his/her temporary eviction from the courtroom. Article . is specifically directed to the circumstances under which the accused may be excluded from the courtroom. Does the same right reside with the court in pre-trial proceedings? The answer must be in the affirmative in light of the provisions of rule ., where it is provided that “subject to the provisions of articles  and , the person shall enjoy the rights set forth in article ”. Neither article  nor  contain any provisions delimiting the rights of a person investigated under article .(d). We may therefore conclude that the provisions of article . apply with equal force and in the same way in pre-trial proceedings as they find application in trial proceedings. . A person other than the accused or a person under investigation misconducting him/herself in court may, after due warning as to the consequences that may befall him, be interdicted by order of the presiding judge for a period not exceeding thirty days. In the event of misconduct of a more “serious nature”, the presiding judge may impose a fine, as provided in rule .. Serious misconduct in this context is not defined. One may surmise that conduct covered by this provision is conduct involving an affront to the court and its mission, or the creation of serious obstacles in the conduct of judicial proceedings. . Officials of the Court, counsel of the parties or legal representatives of victims misconducting themselves are also liable to interdiction, disqualifying them from the exercise of their duties for a period not exceeding thirty days (rule .). If the presiding judge is of the opinion that the conduct of the condemnor deserves more serious punishment, the matter may be referred to the Presidency, empowered, after holding a hearing, to order a longer or a permanent period of interdiction. . The fine that may be imposed for the misconduct under consideration should not, as provided in rule ., exceed  Euros or its equivalent in another currency. In cases of continuing misconduct a cumulative fine may be imposed for each day that the misconduct continues. Before punishing a person for misconduct, the person is entitled to be heard before the imposition of any sanction (rule .).

chapter eight THE OFFICE OF THE PROSECUTOR

I. General . The Office of the Prosecutor is an important organ of the Court, responsible for the investigation of crimes within the jurisdiction of the Court and the prosecution of offenders. The authority and functions of the Office, and the Prosecutor who heads it, are outlined in article . Article . reads: The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. A member of the Office shall not seek or act on instructions from any external source.

. The separateness and independence of the Office in its sphere of authority proclaimed in the above provision of article , finds expression in every part of the Statute identifying its competencies. The Office of the Prosecutor is separate and distinct from the judiciary and every other organ of the Court. The doctrine of separation of powers is given effect to by the Statute, requiring separateness between the functions, powers and authority of the judiciary and those of the prosecutorial authority. The independence and impartiality of the judiciary requires autonomy in the sphere of its jurisdiction and authority and separateness from every other power or institution. The same holds true under the Statute for the Office of the Prosecutor, a separate and independent department of the International Criminal Court. . The doctrine of separation of powers, evolved by Aristotle, as the means of ensuring symmetry in the management and transaction of the affairs of the polis, was given form and substance in the modern world by Montesquieu in his work, “The spirit of the Law”, having at its epicentre the separateness of the judiciary from every other source of authority or power. . Articles  and  of the Statute provide respectively that States Parties and the Security Council may refer to the Prosecutor for investigating situations in which crimes within the jurisdiction of the Court have been committed. Moreover, the Prosecutor is invested, by article ., with power to initiate



chapter eight

investigations into crimes within the jurisdiction of the Court proprio motu. There is an apparent divergence between the provisions of article ., endowing the Prosecutor with power to initiate investigations proprio motu, “on the basis of information on crimes within the jurisdiction of the Court”, and article . entrusting him with responsibility in the exercise of his proprio motu power to examine “substantiated information on crimes”. The difference in the terminology used in the two provisions of the Statute is of no consequence, in that we may justifiably infer that “information” in the context of article . denotes, prima facie, credible or reliable information. Substantiated information, in this context, signifies information founded on facts tending to disclose that crimes within the jurisdiction of the Court have been committed in one or more places. . Article . aims to strengthen the institutional independence of the Office of the Prosecutor by prohibiting the personnel of the Office from either seeking or acting on instructions from anybody other than the Prosecutor, or authorised subordinates. Rule  provides that the Prosecutor may delegate duties to the staff of the Office, other than persons referred to in article . of the Statute, “to represent him or her in the exercise of his or her functions”. The Deputy Prosecutor may likewise delegate duties to staff members, other than persons referred to in article . providing for the nomination of persons for the position of Deputy Prosecutor. . Article  trusts to the Prosecutor the appointment of the staff of the Office. Power to appoint investigators is essential for the discharge of the investigatory duties of the Office. The Prosecutor cannot merely depend on State cooperation in this respect. The staff of the Office of the Prosecutor shall meet, as laid down in article ., “the highest standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in article , paragraph ”. Article .(a) requires “(i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges”. . The powers of the Prosecutor in the appointment of personnel must be construed and applied in accordance with article .. Rule  requires the Prosecutor to “put in place regulations to govern the operation of the Office”. In so doing, he must consult with the Registrar on matters that affect both offices. Thus far, no such regulations have been promulgated.

the office of the prosecutor



. Article . reads: The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilities and other resources thereof. The Prosecutor shall be assisted by one or more Deputy Prosecutors, who shall be entitled to carry out any of the acts required of the Prosecutor under this Statute. The Prosecutor and the Deputy Prosecutors shall be of different nationalities. They shall serve on a full-time basis.

This paragraph of article  assures the supremacy of the Prosecutor in the management of the Office and in the conduct of its affairs. His power is all-embracing, extending to both the management and administration of the Office. Deputy Prosecutors may exercise the functions of the Prosecutor but their authority is not writ large. It is subject to the overall authority of the Prosecutor. Delegation of authority by the Prosecutor is necessary for the exercise of the powers and duties of the Prosecutor by members of the staff while the Deputy Prosecutor is empowered by law to carry out the duties of the Prosecutor when need arises. What must be clarified is that Deputy Prosecutors shall assist the Prosecutor in the discharge of his/her duties, invested with power to carry out any of the duties of the Prosecutor under the Statute. To “assist” means to render help and support where needed. The Prosecutor is the one who may enlist the support of his/her deputies. Here we are not confronted with delegation of authority necessary for the discharge of the duties of the Office of the Prosecutor by members of the staff, without which they cannot assume authority to carry out such tasks, because the Deputy Prosecutor is, by law, invested with the powers of the Prosecutor. However the exercise of such duties is dependent on the Prosecutor invoking the assistance of the services of a Deputy Prosecutor. . Article . reads: The Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases. They shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.

Emphasis is laid on practical experience in the prosecution or trial of criminal cases. Experience in the investigatory process, relevant as it may be to the discharge of the duties of the Prosecutor, is not identified as an indispensable qualification. What counts is experience in the prosecutorial field. “Trial experience” in criminal cases is not qualified by prosecutorial tasks, but may equally, if not more so, derive from judicial experience, qualifying judges for the position of the Prosecutor or Deputy Prosecutor. Experience in the prosecutorial field envisaged by this provision of article  must be extensive. “Extensive” in



chapter eight

this context denotes widespread experience that can only be gained by practice in the relevant field over a lengthy period of time. . Article . provides: The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election.

The term of office of both the Prosecutor and the Deputy Prosecutors is the same as that of judges, nine years, the holders becoming, after its expiration, ineligible for re-election. To be elected, the Prosecutor and the Deputy Prosecutors must receive an absolute majority of the members of the Assembly of States Parties. “Absolute majority” signifies the majority of all States entitled to vote, not only those taking part in the voting. This is in contrast to judges, who must receive a two-thirds majority of States present and voting.508 The term of office of either the Prosecutor or the Deputy Prosecutor may be shortened by the Assembly of States Parties. Any such decision must be taken again by an absolute majority of the members of the Assembly. If chosen for a term shorter than nine years, again they will be ineligible for re-election. . Paragraph  of article  and paragraph  of article , sequentially provide: . Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence. They shall not engage in any other occupation of a professional nature. . The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her request, from acting in a particular case.

The provisions of article . aim to ensure, as in the case of judges and in identical terms, the independence and impartiality of the Prosecutor and the Deputy Prosecutor in the discharge of their investigatory and prosecutorial duties. They must be above any appearance of bias. Neither of them should engage in any activity likely to (a) interfere in their prosecutorial functions, or (b) affect confidence in their independence. Investigatory functions are not specifically itemised, but may be deemed to be included as they provide the 508

See article .(a).

the office of the prosecutor



foundation of a prosecution. The word “interfere” in the above context encompasses activities that may hinder or impede the unobstructed discharge of investigatory and prosecutorial duties. Sustenance of confidence in the independence of the Prosecutor and the Deputy Prosecutor requires abstention from any activity that may justifiably leave the impression in the mind of a reasonable onlooker acquainted with the facts that they lack the attributes of impartiality. Like judges serving on a full-time basis, the Prosecutor and Deputy Prosecutor should not engage in any other professional duties; in ordinary parlance, in any other occupation or any work that could objectively distract them from their duties. . As in the case of judges, the Prosecutor or Deputy Prosecutor must request their recusal from acting in any case that may expose to doubt or raise question marks about their independence. They must do so without waiting for a request for their disqualification.509 The field of action is not limited, as in the case of article ., to prosecutorial functions. It extends to every activity within the range of their authority. The Prosecutor and Deputy Prosecutors must be vigilant in seeking their recusal, safeguarding thereby faith in the independence and impartiality of their office. If the Prosecutor recuses himself/herself, inevitably the Deputy Prosecutor must step in, assuming the functions of the Prosecutor. . The body responsible for excusing the Prosecutor and Deputy Prosecutor from the discharge of duties is, as in the case of judges, the Presidency. Rule  enumerates grounds for the disqualification of the Prosecutor and Deputy Prosecutors similar to those applicable to judges, to which we have earlier referred in the chapter on the judiciary. The grounds specified therein are not exhaustive. Any ground tending to objectively compromise the independence and impartiality of the Prosecutor may provide room for his/her disqualification. A request by the Prosecutor to be recused is governed by the provisions of rule . . Article . reads: Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground. They shall be disqualified from a case in accordance with this paragraph if, inter alia, they have previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.

509

See rule .



chapter eight

The grounds for the disqualification of the Prosecutor or Deputy Prosecutor are similar to those prescribed by article .(a) for the disqualification of judges. Sequentially, the analysis of article .(a) with regard to judges finds equal application in the case of the Prosecutor and Deputy Prosecutor. Like the judges, the Prosecutor or Deputy Prosecutor must be free of bias; real or apparent. A reasonable onlooker is one acquainted with the facts surrounding the issue, guided by reason in forming an opinion or belief, or in arriving at a conclusion. The exacting standards of impartiality applicable to judges are warranted in the case of the Prosecutor too, given the impartiality expected of him/her in the gathering of evidence (article .(a)) and his duty to respect the rights of every person likely to be affected by the discharge of prosecutorial duties. The Prosecutor must meticulously observe and attend to the rights of the person under investigation and those of the accused (articles  and , and rule .). What is required of the Prosecutor is to act like an officer of justice in every sphere of action within his authority. . In contrast to article .(a), no provision is made that grounds of disqualification additional to those specified in article . may be provided for in the Rules of Procedure and Evidence. Nevertheless, rule  stipulates additional grounds of disqualification applicable to both judges, the Prosecutor and Deputy Prosecutor. The extension of legislative authorisation conferred by article .(a), to the Prosecutor or Deputy Prosecutor in no way conflicts with the Statute. On the contrary, it is perfectly compatible with its spirit as well as the objects and purposes of article .. . Article . provides: Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber; (a) The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor or a Deputy Prosecutor on the grounds set out in this article; (b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter.

As in the case of judges, persons being investigated or the accused may seek the disqualification of the Prosecutor or Deputy Prosecutor(s). There is no time limit for requesting the disqualification of either. The Statute does not specify who may request the disqualification of the Prosecutor or Deputy Prosecutor. We may infer that, as in the case of judges, the persons who may seek the disqualification of the Prosecutor or a Deputy Prosecutor are those affected, or likely to be affected, by their actions; namely persons investigated or prosecuted. Article .(b) assures to the Prosecutor and Deputy Prosecutor, as in the case of judges, the right to present their comments on the issue

the office of the prosecutor



of disqualification. Unlike disqualification of judges, which is decided by an absolute majority of the judges of the Court (article .(c)), disqualification of the Prosecutor or any Deputy Prosecutor is decided by the Appeals Chamber, exercising in this respect a species of original jurisdiction. . Article . reads: The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.

This provision of the Statute is indicative of the multitude of disciplines with which the Office of the Prosecutor must be endowed. The protection of victims of sexual violence and children who are victims of violence is underlined in this context too. The Prosecutor and Deputy Prosecutor(s) are liable to removal from office for the same reasons as judges are liable to be removed, that is, for serious misconduct, serious breach of duty or inability to exercise their functions. A decision for the removal of the Prosecutor lies with the Assembly of States Parties to be taken by a secret ballot. Unlike judges, in whose case a twothirds majority of the States Parties is required, in the case of the Prosecutor and Deputy Prosecutor(s) only an absolute majority of the States Parties is envisaged. The decision to remove the Prosecutor need not be preceded by the prior recommendation to that end of any body, which is the case with judges. The Deputy Prosecutor may be removed by an absolute majority of the States Parties upon the prior recommendation of the Prosecutor to that effect. . In accordance with article , the Prosecutor and Deputy Prosecutor are liable to disciplinary measures for misconduct of a less serious nature; that is for misconduct that does not merit their dismissal from office under article ., as provided for in the Rules of Procedure and Evidence. The disciplinary measures are the same as those applicable to judges. They are specified in rule  being a) reprimand, or b) a pecuniary sanction not exceeding six months salary. Disciplinary sanctions against the Prosecutor may be decided by an absolute majority of the Bureau of the Assembly of States Parties. In the case of a Deputy Prosecutor, a reprimand may be administered by the Prosecutor, whereas any decision for the imposition of a pecuniary sanction can be taken by an absolute majority of the Bureau of the Assembly of States Parties, upon the prior recommendation of the Prosecutor.510

510

See rule .



chapter eight II. Privileges and immunities of Judges, the Prosecutor, Deputy Prosecutor(s), the Registrar and Other Persons

. The judges, the Prosecutor, the Deputy Prosecutor and the Registrar enjoy, in accordance with article ., the same privileges and immunities as are accorded to heads of diplomatic missions and shall continue to be accorded “immunity from legal process of every and in respect of words spoken or written and acts performed by them in their official capacity” after the expiry of their term of office. . Article . provides: The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court.

. Counsel, experts, witnesses and any person required to be present at the seat of the Court shall be accorded such treatment as necessary for its proper functioning in accordance with the agreement on the privileges and immunities of the Court (article .). The States Parties to the Rome Statute agreed on the privileges and immunities of the International Criminal Court at the first session of the Assembly of States Parties, held on  September .511 The agreement was stipulated to come into force after the deposit with the Secretary General of the tenth instrument of ratification, acceptance, approval or accession, which occurred on  July . In the preamble to the agreement it is recounted: “[w]hereas article  of the Rome Statute provides that the International Criminal Court shall enjoy in the territory of each State Party to the Rome Statute such privileges and immunities as are necessary for the fulfillment of its purposes.” The agreement details the privileges and immunities to be enjoyed by the following categories of persons; (a) judges, the Prosecutor, Deputy Prosecutors and the Registrar, (b) the Deputy Registrar, staff of the Prosecutor and staff of the Registry, (c) personnel recruited locally and not otherwise provided for by the agreement, (d) counsel and persons assisting defence counsel, (e) witnesses, (f) victims, (g) experts, and (h) other persons required to be present at the seat of the Court. In accordance with the provisions of article  of the agreement, a State Party may limit privileges and immunities of nationals or permanent residents of the country while in the territory of that

511

ICC-ASP// (Post II-E), adopted  September , entered into force  July .

the office of the prosecutor



State in the manner specified therein. This may be effected by a declaration to that end at the time of signature, ratification, acceptance, approval or accession to the Statute. . In accordance with article ., the privileges and immunities may be waived as follows: (a) in the case of a judge or the Prosecutor, by an absolute majority of the judges, (b) in the case of the Registrar, by the Presidency, (c) in the case of the Deputy Prosecutors and staff of the Office of the Prosecutor, by the Prosecutor, and (d) in the case of Deputy Registrar and the staff of the Registry, by the Registrar.

III. Investigations . Article  . Article  defines the duties and powers of the Prosecutor with respect to investigations. Article .(a) provides that the Prosecutor shall: In order to establish the truth, extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.

Search for the truth ought to be the guide of the Prosecutor in the conduct of investigations; the beacon mapping his/her course of action. The Prosecutor must endeavour to trace every fact and piece of evidence in an honest effort to gather everything that may shed light on the commission of a crime, the circumstances surrounding it and the criminal responsibility of any person for its commission. The investigation must not be one sided. It must bring to light every fact relevant to the liability of a person; incriminatory as well as exculpatory. The impartiality expected of the Prosecutor is total and absolute. Unearthing the truth is his/her task. . Article .(b) provides that the Prosecutor shall: Take the appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses, including age, gender as defined in article , paragraph , and health, and take into account the nature of the crimes, in particular where it involves sexual violence, gender violence or violence against children.

The investigation and prosecution of a crime, effective as it must be, must not in any way override the interests and needs for protection and support of



chapter eight

victims and witnesses as their personal circumstances may warrant, especially the needs of victims of sexual violence or children who are victims of crimes of violence. . Article .(c) provides that the Prosecutor must “Fully respect the rights of persons arising under this Statute.” The rights of persons under investigation and those of the accused under articles ,  and rule . must be scrupulously respected. In its judgment of  December ,512 the Appeals Chamber underlined: Where the breaches of the rights of the accused are such as to make it impossible for him/her to make his/her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed.513

. Sequentially, the court added: Unfairness in the treatment of the suspect or the accused may rupture the process to an extent making it impossible to piece together the constituent elements of a fair trial.514

. Another passage from the same judgment highlights the implications of breaches of the rights of the person investigated, or the accused. It says: Where fair trial becomes impossible because of breaches of the fundamental rights of the suspect or the accused by his/her accusers, it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped.515

. In its subsequent judgment of  October ,516 the Appeals Chamber adhered to its earlier judgment of  December  as to the implications of breaches of the rights of the person under investigation or the accused. In the judgment emphasis is laid on the provisions of article .(c) of the Statute binding the Prosecutor to “fully respect the rights of persons arising under the Statute in the conduct of the investigations”.517 It is, as laid down in article ., 512

Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article  () (a) of the Statute of  October ,  December  (ICC-/–/–). 513 Ibid., para. . 514 Ibid., para. . 515 Ibid., para. . 516 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC-/–/–). 517 Ibid. para. .

the office of the prosecutor



the duty of the Trial Chamber to ensure that the trial is fairly and expeditiously held518 and concurred with the following passage of the judgment under appeal: If, at the outset, it is clear that the essential preconditions of a fair trial are missing and there is no sufficient indication that this will be resolved during the trial process, it is necessary [ . . . ] that the proceedings should be stayed.519

In a separate opinion of a member of the court in the aforesaid case, attention is drawn to the fact that: The guarantee of a fair trial is not confined to the trial itself but extends to the preparatory processes preceding the trial, indeed to every aspect of the proceedings. This is affirmed by the judgment of the Appeals Chamber of  December , acknowledging that if the fabric of a fair trial is shattered before its commencement, no fair trial can be held. Attention may also be drawn to the provisions of article ()(d) of the Statute, making decisions involving issues that would significantly affect “the fair and expeditious conduct of the proceedings” a ground for stating an appellate issue for consideration by the Appeals Chamber.520

The obligations of the Prosecutor are not confined to persons under investigation and the accused, but extend to everyone upon whom rights are conferred by the Statute, such as victims, witnesses and persons who impart information on condition of confidentiality. . Article . provides: The Prosecutor may conduct investigations on the territory of a State: a) In accordance with the provisions of Part ; or b) As authorized by the Pre-Trial Chamber under article , paragraph (d).

Detailed provision is made in Part  of the Statute respecting State cooperation in the conduct of the Prosecutor’s investigation and the collection of evidence. Article  is indicative of the areas where States Parties are duty-bound to comply with requests for cooperation. Cooperation extends to every aspect of the investigatory and the prosecutorial process, including the tracing of persons, the questioning of witnesses, the collection of oral and real evidence as well as the exhumation and examination of grave sites. . Article .(d), as earlier noted, makes provision for authorisation of specific investigative steps in the territory of a State Party due to the unavailability or a break down of responsible authorities and/or its judicial system. It reads:

518 519 520

Ibid. para. . Ibid. para. . Ibid. para.  of the separate opinion of Judge Pikis.



chapter eight . In addition to its other functions under this Statute, the Pre-Trial Chamber may: [ . . . ] (d) Authorize the Prosecutor to take specific investigative steps within the territory of a State Party without having secured the cooperation of that State under Part  if, whenever possible having regard to the views of the state concerned, the Pre-Trial Chamber has determined in that case that the state is clearly unable to execute a request for cooperation due to the unavailability of any authority or any component of its judicial system competent to execute the request for cooperation under Part ;

. Article . identifies, albeit not exhaustively, the powers of the Prosecutor in conducting investigations. Paragraph (a) provides that the Prosecutor may “[c]ollect and examine evidence”. To “collect” means to gather, to assemble evidence, both oral and real, relevant to the commission of a crime. To “examine”, in this context, means, to elicit, to evaluate, to determine its provenance and test the authenticity of evidence. In the search for and the elucidation of evidence, no coercion or pressure of any kind must be applied. The free will of a witness must in no way be tampered or interfered with. This is prohibited by the law. A witness statement which is not the offspring of the free will of the maker may colour truth or hide aspects of it. Evidence extracted by force or coercion is an unreliable agent of truth. Rule  regulates how witness statements should be obtained and attested. A statement must record the place where it is taken, the persons attending the making of it, including counsel and the Prosecutor, or a judge, if present, as well as the date, time and place at which it is taken. Rule . provides: When the Prosecutor or national authorities question a person, due regard shall be given to article . When a person is informed of his or her rights under article , paragraph , the fact that this information has been provided shall be noted in the record.

. Article . establishes the framework within which a person may be questioned, with a view to obtaining his/her statement. It reads: In respect of an investigation under this Statute, a person: (a) Shall not be compelled to incriminate himself or herself or to confess guilt; (b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment; (c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and (d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.

the office of the prosecutor



Article . may justifiably be identified as a code of the rights of a witness. In the first place, a person cannot be detained for the purpose of obtaining a statement from him or her. No form of compulsion can be used for the purpose of extracting a statement from the person. The witness must be willing to give a statement and be questioned for the purpose of eliciting his knowledge with respect to an incident or incidents of which he is aware. The content of it must be the offspring of free will. The statement must record the words of a witness. If questioned in a language other than a language that the person fully understands and speaks, the assistance of an interpreter must be provided and, whenever necessary, translations of the questions in a manner ensuring that he/she understands them before giving answer thereto. The witness has the right to refuse to answer any question that may incriminate him or her without having to give reasons for the refusal. Violation of the rights of a witness assured by article . will taint the statement as involuntary and derate its evidential value. The same rules apply to the questioning of a witness whether conducted by the Prosecutor or national authorities. . The provisions of article . blunt, to an extent, differences between a person questioned because of his knowledge of events and a person questioned who is believed to have committed a crime within the jurisdiction of the Court. The questioning of a person believed to be involved in the commission of a crime is governed by the provisions of article ., which reads: Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part , that person shall also have the following rights of which he or she shall be informed prior to being questioned: (a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court; (b)To remain silent, without such silence being a consideration in the determination of guilt or innocence; (c) To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and (d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

The right to silence, including refusal to answer any question is assured to the person as a right that he or she can exercise without fear of consequences. Choice of silence is not an incriminating factor; directly or indirectly. The right



chapter eight

to legal assistance is assured without charge if the person is impecunious. Also, the right to be questioned in the presence of counsel is assured to the person believed to be involved in the commission of a crime to be questioned in the presence of counsel, unless the vestee waives it. The implication is that the person has the right to be questioned in the presence of counsel unless the right is voluntarily waived. The process of questioning a person believed to have committed a crime within the jurisdiction of the court is addressed by rule .. A person against whom a warrant of arrest has been issued, or a summons to appear before the Court, is included amongst the persons believed to be involved in the commission of a crime. The questioning of persons, and answers thereto, will be audio- or video-recorded. The person must be informed of these rights and have amenity to communicate with his or her counsel in private before answering. If the person refuses to be audio- or videorecorded, the procedure in rule  shall be followed. The reasons making it impossible, where that is the case, to audio- or video-record a statement must be recorded. The person to be questioned must be informed, in the first place, that there are grounds to believe that he / she has committed a crime within the jurisdiction of the Court, and, in the second, that he/she can remain silent without silence counting in the determination of guilt or innocence. The person must also be apprised of his right to be questioned in the presence of counsel unless this right is waived. The questioning of a person should not commence in the absence of counsel unless the right is waived by the vestee. There must be a meticulous record of the process of questioning, including interruptions occasioned in the course of it. At the end of the questioning, the person shall be offered the opportunity to clarify his or her answers, or add anything thereto. If the statement is taken under the provisions of rule , the person must be provided with a copy of the statement. Where the interview is taped, an original copy of the tape must be sealed in the presence of the person questioned and counsel. . Rule . allows the questioning of any person through technical means with the authorisation of a Chamber where “the use of such procedures could assist in reducing any subsequent traumatisation of a victim of sexual or gender violence, a child or a person with disabilities in providing their evidence”. The Pre-Trial Chamber, as provided in rule ., may authorise that measures taken under article . should conform to the provisions of rule . As in the case of rule , likewise under rule , both the Prosecutor and national authorities should strictly adhere to the provisions of these rules.

the office of the prosecutor



In its decision of  May ,521 the Appeals Chamber held, by majority, that information relevant to the location of the interviews and the identities of persons present at the questioning may be redacted. The following passage from the judgment is indicative of the approach of the court: The Appeals Chamber observes that rule () provides generally for the nondisclosure of “information” without excluding per se certain categories of information from non-disclosure. Similarly, rule () does not expressly rule out the information referred to in rule () from its ambit. The Appeals Chamber therefore concludes that it will have to be determined on a case-by-case basis whether the non-disclosure of information that is required to be recorded pursuant to rule () may be authorized by a Chamber. This will be determined in light of the conditions stipulated by rule () and/or () of the Rules.522

A contrary view is taken in the dissenting opinion of a member of the court for, inter alia, the following reasons: The obligation to keep a record of the circumstances surrounding the making of a written statement in the course of the investigations is not a mere formality but an essential element of the statement itself. It indicates that the statement was taken according to law and as such it has the attributes of authenticity required thereby. Stripped of these attributes, the statement forfeits the character attached to it by law; it is denuded of information that illuminates its provenance.523

. Article .(b) itemises the measures that may be taken for the collection and examination of evidence. It reads: Request the presence of and question persons being investigated, victims and witnesses;

It must be underlined that the operative term in this provision of the Statute is “request”. The foremost meaning of “request” is to ask for or petition for something.524 This is the meaning that should be attached to the term in this context, bearing in mind the rights of a witness under article .. The prospective witness is not subject to any sanctions for failing to respond to the request. Paragraph .(c) provides: Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate;

The power entrusted to the Prosecutor by this provision of the law relates to the authority vested in the Court by the provisions of article .(a), i.e. to seek the 521

Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to redact Witnesses Statements”,  May  (ICC-/–/–). 522 Ibid. para. . 523 Ibid. para.  of the dissenting opinion of Judge Pikis. 524 Concise Oxford English Dictionary, (Vol. II, th ed.), p. .



chapter eight

cooperation of a non-state party on the basis of an ad hoc arrangement or an agreement, and the power likewise conferred upon the Court by article ., notably to ask any intergovernmental organisation to provide information or documents. Sub-paragraph (d) of article  is a sequel to the preceding paragraph, specifically empowering the Prosecutor to “[e]nter into such arrangements or agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person.” In accordance with rule , whenever it is considered necessary, the Prosecutor may enter into such an arrangement or agreement and may seek the authorisation of the Pre-Trial Chamber to take such measures in the territory of a State Party. The Pre-Trial Chamber shall, whenever possible, inform the State Party of the application and invite her views on the subject. The views of the State Party shall be taken into account in determining the issue before it. Moreover, the Pre-Trial Chamber may, on its own accord, or, at the invitation of a State Party, hold a hearing for the purpose. . Article .(e) is a provision with far reaching implications. It provides that the Prosecutor shall: Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents;

What may be obtained in confidence are “documents or information”. A written record, of any kind or content, answers to the description of a “document”. “Information” is a communication passing knowledge about the existence or probable or possible existence of a fact or occurrence. The document or information passed must contain material apt to generate new evidence. The concept of generation of new evidence is not confined to clues as to evidence that may be forthcoming, but extends to evidence that may come to the fore in the process of investigation. By way of example, a letter containing allegations about the occurrence of an event may generate evidence by seeking a statement from a person who has knowledge of the facts under rule  in much the same way as persons who witnessed the commission of a crime, named in a document, may be invited to give a statement. . Rule . recapitulates the provisions of article .(e). In accordance with rule ., if the Prosecutor or the accused calls a witness to introduce material or information protected under article .(e), the Chamber “may not compel that witness to answer any question relating to the material or information or its origin, if the witness declines to answer on grounds of confidentiality.” Fur-

the office of the prosecutor



thermore, where the Prosecutor or the accused introduces material or information received in confidence under article .(e), the Chamber should refrain from ordering the witness to provide additional material or information to that already disclosed to the court. The effect of rule . is to empower the Prosecutor or the accused to introduce selectively evidence obtained in confidence. Rule . safeguards the right of the accused to challenge the evidence of a witness disclosing confidential material, or information subject to the limitations of rule . and . Lastly, rule . provides that sub-paragraphs ,  and  of the same rule are applicable where the accused introduces evidence obtained in confidence. . The interpretation and limitations to the invocation of article .(e) came up for consideration by the Appeals Chamber in its judgment of  October .525 The court determined that article .(e) cannot be read or applied in isolation, nor can it be divorced from the fundamental obligation of the Prosecutor to respect, in the conduct of the investigations, the rights of persons under the Statute; amongst them those of the accused safeguarded by article . requiring disclosure to the defence of “exculpatory material” in the broad sense that this term carries in the context of this provision of the Statute. The court rejected the submission of the Prosecutor that article . is inapplicable to material obtained under the provisions of article .(e). The entrenchment of the rights of the accused in the trial process is fundamental to the holding of a fair trial. In the event of failure of the providers to consent to the disclosure of material and information given to the Prosecutor in confidence, the Chamber will have to determine, in the first place, whether any counterbalancing measures can be taken to ensure that the rights of the accused are protected, “and that the trial is fair, in spite of the non-disclosure of the information”.526 The following remarks from the majority judgment of the court are suggestive of its approach to article .(e) and the implications of sustenance of the rights of the suspect or the accused: Undoubtedly, article  () (e) of the Statute may be an important tool for the Prosecutor in the conduct of his investigations, which often will take place in challenging circumstances. The Appeals Chamber accepts that the Prosecutor, when receiving material on the condition of confidentiality, may not be able to

525

Prosecutor v. Lubanga Dyilo, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article ()(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on  June ”  October  (ICC-/–/–). 526 Ibid., para. .



chapter eight predict with certainty how this material can be used. Nevertheless, the use of article  () (e) of the Statute must not lead to breaches of the obligations of the Prosecutor vis-à-vis the suspect or the accused person;527

In a separate opinion of a member of the court, it is pointed out that the obligation to disclose exculpatory evidence, imposed by article ., is not confined to the trial, but extends to the confirmation hearing. Another passage which may be cited from the same opinion regarding the ambit of article .(e) is the following: Article ()(e) of the Statute does not in terms prescribe either the nature and content or the character of documents or information that the Prosecutor may receive in confidence. The only limitation is that the documents and the information received should be collected solely for the purpose of generating new evidence. The Prosecutor cannot receive such material for any other purpose.528

Disclosure of exculpatory evidence under article ., it was said in the same opinion, is the right of the accused and the corresponding duty of the Prosecutor, the non-discharge of which justifiably led the Trial Chamber to stay the proceedings; a stay dictated by the resulting impossibility to hold a fair trial. The Appeals Chamber upheld the decision of the Trial Chamber to stay the proceedings. . Article .(f) reads: Take necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information, the protection of any person or the preservation of evidence.

This provision of the law empowers the Prosecutor to take in his own right, or after the authorisation of the court, measures necessary for the protection of a) the confidentiality of information, b) the protection of any person, and c) the preservation of evidence. Measures within the power of the Prosecutor may be taken by himself or herself without requesting the assistance of any other organ of the Court. Recourse to the Court may be had in pending proceedings for sanctioning measures necessary for the promotion of the ends of the provision of article  under consideration. The interpretation of this provision of the law was the subject of the judgment of the Appeals Chamber of  May .529 The question at issue was whether the court could sanction, at the instance of the Prosecutor, protective 527

Ibid. para.  [footnote omitted]. Ibid. para.  of the separate opinion of Judge Pikis. 529 Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to redact Witnesses Statements”,  May  (ICC-/–/–). 528

the office of the prosecutor



measures under rule . for the protection of the safety of persons other than those named therein, namely witnesses, victims and members of their families. The court held, by majority, that power to offer protection extended, in addition to the aforementioned classes of persons, to “persons at risk on account of the activities of the Court”, in virtue, inter alia, of the provisions of article .(f). Article ., making provision for the establishment of a Victims and Witnesses Unit, was another provision relied upon in support of the interpretation adopted by the court. The danger against which persons should be protected, as stated in the same judgment, “must involve an objectively justifiable risk to the safety of the person concerned”.530 In deciding whether protection should be offered, the Court should balance “the various interests at stake, the Pre-Trial Chamber must make sure that adequate safeguards are in place to protect the interests of the suspect so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms”.531 In the opinion of the dissenting member of the court,532 article .(f) does not, by its provisions, prescribe protective measures other than those specifically provided for by the relevant provisions of the Statute and the Rules of Procedure and Evidence. Consequently, it could not be construed as expanding the class of persons who may receive protection under the provisions of rule .. At issue before the court was whether there was power to redact from witness statements the names of persons attending the taking of the statement. In the opinion of the dissenting member, article . articulates the powers of the Prosecutor in the investigatory process. It does not confer power to the court to make redactions of witness statements for persons other than those specified in rule .. Moreover, redactions of the names of persons attesting the interview from the statement as the dissenting member of the court opined, would be offensive to the provisions of rule ., requiring a record of those present as a necessary element for the authenticity of the statement. In yet another decision of the Appeals Chamber of the same date,533 the court decided by majority that the names of persons referred to in witness statements could be redacted pursuant to the provisions of rule .. The reasoning of the judgment both of the majority and minority treaded along the lines earmarked in the previous decision of the same date.

530

Ibid. para. . Ibid. para. . 532 Judge Pikis. 533 Prosecutor v. Katanga/Chui, Judgment on the appeal of Mr Germain Katanga against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorization to Redact Witness Statements”,  May  (ICC-/–/–). 531



chapter eight IV. Proprio Motu Investigations by the Prosecutor

. Article . provides: The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

The information may derive from any source, not necessarily from a person or a body specifically informing or apprising the Prosecutor of the commission of a crime, or crimes, within the jurisdiction of the Court. The Prosecutor may initiate the investigation of crimes within the jurisdiction of the Court brought to or coming to his / her knowledge or notice from any source. This is, by far, the most consequential power conferred upon the Prosecutor, intended to enable him / her to monitor worldwide crimes within the jurisdiction of the Court and undertake investigations thereafter with a view to determining whether an official investigation should be opened with the sanction of the Court. Article  is designed to confront any reluctance on the part of States or the Security Council to refer situations to the Court where crimes within its jurisdiction have been committed for political, diplomatic or reasons unassociated with the application of the Statute. It is a provision designed to sustain the supremacy of the law bringing to memory the aphorism of Thomas Fuller that however high one may stand, the law is high above him. . Information received or coming to the notice of the Prosecutor about crimes within the jurisdiction of the Court must, as provided in article .(b), be “substantiated”. The non-substantiation of the information does not relieve the Prosecutor of the duty to seek further information from the information provider(s), be it an individual, a collective body or the press. The Prosecutor must endeavour to elicit the basis of the information and the facts founding and supporting it, if any. . Article . provides: The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

The Prosecutor is bound to analyse the seriousness of the information received. The word “seriousness”, in this context, requires examination of the material giving rise to the information, its foundation and reliability. In the process of this preliminary investigation, the Prosecutor may obtain statements from

the office of the prosecutor



witnesses, as rule . confirms. Statements may be obtained both from persons appearing to have knowledge of the facts founding the crime(s) as well as persons appearing to be involved in the commission of a crime within the jurisdiction of the Court, in accordance with the procedure laid down in rules  and . Rule . provides that where there is a “serious risk” that it may not be possible for the testimony to be taken subsequently, the Prosecutor may request the Pre-Trial Chamber to approve necessary measures for the efficacy of the process and the protection of the rights of the defence, including the appointment of “counsel or a judge from the Pre-Trial Chamber” to be present at the taking of the testimony. The presence of counsel or a judge is intended to assure that questioning follows the process ordained by law. Rule  adverts to the protection of the confidentiality of information and testimony received under article , paragraphs  and . It reads: Where information is submitted under article , paragraph , or where oral or written testimony is received pursuant to article , paragraph , at the seat of the Court, the Prosecutor shall protect the confidentiality of such information and testimony or take any other necessary measures, pursuant to his or her duties under the Statute.

Does this rule introduce another category of confidential material prohibiting disclosure of the material collected at all times, or, is the restriction confined to the non-disclosure of the source of the information; something that may encourage the passing, without fear, of information to the Prosecutor about the commission of crimes within the jurisdiction of the Court? The difficulty with such interpretation is that confidentiality extends to oral as well as written testimony received under paragraph . at the seat of the Court. Will such testimony be sealed with confidentiality, prohibiting the Prosecutor from subsequently disclosing it? Evidence such as may be collected under article . is not received in confidence. There is no such stipulation in the Statute. Moreover, rule , making provision for the reception of testimony under article ., in no way attaches a confidential character to what is said therein. One may therefore assume that the object of rule  in relation to testimony is to attach confidential character to it until the Prosecutor determines whether there is a reasonable basis to proceed with an investigation. If a basis is provided, there is no restriction to disclosing it to the defence and the Court. . Article . reads: If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.



chapter eight

Rule  establishes the criteria that should guide the Prosecutor in coming to a decision whether to seek the authorisation of an investigation. The criteria are those laid down in paragraph (a)to (c) of article , to which we have earlier referred.534 They revolve around the existence of reasonable grounds to believe that crimes within the jurisdiction of the Court have been committed, not whether any particular person or persons have committed a crime within the jurisdiction of the Court. An investigation is justified if, from the material collected, it can be fairly inferred that a crime, or crimes, within the jurisdiction of the Court have been committed. A second consideration is whether the case is or would be admissible under article , as provided in article .(b), to which reference has already been made. . Article .(c) prescribes one other consideration to be taken into account in determining whether to proceed, notably, the interests of justice. The Prosecutor may refrain from seeking authorisation for the investigation of the case if there are “substantial reasons to believe that an investigation would not serve the interests of justice”, a provision earlier analysed. A decision of the Prosecutor not to proceed with an investigation taken pursuant to article .(c) must be duly notified to the Pre-Trial Chamber. This is the inescapable inference from the provisions of rule . Thereupon, the Pre-Trial Chamber may review the decision as provided in article .(b). Unlike article .(a), the remit of article .(b) is not confined to referrals of situations made by States Parties and the Security Council. It would be strange if different standards applied for not initiating an investigation depending on the origin of the information leading to the preliminary inquiry of the Prosecutor. The criteria laid down in article .(c) for not embarking on an investigation are the same in both cases. . It must be noticed that the test for seeking authorisation for an investigation under article .(a) turns on the existence of a “reasonable basis to proceed”. A question arises as to whether there is any material difference between the above term and the corresponding term used in article ., notably “reasonable grounds to believe”. To my mind, the answer is in the negative. “Grounds” are what provide the basis for a proposition. “Grounds” and “basis” in the context under consideration are synonymous terms. . The request of the Prosecutor for authorisation of an investigation must be accompanied and supported by the material providing the basis for the investigation.

534

See supra paras – and infra paras –.

the office of the prosecutor



. Article . assures victims a voice in the proceedings for the initiation of an investigation into a situation coming to the knowledge of the Prosecutor. Rule , envisions notification to victims and their legal representatives of proceedings affecting them, finds no application to proceedings under Part  of the Statute, to which article  belongs. The gap is filled by rule , binding the Prosecutor to inform victims known to him or their legal representatives, and the Victims and Witnesses Unit, of the proceedings unless he/she decides “that doing so would pose a danger to the integrity of the investigation or the life or well-being of victims and witnesses”. In that eventuality, the Prosecutor must seek to inform victims “by general means in order to reach groups of victims”. In so doing, he may seek the assistance of the Victims and Witnesses Unit. . Victims’ representations may be received within time limits set by the Regulations of the Court.535 Thereafter, power is acknowledged to the court to seek additional information from either the Prosecutor or from any of the victims who have made representations on the subject under consideration. If judged appropriate, the court may hold a hearing.536 The right of victims to make representations under article . is a distinct process, unrelated to article ., providing for victim participation in judicial proceedings before the Court. An interesting question is whether victims affected by the crimes to be investigated can seek participation in the proceedings under article .. Such a step would be superfluous as the observations of victims specifically provide the means for the expression of their views and concerns in relation to the sub judice issue. Moreover, the application of article . is confined to extant judicial proceedings whereas the subject-matter of proceedings under article . is the initiation of judicial proceedings. . Article . reads: If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

A two-fold test must be applied by the Pre-Trial Chamber in order to determine whether an investigation should be sanctioned. Firstly, whether the material placed before it does provide a reasonable basis to proceed with an investigation and, secondly, whether the case appears to fall within the jurisdiction of the 535 536

See rule . and regulation .. Reference has been made to this issue in a decision of the Court.



chapter eight

Court. With regard to jurisdiction, the definitive word of article . is whether the case “appears to fall within the jurisdiction of the Court”. This would so appear to be the case if the preconditions for the exercise of jurisdiction are visibly present. A decision of the Court on the matter shall, as explicitly laid down, provide no barrier to subsequent challenges to the jurisdiction of the Court to entertain a case or rule on its admissibility. Such a decision does not constitute a ruling on jurisdiction in the sense of article .. The obligation of the Court to satisfy itself that it has jurisdiction before dealing with “a case” is confined to proceedings having as their subject-matter a case raised against an individual for the commission of a crime within the jurisdiction of the Court. “Case” in the context of article  means “the state of affairs, the state of matters relating to a given person or thing, one’s circumstances or position; the actual state of affairs”.537 That this is the meaning that “case” carries in this connection, is reinforced by the provisions of article ., specifying the persons who may challenge the jurisdiction of the Court. The object of the investigation is to determine whether crimes within the jurisdiction of the Court have been committed and, if so, by whom. Consequently, the ruling of the Court respecting jurisdiction under article . is not a decision appealable under article .(a).538 . In accordance with rule ., a decision of the Court, under article ., authorising an investigation or rejecting wholly or in part the request of the Prosecutor to that end and the reasons supporting it must be notified to victims and, no doubt, to the Prosecutor. . Article . provides: The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation.

A distinction is drawn between “facts” and “evidence”. The term “evidence” in this context signifies statements of witnesses, whereas the term “facts” denotes events and occurrences coming to the knowledge of the Prosecutor, worthy of investigation. A misappreciation of facts or evidence meriting reappraisal as to their effect cannot justify a new request. The facts and evidence coming to light must have been previously unknown.

537 538

Shorter Oxford English Dictionary (on historical principles), th ed., Vol. I, p. . See supra para. .

the office of the prosecutor



. Authority is acknowledged to the Prosecutor under article . to seek the authorisation of an investigation following an initial rejection of such a request if new facts or evidence emerge or surface thereafter. A decision not to initiate an investigation, including the reasons supporting it, must be notified to the providers of the information, together with an intimation that they may submit further information about the situation if new facts or evidence emerge thereafter (rule ). Only recently has the Prosecutor in exercise of his proprio motu powers sought authorisation from the Pre-Trial Chamber to commence an investigation pursuant to the provisions of article . of the Statute. This occurred on  November  in relation to the “Situation in the Republic of Kenya”. In his application539 the Prosecutor makes detailed reference to the background of the case involving the commission of offences within the jurisdiction of the Court committed in the post election violence of  and . The information received is evaluated in light of the jurisdiction of the Court and the admissibility of a case as the subject of investigation under the provisions of the Statute. Broad reference is made to persons or group(s) of persons involved in the commission of the alleged offences and their character involving “a widespread or systematic attack directed against civilian population with knowledge of the attack”. At the time that these lines are drawn the application is pending before Pre-Trial Chamber II.

V. Article  . Referral of a situation by either a State party or the Security Council confers authority upon the Prosecutor to proceed with an investigation without the prior authorisation of the Pre-Trial Chamber. But, as in the case of article , the Prosecutor may refrain from so doing if he concludes that there is no reasonable basis to proceed with an investigation. The criteria that should guide the Prosecutor in determining whether an investigation should be initiated are set out in Article .. . Article . reads: The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no

539

Situation in the Republic of Kenya, Request for authorisation of an investigation pursuant to Article ,  November  (ICC-/–).



chapter eight reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether: a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; b) The case is or would be admissible under article ; and c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph c) above, he or she shall inform the Pre-Trial Chamber.

. Similar considerations should, as earlier noted, guide the Prosecutor in determining whether to request the authorisation of an investigation pursuant to the provisions of article .. Rule  provides that in evaluating the information made available to him, the Prosecutor shall analyse its seriousness and, in so doing, may seek additional information from States, international organisations, intergovernmental and non-governmental organisations as well as from any other source that he or she deems appropriate. The Prosecutor, as provided in rule , must notify in writing a decision not to initiate an investigation to the referring State or the Security Council. When a decision not to initiate an investigation is premised on the provisions of article .(c), the decision, together with the reasons underpinning it, must be promptly communicated to the Pre-Trial Chamber (rules . and ). . The information available to the Prosecutor covers every fact shedding light on the commission of a crime within the jurisdiction of the Court occurring in the context of the situation referred to the Prosecutor. . In the second place, the Prosecutor must determine whether the case “is or would be admissible” under article . The wording of article .(b), especially the use of the term “is” in this context and its juxtaposition to “would”, tends to suggest that the Prosecutor could obtain a ruling on admissibility before initiating an investigation. The provisions of article . of the Statute leave open the door to such a course, empowering the Prosecutor to seek a ruling from the Court “regarding a question of jurisdiction or admissibility”. In such proceedings a State/States or the Security Council who have referred a situation under article  as well as victims have a right to make observations on the issue of jurisdiction and/or admissibility. The right extends to the appellate process. Difficulties arise as to the interpretation of the word “case” in the context of article .(b). What a State Party or the Security Council may refer to the Prosecutor as the subject of an investigation is a situation in which one or more crimes within the jurisdiction of the Court have allegedly been committed. The word “case”, in a legal context, ordinarily signifies a civil or criminal proceeding,

the office of the prosecutor



action, suit or controversy at law.540 In the daily use of language, the word “case” attracts a multitude of meanings, including “the actual state of affairs”.541 It can be argued that the word “case” in the context of article .(b) is used in the latter sense, reflecting the state of affairs referred to the Prosecutor. Article , as its heading suggests and its content confirms, makes provision for preliminary rulings regarding admissibility. . Article . reads: When a situation has been referred to the Court pursuant to article (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles (c) and , the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States.

The need for notification envisaged by this provision of the Statute is warranted by the principle of complementarity. The object is not to assume jurisdiction if a case is investigated or prosecuted by a State having jurisdiction in the matter. . In accordance with article ., a State receiving notification of the impending course of action may, within one month, inform the Prosecutor that it is either investigating, or has investigated, “its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes within the jurisdiction of the Court”. The Prosecutor should defer to the State’s investigation unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorise the investigation. No distinction, it must be clarified, is made between investigations following referrals or investigations undertaken by the Prosecutor proprio motu. Article . confers a right upon the State concerned to appeal the ruling of the Pre-Trial Chamber authorising an investigation notwithstanding its claim that investigations are undertaken by the State in question. The right to appeal derives from the specific provisions of article ., not being identified as a distinct subject of an appeal by the provisions of article . Article . empowers the Prosecutor who has deferred investigations at the request of a State to monitor the progress of the investigation by requesting the State to periodically inform him or her of its progress and any subsequent prosecution(s). States are bound to respond to such requests “without undue 540 541

Blacks Law Dictionary, (th ed.); p. , see also supra para. . Shorter Oxford English Dictionary (on historical principles), (th ed., Vol. I.), p. .



chapter eight

delay”. The Prosecutor may review a situation arising after deferral within six months or “when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation” (article .). Significant for the purposes of interpretation of article .(b) are the provisions of article ., which read: A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article  on the grounds of additional significant facts or significant change of circumstances.

“Challenge” here signifies an appeal taken under article .. Reference is made again to a “case”, whereas the subject of article  is the fate of a referral. The right conferred upon a State in this connection seems to be confined to a State which has challenged a ruling of the Pre-Trial Chamber to authorise an investigation under article . by taking an appeal under article .. . Article .(c) provides: Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

The crucial word in the context of article .(c) is “nonetheless”, signifying that, notwithstanding the gravity of the offence and, in addition thereto, the interests of victims, the interests of justice do not warrant an investigation. Such reasons must be “substantial”, justifying the belief that an investigation would not serve the interests of justice. It is difficult to identify with any precision what such reasons may be. What is certain is that they must be of a character that outweighs or offsets the duty to pursue an investigation and bring those responsible for crimes within the jurisdiction of the Court to justice. The interests of justice are served, as a rule, by bringing the offenders to justice, while the need to do so becomes more pressing the more serious the crime is. Equality in the treatment of the offenders warranted by the provisions of article . leaves no room for distinguishing between criminals. Consequently, it is difficult to identify circumstances where the interests of justice could be served by not bringing the culprit to justice. The domain of justice is impersonal, untrammeled by considerations extraneous to its sustenance. . The addendum to paragraph .(c) requires the Prosecutor to inform the Pre-Trial Chamber of a decision not to proceed with an investigation pursuant to the provisions of article .(c), which may, on its own initiative, review a decision of the Prosecutor taken under its terms. The crucial question is whether the addendum applies to a decision of the Prosecutor not to seek

the office of the prosecutor



the initiation of an investigation following an initial investigation of substantiated information reaching him, pursuant to the provisions of article .. As earlier explained, rule  provides that in determining whether there is a reasonable basis to proceed with an investigation, the Prosecutor “shall consider the factors set out in article , paragraph (a) to (c)”. These are the criteria by reference to which the Prosecutor must come to his/her decision. To “consider” means to examine, assess and evaluate. They provide a guide, but not the only guide, in coming to a decision. Does the addendum to article .(c) apply to a decision of the Prosecutor not to seek an investigation under article .? Must the Prosecutor inform the Pre-Trial Chamber of any decision not to proceed with an investigation by reference to paragraph .(c)? Article .(a) confers a right upon a referring State, or the Security Council to seek a review of a decision of the Prosecutor taken under article .(c). No parallel right is conferred upon the person or body informing the Prosecutor of crimes within the jurisdiction of the Court to seek a review of his decision under sub-paragraph (c). Moreover, rule  does not make the provisions of paragraph .(a) to (c) applicable as such, in the context of article . On the other hand, rule  embraces the provisions of article .(a) to (c) as the determinative factors for the action of the Prosecutor under article . More consequentially, the provisions of article . are not in terms confined to a decision on the initiation of an investigation following a referral. The opening words of article . suggest the contrary, “the Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under the Statute”. A “reasonable basis to proceed” is also the test under article . for holding or refraining from holding an investigation. One may legitimately conclude that the addendum to paragraph .(c) is applicable to proceedings involving the proprio motu jurisdiction of the Prosecutor to proceed with or refrain from conducting an investigation pursuant to the provisions of article . The Prosecutor is therefore required to inform the Pre-Trial Chamber of any decision not to request authorisation for an investigation under . if founded on the provisions of article .(c). This understanding of the law is reinforced by the provisions of rule ., establishing a uniform procedure for the notification of any decision of the Prosecutor not to initiate an investigation, drawing no distinction between referrals and proprio motu investigations. Rule . reads: When the Prosecutor decides not to submit to the Pre-Trial Chamber a request for authorization of an investigation, rule  shall apply.

A corresponding power vests in the Pre-Trial Chamber to review on its on motion such a decision under the provisions of article .(b).



chapter eight

. Article . provides: If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: a) There is not a sufficient legal or factual basis to seek a warrant or summons under article ; b) The case is inadmissible under article ; or c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article  or the Security Council in a case under article , paragraph b), of his or her conclusion and the reasons for the conclusion.

. Evidently an application for the issuance of a warrant of arrest or summons to appear before the Court under article  is perceived or treated under the Statute as the commencement of a prosecution; rightly so considering the requisites for the issuance of a warrant of arrest or a summons to appear, especially the existence of evidential material giving rise to a reasonable belief that the person whose arrest is sought or whose appearance before the Court is required committed a crime within the jurisdiction of the Court. The term “sufficient basis” denotes evidential material that could justify the issuance of a warrant of arrest or the summoning of a person to appear before the Court. Under article .(b), inadmissibility is the criterion for not initiating a prosecution, whereas under article .(b) the test laid down “is or would be admissible”. . Paragraph (c), like paragraph (c) of article , empowers the Prosecutor to refrain from initiating a prosecution if, in his view, so to do would not be in the interests of justice. But, the factors by reference to which such a decision may be taken are different from those of paragraph (c). In the case of paragraph (c), the Prosecutor must evaluate the totality of circumstances of the case, beginning with the gravity of the crime. Crimes within the jurisdiction of the Court are, per se, grave. Gravity in the context of paragraph (c) refers to the seriousness of the offence, centering, as one may discern, on the element of intrinsic culpability and the consequences of the crime. The role of the offender in the commission of the offence is singled out as a distinct consideration. The marginal role of the offender in the commission of a crime no doubt lessens his/her culpability. The mental capabilities of the offender too, if not of a nature that absolves him/her of criminal responsibility, is another consideration bearing on his capacity to ponder the magnitude of the crime committed. In the second place, the Prosecutor must have regard to the interests of the victims, which, as a rule, are served by a prosecution, paving the way for reparations. The last consideration to which regard must be had is the age or infirmity of the alleged offender. The combination of the two factors in the

the office of the prosecutor



alternative tends to suggest that old age and youth, or disability often associated with old age, are factors to be reckoned with. . In the case of article .(b), the relevant criterion is inadmissibility under article . We may contrast this to the criterion envisaged in article .(b), “The case is or would be admissible under article ”. Is a ruling on inadmissibility a pre-requisite for not mounting a prosecution? Paragraph (b) does not in terms so provide. On the contrary, it is premised, as provided in the opening part of paragraph , on the conclusions of the Prosecutor. This does not free him or her from the responsibility of seeking a ruling on admissibility if the issue is not free of doubt. It is open to the Prosecutor to seek a ruling on admissibility pursuant to the provisions of article .. It must also be noted that the jurisdiction of the Court to take cognisance of a crime is not specifically postulated as a consideration in determining whether to mount a prosecution or not. This is of no consequence considering that the existence of jurisdiction to take cognisance of a case is a consideration relevant to both initiating an investigation (article .(b) and starting a prosecution (article .(a)). . Any decision not to prosecute by reference to paragraph (c) of article  must be brought to the notice of the Pre-Trial Chamber, and the State or the Security Council that made the referral, together with the reasons that led to it. A decision of the Prosecutor not to prosecute, taken under article .(c) must be promptly communicated to the Pre-Trial Chamber in writing, as well as to the State or the Security Council that referred the situation to the Court. Rule . provides: The notifications referred to in sub-rule  shall contain the conclusion of the Prosecutor and, having regard to article , paragraph , the reasons for the conclusion.

This provision is designed to underline the implications that a decision under article .(c) may have upon victims and witnesses, a subject that must be addressed and be explained by the Prosecutor in his/her decision. . A right vests in a State or the Security Council to seek the review of such a decision of the Pre-Trial Chamber, as provided in article .(a). As earlier indicated, the Pre-Trial Chamber may review decisions of the Prosecutor taken under paragraphs (c) and (c) of article  on its own motion, as provided in paragraph (b) of the same article. Provision for such notification is made in rule . Rule  makes provision for the fashioning of a request for the review of a decision of the Pre-Trial Chamber pursuant to article .(a). Thereafter the Pre-Trial Chamber may request the transmission of information or documents,



chapter eight

or summaries thereof, in the possession of the Prosecutor for the purposes of review. If an issue of jurisdiction or admissibility arises, the provisions of article . should be adhered to in the manner prescribed by rule . The Registrar must provide the referring State or the Security Council, subject to confidentiality, with a summary of the grounds on which jurisdiction and admissibility are challenged (rule .). Rule  lays down that a decision of the Pre-Trial Chamber under article .(a) “must be concurred in by a majority of the judges and shall contain reasons”, adding thereby an additional decision to those specified in article .(a), that must be taken up by the PreTrial Chamber en banc. As it emerges from the provisions of article .(a), upon review of a decision of the Prosecutor not to initiate an investigation or not to prosecute, the Pre-Trial Chamber may sustain the decision or “request the Prosecutor to reconsider that decision”. No power is conferred on the PreTrial Chamber to order the Prosecutor either to initiate an investigation or to prosecute. If the Prosecutor is asked to reconsider his decision, he or she must do so as soon as possible. But the Prosecutor is not bound to revise his / her earlier decision. A decision of the Prosecutor in response to the request of the court to reconsider his earlier decision does not appear to be reviewable at the instance of anyone. Subject to the provisions of article .(b), ultimate authority for either the initiation of an investigation or the mounting of a prosecution rests with the Prosecutor. His or her “final” decision must, as provided in rule , be communicated to the Pre-Trial Chamber in writing, and to those who participated in the review of the decision. . Rule  prescribes the framework within which the Pre-Trial Chamber may review on its own motion decisions of the Prosecutor not to initiate an investigation or start a prosecution under the provisions of articles .(c) and .(c). The Pre-Trial Chamber may decide to review such decisions within  days from the date of their communication to it. The intention of the Court to review such a decision must be communicated to the Prosecutor, who may, in response thereto, “submit observations and other material”. By virtue of the provisions of rule ., the submission of observations and other material may be requested of States or the Security Council seeking review of decisions of the Prosecutor pursuant to article .(a). Upon review of a decision by the Prosecutor under the provisions of article .(b) the Pre-Trial Chamber may confirm the decision or may not do so. In the latter case, the Prosecutor “shall proceed with the investigation or prosecution as the case may be”. In other words, the Chamber may reverse the decision of the Prosecutor. Rule  requires that the decision of the Pre-Trial Chamber must be concurred in by a majority of the judges, affirming that the Pre-Trial Chamber must undertake the review in full composition.

the office of the prosecutor



. Article . reads: The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.

. The term “new facts or information” embraces material emerging after the initial decision relevant to the holding of an investigation or mounting a prosecution. A change of stance on the part of the Prosecutor must be founded on information reaching him or coming to his knowledge after his earlier decision.542

542

See also article . and supra paras –.

chapter nine VICTIMS AND WITNESSES

I. Protection of Victims and Witnesses . The protection and support of victims and witnesses is a recurring theme of the Statute, the Rules of Procedure and Evidence and the Regulations of the Court. Victims are the immediate sufferers of crime putting them in a separate class of persons for purposes of law enforcement. More often than not, victims bear witness to events leading to or surrounding the commission of a crime or its aftermath. Witnesses are the persons whose testimony illuminates the scene and circumstances surrounding a crime, laying the ground for bringing those responsible to justice. . The aim of the Statute is to protect and support the two classes of persons regarded as vulnerable to risks at the instance of those likely to be exposed by the evidence of witnesses and held accountable for harm occasioned to victims. Their silence or disappearance from the scene is not beyond the designs of offenders and their accomplices. The protection of their safety and rights is in the interests of the law, propitious to the ends of justice. . The sustenance and support of the two categories of persons is a prominent feature of the Statute.543 Their safety and that of their families may be exposed to peril in a variety of circumstances, during the investigations of crimes and the prosecution of offenders. The Statute confers a right upon victims to seek reparations from persons convicted of offences that occasioned harm to them in accordance with article  and rules associated therewith. . For the support and protection of victims and witnesses, and ministration of their needs, article  provides for the establishment of a Victims and Witnesses Unit, known by its acronym, VWU. Article . reads: The Registrar shall set up a Victims and Witnesses Unit within the Registry. Thus Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counseling and other appropriate assistance 543

See article  and articles ., ., .(b), .(f), .(c), .(c) and (e).



chapter nine for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses. The Unit shall include staff with expertise in trauma, including trauma related to crimes of sexual violence.

The VWU is contemplated as a unit of the Registry. The services to be rendered must be provided, as specifically stated, “in consultation with the Office of the Prosecutor”, which is in a unique position to sense danger to victims and witnesses. What is envisioned is consultation, not agreement. The support to be provided by the Unit covers a wide spectrum, with emphasis being laid on the protection of witnesses and victims who appear before the Court, at risk on account of testimony given. The VWU must be equipped with expertise, especially in the area of trauma.544 The readiness of witnesses to provide testimony is fundamental for bringing suspects to justice. It may be regarded as the universal duty of man to attest criminal acts to which he/she is a witness. The protection is not intended to mitigate this duty, but to solidify its discharge by sheltering witnesses from foreseeable risks to their safety and that of their families. . Rule  defines the responsibilities of the Registrar respecting the management of the Unit. They include notification to victims and witnesses, or their legal representatives, of proceedings of interest to them, assisting them in obtaining legal advice and organising their legal representation as well as providing them with facilities for the protection of their interests at every stage of the process, including, in the case of victims, participation in the proceedings. Special provision is made for the legal support of victims of sexual violence and persons at risk on account of testimony given. The Unit is responsible for informing them of their rights and of judicial decisions that may impact on their interests. The Registrar may keep a register of victims. Rule  defines the functions of the VWU. Protective measures may be taken, in consultation with the Chamber, the Prosecutor and the defence, as may be appropriate. Specific provision is made for the support, comfort and protection of victims, their security and rights. These are enumerated in rule .(a) and (b). In the performance of these functions the Unit must heed the needs of vulnerable persons, such as children, elderly persons and persons with a disability. The responsibilities of the VWU and the framework within which it must function are identified in rule . Lastly, rule  specifies the expertise with which the Unit must be equipped in order to fulfill its mission, embracing expertise in practically every field relevant to the support and protection of victims and witnesses.

544

See article ., see also rule .

victims and witnesses



. The internal operation of the VWU and the responsibilities of the Registrar in ensuring its efficient functioning are regulated in Chapter III of the Regulations of the Registry, enacted pursuant to the provisions of rule . . Article . provides: The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counseling and assistance as referred to in article , paragraph .

This provision is, in many respects, a counterpart of the advisory function of the Prosecutor vis-à-vis the VWU conferring upon the latter an advisory role regarding the protection of victims and witnesses by the Prosecutor subject to this difference; whereas prior consultation with the Prosecutor is a prerequisite for the services of the Unit under article ., in the case of the VWU, its advisory role is discretionary. It “may” advise the Prosecutor, not “must”. . Article . is the foremost provision of the Statute identifying the powers of the Court in relation to victims and witnesses. It reads: The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article , paragraph , and health, and the nature of the crimes, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

The area of protection is wide, extending to every aspect of the being of victims and witnesses. By the provisions of this article, the Court is dutybound to take appropriate measures for their protection. The word “Court”, in the context of article ., embraces every organ of the ICC especially the departments trusted with responsibility to support and protect victims and witnesses. In the discharge of this duty, the Court must have regard to every factor impacting upon the safety and wellbeing of victims and witnesses. Some of these factors are enumerated, such as age, health, gender, and the nature of the crime, identified as elements foretelling the risk to which victims and everyone providing evidence of the circumstances of crimes, may be exposed to. The word “gender”, as specified in article , is used in a broad sense, encompassing members of both sexes. The vulnerability to risks of victims or witnesses on account of their traumatisation is another factor to which regard must be had. Victims of sexual or gender violence or children exposed to violence are singled out as a class meriting protection and support. Rape, sexual



chapter nine

abuse, forced pregnancy, sterilisation and forced removal of children from their families define a class of exceptionally vulnerable persons. The Prosecutor is bound by the provisions of article . to take measures for the protection of victims and witnesses during both the investigation and the prosecution of crimes of which persons are victims or which they have witnessed. . Article . is not the only provision of the Statute empowering the Prosecutor to take measures deemed necessary for the protection and support of victims and witnesses. Article .(f) authorises the Prosecutor to take, in the conduct of the investigations, necessary measures for the protection of any person, including, no doubt, victims and witnesses. In its judgment of  May ,545 the Appeals Chamber affirmed: Article ()(f), in relation to which the issue on appeal is specifically framed, expressly authorizes the Prosecutor to take necessary measures, or to request that necessary measures be taken, to ensure “the protection of any person” [emphasis added].

This article reveals that protection should, in principle, be available to anyone put at risk by the investigations of the Prosecutor. The approach of the dissenting member of the Court on the subject is to the same effect:546 Article ..f of the Statute articulates the powers of the Prosecutor in the investigatory process and steps that may be taken for the sustenance of its efficacy.

. Article . directly acknowledges the power of the Prosecutor to take “appropriate protective measures and make security arrangements” for victims and witnesses. Article .(b) binds the Prosecutor to respect, during the investigation, the interests, personal circumstances, and any special needs of victims and witnesses. Sub-paragraph (c) of article . obliges the Prosecutor to respect the rights of persons arising under the Statute, including, no doubt, those of victims and witnesses. . In its judgment of  November ,547 the Appeals Chamber ruled by majority that the Prosecutor has no power to relocate at his/her discretion a wit545

Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”,  May  (ICC-/–/–). 546 Ibid., para.  of the dissenting opinion of Judge Pikis. 547 Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the “Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article () of the Statute and Rule  of the Rules” of Pre-Trial Chamber I,  November  (ICC-/–/–).

victims and witnesses



ness judged to be in need of protection. Relocation can only be effected by the Victims and Witnesses Unit. In the case under appeal, relocation was effected by the Prosecutor after refusal of his request to the Victims and Witnesses Unit to relocate the witness. Dicta of the Appeals Chamber tend to suggest that the position may be different if relocation is made in response to an emergency. In necessitous circumstances the majority recognised that “by the very nature of emergency situations, there may need to be some degree of flexibility in this regard”, sequentially adding, “[t]he Appeals Chamber also cannot rule out that there may be situations in which temporary emergency measures may have to be taken by the Prosecutor in relation to a person for whom relocation is sought, in a situation of urgency. However, in the abstract and without a specific set of factual circumstances before it, the Appeals Chamber would not envisage such temporary measures to include the preventive relocation of a witness”.548 The minority549 came to a different conclusion, holding that the Statute confers power upon the Prosecutor to take protective measures as deemed necessary for the protection, safety and wellbeing of victims and witnesses. Attention is drawn to the provisions of article ., proclaiming the autonomy of the Prosecutor in the field of his responsibilities. The provisions of articles ., . and .(f) leave no doubt, according to the minority, as to the authority of the Prosecutor to take, on his own accord, protective measures of the nature prescribed by the Statute for the protection of victims and witnesses. The autonomy of the Prosecutor in the areas of his responsibility, established by article ., confers upon him freedom of action in the exercise of the powers vested in him by the provisions of articles ., . and .(f). . It is hard to reconcile the majority judgment in the above appeal with the earlier judgment of the Appeals Chamber of  May ,550 holding that article .(f) provided ground for the protection of persons at risk on account of activities of the Court. The subject under consideration was the propriety of the action of the Prosecutor withholding disclosure of the names of persons mentioned in witness statements, the revelation of which might expose them to risk. Non-disclosure was sanctioned at the instance of the Prosecutor, pursuant to the powers vested in him under article .(f).

548

Ibid., para. . Judge Pikis and Judge Nsereko. 550 Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to Redact Witness Statements”,  May  (ICC-/–/–). 549



chapter nine

. The proviso to article . that, whatever measures may be taken for the protection of victims and witnesses, they should not be prejudicial to the rights of the accused or impair a fair and impartial trial is a reminder that nothing can be ordered or be done outside the realm of a fair trial, or be incompatible with the rights of the accused. Nothing should be done apt to taint the testimony of a witness, or affect his/her availability to provide testimony. . The Rules elaborate on the nature and scope of protective measures and establish the parameters within which the jurisdiction of the Court may be invoked or exercised. Rule  recapitulates that in determining whether to sanction protective measures the needs of all victims and witnesses must be heeded, laying stress on the needs of children, elderly persons, persons with disabilities, and victims of sexual and gender violence. Protective measures may be authorised by the Court at the request of the parties, the Prosecutor or the defence, or at the request of victims or witnesses themselves, or their legal representatives. Moreover, the Court may, on its own motion, within the context envisaged by the rules, address the needs of victims and witnesses and provide necessary support. . The VWU may be consulted before the Court adjudicates on the measures to be taken. The consent of the subject of protective measures should, whenever possible, be sought, if not before the Court. As much is laid down in rule . The same rule regulates the procedural steps to be taken in pursuing protection, stipulating that they should conform, in addition to the provisions of rule  itself, to those of rule . The Court may hold an in camera or an ex parte hearing where publicity of the proceedings might frustrate its objects (rule .). Rule  makes provision for special measures that may be taken with a view to facilitating, whenever necessary, the testimony of traumatised victims or witnesses, especially traumatised children, elderly persons or victims of sexual violence. . Regulation  provides that the VWU may “draw any matter to the attention of a Chamber where protective or special measures under rules  and  require consideration”. . Article . reads: As an exception to the principle of public hearings provided for in article , the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a

victims and witnesses



victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.

In unqualified terms, the above provision of the law confers power to hold in camera proceedings whenever the protection of victims and witnesses so requires. In the alternative, the Court is empowered to allow the presentation of such evidence by electronic or other means. Exceptions to the basic norms of a fair trial must be strictly construed, confining their application to cases where adoption of protective measures coincides with the interests of justice in the particular case. Protective measures “shall be implemented” in cases of particularly vulnerable victims, such as victims of sexual violence and children unless the Court orders otherwise. These persons are prima facie entitled to, and should be accorded, protection unless the circumstances of the case, including the views of victims and witnesses themselves, warrant otherwise. . Article . creates an exception to the right of the accused under article  to a public hearing. The exception goes no further than that. Article . must be applied subject to the norms of a fair trial and the rights of the accused, especially the right to confront witnesses for the prosecution. Consequently, evidence submitted electronically must conform to the norms of a fair trial and the right of the accused to examine the witness. It is worth noting in this respect a recent decision of the highest court of England, the House of Lords, namely R v Davis,551 that addresses the significance of the right of the accused to confront witnesses for the prosecution. To begin, the House of Lords traces the history of the principle of confronting one’s accusers. The right originated, as Lord Bingham says, in Ancient Rome.552 The history of the subject is debated in two decisions of the Supreme Court of the United States,553 to which reference is made. The right to confront witnesses for the other side fell into disuse in continental Europe in the middle ages under the impact of the inquisition, and in England, for a time, in proceedings before the Court of Star Chamber, abolished by an act of Parliament in . At issue in the case before the House of Lords was the admissibility of the evidence of anonymous witnesses, which was rejected as contradictory both to English common law and the rights of man under the European Convention on Human Rights. Similar principles should apply in the interpretation and application of article . by virtue of the provisions of article .. 551

[]  All E.R. . Going further down in history, one may trace the existence of the same right under Athenian law, in Ancient Greece. 553 Coy v. Iowa ()  US  at –; Crawford v. Washington ()  US  at –. 552



chapter nine

. Article . reads: Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

The remit of this provision of the law is expressly confined to cases where the Prosecutor may found his case on written evidence, that is, witness statements. The Prosecutor may support his application for the issuance of a warrant of arrest on written evidence, as in proceedings under article . for the interim release of the arrestee. The Prosecutor can also base his case for the confirmation of the charges, under article , on written evidence of which he must apprise the person a reasonable time before the confirmation hearing. Article . provides the Prosecutor with the option to rest his case on a summary of such evidence. The right conferred by article ., to make elliptical disclosure, as expressly provided, must not be prejudicial to or inconsistent with the rights of the accused or the right to a fair trial. Therefore the summary must, as the term denotes, disclose the essence of the evidence, that is, every material part necessary for the preparation of the defence of the person. In its judgment of  December ,554 the Appeals Chamber reversed the decision of the PreTrial Chamber to the extent that it authorised the Prosecutor to disclose to the appellant witness statements and documents with redactions directing that the Pre-Trial Chamber should examine anew the issue of disclosure in light of the judgment of the Court. In principle, the Prosecutor at the confirmation hearing: [ . . . ] may rely on unredacted parts of witness statements and other documents that contain redactions pursuant to rule () of the Rules of Procedure and Evidence.555

Elsewhere, the Appeals Chamber noted: [ . . . ] At the confirmation hearing, the suspect has the right to challenge the evidence presented by the Prosecutor (article  () (b) of the Statute). As a corollary to this right, the suspect has a right to be informed, prior to the hearing, of the evidence on which the Prosecutor intends to rely (article  () (b) of the Statute). The right to challenge the evidence, however, must be understood in the context of the confirmation hearing, which does not amount to a determination of 554 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “Second Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/–/– ). 555 Ibid. para. .

victims and witnesses



the guilt or innocence of the suspect. Pursuant to article  () (a) of the Statute, the Pre-Trial Chamber shall confirm those charges in relation to which it has determined that there is sufficient evidence to establish substantial grounds to believe that the suspect committed the crime charged. As the threshold for the confirmation of the charges is lower than for a conviction, the Prosecutor may be able to convince the Pre-Trial Chamber that the threshold for the confirmation of the charges has been reached even if the reliability of the witnesses and other evidence was not fully tested.556

In a separate opinion of a member of the Appeals Chamber in the same case with respect to the interpretation of article ., it is underlined that: The accused is prejudiced when deprived of knowledge of evidence necessary for making his/her defence.557

Thereafter, it is added that non-disclosure of evidence is prohibited in all circumstances if it prejudices the rights of the accused. The following passage from the separate opinion encapsulates the view of the judge on the matter: Evidence material for the making and preparation of one’s defence must necessarily be disclosed. It cannot be withheld for any reason. And that extends to the identity of a witness too. The provisions at the end part of article . of the Statute leave no room for exceptions. The test for confirming changes laid down in article . of the Statute is, ‘whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged’. Its provisions have a direct bearing on the identification of the rights of the defence at the confirmation hearing.558

. The majority affirmed that the Prosecutor may rely, at the confirmation hearing, both on redacted statements as well as statements duly summarised. In another decision of the Appeals Chamber given on the same day,559 the Court determined by majority that the Prosecutor is entitled to present summaries of witness statements at the confirmation hearing even if the identities of witnesses have not been disclosed to the defence, subject to the proviso that this should not be inconsistent with the rights of the accused or a fair and impartial trial. The approach of the Court reflects a contradiction in that one may validly argue that the identity of a witness is invariably essential for the preparation of the defence considering that the credibility of a witness and information about his/her person is at all times necessary for the preparation of the defence.

556

Ibid. para. . Ibid. para.  of the separate opinion of Judge Pikis. 558 Ibid. 559 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “First Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December  (ICC-/–/–). 557



chapter nine

The decision of the Pre-Trial Chamber under consideration was reversed for lack of due reasoning. Several passages of the judgment of the majority address the issue of disclosure. The following passages reflect the opinion of the majority on the subject: [ . . . ] the use of summaries of witness statements and other documents at the confirmation hearing in relation to witnesses of the Prosecutor whose identities have not been disclosed to the defence prior to the confirmation hearing is, in principle, permissible under the Statute and the Rules of Procedure and Evidence, provided that such summaries are used in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.560

Summaries of witness statements are permissible at the confirmation hearing even though the identity of the witness is not disclosed. The position of the majority on the subject is reflected in the following passage of its judgment: [ . . . ] first, the Prosecutor is authorized to rely on witnesses whose identities are unknown to the defence (anonymous witnesses); secondly, the ability of the defence to evaluate the correctness of the summaries is restricted because the defence does not receive prior to the confirmation hearing the witness statements and other documents that form the basis of the summaries. However, this does not mean that the use of such summaries at the confirmation hearing is necessarily prejudicial to or inconsistent with the right of the accused and a fair and impartial trial.561

In his separate opinion, a judge agreed that the judgment of the Pre-Trial Chamber must be reversed for lack of due reasoning, adding: [ . . . ] I cannot however associate myself with the approach adopted in the judgment respecting the interpretation and application of article  () of the Statute and rule  () and () of the Rules of Procedure and Evidence. My position on these issues is reflected in my separate opinion in Situation in the Democratic Republic of the Congo in the case of the Prosecutor v. Thomas Lubanga Dyilo (OA) “Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled ‘First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule ’ ”, to be delivered today.562

. Restrictions to disclosure of evidence for the protection of victims and witnesses are dealt with in rule . In accordance with rule ., material or information that the Prosecutor is bound to disclose to the defence may be withheld where it may prejudice further or ongoing investigations. Restriction of disclosure of confidential information and evidence for the protection of victims, witnesses and their families is added by rule .. The court is bound by the provisions of sub-paragraph  of rule  to inform victims 560 561 562

Ibid. para. . Ibid. para. . Ibid., separate opinion of Judge Pikis.

victims and witnesses



and witnesses of risks to their safety. A Chamber dealing with disclosure of evidence may, at the request of the Prosecutor, the accused or a State, or on its own motion, take steps as provided in rule . for the protection of victims, witnesses and members of their families. The provisions of article  were the subject of interpretation by the Appeals Chamber in its judgment of  December .563 The court held unanimously that the decision of the PreTrial Chamber pertaining to the disclosure of evidence pursuant to the provisions of rule . should be reversed for lack of due reasoning. The court explored in its judgment the ambit and range of application of rule . which reads: Where material or information is in the possession or control of the Prosecutor which must be disclosed in accordance with the Statute, but disclosure may prejudice further or ongoing investigations, the Prosecutor may apply to the Chamber dealing with the matter for a ruling as to whether the material or information must be disclosed to the defence. The matter shall be heard on an ex parte basis by the Chamber. However, the Prosecutor may not introduce such material or information into evidence during the confirmation hearing or the trial without adequate prior disclosure to the accused.

The majority of the court in its judgment refuted the submission of the defence that whenever non-disclosure is found to be justified under article ., the disclosure of the document in its entirety must be withheld. They subscribed to the proposition put forward by the Prosecutor that rule . “does not dictate [ . . . ] that redactions and/or disclosure must be determined inflexibly by the unit of the entirety of a ‘statement’ or ‘document’, such that the statement or document must either be disclosed in its entirety or not considered at the confirmation hearing at all”.564 The right of the person against whom charges are laid at the confirmation hearing to contest the evidence must, according to the majority, be read within the context of rule . that allows redactions for the purposes of the confirmation hearing. In a separate opinion, a member of the court adopted a different position, espousing the view that non-disclosure of written evidence under the provisions of rule . cannot be relied on in a redacted form for the purposes of the confirmation hearing. The following passages from the separate opinion are indicative of the stance of the judge on the subject:

563 Prosecutor v. Lubanga Dyilo, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Pre-Trial Chamber I entitled “Second Decision on the Prosecution Request and Amended Requests for Redactions under Rule ”,  December , (ICC-/–/– ). 564 Ibid., para.  (citing the Prosecutor’s submission).



chapter nine . Rule () refers to the non-disclosure of a statement in order to avert prejudice to further or ongoing investigations. It does not refer to nor does it authorize partial disclosure or the disclosure of a statement in a redacted form. . Once non-disclosure of evidence is allowed, its production is prohibited unless timely prior disclosure is made to the defence. To my mind, rule () of the Rules of Procedure and Evidence does not authorize the disclosure of a witness’ statement in a redacted statement or summary thereof under any circumstances.565

. The right of the Prosecutor to submit a summary of the evidence instead of the evidence itself, that is a witness statement or documentary evidence, deriving from article ., is confined to cases involving evidence or information disclosure of which may lead to grave endangerment of the security of a witness or his/her family. Procedural expression is given to this provision of the Statute by rule ., which reads: The Chamber dealing with the matter shall, on its own motion or at the request of the Prosecutor, the accused or any State, take the necessary steps to ensure the confidentiality of information, in accordance with articles , , and , and, in accordance with article , to protect the safety of witnesses and victims and members of their families, including by authorizing the non-disclosure of their identity prior to the commencement of the trial.

. In its judgment of  May ,566 the Appeals Chamber determined by majority that names and information identifying potential prosecution witnesses referred to in witness statements may be withheld pursuant to the provisions of article .. In determining whether non-disclosure should be approved, the court must determine “where the balance of interests lies on the facts of a specific application for non-disclosure”.567 The court rejected the submission “that rule () can never apply to information which is relevant to the Defence or potentially exculpatory at the stage of the proceedings prior to the hearing to confirm the charges”. Furthermore, the court held that rule . applies to information which must be disclosed to the accused under article ., including exculpatory evidence at the confirmation hearing. The majority added the following rider to its decision: “if non-disclosure of evidence, viewed in its entirety, would result in the hearing to confirm the charges being unfair to the suspect, “the request for redaction should not be authorized”. ”568 Any decision authorising non-disclosure must, as the court 565

Ibid., paras – of the separate opinion of Judge Pikis. Prosecutor v. Katanga/Chui, Judgment on the appeal of Mr Germain Katanga against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorization to Redact Witness Statements”,  May  (ICC-/–/–). 567 Ibid., para. . 568 Ibid., para. . 566

victims and witnesses



observed, be reviewed and, where necessary, altered “should changed circumstances make it appropriate”.569 In the dissenting opinion of a member of the court, a view opposite to that of the majority is taken, with regard to both the interpretation and ambit of article .. According to the dissenting opinion, “[t]he object of rule () is to relieve, under the specified circumstances, the Prosecutor from the duty cast upon him by the Statute to disclose to the Defence material or information in his possession”.570 Non-disclosure under rule . can only be justified if such a course would prejudice further or ongoing investigations. The protection of victims and witnesses is not the subject of rule ., but that of rule .. . Another important aspect of the judgment of the Appeals Chamber of  May ,571 is that the application of rule . is not confined to victims, witnesses and members of their families, but extends, despite the absence of provision to that end, to persons “at risk on account of the activities of the Court”, stressing that the object of paragraph . is to secure protection of individuals at risk,572 a risk objectively identifiable, as stated elsewhere in the judgment of the majority.573 In applying rule . to the circumstances of a particular case, the Court should ensure “that adequate safeguards are in place to protect the interests of the suspect so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms”.574 What activities of the Court may expose a person to risks is nowhere specified, nor is the term “activities of the Court” defined. The dissenting judge determined that no interpretative process could lend support to the construction of rule . as embracing among the subjects of protection persons other than victims, witnesses and members of their families. The following passage from his opinion characterises his approach to the issue before the court: All three categories of persons have distinct attributes, not only in the context of article  but in that of many other provisions of the Statute and the Rules too. Persons named in a witness statement do not come within the genus of any of the aforesaid three categories of persons.575

. In the same appeal, the Appeals Chamber was asked to determine whether it is possible under the provisions of rule . to redact the names of persons 569

Ibid., para. . Ibid., para.  of Judge Pikis dissenting opinion. 571 Prosecutor v. Katanga/Chui, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled “First Decision on the Prosecution Request for Authorisation to redact Witnesses Statements”,  May  (ICC-/–/–). 572 Ibid., para. . 573 Ibid., para. . 574 Ibid., para. . 575 Ibid., para.  of the dissenting opinion of Judge Pikis. 570



chapter nine

who took the statements of witnesses and of persons who attended the making of the depositions, as well as the places where such statements were taken. The majority determined that such information may, in an appropriate case, be redacted, whereas the dissenting member took the contrary view, espousing the position that particulars surrounding the taking of a statement, envisaged by rule , are an element of the statement itself, “[s]tripped of these attributes, the statement forfeits the character attached to it by law; it is denuded of information that illuminates its provenance”. It was further explained, in the same opinion, that the object of redaction of a part/parts of a statement does not relate to the crime investigated or to future investigations, but to the manner of conducting the investigation and the propriety of the process of gathering evidence.576 . In another decision of the Appeals Chamber given in the same month,577 the Appeals Chamber determined, by majority, that the naming of victims of sexual violence in a witness statement may be redacted pursuant to the provisions of rule .. In coming to its decision, the Appeals Chamber reiterated the principle enunciated in its judgment of  May  that persons at risk “on account of activities of the Court” qualify as the subjects of protection under rule .. A contrary view was taken by the dissenting judge,578 who underlined that the term “victims” in rule . is confined to victims of the crime under investigation. The aim of rule , as indicated in the dissenting opinion, is to withhold disclosure of evidence which it is otherwise bound to disclose to the person under investigation pursuant to the provisions of article .(b). Rule  provides no authority, as stated therein, for non-disclosure of evidence emerging in the process of investigations unconnected with the charges.

II. Participation of Victims in judicial proceedings . Article . reads: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impar-

576

Ibid., para.  of the dissenting opinion of Judge Pikis. Prosecutor v. Katanga/Chui, Judgment on the appeal of Mr Mathieu Ngudjolo against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecution Request for Authorisation to Redact Statements of Witnesses  and ”,  May  (ICC-/–/–). 578 Judge Pikis. 577

victims and witnesses



tial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.

. Only a person who qualifies as a victim under rule  can seek to participate in judicial proceedings under the above paragraph of article . A prerequisite to participation is that the personal interests of the victim as such must be affected by the judicial proceedings in which participation is sought. Personal interests are interests individuating to the person of the victim in contrast to anybody else. The interests affected must be distinct from those of any other victim or the public at large that has a perpetual interest that persons committing crimes within the jurisdiction of the Court should be brought to justice, no matter who they are or how high they stand. In the Preamble to the Statute it is declared that the most serious crimes of concern to the international community, those over which jurisdiction is conferred upon the ICC, must not go unpunished, putting an end to the impunity of perpetrators of such heinous crimes. Prosecution and punishment of criminals in addition to serving justice, tends to deter others by knowledge of what may befall them. This is a pragmatic consideration important as a deterrent but not one that should count independently of the requisites of justice. . By what should the interests of victims be affected in order to entitle them to participate? The answer is, inevitably, by the proceedings in which they seek participation. That is how this question was answered by the Appeals Chamber in its judgment of  July .579 The meaning of the word ‘victim’, as clarified therein, is not confined to a victim of any particular crime: “the effect of article  () of the Statute is that the participation of victims in the trial proceedings, pursuant to the procedure set out in rule  () of the Rules, is limited to those victims who are linked to the charges”.580 Sequentially, “victims will first have to demonstrate that their personal interests are affected by the trial in order to be permitted to present their views and concerns at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”.581 As explained in a separate opinion in the context of an earlier decision of the Appeals Chamber,582 the word “affecting” denotes something having a bearing, impact or repercussions on the personal interests 579

Prosecutor v. Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of  January ,  July  (ICC-/–/–). 580 Ibid., para. . 581 Ibid., para. . 582 Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of



chapter nine

of victims. The answer to the question “affected by what” is, as explained in this separate opinion, evident, that is to say, by the proceedings before the Court. Once it is demonstrated that the personal interests of victims are affected by the proceedings in which they seek participation they are, by the terms of article ., entitled to participate. In such circumstances the Court ‘shall’, that is, it is bound to permit their views and concerns to be presented. . Participation does not make or equate victims to parties to the proceedings. Their role is confined to the expression of their views and concerns on matters affecting their interests. The notion of views and concerns in the context of article . was explored in detail in the separate opinion of a member of the court583 in the aforementioned decision of the Appeals Chamber of  June .584 The following passage from the separate opinion reflects the Judge’s analysis of the notion of “views and concerns”: Participation is confined to the expression of the victims’ “views and concerns”. It is a highly qualified participation limited to the voicing of their views and concerns. Victims are not made parties to the proceedings nor can they proffer or advance anything other than their “views and concerns”. The term “views” in the context of article () of the Statute signifies “opinion”, in fact an opinion, stance or position on a subject. In the Russian and Spanish versions of article () of the Statute the word ‘opinion’ is used. “[C]oncerns” signify matters of interest to a person; matters that preoccupy him/her. “[P]réoccupations” is precisely the word used in the French text of the Statute. A combination of the two, ‘views’, ‘concerns’ joined by the conjunctive ‘and’, signifies that victims can express themselves about both, their preoccupations and their views on the matter. As to what they may express their views and concerns is addressed in the paragraph following.585

. In relation to what can victims express their views and concerns? As decided in the majority judgment of  February , loss and injury of victims resulting from the commission of the crime(s) that constitute the subject-matter of the proceedings is a matter of individual concern over which a participating victim may express his/her views and concerns. Answering the same question in his separate opinion in the decision of  June , the Judge stated: Not in relation to the proof of the case or the advancement of the defence. The burden of proof of the guilt of the accused lies squarely with the Prosecutor Victims a// to a// and a// concerning the “Directions and Decision of the Appeals Chamber” of  February ,  June  (ICC-/–/–). 583 Judge Pikis. 584 Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a// to a// and a// concerning the “Directions and Decision of the Appeals Chamber” of  February ,  June  (ICC-/–/–). 585 Ibid., para.  of the separate opinion of Judge Pikis.

victims and witnesses



(article . of the Statute). Provision is made in the Statute (article .) entitling the Prosecutor to seek and obtain information from victims about the facts surrounding the crime(s) forming the subject-matter of the proceedings. That the judicial process should follow its ordained course is a cause common to all; its sustenance is the responsibility of the Court, the guardian of the judicial process. It is not the victims’ domain either to reinforce the prosecution or dispute the defence. Participating victims’ views and concerns are referable to the cause that legitimises their participation, the cause that distinguishes them from other victims, namely their personal interests to the extent they are affected by the proceedings.586

. In the same separate opinion, attention is drawn to the fact that the right bestowed upon victims by article ., “has no immediate parallel to or association with the participation of victims in criminal proceedings in either the common law system of justice as evolved in England and Wales, where no role is acknowledged to victims in criminal proceedings except for the right to initiate a private prosecution, or the Romano-Germanic system of justice, where victims in the role of civil parties or auxiliary prosecutors have a wideranging right to participate in criminal proceedings. In the United States of America most states acknowledge a right to victims of crimes to participate in criminal proceedings, mainly in the sentencing process. In Canada a right to participate, especially in the sentencing process, is likewise vested in victims. The same applies to Australia and New Zealand”.587 . It is for the Court to determine the stage or stages of the proceedings considered appropriate for the expression of the views and concerns of victims. Their presentation must not be either prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. The rights of the accused require prior warning of the case he/she has to meet and details of the evidence to be confronted, adequate facilities for the preparation of the defence and, more so, its advancement within the context of a fair and impartial trial, keeping the scales even between the two parties to the adjudicative process, the prosecution and the defence. The case law of the Appeals Chamber consistently stresses the duty of the Court to ensure that the presentation of the views and concerns of victims should not violate the rights of the accused on the one hand, or derail the process from the course ordained by the rules of a fair trial on the other. Fair trial, as earlier mentioned, postulates an adversarial hearing held with the two parties enjoying equality of arms.

586 587

Ibid., para.  of the separate opinion of Judge Pikis. Ibid., para.  of the separate opinion of Judge Pikis [footnotes omitted].



chapter nine

. In the first decision on victim participation, the reasons of which are included in the judgment of  February , the majority underlined that a prerequisite to victim participation is the submission of a specific application, signifying the personal interests at stake which would entitle the applicant to participate. After hearing the responses of the parties to the application the court decides whether victim participation should be sanctioned. The presentation of such views and concerns must take place at a stage, or stages, determined by the Court to be appropriate. Ordinarily the stage(s) will be elicited at the time that participation is approved. . In the case leading to the decision of the Appeals Chamber of  February , the victims were allowed to participate in an appeal of the arrestee against a decision of the Pre-Trial Chamber approving the continuation of his detention. As the court stressed: “The Appeals Chamber, pursuant to article ., is required to determine whether the participation of victims in relation to that particular appeal is appropriate. It cannot automatically be bound by the previous determination of the Pre-Trial Chamber that it was appropriate for the victims to participate before the Court of first instance.”588 . It is the duty of the Appeals Chamber, as stated in the same judgment, to ensure that the mode of victims’ participation is not prejudicial to or inconsistent with the rights of the accused. With this in mind, the court rejected the submission that by allowing the victims to participate, the appellant was facing two prosecutors. Authorisation to participate was limited to the expression of victims’ views and concerns, strictly concerning their personal interests, adding that, “[o]bservations to be received by the victims were therefore limited and had to be specifically relevant to the issues arising in the appeal rather than more generally”.589 This passage implies that participation is confined to making observations and not participating in the proceedings in any other manner. In sum, to participate, victims must make an application to the Chamber before which proceedings are pending, establishing their identity as victims and the way their interests are affected by the proceedings, whereupon they may participate, a participation confined to voicing views and concerns at stages of the proceedings and in a manner not offensive to the rights of the accused or outside the norms of a fair and impartial trial. In a dissenting opinion, a member of the court590 took the view that victims who participated in the first instance

588 589 590

Ibid., para. . Ibid., para. . Judge Song.

victims and witnesses



decision may participate as of right in the appeal proceedings; a proposition supported, in his view, by the provisions of article . and  and Regulation .. . The judgment of  June  provides examples of personal interests that may justify victim participation in judicial proceedings. The following passage from the decision of the court reflects its position on the subject: Clear examples of where the personal interests of victims are affected are when their protection is in issue and in relation to proceedings for reparations. More generally, an assessment will need to be made in each case as to whether the interests asserted by victims do not, in fact, fall outside their personal interests and belong instead to the role assigned to the Prosecutor. Even when the personal interests of victims are affected within the meaning of article . of the Statute, the Court is still required, by the express terms of that article, to determine that it is appropriate for their views and concerns to be presented at the stage of the proceedings and to ensure that any participation occurs in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.591

. In a separate opinion of a member of the court, victim participation was broadly explored,592 whereas in another separate opinion,593 the non-participation of victims was only upheld for otherwise the proceedings would be prolonged. By the decision of  February 594 victims were allowed to participate, the court taking the view that their personal interests were affected by the appeal proceedings relevant to the release or continued detention of the arrestee, but not so in the decision of  June 595 involving an issue not affecting the personal interests of victims, notably, the admissibility of the appeal. . The decisions of the Appeals Chamber of  February  and  June , related to applications for participation in appeal proceedings raised under article .(b), concerning the release or detention of the person under investigation. As determined in the subsequent decision of the Appeals 591 Prosecutor v. Lubanga Dyilo, Decision of the Appeals Chamber on the Joint Application of Victims a// to a// and a// concerning the “Directions and Decision of the Appeals Chamber” of  February ,  June  (ICC-/–/–), para. . 592 Judge Pikis. 593 Judge Song. 594 Prosecutor v. Lubanga Dyilo, Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled “Décision sur la demande de mise en liberté provisoire de Thomas Lubanga Dyilo”,  February  (ICC-/–/–). 595 Prosecutor v. Lubanga Dyilo, “Decision of the Appeals Chamber on the Joint Application of Victims a// to a// and a// concerning the “Directions and Decision of the Appeals Chamber” of  February”,  June  (ICC-/–/–).



chapter nine

Chamber of  May ,596 a similar procedure applies with regard to victim participation in appeals under article .(d) and like principles apply as to its acceptability. In the same case, the Appeals Chamber sanctioned the following practice direction: The Appeals Chamber directs that in future cases and until such time as the matter is regulated in the constituent documents of the Court, applications by victims for participation in appeals must be filed as soon as possible and in any event before the date of filing of the response to the document in support of the appeal.597

. In the above case, the Appeals Chamber summarises the criteria governing victim participation as they emerge from the case law and the questions to be asked in discerning whether participation is justified. The foremost issue is whether the victims seeking participation are victims in the case, clarifying at the same time that acknowledgement of victim status by the first instance court does not require reaffirmation by the Appeals Chamber, confining the issues to be resolved to the following, (i) whether they have personal interests affected by the issues on appeal, (ii) whether their participation is appropriate, and (iii) ensuring that the manner in which victims present their views and concerns is not inconsistent with the rights of the accused and a fair and impartial trial. A similar line was followed respecting the preconditions and modalities of victim participation in appeal proceedings, and, by analogy, in proceedings before any Chamber of the Court, in the decision of the Appeals Chamber of  June .598 The same approach is reflected in the subsequent decision of the Appeals Chamber on the subject of victim participation, notably that of  June .599 In the last two decisions, there was a partly dissenting opinion by a member of the court,600 originating from his dissent to the proposition that victims who participated in first instance proceedings need to apply anew to

596

Prosecutor v. Lubanga Dyilo, Decision, in limine, on Victim Participation in the appeals of the Prosecutor and the Defence against Trial Chamber I’s Decision entitled “Decision on Victims’ Participation”,  May  (ICC-/–/–). 597 Ibid., para. . 598 Situation in Darfur, Sudan, Decision on Victims Participation in the appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December  and in the appeal of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December ,  June  (ICC-/–). 599 Situation in the Democratic Republic of the Congo, Decision on Victim Participation in the appeal of the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December  and in the appeals of the Prosecutor and the Office of Public Counsel for the Defence against Pre-Trial Chamber I’s Decision of  December ,  June  (ICC/–). 600 Judge Song.

victims and witnesses



participate in appeal proceedings directed against the first instance decision in which they participated. In his view, victims participation in appeal proceedings should be automatic. . In its next decision on the subject, that of  August ,601 the majority of the Appeals Chamber likewise heeded its earlier decisions on the parameters of victim participation. The Chamber accepted the participation of persons who qualified as victims and had participated in the first instance proceedings. The victims had been acknowledged as such not by the decision under appeal but by a previous decision of a Pre-Trial Chamber. The decision under appeal was raised under article .(d). . In a dissenting opinion602 the position is espoused that strangers to the first instance proceedings cannot participate in the appellate process, citing in this connection the earlier decision of the Appeals Chamber of  July .603 In relation to what may constitute an appealable issue under article .(d), the following was said: “[a]n issue is constituted by a subject the resolution of which is essential for the determination of matters arising in the judicial cause under examination. The issue may be legal or factual or a mixed one”.604 In a subsequent decision, that of  October 605 the Appeals Chamber reiterated the position espoused in previous cases that article . of the Statute: mandates a specific determination by the Appeals Chamber that the participation of victims is appropriate in the particular interlocutory appeal under consideration.606

Participation is permissible with the approval of the Court at stages of the proceedings determined to be appropriate. Therefore, the unauthorised response of victims to the Prosecution’s documents in support to the appeal, was rejected and disregarded. 601

Prosecutor v. Lubanga Dyilo, Decision on the participation of victims in the appeal,  August  (ICC-/–/–). 602 See dissenting opinion of Judge Pikis,  August  (ICC-/–/–-Anx). 603 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s  March  Decision Denying Leave to Appeal,  July  (ICC-/–). 604 Ibid., para. . 605 Prosecutor v. Bemba Gombo, Reasons for the “Decision on the Participation of Victims in the Appeal against the “Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic and the Republic of South Africa”,  October , (ICC-/–/–), see also, Dissenting Opinion by Judge Song,  November  (ICC-/–/–). 606 Ibid., para. .



chapter nine

. A judgment of far reaching consequences is that of the Appeals Chamber of  July ,607 confronting the issue “whether it is possible for victims participating at trial to lead evidence pertaining to the guilt or innocence of the accused and to challenge the admissibility or relevance of evidence”.608 The majority of the Chamber, while emphasising “that the right to lead evidence pertaining to the guilt or innocence of the accused and the right to challenge the admissibility or relevance of evidence in trial proceedings lies primarily with the parties, namely, the Prosecutor and the Defence”,609 ruled that victims may lead evidence as well as challenge the admissibility of evidence during the trial proceedings. In so holding, they derived support from the provisions of article . and those of article .(d) of the Statute. Article . identifies the powers the Trial Chamber may exercise in the course of the trial, amongst which the power to “[o]rder the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties”. This is one of the powers of the trial court to direct how proceedings between the parties should be conducted subject to its principal duty enunciated in article ., to ensure that the trial is fair and conducted with full respect for the rights of the accused, due regard being had to the protection of victims and witnesses. Such protection refers to their safety and mental tranquility. Article .(b) specifically provides that at the commencement of the trial the presiding judge may give directions concerning the conduct of the proceedings, including, no doubt, the submission of evidence. The directive as to additional evidence refers to the parties, not to anybody else, something reflected in the provisions of article ., which reads: The parties may submit evidence relevant to the case, in accordance with article . The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth.

. A request for the submission of additional evidence may be addressed to the parties, the subjects of the provisions of article .. Notwithstanding the acknowledgement of amenity on the part of victims to adduce evidence and challenge the admissibility of evidence, the majority emphasised that the onus is on the Prosecutor to prove the guilt of the accused, adding “[p]resumptively, it is the Prosecutor’s function to lead evidence of the guilt of the accused. In addition, the regime for disclosure contained in rules  and  of the Rules

607 Prosecutor v. Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of  January ,  July  (ICC-/–/–). 608 Ibid., para. . 609 Ibid., para. .

victims and witnesses



which sets out the specific obligations of the parties in this regard is a further indicator that the scheme is directed towards the parties and not victims”.610 . Two of the members of the Court dissented from this judgment of the Appeals Chamber.611 The views of one of the dissenting members612 are encapsulated in the following passages of his opinion: My reading of the various provisions of the Statute and the Rules referred to above leads me to the conclusion that it was not the intention of the drafters that victims should lead evidence on guilt or innocence. In addition, determining that it is the parties that lead evidence on guilt or innocence, and not the victims, is consistent with the overall desire to ensure that proceedings at the ICC are both fair and expeditious. First, this conclusion results in the accused being faced by one Prosecutor, in accordance with the scheme of the Statute, rather than, potentially, multiple accusers. Significant in this context are the provisions of article . of the Statute, making it clear that it is the Prosecutor who bears the onus of proving guilt at the trial, entailing the related responsibility to lead evidence as to guilt or innocence at trial.613

. Challenges to the admissibility and relevance of evidence can only be raised by the parties, citing in support the provisions of article ., that read: The Trial Chamber shall have, inter alia, the power on application of a party or on its own motion to: “(a) Rule on the admissibility or relevance of evidence;”614

. In conclusion, the dissenting judge determined that “[c]hallenges to admissibility and relevance of evidence pertaining to guilt or innocence are for those who are entitled to lead such evidence—namely the parties”.615 . According to the opinion of the second dissenting member of the court, The Prosecutor is the only authority the accused has to confront in relation to the charges. The two sides are locked into a conflict upon the denial of the charges by the accused.616

. A fair trial, as pointed out in the dissenting opinion of the second member of the Chamber, entails an adversarial hearing warranted by the rights of the accused, the assurance of which is an essential element of a fair trial. In an 610

Ibid., para. . Judge Kirsch and Judge Pikis. 612 Prosecutor v. Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of  January  Partly Dissenting Opinion of Judge Philippe Kirsch,  July  (ICC-/–/–-Anx). 613 Ibid., paras –. 614 Ibid., para. . 615 Ibid., para. . 616 Ibid., para.  of the partly dissenting opinion of Judge Pikis. 611



chapter nine

adversarial hearing, as stated, the two sides are cast in the position of adversaries in relation to the determination of the basic issue before the Chamber, the guilt or innocence of the accused. The judge observed “[t]hat the judicial process should follow its ordained course is a cause common to all; its sustenance is the responsibility of the Court, the guardian of the judicial process. It is not the victims’ domain either to reinforce the prosecution or dispute the defence”.617 . The decision of the Appeals Chamber of the  December ,618 makes it abundantly clear that victim participation is confined to judicial proceedings. As the Court ruled, victims cannot participate in the investigation of crimes, the exclusive domain of the Prosecutor. The following extract from the judgment of the Appeals Chamber identifies the role of victims participating in any judicial proceedings: The article of the Statute that confers power upon a victim to participate in any proceedings is article .. What emerges from the case law of the Appeals Chamber is that participation can take place only within the context of judicial proceedings. Article . of the Statute correlates victim participation to “proceedings”, a term denoting a judicial cause pending before a Chamber. In contrast, an investigation is not a judicial proceeding but an inquiry conducted by the Prosecutor into the commission of a crime with a view to bringing to justice those deemed responsible.619

. We may remind that rule  confers power on a Chamber to seek the views of victims or their legal representatives pursuant to rules  to  on any issue, including issues arising in the context of rules , , , , ,  and . By the same rule, the Chamber is empowered to seek the views of what are termed “other victims” implying victims other than victims whose personal interests are affected by the proceedings before it. Rule  makes provision for group representation of victims conferring power upon the Court to strive to ensure common representation with the assistance of the Registry. In the event of victims’ inability to come to a decision about the choice of a common legal representative, the Chamber may direct the Registrar to ensure the selection of one or more counsel to represent them. Impecunious victims may have legal assistance. Regulations  and  elaborate on the modalities of the choice of a common legal representative(s). Instructive

617

Ibid., para.  of the partly dissenting opinion of Judge Pikis. Situation in the Democratic Republic of the Congo, Judgment on victim participation in the investigation stage of the proceedings in the appeal of the OPCD against the decision of Pre-Trial Chamber I of  December  and in the appeals of the OPCD and the Prosecutor against the decision of Pre-Trial Chamber I of  December ,  December  (ICC-/–). 619 Ibid., para. . 618

victims and witnesses



as to the criteria and the process to be followed in selecting one or more common legal representatives for a group of victims is the decision of the Trial Chamber of  July .620 The following two paragraphs from the decision of the Trial Chamber illuminate the scene: [ . . . ] the Chamber is duty-bound to ensure that the proceedings are conducted efficiently and with the appropriate celerity. The Chamber must therefore guard against any unnecessary repetition or multiplication of similar arguments and submissions. This requirement also implies that victims’ legal representatives must always be available to participate fully, even on short notice, in all stages of the proceedings when their clients’ interests are engaged. This further requires that legal representatives who appear before it are completely familiar with all legal and factual aspects of the case. The Chamber is of the view that its obligation under article () of the Statute to ensure that victims’ participation is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial, extends to the organisation of the legal representation of victims. It is important, in this respect, that the participation of victims does to impose too heavy a burden upon the Defence.621

. Procedural steps to be taken by victims seeking participation in any proceedings, either personally or through their legal representatives, are governed by rules  to . Rule  makes provision for notifying victims of proceedings which are of concern to them, other than proceedings for which provision is made in rule . . Apart from article ., a number of provisions of the Statute confer a right on victims to be heard in specific proceedings, or make their views a factor to be taken into consideration in the decision making process of the Prosecutor or a Chamber of the Court. Article . bestows on victims the right to make representations to the Pre-Trial Chamber in proceedings initiated by the Prosecutor for the authorisation of an investigation into a crime or crimes. Informing victims of proceedings for the authorisation of an investigation and solicitation of their views is the subject of rule . . Article . of the Statute assures to victims the right to make observations in proceedings where the jurisdiction of the court to take cognisance of a case, or the admissibility of a case, is at issue. Rule  provides for notification being given to victims of proceedings affecting the jurisdiction of the court or the admissibility of a case, and the framework within which they may proffer 620 Prosecutor v. Katanga/Chui, Order on the organization of common legal representation of victims,  July  (ICC-/–/–). 621 Ibid. para.  [footnote omitted].



chapter nine

their observations. The decision of the Pre-Trial Chamber of  July ,622 articulates the procedural framework within which the observations of victims may be made. It is important to note that the Registrar was directed by the PreTrial Chamber to notify victims of the proceedings before the Chamber and the submissions made in that context. Concurrently, the court set a time limit for the submission of the observations of victims, specifying the subjects on which their observations were sought. Invariably their observations must be confined to the subject of the jurisdiction of the Court to heed the case or its admissibility, or both if the two subjects are in issue. . Indicative of the approach of the Appeals Chamber to the subject are its directions of  October ,623 setting a time limit for the submission of observations of victims, directing, at the same time, that the parties would be free to make response thereto within a specified period of time. To the same effect, are the directions of the Appeals Chamber in its judgment of  July .624 Articles .(c) and .(c) make the interests of victims a factor to be pondered by the Prosecutor in determining whether an investigation should be undertaken or a prosecution raised. Article .(b) binds the Prosecutor to respect the interests and personal circumstances of victims and witnesses in the investigation and prosecution of crimes, whereas paragraph (c) of article . binds the Prosecutor to respect fully the rights of persons under the Statute, a provision undoubtedly extending to the rights of victims. . Article .(c) empowers the Pre-Trial Chamber to adopt, if and when necessary, measures for the protection of the privacy of victims and witnesses. A similar power is vested in the Trial Chamber by virtue of the provisions of article .(e). Article . confers power upon the Trial Chamber following a guilty plea to direct a more complete presentation of the facts if it is so judged appropriate in the interests of justice, particularly if the interests of victims so warrant. If the Trial Chamber so decides, two options are open to it: either to direct the presentation of additional evidence, including the testimony of witnesses, or override the plea, as if not made, and proceed with the holding of a trial. In the nature of things, the court may order a trial if the facts put 622

Prosecutor v. Lubanga Dyilo, Decision inviting the Democratic Republic of the Congo and the victims in the case to comment on the proceedings pursuant to Article  of the Statute,  July  (ICC-/–/–). 623 Prosecutor v. Lubanga Dyilo, Appeals Chamber’s Request and Directions,  October  (ICC-/–/–). 624 Prosecutor v. Katanga/Chui, Further directions on the submission of observations pursuant to article () of the Rome Statute and rule () of the Rules of Procedure and Evidence,  July  (ICC-/–/–).

victims and witnesses



before it do not appear to conclusively establish the guilt of the accused. Rule  requires that the Court should reason any decision finding the accused guilty after a plea to that effect. In my view, if the accused is found guilty at the end of a trial he/she should not be denied the benefit of a plea of guilty as a mitigating consideration. A plea of guilty signifies, inter alia, contrition. Rule  requires the Trial Chamber to invite the views of the Prosecutor and the defence before taking a decision under article ..

III. The Definition of a Victim . The Statute does not define who qualifies as a victim. The word “victim” denotes a person hurt, injured or damaged by a crime within the jurisdiction of the Court. Rule  provides a definition of a victim: For the purposes of the Statute and the Rules of Procedure and Evidence: a) “Victims” means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; b) Victims may include 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 definition of a natural person qualifying as a victim is a straightforward one. Persons who have suffered harm as a result of the commission of a crime within the jurisdiction of the Court qualify as victims. The word “harm” is a generic term, encompassing every form of hurt, mental or bodily injury or affliction, and every form of material damage. The harm must be the offspring of a crime but need not be occasioned by physical injury as such; traumatisation of every sort, mental as well as psychological, is embraced by the notion of harm so long as it is occasioned by the commission of a crime within the jurisdiction of the Court, it qualifies the sufferer as a victim. . Collective or corporate bodies suffering harm to property dedicated to the purposes identified in rule . also qualify as victims. The name of such bodies is immaterial. What counts are the purposes to which their property is dedicated. If dedicated to any one or more of the purposes specified by rule ., they qualify as victims. The harm must have been caused “directly” by a crime within the jurisdiction of the Court. ‘Directly’, in this context, aims to distinguish material from economic loss. To instantiate the point, if a historic monument ceases to have visitors on account of the desolation of an area resulting in loss, such damage does not qualify the body owning it as victims within the definition of rule ..



chapter nine

. The definition of victim under rule (a) came up for consideration by the Appeals Chamber in its judgment of  July .625 It was determined that “the notion of victim necessarily implies the existence of personal harm but does not necessarily imply the existence of direct harm”.626 The Appeals Chamber earlier noted: The word “harm” in its original meaning denotes hurt, injury and damage. It carries the same meaning in legal texts, connoting injury, loss or damage and is the meaning of “harm” in rule (a) of the Rules.627

Harm must, according to this judgment, be at all times personally suffered. Harm may have been occasioned collectively, to a number of persons. That does not detract from the definition of a victim so long as each one included in this collectivity of persons can demonstrate that he/she has personally suffered harm. The nature of harm that may qualify a person as a victim is depicted and exemplified in the following passage: Material, physical, and psychological harm are all forms of harm that fall within the rule if they are suffered personally by the victim. Harm suffered by one victim as a result of the commission of a crime within the jurisdiction of the Court can give rise to harm suffered by other victims. This is evident for instance, when there is a close personal relationship between the victims such as the relationship between a child soldier and the parents of that child. The recruitment of a child soldier may result in personal suffering of both the child concerned and the parents of that child.628

. The passage below from the partly dissenting judgment of one of the members of the court, reflects his opinion on the same subject: Sequentially, I am in agreement within the finding that to qualify as a victim under rule (a), the harm suffered must necessarily be personal harm. On the other hand, I disagree with the position that “the harm suffered by victims does not necessarily have to be direct”. There must be a direct nexus between the crime and the harm, in the sense of cause and effect. Psychological harm may, no doubt, be suffered without prior physical harm, but the crime itself must be the cause generating the harm, as may be the case with the destruction, violation or humiliation of persons near and dear to the victims.629

625 Prosecutor v. Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of  January ,  July  (ICC-/–/–). 626 Ibid., para. . 627 Ibid., para. . 628 Ibid., para. . 629 Ibid., para.  of the partly dissenting opinion of Judge Pikis.

victims and witnesses



. Article . reads: A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.

This article does not spell out who are the servants or agents of a state, whose safety merits protection. Nor does it indicate directly the dangers or risks against which they should be protected. If the servants or agents of a State are witnesses, they may no doubt be afforded by the Court the protection envisaged by article . and . We can only infer that the class of persons that may be protected are not the servants or agents of a State in their entirety. An agent is a person entrusted with carrying out a particular assignment or task. The notion of “servants”, in the ordinary connotation of the word, would encompass every member of public services. Given the context in which article . appears, making provision for the protection of victims and witnesses, we may infer that the protection to be given to servants or agents of a State is not different from that provided for by the Statute for other vulnerable persons, such as victims, witnesses or members of their families. . The notion of protection in the context of article . does not import any kind of immunity for wrongful acts committed by victims or witnesses. . The other subject of protection under the provisions of article . is confidential information. The term “confidential information” is not defined by this article. This being the case we can justly assume that “confidential information” is none other than information so classified by other provisions of the Statute. Species of confidential information are specified in articles .(e),  and . and . . Sensitive information by its very nature is information disclosure of which may expose a State, body or persons to foreseeable risks. An apt example is information about national security, the subject of article . In rule . and  information of this character is also referred to as “confidential” information. Article . adds little, if anything, to the scheme of confidential information embodied in other provisions of the Statute.

chapter ten COUNSEL

I. Right to legal assistance . The right of a person to legal assistance and legal aid, if indigent, is safeguarded as the fundamental right of the individual from the moment he/she falls suspect of complicity in the commission of an offence until the conclusion of judicial proceedings that may follow (articles  and , and rule .). Article .(c) of the Statute safeguards the right of a person to legal assistance before being questioned for committing a crime, entitled to have “free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness”. The interests of justice invariably require the availability of legal assistance to a person about to be questioned in relation to the commission of a crime. The presumption finding expression in many jurisdictions that everyone knows the law does not reflect reality. Knowledge of the law is essential for defending one’s self against accusation. The object of legal assistance is to apprise the person of his/her rights and the implications of his/her conduct with regard to the subject under investigation. The starting point is that the person is presumed to be innocent, a right that comes into play whenever a person falls suspect of the commission of a crime. It is significant to note that article . requires that, before questioning any person concerning the commission of a crime, the investigating authorities must have grounds to believe that the person committed the crime. This goes beyond mere suspicion. There must be palpable evidence of complicity of the person to be questioned in the commission of the crime. Legal assistance must be rendered free of charge whenever that person is impecunious. . Rule  binds the Registrar to organise his/her department in a way promoting the rights of the defence, consistently with the principles of a fair trial. Aspects of the assistance to be provided to the defence in this respect, as well as to the Prosecutor, are detailed therein. Rule .(c) includes, amongst the forms of assistance, the following: “Assist arrested persons, persons to whom article , paragraph , applies and the accused in obtaining legal advice and the assistance of legal counsel”.



chapter ten

. Article .(d) confers upon the accused the right, “[s]ubject to article , paragraph , to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it”. It is plain enough that the accused is assured the right to defend himself in person or through counsel. The remaining part of article .(d) is not free of complexity. It requires the Court to inform the accused, and, by extension the person under investigation (rule .) if he does not have legal assistance, of the right to be legally assisted and that legal assistance may be assigned by the Court where the interests of justice so require. Does this provision of the law confer power on the Court to assign counsel to represent the person or the accused if of the view that this is in the interests of justice independently of any decision of the individual to defend himself/herself in person? If such a right was acknowledged to the Court, it would contradict and deny the right specifically conferred upon the person or the accused to defend himself/herself in person. If the accused wishes to be legally represented, counsel may be assigned by the Court if such a course is in the interests of justice, which would as a rule be the case. The person or the accused will not be burdened with the costs of legal assistance if he/she lacks the necessary means to pay for it, but not so if the individual has the means to meet the expense. . The right to legal assistance must be reasonably exercised and never in a manner frustrating the judicial process. The following passage from the decision of the Appeals Chamber of  March 630 is indicative of the framework within which the right to legal representation must be exercised: The right to choose counsel for the representation of a person in legal proceedings must, like every right of the accused or the person under charge, be reasonably exercised having regard to the principles of a fair trial. No right can be exercised in a manner frustrating the aims of a fair trial including, no doubt, the reasonableness of the time within which the proceedings must be held.631

. Rule .(b) requires the Registry to provide assistance not only to the person but also to counsel representing the defendant. The duty does not end there. In addition, the Registry must provide support for professional 630 Prosecutor v. Lubanga Dyilo, Reasons for Decision of the Appeals Chamber on the Defence Application “Demande de suspension de toute action ou procédure afin de permettre la désignation d’un nouveau Conseil de la Défense” filed on  February  issued on  February ,  March  (ICC-/–/–). 631 Ibid., para. .

counsel



investigators necessary for the efficient and effective preparation and conduct of the defence. Furthermore, it must bring to the notice of the defence counsel the case law of the ICC. So far, no comprehensive law reports have been established. The criteria and procedures for the assignment of legal assistance shall, as provided in rule ., be established by the Regulations of the Court, within the compass of articles .(c) and .(d). A roster of counsel for the defence, meeting the qualifications of rule , must be established. Any decision of the Registrar concerning legal aid, is subject to appeal before the Presidency at the instance of the person affected.

II. Qualifications for enrolment in the roster of Defence Counsel . The qualifications of counsel for enrolment in the roster of defence counsel are specified in rule ., which reads, “[a] counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise”. . The criteria for enrolment are supplemented by the provisions of regulation , establishing that (i) the necessary relevant experience of counsel prescribed in rule  should be at least ten years and (ii) counsel should not be burdened with a previous conviction for a serious criminal or disciplinary offence of a nature deemed to be incompatible with the status of counsel. . The first qualification envisaged by rule . is cast in the alternative; competence in international law or criminal law and procedure. In either case, a second qualification is required; experience in criminal proceedings. Such competence may be gained in the capacity of a judge, prosecutor, advocate, “or in any other similar capacity”, meaning a capacity akin to the ones identified. . The appointment of counsel for the defence must be evidenced by the filing of a power of attorney with the Registrar at the earliest opportunity.632

632

See rule . and regulation .



chapter ten III. Code of Professional Conduct for Counsel

. Rule  envisages the establishment of a Code of Professional Conduct, to be approved by the Assembly of States Parties on the basis of a proposal to that end by the Presidency. Such a Code was adopted on  December .633 . Counsel issues are the subject of chapter  of the Regulations of the Court. Provision is made therein for, inter alia, enlistment in the roster of counsel, the process of pursuing registration and decision-making by the Registrar (regulations  and ). Decisions of the Registrar refusing the registration of counsel in the roster are subject to review by the President on application by the aggrieved party, fashioned in the way formulated by regulation . The same regulation confers power upon the Registrar to remove or suspend counsel from the roll of counsel in the eventualities specified therein. Removal from the list of counsel shall be ordered when counsel (a) ceases to satisfy the criteria required for inclusion in the list of counsel, (b) is permanently banned from practicing as a result of disciplinary proceedings held in accordance with the Code of Professional Conduct for Counsel, (c) has been found guilty of an offence against the administration of justice defined in article  and (d) has been permanently interdicted under the provisions of rule .. The temporary suspension of counsel shall be ordered following (a) conviction of counsel for a disciplinary offence under the Code of Professional Conduct, or (b) interdiction for a period exceeding  days pursuant to the provisions of rule .. Removal or suspension from the list of counsel must be founded on a reasoned decision of the Registrar, informing the person affected thereby that the decision is subject to review by the Presidency in accordance with regulation . . The Code of Professional Conduct establishes a comprehensive disciplinary regime. It defines misconduct that may form the subject-matter of disciplinary proceedings and makes provision for the investigation of complaints of misconduct and their trial by the disciplinary board. Investigation is in the hands of the Commissioner, an office established by the Code. At the conclusion of the investigation, the Commissioner submits his disciplinary report. As one may gather from the provisions of article  of the Code, the Commissioner assumes a prosecutorial role in the disciplinary proceedings that may follow. Decisions of the disciplinary board are subject to appeal at the instance of counsel convicted of a disciplinary offence, as well as the Commissioner (article  of the Code). 633

Resolution ICC-ASP//Res. .

counsel



. Misconduct is defined in articles  and  of the Code. Three species of misconduct are identified; (a) violations or attempted violations of the Disciplinary Code, the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and the Regulations of the Registry, (b) aiding and abetting another person to commit misconduct of the nature envisaged by (a) and (c) failure to comply with the decision of the disciplinary board. Counsel is also liable if he/she assists in the commission of acts of misconduct by either approving such conduct or, while aware of impending misconduct, fails to avert or remedy it. Acts of misconduct of counsel are prescribed after the lapse of five years from the date of the termination of counsel’s agreement to represent a client (article ). Counsel accused of committing a disciplinary offence has the rights assured to the accused in criminal proceedings, as may be discerned from the provisions of article . Article . specifies the sanctions that may be imposed by the disciplinary body. These are, admonition, public reprimand, suspension of the right to practise for a period up to two years and permanent ban on practising. . The Code establishes standards of conduct befitting an officer of justice, as counsel is meant to be, in the discharge of his/her duties. The solemn undertaking given before inclusion in the roll of counsel sums up his/her “mission” the word used to define his/her duties. It reads: I solemnly declare that I will perform my duties and exercise my mission before the International Criminal Court with integrity and diligence, honourably, freely, independently, expeditiously and conscientiously, and that I will scrupulously respect professional secrecy and the other duties imposed by the Code of Professional Conduct for Counsel before the International Criminal Court.

Counsel must act at all times honourably, independently and freely. Independence in the discharge of his/her duties is the hallmark of the mission. Sustenance of the integrity of judicial proceedings in every respect identifies the duty of counsel to the Court, binding him/her to act honourably at all times and in all circumstances (article  of the Code). . The Code defines in detail the relationship between counsel and client, makes provision for the secrecy of their communications, their relations with third parties as well as the relations that should obtain with witnesses and victims. The proficiency of counsel in the discharge of his/her duty to represent the client must be unquestionable, defending within the range of counsel’s mission the rights of the client with ardour and commitment. Efficient representation of the defendant by counsel is a demanding task. Indicative of the lack of proficiency on the part of counsel to represent the accused is the decision of the Privy Council, Bernard v. The State of Trinidad and



chapter ten

Tobaco634 quashing a conviction for murder owing to lack of experience on the part of counsel, a lawyer of three months standing, who represented the accused. The following passage from the opinion of the Privy Council, reflects their stand on the subject: Their Lordships do not consider that it could ever be justifiable to appoint counsel of three months standing to defend a client on his own in a capital murder trial. Even when one cannot point to specific matters with which he failed to deal effectively, it cannot be supposed that he has the maturity of judgment and experience of tactics, handling of evidence and presentation to be able to make correctly the myriad of necessary decisions in the course of a major trial, many of which require instant and sure reaction for which experience alone fits an advocate.

The provisions of the rules and regulations relevant to the qualifications of counsel, requiring ten years experience, are designed to provide a shield against counsel’s inexperience, impacting adversely on counsel’s representation brief. . The Regulations make provision for the establishment of a number of offices within the Registry to represent the interests of the Defence and those of victims and witnesses, whenever the interests of justice so require. In the first place, provision is made for the establishment of the Office of Duty Counsel, for the provision of legal assistance to a person under investigation or the accused, whenever counsel for the defence is unavailable or where the person or the accused has not yet secured the services of counsel (regulation ). The following passage from the decision of the Appeals Chamber of  April ,635 providing reasons for its earlier decision of  April ,636 sheds light on the application of regulation : Regulation . of the Regulations of the Court aims to harmonize the ends of a fair and expeditious trial with the rights of the accused or a person under charge. It is specifically designed to address the situation where a person has not yet secured legal assistance and yet wishes such aid for his/her defence. Regulation . is applicable in cases “where the person requires urgent legal assistance”.637

634

Bernard v. The State of Trinidad and Tobaco   Cr. App. R. . See Prosecutor v. Lubanga Dyilo, Reasons for the Appeals Chamber’s Decision to Extend Time Limits for Defence Documents issued on  April ,  April  (ICC-/–/– ). 636 See Prosecutor v. Lubanga Dyilo, Appeals Chamber’s Decision to Extend Time Limits for Defence Documents,  April  (ICC-/–/–). 637 Prosecutor v. Lubanga Dyilo, Reasons for the Appeals Chamber’s Decision to Extend Time Limits for Defence Documents issued on  April ,  April  (ICC-/–/–), para. . 635

counsel



IV. Office of Public Counsel for the Defence . The Office of Public Counsel for the Defence is a separate department of the Registry. Counsel serving in the Office are assured total independence in the discharge of their duties. The primary duty of the Office is to represent and protect the rights of the defence at the initial stages of the investigation (regulation ). Further, the office must render assistance to the defence in two ways; (a) by way of legal research and advice and (b) by appearing before a Chamber in relation to specific issues. . The establishment of a corresponding body is envisioned for the support of victims, namely the Office of Public Counsel for Victims (regulation ). This body, too, shall be independent from any authority trusted to carry out its mandate according to law. The body is charged with the task of providing support and assistance to the legal representatives of victims and to victims themselves. Two areas of assistance are singled out, without the list being exhaustive. These are; (a) legal research and advice and (b) appearing before the Court in respect of specific issues. . Regulation  makes provision for defence though counsel when chosen by a legally assisted defendant or when appointed by the Chamber. When a legally assisted person chooses counsel from amongst the roll of counsel, the Registrar shall contact the counsel nominated and, if the brief is accepted, the Registrar shall facilitate the execution by the appointer of the necessary power of attorney. If the chosen counsel is outside the list, the Registrar must take the necessary steps to determine his/her eligibility for inclusion in the roster. A person entitled to legal aid may, until the process of appointment is completed, be represented by Duty Counsel. Provision is made in the Regulations for the assessment of the means of the defendant where legal aid is sought and what the assignment entails. Legal assistance must cover all costs reasonably necessary for the unimpeded and effective discharge of the duties of defence counsel (see regulations ,  and ). Regulation . addresses the appointment of defence counsel by a Chamber. Where the Statute permits the assignment by a Chamber of counsel to defend the person under investigation or the accused, the Chamber may, after consultation with the Registrar, proceed and appoint counsel.

chapter eleven INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE

. The cooperation of States Parties is fundamental to the functionality of the International Criminal Court. Article  binds States Parties to fully cooperate with Court authorities in the investigation and prosecution of crimes within the jurisdiction of the Court. The statutory scheme is premised on the cooperation of states for the advancement of the mission of the Court and the fulfillment of the objectives sought to be attained by its creation. Article .(a) lays down that the Prosecutor shall conduct investigations on the territory of a State Party in accordance with the provisions of Chapter , that is, within the context of State cooperation envisaged therein. The only occasion when investigative measures may be taken within the territory of a State Party outside the scheme of statutory cooperation,638 is when there is a breakdown of state authorities, especially its judicial system, making impossible the execution of a request for cooperation. Power to sanction such a course vests in the Pre-Trial Chamber after obtaining the views of the State concerned if at all possible.639 The procedural framework within which such a course may be pursued and sanctioned is established by rule . . Article  makes provision for the submission by the Court authorities of requests for cooperation and the manner of their transmission to the State to which they are addressed. A request may be submitted through diplomatic channels or through any other channel designated for the purpose by a State Party upon accession to the Statute or through any regional criminal police organisation (article .(a) and (b)). Provision is also made in the same article for the transmission of material supporting the request and the language in which it should be couched. The request itself and accompanying documents must be kept confidential unless disclosure is essential for the execution of the request. In the event of failure on the part of a State party to respond to the request for assistance, preventing thereby the ICC authorities from exercising their functions, the Court may make a finding to that effect and submit it to the Assembly of States Parties pursuant to the provisions of article .. Regulation  provides that if the requested State disputes the legality of the 638 639

See article .(b). See article .(d).



chapter eleven

request, it may seek a ruling of a competent chamber of the ICC on the matter. The chamber having competence to address the issue is the Pre-Trial Chamber that authorised the investigation founding the request for cooperation. Where a State refuses to cooperate without disputing the legality of the request an interested party may move the competent Chamber in accordance with regulation  to make a finding of refusal to cooperate. Where the request for cooperation emanates from a chamber of the ICC, the Chamber itself may initiate the process that may lead to a finding of failure or refusal of a State to cooperate with the Court authorities. A finding by a competent chamber that a State has failed to cooperate must be referred by the President of the Court to the Assembly of States Parties or the Security Council depending on the body that referred the situation to the Court. . Article .(b) provides that if a non-State Party refuses to cooperate in a matter referred to the Court by the Security Council, the Court may refer the matter to the Security Council. As in the case of a State Party,640 failure of a nonState Party to cooperate in a case referred to the Court by the Security Council may be affirmed by a finding of a competent chamber, to be transmitted to the Security Council in accordance with regulation .. . Article (b) provides that the Security Council may refer to the Court a situation in which one or more crimes within the jurisdiction of the Court have been committed, pursuant to the provisions of Chapter VII of the Charter of the United Nations. The power of the Security Council to refer a situation where a crime or crimes within the jurisdiction of the Court appear to have been committed is not territorially limited. The crimes may have been committed in any State or by nationals of any State. Article .(b) is premised on the understanding that in the case of Security Council referrals, non-Party States must cooperate in the investigation of a situation in much the same way as States Parties must do with regard to referrals made by a State Party. Article  of the Charter of the United Nations imposes an obligation upon members of the United Nations to carry out decisions of the Security Council in accordance with the Charter. What must be clarified is that the Security Council may refer a situation to the Court occurring within a State Party. The remit of article  (b) is not confined to referrals of situations occurring or manifested in non-State Parties but to States Parties too. So far only one situation has been referred to the ICC by the Security Council of the United Nations to the Court under Chapter VII, concerning crimes allegedly committed in the Darfur

640

See article ..

international cooperation and judicial assistance



region of Sudan.641 It is interesting to notice that, by resolution of the Security Council, the government of Sudan is requested to cooperate fully and provide the necessary assistance to the authorities of the Court for the investigation of the situation, a request extended to all States and international organisations. . It is worth reminding that power is acknowledged by article  of the Statute to the Security Council to defer, by a resolution to that end, the investigation or prosecution of a crime within the jurisdiction of the Court for a period of twelve months. Any such deferral may be renewed under the same conditions and for the same period as provided in article  of the Statute. Article  is antinomous to the basic ends of the Statute to bring to justice those committing the heinous crimes within the jurisdiction of the Court. Any delay in the investigation and prosecution of crime can hardly be reconciled with the ends of justice. It subordinates the need for justice to considerations extraneous to its mission. It is worth reminding that the relationship between justice and peace was rightly depicted in Ancient Greece by deifying both, casting peace as the offspring of justice. . Article  provides: a. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can firstly obtain the cooperation of that third State for the waiver of the immunity. b. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

Article  is a provision enabling non-parties to the Statute to shield their citizens from the writ of the ICC and States Parties to bypass their obligations under the Statute. This is far from a salutary provision opening the door for the neutralisation of the universality of the jurisdiction of the Court. . In accordance with article .(a), the Court may enter into an arrangement or agreement with a non-State Party for the provision of assistance under Part  of the Statute. Furthermore, article . empowers the Court to ask intergovernmental organisations to provide information or documents on an ad hoc arrangement or, upon agreement with the State. 641

Security Council Resolution ,  March  (S/RES/ ()).



chapter eleven

. Rules  to  detail the organs of the Court responsible for the transmission of requests for cooperation and judicial assistance, the channels of communication, the language in which they should be framed, the language of requests addressed to non-parties to the Statute and changes, if any, in the channels of communication or the language in which requests should be articulated. . Article  requires States Parties to ensure the availability of procedures under national law for all forms of cooperation specified in Part  of the Statute. These States must streamline their procedures in a manner conforming to the regime of cooperation envisaged by the Statute. . Requests for surrender of a person to a state, on the territory on which a person may be found, are governed by the provisions of article . Such a request must be accompanied by the supporting material envisaged by article . The implication is that such a request may be addressed to any state not just a State Party subject to the proviso that non-States Parties are not bound to comply save with regard to a request made in the context of a Security Council referral. Rule . provides that the Registrar is the authority responsible for the transmission of requests for cooperation and receiving responses thereto including information and documents accompanying them. In the decision of Pre-Trial Chamber II (ex parte, Prosecutor only), Decision on the Prosecutor’s Application for Warrants of Arrest Under Article ,642 the court turned down an application of the Prosecutor that he be allowed to transmit to a State a request for cooperation, something that would give him leeway to choose the time of transmission best suited for the execution of the arrest warrant. As the court indicated in its decision, the provisions of article  and rule ., make the Registrar the sole authority responsible for the submission of requests of a Chamber for cooperation. The same approach to the subject is reflected in the subsequent decision of Pre-Trial Chamber I, “Decision on the Prosecution Application under Article . of the Statute”.643 . Regulation  directs that a request for cooperation must be accompanied by a copy of any relevant admissibility ruling (Pre-Trial Chamber). Rule  provides that the requested State shall “immediately inform the Registrar

642

Situation in Uganda, Decision on the Prosecutor’s Application for Warrants of Arrest Under Article ,  July  (ICC-/–/–). 643 Prosecutor v. Ahmad Harun and Ali Kushayb, Decision on the Prosecution Application under Article () of the Statute,  April  (ICC-/–/–), para. .

international cooperation and judicial assistance



when the person sought by the Court is available for surrender.” Article  prescribes the content of the request and specifies the documents that should accompany it. . If the person whose arrest and surrender is sought challenges the request on the basis of the principle of ne bis in idem, the requested State may inquire of the Court whether there is a ruling on the admissibility of the case. Where there is a ruling that the case is admissible, the requested State shall proceed with the execution of the request. If a ruling on admissibility is awaited, the State may postpone execution of the request pending the decision of the Court on admissibility (article .). Rule  acknowledges power to a Chamber dealing with admissibility to seek from the requested state information regarding the facts surrounding the applicability of the principle ne bis in idem. . If the person to be arrested will be conveyed by air to the seat of the Court, no transit arrangements need be made with any country over the airspace of which the plane will fly. Otherwise, a request for transit must be transmitted by the Court to the country through which the person shall pass giving the details envisaged by article .(b) about the individual and fashioned in the way set out in rule . Where an unscheduled landing occurs on the territory of a transit state, that state may require the submission of a transit request while keeping the person to be surrendered in custody. The person transported must be kept in custody but not beyond  hours unless a transit request from the Court is received in the meantime (article .(e)). A person released pursuant to the provisions of article .(e) may as provided in Rule . be rearrested in accordance with the provisions of article  or article  of the Statute. . If the person whose arrest is sought is either serving a sentence of imprisonment or is prosecuted in the requested State for a crime other than the crime(s) for which his arrest is sought, the requested State, after deciding to grant the request, shall consult with the Court. Rule  provides: Following the consultations referred to in article , paragraph , the requested State may temporarily surrender the person sought in accordance with conditions determined between the requested State and the Court. In such case the person shall be kept in custody during his or her presence before the Court and shall be transferred to the requested State once his or her presence before the Court is no longer required, at the latest when the proceedings have been completed.

The object of this rule is to ensure that proceedings before the ICC will not be interrupted pending determination of a request for surrender.



chapter eleven

. The arrangements necessary for surrender are governed by the provisions of rule . Article  prescribes the contents of a request for arrest and surrender and the documents that should accompany it. . In urgent cases, the provisional arrest of a person may be sought pursuant to the provisions of article . The risk of the person to be arrested disappearing, in the event of delay in the effectuation of the arrest, would no doubt provide grounds of urgency. The likelihood of the potential arrestee interfering with witnesses or destroying evidence also provides reasons for the urgent execution of an arrest warrant. The request for provisional arrest may be made by any means capable of constituting a written record, containing information about the identity of the person to be arrested and his/her probable whereabouts, a concise statement of the crimes in relation to which the arrest is sought and a statement confirming the existence either of a warrant of arrest or a judgment delimiting liberty. The written record to be conveyed to the state authorities must affirm that a request for surrender will follow. Such a request must, as provided in rule , be transmitted within  days from the date of the provisional arrest. . Article  addresses competing requests for the surrender of a person; requests by the ICC, on the one hand, for the surrender of a person and requests by a State for the extradition of the same person, on the other. If the requesting State is a State-Party, priority should be given to the request of the Court if the case has been declared to be admissible or a decision to that effect is taken after notification to the requested State. If no such ruling has been given, or admissibility is not a matter under consideration, the requested State may proceed with the application for extradition. If the requesting State is not a party to the Statute, priority shall be given to the request of the Court provided it determines that the case is admissible. In the absence of such a ruling, the State may proceed with the request for extradition. Priority shall be given to the request of a State for the extradition of a person whose surrender is sought by the Court if the requested State is under an international obligation to extradite a person to the requesting State. In every other case, in the absence of a ruling that the case is admissible the requested State has discretion whether to surrender the person to the Court or proceed with his/her extradition to the requesting State. In the exercise of this discretionary power, states should have regard to a number of considerations, such as the dates of the respective requests, the territory where the crime was committed, the nationality of the person to be surrendered or extradited, as well as the possibility of a subsequent surrender by the requesting State to the Court. If the competing requests refer to different crimes, the requested State shall give priority to the request of the Court. Furthermore, if

international cooperation and judicial assistance



the requested State is under an international obligation to extradite the person to the requesting State, it must determine, after giving due consideration to all relevant factors, especially the gravity of the relevant crime/crimes, whether to surrender the person to the Court or to the requesting State.

I. Areas of Cooperation . Article  itemises species of assistance that the requested State must provide at the request of the Court respecting the investigation or prosecution of crimes within the jurisdiction of the Court. They include the taking of evidence, the identification and whereabouts of the person(s) or the location of items or evidence, the questioning of persons being investigated or prosecuted, the execution of searches and seizures, the supply of documents as well as the protection of victims and witnesses and the preservation of evidence. Detailed provision is made in article . about the assistance to be rendered, confronting impediments in the way and the modalities of cooperation. Requests for assistance pursuant to article  must conform to the provisions of article . Authority vests in the Court to provide assurance to a witness or an expert that he/she will not be prosecuted, detained or subjected to any restriction of personal liberty as provided in rules ,  and . Matters relevant to the transfer of persons in custody from the requested State to the seat of the Court are the subject of rule . Article  specifies the formalities that should be heeded in the execution of requests for assistance made pursuant to articles  and . Execution of requests under articles  and  are the subject of article . . Article  makes provision for the postponement of the execution of a request for assistance where its execution would interfere with an ongoing investigation or prosecution in the requested State for a crime other than that for which cooperation is sought. Postponement shall be for a period of time agreed between the requested State and the Court. However, such postponement shall be for a period no longer than necessary for the completion of the investigation or prosecution in the requested State. Moreover, the requested State shall give consideration to the possibility whether assistance may be rendered immediately subject to specified conditions. Article  deals with the postponement of the execution of a request for cooperation pending the determination of a challenge to the admissibility of a case. No postponement is feasible where the Court specifically directs that the Prosecutor may pursue the collection of evidence pursuant to articles  and  of the Statute. In the event of problems arising in the process of execution of a request relating



chapter eleven

to the sufficiency of the information provided as to the whereabouts of the person to be arrested, his/her identity, the requested State may hold consultations with the Court with a view to resolving matters arising thereat (article ). . A person surrendered to the Court shall not, as provided in article (), be punished or detained for conduct other than that founding the crimes for which the person has been surrendered to the Court. This rule, termed the ‘rule of speciality’ by article , may be waived by the surrendering State at the request of the Court, as provided in paragraph  of the same article. Article  furnishes a definition of the crucial terms encountered in Chapter , ‘surrender’ and ‘extradition’; ‘surrender’ is defined as ‘the delivering up of a person by a State to the Court, pursuant to this Statute’ and ‘extradition’ as ‘the delivering up of a person by one State to another as provided by treaty, convention or national legislation’. . The essence of the cooperation regime established by the Statute lies in the imposition of an obligation on the part of States Parties to cooperate with the Court authorities in the investigation and prosecution of crimes within the jurisdiction of the Court. A corresponding obligation is cast upon every member of the United Nations to cooperate in a like manner with the Court, respecting situations referred to the Court by the Security Council. Provision is made for addressing uncertainties in requests for cooperation and procedural rules are in place establishing the process of elucidation of uncertainties. The provisions of article  are problematic in that they leave room for States Parties to bypass their obligation to cooperate with the Court for reasons of doubtful validity. A State not party to the Statute is allowed to remove its citizens from the compass of an investigation or prosecution for a crime committed within a State Party. This again may be regarded as a derogation from the spirit of the Statute. These shortcomings apart, the mechanism of cooperation may be regarded as satisfactory, articulated in clear terms and supplemented by a comprehensive procedural framework.

ANNEX

Pursuant to the provisions of article . of the Statute, envisaging the definition and requisites of actionability of the crime of aggression before the ICC could assume jurisdiction over it and those of article  postulating the convening of a Review Conference for the purpose, a conference was held between  May and  June , in Kampala, the capital of Uganda. After years of preparatory work and intensive negotiations at the Review Conference, consensus was reached about the definition of the crime of aggression, the jurisdiction of the Court on the subject and the context within which it may be exercised leading to a decision to amend the Statute accordingly. In the first place, article  bis defines aggression as the planning, preparation, initiation or execution, “by a person effectively to exercise control over or to direct the political or military action of a State”. An act of aggression is identified as follows under article  bis: “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution  (XXIX) of  December , qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or ay extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state



annex of such gravity as to amount to the acts listed above, or its substantial involvement therein.

The essence of the crime of aggression lies in the violation by one State of the hypostasis of another State, its territorial and political sovereignty. Specific acts decried as criminal by the aforementioned United Nations Assembly Resolution are identified as acts of aggression. Subjugation, temporary or permanent, of one State by another, is at the root of the crime. The sovereignty of States is the subject of protection through the criminalisation of acts violative of it. Unlike the other crimes forming the subject of jurisdiction of the Court under article . (genocide, crimes against humanity, war crimes), criminal liability for the crime of aggression is confined to persons in control of political and military action pursued for the domination or overlording of another State. Criminal responsibility for the crime of aggression is limited to decision makers having control over political decisions of a State to order an attack against another State and direct military action for the purpose. At the core of the crime of aggression lies the use of armed force by one State against another, in the absence of either the justification of self-defence or authorisation by the Security Council. The range of jurisdiction of the Court in relation to the crime of aggression is limited in comparison to the crimes, the subject of article . of the Statute. Also different are the prerequisites set down for the invocation of the jurisdiction of the Court to deal with the crime of aggression. These are laid down in two new articles, notably, article  bis and article  ter. Articles  bis and  ter establish the parameters of the Court’s jurisdiction in relation to the crime of aggression and the prerequisites for its assumption and exercise. Article  bis, definitive of the ambit of the jurisdiction of the Court with regard to a) State referrals and b) the exercise of the proprio motu competence of the Prosecutor and article  ter definitive of the jurisdiction of the Court respecting referrals by the Security Council under article  (b) have common features itemised below. Both articles lay down that the jurisdiction of the Court over the crime of aggression is limited to crimes committed one year after the adoption of the amendments, signified by their ratification or acceptance, by thirty States Parties. The exercise of the jurisdiction of the Court is postponed to  January  subject to a decision being taken at any time thereafter by the Assembly of States Parties. The resolution to activate jurisdiction must be supported by a two thirds majority as provided for by articles . and .. It must be noticed that different time frames are set for a) the definition of the jurisdiction of the Court ratione temporis and b) the assumption and exercise of jurisdiction by the Court to deal with crimes of aggression.

annex



Provision is made in both articles that any determination of an act of aggression by an organ outside the Court “shall be without prejudice to the Court’s own findings under this Statute”. Consequently neither a determination by the Security Council that a crime of aggression has taken place or by any other body, judicial or non-judicial, as to the commission of a crime of aggression is binding on the Court. The independence, impartiality and sovereignty of the International Criminal Court in its sphere of authority is assured. Below, reference shall be made to distinct features of the two articles with regard to the exercise of the jurisdiction of the Court in relation to States Parties referrals and proprio motu powers of the Prosecutor, on the one hand and the exercise of jurisdiction in relation to referrals by the Security Council on the other. Article  bis This article confines the jurisdiction of the Court to crimes committed by a State Party and its nationals as articulated in article : unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years.644

Where the Prosecutor concludes after a state referral or in the exercise of his/her proprio motu power that there is a reasonable basis to proceed with an investigation into the crime of aggression, he/she must inform the Secretary General of the United Nations of the situation including any relevant information and documents. If the Security Council has not determined that a crime of aggression has been committed, the Prosecutor must refrain from taking any action in the matter, for a period of six months following notification. The object, no doubt, is to acquaint the Security Council with the situation as it emerges from an initial inquiry into the subject by the Prosecutor, allowing it time to address the issue. After the lapse of six months, if no determination by the Security Council has been made, the Prosecutor is freed to proceed with an investigation into the crime of aggression after receiving the authorisation of the Pre-Trial Division. Lastly, paragraph  clarifies that the provisions of article  bis are: without prejudice to the provisions relating to the exercise of jurisdiction with respect to other crimes referred to in article .

644

Article  bis. .



annex

Evidently, the enforceability of the crime of aggression is singled out for separate treatment, a fact that must be underlined. The amendments leave unaffected existing provisions of the Statute with regard to jurisdiction and the exercise of it concerning the crimes of genocide, crimes against humanity and war crimes. Article  ter We have already referred to common features of this article with article  bis. What is significant is that this article does not limit the jurisdiction of the Court or its exercise to crimes committed by a State Party or its nationals, a subject addressed in the book. Amendments of other articles of the Statute The amendment of three other articles of the Statute is envisaged, the following: Article  defining individual responsibility is qualified by the following addition sequential to article .:  bis. In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.

As the jurisprudence of the Appeals Chamber establishes, criminal responsibility for the commission of the crimes of genocide, crimes against humanity and war crimes is not limited to the top leadership but extends to every one who is party to it. The subject is debated at length in the book. A different position is adopted by this amendment with regard to the crime of aggression, limited, as earlier noted, to decision makers of a State responsible for militarily attacking another State. The first sentence of article . of the Statute, that is: Elements of Crimes shall assist the Court in the interpretation and application of articles ,  and .

is replaced by the following sentence: Elements of Crimes shall assist the Court in the interpretation and application of articles , ,  and  bis.

Elements of Crimes, intended as an aid to the interpretation and application of the crime of aggression, are set out hereafter as “Appendix A” to this Annex.

annex



The introductory passage to article , paragraph  (“chapeau”) is amended in order to make applicable, as with crimes under article , the principle ne bis in idem, incorporated in article , to the crime of aggression. The Assembly of States Parties at Kampala in its Resolution adopting the amendments to the Rome Statute of the International Criminal Court and the Elements of Crimes, further decided: to adopt the understandings regarding the interpretation of the abovementioned amendments contained in attachment III of the present resolution;

The understandings regarding the amendment of the Rome Statute are reproduced hereafter as “Appendix B”. Seemingly, it is envisioned that the understandings will be incorporated in the Statute; one may so assume given that the same phraseology is used with respect to other amendments of the Statute and Elements of Crimes. If these understandings are included in the Statute, their status, with respect to the amendments, will be analogous to that of the Preamble. On the other hand, it can be argued that it is not intended to induct the understandings into the Statute considering that the decision is not identified as an amendment thereto. If that is the case, their relevance would lie in tracing the background (legislative history) to the enactment of the amendments to whatever extent this is permissible by the principles governing the interpretation of the provisions of the Statute, namely, articles  and  of the Vienna Convention of the Law of Treaties . Of especial relevance in this connection are the provisions of article . (a) and those of article  of the Convention. The limitation of criminal liability to prime movers of the crime of aggression and the postponement of its enforceability to a future unspecified date, after , reflect scepticism on the part of the Assembly of States Parties about the incorporation of the crime into the Statute. The hopeful sign is that the crime of aggression has been defined and a start has been made with regard to its justiciability, a beginning that will, as one may anticipate, pave the way for the establishment of an all-embracing regime in the years to come, liberating the world, as history reveals, from the wiliness of the those who put power above the law.

appendix a AMENDMENTS TO THE ELEMENTS OF CRIMES

Article  bis. Crime of aggression . It is understood that any of the acts referred to in article  bis, paragraph , qualify as an act of aggression. . There is no requirement that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations. . The term “manifest” is an objective qualification. . There is no requirement to prove that the perpetrator has made a legal evaluation as to the “manifest” nature of the violation of the Charter of the United Nations. Elements . The perpetrator planned, prepared, initiated or executed an act of aggression. . The perpetrator was a person645 in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression. . The act of aggression—the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations—was committed. . The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the Charter of the United Nations. . The act of aggression, by its character, gravity and scale, constituted a manifest violation of the Charter of the United Nations. . The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations. 645

With respect to an act of aggression, more than one person may be in a position that meets these criteria.

appendix b UNDERSTANDINGS REGARDING THE AMENDMENTS TO THE ROME STATUTE FOR THE INTERNATIONAL CRIMINAL COURT ON THE CRIME OF AGGRESSION

Referrals by the Security Council . It is understood that the Court may exercise jurisdiction on the basis of a Security Council referral in accordance with article , paragraph (b), of the Statute only with respect to crimes of aggression committed after a decision in accordance with article  ter, paragraph , is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. . It is understood that the Court shall exercise jurisdiction over the crime of aggression on the basis of a Security Council referral in accordance with article , paragraph (b), of the Statute irrespective of whether the State concerned has accepted the Court’s jurisdiction in this regard. Jurisdiction ratione temporis . It is understood that in case of article , paragraph (a) or (c), the Court may exercise its jurisdiction only with respect to crimes of aggression committed after a decision in accordance with article  bis, paragraph , is taken, and one year after the ratification or acceptance of the amendments by thirty States Parties, whichever is later. Domestic jurisdiction over the crime of aggression . It is understood that the amendments that address the definition of the act of aggression and the crime of aggression do so for the purpose of this Statute only. The amendments shall, in accordance with article  of the Rome Statute, not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.



appendix b

. It is understood that the amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State. Other understandings . It is understood that aggression is the most serious and dangerous form of the illegal use of force; and that a determination whether an act of aggression has been committed requires consideration of all the circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the Charter of the United Nations. . It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.

INDEX

Abuse of process Abuse of process §  Admissibility Admissibility, principle of § , –  Aggression Aggression, crime of Annex §  Appeals Appeal by convicted / sentenced person § ,  Appealable decisions §  Appellate jurisdiction—parameters § – Appellate process—nature of §  Discontinuance of § – Document in support of, content, length § – Document in response §  Reply to, when permissible § – Appeals Chamber Acquittal—suspension of § – Appeal Judges, service exclusively in the Appeals Division §  Composition of §  Dispositive powers of §  Decision to suspend release of acquitted person §  Appeal requested by Court §  Delivery of judgments in public— exceptions § , Enforcement of first instance decisions—suspension of §  Extension of time for taking an appeal § –, – Final decisions of Trial Chamber— grounds of appeal against sentence § ,  Error of fact § – Error of law § – Fair and expeditious trial § –

Fairness of proceedings § ,  Grounds of appeal § ,  Prosecutor’s appeal on behalf of convicted person § – Procedural error §  Finality of decision—conviction, sentence and reparation order §  Format and content of an appeal §  Grounds upon which revision of conviction or sentence may be sought and sanctioned §  Judgment of—ambit and content of §  Judicial impropriety—ground for revision § ,  Jurisdiction of § – New evidence casting doubt on the acceptability of verdict or sentence—nature of § – Original jurisdiction of §  Powers of § , – Article  §  Power to direct appeal against conviction in the context of an appeal against sentence and vice versa § – Powers upon acceptance of application for revision §  Revision of conviction and sentence § – Available remedies § – Previous decisions of the Court— source of law §  Proceedings in camera § – Proceedings under seal § – Reasoning of judgment/decision/ ruling §  Replacement of judges—filling judicial vacancies § –

 Appeals Chamber (Continued) Sentence Criteria for ponderation §  Temporary attachment of judges of the Trial and Pre-Trial Chamber to the other of the two divisions §  Temporary vacuum in the composition of—redress §  Time for raising an appeal against final decisions of Trial Chamber §  Arrest Acquittal §  Forecasting likelihood of the accused turning up to stand trial—relevant considerations § – Prerequisites for issuance of warrant of arrest § – Presence of the person a) at the confirmation hearing and b) at the trial §  Provisional arrest §  Reasonable grounds to believe that a person has committed a crime § – Remit of warrant of arrest §  Right of arrestee to contest detention §  Ruling prolonging detention or sanctioning release—article . §  Safeguards against unjustified or inexcusable delay by Prosecutor §  Scope of article  §  Statutory provisions §  Summons to appear Requisites for issuance of §  Summons to appear not an alternative to a warrant of arrest § – Unconditional or conditional approval of §  Warrant of arrest Amendment of §  Application for §  Challenge of validity of warrant

index of arrest on grounds of double jeopardy §  Content of §  Remit of §  Arrest proceedings in the custodial State Appearance before the Court §  Application for interim release—no time limit §  Article  §  Pre-Trial Chamber must examine anew whether to order prolongation of detention or the release of the person § – Criteria for determination of application for interim release § – Duty to inform arrestee of his/her rights § – Information to be imparted to the person arrested § – Initial proceedings—surrender of arrestee §  Interim release in the custodial state §  Proceedings before the Pre-Trial Chamber §  Propriety of warrant of arrest National states—no right to review §  Rearrest of person for breach of conditions of release § –  Recommendations of Pre-Trial Chamber to competent authorities of custodial state §  Release conditional or unconditional §  Inexcusable delay on the part of the Prosecutor may justify the conditional or unconditional release of a detainee § – Review of a ruling given under article .—article . § – Rights of person before the Court §  Rights of the person must be duly observed § 

index Right to apply for interim release §  Right to dispute detention § ,  Surrender of arrestee to the Court §  Article  §  Appealability of reparation orders §  Decisions subject to appeal other than final decisions of Trial Chamber § – Decisions granting or denying release of a person under investigation §  Decisions of the Pre-Trial Chamber to act on its own initiative under article . §  Decisions on jurisdiction and admissibility §  Interlocutory decisions significantly affecting the fair and expeditious conduct of the proceedings or the outcome of the trial §  Power to suspend the enforcement of appealable decisions §  Right to appeal, confined to the parties and specified decisions of first instance courts § – Code of Judicial Ethics Advisory character of §  Assumption of political functions, impermissible §  Code of Judicial Ethics § – Extrajudicial opinions—implications §  Framework and spirit of § – Complementarity § ,  Article  §  Confirmation Hearing—Confirmation of Charges Charges not confirmed cease to have any effect § ,  Non-confirmation of charges— Prosecutor may seek confirmation anew upon new evidence §  Options open to Pre-Trial Chamber upon conclusion of hearing § – 

 Orders for disclosure of evidence and information—disclosure of evidence § –

Power of Prosecutor to seek amendment of charges after confirmation§  Prelude to Content of document containing the charges §  Facts founding the charges must be disclosed §  Investigations may continue after commencement of confirmation hearing §  Presence of person at § – Presentation of evidence by the person §  Prosecutor bound to disclose exonerating evidence and material to the person §  Reasonable time—disclosure must precede hearing §  Prosecutor not bound to call oral evidence §  Rights of person under charge—right to challenge evidence §  Standard of proof—substantial grounds to believe that the person committed the crime § , –  Summary of evidence §  Corrigenda §  Counsel Code of professional conduct for §  Misconduct, species of § – Office of Public Counsel for the Defence § – Registrar responsible for registration of—removal from the roll— decisions subject to review by the President at the instance of aggrieved party §  Relationship between client and Counsel §  Right to be represented by counsel § 



index

Counsel (Continued) Right to legal assistance § –,  Qualifications for enrolment in the roaster of defence counsel § –  Crimes amenable to the jurisdiction of the Court Crimes amenable to the jurisdiction of the ICC §  Mental element of § – Crimes against humanity Attack against civilian population— definition of §  Background and configuration § –  Crimes against humanity § – Ingredients of §  Introductory statement, paragraph , Elements of Crimes §  Paragraph , Elements of Crimes interpretation of §  “repeated and systematic attack”, Article —meaning of § – Elements of Crimes Adoption of §  Attacks against civilian population, article . §  Consistency with the Statute § – Crimes against humanity—introductory statement paragraphs –, meaning and implications of § , , –, –. Framework of application § – Identification of the elements of the crime of genocide § – Mental element of crimes § – Object not to supplant judicial responsibility for the interpretation of the Statute but furnish an aid thereto—§  Statutory authorisation for enactment §  War crimes—introductory statement §  Epiky Evolvement of §  Equity (see epiky)

Evidence Corroboration of, not legally required § – Evidence obtained in violation of human rights—implications §  Oral testimony rule—exceptions § – Power of the Court to direct the submission of evidence—article . §  Relevance and Admissibility—Rules – §  Submission of §  Franco-German war  §  Genocide Background to § ,  Identification of ingredients § – Nuremburg Tribunal §  Raffael Lemkin §  UN Genocide Convention §  Human Rights Universal Declaration of Human Rights §  International armed conflict International armed conflict §  ICC Admissibility §  Interpretation of, article .(d) § –, – Adoption of §  Article  § ,  Article  § – Article  §  Background to the establishment of, § –, , – Competence of §  Composition of §  Coordination Council §  Multifaceted institution §  Judicial and prosecutorial authorities, separate and distinct Registry’s sphere of authority §  “Court”–meaning of § – Diplomatic Conference of Plenipotentiaries leading to the adoption of the Rome Statute on  July  § ,  Divisions of § 

index International legal personality § –  Inherent powers of § – Judiciary § – Chambers—composition, jurisdiction competence and powers of § – Divisions of § – Jurisdiction § –,  Law, the nucleus of social organisation §  Permanent and Independent Court §  Preparatory committee for the preparation of a consolidated text for the establishment of an international criminal court §  Intergovernmental Conference of Geneva §  International Cooperation and Judicial Assistance Arrangements for cooperation of a non-state party §  Assistance from a requested state §  Challenges to arrest on the basis of the principle ne bis in idem §  Competing requests for surrender §  Cooperation of States Parties consequential for functionality of the Court § ,  Postponement of execution of a request for assistance §  Power of Security Council to defer the investigation or prosecution of a crime within the jurisdiction of the Court §  Provisional arrest §  Request for cooperation §  Request for the surrender of a person—content, transmission of, transportation of the person to the seat of the Court § –, ,  Security Council referrals—duty to cooperate extends to every state § –



States may refrain from surrendering a person or providing assistance with regard to investigation if to do so would involve violation of its obligations under international law §  States Parties must streamline domestic law along the duty to cooperate §  International Law Commission International Law Commission for the establishment of an international criminal court §  Judges (Judiciary) Absence of bias and appearance of bias § – Activities incompatible with the holder of judicial office §  Assignment to divisions §  Disqualification of, grounds §  Disqualification of, who may seek it §  Disqualification decided by an absolute majority of judges §  Duty to excuse themselves from sitting in a case § – Election of § – Full-time judges must not engage in any occupation of professional nature § – Independence and impartiality of § ,– Number of §  Numerical strength of each division §  Pension rights §  Qualifications for election §  Self-Recusal—applications of judges decided by Presidency §  Temporary attachment of Judges of the Pre-Trial to the Trial Division and vice versa §  Tenure of judges of the Appeals and Trial Chambers—extension when warranted §  Term of Office § , 



index

Jurisdiction Admissibility § –,  Aggression—crime of § – Assumption of jurisdiction subject to complementarity §  Inability or unwillingness of a state to assume and exercise jurisdiction § –,  Self-referral by a state party §  Social alarm—Causation of, not an element of any crime within the jurisdiction of the Court §  Ambit of §  Article  § – Crimes within § , , –, ,  Magnitude of crime §  Material jurisdiction §  Individual criminal responsibility § , – Overview of crimes against humanity § – Territorial § ,  Parameters of—judicially identified §  Persons under  not criminally responsible § – Ratione personae §  Referral by a State-Party §  Referral by Security Council §  States not parties to the Statute may accept jurisdiction of the court in relation to specified crimes §  Leipzig trials Leipzig trials §  National states Emergence of §  Ne bis in idem— Ne bis in idem—the rule against double jeopardy §  Nuremberg Tribunal § – Establishment of § , Composition of §  London Agreement §  Nuremberg Charter § –, Sequential jurisdiction vested in German courts § , 

Offences against the administration of justice Assumption of jurisdiction to try offences—relevant factors § –  Conduct antinomous to due administration of justice § – Intentional conduct § – Jurisdiction of states parties to try offences § – The Statute and Rules of Procedure and Evidence—applicable unless otherwise provided § – List of Counsel’s responsibility for presentation of false or forged evidence §  False testimony contrary to undertaking to tell the truth §  Party presenting evidence knowing it to be false §  Persons under  not criminally liable § – Object of criminalisation of conduct §  Offences committed in the face of the Court §  Prescription of offences §  Principles and procedures applicable to investigation of § – Punishment Fine height of it—collection of— consequences of failure to pay § – Sanctions for misconduct before the Court—measures taken against accused § – Officials—Counsel misconducting himself § – Persons other than the accused misconducting themselves before the Court § – States Parties must streamline their legislation along the Statute § – Office of the Prosecutor Amendment of charges § – Deputy Prosecutor § 

index Disqualification of Prosecutor and Deputy Prosecutor §  Election of Prosecutor and Deputy Prosecutor §  Independence and impartiality of Prosecutor and Deputy Prosecutor §  Investigatory and prosecutorial powers of Prosecutor §  Prosecutor heads the Office  Qualifications for appointment –  Responsibilities of § , , – Term of Office of Prosecutor and Deputy Prosecutor §  International Court of Justice— establishment of §  Permanent Court of International Justice § ,  Plenary Sessions Administrative decisions §  Decision making, majority needed § – Legislative authority §  Meetings of plenitude of judges §  Powers and authority §  Presidency Authority and Responsibilities § , –, – Competencies §  Composition of § –,  Disciplinary jurisdiction over judges, Prosecutor, Deputy Prosecutor –Election of members §  Enforcement of decisions/judgments/rulings §  Establishment of duty roster of judges §  Registrar and Deputy Registrar § – Replacement of judges §  Responsibilities § – Term of Office §  Pre-Trial Chamber Assistance to defence §  Equality of arms between contesting parties to proceedings § 

 Exercise of functions by Trial Chamber §  Functions and powers § –, –

Investigations, measures that may be sanctioned for their efficacy § –  Investigative opportunities, measures for taking advantage of §  Jurisdiction—exercise of, en banc or by a Single Judge § – National security, protection of §  Single Judge Criteria for nomination §  Power of Pre-Trial Chamber to recall a decision appointing a Single Judge §  Warrant of arrest § – Orders, decisions and rulings § –  Power to take measures for the protection of victims, witnesses and members of their families §  Preservation of evidence §  Range of authority § – Review of decisions of the Prosecutor, not to embark on an investigation or the prosecution of a case § –  Registry Authority of § – Role of § –, – Administrative infrastructure of the judiciary §  Election of Registrar/Deputy Registrar—qualifications for appointment § –, ,  Establishment of Victims and Witnesses Unit (VWU) §  Registrar’s authority to petition the Court § – Responsibilities for security of Court §  Responsibilities of the President and Presidency for functioning of Registry §  Staff Regulations of § 



index

Registry (Continued) Staff Rules of §  Term of office of Registrar and Deputy Registrar §  Regulations governing operations §  Rome Statute Aims of §  Applicability of No retroactive application §  States acceding to the Statute after its entry into force—applicability after accession §  Article  § – Article  §  Article  § , ,  Article  § ,  Article . §  Article  § , , –,  Complementarity §  Commitment to the objectives of the Charter of the United Nations § ,  Change of the law during extant proceedings-implications §  Jurisdiction—universal character §  Law applicable Article —compass of § – Article .(b) Second category of § – Article .(c) Third category of § – Internationally recognised human rights § – Judicial decisions of the court— article . § – Parameters and range of application of Rules of Procedure and Evidence (RPE) and Elements of Crimes §  Regulations of the Court §  States not parties to the Statute may accept jurisdiction of the court in relation to specified crimes §  Statutory provisions entrusting regulation of specific subjects by RPE §  Membership of states § 

Preamble to §  Interpretative value § ,  Principal aims of §  Referral by Security Council §  Rules of Procedure and Evidence (RPE) Adoption of §  Amendment of §  Article  §  Article  §  Content of §  Framework of §  Interpretation of §  Power of the judges of the Court to introduce provisional rules §  Submission of evidence §  Regulations of the Court Adoption of §  Article . of the Statute § – Content of § – Framework of § – Impact on the interpretation of— applied and interpreted subject to the Statute and the RPE § – Seat of the Court Headquarters agreement § , , , , ,  Privileges and immunities—article  §  Rule  § ,  Sittings of Court elsewhere than at the seat of the Court § ,  Rights of Man Early definitive expression §  Stay of proceedings Stay of proceedings §  Treaty of Vienna  Treaty of Vienna §  Trial—Trial Chamber Admission of guilt—criteria for acceptance § – Plea of guilty rejected—aftermath § – Agreement of parties re facts §  Alternate judges §  Attendance of witnesses §  Burden of proof and special defences § – Charges—amendment of § –

index Commencement of the hearing— reading of charges—fitness to plead § – Constitution of Trial Chamber §  Corroboration of evidence not legally required § – Decision of the Court must be based on evidence founding the charges §  Deliberations of the Court—secret §  Directions for the conduct of the proceedings—rule  appears to be in conflict with the Statute §  Evidence in breach of the Statute or internationally recognised human rights—implications § – Examination of witnesses § – Exclusion of criminal responsibility— ambit of article  §  Functions and powers of Trial Chamber Accused unfit to plead—consequences §  Challenges to the jurisdiction of the Court—admissibility of a case § – Conduct of the proceedings— motions of parties relevant thereto §  Disclosure of evidence and information to the accused prior to the hearing § – Exercise of functions of Pre-Trial Chamber §  Fair and expeditious trial § ,  Impossibility to hold a fair trial— stay of proceedings§  Inspection by defence of evidential material in the possession of Prosecutor §  Joinder and severance of charges § – Language of the proceedings § –  Onus of proof §  Orderly conduct of the proceed-

 ings—persons misbehaving may be interdicted § – Plea bargaining §  Power to order production of additional evidence §  Presence of accused at trial— mandatory §  Presumption of innocence—burden of proving the charge(s) § ,  Protection of accused, witnesses and victims §  Protection of confidential information—victims and witnesses and members of their families §  Protection of health and safety of detainees §  Reference of preliminary issues to Pre-Trial Chamber or a judge thereof § – Removal of accused from courtroom §  Residual power to give directions in relation to matters pertinent to the process §  Rights of the accused—duty to sustain §  Reasoning of decisions—pronouncement in public §  Record of the proceedings §  Reparations § – Individual and collective awards §  Order can be made only against a convicted person § – Principles of—to be established by Court §  Sentencing Aggravating circumstances §  Fine—maximum, time for payment, failure to pay—consequences § – Imprisonment §  Mitigating circumstances § ,,  Punishments additional to imprisonment—fine, forfeiture order § 



index

Trial—Trial Chamber (Continued) Reduction of—possibility after serving two thirds of period of sentence §  Reduction of, revisited §  Relevant considerations §  Specific defences must be disclosed to the Prosecutor §  Status Conferences § – Trial in public—exceptions § – Decision—attempt at unanimity §  Trust fund §  Victim participation in trial proceedings—not a prerequisite for raising a claim for reparations §  Who may raise a claim for reparation(s) § – Replacement of judges §  Rulings on relevance and admissibility of evidence § – Seat of the Court Change of trial venue—when permissible§ – Sensitive information—meaning of §  Sentencing process and hearing § – Significance of presumption of innocence §  Trust Fund Trust fund for victims—resources of—distribution of assets § , – Trust fund—management, allocation of resources §  Trust fund—regulations of Trust Fund for Victims §  War crimes §  The Office of the Prosecutor Admissibility §  Authority and functions of §  Breaches of the rights of the person investigated or the accused— Implications § – Collection of evidence §  Complementarity—relevance to decision of Prosecutor § 

Delegation of duties to members of staff § – Documents and information received in confidence § – Disciplinary measures for misconduct of Prosecutor and Deputy Prosecutor of less serious nature §  Disqualification of Prosecutor and Deputy Prosecutor § – Election of Prosecutor and Deputy Prosecutor—term of office §  Evidence received in confidence— right of accused to be informed of exculpatory evidence §  Independence and impartiality of Prosecutor and Deputy Prosecutor §  Interests of victims and witnesses must be respected § – Investigatory powers of Prosecutor § ,  Legal framework within which a suspect may be questioned §  Management of §  Powers to investigate—investigation following a referral, proprio motu investigations § –,  Privileges and immunities of Judges, Prosecutor and Deputy Prosecutor and Registrar and personnel of the Court §  Privileges and immunities of Counsel, Experts, Witnesses and Persons required to be at the seat of the Court § – Proceeding with a prosecution— relevant considerations—sequence thereafter § – Proprio motu investigations— receiving information on crimes within the jurisdiction of the Court § – Analysis of information received §  Article  §  Authorisation of an investigation by the Pre-Trial Chamber—process, persons or bodies entitled to be heard § , –

index Criteria for seeking judicial authorisation for an investigation § – Implications of refusal of an application to proceed § – Test for authorising investigation— reasonable basis to proceed § – Prosecutor and Deputy Prosecutor must seek their recusal whenever their impartiality to deal with a case can be reasonably questioned §  Prosecutor may conduct investigation on the territory of a State Party §  Qualifications for election, to the Office of Prosecutor and Deputy Prosecutor §  Regulations for operation of, not yet enacted §  Removal from office of Prosecutor and Deputy Prosecutor—grounds for §  Rights of person questioned §  Separateness of office from any other organ of the Court or sphere of authority §  Staff of, necessary qualifications §  State and Security Council referrals—evaluation of material by Prosecutor § – Waiver of privileges and immunities §  Withholding an investigation in the interests of justice § – Witness statement—redactions of names of persons taking or attending the taking of a statement §  Tokyo Tribunal Tokyo Tribunal §  Treaty of Versailles  Treaty of Versailles §  United Nations Article  § ,  Association of the ICC with objectives of § 



Charter of § ,  Objects and purposes of §  Establishment of §  Relationship agreement § ,  Powers of the Secretary General §  Victims and Witnesses Definition of a victim § – In camera proceedings § – Prosecutor—authority to take protective measures and make security arrangements § – Measures of protection should not be prejudicial to the rights of the accused or impair a fair and impartial trial § – Protection and support of § – Protection of servants and agents of a state and protection of confidential or sensitive information § – Withholding disclosure of evidence at the Pre-Trial process—summary of evidence § – Victims and Witnesses Unit VWU §  Duties, responsibilities and powers § –, – Powers of a Chamber to seek views of non-participating victims on specific subjects §  Prerequisites for participation in proceedings § –,  Statutory provisions specifically providing for the reception of observations by victims and witnesses § – Victim participation in judicial proceedings Ambit of participation— expression of views and concerns § – Must not be prejudicial to or inconsistent with the rights of the accused § – Nature of interest legitimising participation § – Parameters of § – Participating victims not equated to parties § 

 Vienna Convention on the Law of Treaties—rules of interpretation Article  §  Vienna Convention on the Law of Treaties—rules of interpretation § ,  War crimes Ambit of § – Armed conflict of an international character—armed conflict not of an international character— parameters §  Brussels Declaration  §  Conflict not of an international character distinguished form internal disturbances § – Definition of §  Laws and customs of war §  Permanent court of Arbitration— establishment of § 

index Specific ban of weapons apt to cause unnecessary injury and suffering, envisaged for the future §  Warrant of arrest Orders, decisions and rulings Requests for cooperation § – World War I Allies declaration  concerning crimes against humanity and civilisation §  Armenian genocide §  World War II Convention on the Prevention and Punishment of the Crime of Genocide §  Jewish Holocaust §  Japanese atrocities §  Nazi destruction and atrocities § 