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The Rome Statute

Preamble
PART 1. ESTABLISHMENT OF THE COURT

Article 1 The Court
Article 2 Relationship of the Court with the United Nations
Article 3 Seat of the Court
Article 4 Legal status and powers of the Court

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW
Article 5 Crimes within the jurisdiction of the Court
Article 6 Genocide
Article 7 Crimes against humanity
Article 8 War crimes
Article 9 Elements of Crimes
Article 10
Article 11 Jurisdiction ratione temporis
Article 12 Preconditions to the exercise of jurisdiction
Article 13 Exercise of jurisdiction
Article 14 Referral of a situation by a State Party
Article 15 Prosecutor
Article 16 Deferral of investigation or prosecution
Article 17 Issues of admissibility
Article 18 Preliminary rulings regarding admissibility
Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case
Article 20 Ne bis in idem
Article 21 Applicable law

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW
Article 22 Nullum crimen sine lege
Article 23 Nulla poena sine lege
Article 24 Non-retroactivity ratione personae
Article 25 Individual criminal responsibility
Article 26 Exclusion of jurisdiction over persons under eighteen
Article 27 Irrelevance of official capacity
Article 28 Responsibility of commanders and other superiors
Article 29 Non-applicability of statute of limitations
Article 30 Mental element
Article 31 Grounds for excluding criminal responsibility
Article 32 Mistake of fact or mistake of law
Article 33 Superior orders and prescription of law

PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT
Article 34 Organs of the Court
Article 35 Service of judges
Article 36 Qualifications, nomination and election of judges
Article 37 Judicial vacancies
Article 38 The Presidency
Article 39 Chambers
Article 40 Independence of the judges
Article 41 Excusing and disqualification of judges
Article 42 The Office of the Prosecutor
Article 43 The Registry
Article 44 Staff
Article 45 Solemn undertaking 
Article 46 Removal from office
Article 47 Disciplinary measures
Article 48 Privileges and immunities
Article 49 Salaries, allowances and expenses
Article 50 Official and working languages
Article 51 Rules of Procedure and Evidence
Article 52 Regulations of the Court

PART 5. INVESTIGATION AND PROSECUTION
Article 53 Initiation of an investigation
Article 54 Duties and powers of the Prosecutor with respect to investigations
Article 55 Rights of persons during an investigation
Article 56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity
Article 57 Functions and powers of the Pre-Trial Chamber
Article 58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear
Article 59 Arrest proceedings in the custodial State
Article 60 Initial proceedings before the Court
Article 61 Confirmation of the charges before trial

PART 6. THE TRIAL
Article 62 Place of trial
Article 63 Trial in the presence of the accused
Article 64 Functions and powers of the Trial Chamber
Article 65 Proceedings on an admission of guilt
Article 66 Presumption of innocence
Article 67 Rights of the accused
Article 68 Protection of the victims and witnesses and their participation in the proceedings
Article 69 Evidence
Article 70 Offences against the administration of justice
Article 71 Sanctions for misconduct before the Court
Article 72 Protection of national security information
Article 73 Third-party information or documents
Article 74 Requirements for the decision
Article 75 Reparations to victims
Article 76 Sentencing

PART 7. PENALTIES
Article 77 Applicable penalties 
Article 78 Determination of the sentence 
Article 79 Trust Fund
Article 80 Non-prejudice to national application of penalties and national laws

PART 8. APPEAL AND REVISION
Article 81 Appeal against decision of acquittal or conviction or against sentence
Article 82 Appeal against other decisions
Article 83 Proceedings on appeal
Article 84 Revision of conviction or sentence
Article 85 Compensation to an arrested or convicted person

PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE
Article 86 General obligation to cooperate
Article 87 Requests for cooperation: general provisions
Article 88 Availability of procedures under national law
Article 89 Surrender of persons to the Court
Article 90 Competing requests
Article 91 Contents of request for arrest and surrender
Article 92 Provisional arrest
Article 93 Other forms of cooperation
Article 94 Postponement of execution of a request in respect of ongoing investigation or prosecution 
Article 95 Postponement of execution of a request in respect of an admissibility challenge
Article 96 Contents of request for other forms of assistance under article 93
Article 97 Consultations
Article 98 Cooperation with respect to waiver of immunity and consent to surrender
Article 99 Execution of requests under articles 93 and 96
Article 100 Costs
Article 101 Rule of speciality
Article 102 Use of terms

PART 10. ENFORCEMENT
Article 103 Role of States in enforcement of sentences of imprisonment
Article 104 Change in designation of State of enforcement
Article 105 Enforcement of the sentence
Article 106 Supervision of enforcement of sentences and conditions of imprisonment
Article 107 Transfer of the person upon completion of sentence
Article 108 Limitation on the prosecution or punishment of other offences
Article 109 Enforcement of fines and forfeiture measures
Article 110 Review by the Court concerning reduction of sentence
Article 111 Escape

PART 11. ASSEMBLY OF STATES PARTIES
Article 112 Assembly of States Parties

PART 12. FINANCING
Article 113 Financial Regulations
Article 114 Payment of expenses
Article 115 Funds of the Court and of the Assembly of States Parties
Article 116 Voluntary contributions
Article 117 Assessment of contributions
Article 118 Annual audit

PART 13. FINAL CLAUSES
Article 119 Settlement of disputes
Article 120 Reservations
Article 121 Amendments
Article 122 Amendments to provisions of an institutional nature
Article 123 Review of the Statute
Article 124 Transitional Provision
Article 125 Signature, ratification, acceptance, approval or accession
Article 126 Entry into force
Article 127 Withdrawal
Article 128 Authentic texts

PREAMBLE

         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[1]

 

PART 1. ESTABLISHMENT OF THE COURT 
Article 1 The Court

            An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.[2]  

Article 2 Relationship of the Court with the United Nations

            The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.[3]

Article 3 Seat of the Court

1.         The seat of the Court shall be established at The Hague in the Netherlands ("the host State").[4]
 
2.         The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf.
[5]

3.         The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.[6]

Article 4 Legal status and powers of the Court

1.         The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.[7]
 
2.         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.
[8]

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW 
Article 5 Crimes within the jurisdiction of the Court

1.         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:[9]

(a)     The crime of genocide;[10]

(b)     Crimes against humanity;[11]

(c)     War crimes;[12]

(d)     The crime of aggression.[13]

2.        The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.[14]

Article 6 Genocide

            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:[15]

(a)     Killing members of the group;[16]

(b)     Causing serious bodily or mental harm to members of the group;[17]

(c)     Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;[18]

(d)     Imposing measures intended to prevent births within the group;[19]

(e)     Forcibly transferring children of the group to another group.[20]

 Article 7 Crimes against humanity

1.         For the purpose of this Statute, "crime 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:[21]

(a)     Murder;[22]

(b)     Extermination;[23]

(c)     Enslavement;[24]

(d)     Deportation or forcible transfer of population;[25]

(e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;[26]

(f)     Torture;[27]

(g)     Rape,[28] sexual slavery,[29] enforced prostitution,[30] forced pregnancy,[31] enforced sterilization,[32] or any other form of sexual violence of comparable gravity;[33]

(h)     Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, 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;[34]

(i)     Enforced disappearance of persons;[35]

(j)     The crime of apartheid;[36]

(k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[37]

2.         For the purpose of paragraph 1:

(a)     "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;[38]

(b)     "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

(c)     "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

(d)     "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

(e)     "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(f)     "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

(g)     "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

(h)     "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

(i)     "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3.         For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.[39]
Article 8 War crimes
1.         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.[40]
 
2.         For the purpose of this Statute, "war crimes" means:

(a)     Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:[41]

(i)     Wilful killing;[42] 

(ii)     Torture[43] or inhuman treatment,[44] including biological experiments;[45]

(iii)     Wilfully causing great suffering, or serious injury to body or health;[46]

(iv)     Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;[47]

(v)     Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;[48]

(vi)     Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;[49] 

(vii)     Unlawful deportation or transfer[50] or unlawful confinement;[51]

(viii)     Taking of hostages.[52]

(b)     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:[53]

(i)     Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;[54]

(ii)     Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;[55]

(iii)     Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;[56]

(iv)     Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;[57]

(v)     Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;[58]

(vi)     Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;[59]

(vii)     Making improper use of a flag of truce,[60] of the flag or of the military insignia and uniform of the enemy[61] or of the United Nations,[62] as well as of the distinctive emblems of the Geneva Conventions,[63] resulting in death or serious personal injury;[64]

(viii)     The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;[65]

(ix)     Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;[66]

(x)     Subjecting persons who are in the power of an adverse party to physical mutilation[67] or to medical or scientific experiments[68] of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;[69]

(xi)     Killing or wounding treacherously individuals belonging to the hostile nation or army;[70]

(xii)     Declaring that no quarter will be given;[71]

(xiii)     Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;[72]

(xiv)     Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;[73] 

(xv)     Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;[74] 

(xvi)     Pillaging a town or place, even when taken by assault;[75]

(xvii)     Employing poison or poisoned weapons;[76] 

(xviii)     Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;[77]

(xix)     Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;[78]

(xx)     Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;[79]

(xxi)     Committing outrages upon personal dignity, in particular humiliating and degrading treatment;[80]

(xxii)     Committing rape,[81] sexual slavery,[82] enforced prostitution,[83] forced pregnancy, as defined in article 7, paragraph 2 (f),[84] enforced sterilization,[85] or any other form of sexual violence[86] also constituting a grave breach of the Geneva Conventions;

(xxiii)     Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;[87]

(xxiv)     Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;[88]

(xxv)     Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions;[89]

(xxvi)     Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.[90]

(c)     In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:[91]  

(i)     Violence to life and person, in particular murder of all kinds,[92] mutilation,[93] cruel treatment[94] and torture;[95]

(ii)     Committing outrages upon personal dignity, in particular humiliating and degrading treatment;[96]

(iii)     Taking of hostages;[97]

(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.[98]

(d)     Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.[99]

(e)     Other 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:[100]  

(i)     Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;[101]

(ii)     Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;[102]

(iii)     Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;[103]

(iv)     Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;[104]

(v)     Pillaging a town or place, even when taken by assault;[105]

(vi)     Committing rape,[106] sexual slavery,[107] enforced prostitution,[108] forced pregnancy, as defined in article 7, paragraph 2 (f),[109] enforced sterilization,[110] and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;[111]

(vii)     Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;[112]

(viii)     Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;[113]

(ix)     Killing or wounding treacherously a combatant adversary;[114]

(x)     Declaring that no quarter will be given;[115]

(xi)     Subjecting persons who are in the power of another party to the conflict to physical mutilation[116] or to medical or scientific experiments[117] of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;[118]

(xii)     Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;[119]

(f)       Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. 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.[120]

3.         Nothing in paragraph 2 (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.[121] 

Article 9 Elements of Crimes
1.         Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.[122] 

2.         Amendments to the Elements of Crimes may be proposed by:

(a)     Any State Party;[123] 

(b)     The judges acting by an absolute majority;[124] 

(c)     The Prosecutor.[125]  

Such amendments shall be adopted by a two-thirds majority of the members of the Assembly of States Parties.[126] 
 
3.         The Elements of Crimes and amendments thereto shall be consistent with this Statute.
[127]  

Article 10
             Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.[128]  
Article 11 Jurisdiction ratione temporis
1.         The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.[129]   
 
2.         If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.
[130]  
Article 12 Preconditions to the exercise of jurisdiction[131]
1.         A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.[132]   
 
2.         In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
[133] 

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;[134]

(b)     The State of which the person accused of the crime is a national.[135] 

3.         If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.[136] 

Article 13 Exercise of jurisdiction
            The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:

          (a)     A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a    
         
State Party in accordance with article 14;[137]

          (b)     A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the
         
Security Council acting under Chapter VII of the Charter of the United Nations; or [138]

          (c)     The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.[139]

Article 14 Referral of a situation by a State Party
1.         A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.[140]
 
2.         As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.
[141]  
Article 15 Prosecutor 

1.         The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.[142]
 
2.         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.
[143]
 
3.         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.
[144]
 
4.         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.
[145]
 
5.         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.
[146]
 
6.         If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.
[147]

Article 16 Deferral of investigation or prosecution

            No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.[148]  

Article 17 Issues of admissibility
1.         Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:[149]

(a)     The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;[150]

(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;[151]

(c)     The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;[152]

(d)     The case is not of sufficient gravity to justify further action by the Court.[153]

2.         In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:[154]

(a)     The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;[155]

(b)     There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;[156]

(c)     The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.[157]

3.         In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.[158]

Article 18 Preliminary rulings regarding admissibility 

1.         When a situation has been referred to the Court pursuant to article 13 (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 13 (c) and 15, 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.

2.         Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.
 
3.         The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation.
 
4.         The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis.
 
5.         When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay.
 
6.         Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available.
 
7.         A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances.

Rule 52 Notification provided for in article 18, paragraph 1 and 2
Rule 53 Deferral provided for in article 18, paragraph 2
Rule 54 Application by the Prosecutor under article 18, paragraph 2
Rule 55 Proceedings concerning article 18, paragraph 2
Rule 56 Application by the Prosecutor following review under article 18, paragraph 3
Rule 57 Provisional measures under article 18, paragraph 6
Regulation 38 Specific page limits, art 18, par. 2 and 6
 

Article 19 Challenges to the jurisdiction of the Court or the admissibility of a case
1.         The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.[201]
 
2.         Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by:
[202]

(a)    An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58;[203]

(b)     A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or

(c)     A State from which acceptance of jurisdiction is required under article 12.

3.         The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court.[203bis]
 
4.         The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c).
[204]
 
5.         A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity.
 
6.         Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82.
[205]
 
7.         If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17.
 
8.         Pending a ruling by the Court, the Prosecutor may seek authority from the Court:

(a)     To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6;

(b)     To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and

(c)     In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58.

9.         The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge.
 
10.         If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.
 
11.         If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place.  

Rule 59 Participation in proceedings under article 19, paragraph 1, 2 and 3
Rule 133 Motions challenging admissibility or jurisdiction, paragraph 1
Rule 60 Competent organ to receive challenges, paragraph 3
Rule 61 Provisional measures under article 19, paragraph 8
Rule 62 Proceedings under article 19, paragraph 10
Rule 185 Release of a person from the custody of the Court other than upon
completion of sentence, paragraph 10

Regulation 38 Specific page limits, art 19, par. 2, 3, 8
 

Article 20 Ne bis in idem[299]
1.         Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.[300] 

2.         No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.[301] 
 
3.         No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:
[302] 

(a)     Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b)     Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

Article 21 Applicable law
1.         The Court shall apply:

(a)     In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;[303]

(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;[304]    

(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.[305]

2.         The Court may apply principles and rules of law as interpreted in its previous decisions.[306]
 
3.         The application and interpretation of 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 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.
[307] 

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW
Article 22 Nullum crimen sine lege[308]

1.         A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.[309]
 
2.         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.
[310]

3.         This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.[311]

Article 23 Nulla poena sine lege

            A person convicted by the Court may be punished only in accordance with this Statute.[312]  

Article 24 Non-retroactivity ratione personae

1.         No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.[313]
 
2.         In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.
[314]  

Article 25 Individual criminal responsibility

1.         The Court shall have jurisdiction over natural persons pursuant to this Statute.[315]
 
2.         A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
[316]
 
3.         In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a)     Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;[317]

(b)     Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;[318]

(c)     For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;[319]

(d)     In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:[320]

(i)     Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii)     Be made in the knowledge of the intention of the group to commit the crime;
 

(e)     In respect of the crime of genocide, directly and publicly incites others to commit genocide;[321]

(f)     Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.[322]

4.         No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.[323]  

Article 26 Exclusion of jurisdiction over persons under eighteen

            The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.[324]  

Article 27 Irrelevance of official capacity

1.         This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.[325]
 
2.         Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
 

Article 28 Responsibility of commanders and other superiors

            In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a)     A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:  

(i)     That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii)     That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b)     With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:  

(i)     The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii)     The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii)     The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 

Article 29 Non-applicability of statute of limitations

The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.  

Article 30 Mental element

1.         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.[329]  
 
2.         For the purposes of this article, a person has intent where:

(a)     In relation to conduct, that person means to engage in the conduct;

(b)     In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3.         For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.[330]  

Article 31 Grounds for excluding criminal responsibility

1.         In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct:

(a)     The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;

(b)     The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

(c)     The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;

(d)     The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

(i)     Made by other persons; or

(ii)     Constituted by other circumstances beyond that person's control.

2.         The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it.
 
3.         At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.  

Rule 79 Disclosure by the defence, paragraph 1
Rule 80 Procedures for raising a ground for excluding criminal responsibility under article 31, paragraph 3
 

Article 32 Mistake of fact or mistake of law

1.         A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.
 
2.         A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.
 

Article 33 Superior orders and prescription of law

1.         The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a)     The person was under a legal obligation to obey orders of the Government or the superior in question;

(b)     The person did not know that the order was unlawful; and

(c)     The order was not manifestly unlawful.

2.         For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.  

PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT 
Article 34 Organs of the Court

            The Court shall be composed of the following organs:

(a)     The Presidency;

(b)     An Appeals Division, a Trial Division and a Pre-Trial Division;

(c)     The Office of the Prosecutor;

(d)     The Registry.

Regulation 3 Coordination Council 

Article 35 Service of judges

1.         All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office.
 
2.         The judges composing the Presidency shall serve on a full-time basis as soon as they are elected.
 
3.         The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such arrangement shall be without prejudice to the provisions of article 40.
 
4.         The financial arrangements for judges not required to serve on a full-time basis shall be made in accordance with article 49.  

Regulation 9 Term of office, paragraph 1 

Article 36 Qualifications, nomination and election of judges

1.         Subject to the provisions of paragraph 2, there shall be 18 judges of the Court.
 
2.         (a)     The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1, indicating the reasons why this is considered necessary and appropriate. The Registrar shall promptly circulate any such proposal to all States Parties.
 
            (b)     Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened in accordance with article 112. The proposal shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties.

            (c)     (i)     Once a proposal for an increase in the number of judges has been adopted under subparagraph (b), the election of the additional judges shall take place at the next session of the Assembly of States Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2;

                     (ii)     Once a proposal for an increase in the number of judges has been adopted and brought into effect under subparagraphs (b) and (c) (i), it shall be open to the Presidency at any time thereafter, if the workload of the Court justifies it, to propose a reduction in the number of judges, provided that the number of judges shall not be reduced below that specified in paragraph 1. The proposal shall be dealt with in accordance with the procedure laid down in subparagraphs (a) and (b). In the event that the proposal is adopted, the number of judges shall be progressively decreased as the terms of office of serving judges expire, until the necessary number has been reached.

3.         (a)     The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

            (b)     Every candidate for election to the Court shall:

(i)     Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or

(ii)     Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court;

            (c)     Every 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.
 
4.         (a)     Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either:

(i)     By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or

(ii)     By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court.

            Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3.
           (b)     Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party.
 
            (c)     The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations. In that event, the Committee's composition and mandate shall be established by the Assembly of States Parties.
 
5.         For the purposes of the election, there shall be two lists of candidates:

List A containing the names of candidates with the qualifications specified in paragraph 3 (b) (i); and 

List B containing the names of candidates with the qualifications specified in paragraph 3 (b) (ii).

          A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists.
 
6.         (a)     The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose under article 112. Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting.
 
            (b)     In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be held in accordance with the procedures laid down in subparagraph (a) until the remaining places have been filled.
 
7.         No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights.
 
8.         (a)     The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:

(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.

            (b)     States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.
 
9.         (a)     Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election.
 
            (b)     At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years.
 
            (c)     A judge who is selected to serve for a term of three years under subparagraph (b) shall be eligible for re-election for a full term.
 
10.         Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39 shall continue in office to complete any trial or appeal the hearing of which has already commenced before that Chamber. 

Article 37 Judicial vacancies 

1.         In the event of a vacancy, an election shall be held in accordance with article 36 to fill the vacancy.
 
2.         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 36.
 
Rule 36 Death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar , paragraph 1

Rule 37 Resignation of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar, paragraph 1
Rule 38 Replacements, paragraph 2
Rule 39 Alternate judges, paragraph 2

Article 38 The Presidency

1.         The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once.
 
2.         The First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified.
 
3.         The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be 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.
 
4.         In discharging its responsibility under paragraph 3 (a), the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.

Rule 8 Code of Professional Conduct, paragraph 4
Regulation 11 The Presidency, paragraph 3

Article 39 Chambers

1.         As soon as possible after the election of the judges, the Court shall organize itself into the divisions specified in article 34, paragraph (b). The Appeals Division shall be composed of the President and four other judges, the Trial Division of not less than six judges and the Pre-Trial Division of not less than six judges. The assignment of judges to divisions shall be based on the nature of the functions to be performed by each division and the qualifications and experience of the judges elected to the Court, in such a way that each division shall contain an appropriate combination of expertise in criminal law and procedure and in international law. The Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience.[508]  
 
2.         (a)     The judicial functions of the Court shall be carried out in each division by Chambers.
[509]  
 
            (b)  
 (i)     The Appeals Chamber shall be composed of all the judges of the Appeals Division;[510]  

(ii)     The functions of the Trial Chamber shall be carried out by three judges of the Trial Division;[511]  

(iii)     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 in accordance with this Statute and the Rules of Procedure and Evidence;[512]

(c)     Nothing in this paragraph shall preclude the simultaneous constitution of more than one Trial Chamber or Pre-Trial Chamber when the efficient management of the Court's workload so requires.[513]

3.         (a)     Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three years, and
                    thereafter until the completion of any case the hearing of which has already commenced in the division concerned.
[514] 
 
            (b)     Judges assigned to the Appeals Division shall serve in that division for their entire term of office.
[515]  
 
4.         Judges assigned to the Appeals Division shall serve only in that division. Nothing in this article shall, however, preclude the temporary attachment of judges from the Trial Division to the Pre-Trial Division or vice versa, if the Presidency considers that the efficient management of the Court's workload so requires, provided that under no circumstances shall a judge who has participated in the pre-trial phase of a case be eligible to sit on the Trial Chamber hearing that case.
[516]   
Article 40 Independence of the judges

1.         The judges shall be independent in the performance of their functions.
 
2.         Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.
 
3.         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.
 
4.         Any question regarding the application of paragraphs 2 and 3 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.  

Article 41 Excusing and disqualification of judges

1.         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.[517]
 
2.         (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.
[518]
 
           (b)     The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph.
[519]
 
           (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.
[520]

Rule 33 Excusing of a judge, the Prosecutor or a Deputy Prosecutor, paragraphs 1 and 2
Rule 34 Disqualification of a judge, the Prosecutor or a Deputy Prosecutor, paragraphs 1 and 2
Rule 35 Duty of a judge, the Prosecutor or a Deputy Prosecutor to request to be excused, paragraphs 1 and 2
 

Article 42 The Office of the Prosecutor

1.         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.
 
2.         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.
 
3.         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.
 
4.         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.
 
5.         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.
 
6.         The Presidency may excuse the Prosecutor or a Deputy Prosecutor, at his or her request, from acting in a particular case.
[521]
 
7.         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.
[522]
 
8.         Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber.
[523] 

(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;[524] 

(b)     The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter;[525]

9.         The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.  

Rule 9 Operation of the Office of the Prosecutor, paragraph 1
Rule 10 Retention of information and evidence
Rule 11 Delegation of the Prosecutor’s functions

Article 43 The Registry

1.         The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42.
 
2.         The Registry shall be headed by the Registrar, who shall be the principal administrative officer of the Court. The Registrar shall exercise his or her functions under the authority of the President of the Court.
 
3.         The Registrar and the Deputy Registrar shall be persons of high moral character, be highly competent and have an excellent knowledge of and be fluent in at least one of the working languages of the Court.
 
4.         The judges shall elect the Registrar by an absolute majority by secret ballot, taking into account any recommendation by the Assembly of States Parties. If the need arises and upon the recommendation of the Registrar, the judges shall elect, in the same manner, a Deputy Registrar.
 
5.         The Registrar shall hold office for a term of five years, shall be eligible for re-election once and shall serve on a full-time basis. The Deputy Registrar shall hold office for a term of five years or such shorter term as may be decided upon by an absolute majority of the judges, and may be elected on the basis that the Deputy Registrar shall be called upon to serve as required.
 
6.         The Registrar shall set up a Victims and Witnesses Unit within the Registry. This Unit shall provide, in consultation with the Office of the Prosecutor, protective measures and security arrangements, counselling and other appropriate assistance 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.
[900]

Rule 15 Records, paragraph 1
Rule 20 Responsibilities of the Registrar relating to the rights of the defence, paragraph 1
Rule 13 Functions of the Registrar, paragraph 2
Rule 14 Operation of the Registry, paragraph 2
Rule 12 Qualifications and election of the Registrar and the Deputy Registrar, paragraph 3
Rule 16 Responsibilities of the Registrar relating to victims and witnesses, paragraph 6
Rule 17 Functions of the Unit, paragraph 6

Rule 18 Responsibilities of the Unit, paragraph 6
Rule 19 Expertise in the Unit, paragraph 6
Regulation 19 Duty officers of the Registry, art 43, par. 1
Regulation 81 Office of Public Counsel for victims, art 43, par. 6

Article 44 Staff

1.         The Prosecutor and the Registrar shall appoint such qualified staff as may be required to their respective offices. In the case of the Prosecutor, this shall include the appointment of investigators.
 
2.         In the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in article 36, paragraph 8.
 
3.         The Registrar, with the agreement of the Presidency and the Prosecutor, shall propose Staff Regulations which include the terms and conditions upon which the staff of the Court shall be appointed, remunerated and dismissed. The Staff Regulations shall be approved by the Assembly of States Parties.
 
4.         The Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties.

Article 45 Solemn undertaking

            Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her respective functions impartially and conscientiously.

Rule 5 Solemn undertaking under article 45
Rule 6 Solemn undertaking by the staff of the Office of the Prosecutor, the Registry, interpreters and translators

Article 46 Removal from office

1.         A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person:

(a)     Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or

(b)     Is unable to exercise the functions required by this Statute.

2.         A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot:

( a)     In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges;

(b)     In the case of the Prosecutor, by an absolute majority of the States Parties;

(c)     In the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation of the Prosecutor.

3.         A decision as to the removal from office of the Registrar or Deputy Registrar shall be made by an absolute majority of the judges.
 
4.         A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose conduct or ability to exercise the functions of the office as required by this Statute is challenged under this article shall have full opportunity to present and receive evidence and to make submissions in accordance with the Rules of Procedure and Evidence. The person in question shall not otherwise participate in the consideration of the matter.  

Rule 23 General principle
Rule 24 Definition of serious misconduct and serious breach of duty, paragraph 1 (a)

Rule 26 Receipt of complaints, paragraph 1 (a)
Regulation 120 Procedure under rule 26, sub-rule 2
Regulation 121 Decision under rule 26, sub-rule 2, and transmission of complaint to the competent organ
Regulation 125 Initiation of proceedings by the Presidency, rule 26

Rule 29 Procedure in the event of a request for removal from office, paragraphs 2(c) and 3
Rule 28 Suspension from duty, paragraph 3
Rule 31 Removal from office, paragraph 3
Rule 27 Common provisions on the rights of the defence, paragraph 4
Regulation 122 Procedure before the Presidency on disciplinary measures for a judge, the Registrar or the Deputy Registrar
Regulation 119 Receipt and administration of complaints, rule 27
Regulation 123 Procedure for removal from office of a judge, the Registrar or the Deputy Registrar, article 46, par. 4
Regulation 124 Suspension from duty, article 46, par. 2 and 3
 

Article 47 Disciplinary measures

            A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature than that set out in article 46, paragraph 1, shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence.

Rule 25 Definition of misconduct of a less serious nature
Rule 26 Receipt of complaints
Rule 28 Suspension from duty
Rule 30 Procedure in the event of a request for disciplinary measures
Rule 32 Disciplinary measures

Article 48 Privileges and immunities

1.         The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes.
 
2.         The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity.
 
3.         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.
 
4.         Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.
 
5.         The privileges and immunities of:

(a)     A judge or the Prosecutor may be waived by an absolute majority of the judges;

(b)     The Registrar may be waived by the Presidency;

(c)     The Deputy Prosecutors and staff of the Office of the Prosecutor may be waived by the Prosecutor;

(d)     The Deputy Registrar and staff of the Registry may be waived by the Registrar.

Article 49 Salaries, allowances and expenses

            The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall receive such salaries, allowances and expenses as may be decided upon by the Assembly of States Parties. These salaries and allowances shall not be reduced during their terms of office.  

Article 50 Official and working languages

1.         The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the purposes of this paragraph.
 
2.         The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages.
 
3.         At the request of any party to a proceeding or a State allowed to intervene in a proceeding, the Court shall authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified.

Rule 40 Publication of decisions in official languages of the Court, paragraph 1
Rule 43 Procedure applicable to the publication of documents of the Court, paragraph 1
Rule 41 Working languages of the Court, paragraph 2
Rule 42 Translation and interpretation services, paragraph 3
Regulation 40 Language services of the Registry, art 50, par 1; rule 40

Article 51 Rules of Procedure and Evidence 

1.         The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties.
 
2.         Amendments to the Rules of Procedure and Evidence may be proposed by:

(a)     Any State Party;

(b)     The judges acting by an absolute majority; or

(c)     The Prosecutor.

            Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties.
 
3.         After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties.
 
4.         The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.
[901]  
 
5.         In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.
[902]  

Rule 3 Amendments, paragraph 2
Regulation 5, article 51, rule 3 Amendments to the Rules and Elements of Crimes
 

Article 52 Regulations of the Court

1.         The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning.
 
2.         The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments thereto.
 
3.         The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months there are no objections from a majority of States Parties, they shall remain in force.

Rule 4 Plenary sessions, paragraph 1
Regulation 6 Amendments to these Regulations, article 52, paragraph 3
Regulation 4 Advisory Committee on Legal Texts

PART 5. INVESTIGATION AND PROSECUTION 
Article 53 Initiation of an investigation

1.         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 this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:[903]

(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;[904]

(b)     The case is or would be admissible under article 17;[905]  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.[906]

            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.
 
2.         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 58;

(b)     The case is inadmissible under article 17; 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 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.
 
           (b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.
[910]
 
4.         The Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information.

Rule 92 Notification to victims and their legal representatives
Rule 104 Evaluation of information by the Prosecutor, paragraph 1(c)
Rule 105 Notification of a decision by the Prosecutor not to initiate an investigation, paragraph 1(c)
Rule 106 Notification of a decision by the Prosecutor not to prosecute, paragraph 2 (c)
Rule 107 Request for review under article 53, paragraph 3 (a)
Rule 108 Decision of the Pre-Trial Chamber under article 53, paragraph 3 (a)
Rule 109 Review by the Pre-Trial Chamber under article 53, paragraph 3 (b)
Rule 110 Decision by the Pre-Trial Chamber under article 53, paragraph 3 (b)
Regulation 38 Specific page limits, article 53, par. 1, 2, 3a,

Article 54 Duties and powers of the Prosecutor with respect to investigations
1.         The Prosecutor shall:

(a)     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;[911]

(b)     Take 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 7, paragraph 3, and health, and take into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children; and

(c)     Fully respect the rights of persons arising under this Statute.

2.         The Prosecutor may conduct investigations on the territory of a State:

(a)     In accordance with the provisions of Part 9; or

(b)     As authorized by the Pre-Trial Chamber under article 57, paragraph 3 (d).

3.         The Prosecutor may:

(a)     Collect and examine evidence;

(b)     Request the presence of and question persons being investigated, victims and witnesses;

(c)     Seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate;

(d)     Enter 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;

(e)     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;[903bis] and

(f)     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.

Rule 56 Application by the Prosecutor following review under article 18, paragraph 3, paragraph 1 (a)
Rule 82 Restrictions on disclosure of material and information protected under article 54, paragraph 3 (e)
Regulation 107 Arrangements and agreements on cooperation, article 54 3(d)
 

Article 55 Rights of persons during an investigation[1008]
1.         In respect of an investigation under this Statute, a person:[1009]

(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.

2.         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 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:[1010]

(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.

Regulation 73 Duty counsel, art 55, par 2(c)

Article 56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity
1.           (a)     Where the Prosecutor considers an investigation to present a unique opportunity to take testimony or a statement from a witness or to examine, collect or test evidence, which may not be available subsequently for the purposes of a trial, the Prosecutor shall so inform the Pre-Trial Chamber. [1011]
 
              (b)     In that case, the Pre-Trial Chamber may, upon request of the Prosecutor, take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence.
[1012]
 
              (c)     Unless the Pre-Trial Chamber orders otherwise, the Prosecutor shall provide the relevant information to the person who has been arrested or appeared in response to a summons in connection with the investigation referred to in subparagraph (a), in order that he or she may be heard on the matter.

2.         The measures referred to in paragraph 1 (b) may include:[1013]

(a)     Making recommendations or orders regarding procedures to be followed;

(b)     Directing that a record be made of the proceedings;

(c)     Appointing an expert to assist;

(d)     Authorizing counsel for a person who has been arrested, or appeared before the Court in response to a summons, to participate, or where there has not yet been such an arrest or appearance or counsel has not been designated, appointing another counsel to attend and represent the interests of the defence;

(e)     Naming one of its members or, if necessary, another available judge of the Pre-Trial or Trial Division to observe and make recommendations or orders regarding the collection and preservation of evidence and the questioning of persons;

(f)     Taking such other action as may be necessary to collect or preserve evidence.

3.         (a)     Where the Prosecutor has not sought measures pursuant to this article but the Pre-Trial Chamber considers that such measures are required to preserve evidence that it deems would be essential for the defence at trial, it shall consult with the Prosecutor as to whether there is good reason for the Prosecutor's failure to request the measures. If upon consultation, the Pre-Trial Chamber concludes that the Prosecutor's failure to request such measures is unjustified, the Pre-Trial Chamber may take such measures on its own initiative.
 
          (b)     A decision of the Pre-Trial Chamber to act on its own initiative under this paragraph may be appealed by the Prosecutor. The appeal shall be heard on an expedited basis.
 
4.         The admissibility of evidence preserved or collected for trial pursuant to this article, or the record thereof, shall be governed at trial by article 69, and given such weight as determined by the Trial Chamber.
 
Rule 114 Unique investigative opportunity under article 56, paragraph 1

Regulation 38 Specific page limits, art 56, par. 1a
Regulation 48 Information necessary for the Pre-Trial Chamber, art 56. par 3(a)

Article 57 Functions and powers of the Pre-Trial Chamber
1.         Unless otherwise provided in this Statute, the Pre-Trial Chamber shall exercise its functions in accordance with the provisions of this article.[1013bis] 
 
2.         (a)     Orders or rulings of the Pre-Trial Chamber issued under articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7, and 72 must be concurred in by a majority of its judges.
 
            (b)     In all other cases, a single judge of the Pre-Trial Chamber may exercise the functions provided for in this Statute, unless otherwise provided for in the Rules of Procedure and Evidence or by a majority of the Pre-Trial Chamber.
[1014]
 
3.         In addition to its other functions under this Statute, the Pre-Trial Chamber may:

(a)     At the request of the Prosecutor, issue such orders and warrants as may be required for the purposes of an investigation;

(b)     Upon the request of a person who has been arrested or has appeared pursuant to a summons under article 58, issue such orders, including measures such as those described in article 56, or seek such cooperation pursuant to Part 9 as may be necessary to assist the person in the preparation of his or her defence;[1014bis]

(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;[1015]

(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 9 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 9.

(e)     Where a warrant of arrest or a summons has been issued under article 58, 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 93, paragraph 1 (k), to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims.

Rule 116 Collection of evidence at the request of the defence under article 57, paragraph 3 (b)
Rule 115 Collection of evidence in the territory of a State Party under article 57, paragraph 3 (d)
Rule 99 Cooperation and protective measures for the purpose of forfeiture under articles 57, paragraph 3 (e), and 75, paragraph 4
Regulation 38 Specific page limits, art 57, par. 3; rule 115, sub-rule 1
Regulation 47 Single judge, art 57, par 2(b).
Regulation 48 Information necessary for the Pre-Trial Chamber, art 57, par 3.

Article 58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear
1.         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:[1016]

(a)     There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court;[1016bis] and

(b)     The arrest of the person appears necessary:  

(i)     To ensure the person's appearance at trial,[1016ter]

(ii)     To ensure that the person does not obstruct or endanger the investigation or the court proceedings, or [1016quater]

(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.

2.         The application of the Prosecutor shall contain:

(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;[1016quinquies]

(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.

3.          The warrant of arrest shall contain:

(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 for which the person's arrest is sought;[1016sexies]   and

(c)     A concise statement of the facts which are alleged to constitute those crimes.

4.         The warrant of arrest shall remain in effect until otherwise ordered by the Court.
 
5.         On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9.
 
6.         The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes.
 
7.         As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person's appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear. The summons shall contain:

(a)     The name of the person and any other relevant identifying information;

(b)     The specified date on which the person is to appear;

(c)     A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and

(d)     A concise statement of the facts which are alleged to constitute the crime.

The summons shall be served on the person.[1017]  

Rule 121 Proceedings before the confirmation hearing
Rule 122 Proceedings at the confirmation hearing in the presence of the person charged
Rule 123 Measures to ensure the presence of the person concerned at the confirmation hearing
Rule 119 Conditional release

Article 59 Arrest proceedings in the custodial State
1.         A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9.
 
2.         A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:

(a)     The warrant applies to that person;

(b)     The person has been arrested in accordance with the proper process; and

(c)     The person's rights have been respected.[1018]

3.         The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.
 
4.         In reaching a decision on any such application, the competent authority in the custodial State shall 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. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).
 
5.         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.

6.         If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release.

7.         Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible.

Rule 117 Detention in the custodial State 

Article 60 Initial proceedings before the Court
1.         Upon the surrender of the person to the Court, or the person's appearance before the Court voluntarily or pursuant to a summons, the Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed, and of his or her rights under this Statute, including the right to apply for interim release pending trial.[1019]
 
2.         A person subject to a warrant of arrest may apply for interim release pending trial. If the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained. If it is not so satisfied, the Pre-Trial Chamber shall release the person, with or without conditions.
[1020]

3.         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. 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.[1021]

4.         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.[1022]

5.         If necessary, the Pre-Trial Chamber may issue a warrant of arrest to secure the presence of a person who has been released.

Rule 118 Pre-trial detention at the seat of the Court, paragraph 3
Rule 119 Conditional release, paragraph 3
Rule 120 Instruments of restraint, paragraph 3
Rule 185 Release of a person from the custody of the Court other than upon completion of sentence, paragraphs 3 and 4
Regulation 51 Decision on interim release, article 60, par. 1

Article 61 Confirmation of the charges before trial

  1.         Subject to the provisions of paragraph 2, within a reasonable time after the person's surrender or voluntary appearance before the Court, the Pre-Trial Chamber 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.[1022bis]

2.         The Pre-Trial Chamber may, upon request of the Prosecutor or on its own motion, hold a hearing in the absence of the person charged to confirm the charges on which the Prosecutor intends to seek trial when the person has:

(a)     Waived his or her right to be present;[1022ter] 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.

            In that case, the person shall be represented by counsel where the Pre-Trial Chamber determines that it is in the interests of justice.

3.         Within a reasonable time before the hearing, the person shall:

(a)     Be provided with a copy of the document containing the charges on which the Prosecutor intends to bring the person to trial;[1023] and

(b)     Be informed of the evidence on which the Prosecutor intends to rely at the hearing.

            The Pre-Trial Chamber may issue orders regarding the disclosure of information for the purposes of the hearing.[24]
 
4.         Before the hearing, the Prosecutor may continue the investigation and may amend or withdraw any charges. The person shall be given reasonable notice before the hearing of any amendment to or withdrawal of charges. In case of a withdrawal of charges, the Prosecutor shall notify the Pre-Trial Chamber of the reasons for the withdrawal.

5.         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[1025] and need not call the witnesses expected to testify at the trial.

6.         At the hearing, the person may:

(a)     Object to the charges;

(b)     Challenge the evidence presented by the Prosecutor; and

(c)     Present evidence.

7.         The Pre-Trial Chamber shall, on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe[1026] that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall:

(a)     Confirm those charges in relation to which it has determined that there is sufficient evidence, and commit the person to a Trial Chamber for trial on the charges as confirmed;

(b)     Decline to confirm those charges in relation to which it has determined that there is insufficient evidence;

(c)     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.[1027]

8.         Where the Pre-Trial Chamber declines to confirm a charge, the Prosecutor shall not be precluded from subsequently requesting its confirmation if the request is supported by additional evidence.

9.         After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges.

10.         Any warrant previously issued shall cease to have effect with respect to any charges which have not been confirmed by the Pre-Trial Chamber or which have been withdrawn by the Prosecutor.

11.         Once the charges have been confirmed in accordance with this article, the Presidency shall constitute a Trial Chamber which, subject to paragraph 9 and to article 64, paragraph 4, shall be responsible for the conduct of subsequent proceedings and may exercise any function of the Pre-Trial Chamber that is relevant and capable of application in those proceedings.[1028]

Rule 121 Proceedings before the confirmation hearing, paragraph 1
Rule 122 Proceedings at the confirmation hearing in the presence of the person charged, paragraph 1 and 3
Rule 123 Measures to ensure the presence of the person concerned at the confirmation hearing, paragraph 1
Rule 131 Record of the proceedings transmitted by the Pre-Trial Chamber, paragraph 1
Rule 124 Waiver of the right to be present at the confirmation hearing, paragraph 2(a)
Rule 125 Decision to hold the confirmation hearing in the absence of the person concerned, paragraph 2 (b)
Rule 126 Confirmation hearing in the absence of the person concerned, paragraph 2 (b)
Rule 185 Release of a person from the custody of the Court other than upon completion of sentence,
paragraph 5
Rule 127 Procedure in the event of different decisions on multiple charges, paragraph 7 (c i, ii)
Rule 128 Amendment of the charges, paragraph 9
Rule 129 Notification of the decision on the confirmation of charges, paragraph 11
Rule 130 Constitution of the Trial Chamber, paragraph 11
Regulation 52 Document containing the charges, article 61, par. 1
Regulation 53 Decision of the Pre-Trial Chamber following the confirmation hearing, article 61, par. 9

PART 6. THE TRIAL 
Article 62 Place of trial

         Unless otherwise decided, the place of the trial shall be the seat of the Court.  

Rule 100 Place of the proceedings

Article 63 Trial in the presence of the accused

1.         The accused shall be present during the trial.[1029]
 
2.         If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
[1030]

Article 64 Functions and powers of the Trial Chamber

1.         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.[1031]

2.         The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.[1032]

3.         Upon assignment of a case for trial in accordance with this Statute, the Trial Chamber assigned to deal with the case shall:[1033]

(a)     Confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious conduct of the proceedings;[1034]

(b)     Determine the language or languages to be used at trial;[1035] and

(c)     Subject to any other relevant provisions of this Statute, provide for disclosure of documents or information not previously disclosed, sufficiently in advance of the commencement of the trial to enable adequate preparation for trial.[1036]

4.         The Trial Chamber may, if necessary for its effective and fair functioning, refer preliminary issues to the Pre-Trial Chamber or, if necessary, to another available judge of the Pre-Trial Division.[1037] 

5.         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.[1038]

6.         In performing its functions prior to trial or during the course of a trial, the Trial Chamber may, as necessary:[1039]

(a)     Exercise any functions of the Pre-Trial Chamber referred to in article 61, paragraph 11;[1040]

(b)     Require 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;[1041]

(c)     Provide for the protection of confidential information;[1042]

(d)     Order the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties;[1043]

(e)     Provide for the protection of the accused, witnesses and victims;[1044] and

(f)     Rule on any other relevant matters.[1045]

7.         The 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 68, or to protect confidential or sensitive information to be given in evidence.[1046]
 
8.         (a)     At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial 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 65 or to plead not guilty.
[1047]
 
            (b)     At 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 directions of the presiding judge, the parties may submit evidence in accordance with the provisions of this Statute.
[1048]
 
9.         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;[1049] and

(b)     Take all necessary steps to maintain order in the course of a hearing.[1050]

10.         The Trial Chamber shall ensure that a complete record of the trial, which accurately reflects the proceedings, is made and that it is maintained and preserved by the Registrar.[1051]  

Article 65 Proceedings on an admission of guilt[1052]

1.         Where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a), the Trial Chamber shall determine whether:[1053]

(a)     The accused understands the nature and consequences of the admission of guilt;

(b)     The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and

(c)     The admission of guilt is supported by the facts of the case that are contained in:

(i)     The charges brought by the Prosecutor and admitted by the accused;

(ii)     Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and

(iii)     Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused.

2.         Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 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.[1054]

3.         Where the Trial Chamber is not satisfied that the matters referred to in paragraph 1 are established, it shall 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.[1055]

4.         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:[1056]

(a)     Request the Prosecutor to 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.

5.         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.[1057]  

Article 66 Presumption of innocence[1058]

1.         Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.[1059]

2.         The onus is on the Prosecutor to prove the guilt of the accused.[1060]

3.         In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.[1061] 

Article 67 Rights of the accused

1.         In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:[1062] 

(a)     To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;[1063]

(b)     To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;[1064]

(c)     To be tried without undue delay;[1065]

(d)     Subject to article 63, paragraph 2,[1066] 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;[1067]

(e)     To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;[1068]

(f)     To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;[1069] 

(g)     Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;[1070]

(h)     To make an unsworn oral or written statement in his or her defence; and[1071]

(i)     Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.[1072]

2.         In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.[1073]  

Article 68 Protection of the victims and witnesses and their participation in the proceedings

1.         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 7, paragraph 3, and health, and the nature of the crime, 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.[1100]

2.         As an exception to the principle of public hearings provided for in article 67, 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 victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.

3.         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 impartial 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.[1101]

4.         The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6.

5.         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.[1102]

6.         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.

Rule 85 Definition of victims, paragraph 1Rule 86 General principle, paragraph 1
Rule 87 Protective measures, paragraph 1
Rule 88 Special measures, paragraph 1
Rule 89 Application for participation of victims in the proceedings, paragraph 3
Regulation 86 Participation of victims in the proceedings under rule 89
Rule 90 Legal representatives of victims, paragraph 3
Rule 91 Participation of legal representatives in the proceedings, paragraph 3
Rule 92 Notification to victims and their legal representatives, paragraph 3
Rule 93 Views of victims or their legal representatives, paragraph 3
Regulation 20 Public hearings, art 68, par. 2
Regulation 41 Victims and Witnesses Unit, art 68, par 4; rules 87 and 88

Regulation 42 Application and variation of protective measures

Article 69 Evidence

1.         Before testifying, each witness shall, in accordance with the Rules of Procedure and Evidence, give an undertaking as to the truthfulness of the evidence to be given by that witness.

2.         The testimony of a witness at trial shall be given in person, except to the extent provided by the measures set forth in article 68 or in the Rules of Procedure and Evidence. The Court may also permit the giving of viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts, subject to this Statute and in accordance with the Rules of Procedure and Evidence. These measures shall not be prejudicial to or inconsistent with the rights of the accused.[1110]

3.         The parties may submit evidence relevant to the case, in accordance with article 64. The Court shall have the authority to request the submission of all evidence that it considers necessary for the determination of the truth.[1111]

4.         The 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.[1114]

5.         The Court shall respect and observe privileges on confidentiality as provided for in the Rules of Procedure and Evidence.

6.         The Court shall not require proof of facts of common knowledge but may take judicial notice of them.

7.         Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if:[1115]  

(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.

8.         When deciding on the relevance or admissibility of evidence collected by a State, the Court shall not rule on the application of the State's national law.[1116]  

Rule 65 Compellability of witnesses, paragraph 1
Rule 66: Solemn undertaking, paragraph 1
Rule 67 Live testimony by means of audio or video-link technology, paragraph 2
Rule 68 Prior recorded testimony, paragraph 2
Rule 69: Agreements as to evidence, paragraph 3
Rule 63 General provisions relating to evidence, paragraph 4
Rule 64: Procedure relating to the relevance or admissibility of evidence, paragraph 4
Rule 70: Principles of evidence in cases of sexual violence, paragraph 4
Rule 71: Evidence of other sexual conduct, paragraph 4
Rule 72: In camera procedure to consider relevance or admissibility of evidence, paragraph 4
Rule 73: Privileged communications and information, paragraph 5
Rule 74: Self-incrimination by a witness, paragraph 7
Rule 75: Incrimination by family members, paragraph 7

Regulation 43 Testimony of witnesses
Regulation 44 Experts
Regulation 86 Participation of victims in the proceedings under rule 89

Article 70 Offences against the administration of justice

1.         The Court shall have jurisdiction over the following offences against its administration of justice when committed intentionally:

(a)     Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth;

(b)     Presenting evidence that the party knows is false or forged;

(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;

(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.

2.         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.

3.         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.

4.         (a)     Each State Party shall extend its criminal laws penalizing offences against the integrity of its own investigative or judicial process to offences against the administration of justice referred to in this article, committed on its territory, or by one of its nationals;

            (b)     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.

Rule 169 Immediate arrest , paragraph 1 (f)
Rule 163 Application of the Statute and the Rules, paragraph 2
Rule 164 Periods of limitation, paragraph 2
Rule 165 Investigation, prosecution and trial, paragraph 2
Rule 167 International cooperation and judicial assistance, paragraph 2
Rule 166 Sanctions under article 70, paragraph 3
Rule 170 Disruption of proceedings, art. 70, paragraph 2
Rule 171 Refusal to comply with a direction by the Court, art. 70, paragraph 2
Rule 172 Conduct covered by both articles 70 and 71

Article 71 Sanctions for misconduct before the Court

1.         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.

2.         The procedures governing the imposition of the measures set forth in paragraph 1 shall be those provided for in the Rules of Procedure and Evidence.

Rule 170 Disruption of proceedings, paragraph 2
Rule 171 Refusal to comply with a direction by the Court, paragraph 2
Rule 172 Conduct covered by both articles 70 and 71, paragraph 2
Regulation 29 Non-compliance with these Regulations and with orders of a Chamber, art 71, par. 1

Article 72 Protection of national security information

1.         This article applies in any case where the disclosure of the information or documents of a State would, in the opinion of that State, prejudice its national security interests. Such cases include those falling within the scope of article 56, paragraphs 2 and 3, article 61, paragraph 3, article 64, paragraph 3, article 67, paragraph 2, article 68, paragraph 6, article 87, paragraph 6 and article 93, as well as cases arising at any other stage of the proceedings where such disclosure may be at issue.

2.         This article shall also apply when a person who has been requested to give information or evidence has refused to do so or has referred the matter to the State on the ground that disclosure would prejudice the national security interests of a State and the State concerned confirms that it is of the opinion that disclosure would prejudice its national security interests.

3.         Nothing in this article shall prejudice the requirements of confidentiality applicable under article 54, paragraph 3 (e) and (f), or the application of article 73.

4.         If a State learns that information or documents of the State are being, or are likely to be, disclosed at any stage of the proceedings, and it is of the opinion that disclosure would prejudice its national security interests, that State shall have the right to intervene in order to obtain resolution of the issue in accordance with this article.

5.         If, in the opinion of a State, disclosure of information would prejudice its national security interests, all reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the defence or the Pre-Trial Chamber or Trial Chamber, as the case may be, to seek to resolve the matter by cooperative means. Such steps may include:

(a)     Modification or clarification of the request;

(b)     A determination by the Court regarding the relevance of the information or evidence sought, or a determination as to whether the evidence, though relevant, could be or has been obtained from a source other than the requested State;

(c)     Obtaining the information or evidence from a different source or in a different form; or

(d)     Agreement on conditions under which the assistance could be provided including, among other things, providing summaries or redactions, limitations on disclosure, use of in camera or ex parte proceedings, or other protective measures permissible under the Statute and the Rules of Procedure and Evidence.

6.         Once all reasonable steps have been taken to resolve the matter through cooperative means, and if the State considers that there are no means or conditions under which the information or documents could be provided or disclosed without prejudice to its national security interests, it shall so notify the Prosecutor or the Court of the specific reasons for its decision, unless a specific description of the reasons would itself necessarily result in such prejudice to the State's national security interests.

7.         Thereafter, if the Court determines that the evidence is relevant and necessary for the establishment of the guilt or innocence of the accused, the Court may undertake the following actions:

(a)     Where disclosure of the information or document is sought pursuant to a request for cooperation under Part 9 or the circumstances described in paragraph 2, and the State has invoked the ground for refusal referred to in article 93, paragraph 4:

(i)     The Court may, before making any conclusion referred to in subparagraph 7 (a) (ii), request further consultations for the purpose of considering the State's representations, which may include, as appropriate, hearings in camera and ex parte;

(ii)     If the Court concludes that, by invoking the ground for refusal under article 93, paragraph 4, in the circumstances of the case, the requested State is not acting in accordance with its obligations under this Statute, the Court may refer the matter in accordance with article 87, paragraph 7, specifying the reasons for its conclusion; and

(iii)     The Court may make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances; or

(b)     In all other circumstances:  

(i)     Order disclosure; or

(ii)     To the extent it does not order disclosure, make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances. 

Article 73 Third-party information or documents

            If a State Party is requested by the Court to provide a document or information in its custody, possession or control, which was disclosed to it in confidence by a State, intergovernmental organization or international organization, it shall seek the consent of the originator to disclose that document or information. If the originator is a State Party, it shall either consent to disclosure of the information or document or undertake to resolve the issue of disclosure with the Court, subject to the provisions of article 72. If the originator is not a State Party and refuses to consent to disclosure, the requested State shall inform the Court that it is unable to provide the document or information because of a pre-existing obligation of confidentiality to the originator.

Article 74 Requirements for the decision

1.         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.

2.         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.[1117]

3.         The judges shall attempt to achieve unanimity in their decision, failing which the decision shall be taken by a majority of the judges.

4.         The deliberations of the Trial Chamber shall remain secret.

5.         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.

Rule 142 Deliberations
Rule 144 Delivery of the decisions of the Trial Chamber, art 74, paragraph 5
Regulation 16, Alternate judges art 74, par. 1

Regulation 55 Authority of the Chamber to modify the legal characterisation of facts
 

Article 75 Reparations to victims

1.         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.

2.         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 provided for in article 79.
 
3.         Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.
[1117bis]

4.         In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.

5.         A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.

6.         Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.  

Rule 94 Procedure upon request
Regulation 88 Requests for reparations in accordance with rule 94
Rule 95 Procedure on the motion of the Court
Rule 96 Publication of reparation proceedings
Rule 97 Assessment of reparations
Regulation 56 Evidence under article 75, par. 2
Regulation 38 Specific page limits, art 75.

Article 76 Sentencing

1.         In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.

2.         Except where article 65 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.[1118] 

3.         Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.

4.         The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.

Rule 143 Additional hearings on matters related to sentence or reparations, paragraphs 2 and 3

PART 7. PENALTIES
Article 77 Applicable penalties

1.         Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:

(a)     Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or

(b)     A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.

2.         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.

Rule 147 Orders of forfeiture, paragraph 2
Rule 146 Imposition of fines under article 77, paragraph 2 (a)
Rule 212 Information on location of the person for enforcement of fines, forfeitures or reparation measures, paragraph 2(a)
Regulation 118 Procedure under rule 146, sub-rule 5

Article 78 Determination of the sentence

1.         In 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.

2.         In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.

3.         When a person has been convicted of more than one crime, the Court shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment. This period shall be no less than the highest individual sentence pronounced and shall not exceed 30 years imprisonment or a sentence of life imprisonment in conformity with article 77, paragraph 1 (b).

Rule 145 Determination of sentence, paragraph 1

Article 79 Trust Fund

1.         A Trust Fund shall be established by decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.

2.         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.

3.         The Trust Fund shall be managed according to criteria to be determined by the Assembly of States Parties.

Rule 148 Orders to transfer fines or forfeitures to the Trust Fund, paragraph 2
Regulation 116 Enforcement of fines, forfeiture orders and reparation orders, paragraph 2

Article 80 Non-prejudice to national application of penalties and national laws

            Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.

PART 8. APPEAL AND REVISION
Article 81 Appeal against decision of acquittal or conviction or against sentence

1.         A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows:

(a)     The Prosecutor may make an appeal on any of the following grounds:  

(i)     Procedural error,

(ii)     Error of fact, or

(iii)     Error of law;

(b)     The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds:

(i)     Procedural error,

(ii)     Error of fact,

(iii)     Error of law, or

(iv)     Any other ground that affects the fairness or reliability of the proceedings or decision.

2.         (a)      A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence;

            (b)      If on an appeal against sentence 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 under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83;

            (c)      The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a).

3.         (a)      Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal;

            (b)      When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below;

            (c)      In case of an acquittal, the accused shall be released immediately, subject to the following:

(i)     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;

(ii)     A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence.

4.         Subject to the provisions of paragraph 3 (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.  

Rule 152 Discontinuance of the appeal, paragraph 1 (b i)
Rule 154 Appeals that do not require the leave of the Court, paragraph 3 (c ii)
Rule 149 Rules governing proceedings in the Appeals Chamber, paragraph 4
Rule 150 Appeal, paragraph 4
Regulation 57 Appeal, rule 150
Regulation 58 Document in support of the appeal, regulation 57
Regulation 59 Response
Regulation 60 Reply
Regulation 61 Variation of grounds of appeal presented before the Appeals Chamber
Regulation 63 Consolidated appeals under rule 150
Rule 151 Procedure for the appeal, paragraph 4
Rule 152 Discontinuance of the appeal, paragraph 4

Article 82 Appeal against other decisions

1.         Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence:

(a)     A decision with respect to jurisdiction or admissibility;[1120]

(b)     A decision granting or denying release of the person being investigated or prosecuted;[1121]

(c)     A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3;

(d)     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.[1122]

2.         A decision of the Pre-Trial Chamber under article 57, paragraph 3 (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.

3.     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.[1123]

4.     A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.  

Rule 154 Appeals that do not require the leave of the Court, paragraph 1 (c)
Regulation 64 Appeals under rule 154 article 82, par. 1 (b), (c)
Rule 155 Appeals that require leave of the Court, paragraph 1 (d)
Regulation 65 Appeals under rule 155
Rule 156 Procedure for the appeal, paragraph 3
 

Article 83 Proceedings on appeal

1.         For the purposes of proceedings under article 81 and this article, the Appeals Chamber shall have all the powers of the Trial Chamber.

2.         If 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 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.

            For these purposes, the Appeals Chamber may remand a factual issue to the original Trial Chamber for it to determine the issue and to report back accordingly, or may itself call evidence to determine the issue. When the decision or sentence has been appealed only by the person convicted, or the Prosecutor on that person's behalf, it cannot be amended to his or her detriment.

3.         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 7.

4.         The 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.

5.         The Appeals Chamber may deliver its judgement in the absence of the person acquitted or convicted.

Rule 156 Procedure for the appeal, paragraph 1
Rule 157 Discontinuance of the appeal, paragraph 1
Rule 153 Judgement on appeals against reparation orders, paragraphs 4 and 5
Rule 158 Judgement on the appeal, paragraph 4

Article 84 Revision of conviction or sentence

1.         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 judgement of conviction or sentence on the grounds that:

(a)     New 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;

(b)     It has been newly discovered that decisive evidence, taken into account at trial and upon which the conviction depends, was false, forged or falsified;

(c)     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 46.

2.        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 judgement should be revised.  

Rule 159 Application for revision, paragraph 1 (c)
Rule 160 Transfer for the purpose of revision, paragraph 1 (c)
Rule 161 Determination on revision, paragraph 1(c)
Regulation 62 Additional evidence presented before the Appeals Chamber, art 84, par 1 (a)
Regulation 66 Procedure leading to the determination on revision, art 84, par. 1
 

Article 85 Compensation to an arrested or convicted person[1140]
1.         Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.[1141]

2.         When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her conviction has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him or her.[1142]

3.         In exceptional circumstances, where the Court finds conclusive facts showing that there has been a grave and manifest miscarriage of justice, it may in its discretion award compensation, according to the criteria provided in the Rules of Procedure and Evidence, to a person who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason.[1143]

PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE 
Article 86 General obligation to cooperate

            States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.  

Article 87 Requests for cooperation: general provisions

1.         (a)     The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession.

            Subsequent changes to the designation shall be made by each State Party in accordance with the Rules of Procedure and Evidence.

            (b)     When appropriate, without prejudice to the provisions of subparagraph (a), requests may also be transmitted through the International Criminal Police Organization or any appropriate regional organization.

2.         Requests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession.

            Subsequent changes to this choice shall be made in accordance with the Rules of Procedure and Evidence.

3.         The requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.

4.         In relation to any request for assistance presented under this Part, the Court may take such measures, including measures related to the protection of information, as may be necessary to ensure the safety or physical or psychological well-being of any victims, potential witnesses and their families. The Court may request that any information that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any victims, potential witnesses and their families.

5.         (a)     The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

            (b)     Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

6.         The Court may ask any intergovernmental organization to provide information or documents. The Court may also ask for other forms of cooperation and assistance which may be agreed upon with such an organization and which are in accordance with its competence or mandate.[1200]

7.         Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.[1201]

Rule 176 Organs of the Court responsible for the transmission and receipt of any communications relating to international cooperation and judicial assistance, paragraphs 1 and 2
Rule 177 Channels of communication, paragraph 1 and 6
Rule 178 Language chosen by States Parties under article 87, paragraph 2
Rule 180 Changes in the channels of communication or the languages of requests for cooperation, paragraph 2
Rule 179 Language of requests directed to States not party to the Statute, paragraph 5
Regulation 109 Failure to comply with a request for cooperation, article 87
 

Article 88 Availability of procedures under national law

            States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.  

Article 89 Surrender of persons to the Court

1.         The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.[1202]

2.         Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.

3.         (a)     A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.

            (b)     A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:

(i)     A description of the person being transported; 

(ii)    A brief statement of the facts of the case and their legal characterization; and 

(iii)    The warrant for arrest and surrender;

            (c)     A person being transported shall be detained in custody during the period of transit;

            (d)     No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;

            (e)     If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.

4.         If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Rule 181 Challenge to admissibility of a case before a national court, paragraph 2
Rule 182 Request for transit under article 89, paragraph 3 (e)
Rule 183 Possible temporary surrender, paragraph 4
Rule 184 Arrangements for surrender, paragraph 4
Regulation 111 Information about admissibility ruling, article 89, par. 1

Article 90 Competing requests

1.         A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact.

2.         Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if:

(a)     The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or

(b)     The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1.

3.         Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis.

4.         If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible.

5.         Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State.

6.         In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to:

(a)     The respective dates of the requests;

(b)     The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and

(c)     The possibility of subsequent surrender between the Court and the requesting State.

7.         Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender:

(a)     The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court;

(b)     The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question.

8.         Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision.  

Rule 186 Competing requests in the context of a challenge to the admissibility of the case, paragraph 8

Article 91 Contents of request for arrest and surrender

1.         A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).[1203]

2.         In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber under article 58, the request shall contain or be supported by:

(a)     Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b)     A copy of the warrant of arrest; and

(c)     Such documents, statements or information as may be necessary to meet the requirements for the surrender process in the requested State, except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States and should, if possible, be less burdensome, taking into account the distinct nature of the Court.

3.         In the case of a request for the arrest and surrender of a person already convicted, the request shall contain or be supported by:

(a)     A copy of any warrant of arrest for that person;

(b)     A copy of the judgement of conviction;

(c)     Information to demonstrate that the person sought is the one referred to in the judgement of conviction; and

(d)     If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any time already served and the time remaining to be served.

4.         Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (c). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.  

Rule 187 Translation of documents accompanying request for surrender, paragraph 1

Article 92 Provisional arrest

1.         In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.[1204]

2.         The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:

(a)     Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b)     A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;

(c)     A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and

(d)     A statement that a request for surrender of the person sought will follow.

3.         A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.

4.         The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.

Rule 188 Time limit for submission of documents after provisional arrest, paragraph 3
Rule 189 Transmission of documents supporting the request, paragraph 3

Article 93 Other forms of cooperation

1.         States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(a)     The identification and whereabouts of persons or the location of items;

(b)     The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;

(c)     The questioning of any person being investigated or prosecuted;

(d)     The service of documents, including judicial documents;

(e)     Facilitating the voluntary appearance of persons as witnesses or experts before the Court;

(f)     The temporary transfer of persons as provided in paragraph 7;

(g)     The examination of places or sites, including the exhumation and examination of grave sites;

(h)     The execution of searches and seizures;

(i)     The provision of records and documents, including official records and documents;

(j)     The protection of victims and witnesses and the preservation of evidence;

(k)     The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties;[1205] and

(l)     Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.[1206]

2.         The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.[1207]

3.         Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.

4.         In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.

5.         Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.

6.         If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.

7.         (a)     The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:

(i)     The person freely gives his or her informed consent to the transfer; and

(ii)     The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.

            (b)     The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.[1220]

8.         (a)     The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.

            (b)     The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.

            (c)     The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.

9.         (a)     (i)     In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.

                    (ii)     Failing that, competing requests shall be resolved in accordance with the principles established in article 90.

            (b)     Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.

10.       (a)     The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.

            (b)     (i)     The assistance provided under subparagraph (a) shall include, inter alia:

a.    The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court;[1224] and

b.     The questioning of any person detained by order of the Court;

                        (ii)     In the case of assistance under subparagraph (b) (i) a:

a.     If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;

b.     If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.

            (c)     The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.  

Rule 190 Instruction on self-incrimination accompanying request for witness, paragraph 1 (e)
Rule 191 Assurance provided by the Court under article 93, paragraph 2
Rule 192 Transfer of a person in custody, paragraph 7 (b)
Rule 193 Temporary transfer of the person from the State of enforcement, paragraph 7 (b)
Rule 194 Cooperation requested from the Court, paragraph 10 (c)
Regulation 108 Ruling regarding the legality of a request for cooperation
Regulation 110 Cooperation for the purposes of notification by way of personal service, article 93, par. 1(d)

Article 94 Postponement of execution of a request in respect of ongoing investigation or prosecution
1.         If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. Before making a decision to postpone, the requested State should consider whether the assistance may be immediately provided subject to certain conditions.[1224bis]

2.         If a decision to postpone is taken pursuant to paragraph 1, the Prosecutor may, however, seek measures to preserve evidence, pursuant to article 93, paragraph 1 (j).

Article 95 Postponement of execution of a request in respect of an admissibility challenge
            Where there is an admissibility challenge under consideration by the Court pursuant to article 18 or 19, the requested State may postpone the execution of a request under this Part pending a determination by the Court, unless the Court has specifically ordered that the Prosecutor may pursue the collection of such evidence pursuant to article 18 or 19.[1225]
Article 96 Contents of request for other forms of assistance under article 93
1.         A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).

2.         The request shall, as applicable, contain or be supported by the following:

(a)     A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;

(b)     As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;

(c)     A concise statement of the essential facts underlying the request;

(d)     The reasons for and details of any procedure or requirement to be followed;

(e)     Such information as may be required under the law of the requested State in order to execute the request; and

(f)     Any other information relevant in order for the assistance sought to be provided.

3.         Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.

4.         The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.

Article 97 Consultations
            Where a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, inter alia:

(a)     Insufficient information to execute the request;

(b)     In the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or

(c)     The fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State. 

Article 98 Cooperation with respect to waiver of immunity and consent to surrender
1.         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 first obtain the cooperation of that third State for the waiver of the immunity.[1226]

2.         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.

Rule 195 Provision of information, paragraph 2

Article 99 Execution of requests under articles 93 and 96
1.         Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permitting persons specified in the request to be present at and assist in the execution process.

2.         In the case of an urgent request, the documents or evidence produced in response shall, at the request of the Court, be sent urgently.

3.         Replies from the requested State shall be transmitted in their original language and form.

4.         Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person on a voluntary basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows:

(a)     When the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility pursuant to article 18 or 19, the Prosecutor may directly execute such request following all possible consultations with the requested State Party;

(b)     In other cases, the Prosecutor may execute such request following consultations with the requested State Party and subject to any reasonable conditions or concerns raised by that State Party. Where the requested State Party identifies problems with the execution of a request pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the matter.

5.         Provisions allowing a person heard or examined by the Court under article 72 to invoke restrictions designed to prevent disclosure of confidential information connected with national security shall also apply to the execution of requests for assistance under this article.  

Article 100 Costs
1.         The ordinary costs for execution of requests in the territory of the requested State shall be borne by that State, except for the following, which shall be borne by the Court:

(a)     Costs associated with the travel and security of witnesses and experts or the transfer under article 93 of persons in custody;

(b)     Costs of translation, interpretation and transcription;

(c)     Travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and staff of any organ of the Court;

(d)     Costs of any expert opinion or report requested by the Court;

(e)     Costs associated with the transport of a person being surrendered to the Court by a custodial State; and

(f)     Following consultations, any extraordinary costs that may result from the execution of a request.

2.         The provisions of paragraph 1 shall, as appropriate, apply to requests from States Parties to the Court. In that case, the Court shall bear the ordinary costs of execution.

Rule 208 Costs, paragraph 1 (c, d, e)

Article 101 Rule of speciality

  1.         A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered.[1227]

2.         The Court may request a waiver of the requirements of paragraph 1 from the State which surrendered the person to the Court and, if necessary, the Court shall provide additional information in accordance with article 91. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so.

Rule 196 Provision of views on article 101, paragraph 1
Rule 197 Extension of the surrender, paragraph 1

Article 102 Use of terms
        For the purposes of this Statute:
 
        (a)     "surrender" means the delivering up of a person by a State to the Court, pursuant to this Statute.

        (b)     "extradition" means the delivering up of a person by one State to another as provided by treaty, convention or national legislation.  

PART 10. ENFORCEMENT 
Article 103 Role of States in enforcement of sentences of imprisonment

1.         (a)     A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.

            (b)     At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.

            (c)     A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.

2.         (a)     The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.

            (b)     Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.

3.         In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:

            (a)     The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;

            (b)     The application of widely accepted international treaty standards governing the treatment of prisoners;

            (c)     The views of the sentenced person;

            (d)     The nationality of the sentenced person;

            (e)     Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.

4.         If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.
 

Rule 200 List of States of enforcement, paragraph 1
Regulation 114 Bilateral arrangements under rule 200, sub-rule 5
Rule 208 Costs
Rule 198 Communications between the Court and States, paragraph 1
Rule 199 Organ responsible under Part 10, paragraph 1
Rule 225 Measures under article 111 in the event of escape, paragraph 1
Rule 203 Views of the sentenced person, paragraph 3 (c)
Rule 201 Principles of equitable distribution, paragraph 3(e)
Rule 204 Information relating to designation, paragraph 3 (d, e)
Rule 205 Rejection of designation in a particular case, paragraph 4
Rule 206 Delivery of the sentenced person to the State of enforcement, paragraph 1 (c)
Rule 207 Transit, paragraph 1

Article 104 Change in designation of State of enforcement

1.         The Court may, at any time, decide to transfer a sentenced person to a prison of another State.

2.         A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.  

Rule 202 Timing of delivery of the sentenced person to the State of  enforcement, paragraph 1,
Rule 205 Rejection of designation in a particular case, paragraph 1
Rule 209 Change in designation of State of enforcement, paragraph 1
Rule 210 Procedure for change in the designation of a State of enforcement

Article 105 Enforcement of the sentence

1.         Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.

2.         The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.
 

Article 106 Supervision of enforcement of sentences and conditions of imprisonment

1.         The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.

2.         The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.

3.         Communications between a sentenced person and the Court shall be unimpeded and confidential.  

Rule 211 Supervision of enforcement of sentences and conditions of imprisonment, paragraph 1 and 3
Rule 212 Information on location of the person for enforcement of fines, forfeitures or reparation measures, paragraph 1
Regulation 113 Enforcement unit within the Presidency, article 106, par 1

Article 107 Transfer of the person upon completion of sentence

1.         Following completion of the sentence, a person who is not a national of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory.

2.         If no State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court.

3.         Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to a State which has requested the extradition or surrender of the person for purposes of trial or enforcement of a sentence.  

Rule 213 Procedure for article 107, paragraph 3

Article 108 Limitation on the prosecution or punishment of other offences

1.         A sentenced person in the custody of the State of enforcement shall not be subject to prosecution or punishment or to extradition to a third State for any conduct engaged in prior to that person's delivery to the State of enforcement, unless such prosecution, punishment or extradition has been approved by the Court at the request of the State of enforcement.

2.         The Court shall decide the matter after having heard the views of the sentenced person.

3.         Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it.

Rule 214 Request to prosecute or enforce a sentence for prior conduct, paragraph 1
Regulation 115 Exercise of functions under rule 214, sub-rule 4
Rule 215 Decision on request to prosecute or enforce a sentence, paragraph 1
Rule 216 Information on enforcement, paragraph 1

Article 109 Enforcement of fines and forfeiture measures

1.         States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.

2.         If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.

3.         Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.

Rule 217 Cooperation and measures for enforcement of fines, forfeiture or reparation orders, paragraph 1
Rule 218 Orders for forfeiture and reparations, paragraph 1
Rule 219 Non-modification of orders for reparation, paragraph 1
Rule 220 Non-modification of judgements in which fines were imposed, paragraph 1
Rule 222 Assistance for service or any other measure, paragraph 2
Rule 221 Decision on disposition or allocation of property or assets, paragraph 3
Regulation 116 Enforcement of fines, forfeiture orders and reparation orders, article 109
Regulation 117 Ongoing monitoring of financial situation of the sentenced person, article 109

Article 110 Review by the Court concerning reduction of sentence

1.         The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court.

2.         The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person.

3.         When the person has served two thirds of the sentence, or 25 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.

4.         In its review under paragraph 3, 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.

5.         If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.  

Rule 223 Criteria for review concerning reduction of sentence, paragraphs 3, 4(a, b) and 5
Rule 224 Procedure for review concerning reduction of sentence, paragraphs 3 and 5

Article 111 Escape

            If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person's surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person's surrender, in accordance with Part 9. It may direct that the person be delivered to the State in which he or she was serving the sentence or to another State designated by the Court.

Rule 225 Measures under article 111 in the event of escape

PART 11. ASSEMBLY OF STATES PARTIES 
Article 112 Assembly of States Parties

1.         An Assembly of States Parties to this Statute is hereby established. Each State Party shall have one representative in the Assembly who may be accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly.

2.         The Assembly shall:

(a)     Consider and adopt, as appropriate, recommendations of the Preparatory Commission;

(b)     Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court;

(c)     Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto;

(d)     Consider and decide the budget for the Court;

(e)     Decide whether to alter, in accordance with article 36, the number of judges;

(f)     Consider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation;

(g)     Perform any other function consistent with this Statute or the Rules of Procedure and Evidence.

3.          (a)     The Assembly shall have a Bureau consisting of a President, two Vice-Presidents and 18 members elected by the Assembly for three-year terms.

             (b)     The Bureau shall have a representative character, taking into account, in particular, equitable geographical distribution and the adequate representation of the principal legal systems of the world.

            (c)     The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities.

4.         The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.

5.         The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau.

6.         The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Except as otherwise specified in this Statute, special sessions shall be convened by the Bureau on its own initiative or at the request of one third of the States Parties.

7.         Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute:

(a)     Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting;

(b)     Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting.

8.         A State Party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a State Party to vote in the Assembly and in the Bureau if it is satisfied that the failure to pay is due to conditions beyond the control of the State Party.

9.         The Assembly shall adopt its own rules of procedure.

10.         The official and working languages of the Assembly shall be those of the General Assembly of the United Nations.

PART 12. FINANCING 
Article 113 Financial Regulations

            Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties.  

Article 114 Payment of expenses

            Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court.

Article 115 Funds of the Court and of the Assembly of States Parties

            The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources:

(a)     Assessed contributions made by States Parties;

(b)     Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council. 

Article 116 Voluntary contributions

            Without prejudice to article 115, the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties.  

Article 117 Assessment of contributions

            The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based.  

Article 118 Annual audit

            The records, books and accounts of the Court, including its annual financial statements, shall be audited annually by an independent auditor.  

PART 13. FINAL CLAUSES
 Article 119 Settlement of disputes

1.         Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.

2.         Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.  

Article 120 Reservations

            No reservations may be made to this Statute.  

Article 121 Amendments

1.         After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations, who shall promptly circulate it to all States Parties.

2.         No sooner than three months from the date of notification, the Assembly of States Parties, at its next meeting, shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants.

3.         The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties.

4.         Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.

5.         Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.

6.         If an amendment has been accepted by seven-eighths of States Parties in accordance with paragraph 4, any State Party which has not accepted the amendment may withdraw from this Statute with immediate effect, notwithstanding article 127, paragraph 1, but subject to article 127, paragraph 2, by giving notice no later than one year after the entry into force of such amendment.

7.         The Secretary-General of the United Nations shall circulate to all States Parties any amendment adopted at a meeting of the Assembly of States Parties or at a Review Conference.  

Article 122 Amendments to provisions of an institutional nature

1.         Amendments to provisions of this Statute which are of an exclusively institutional nature, namely, article 35, article 36, paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1 (first two sentences), 2 and 4, article 42, paragraphs 4 to 9, article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may be proposed at any time, notwithstanding article 121, paragraph 1, by any State Party. The text of any proposed amendment shall be submitted to the Secretary-General of the United Nations or such other person designated by the Assembly of States Parties who shall promptly circulate it to all States Parties and to others participating in the Assembly.

2.         Amendments under this article on which consensus cannot be reached shall be adopted by the Assembly of States Parties or by a Review Conference, by a two-thirds majority of States Parties. Such amendments shall enter into force for all States Parties six months after their adoption by the Assembly or, as the case may be, by the Conference.  

Article 123 Review of the Statute

1.         Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions.

2.         At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference.

3.         The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference.  

Article 124 Transitional Provision

            Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.[1230]  

Article 125 Signature, ratification, acceptance, approval or accession

1.         This Statute shall be open for signature by all States in Rome, at the headquarters of the Food and Agriculture Organization of the United Nations, on 17 July 1998. Thereafter, it shall remain open for signature in Rome at the Ministry of Foreign Affairs of Italy until 17 October 1998. After that date, the Statute shall remain open for signature in New York, at United Nations Headquarters, until 31 December 2000.

2.         This Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations.

3.         This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article 126 Entry into force

1.         This Statute shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.

2.         For each State ratifying, accepting, approving or acceding to this Statute after the deposit of the 60th instrument of ratification, acceptance, approval or accession, the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession.

Article 127 Withdrawal

1.         A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.

2.         A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

Article 128 Authentic texts

            The original of this Statute, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States.
 
            IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Statute.
 
           DONE at Rome, this 17th day of July 1998.


 

[1] The preamble sets the tone of the Rome Statute. It is part of the context within the Rome Statute should be interpreted and applied.

Doctrine:
Tuiloma Neorini Slade/Roger S. Clark at p. 425-429 in Roy S. Lee, 1999.
Morten Bergsmo/Otto Triffterer at p. 1-16, MN 1-23 in Otto Triffterer.

Author: Mark Klamberg

[2]  The wording "persons" implies that the Court only has jurisdictions over natural persons which is supported by article 25(1). The Court is complementarity to national criminal jurisdictions. The principle of complementarity is not defined in the present article but addressed in paragraph 10 of the Preamble and in articles 12-15 and 17-20.

Crossreference:
Paragraph 10 of the Preamble, articles 12-15, 17-20 and 25(1).

Doctrine:
John T. Holmes at pp. 41-78 in Roy S. Lee, 1999.
Otto Triffterer at pp. 51-64, MN 1-30 in Otto Triffterer.

Author: Mark Klamberg

[3] As the Court is established by way of an multilateral treaty it is an entirely separate institution vis-à-vis the United Nations, requiring an ad hoc structural link between the two institutions. On 4 October 2004 the Negotiated Relationship Agreement between the International Criminal Court and the United Nations was adopted and entered into force. The agreement concerns, inter alia, reciprocal representation (article 4), exchange of information (article 5), reports to the UN (article 6), proposal from the Court for items for consideration at the United Nations (article 7), personal arrangements (article 8), administrative cooperation (article 9), services and facilities (article 10), access to the United Nations Headquarters (article 11), laissez-passer (article 12) and financial matters (article 13).

Doctrine:
Luigi Condorelli/Santiago Villalpando at pp. 219-234 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Antonio Marchesi at pp. 65-70, MN 1-14 in Otto Triffterer.

Author: Mark Klamberg

[4] Domestic laws and regulations of the host State do apply within ICC premises unless the parties have contracted otherwise. However, it cannot be enforced by that State without the ICC waiving its relevant immunity in that case.

Doctrine:
Adrian Bos at pp. 193-195 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Gerhard A.M. Strijards at pp. 77-81, MN 9-18 in Otto Triffterer.

Author: Mark Klamberg

[5] In contrast to the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) the ICC is not an organ of the United Nations. Therefore the General Convention of Privileges and Immunities of the UN (1945) does not apply and thus a similar general agreement is necessary. Other articles relevant to the Host State Agreement, including articles 48 and 103. On 19 November 2002 the Registrar of the Court and the Ministry of Foreign Affairs of the Kingdom of the Netherlands exchanged Notes embodying an interim agreement between the ICC and the Kingdom of the Netherlands concerning the headquarters of the Court. The arrangements will continue to apply until the entry into force of the headquarters agreement.

Crossreference:
Articles 48 and 103.

Doctrine:
Adrian Bos at pp. 197-199 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Gerhard A.M. Strijards at pp. 81-88, MN 19-29 in Otto Triffterer.

Author: Mark Klamberg

[6] It is possible for the Court to sit outside the Hague. According to article 38(3)(a), it shall be for the Presidency to take decision to arrange for sitting outside the Court.

Crossreference:
Article 38(3)(a)

Doctrine:
Adrian Bos at pp. 199-202 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[7] International legal personality, i.e. the capacity of possessing international rights and duties, clearly exists in relation to the States Parties and might also refer to States not Parties to the Statute. The provision on legal capacity lays down an obligation upon the States Parties to ensure that the Court enjoys such legal status under national law as may be necessary to perform its functions.

Doctrine:
Francesca Martines at pp. 203-214 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Wiebke Rückert at pp. 91-93, MN 4-8 in Otto Triffterer.

Author: Mark Klamberg

[8] The possible exercise of power is not limited to the territory of the Host State, see articles 3(3) and 62.

Crossreference:
Articles 3(3) and 62

Doctrine:
Francesca Martines at pp. 203-214 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Wiebke Rückert at pp. 93-96, MN 9-16 in Otto Triffterer.

Author: Mark Klamberg

[9] The crimes mentioned in the present provision are considered to be the core crimes of international criminal law.

Doctrine:
Herman von Hebel and Darryl Robinson at p. 79-81 in Roy S. Lee, 1999.
Andreas Zimmerman at pp. 98-101, MN 1-11 in Otto Triffterer.

Author: Mark Klamberg

[10] See comments under article 6.

[11] See comments under article 7.

[12] See comments under article 8.

[13] At the Rome Conference, the informal consultations did not bring the delegations to an agreement on the definition of the crime and under which conditions the Court shall exercise jurisdiction with respect to the crime. Thus, the Court may not exercise jurisdiction with respect to the crime of aggression.

Doctrine:
Gerhard Werle at pp. 400-401, MN 1184-1185.
Herman von Hebel and Darryl Robinson at p. 81-85 in Roy S. Lee, 1999.
Andreas Zimmerman at pp. 102-103, MN 16 in Otto Triffterer.

Author: Mark Klamberg

[14] The crime of aggressions was recognised as an international crime at the Rome Conference but the second step allowing the Court to act could only be taken after certain conditions in articles 121 and 123 were met. There must be a near-consensus agreement on a definition of aggression and the relationship between the ICC and the Security Council has to be clarified, in consistency with the UN charter. As a third and final, step the proposed new definition and clarification will only be considered for adoption at an amendment conference that will not take place until more than seven years have elapsed after the Rome Statute comes into effect following ratification by at least sixty nations. The reason for the limit of seven years before amendments are possible, is presumably to test how reliably the ICC functions. The new provisions require a two-thirds majority and acceptance by seven-eighths of the Parties. In order for the amendment to be binding upon a State party, the State in question has to accept the amendment. A dissenting Party could also immediately withdraw from the Rome Statute. The issue is currently under discussion between States in the Special Working Group on the Crime of Aggression.

Crossreference:
Articles 121 and 123

Doctrine:
Gerhard Werle at pp. 400-401, MN 1184-1185.
Herman von Hebel and Darryl Robinson at p. 81-85 in Roy S. Lee, 1999.
Andreas Zimmerman at pp. 103-106, MN 17-29 in Otto Triffterer.

Author: Mark Klamberg

[15] Genocide has a special intent requirement, dolus specialis, which should be distinguished from the standard mental, mens rea, requirement in article 30. The specific intent requires performance of the material element, actus reus, with an intent or purpose that goes beyond the mere performance of the act. The special intent in genocide lies in the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". Four groups are protected by this provision. This list is exclusive. The notion "in whole or in part ... a group as such" should be understood to the specific intent to destroy more than a small number of individuals belonging to a protected group. The words "as such" are ambiguous and may imply that proof of a genocidal motive is an essential element of the offence.
    In Prosecutor v. Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, paras. 136-137, the majority of the Pre-Trial Chamber considered that "there are no reasonable grounds to believe that nationality, race and/or religion are a distinctive feature of any of the three different groups - the Fur, the Masalit and the Zaghawa - that, according to the Prosecution, have been targeted.... As a result, the question arises as to whether any of the three said groups is a distinct ethnic group. In this regard, the Majority finds that there are reasonable grounds to believe that this question must be answered in the affirmative as there are reasonable grounds to believe that each of the groups (the Fur, the Masalit and the Zaghawa) has its own language, its own tribal customs and its own traditional links to its lands"
    The Pre-Trial Chamber in Al Bashir found that an inference of the genocidal intent "may properly be drawn from all evidence taken together, even where each factor on its own may not warrant such an inference." In order for such an inference to be drawn, the existence of genocidal intent "must be the only reasonable inference available on the evidence." (paras. 153,154 and 156)
    The Majority in Al Bashir concluded "that the existence of reasonable grounds to believe that the GoS acted with a dolus specialis/specific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups is not the only reasonable conclusion that can be drawn therefrom. .... As a result, the Majority finds that the materials provided by the Prosecution in support of the Prosecution Application fail to provide reasonable grounds to believe that the GoS acted with dolus specialis/spetific intent to destroy in whole or in part the Fur, Masalit and Zaghawa groups, and consequently no warrant of arrest for Omar Al Bashir shall be issued in relation to counts 1 to 3." (paras. 205-206)
    The partly dissenting Judge Ušacka noted that “[t]he Statute proscribes progressively higher evidentiary thresholds which must be met at each stage of the proceedings” and that at the arrest warrant/summons stage the Pre-Trial Chamber need only be "satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court. She held that “the Prosecution need not demonstrate … an inference [of genocidal intent] is the only reasonable one at the arrest warrant stage” She was satisfied that there was reasonable grounds to issue an arrest warrant on the basis of the existence of reasonable grounds to believe that Omar Al Bashir has committed the crime of genocide. (paras. Separate and Partly Dissenting Opinion of Judge Anita Ušacka, paras. 8, 27-34, 84 and 105)

Doctrine:
Antonio Cassese at pp. 96-109.
Gerhard Werle at pp. 193-199, MN 571-586.
William A. Schabas at pp. 109-111, MN 4-7 in Otto Triffterer.
William A. Schabas at pp. 102-150, 206-256

Author: Mark Klamberg

[16] The notion "killing" includes intentional killing and not involuntary homicide.

Crossreference:
Elements of Crime

Doctrine:
Gerhard Werle at p. 200, MN 589.
William A. Schabas at p. 112, MN 9 in Otto Triffterer.
William A. Schabas at pp. 157-159

Author: Mark Klamberg

[17] The notion "bodily harm" includes physical violence falling short of actual killing, for example serious damage to health, causing disfigurement, and serious injuries to external or internal organs or senses. The concept of "mental harm" includes minor or temporary impairment of the mental facilities. Causing serious bodily or mental harm to members of the group does not necessarily mean that the harm is permanent and irreversible. However, a merely physical or mental impairment is insufficient. It must involve damage that results in a grave and long-term disadvantage to a person's ability to lead a normal and constructive life. If acts of rape and sexual violence is perpetrated with requisite mental element the acts may constitute genocide on both a physical and mental level.

Crossreference:
Elements of Crime

Doctrine:
Gerhard Werle at pp. 200-201, MN 590-592.
William A. Schabas at pp. 112-113, MN 10 in Otto Triffterer.
William A. Schabas at pp. 159-165

Author: Mark Klamberg

[18] The provision prohibits so-called slow death measures, meaning conduct that does not immediately kill, but can (and is intended to do) bring about the death of group members over the long term. The conduct may include withholding food, clothing, shelter and medicine, de facto enslavement through forced labor as well as rape. Unlike the crimes defined in paragraphs (a) and (b), the act of deliberately inflicting on the group conditions of life calculated to bring about its physical destruction does not require proof of result. I a result is achieved, then the proper charge will be paragraphs (a) and (b). The concept of omission applies most clearly to paragraph (c).

Crossreference:
Starvation in
Articles 7(1)(b), (j) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v), (xiii) and (xxv)
Elements of Crime

Doctrine:
Gerhard Werle at pp. 201-202, MN 593-596.
William A. Schabas at pp. 112-113, MN 10-11 in Otto Triffterer.
William A. Schabas at pp. 165-171

Author: Mark Klamberg

[19] Imposing measures in order to prevent births is a form of biological genocide contemplated in the article, which may include measures such as sterilization, compulsory abortion, segregation of the sexes and obstacles to marriage. Rape fits in the definition, for example if it causes the victim not top reproduce because of the trauma suffered. Measures taken by heavily populated countries to forcibly lower the birth rate of its own population for social or economic reasons do not reflect genocidal intent.

Crossreference:
Elements of Crime

Doctrine:
Gerhard Werle at p. 202, MN 597.
William A. Schabas at pp. 113-114, MN 12-13 in Otto Triffterer.
William A. Schabas at pp. 172-175

Author: Mark Klamberg

[20] This provision seeks to prevent children from being forcible transferred and thus estranged from their group. A child is defined as anyone under eighteen.

Crossreference:
Elements of Crime

Doctrine:
Gerhard Werle at p. 203, MN 598-603.
William A. Schabas at pp. 114-115, MN 14 in Otto Triffterer.
William A. Schabas at pp. 175-178

Author: Mark Klamberg

[21] Under the general definition provided in the chapeau of article 7 crimes against humanity are defined as acts which occur during a widespread or systematic attack. The requirement of widespread or systematic practice introduces a threshold in order to exclude "random or isolated acts of violence", see Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para 33. See also Bemba, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 33; Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 394.
    By the use of "or" the two criteria are alternative, rather than cumulative, which provides a larger scope for the provision. This broad scope is counterbalanced by a including a policy element in the definition of attack on a civilian population. This is further elaborated upon in article 7(2)(a).
    PTC I has stated that "[t]he adjective "widespread" connotes the large-scale nature of the attack and the number of targeted persons, whereas the adjective "systematic" refers to the organised nature of the acts of violence and the improbability of their random occurrence" (Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para 33.). See also Bemba, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 33; Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 83; Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, paras. 395 and 397.
    Attack does not necessarily mean a military attack and does need not occur in relation to armed hostilities or an armed conflict. The accused must have knowledge that the offence are part of a systematic policy or of widespread abuses.

Crossreference:
Elements of Crime

Doctrine:
Antonio Cassese at pp. 356-365 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Gerhard Werle at pp. 221-230, MN 646-669.
Rodney Dixon at pp. 122-129, MN 3-18 in Otto Triffterer.

Author: Mark Klamberg

[22] The term "killed" in the Elements of Crime is interchangeable with the term "caused death". The mens rea for murder is neither fully clarified in the present provision nor in the elements of crime. The standard of article 30 applies to mental element. The main question is whether to apply the common law concept of "wilful blindness" and "recklessness" or civil law concepts such as "dolus eventualis". During the negotiations of the Statute and the elements of crime it was decided to leave such details for the Court to interpret article 30.

Crossreference:
Article 8(2)(a)(i) and 8(2)(c)(i)
Elements of Crime

Doctrine:
Christopher K. Hall at pp. 129-131, MN 19-23 in Otto Triffterer.
Darryl Robinson at pp. 80-81 in Roy S. Lee, 2001.
Gerhard Werle at pp. 232-233, MN 674-677.


Author: Mark Klamberg

[23] The crime includes direct and indirect causing the death of a large number of people. According to Article 7(2)(b) extermination includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population. The crime does not, in contrast to the crime of genocide, require a special intent or that a specific group is attacked. The standard of article 30 applies to mental element.

Crossreference:
Starvation in
Articles 6(c); 7(1)(j) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v), (xiii) and (xxv)
Elements of Crime

Doctrine:
Antonio Cassese at p. 373 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Christopher K. Hall at pp. 131-132 and 160, MN 24-25 and 95 in Otto Triffterer.
Darryl Robinson at pp. 81-84 in Roy S. Lee, 2001.
Gerhard Werle at pp. 234-236, MN 678-682.

Author: Mark Klamberg

[24] The term "enslavement" should not be limited to its traditional sense. According to article 7(2)(c) enslavement means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children. The standard of article 30 applies to mental element.

Crossreference:
Articles 8(2)(b)(xxi) and 8(2)(c)(ii)
Elements of Crime

Doctrine:
Antonio Cassese at pp. 373-374 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Christopher K. Hall at pp. 132-134 and 160-161, MN 26-30 and 96 in Otto Triffterer.
Darryl Robinson at pp. 84-86 in Roy S. Lee, 2001.
Gerhard Werle at pp. 236-238, MN 683-689.


Author: Mark Klamberg

[25] The material element requires the transfer of persons from one territory to another. According to article 7(2)(d) deportation or forcible transfer of population means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law. The difference between deportation and forcible transfer lies only in whether a border is crossed. Deportation requires that a border is crossed, while as forcible transfer means the transfer of one or more persons within the same state's territory. The transfer must be involuntary. The mental element must encompass the fact that the victim will not return to the place of his or her origin.

Crossreference:
Articles 8(2)(a)(vii), 8(2)(b)(viii) and 8(2)(e)(viii)
Elements of Crime

Doctrine:
Antonio Cassese at p. 374 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Christopher K. Hall at pp. 134-136 and 161-163, MN 31-34 and 97-103 in Otto Triffterer.
Darryl Robinson at pp. 86-88 in Roy S. Lee, 2001.
Gerhard Werle at pp. 240-242, MN 695-703.

Author: Mark Klamberg

[26] The term "imprisonment" includes cases in which a person is literally "imprisoned" in an enclosed space. Other severe deprivations of physical liberty includes those who are kept within a ghetto or concentration camp, as well as house arrest. The term "rules of international law" includes treaties, customary international law and general principles of law. These rules probably include as a minimum the right to be free from arbitrary detention and the right to a fair trial. The standard of article 30 applies to mental element.

Crossreference:
Article 8(2)(a)(vii)
Elements of Crime

Doctrine:
Christopher K. Hall at pp. 137-138, MN 35-39 in Otto Triffterer.
Darryl Robinson at pp. 88-89 in Roy S. Lee, 2001.
Gerhard Werle at p. 243, MN 704-708.

Author: Mark Klamberg

[27] According to article 7(2)(e) torture means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. Torture may amount to a crime against humanity even if committed by civilians against other civilians without the involvement of public officials or military personnel. The terms "custody" and "under the control of the accused" are synonymous with the terms "imprisonment or other severe deprivation of physical liberty" used in article 7(1)(e). Te term "custody" includes any form of detention or imprisonment. The term "under the control of the accused" is even broader and includes any form of restraint by another.

Crossreference:
Articles 8(2)(a)(ii) and 8(2)(c)(i)
Elements of Crime

Doctrine:
Antonio Cassese at pp. 374 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Christopher K. Hall at pp. 139 and 163-164, MN 40 and 104-107 in Otto Triffterer.
Gerhard Werle at p. 244-247, MN 709-720.

Author: Mark Klamberg

[28] The Elements of Crime provide a more specific definition of the criminal conduct. With regard to the term "coercion" in the elements of crime, PTC I noted the finding of the ICTR Trial Chamber in The Prosecutor v. Akayesu that a coercive environment does not require physical force, Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 440. For the mental element of rape article 30 applies.

Crossreference:
Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Antonio Cassese at pp. 374-375 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Gerhard Werle at pp. 248-250, MN 723-727.
Macheld Boot at pp. 141-142, MN 45-46 in Otto Triffterer.

Author: Mark Klamberg

[29] Sexual slavery is particular form of enslavement which includes limitations on one's autonomy, freedom of movement and power to decide matters relating to one's sexual activity. Thus, the crime also includes forced marriages, domestic servitude or other forced labor that ultimately involves forced sexual activity. In contrast to the crime of rape, which is a completed offence, sexual slavery constitutes a continuing offence.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 431, PTC I held that "sexual slavery also encompasses situations where women and girls are forced into 'marriage', domestic servitude or other forced labour involving compulsory sexual activity, including rape, by their captors. Forms of sexual slavery can, for example, be practices such as the detention of women in 'rape camps' or 'comfort stations', forced temporary 'marriages' to soldiers and other practices involving the treatment of women as chattel, and as such, violations of the peremptory norm prohibiting slavery."

Crossreference:
Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Macheld Boot at p. 143-144, MN 47 and 50 in Otto Triffterer.
Gerhard Werle at pp. 250-251, MN 728.

Author: Mark Klamberg

[30] It is argued that sexual slavery encompasses most, if not all forms of forced prostitution. In comparison with rape and sexual slavery, enforced prostitution can either be a continuing offence or constitute a separate act.

Crossreference:
Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Macheld Boot at p. 143-144, MN 48-50 in Otto Triffterer.
Gerhard Werle at p. 251, MN 729-730.

Author: Mark Klamberg

[31] According to article 7(2)(f) forced pregnancy means the unlawful confinement of a woman forcibly made pregnant. To complete the crime, it is sufficient if the perpetrator holds a woman imprisoned who has been impregnated by someone else. In addition to the mental requirements in article 30, the perpetrator must act with the purpose of affecting the ethnic composition of any population or carrying out other grave violations of international law. National laws prohibiting abortion do not amount to forced pregnancy.

Crossreference:
Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Macheld Boot at pp. 144 and 164-165, MN 51 and 108-111 in Otto Triffterer.
Gerhard Werle at pp. 251-252, MN 731-732.

Author: Mark Klamberg

[32] Enforced sterilization is a form of "[i]mposing measures intended to prevent births within the group" within the meaning of article 6(e). The Elements of Crime provide a more specific definition of the criminal conduct. For the mental element article 30 applies.

Crossreference:
Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Macheld Boot at p. 144, MN 52 in Otto Triffterer.
Gerhard Werle at p. 252, MN 733.

Author: Mark Klamberg

[33] The provision has a catch-all character and requires that the conduct is comparable in gravity to the other acts listed in article 7(1)(g).

Crossreference:
Articles 8(2)(b)(xxii) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Macheld Boot at pp. 144-145, MN 53 in Otto Triffterer.
Gerhard Werle at pp. 252-253, MN 734

Author: Mark Klamberg

[34] The paragraph appears to exclude acts committed against individuals. However, from the elements it is clear that deprivation of the rights of one person is enough to constitute persecution. In contract to the definition genocide, persecution is not limited to act committed against national, ethnical, racial or religious groups. Nevertheless, the persecuted group has to be identifiable, either based on an objective criteria or in the mind of the accused. In addition to the mental requirement in article 30 the crime of persecution must be committed with a discriminatory intent, which differentiates it from other crimes against humanity.

Crossreference:
Elements of Crime

Doctrine:
Macheld Boot/Christopher K. Hall at p. 146-151 and 165-167, MN 57-72 and 112-115 in Otto Triffterer.
Gerhard Werle at pp. 253-259, MN 735-751.

Author: Mark Klamberg

[35] According to article 7(2)(i) enforced disappearance of persons means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons.  In addition to the mental requirement in article 30 the perpetrator must act with the intention of removing them from the protection of the law for a prolonged period of time.

Crossreference:
Elements of Crime

Doctrine:
Christopher K. Hall at pp. 151-152 and 1701-71, MN 73-75 and 123-126 in Otto Triffterer.
Gerhard Werle at pp. 259-261, MN 753-757.

Author: Mark Klamberg

[36] According to article 7(2)(h) the crime of apartheid" means inhumane acts of a character similar to those referred to in article 7(1). Thus, a wide number of acts may constitute the crime of apartheid, including segregation of races in housing, education, medical care, and employment. In addition to the mental requirement in article 30 the perpetrator must act with the intention of maintaining an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.

Crossreference:
Starvation in
Articles 6(c); 7(1)(b) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v), (xiii) and (xxv)
Elements of Crime

Doctrine:
Christopher K. Hall at pp. 152-154 and 167-170, MN 76-79 and 116- 122 in Otto Triffterer.
Gerhard Werle at pp. 262-264, MN 758-765.

Author: Mark Klamberg

[37] The provision is a catch-all crime. PTC I held the view in Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 448, that "in accordance with article 7(l)(k) of the Statute and the principle of nullum crimen sine lege pursuant to article 22 of the Statute, inhumane acts are to be considered as serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international human rights law"

Crossreference:
Starvation in Articles 6(c); 7(1)(b) and (j); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v), (xiii) and (xxv); and 8(2)(c)(i)
Elements of Crime

Doctrine:
Antonio Cassese at p. 375 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at pp. 154-158, MN 80-87 in Otto Triffterer.
Gerhard Werle at pp. 264-265, MN 766-768.

Author: Mark Klamberg

[38] The phrase "multiple acts" does not require more than one enumerated generic act (such as extermination and enslavement) to be committed in order to be classified as a crime against humanity. The attack must occur pursuant to a policy. This policy does neither be explicit nor be one of a State. Potential perpetrators include non-state actors such as  paramilitary units and terrorists, or private individuals.
    In situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 89, the Pre-Trial Chámber stated that in the case of a State policy to commit an attack, this policy "does not necessarily need to have been conceived at the highest level of the State machinery. Hence, a policy adopted by regional or even local organs of the State could satisfy the requirement of a State policy.
    The Chamber also determined that organizations not linked to a State may, for the purposes of the Statute, elaborate and carry out a policy to commit an attack against a civilian population. In the view of the Chamber, the determination of whether a given group qualifies as an organization under the Statute must be made on a caseby- case basis. In making this determination, the Chamber may take into account a number of considerations, inter alia: (i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group exercises control over part of the territory of a State; (iv) whether the group has criminal activities against the civilian population as a primary purpose; (v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; (vi) whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria., paras. 92-93. See also Ruto et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 33 and Muthaura et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, paras 27-34. Compare with dissenting opinion of Judge Kaul on pp. 1-80. See also Ruto et. al, Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II's "Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang", 15 March 2011 and Muthaura et. al, Dissenting Opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II's "Decision on the Prosecutor's Application for Summonses to Appear for Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali", 15 March 2011.

Doctrine:
Rodney Dixon at pp. 158-159, MN 88-94 in Otto Triffterer.
Gerhard Werle at p. 226-229, MN 658-665.

Author: Mark Klamberg

[39] The term "gender" refers to socially constructed roles played by women and men.

Doctrine:
Macheld Boot at pp. 171-172, MN 127-128 in Otto Triffterer.

Author: Mark Klamberg


[40] In contrast to crimes against humanity, plan, policy, and scale are not elements of war crimes. One single act may constitute a war crime. However, it is unlikely that a single act would meet the gravity threshold in article 17(1)(d).

Crossreference:
Elements of Crime

Doctrine:
Michael Bothe at pp. 380-381 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 181, MN 4 in Otto Triffterer.
Gerhard Werle at p. 269, MN 773.

Author: Mark Klamberg

[41] The four Geneva Conventions of 1949 apply in international armed conflicts. Each of the Geneva Conventions  contain a grave breach provision listing certain acts as prohibited:
- Geneva Convention I, article 50
- Geneva Convention II, article 51
- Geneva Convention III, article 130
- Geneva Convention IV, article 147
For the most part the Geneva Conventions are concerned with the protection of certain groups who are in an area under the control of contracting Party. The conventions do not regulate methods and means of warfare which instead is the concern of the law of The Hague. The separation between the law of  Geneva and the law of The Hague has grown somewhat artificial with increasing similarities and overlaps.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 240, PTC I found that "that there is sufficient evidence to establish substantial grounds to believe that the conflict that took place in Ituri District between, at least, August 2002 and May 2003, was of an international character."

Crossreference:
Elements of Crime

Doctrine:
Michael Bothe at pp. 381-386 and 390-392 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at pp. 181-182, MN 5-8 in Otto Triffterer.
Gerhard Werle at pp. 270-276, MN 775-794.

Author: Mark Klamberg

[42] The term "killing" is interchangeable with the term "causing death". Killing in actual fighting between combatants (which is not a prisoner of war, wounded or sick) is not covered by the provision. The present provision is more clear than article 7(1)(a) regarding the mental element by the use of the notion "wilful". Thus, the perpetrator must either act intentionally or recklessly.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 294, PTC I stated that "article 8(2)(a)(i) of the Statute also applies to the wilful killing of the protected persons by an attacking force, when such killings occur after the overall attack has ended, and defeat or full control of the targeted village has been secured."

Crossreference:
A
rticle 7(1)(a) and 8(2)(c)(i)
Elements of Crime

Doctrine:
Michael Bothe at p. 392 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 182, MN 9 in Otto Triffterer.
Gerhard Werle at pp. 302-303, MN 875-878.

Author: Mark Klamberg

[43] Torture is the infliction of severe physical or mental pain or suffering upon one or more persons. The standard for torture is set in the Torture Convention. In contrast to the aforementioned convention, it is not necessary that perpetrator acted in an official capacity. The Elements of Crime provides a non-exclusive listing of which purposes the torture serve, which distinguishes it from torture as a crime against humanity which does not require a purpose.

Crossreference:
Articles 7(1)(f) and 8(2)(c)(i)
Elements of Crime

Doctrine:
Michael Bothe at pp. 392-393 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 183, MN 10 in Otto Triffterer.
Gerhard Werle at pp. 305-306, MN 887-890.

Author: Mark Klamberg

[44] Inhuman treatment means the infliction of severe physical or mental pain or suffering upon one or more persons. The protected interest is the human dignity. For the mental element article 30 applies.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 364, PTC I was of the "that there is sufficient evidence to establish substantial grounds to believe that the war crime of inhuman treatment, as defined in article 8(2)(a)(ii) of the Statute."

Crossreference:
Article 8(2)(c)(i)
Elements of Crime

Doctrine:
Michael Bothe at pp. 392-393 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 183, MN 11 in Otto Triffterer.
Gerhard Werle at pp. 310-311, MN 903-906.

Author: Mark Klamberg

[45] The prohibition of biological experiments cover the use of therapeutic methods which are not justified on medical grounds and not carried out in the interest of the affected person. The consent of the victim is not relevant.

Crossreference:
Article 8(2)(b)(x) and 8(2)(e)(xi)
Elements of Crime

Doctrine:
Michael Bothe at p. 393 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 183, MN 12 in Otto Triffterer.
Gerhard Werle at pp. 308-309, MN 898-901.

Author: Mark Klamberg

[46] This provision covers acts such as rape, mutilation of the wounded or their exposure to useless and unnecessary suffering. It differs from the war crime of torture mainly in that the act does not need to serve a specific purpose. The mental element requires at least recklessness.

Crossreference:
Article 8(2)(c)(i)
Starvation in
Articles 6(c); 7(1)(b), (j) and (k); 7(2)(b); 8(2)(b)(ii), (v), (xiii) and (xxv); and 8(2)(c)(i)
Elements of Crime

Doctrine:
Michael Bothe at p. 393 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 183, MN 13 in Otto Triffterer.
Gerhard Werle at pp. 306-307, MN 891-894.

Author: Mark Klamberg

[47] The destruction of property is also criminalized through offences that cover methods of warfare. The term appropriation is interchangeable with confiscation. The seizure of property in armed conflict is not prohibited under all circumstances. Nevertheless, pillaging is expressly forbidden and cannot be justified on the basis of military necessity, see articles 8(2)(b)(xvi) and 8(2)(e)(v). The mental element requires at least recklessness.

Crossreference:
Articles (8)(b)(xiii), 8(2)(b)(xvi), 8(2)(e)(v) and 8(2)(e)(xii)
Elements of Crime

Doctrine:
Michael Bothe at p. 394 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 183, MN 14 in Otto Triffterer.
Gerhard Werle at pp. 334-340, MN 987-1004.

Author: Mark Klamberg

[48] The expression "forces" should be given a broad interpretation.

Crossreference:
Article 8(2)(b)(xv)
Elements of Crime

Doctrine:
Michael Bothe at p. 394 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 183, MN 15 in Otto Triffterer.
Gerhard Werle at pp. 316-317, MN 924-928.

Author: Mark Klamberg

[49] The Elements of Crime refers to the guarantees laid down in Geneva Conventions III (GC III) and IV (GC IV), stating that the right to fair trial include: the right to an independent and impartial court (article 84(2) of GC III ), the right to timely notification by the detaining power about any planned trial of a prisoner of war (article 104 of GC III), the right to immediate information on the charges (article 104 of GC III and article 71(2) of GC IV), the prohibition of collective punishment (article 87(3) of GC III and article 33 of GC IV), the principle of legality (article 99(1) of GC III and article 67 of GC IV), the ne bis in idem principle (article 86 of GC III and article 117(3) of GC IV), the right to appeal or petition and information on the possibility thereof (article 106 of GC III and article 73 of GC IV), the possibility of presenting a defence and having assistance of qualified counsel (article 99(3) of GC III), the right to receive the charges and other trial documents in good time an din understandable language (article 105(4) of GC III), the right of an accused prisoner of war to assistance by one of his prisoner comrades (article 105(1) of GC III), the defendant's right to representation by an advocate of his own choice (article 105(1) of GC III and article 72(1) of GC IV), the right of the defendant to present necessary evidence and especially to call and question witnesses (article 105(1) of GC III and article 72(1) of GC IV), and the right to the services of an interpreter (article 105(1) of GC III and article 72(3) of GC IV). The death penalty may only be imposed under specific circumstances (article 100 of GC III and article 68 of GC IV), and prisoners of war must be tried in the same courts and according to the same procedure as members of the armed forces of the detaining power (article 102 of GC III). These rules should be supplemented by the rules on a fair trial contained in article 75(3) and (4) of Additional Protocol I. The mental element requires at least recklessness.

Crossreference:
Articles 8(2)(b)(xiv) and 8(2)(c)(iv)
Elements of Crime

Doctrine:
Michael Bothe at p. 394-395 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 184, MN 16 in Otto Triffterer.
Gerhard Werle at pp. 320-322, MN 938-943.

Author: Mark Klamberg

[50] The material element requires the transfer of persons from one territory to another. The difference between deportation and forcible transfer lies only in whether a border is crossed. Deportation requires that a border is crossed, while as forcible transfer means the transfer of one or more persons within the same state's territory.  For the mental element article 30 applies.

Crossreference:
Articles 7(1)(d), 8(2)(b)(viii) and 8(2)(e)(viii)
Elements of Crime

Doctrine:
Michael Bothe at p. 395 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at pp. 184-185, MN 17 in Otto Triffterer.
Gerhard Werle at pp. 327-328, MN 963-867.

Author: Mark Klamberg

[51] In certain circumstances confinement of protected persons may be legitimate, for example if a civilian threatens one of the parties in a conflict.

Crossreference:
Article 7(1)(e)
Elements of Crime

Doctrine:
Michael Bothe at p. 395 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 185, MN 18 in Otto Triffterer.
Gerhard Werle at pp. 323-325, MN 950-954.

Author: Mark Klamberg

[52] Hostage taking involves the seizure and detainment of one or more protected persons and a threat to kill, injure or continue to detain such person or persons. In addition to the general mental requirement in article 30 the purpose of the hostage taking is to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons.

Crossreference:
Article 8(2)(c)(iii)
Elements of Crime

Doctrine:
Michael Bothe at p. 395 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 185, MN 19 in Otto Triffterer.
Gerhard Werle at pp. 325-327, MN 958-962.

Author: Mark Klamberg

[53]  The scope of subparagraph (b) is the same as subparagraph (a): it is applicable in times of an international armed conflict. It confirms that the listed acts in article 8(2)(b) are serious violations according to international law, as prohibited by either or both customary and treaty law. The word "other" relates to the grave breaches of Geneva Conventions (see article 8(2)(a)), indicating that the the roots of the provision stem from other sources, including Additional Protocol I.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 240, PTC I found that "that there is sufficient evidence to establish substantial grounds to believe that the conflict that took place in Ituri District between, at least, August 2002 and May 2003, was of an international character."
   The Trial Chamber in Lubanga relied on ICTY jurisprudence to define "armed conflict": "an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State", Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 533. It also stated that "[i]t is widely accepted that when a State enters into conflict with a nongovernmental armed group located in the territory of a neighbouring State and the armed group is acting under the control of its own State, 'the fighting falls within the definition of an international armed conflict between the two States'." (para. 541)

Crossreference:
Elements of Crime

Doctrine:
Michael Bothe at p. 395-397 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 185, MN 20 in Otto Triffterer.

Author: Mark Klamberg

[54] The provision is an expression of the "principle of distinction" (articles 48 and 51(2) of additional protocol I). The material element is an attack against a civilian population. A civilian person is any person who is not a combatant.
    In Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para 37, PTC I considered that "the crime provided for under article 8(2)(b)(i) and (2)(e)(i) of the Statute does not require any harmful impact on the civilian population or on the individual civilians targeted by the attack, and is committed by the mere launching of the attack against a civilian population or individual civilians not taking direct part in hostilities, who have not fallen yet into the hands of the attacking party." See also Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 267.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 270, PTC I stated that the war crime "provided for in article 8(2)(b)(i) of the Statute is committed when the attack (or the act of violence) is launched because, unlike article 85(3) AP I, it does not require any material result or a 'harmful impact on the civilian population or on the individual civilians targeted by the attack, and is committed by the mere launching of the attack on a civilian population or individual civilians not taking direct part in hostilities, who have not yet fallen into the hands of the attacking party.' "
    "Attack" is defined as "acts of violence against the adversary, whether in offence or in defence", Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February 2010, para. 65.

Crossreference:
Article 8(2)(b)(ii), 8(2)(b)(ix) and 8(2)(e)(i)
Elements of Crime

Doctrine:
Michael Bothe at p. 397 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at pp. 186-187, MN 21-26 in Otto Triffterer.
Gerhard Werle at pp. 343-344, MN 1015-1018.

Author: Mark Klamberg

[55] The provision is closely related to article 8(2)(b)(i) and is similarly an expression of the "principle of distinction" (articles 48 and 51(2) of additional protocol I). Civilian objects are all objects which are not military objectives (article 52(1) of additional protocol I). Military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (article 52(2) of additional protocol I).
    "Attack" is defined as "acts of violence against the adversary, whether in offence or in defence", Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February 2010, para. 65.

Crossreference:
Article 8(2)(b)(i), 8(2)(b)(ix) and 8(2)(e)(i)
Starvation in
Articles 6(c); 7(1)(b), (j) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(v), (xiii) and (xxv)
Elements of Crime

Doctrine:
Michael Bothe at pp. 397-398 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 187, MN 27 in Otto Triffterer.
Gerhard Werle at pp. 345-346, MN 1024-1026.

Author: Mark Klamberg

[56] There is no generally accepted definition on the notion "humanitarian assistance", but it includes measures taken with the purpose of preventing or alleviating human suffering of victims of an armed conflict. The offence of attacking personnel, installations, material, units or vehicles involved in a humanitarian assistance mission overlaps with criminal attacks on civilians and civilian objects. UN peacekeeping missions are to be distinguished from UN peace enforcement missions under Chapter VII of the UN Charter. Peacekeeping missions are generally temporary and take place in situations where no fighting takes place. The use of force in peacekeeping missions is restricted to self-defence and at preventing the outbreak of hostilities by abiding to the principle of neutrality with the consent of the host country.
    "Attack" is defined as "acts of violence against the adversary, whether in offence or in defence", Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February 2010, para. 65. ASee paras. 60-96 on other elements of the crime.

Crossreference:
Article 8(2)(e)(iii)
Elements of Crime

Doctrine:
Michael Cottier at pp. 187-196, MN 28-48 in Otto Triffterer.
Gerhard Werle at pp. 380-383, MN 1133-1142.

Author: Mark Klamberg

[57] The provision reflects the principle of proportionality (articles 51(5)(b) and 85(3)(b) of additional protocol I) and brings environment into the equation (articles 35(3) and 55 of additional protocol I).

Crossreference:
Elements of Crime

Doctrine:
Michael Bothe at pp. 398-401 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 350-352, MN 49-51 in Otto Triffterer.
Gerhard Werle at pp. 349-352, MN 1040-1047.

Author: Mark Klamberg

[58] A place is considered undefended when it is inhabited, located in a war zone or nearby, and open to occupation by an adverse party. Thus, the provision does not cover objects behind enemy lines, even if there are no combatants or weapons located in or nearby the objects.

Crossreference:
Starvation in
Articles 6(c); 7(1)(b), (j) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (xiii) and (xxv)
Elements of Crime

Doctrine:
Michael Bothe at pp. 401-402 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at pp. 197-198, MN 52-54 in Otto Triffterer.
Gerhard Werle at pp. 352-354, MN 1049-1052.

Author: Mark Klamberg

[59] The scope of the provision protecting combatants not involved in combat, hors de combat, covers to a large extent the war crime of declaring that no quarter will be given, article 8(2)(b)(xii). The mental element requires at least recklessness.

Crossreference:
Article 8(2)(b)(xii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 405-406 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 198-202, MN 55-68 in Otto Triffterer.
Gerhard Werle at pp. 304-305, MN 879-884.

Author: Mark Klamberg

[60] Envoys, identifying themselves by a white flag, authorized to negotiate with the enemy are protected.

Crossreference:
Articles 8(2)(b)(xi) and 8(2)(e)(ix)
Elements of Crime

Doctrine:
Michael Bothe at pp. 403-405 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 205, MN 75 in Otto Triffterer.
Gerhard Werle at p. 358, MN 1064-1065.

Author: Mark Klamberg

[61] According to the Elements of Crime the use of enemy flags, military insignias, and uniforms is prohibited while engaged in an attack, which makes the prohibition less strict in comparison with the use of protective emblems.

Crossreference:
Articles 8(2)(b)(xi) and 8(2)(e)(ix)
Elements of Crime

Doctrine:
Michael Bothe at pp. 403-405 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 206-208, MN 81-82 in Otto Triffterer.
Gerhard Werle at p. 358, MN 1066-1067.

Author: Mark Klamberg

[62]  According to the wording only UN military insignia is included, which appears to be an editorial error. It is submitted that the provision also includes non-military UN personnel.

Crossreference:
Articles 8(2)(b)(xi) and 8(2)(e)(ix)
Elements of Crime

Doctrine:
Michael Bothe at pp. 403-405 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 205, MN 76-77 in Otto Triffterer.
Gerhard Werle at p. 359, MN 1070.

Author: Mark Klamberg

[63] The distinctive emblems of the Geneva Conventions are the red cross, the red crescent, the red lion and sun, and the red crystal. The latter emblem was added by the adoption of a third additional Protocol to the Geneva Conventions, 8 December 2005. The Protocol was partly adopted in response to the Israeli argument that it should be able to use the red shield of David in national operations. The third additional Protocol enables the Israeli Society to continue to use its red shield of David as its sole emblem inside Israel. When working outside Israel the Society would need to work according to the requirements of the host country. Normally this would mean that it could display the red shield of David incorporated within the red crystal, or use the red crystal alone (article 3 of the third additional Protocol). The emblems mark medical and spiritual personnel, medical units and transports, equipment or supplies. The emblems may in principle only be used by persons who do not themselves participate in hostilities.

Crossreference:
Articles 8(2)(b)(xi) and 8(2)(e)(ix)
Elements of Crime

Doctrine:
Michael Bothe at pp. 403-405 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 206, MN 78-80 in Otto Triffterer.
Gerhard Werle at p. 359, MN 1068-1069.

Author: Mark Klamberg

[64] The conduct is only criminal under article 8(2)(b)(vii) when it led to a person's death or injury.

Doctrine:
Michael Bothe at pp. 403-405 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 208, MN 83-84 in Otto Triffterer.
Gerhard Werle at p. 360, MN 1072.

Author: Mark Klamberg

[65] The transfer by the Occupying Power of parts of its own civilian population into the territory it occupies violates the principle of international law that an Occupying Power is only permitted to a position of trust as an interim military administrator. The material element requires the transfer of persons from one territory to another. Article 49(2) of the Fourth Geneva Convention allows the Occupying Power to undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

Crossreference:
Articles 7(1)(d), 8(2)(a)(vii) and 8(2)(e)(viii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 395-397 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 209-214, MN 85-98 in Otto Triffterer.
Gerhard Werle at pp. 327-328 and 329-331, MN 964-966 and 971-976.

Author: Mark Klamberg

[66] The protection of this provision does not apply if an object is considered a military target under international humanitarian law. The provision is identical to article 8(2)(e)(iv) and differs only in terms of the context in which the crime is committed.
    "Attack" is defined as "acts of violence against the adversary, whether in offence or in defence", Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February 2010, para. 65.

Crossreference:
Article 8(2)(b)(i), 8(2)(b)(ii), 8(2)(e)(i) and 8(2)(e)(iv)
Elements of Crime

Doctrine:
Michael Bothe at pp. 395-397 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 214, MN 99 in Otto Triffterer.
Gerhard Werle at pp. 346-348, MN 1029-1034.

Author: Mark Klamberg

[67] The term "physical mutilation" cover acts such as amputations, injury to limbs, removal of organs, and forms of sexual mutilations. The victim's consent is not a excusable defence.

Crossreference:
Articles 8(2)(c)(i) and 8(2)(e)(xi)
Elements of Crime

Doctrine:
Michael Bothe at pp. 395-397 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at p. 216, MN 106-107 in Otto Triffterer.
Gerhard Werle at pp. 307-308, MN 895-897.

Author: Mark Klamberg

[68] The prohibition of medical or scientific experiments cover the use of therapeutic methods which are not justified on medical grounds and not carried out in the interest of the affected person. The consent of the victim is not relevant.

Crossreference:
Article 8(2)(a)(ii) and 8(2)(e)(xi)
Elements of Crime

Doctrine:
Michael Bothe at p. 395-397 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at p. 216, MN 108 in Otto Triffterer.
Gerhard Werle at pp. 308-310, MN 898-902.

Author: Mark Klamberg

[69] The acts in article 8(2)(b)(x) can only be justified if undertaken in the interest of the person concerned, for example amputations may be lawful if performed to save the live or overall health of the patient.

Crossreference:
Article 8(2)(e)(xi)

Doctrine:

Michael Bothe at p. 395-397 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 216-217, MN 109-113 in Otto Triffterer.
Gerhard Werle at pp. 308-310, MN 898-902.

Author: Mark Klamberg

[70] Treachery, also synonymous with perfidy, involves a breach of good faith of the combatants. In practice, it is typically cases in which the accused in deception claims a right to protection for him or herself, and uses this for his or her advantage in the combat. It includes:
- pretending to be a civilian;
- fake use of a flag of truce, the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions;
- fake use of of the protective emblem of cultural property;
- fake use of other internationally recognized protective emblems, signs or signals; 
- pretending to surrender;
- pretending to be incapacitated by wounds or sickness;
- pretending to belong to a neutral state or other State not party to the conflict by the use of their signs;
- pretending to belong to the enemy by the use of their signs;
The wording of the provision indicates that the prohibition of threachery protect enemy combatants, as well as civilians. Perfidious acts are only punishable if the perpetrator intentionally killed or wounded an adversary.

Crossreference:
Articles 8(2)(b)(vii) and 8(2)(e)(ix)
Elements of Crime

Doctrine:
Michael Bothe at p. 405 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 217-224, MN 114-130 in Otto Triffterer.
Gerhard Werle at p. 354-356, MN 1054-1058.

Author: Mark Klamberg

[71] The offence covers "take no prisoners" warfare. The material element will typically be fulfilled by a declaration that any surrender by the enemy shall be refused even if it is reasonable to accept. In addition to declarations, the provision should be include order and threats that no quarter shall be refused. Combatants are not required to provide the enemy with the opportunity to surrender.

Crossreference:
Article 8(2)(b)(vi) and 8(2)(e)(x)
Elements of Crime

Doctrine:
Michael Cottier at pp. 225-227, MN 131-137 in Otto Triffterer.
Gerhard Werle at pp. 360-362, MN 1074-1079.

Author: Mark Klamberg

[72] The individual elements of the prohibition should be interpreted in light of the relevant rules of customary international law, such as those embodied inter alia in articles 46, 52, 53, 54, 55 and 56 of the 1907 Hague Convention Respecting the Laws and Customs of War on Land. Acts otherwise prohibited may me justified if "imperatively demanded by the necessities of war". The exception should be interpreted restrictively, not every situation of military necessity is covered.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, paras. 310-311, PTC I held "that the property in question - whether moveable or immoveable, private or public - must belong to individuals or entities aligned with or with allegiance to a party to the conflict adverse or hostile to the perpetrator. Article 8(2)(b)(xiii) of the Statute applies not only when the attack is specifically directed at a military objective but also when it targets and destroys civilian property." PTC I also stated that "in the view of the Chamber, the provision does not apply to incidental destruction of civilian property during an attack specifically directed at a military objective, as long as the destruction does not violate the proportionality rule provided for in article 51 AP I and in article 8(2)(b)(iv) of the Statute (para. 313)."

Crossreference:
Articles 8(2)(a)(iv),
8(2)(b)(xvi), 8(2)(e)(v) and 8(2)(e)(xii)
Starvation in
Articles 6(c); 7(1)(b), (j) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v) and (xxv)
Elements of Crime

Doctrine:
Michael Bothe at p. 403 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 227-232, MN 138-155 in Otto Triffterer.
Gerhard Werle at pp. 338-340, MN 1000-1004.

Author: Mark Klamberg

[73] The term "actions" is referring to the the right of access to courts of law. This provision is similar article 8(a)(vi). The difference between the provisions would appear that the present provision covers civil claims as opposed to criminals cases.

Crossreference:
Articles 8(a)(vi) and 8(2)(c)(iv)
Elements of Crime

Doctrine:
Michael Bothe at p. 396 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 232-235, MN 156-162 in Otto Triffterer.
Gerhard Werle at pp. 340-341, MN 1005-1007.

Author: Mark Klamberg

[74] This offence can also be charged under article 8(a)(v). There is disagreement whether the prohibition covers more than compelling nationals to serve in the armed forces of the adversary, for example war-related work.

Crossreference:
Article 8(a)(v)
Elements of Crime

Doctrine:
Michael Bothe at p. 394 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 235-237, MN 163-166 in Otto Triffterer.
Gerhard Werle at pp. 316-318, MN 924-931.

Author: Mark Klamberg

[75] The term "pillage" means appropriation of property for private, personal use and embraces acts of plundering, looting and sacking. There is no substantive difference between appropriation and confiscation.  Article 8(2)(e)(v) is an identical provision to the present provision, but applies in non-international armed conflicts. In comparison with articles 8(2)(a)(iv), 8(2)(b)(xiii) and 8(2)(e)(xii), pillage differs from appropriation and confiscation in regard to the perpetrator's intent to obtain the property for private or personal use.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 329, PTC I stated that the "war crime of pillaging under article 8(2)(b)(xvi) of the Statute requires that the property subject to the offence belongs to an 'enemy' or 'hostile' party to the conflict."

Crossreference:
Articles 8(2)(a)(iv), 8(2)(b)(xiii), 8(2)(e)(v) and 8(2)(e)(xii)
Elements of Crime

Doctrine:
Michael Bothe at p. 413 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 237-239, MN 167-178 in Otto Triffterer.
Gerhard Werle at pp. 334-338, MN 986-999.

Author: Mark Klamberg

[76] This offence could for example include the poisoning of water supplies. The production and storage of poison is not prohibited. There is no agreement whether the prohibition on the use of poison covers poison gas. The provision does not prohibit chemical and biological weapons of mass destruction. Instead this is covered by article 8(2)(b)(xx), but which is not yet in force. This may be explained the lack of agreement on the prohibition on of nuclear weapons and a following compromise during the Rome conference, with the result that weapons of mass destruction are not subject to an explicit and binding provision in the Rome Statute.

Crossreference:
Article 8(2)(b)(xviii) and 8(2)(b)(xx)
Elements of Crime

Doctrine:
Michael Bothe at p. 406 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 241, MN 182 in Otto Triffterer.
Gerhard Werle at pp. 369-372, MN 1100-1106.

Author: Mark Klamberg

[77] The wording of the present provision is basically identical the Geneva Protocol of 17 June 1925 for the prohibition of the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare. It is generally understood that the wording "asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices" in the 1925 Geneva Protocol includes chemical weapons which nullifies the compromise mentioned in the previous commentary (article 8(2)(b)(xvii)). Even though biological weapons are covered by the Geneva Protocol of 17 June 1925, it is doubtful that the present provision covers these weapons. This is supported by the fact that the relevant passage on biological weapons in the Geneva Protocol of 17 June 1925 was not included in article 8(2)(b)(xviii).

Crossreference:
Article 8(2)(b)(xvii)
Elements of Crime

Doctrine:
Michael Cottier at pp. 241-242, MN 183 in Otto Triffterer.
Gerhard Werle at pp. 372-373, MN 1107-1110.

Author: Mark Klamberg

[78] The "dum-dum" bullet is type of bullet covered by the present provision, as well as customary law. The prohibition equally applies to standard bullets converted on the battlefield by piercing them with incisions, as well as to other types of bullets which expand or flatten easily in the human body.

Crossreference:
Elements of Crime

Doctrine:
Michael Bothe at p. 408 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 242, MN 184 in Otto Triffterer.
Gerhard Werle at pp. 373-374, MN 1111-1113.

Author: Mark Klamberg

[79] This a catch-all prohibition which requires an amendment in the form of annex in order to be binding. Thus, the provision is at the present time not applicable. The present provision was part of the compromise mentioned in the commentary to article 8(2)(b)(xvii). A great number of delegation at the Rome Conference wanted to include additional weapons such as biological weapons, chemical weapons, land mines and laser-blinding weapons. The provision may be amended in a future review conference.

Crossreference:
Article 8(2)(b)(xvii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 408-409 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 239-240 and 242-244, MN 179-181 and 185-188 in Otto Triffterer.
Gerhard Werle at p. 374, MN 1114-1115.

Author: Mark Klamberg

[80] The humiliating and degrading treatment is prohibited even if the victim overcomes the consequences relatively quickly. In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 369, PTC I quoted ICTY jurisprudence when it stated that "there is no requirement that such suffering be lasting". There is no special intent requirement in addition to the general requirement of article 30.

Crossreference:
Articles 7(1)(c) and 8(2)(c)(ii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 414-415 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Patricia Viseur Sellers at pp. 244-248, MN 189-199 in Otto Triffterer.
Gerhard Werle at pp. 314-316, MN 917-923.

Author: Mark Klamberg

[81] The Elements of Crime provide a more specific definition of the criminal conduct. Rape as a war crime differs from the definition of rape as a crime against humanity only in terms of the context in which the crime is committed. For the mental element of rape article 30 applies.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 347, PTC I found that "the evidence is sufficient to establish substantial grounds to believe that, following the 24 February 2003 attack on the village of Bogoro, FNI/FRPI combatants committed rape and sexual enslavement of civilian women."

Crossreference:
Articles 7(1)(g) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Antonio Cassese at pp. 374-375 and Michael Bothe at pp. 415-416 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at pp. 141-142, MN 45-46 and Michael Cottier at p. 253, MN 209 in Otto Triffterer.
Gerhard Werle at pp. 248-250 and 313, MN 723-727 and 912-913.  

Author: Mark Klamberg

[82] Sexual slavery is particular form of enslavement which includes limitations on one's autonomy, freedom of movement and power to decide matters relating to one's sexual activity. Thus, the crime also includes forced marriages, domestic servitude or other forced labor that ultimately involves forced sexual activity. In contrast to the crime of rape, which is a completed offence, sexual slavery constitutes a continuing offence. Sexual slavery as a war crime differs from the definition of sexual slavery as a crime against humanity only in terms of the context in which the crime is committed.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 347, PTC I found that "the evidence is sufficient to establish substantial grounds to believe that, following the 24 February 2003 attack on the village of Bogoro, FNI/FRPI combatants committed rape and sexual enslavement of civilian women."

Crossreference:
Articles 7(1)(g) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Michael Bothe at p. 415 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at p. 143-144, MN 47 and 50 and Michael Cottier at p. 253, MN 209 in Otto Triffterer.
Gerhard Werle at pp. 250-251 and 313, MN 728 and 914-916.

Author: Mark Klamberg

[83] It is argued that sexual slavery encompasses most, if not all forms of forced prostitution. In comparison with rape and sexual slavery, enforced prostitution can either be a continuing offence or constitute a separate act. Forced prostitution as a war crime differs from the definition of forced prostitution as a crime against humanity only in terms of the context in which the crime is committed.

Crossreference:
Articles 7(1)(g) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Michael Bothe at p. 415 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at p. 143-144, MN 48-50 and Michael Cottier at p. 253, MN 209 in Otto Triffterer.
Gerhard Werle at pp. 251and 313, MN 729-730 and 914-916.

[84] Forced pregnancy means the unlawful confinement of a woman forcibly made pregnant. To complete the crime, it is sufficient if the perpetrator holds a woman imprisoned who has been impregnated by someone else. Forced pregnancy as a war crime differs from the definition of forced pregnancy as a crime against humanity only in terms of the context in which the crime is committed. In addition to the mental requirements in article 30, the perpetrator must act with the purpose of affecting the ethnic composition of any population or carrying out other grave violations of international law. National laws prohibiting abortion do not amount to forced pregnancy.

Crossreference:
Articles 7(1)(g) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Michael Bothe at p. 415 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at pp. 144 and 164-165 and Michael Cottier at p. 253, MN 209 in Otto Triffterer.
Gerhard Werle at pp. 251-252 and 313, MN 731-732 and 914-916.

Author: Mark Klamberg

[85] Enforced sterilization is a form of "[i]mposing measures intended to prevent births within the group" within the meaning of article 6(e). Enforced sterilization as a war crime differs from the definition of enforced sterilization as a crime against humanity only in terms of the context in which the crime is committed. The Elements of Crime provide a more specific definition of the criminal conduct. For the mental element article 30 applies.

Crossreference:
Articles 7(1)(g) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Michael Bothe at p. 415 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at p. 144, MN 52 and Michael Cottier at p. 253, MN 209 in Otto Triffterer.
Gerhard Werle at pp. 252 and 313, MN 733 and 914-916.

Author: Mark Klamberg

[86] The provision has a catch-all character and requires that the conduct is comparable in gravity to the other acts listed in article 8(2)(b)(xxii).

Crossreference:
Articles 7(1)(g) and 8(2)(e)(vi)
Elements of Crime

Doctrine:
Michael Bothe at pp. 415-416 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at pp. 144-145, MN 53 and Michael Cottier at p. 253, MN 209 in Otto Triffterer.
Gerhard Werle at pp. 252-253 and 313, MN 734 and 914-916.

Author: Mark Klamberg

[87] In addition to civilians, it is prohibited to use the presence of prisoners of war and military medical personnel as a shield. If a party violates this provision, the attacking party must still uphold the rules of humanitarian law, including the rule of proportionality and consider additional incidental casualties which may arise due to an attack. In addition to mental requirement of article 30 the perpetrator must act to protect, aid or prevent a military objective or operation.

Crossreference:
Elements of Crime

Doctrine:
William J. Fenrick at p. 253, MN 210-211 in Otto Triffterer.
Gerhard Werle at pp. 365-367, MN 1090-1094.

Author: Mark Klamberg

[88] The term "attack" corresponds to the offence of attacks on a civilian population (article 8(2)(b)(i)). The recognized emblems are the emblem of the Red Cross, the red crescent, the red lion and the sun and the red crystal (the third additional Protocol).

Crossreference:
Articles 8(2)(b)(i) and 8(2)(e)(ii)
Elements of Crime

Doctrine:
William J. Fenrick at p. 254, MN 212-213 in Otto Triffterer.
Gerhard Werle at pp. 348-349, MN 1035-1038.

Author: Mark Klamberg

[89] In addition to deprivation of food, the term "starvation´" may include non-food objects indispensible to the survival of civilians, for example medicines, blankets or clothing. Acts prohibited under this provision may also be covered by articles 6(c); 7(1)(b), (j) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v) and (xiii). Stravation can take many forms, including removal or destruction of essential supplies, the prevention of the production of food, impeding relief supplies, and not fulfilling a duty under international law to provide supplies. In addition to mental requirement of article 30 the perpetrator must intend to starve civilians as a method of warfare.

Crossreference:
Articles 6(c); 7(1)(b), (j) and (k); 7(2)(b); 8(2)(a)(iii); 8(2)(b)(ii), (v) and (xiii)
Elements of Crime

Doctrine:
Michael Cottier at pp. 254-259, MN 214-224 in Otto Triffterer.
Gerhard Werle at pp. 362-365, MN 1081-1087.

Author: Mark Klamberg

[90] Conscription refers to the compulsory entry into the armed forces. Enlistment on the other hand refers to the generally voluntary act of joining armed forces by enrollment. The wording appear to provide that the prohibition applies to the formal entry of children under fifteen into the armed forces and not to recruitment campaigns, scout groups, or institutions operated, supervised or funded by the armed forces but with an essentially civilian curriculum providing secondary or vocational training.
    The offence does not require any element of force and consent of the child is no defence. In relation to the age requirement, the Elements of Crime indicates that the standard of intent is lowered to negligence by the use of the words "should have known".
    In Prosecutor v.
Lubanga, Decision on the confirmation of charges, 29 January 2007, paragraph 285, PTC I  considered that “the term ‘national armed forces’ is not limited to the armed force of a State.” The words 'using' and 'participate' cover both direct participation in combat and active participation in activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers and at military checkpoints. This was upheld in Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 249.
    In Lubanga, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, 11 July 2008, para 32, the Appeals Chamber considered that "The recruitment of a child soldier may result in personal suffering of both the child concerned and the parents of that child." which may lead to the conslusion that both the child concerned and the parents of that child may be defined as victims in the sense of rule 85(a).
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 248, PTC I observed "that this war crime can be committed by a perpetrator against individuals in his own party to the conflict. Thus, the allegiance of the child who is used in hostilities is not relevant for the purposes of this provision, as long as the child in question is under the age of fifteen."
    The jurisprudence of the SCSL was considered by the Trial Chamber
in Lubanga. It stated in Judgment pursuant to Article 74 of the Statute, 14 March 2012, paras. 603 and 625, that "[a]lthough the decisions of other international courts and tribunals are not part of the directly applicable law under Article 21 of the Statute, the wording of the provision criminalising the conscription, enlistment and use of children under the age of 15 within the Statute of the SCSL is identical to Article 8(e)(vii) of the Rome Statute, and they were self-evidently directed at the same objective. The SCSL’s case law therefore potentially assists in the interpretation of the relevant provisions of the Rome Statute.  ... The SCSL therefore held that the concept of “using” children to participate actively in hostilities encompasses the use of children in functions other than as front line troops (participation in combat), including support roles within military operations. "
      The Trial Chamber in Lubanga stated in paras. 621 and 627  that "[t]he travaux préparatoires of the Statute suggest that although direct participation is not necessary, a link with combat is nonetheless required.... The use of the expression “to participate actively in hostilities”, as
opposed to the expression “direct participation” (as found in Additional Protocol I to the Geneva Conventions) was clearly intended
to import a wide interpretation to the activities and roles that are covered by the offence of using children under the age of 15 actively to
participate in hostilities."

Crossreference:
Article 8(2)(e)(vii)
Elements of Crime

Doctrine:
Michael Bothe at p. 416 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 261, MN 227-32 in Otto Triffterer.
Gerhard Werle at pp. 331-334, MN 977-985.

Author: Mark Klamberg

[91] The scope of subparagraph (c) is non-international armed conflicts. Thus, the determination whether a conflict is of international or non-international character is essential. The problem may arise in particular in armed conflicts where there is fighting between governmental forces on one side and organized armed groups on the other where at the same time a third state is involved in the conflict intervening in support of the organized armed groups. An armed conflict may be qualified as an international armed conflict when if the relevant military actions of the organized armed groups may be attributed to the third state. The International Court of Justice has for the purposes of state responsibility applied the "effective control" test in The Nicaragua Case, Judgment 27 June 1986, para. 115. The ICTY appeals chamber in Tadić, applied a different standard of “overall control”, Judgment, 15 July 1999, para. 120. It remains open what standard the ICC will apply. Violations of common article 3 of the four Geneva Conventions are also prohibited under customary international law.
   The Trial Chamber in Lubanga relied on ICTY jurisprudence to define "armed conflict"an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State", Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 533.
When deciding if a body was an organised armed group (for the purpose of determining whether an armed conflict was not of an international character), the following non-exhaustive list of factors is potentially relevant: the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement. None of these factors are individually determinative (para. 537).

Crossreference:
Article 8(2)(e)

Doctrine:
Michael Bothe at pp. 417-418 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 262-269, MN 233-269 in Otto Triffterer.
Gerhard Werle at pp. 290-293, MN 833-843.

Author: Mark Klamberg

[92] The term "killed" in the Elements of Crime is interchangeable with the term "caused death". The mens rea for murder is neither fully clarified in the present provision nor in the elements of crime. The standard of article 30 applies to mental element. The main question is whether to apply the common law concept of "wilful blindness" and "recklessness" or civil law concepts such as "dolus eventualis". During the negotiations of the Statute and the elements of crime it was decided to leave such details for the Court to interpret article 30. Murder as a war crime differs from the definition of murder as a crime against humanity only in terms of the context in which the crime is committed.

Crossreference:
Article 7(1)(a) and 8(2)(a)(i)
Elements of Crime

Doctrine:
Michael Bothe at p. 419 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Christopher K. Hall at pp. 129-131, MN 19-23 and Andreas Zimmerman pp. 272-273, MN 272 in Otto Triffterer.
Gerhard Werle at pp. 232-233 and 302-303, MN 674-677 and 875-878.

Author: Mark Klamberg

[93] The term "mutilation" should be understood to have synonymous meaning as "physical mutilation"  in article 8(2)(b)(x), covering acts such as amputations, injury to limbs, removal of organs, and forms of sexual mutilations. The victim's consent is not a excusable defence.

Crossreference:
Article 8(2)(b)(x) and 8(2)(e)(xi)
Elements of Crime

Doctrine:
Michael Bothe at pp. 395-397 and 419 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 216 and 273, MN 106-107 and 273 in Otto Triffterer.
Gerhard Werle at pp. 307-308, MN 895-897.

[94] The offence of cruel treatment carries the same meaning as inhuman treatment (article 8(2)(a)(ii), namely the infliction of severe physical or mental pain or suffering upon one or more persons. The protected interest is the human dignity. For the mental element article 30 applies.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 364, PTC I was of the "that there is sufficient evidence to establish substantial grounds to believe that the war crime of inhuman treatment, as defined in article 8(2)(a)(ii) of the Statute."

Crossreference:
Articles 7(1)(k) and article 8(2)(a)(ii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 392-393 and 419 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 183, MN 11 and Andreas Zimmerman at p. 273, MN 273 in Otto Triffterer.
Gerhard Werle at pp. 310-311, MN 903-906.

Author: Mark Klamberg

[95]Torture is the infliction of severe physical or mental pain or suffering upon one or more persons. The standard for torture is set in the Torture Convention. In contrast to the aforementioned convention, it is not necessary that perpetrator acted in an official capacity. The Elements of Crime  provides a non-exclusive listing of which purposes the torture serve, which distinguishes it from torture as a crime against humanity which does not require a purpose.

Crossreference:
Articles 7(1)(f) and 8(2)(a)(ii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 392-393 and 419 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 183, MN 10 and Andreas Zimmerman at p. 274, MN 275 in Otto Triffterer.
Gerhard Werle at pp. 305-306, MN 887-890.

Author: Mark Klamberg

[96] The humiliating and degrading treatment is prohibited even if the victim overcomes the consequences relatively quickly. In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 369, PTC I quoted ICTY jurisprudence when it stated that "there is no requirement that such suffering be lasting". There is no special intent requirement in addition to the general requirement of article 30. The wording of the provision is identical to article 8(2)(b)(xxi).

Crossreference:
Articles 7(1)(c) and 8(2)(b)(xxi)
Elements of Crime

Doctrine:
Michael Bothe at pp. 414-415 and 419 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Patricia Viseur Sellers at pp. 244-248, MN 189-199 and Andreas Zimmerman at p. 274, MN 276 in Otto Triffterer.
Gerhard Werle at pp. 314-316, MN 917-923.

Author: Mark Klamberg

[97] Hostage taking involves the seizure and detainment of one or more protected persons and a threat to kill, injure or continue to detain such person or persons. In addition to the general mental requirement in article 30 the purpose of the hostage taking is to compel a State, an international organization, a natural or legal person or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or the release of such person or persons. The wording of the provision is identical to article 8(2)(a)(viii).

Crossreference:
Article 8(2)(a)(viii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 395 and 419 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 185, MN 19 and Andreas Zimmerman at p. 274, MN 277 in Otto Triffterer.
Gerhard Werle at pp. 325-327, MN 958-962.

Author: Mark Klamberg

[98] The provision guarantees certain minimum due process rights before a sentence is passed or an a execution against a protected person takes place. The Elements of Crime distinguishes three separate criminal acts, namely i) there was no previous judgement pronounced by a court, ii) the court was not regularly constituted, and iii) the court that rendered judgement did not afford other generally recognized judicial guarantees. The provision offers similar, but not identical protection as article 8(2)(a)(vi). State authorities retains the right to criminally prosecute fighters or civilians for crimes committed in connection with internal armed conflicts.

Crossreference:
Articles 8(2)(a)(vi) and 8(2)(b)(xiv)
Elements of Crime

Doctrine:
Michael Bothe at pp. 395 and 419 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 274-275, MN 278-282 in Otto Triffterer.
Gerhard Werle at pp. 322-323, MN 944-949.

Author: Mark Klamberg

[99] For a conflict to qualify as an internal conflict it has be above the lower threshold which differentiates it from internal disturbances and tensions. The provision gives some examples: riots, isolated and sporadic acts of violence or other acts of a similar nature. One may generally classify cases when the armed forces of a state uses armed force to maintain order without that use amounting to an armed conflict, as internal disturbances. Internal tensions is at hand when such force is used as a preventive measure.
   The Trial Chamber in Lubanga stated in Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 538 that "[t]he intensity of the conflict is relevant for the purpose of determining whether an armed conflict that is not of an international character existed,1637 because under Article 8(2)(f) the violence must be more than sporadic or isolated."

Crossreference:
Article 8(2)(f)

Doctrine:
Michael Bothe at pp. 419-420 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 275-276, MN 283-288 in Otto Triffterer.

Author: Mark Klamberg

[100] The scope of subparagraph (e) is the same as subparagraph (c): it is applicable in times of a non-international armed conflict. Thus, the determination whether a conflict is of international or non-international character is essential. The problem may arise in particular in armed conflicts where there is fighting between governmental forces on one side and organized armed groups on the other where at the same time a third state is involved in the conflict intervening in support of the organized armed groups. An armed conflict may be qualified as an international armed conflict when if the relevant military actions of the organized armed groups may be attributed to the third state. The International Court of Justice has for the purposes of state responsibility applied the "effective control" test in The Nicaragua Case, Judgment 27 June 1986, para. 115. The ICTY appeals chamber in Tadić, applied a different standard of “overall control”, Judgment, 15 July 1999, para. 120. It remains open what standard the ICC will apply. The provision confirms that the listed acts in article 8(2)(e) are serious violations according to international law, as prohibited by either or both customary and treaty law. The word "other" relates to serious violations of article 3 common to the four Geneva Conventions (see article 8(2)(c)), indicating that the the roots of the provision stem from other sources, including Additional Protocol II.
    The Trial Chamber in Lubanga relied on ICTY jurisprudence to define "armed conflict"an armed conflict exists whenever there is a resort to armed force between States or protracted violence between governmental authorities and organized armed groups or between such groups within a State", Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 533. When deciding if a body was an organised armed group (for the purpose of determining whether an armed conflict was not of an international character), the following non-exhaustive list of factors is potentially relevant: the force or group’s internal hierarchy; the command structure and rules; the extent to which military equipment, including firearms, are available; the force or group’s ability to plan military operations and put them into effect; and the extent, seriousness, and intensity of any military involvement. None of these factors are individually determinative (para. 537).

Crossreference:
Article 8(2)(c)

Doctrine:
Michael Bothe at pp. 417-418 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 262-269 and 276-277, MN 233-269 and 290 in Otto Triffterer.
Gerhard Werle at pp. 290-293, MN 833-843.

[101] The provision is an expression of the "principle of distinction" (articles 13(2) of additional protocol II). The material element is an attack against a civilian population. A civilian person is any person who is not a combatant.
    The provision is identical to article 8(2)(b)(i) and differs only in terms of the context in which the crime is committed. It is noteworthy that the closely linked prohibition not to direct attacks against civilian objects during an international armed conflict contained in article 8(2)(b)(i), does not have a corresponding provision applicable in internal armed conflict. Some commentators argue that prohibition to attack civilian objects in internal armed conflicts is part of customary law (Bothe and Werle) and that the provision should be interpreted accordingly (Bothe). Zimmerman has the opposite, more traditional view. 
    In Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para 37, PTC I considered that "the crime provided for under article 8(2)(b)(i) and (2)(e)(i) of the Statute does not require any harmful impact on the civilian population or on the individual civilians targeted by the attack, and is committed by the mere launching of the attack against a civilian population or individual civilians not taking direct part in hostilities, who have not fallen yet into the hands of the attacking party." See also Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 267.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 270, PTC I stated that the war crime "provided for in article 8(2)(b)(i) of the Statute is committed when the attack (or the act of violence) is launched because, unlike article 85(3) AP I, it does not require any material result or a 'harmful impact on the civilian population or on the individual civilians targeted by the attack, and is committed by the mere launching of the attack on a civilian population or individual civilians not taking direct part in hostilities, who have not yet fallen into the hands of the attacking party.' "
    "Attack" is defined as "acts of violence against the adversary, whether in offence or in defence", Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February 2010, para. 65.

Crossreference:
Article 8(2)(b)(ii), 8(2)(b)(ix) and 8(2)(b)(i)
Elements of Crime

Doctrine:
Michael Bothe at pp. 397 and 421 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at pp. 186-187, MN 21-26 and Andreas Zimmerman at p. 277, MN 291-292 in Otto Triffterer.
Gerhard Werle at pp. 343-344 and 346, MN 1015-1018 and 1027-1028.

[102] The term "attack" corresponds to the offence of attacks on a civilian population (article 8(2)(e)(i)). The recognized emblems are the emblem of the Red Cross, the red crescent, the red lion and the sun and the red crystal (the third additional Protocol). The provision is identical to article 8(2)(b)(xxiv) and differs only in terms of the context in which the crime is committed.
    "Attack" is defined as "acts of violence against the adversary, whether in offence or in defence", Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February 2010, para. 65.

Crossreference:
Article
s 8(2)(e)(i) and 8(2)(b)(xxiv)
Elements of Crime

Doctrine:
William J. Fenrick at p. 254, MN 212-213 and Andreas Zimmerman at p. 277, MN 293-294 in Otto Triffterer.
Gerhard Werle at pp. 348-349, MN 1035-1038

[103] There is no generally accepted definition on the notion "humanitarian assistance", but it includes measures taken with the purpose of preventing or alleviating human suffering of victims of an armed conflict. The offence of attacking personnel, installations, material, units or vehicles involved in a humanitarian assistance mission overlaps with criminal attacks on civilians and civilian objects. UN peacekeeping missions are to be distinguished from UN peace enforcement missions under Chapter VII of the UN Charter. Peacekeeping missions are generally temporary and take place in situations where no fighting takes place. The use of force in peacekeeping missions is restricted to self-defence and at preventing the outbreak of hostilities by abiding to the principle of neutrality with the consent of the host country. The provision is identical to article 8(2)(b)(iii) and differs only in terms of the context in which the crime is committed.
    "Attack" is defined as "acts of violence against the adversary, whether in offence or in defence", Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February 2010, para. 65. ASee paras. 60-96 on other elements of the crime.

Crossreference:
Article 8(2)(b)(iii)
Elements of Crime

Doctrine:
Michael Cottier at pp. 187-196, MN 28-48 and Andreas Zimmerman at pp. 277-278, MN 295-296 in Otto Triffterer.
Gerhard Werle at pp. 380-383, MN 1133-1142.

Author: Mark Klamberg

[104] The protection of this provision does not apply if an object is considered a military target under international humanitarian law. The provision is identical to article 8(2)(b)(ix) and differs only in terms of the context in which the crime is committed.
    "Attack" is defined as "acts of violence against the adversary, whether in offence or in defence", Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February 2010, para. 65.

Crossreference:
Article 8(2)(b)(ix)
Elements of Crime

Doctrine:
Michael Bothe at pp. 395-397 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
William J. Fenrick at p. 214, MN 99 and Andreas Zimmerman at p. 278, MN 297-298 in Otto Triffterer.
Gerhard Werle at pp. 346-348, MN 1029-1034.

[105] The term "pillage" means appropriation of property for private, personal use and embraces acts of plundering, looting and sacking. There is no substantive difference between appropriation and confiscation.  Article 8(2)(b)(xvi) is an identical provision to the present provision, but applies in international armed conflicts. In comparison with articles 8(2)(a)(iv), 8(2)(b)(xiii) and 8(2)(e)(xii), pillage differs from appropriation and confiscation in regard to the perpetrator's intent to obtain the property for private or personal use.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 329, PTC I stated that the "war crime of pillaging under article 8(2)(b)(xvi) of the Statute requires that the property subject to the offence belongs to an 'enemy' or 'hostile' party to the conflict."

Crossreference:
Articles 8(2)(a)(iv), (8)(2)(b)(xiii),
8(2)(b)(xvi) and 8(2)(e)(xii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 413 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 237-239, MN 167-178 and Andreas Zimmerman at pp. 278-279, MN 299-300 in Otto Triffterer.
Gerhard Werle at pp. 334-338, MN 986-999.

[106] The Elements of Crime provide a more specific definition of the criminal conduct. For the mental element of rape article 30 applies. The provision is identical to Articles 7(1)(g) and 8(2)(b)(xxii) and differs only in terms of the context in which the crime is committed.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 347, PTC I found that "the evidence is sufficient to establish substantial grounds to believe that, following the 24 February 2003 attack on the village of Bogoro, FNI/FRPI combatants committed rape and sexual enslavement of civilian women."

Crossreference:
Articles 7(1)(g) and 8(2)(b)(xxii)
Elements of Crime

Doctrine:
Antonio Cassese at pp. 374-375, Michael Bothe at pp. 415-416 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at pp. 141-142, MN 45-46, Michael Cottier at p. 253, MN 209 and Andreas Zimmerman at p. 279 MN 301-303 in Otto Triffterer.
Gerhard Werle at pp. 248-250 and 313, MN 723-727 and 912-913.  

Author: Mark Klamberg

[107] Sexual slavery is particular form of enslavement which includes limitations on one's autonomy, freedom of movement and power to decide matters relating to one's sexual activity. Thus, the crime also includes forced marriages, domestic servitude or other forced labor that ultimately involves forced sexual activity. In contrast to the crime of rape, which is a completed offence, sexual slavery constitutes a continuing offence. The provision is also identical to article 8(2)(b)(xxii) and differs only in terms of the context in which the crime is committed.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 347, PTC I found that "the evidence is sufficient to establish substantial grounds to believe that, following the 24 February 2003 attack on the village of Bogoro, FNI/FRPI combatants committed rape and sexual enslavement of civilian women."

Crossreference:
Articles 7(1)(g) and 8(2)(b)(xxii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 415 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at p. 143-144, MN 47 and 50, Michael Cottier at p. 253, MN 209 and Andreas Zimmerman at p. 279 MN 301-303 in Otto Triffterer.
Gerhard Werle at pp. 250-251 and 313, MN 728 and 914-916.

Author: Mark Klamberg

[108] It is argued that sexual slavery encompasses most, if not all forms of forced prostitution. In comparison with rape and sexual slavery, enforced prostitution can either be a continuing offence or constitute a separate act. The provision is identical to article 8(2)(b)(xxii) and differs only in terms of the context in which the crime is committed.

Crossreference:
Articles 7(1)(g) and 8(2)(b)(xxii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 415 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at p. 143-144, MN 48-50, Michael Cottier at p. 253, MN 209 and Andreas Zimmerman at p. 279 MN 301-303 in Otto Triffterer.
Gerhard Werle at pp. 251and 313, MN 729-730 and 914-916.

[109] Forced pregnancy means the unlawful confinement of a woman forcibly made pregnant. To complete the crime, it is sufficient if the perpetrator holds a woman imprisoned who has been impregnated by someone else. The provision is identical to article 8(2)(b)(xxii) and differs only in terms of the context in which the crime is committed. In addition to the mental requirements in article 30, the perpetrator must act with the purpose of affecting the ethnic composition of any population or carrying out other grave violations of international law. National laws prohibiting abortion do not amount to forced pregnancy.

Crossreference:
Articles 7(1)(g) and 8(2)(b)(xxii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 415 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at pp. 144 and 164-165, Michael Cottier at p. 253, MN 209 and Andreas Zimmerman at p. 279 MN 301-303 in Otto Triffterer.
Gerhard Werle at pp. 251-252 and 313, MN 731-732 and 914-916.

Author: Mark Klamberg

[110] Enforced sterilization is a form of "[i]mposing measures intended to prevent births within the group" within the meaning of article 6(e). The provision is identical to article 8(2)(b)(xxii) and differs only in terms of the context in which the crime is committed. The Elements of Crime provide a more specific definition of the criminal conduct. For the mental element article 30 applies.

Crossreference:
Articles 7(1)(g) and 8(2)(b)(xxii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 415 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at p. 144, MN 52, Michael Cottier at p. 253, MN 209 and Andreas Zimmerman at p. 279 MN 301-303 in Otto Triffterer.
Gerhard Werle at pp. 252 and 313, MN 733 and 914-916.

Author: Mark Klamberg

[111] The provision has a catch-all character and requires that the conduct is comparable in gravity to the other acts listed in article 8(2)(e)(vi).

Crossreference:
Articles 7(1)(g) and 8(2)(b)(xxii)
Elements of Crime

Doctrine:
Michael Bothe at pp. 415-416 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Macheld Boot at pp. 144-145, MN 53,  Michael Cottier at p. 253, MN 209 and Andreas Zimmerman at p. 279 MN 301-303 in Otto Triffterer.
Gerhard Werle at pp. 252-253 and 313, MN 734 and 914-916.

Author: Mark Klamberg

[112] Conscription refers to the compulsory entry into the armed forces. Enlistment on the other hand refers to the generally voluntary act of joining armed forces by enrollment. The wording appear to provide that the prohibition applies to the formal entry of children under fifteen into the armed forces and not to recruitment campaigns, scout groups, or institutions operated, supervised or funded by the armed forces but with an essentially civilian curriculum providing secondary or vocational training.
    The offence does not require any element of force and consent of the child is no defence. In relation to the age requirement, the Elements of Crime indicates that the standard of intent is lowered to negligence by the use of the words "should have known". 
    The words 'using' and 'participate' cover both direct participation in combat and active participation in activities linked to combat such as scouting, spying, sabotage and the use of children as decoys, couriers and at military checkpoints.
    The provision is similar to article 8(2)(b)(xxvi), but differs in terms of the context in which the crime is committed and there is no requirement that the conscription or enlistment of children is into the national armed forces or groups. In case of an internal armed conflict the prohibition extends to all armed forces. Considering that PTC I in Prosecutor v. Dyilo ruled that “the term ‘national armed forces’ is not limited to the armed force of a State” this difference in wording may be less relevant (Decision on the confirmation of charges, 29 January 2007, paragraph 285).
This was upheld in Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 249.
    In Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, 11 July 2008, para 32, the Appeals Chamber considerad that "The recruitment of a child soldier may result in personal suffering of both the child concerned and the parents of that child." which may lead to the conslusion that both the child concerned and the parents of that child may be defined as victims in the sense of rule 85(a).
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 248, PTC I observed "that this war crime can be committed by a perpetrator against individuals in his own party to the conflict. Thus, the allegiance of the child who is used in hostilities is not relevant for the purposes of this provision, as long as the child in question is under the age of fifteen."
   The jurisprudence of the SCSL was considered by the Trial Chamber in Lubanga. It stated in Judgment pursuant to Article 74 of the Statute, 14 March 2012, paras. 603 and 625, that "[a]lthough the decisions of other international courts and tribunals are not part of the directly applicable law under Article 21 of the Statute, the wording of the provision criminalising the conscription, enlistment and use of children under the age of 15 within the Statute of the SCSL is identical to Article 8(e)(vii) of the Rome Statute, and they were self-evidently directed at the same objective. The SCSL’s case law therefore potentially assists in the interpretation of the relevant provisions of the Rome Statute.  ... The SCSL therefore held that the concept of “using” children to participate actively in hostilities encompasses the use of children in functions other than as front line troops (participation in combat), including support roles within military operations. "
    The Trial Chamber in Lubanga stated in paras. 621 and 627
 that "[t]he travaux préparatoires of the Statute suggest that although direct participation is not necessary, a link with combat is nonetheless required.... The use of the expression “to participate actively in hostilities”, as
opposed to the expression “direct participation” (as found in
Additional Protocol I to the Geneva Conventions) was clearly intended
to import a wide interpretation to the activities and roles that are
covered by the offence of using children under the age of 15 actively to
participate in hostilities.
"

Crossreference:
Article 8(2)(b)(xxvi)
Elements of Crime

Doctrine:
Michael Bothe at pp. 416 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at p. 261, MN 227-32 and Andreas Zimmerman at p. 280 MN 304-307 in Otto Triffterer.
Gerhard Werle at pp. 331-334, MN 977-985.

[113]  The prohibition on the displacement of the civilian population is pararellel to article 8(2)(b)(viii), which refers to occupied territory. It is only the order, not the transfer itself, that is criminilized in internatal armed conflicts. Acts that aim indirectly at the displacement of the civilian population, for example starvation with the purpose of the expelling the population to leave a certain territory, are not prohibited under the present provision. An order to totally or partially evacuatee a given area may be justified if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement outside the bounds of the territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

Crossreference:
Articles 7(1)(d), 8(2)(a)(vii) and
8(2)(b)(viii)
Elements of Crime

Doctrine:
Michael Bothe at 423 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 209-214, MN 85-98 and Andreas Zimmerman at pp. 280-282 MN 308-316 in Otto Triffterer.
Gerhard Werle at pp. 327-328 and 329-331, MN 964-966 and 971-976.

Author: Mark Klamberg

[114] Treachery, also synonymous with perfidy, involves a breach of good faith of the combatant adversaries. In practice, it is typically cases in which the accused in deception claims a right to protection for him or herself, and uses this for his or her advantage in the combat. It includes:
- pretending to be a civilian;
- fake use of a flag of truce, the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions;
- fake use of of the protective emblem of cultural property;
- fake use of other internationally recognized protective emblems, signs or signals; 
- pretending to surrender;
- pretending to be incapacitated by wounds or sickness;
- pretending to belong to the enemy by the use of their signs;
The provision is simliar, but not identical to
article 8(2)(b)(xi). The prohibition on prefidy in the present only extends to "combatant adversaries", while article 8(2)(b)(xi) also prohibits the killing and wounding of civilians. The use of the notion "combatant adversary" should be distinguished from "enemy combatants", indicating that there is notion "combatant" is not applicable in internal armed conflicts. Perfidious acts are only punishable if the perpetrator intentionally killed or wounded an adversary.

Crossreference:
Article 8(2)(b)(vii) and
8(2)(b)(xi)
Elements of Crime

Doctrine:
Michael Bothe at pp. 405 and 421in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 217-224, MN 114-130 and Andreas Zimmerman at pp. 282-283 MN 317-319 in Otto Triffterer.
Gerhard Werle at p. 354-357, MN 1054-1060.

[115] The offence covers "take no prisoners" warfare. The material element will typically be fulfilled by a declaration that any surrender by the enemy shall be refused even if it is reasonable to accept. In addition to declarations, the provision should be include order and threats that no quarter shall be refused. Combatant adversaries are not required to provide the enemy with the opportunity to surrender.

Crossreference:
Article 8(2)(b)(vi) and 8(2)(b)(xii)
Elements of Crime 

Doctrine:
Michael Bothe at p. 421in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Michael Cottier at pp. 225-227, MN 131-137 Andreas Zimmerman at p. 283 MN 320-321 in Otto Triffterer.
Gerhard Werle at pp. 360-362, MN 1074-1079.

[116] The term "physical mutilation" cover acts such as amputations, injury to limbs, removal of organs, and forms of sexual mutilations. The victim's consent is not a excusable defence.

Crossreference:
Articles 8(2)(b)(x) and 8(2)(e)(xi)
Elements of Crime

Doctrine:
Michael Bothe at p. 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 216-217 and 283, MN 109-113 and 322 in Otto Triffterer.
Gerhard Werle at pp. 307-308, MN 895-897.

Author: Mark Klamberg

[117] The prohibition of medical or scientific experiments cover the use of therapeutic methods which are not justified on medical grounds and not carried out in the interest of the affected person. The consent of the victim is not relevant.

Crossreference:
Article 8(2)(a)(ii) and 8(2)(e)(xi)
Elements of Crime

Doctrine:
Michael Bothe at p. 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 216-217 and 283, MN 109-113 and 322 in Otto Triffterer.
Gerhard Werle at pp. 308-310, MN 898-902.

Author: Mark Klamberg

[118] The acts in article 8(2)(e)(xi) can only be justified if undertaken in the interest of the person concerned, for example amputations may be lawful if performed to save the live or overall health of the patient. Any physical mutilation or unwarranted medical or scientific experiments undertaken of either governmental authorities or on non-state groups are covered by article 8(2)(e)(xi).

Crossreference:
Articles 8(2)(b)(x)

Doctrine:
Michael Bothe at p. 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 216-217 and 283, MN 109-113 and 323 in Otto Triffterer.
Gerhard Werle at pp. 308-310, MN 898-902.

Author: Mark Klamberg

[119] The individual elements of the prohibition should be interpreted in light of the relevant rules of customary international law, such as those embodied inter alia in articles 46, 52, 53, 54, 55 and 56 of the 1907 Hague Convention Respecting the Laws and Customs of War on Land.
    However, two difference between the present provision and the Hague Law may be noted. Due to the specific character of internal armed conflicts, the words "the enemy's property" is replaced by "the property of an adversary" and the term "war" is replaced by "conflict".
    Acts otherwise prohibited may me justified if "imperatively demanded by the necessities of war". The exception should be interpreted restrictively, not every situation of military necessity is covered.

Crossreference:
Articles 8(2)(a)(iv), (8)(2)(b)(xiii),
8(2)(b)(xvi) and 8(2)(e)(v)
Elements of Crime

Doctrine:
Michael Bothe at pp. 403 and 422 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 227-232 and 283-284, MN 138-155 and 324-329 in Otto Triffterer.
Gerhard Werle at pp. 338-340, MN 1000-1004.

Author: Mark Klamberg

[120] For a conflict to qualify as an internal conflict it has be above the lower threshold which differentiates it from internal disturbances and tensions. The provision gives some examples: riots, isolated and sporadic acts of violence or other acts of a similar nature. One may generally classify cases when the armed forces of a state uses armed force to maintain order without that use amounting to an armed conflict, as internal disturbances. Internal tensions is at hand when such force is used as a preventive measure. The term "protracted" indicates that a temporal element is involved.
    The Trial Chamber in Lubanga stated in Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 538 that "[t]he intensity of the conflict is relevant for the purpose of determining whether an armed conflict that is not of an international character existed,1637 because under Article 8(2)(f) the violence must be more than sporadic or isolated."

Crossreference:
Article 8(2)(d)

Doctrine:
Michael Bothe at p. 423 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 275-276 and 284-286, MN 283-288 and 330-338 in Otto Triffterer.

Author: Mark Klamberg

[121] Paragraph 3 is a saving clause taken from article 3(1) of the second additional protocol. The provision may justify legitimate actions taken on behalf of the Government of a State in which an internal armed conflict is taking place and its armed forces, but not actions taken by non-state groups. The reference to "legitimate means" should be interpretated in a way that the saving clause does not destroy the object and purpose of sub-paragraphs 2(c) and (e).

Doctrine:
Michael Bothe at pp. 423-424 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Andreas Zimmerman at pp. 287-288, MN 283-288 and 339-345 in Otto Triffterer.

Author: Mark Klamberg

[122] The main purpose of the Elements of Crime is to define the crimes with clarity, precision and specificity in order to meet the principle of legality, required for by criminal law.
    In both civil and common law systems a crime consists of material elements (the objective requirements, the actus reaus) and mental elements (the subjective requirements: intent and/or knowledge, or mens rea).
     The Elements of Crime include material elements of three different types, which relate to conduct, concequence and circumstance (see reference in Article 30).
    Unless otherwise provided, Article 30 provides the mental requirement. Thus, the principal mental elements in the Elements of Crime stem from Article 30.
    The wording "shall assist the Court" makes clear the non-binding nature of the Elements of Crime. The provision appears to contradict Article 21(1)(a) which states that: "The Court shall apply: In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence". However, in light of the negotiating history, the Elements of Crime should be understood to have only persuasive value rather than binding force.
    The present provision should be contrasted to article 112(7)(a) which states that: "Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting." The wording of Article 9(1) makes it clear that a two-thirds majority of the total members of the Assembly of States Parties, not just the States present and voting, is required for the adoption of the Elements of Crime.

Doctrine:
Erkin Gadirov at pp. 289-311,MN 1-34 in Otto Triffterer.
Herman von Hebel and Maria Kelt at pp. 7-14 in
Roy S. Lee, 2001.
Alain Pellet pp. 1059-1062 and 1077-1078 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[123] The right for any State Party to propose an amendment to a treaty stems from the sovereign equality of States. It should be noted that the Elements of Crime are subject to a different procedure than the one designed designed for amendments of the Rome Statute.
    It is not specified in regulation 5(1) whether proposals from State Parties should be submitted to the Advisory Committee on Legal Texts. It appears likely that a State Party would submit a proposal for an emendment to an organ of the Assembly of States Parties. One alternative would be to adopt the same procedure as used for amendments of the Rules of Procedure and Evidence (Rule 3), whereby State Parties submit their proposals to the President of the Bureau of the Assembly of States Parties.

Crossreferences:
Regulation 5(1) Amendments to the Rules and Elements of Crimes

Doctrine:
Erkin Gadirov at p. 313, MN 37 in Otto Triffterer.

Author: Mark Klamberg

[124]  Provided that there are 18 judges, an absolute majority requires the support of 10 judges. According to Regulation 5(1) any proposal for amendments to to the Elements of Crimes pursuant to article 9 shall be submitted by a judge to the Advisory Committee on Legal Texts.

Crossreferences:
Regulation 5(1) Amendments to the Rules and Elements of Crimes

Doctrine:
Erkin Gadirov at p. 313, MN 38 in Otto Triffterer.

Author: Mark Klamberg

[125] In contrast to proposals from the Judges, the use of the word "may" instead of "shall" in Regulation 5(1) appear to indicate that proposals for amendments to the Elements of Crimes can be submitted by the Prosecutor both to the Advisory Committee on Legal Texts and the appropriate organ of the the Assembly of States Parties.

Crossreferences:
Regulation 5(1) Amendments to the Rules and Elements of Crimes

Doctrine:
Erkin Gadirov at p. 313, MN 39 in Otto Triffterer.

Author: Mark Klamberg

[126] The procedure for amending the Elements of Crime is identical for the procedure of the adoption of the Elements of Crime stated in paragraph 1. Thus, it is clear that a two-thirds majority of the total members of the Assembly of States Parties, not just the States present and voting, is required for the amendment of the Elements of Crime.

Doctrine:
Erkin Gadirov at pp. 310-312, MN 34-36 in Otto Triffterer.

Author: Mark Klamberg

[127] The present provision indicates the relation between the Rome Statute and the Elements of Crime is lex superior derogat legi inferiori, rather than lex posterior derogat legi prori. In other words, in the event of an conflict between the Rome Statute and the Elements of Crime, the Rome Statute shall prevail. Thus, the non-binding nature of the Elements of Crime is affirmed.

Doctrine:
Erkin Gadirov at pp. 310-312, MN 40 in Otto Triffterer.

Author: Mark Klamberg

[128] The Rome Statute does neither limit the scope of present punishable acts under international law nor further developements thereof. The subject-matter jurisdiction of the Court is subject to is a compromise and to some extent an expression of the least common denominator at the Rome conference. Thus, the subject-matter scope of the Rome Statute may be more limited in some parts and more expansive in others in comparison with customary international law.
    The word "limiting" concerns the narrowing or prevention of the enlargement of the scope of punishable acts under international law. The word "prejudicing" aims at preventing the Rome Statute becoming a binding guideline vis-à-vis other legal regimes. 
    The applicability of Article 10 is limited to part 2 of the Rome Statute, including crimes within the jurisdiction of the Court, questions concerning complementarity and trigger mechanisms.

Crossreferences:
Article 21(3) Applicable law
Article 22(3) Nullum crimen sine lege

Doctrine:
Otto Triffterer at pp. 315-321, MN 1-18 in Otto Triffterer.
Herman von Hebel and Darryl Robinsson at p. 122 in Roy S. Lee, 1999.

Author: Mark Klamberg

[129] The Court has the power to exercise jurisidiction following the 1 July 2002, when the Rome Statute was ratified by 60 States and thus entered into force (Article 126). Thus, the Rome Statute is based on the non-retroactivity principle and the temporal jurisdiction of the Court is prospective (Article 24(1)).
    The Rome Statute is silent in regard to violations which are committed prior to the entry into force of the Statute and continued afterwards. It is submitted that references in future cases to acts pre-dating the entry into force of the Statute may be useful in establishing the historcial context but they may not be form the basis of a charge.
    The jurisdicton ratione temporis may be limited in two ways. The Security Council may according to article 16 prevent the Court from exercising jurisdiction for a fixed period of time. A State may also upon ratification of the Rome Statute make a declaration in accordance with article 124 and opt out for a period of seven years from the jurisdiction of the Court in relation to war crimes.

Crossreference:
Articles 16, 24(1), 124 and 126.

Doctrine:
Sharon A. Williams at p. 323, MN 1-9 in Otto Triffterer.
Stéphane Bourgon
at pp. 543-551 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[130] A precondition to the the Court's exercise of jurisidiction is that the State has accepted the jurisdiction of the Court (Articles 12). In addition the Security Council may refer a situation to the Court (Article 13). The requirement on consent on behalf of the State has implications for the temporal jurisdiction of the Court. In regard to States that accepts the jurisdiction of the Court two exceptions may be noted in relation to the jurisdicton ratione temporis set by the entry into force of the Rome Statute.   
    The first exception concerns States Parties. When a State becomes a party, the Court's temporal jurisdiction is limited to the crimes committed after the entry into force of the Rome Statute for that State, unless that State in accordance with Article 12(3) accepts jurisdiction for acts committed prior to ratification but after the entry into force of the Statute. It is submitted that the declaration must be explic
it, which was the case in the situation in Uganda and the situation in the Democratic Republic of Congo, see letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, 5 July 2004 (page 4) and Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, 5 July 2004, (page 4).
    The second exception, concerning States not Parties to the Rome Statute, is examined in the comment to Article 12.

Crossreference:
Articles 12 and 13

Doctrine:
Sharon A. Williams at p. 328, MN 10 in Otto Triffterer.
Stéphane Bourgon
at pp. 551-552 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[131] Article 12 sets the preconditions for the exercise of jurisdiction of the Court As such, the provision has been called ‘one of the cornerstone provisions of the Statute’ (Bergsmo, p. 30). In addition to specifying the general preconditions for the exercise of jurisdiction, article 12 must furthermore be seen as the main provision governing the territorial jurisdiction (ratione loci jurisdiction) of the ICC. Given that the Rome Statute does not provide for a separate and exclusive provision dealing in toto with the ratione loci jurisdiction of the Court (Stéphane Bourgon, p. 560)—such as article 11 on the temporal jurisdiction (ratione temporis jurisdiction)— article 12 is the central legal source when it comes to determining the territorial jurisdiction of the ICC.
    On the basis of this dogmatic structure article 12 may be divided into two separate yet intertwined stipulations: First, article 12(1) determines how a State may accept the jurisdiction of the ICC concerning the core crimes, namely by becoming a Party to the Rome Statute. Second, in order for the ICC to be able to exercise this jurisdiction, article 12(2) requires either the territorial State or the nationality State to be among the State Parties. To further extend the possibility of the ICC to exercise jurisdiction article 12(3) Rome Statute provides for territorial and nationality non-State Parties to ad hoc accept the exercise of jurisdiction by the ICC.
    With this understanding, article 12 demonstrates an apparent respect for the sovereignty of States (Malanczuk, p. 17) and confirms the role of the principle of State sovereignty as a limiting factor for the jurisdiction of the ICC. Thus, article 12 to be the result of a ‘compromise between State sovereignty and the needs of international justice’ (Stéphane Bourgon, p. 560). In the Rome Statute’s current structure State sovereignty, as underlined in particular in article 12(2)–(3), may be pierced only by the referral of a situation to the prosecutor by the United Nations Security Council (‘UNSC’), pursuant to article 13(b).
    A temporary opt out from the automatic jurisdiction under article 12(1) is possible for war crimes pursuant to article 124 if a declaration to this effect is made by a State upon becoming a party to the Rome Statute. Such an opt out can be made for a maximum seven years and may be withdrawn at any time. For example, France has declared that “[p]ursuant to article 124 of the Statute of the International Criminal Court, the French Republic declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory.” (Reservation of 9 June 2000).

Doctrine:
Sharon A. Williams at p
p. 329-338, MN 1-12 in Otto Triffterer.
Stéphane Bourgon pp. 559-560 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Peter Malanczuk, at p. 17
Morten Bergsmo "The Jurisdictional Régime of the International Criminal Court" (Part II, Articles 11–19)’ (1998) in 6 European Journal of Crime, Criminal Law and Criminal Justice, pp. 29–47.

Author: Dominik Zimmerman

[132] The main content of article 12 is the codification of the principle of automatic jurisdiction of the ICC vis-à-vis States Parties with respect to the most serious crimes of concern to the international community (the jurisdictional mechanism of ‘automatic jurisdiction’ is sometimes referred to as ‘inherent’ jurisdiction, see eg Wagner, p. 477). As such article 12(1) merely refers to article 5 which in turn contains the offences triggering the ratione materiae jurisdiction of the ICC. Article 12(1) thus does not itself codify the ratione materiae jurisdiction of the Court but instead expresses the central implication for States of becoming a Party to the Rome Statute, namely the fulfillment of the preconditions for the exercise of jurisdiction of the ICC in relation to every new State Party. Through the codification of automatic jurisdiction, article 12(1) furthermore puts emphasis on the understanding of the ICC as being ‘an independent permanent International Criminal Court’ (see Preamble of the Rome Statute; emphasis added by the author).
    Due to the reference of article 12(1) to article 5, the exercise of jurisdiction of the Court may be limited as far as the crime of aggression is concerned if and when, pursuant to article 121(5), the Rome Statute has been amended by a definition of this crime (cf Articles 5(2), 121(5) and 123).

Doctrine:
Sharon A. Williams at p.
339, MN 13 in Otto Triffterer.
Stéphane Bourgon pp. 562-563 and Hans-Peter Kaul pp. 595-596 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Markus Wagner
"The ICC and its Jurisdiction – Myths, Misperceptions and Realities" in Armin von Bogdandy/Rüdiger Wolfrum, Max Planck Yearbook of United Nations Law 7 (Nijhoff Leiden 2003), at pp. 409–512.

Author: Dominik Zimmerman

[133] The second subsection of article 12 provides guidance as to which State(s) has (have) to accept the ICC’s jurisdiction in order for the Court to be able to exercise it in a particular situation. article 12(2) contains two separate, but alternative, categories of State Parties related to a conduct possibly constituting a crime under article 5, that may constitute the necessary precondition for the ICC’s jurisdiction: (a) the State on whose territory the relevant conduct has occurred (so-called territorial State); and (b) the State of which the accused person(s) is (are) national(s) (so-called nationality State). By adhering to these categories, the Statute does not provide for the exercise of jurisdiction if only the State in whose custody a suspect is being held (so-called custodial State), or the State whose national was a victim of the relevant conduct (so-called victim’s State) is a State Party. In these cases, however, a referral of the relevant situation to the Prosecutor by the UNSC according to article 13(b) may still trigger the exercise of jurisdiction. Although such situations are likely to be relatively rare, due also to the difficulty of finding political consensus within the UNSC, this possibility might prove to be valuable in the future in order to reach the ambitious goal of ending impunity for the perpetrators of the most serious crimes of concern to the international community. Similarly, an ad hoc acceptance of an affected territorial or nationality non-State Party to the Rome Statute pursuant to article 12(3) does have this same effect, i.e. enabling the ICC to exercise its jurisdiction.
    Following from the alternative wording ‘one or more’ contained in article 12(2) the Court may come to exercise its jurisdiction in cases where States not being Parties to the Statute are involved and which do not, pursuant to article 12(3), ad hoc accept the exercise of jurisdiction. This may for example be the case where a crime is committed in the territory of a State Party by a national of a non-State Party, or where a national of a State Party commits a serious crime in the territory of a non-State Party. Notwithstanding the influence this might imply on a State not being a party to the Rome Statute, due to the anchorage of both the principle of territoriality and nationality in general international law, such exercise of jurisdiction cannot, however, be in violation of article 34 Vienna Convention on the Law of Treaties ([concluded 23 May 1969, entered into force 27 January 1980] 1155 UNTS 331).

Doctrine:
Sharon A. Williams at p.
339, MN 14 in Otto Triffterer.

Author: Dominik Zimmerman

[134] The first basis for the exercise of jurisdiction is the membership of the territorial State to the Rome Statute. This provision is mainly based on the assertion of territorial jurisdiction as one of the main implications of the principle of State sovereignty (Malcolm N Shaw, p. 579; Vaughan Lowe, p. 342–45). The consideration that ‘all individuals staying on the territory of a state are subjected to the law of that state’ (Hans Kelsen, p. 309) forms a necessary precondition in this regard. Under international law States may exercise this jurisdiction within their own municipal organizational structure or delegate this right in international agreements. Closely connected to the delegation of the sovereign ability to prosecute crimes committed on a State’s territory is the granting of full exercise of the ICC’s function and powers on the territory of the State Party pursuant to article 4(2). According to the principle of territorial jurisdiction the territorial State may exercise jurisdiction regardless of the nationality of the person accused of the crime (there is no difference between citizens and aliens with respect to the exercise of the criminal jurisdiction of a State; see Hans Kelsen, p. 310). With regard to the ICC this means that the Court may take jurisdiction over a conduct which occurred in the territory of a State Party, regardless of whether the person accused of the crime is a citizen of that same State or of a non-State Party. Furthermore, the exercise of jurisdiction is independent of the victim’s nationality and whether the alleged criminal remains in a custodial State which is a State Party or non-State Party.
    Whether or not the nationality State or custodial State is a State Party to the Rome Statute is thus not of any relevance to the possibility of the ICC to exercise jurisdiction but instead has an influence on the obligation to co-operate with the ICC. Whereas State Parties, pursuant to Part 9 are obliged to fully co-operate with the Court in its investigation and prosecution of crimes, the same rules also apply to non-State Parties if they lodge an ad hoc declaration under article 12(3), according to which the exercise of jurisdiction of the ICC is accepted in a particular case (see below).
    However, the United Nations Security Council may under the powers in article 25 and Chapter VII of the UN Charter decide that all States, including non-State parties, shall co-operate fully with and provide any necessary assistance to the Court and the Prosecutor. The Security Council used this power when it referred the situation of Darfur to the Court in resolution 1593 (2005).
    As far as crimes that have been committed on board a vessel or aircraft are concerned the State of registration of the vessel or aircraft is equated with the territorial State. This is in line with article 91(1) United Nations Convention on the Law of the Sea ([concluded 10 December 1982, entered into force 16 November 1994] 1833 UNTS 3) and article 17 Convention on International Civil Aviation ([signed 7 December 1944, entered into force 4 April 1947] 15 UNTS 295) according to which ships have the nationality of the State whose flag they are entitled to fly and an aircraft has the nationality of the State in which it is registered.

Doctrine:
Sharon A. Williams at p
p. 339-340, MN 15 in Otto Triffterer.
Stéphane Bourgon pp. 564-565 and Hans-Peter Kaul pp. 607-609 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Malcolm N Shaw
, p. 579
Vaughan Lowe
, p. 342–45 in Evans

Author: Dominik Zimmerman

[135] The concept of nationality underlying article 12(2)(b) is a confirmation of the legal link between a sovereign State and the individuals remaining on its territory (Malcolm N Shaw, p. 584; Vaughan Lowe, p. 345–47). This linkage does not only entitle a person to a series of rights, but moreover forms the basis for prosecution for crimes committed outside the territory of the State.
    The nationality principle is widely used by civil law States as a model to claim jurisdiction over crimes committed by their nationals abroad. As far as serious crimes are concerned also the common law countries adhere to the nationality principle and have furthermore not protested against the use of this principle in criminal matters by other States (Malcolm N Shaw, p. 589).
    The possibility to exercise extraterritorial jurisdiction pursuant to article 12(2)(b) does not extend to the case where only the State of which the victim is a national is a State Party (so-called passive personality principle). Instead the provision is reduced to the active personality principle.
    The issue of a possible obligation to co-operate with the ICC is handled in the same way as in the case of territorial jurisdiction, i.e. only the State Parties to the Rome Statute are obliged to co-operate.

Doctrine:
Sharon A. Williams at p.
340, MN 16 in Otto Triffterer.
Hans-Peter Kaul pp. 609-610 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Malcolm N Shaw
, p. 589

Author: Dominik Zimmerman

[136] In situations where neither the relevant territorial State nor the relevant nationality State is a Party to the Statute, and where the UNSC does not refer the situation to the Prosecutor the ICC may still exercise jurisdiction provided the territorial State and/or the nationality State (being a non-State Party) on an ad hoc basis accepts the exercise of jurisdiction of the ICC. The declaration by which the approval of jurisdiction of the Court is being affirmed ‘must be express, unequivocal, and precise as to the crime(s) or situation it applies to.’ (Stéphane Bourgon, p. 563.)
    Provided a declaration has been lodged with the Registrar of the ICC pursuant to article 12(3), the accepting State thereby commits itself to co-operate with the ICC as if it were a State Party. This commitment is limited, however, to the crime(s) in question and does thus not embrace any investigation and/or prosecution of crimes other than those covered by the declaration. This facultative obligation to co-operate is in line with article 34 Vienna Convention on the Law of Treaties according to which ‘[a] treaty does not create either obligations or rights for a third State without its consent.’
    The wording ‘the crime in question’ contained in article 12(3) must furthermore be interpreted in accordance with Rule 44. Accordingly the ‘article 12(3)-declaration’ made by a non-State Party implies the ‘acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation’ (emphasis added by the author), rather than individual crimes or specific incidents (Carsten Stahn et al, pp. 427–28, Hans-Peter Kaul, p. 611). As an example, the Republic of Côte d’Ivoire, while not being a party to the Rome Statute, accepted the exercise of jurisdiction by the Court regarding crimes committed on its territory since the events of 19 September 2002 (see Press Release of 15 February 2005, Declaration under article 12-3 of the Rome Statute, 18 April 2003 and Situation in the Republic of Côte d'Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, 3 October 2011, para. 10). A similar declaration, extending the temporal jurisdiction back to the time of the entry into force of the Statute, was made by the Ugandan government in December 2003 (see letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in Uganda to Pre-Trial Chamber II, 5 July 2004) as well as by the government of the Democratic Republic of the Congo (see letter of the Prosecutor of 17 June 2004 attached to the Decision Assigning the Situation in the Democratic Republic of Congo to Pre-Trial Chamber I, 5 July 2004). Due to its facultative character, article 12(3) is in line with the overall State sovereignty-friendliness of article 12.
    Article 12(3) moreover provides the possibility for States to extend the ratione temporis jurisdiction of the Court. Pursuant to article 11(1) the Court has jurisdiction only over crimes committed after the entry into force of the Statute. With regard to States that have become parties to the Rome Statute after its entry into force the jurisdiction only extends to crimes committed after the entry into force of the Rome Statute for that State, unless that State in accordance with article 12(3) accepts jurisdiction for acts committed prior to ratification but after the entry into force of the Statute. However, it is likely that the Court may also consider facts that occurred prior to the time specified in an article 12(3)-declaration—for the purpose of securing evidence or uncovering acts of a continuing nature—provided that these facts are linked to events that occurred after that time (Carsten Stahn, p. 429–31).

Crossreferences:
Rule 44

Doctrine:
Sharon A. Williams at p.
341, MN 17 in Otto Triffterer.
Hans-Peter Kaul pp. 610-611 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
C
arsten Stahn/Mohamed M El Zeidy/Hector Olásolo "The International Criminal Court’s Ad Hoc Jurisdiction Revisited", 2005, 99 AJIL pp. 421–31.

Author:
Dominik Zimmerman

[137] States Parties can trigger the Court's jurisdiction over a particular situation. This entails an ability to direct the Court's attention to events in a particular time and place, possibly involving criminal acts, with a view to initiate an exercise of jurisdiction over those acts.
    In Prosecutor v. Dyilo, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, para. 21, PTC I stated that a situation is defined by "territorial, temporal and possibly personal parameters." This was repeated in Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para. 9. See also Bemba, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 16.
    This power is restricted to States Parties and there can be no ad hoc referrals by non-States Parties, even those that have made declarations pursuant to article 12(3). This power is not retsricted to States with a direct interest or involvement in the situation. State Party referrals must be done in accordance with article 14.

Doctrine:
Sharon A. Williams
/William A. Schabas at p. 569, MN 15 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson p. 619 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[138] The Security Council may trigger the Court's jurisdiction under article 13(b), but also create jurisdiction, in the case of crimes committed on the territory of non-States Parties. This is an acknowledgement of the fundamental role of the Security Council to confront situations of threats to the peace, breaches of the peace and acts of aggression. The requirement in article 12(2) on acceptance by States Parties only applies to cases when a situation is referred to the Prosecutor by a State Party or where the Prosecutor has initiated an investigation propriu motu. It does not apply to Security Council referrals. Article 13(b) requires that the Security Council act under Chapter VII of UN Charter.
    The Security Council made use of article 13(b) when it acted under chapter VII of the UN charter and referred to the Prosecutor the situation in Darfur, Sudan (resolution 1593(2005).
    In Prosecutor v. Dyilo, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, para. 21, PTC I stated that a situation is defined by "territorial, temporal and possibly personal parameters." This was repeated in Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para. 9. See also Bemba, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 16.

Crossreferences:
Rule 162

Doctrine:
Sharon A. Williams
/William A. Schabas at pp. 569-574, MN 16 in Otto Triffterer 2008.
Luigi Condorelli and Santiago Villalpando pp. 627-644 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[139] The Prosecutor may initiate proceedings ex officio (by virtue of his or her office). The Prosectuor's exercise of this power must be done in accordance with article 15, which is a safeguard against abuse of this function.
    In Prosecutor v. Dyilo, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, para. 21, PTC I stated that a situation is defined by "territorial, temporal and possibly personal parameters." This was repeated in Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para. 9. See also Bemba, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 16.

Doctrine:
Sharon A. Williams
/William A. Schabas at p. 574, MN 17 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson p. 657 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[140] The reference to "State Party" as opposed to the more restrictive "interested States" is intentional. Proposals were tabled the drafting of the Rome Statute that only "interested States" could trigger state compliants which would only include the territorial, custodial state, the national state of the victim or alleged perpetrator. Such proposals were dismissed.
    The approach of referring "situations" rather than "cases" reduces the prospect of States Parties referring complaints against specific individuals.

Crossreferences:
Rule 45
Regulation 45

Doctrine:
Antonio Marchesi at pp. 577-579, MN 6-12 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson pp. 623-625 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[141] Information that specify the relevant circumstances may assist the Prosecutor in evaluating whether there is a reasonable basis to proceed with a formal investigation and a starting poing for such investigations.

Doctrine:
Antonio Marchesi at p. 579, MN 13-14 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson p. 624 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[142] Article 15 should be read in conjunction with article 13 which provides three ways of "triggering" the Court's jurisdiction. The ability of the Prosecutor to propriu motu trigger the jurisdiction of the Court is the most controversial and an expression of prosecutorial independence. The Prosecutor's right to initiate is unconditional and discretionary but balanced by the need for authorisation by the Pre-Trial Chamber. When initiating an investigation the Prosecutor may tahe steps as outlined in article 15(2), but not conduct an actual investigation.

Crossreferences:
Rule 46

Doctrine:
Morten Bergsmo and Jelena Pejić at pp. 581-586, MN 1-12 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson p. 657-661 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[143] The "information received" refer to the information on which the decision to initiate investigations was made pursuant to article 15(1). The Prosecutor may seek additional evidence.

Crossreferences:
Rules 46-47

Doctrine:
Morten Bergsmo and Jelena Pejić at pp. 587-588, MN 13-17 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson p. 661 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[144] Paragraph 3 concerns the situation when the Prosecutor has concluded his or her preliminiary investigation pursuant to paragraphs 1 and 2. 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. In cases where the Court's jurisdiction is triggered under article 13(c), this is the only way the Prosecutor can get from a preliminary examination to the stage of an actual investigation with the associated powers under article 54. If the Court's jurisdiction has been triggered by a State Party or the Security Council pursuant to article 13(a) and (b) respectively, article 15 does not apply. In such cases the Prosecutor may proceed the consideration under article 53(1) directly without teh authorisation of the Pre-Trial Chamber.
    The "reasonable basis" standard is an evidentiary test, not one of appropriateness. The Pre-trial chamber will apply the same test when it considers the Prosecutor's request pursuant to paragraph 4. The "supporting material" will primarily be material which the Office of the Prosecutor has gathered pursuant to article 15(2).
    Victims are permitted to make representations to the Pre-Trial Chamber. In situation in Kenya, Order to the Victims Participation and Reparations Section Conceming Victims' Representations Pursuant to Article 15(3) of the Statute, 10 December 2009, para. 9, the Pre-Trial Chamber requested the Victims Participation and Reparations Section (the "VPRS") to: "(1) identify, to the extent possible, the community leaders of the affected groups to act on behalf of those victims who may wish to make representations (collective representation); (2) receive victims' representations (collective and/or individual); (3) conduct an assessment, in accordance with paragraph 8 of this order, whether the conditions set out in rule 85 of the Rules have been met; and (4) summarize victims' representations into one consolidated report with the original representations annexed thereto."

Crossreferences:
Rules 48 and 50
Regulation 38(1)(e) and (2)(a), 49, 50 and 87

Doctrine:
Morten Bergsmo and Jelena Pejić at pp. 588-590, MN 18-24 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson pp. 661-662 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[145] The power to authorise a full investigation as response to a request by the Prosecutor pursuant to paragraph 3 rests with the Pre-Trial Chamber alone. The Prosecutor may decide to iniate an investigation, but the authority to start a full investigation is the Pre-Trial Chamber's prerogative.
    The decision to authorise a full investigation is without prejudice to subsequent determinations on issues of jurisdiction and admissibility.
    Like in paragraph 3, the "reasonable basis" standard is an evidentiary test, not one of appropriateness.

Crossreferences:
Rules 50, 102 and 103

Doctrine:
Morten Bergsmo and Jelena Pejić at pp. 590-591, MN 25-28 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson p. 662 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[146] Paragraph 5 concerns the situation where the Pre-Trial Chamber refuses to accept the Prosecutor's request to authorise a full investigation, whether because it does not find there is reasonable basis to proceed or that the case does not appear to fall within the jurisdiction of the Court. A negative decision by the Pre-Trial Chamber does not preclude the Prosecution from re-applying if new facts or evidence emerge.

Doctrine:
Morten Bergsmo and Jelena Pejić at p. 591, MN 29 in Otto Triffterer 2008.
Philippe Kirsch and Darryl Robinson p. 662 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[147]  From paragraph 3 it follows that the Prosecutor has full discretion in the determination whether the information he or she has obtained and analysed amounts to a reasonable basis. If the conclusion is negative, paragraph 6 the Prosecutor shall promptly inform those who provided the information. The second sentence provides that a negative conclusion by the Prosecutor does not preclude him or her from re-considering if new facts or evidence emerge.

Crossreferences:
Rule 49

Doctrine:
Morten Bergsmo and Jelena Pejić  at pp. 592-593, MN 30-32 in Otto Triffterer 2008.

Author:
Mark Klamberg

[148] The present provision attempts to reconcile potential conflicts between the interests of peace and security on one side and the interest of justice and putting an end to impunity on the other. Article 16 grants the Security Council a collective veto power to block investigations and prosecutions. With the reference to Chapter VII of the UN Charter, Article 16 requires that i) an affirmative vote of nine Security Council members, and ii) the absence of individual vetos from the five permament member of the Security Council (UN Charter Article 27).
    On the initiative of the United States the Security Council adopted Resolution 1422 (2002), acting under Chapter VII of the UN Charter, whereby the Security Council requested, that the Court, "if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise". The request was renewed by the Security Council for an other twelwe months in Resolution 1487 (2003).

Crossreferences:
Article 11(1)

Doctrine:
Sharon A. Williams at p. 323, MN 1-9 in Otto Triffterer.
Stéphane Bourgon p. 554 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[149] Admissibility consists of two parts, complementarity (article 17(1)(a)-(c)) and gravity (article 17(1)(d)), see also article 53. The Statute does not indicate whether the two components are to be dealt with in any particual order.
    In relation to against a complaint concerning British troups in Irag, the Prosecutor opted to asses the gravity before the issue of complementarity, OTP response to communications received concerning Iraq, 9 February 2006.
    However, the approach of Pre-Trial Chamber I has been that complementarity is the "first part of the admissibility test", Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, paras. 30 and 41.
    The Prosecutor has adopted a policy which judges a State's compliance with the duty to prosecute by an analysis of its motives rather than its actions. This allows the concept of "self-referral" by which States pursuant to article 13(1) trigger the jurisdiction of the Court with the respect of crimes committed on their territory, see "Informal Expert paper: The principle of complementarity in practice", 2003.
    In Katanga and Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, para. 56, the Appeals Chamber stated that "[g]enerally speaking, the admissibility of a case must be determined on the basis of the facts as they exist at the time of the proceedings concerning the admissibility challenge". See also Ruto et. al, Decision on the "Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber's Decision on Admissibility", 28 July 2011, para. 10-11, where the Appeals Chamber states that the expression "time of the proceedings" used by the Appeals Chamber in Katanga and Chui referred to the time of the proceedings on the admissibility challenge before the Pre-Trial Chamber and not to the subsequent proceedings on appeal. See also Muthaura et al.,Decision on the "Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre-Trial Chamber's Decision on Admissibility'', 28 July 2011, paras. 8-9

Crossreferences:
Paragraph 10 of the Preamble, articles 1, 12-15, 17-20 and 25(1).
Regulation 112

Doctrine:
Sharon A. Williams
and William A. Schabas at p. 613, MN 21-22 in Otto Triffterer 2008.
John T. Holmes pp. 667-672 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[150] A case is inadmissible if it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. If an investigation is underway, there appears to be a presumption that the case is inadmissible. For example, in the communication regarding Birtish Forces in Irag, the Prosecutor noted that "In light of the conclusion reached on gravity, it was unnecessary to reach a conclusion on complementarity. It may be observed, however, that the Office also collected information on national proceedings, including commentaries from various sources, and that national proceedings had been initiated with respect to each of the relevant incidents", OTP response to communications received concerning Iraq, 9 February 2006, p. 9
    In Katanga and Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), 16 June 2009, the defence counsel of Katanga challenged the admissibility of the case. The Trial Chamber noted that "[t]he provisions of article 17 of the Statute must be read in light of paragraph 10 of the Preamble and article 1 of the Statute. Read together, these provisions establish one of the fundamental principles of the Statute, namely that the Court is complementary to national criminal courts. Thus, according to the Statute, the Court may only exercise its jurisdiction when a State which has jurisdiction over an international crime is either unwilling or unable genuinely to complete an investigation and, if warranted, to prosecute its perpetrators." (para. 74) The Chamber considered "that a State which chooses not to investigate or prosecute a person before its own courts, but has nevertheless every intention of seeing that justice is done, must be considered as lacking the will referred to in article 17." (para 77) The Chamber noted "the clear and explicit expression of unwillingness of the DRC to prosecute" the case, (para. 95) rejected the motion and the case against Katanga admissible.
    In Katanga and Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, the Appeals Chamber dismissed the appeal against the Trial Chamber's decision. The Appeals Chamber stated that "It follows that in case of inaction, the question of unwillingness or inability does not arise; inaction on the part of a State having jurisdiction (that is, the fact that a State is not investigating or prosecuting, or has not done so) renders a case admissible before the Court, subject to article 17 (1) (d) of the Statute. This interpretation of article 17 (1) (a) and (b) of the Statute also finds broad support from academie writers who have commented on the provision and on the principle of complementarity." (para. 78) See also situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, paras. 53-54.
    In Ruto et. al, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, 30 May 2011, para. 47, the Pre-Trail Chamber stated that the admissibility test envisaged in article 17 of the Statute has two main limbs: (i) complementarity (article 17(l)(a)-(c) of the Statute); and (ii) gravity (article 17(l)(d) of the Statute). For the purposes of defining a "case", national investigations "must cover the same conduct", which requires that those investigations must also cover the same persons subject to the Court's proceedings. At the situation stage, the reference to the groups of persons is mainly to broaden the test, because at the preliminary stage of an investigation into the situation it is unlikely to have an identified suspect. The test is more specific when it comes to an admissibility determination at the "case" stage, which starts with an application by the Prosecutor under article 58 of the Statute for the issuance of a warrant of arrest or summons to appear, where one or more suspects has or have been identified. (para. 53-54). The Government of Kenya argued that the test to be applied to the present admissibility challenge should be that "national investigations must encompass the same conduct in respect of persons at the same level of hierarchy" (para. 59). The Chamber believed that such investigations cast doubt on the will of the State to actually investigate the three suspects. The factual information available to the Chamber and the arguments set forth, demonstrated that there are no concrete steps showing ongoing investigations against the three suspects in the present case (para. 60). As a concequence the Pre-Trail Chamber rejected the challenge of the Government of Krenya and declared the case admissible. See also Muthaura et. al, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, 30 May 2011, paras. 43, 50, 55 and 56.
    In Ruto et. al, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, para. 1, the majority of the Appeals Chamber ruled that "[w]hen the Court has issued a warrant of arrest or a summons to appear, for a case to be inadmissible under article 17 (1) (a) of the Statute, national investigations must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court. The words 'is being investigated' in this context signify the taking of steps directed at ascertaining whether this individual is responsible for that conduct, for instance by interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses." It also stated in para. 62 that "a State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible." See also Muthaura et al., Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, paras. 1 and 61. Judge Usacka dissented in Ruto et. al, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute"
Dissenting Opinion of Judge Anita Ušacka
, 20 September 2011, arguing in para. 1 that the Pre- Trial Chamber erred in the way it conducted the proceedings that led to the "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute" of 30 May 2011. She believed that the the Impugned Decision should therefore be reversed. She argued that until the Trial commences, "it is the sovereign right of a State to start the investigation or prosecution of a case and challenge the admissibility of that case before the Court. ... Nevertheless, if a State has the right to start an investigation and prosecution and to bring an admissibility challenge at any time before the start of the trial before the Court, then it stands to reason that the State may also start its investigation and prosecution when the admissibility challenge has already been made." (paras. 20-21). See also Muthaura et al., Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute" Dissenting Opinion of Judge Anita Ušacka, 20 September 2011, paras. 20-21.

Doctrine:
Sharon A. Williams
and William A. Schabas at p. 605, MN 23-24 in Otto Triffterer 2008.
John T. Holmes p. 672-674 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[151] A case is inadmissible if it 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.
    In Katanga and Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, the Appeals Chamber stated that "It follows that in case of inaction, the question of unwillingness or inability does not arise; inaction on the part of a State having jurisdiction (that is, the fact that a State is not investigating or prosecuting, or has not done so) renders a case admissible before the Court, subject to article 17 (1) (d) of the Statute. This interpretation of article 17 (1) (a) and (b) of the Statute also finds broad support from academie writers who have commented on the provision and on the principle of complementarity." (para. 78)
     In Bemba, Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, para. 239 the Trial Chamber consiered whether the case had been investigated by CAR which has jurisdiction over the alleged crimes and CAR has decided not to prosecute, rendering the case inadmissible. The Trial Chamber stated in para. 242. that neither of the "decisions by the national courts and the State (viz. to refer the case to the ICC) were decisions "not to prosecute". They were, instead, decisions closing the proceedings in the CAR - there was an order for severance that approximately coincided with the referral to the ICC (they were two days apart). It follows that the first element of Article 17(l)(b) is not met: in the sense described by the Appeals Chamber, there has not been a decision not to prosecute the accused. To the contrary, the CAR seeks his prosecution at this Court. This decision was upheld by the Appeals Chamber, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled "Decision on the Admissibility and Abuse of Process Challenges", 19 October 2010, paras. 1, 74-75.

Doctrine:
Sharon A. Williams
and William A. Schabas at p. 617, MN 26 in Otto Triffterer 2008.
John T. Holmes p. 673 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[152] A case is inadmissible if the person concerned has already been tried for conduct which is the subject of the complaint according to the ne bis in idem rule in article 20(3).

Doctrine:
Sharon A. Williams
and William A. Schabas at p. 619, MN 27 in Otto Triffterer 2008.
John T. Holmes p. 673 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[153] Finally, a case is inadmissible if the case is not of sufficient gravity to justify further action by the Court. In Lubanga the Pre-Trial Chamber held that two features must be considered: "First, the conduct which is the subject of case must either be systematic (patterns of incidents) or large-scale. If isolated instances of criminal activity were sufficient, there woudl be no need to establish an additional gravity threshold beyond the gravity-driven selection of crimes (which are defined by both contextual and specific elements) included within the material jurisdiction of the Court. Second, in assessing the gravity of the relevant conduct, due consideration must be given to the social alarm such conduct may have caused in the international community", Lubanga, Decision Concerning Pre-Trial Chamber I's Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, para. 46.
    The Pre-Trial Chamber in Lubanhga held that "the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court". (para. 41). See also Abu Garda, Public Redacted Version - Decision on the Confirmation of Charges, 8 February, para. 30.
   In situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 56, the Pre-Trial Chamber recalled "that all crimes that fall within the subject-matter jurisdiction of the Court are serious, and thus, the reference to the insufficiency of gravity is actually an additional safeguard, which prevents the Court from investigating, prosecuting and trying peripheral cases." The Chamber considered that gravity may be examined following a quantitative as well as a qualitative approach. When considering the gravity of the crime(s), several factors concerning sentencing as reflected in rule 145(l)(c) and (2)(b)(iv) of the Rules, could provide useful guidance in such an examination. These factors could be summarized as: (i) the scale of the alleged crimes (including assessment of geographical and temporal intensity); (ii) the nature of the unlawful behaviour or of the crimes allegedly committed; (iii) the employed means for the execution of the crimes {i.e., the manner of their commission); and (iv) the impact of the crimes and the harm caused to victims and their families.para. 62.
    In Situation in the Republic of Côte d'Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, 3 October 2011, paras. 202-203, the Pre-Trial Chamber stated that "an evaluation of 'gravity'should be conducted in a general sense, as regards the entire situation, but also against the backdrop of the potential case(s) within the context of a situation. This assessment must be carried out following a quantitative as well as a qualitative approach."

Doctrine:
Sharon A. Williams
and William A. Schabas at pp. 619-622, MN 28 in Otto Triffterer 2008.
John T. Holmes p. 673 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[154] Article 17(2) contains limitations on inadmissibility. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law.

Crossreferences:
Rule 51

Doctrine:
Sharon A. Williams
and William A. Schabas at pp. 622-623, MN 29 in Otto Triffterer 2008.
John T. Holmes pp. 674-677 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[155] This subpragraph concerns the situation when a state engages in sham proceedings to shield a person from the jurisdiction of the Court. Obvious departures from normal proceedings can be a factor that raises doubts about the legitimacy of the exercise. There is a potential overlap with this and sub-paragraph (2)(c).

Doctrine:
Sharon A. Williams
and William A. Schabas at p. 623, MN 30 in Otto Triffterer 2008.
John T. Holmes pp. 675-676 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[156] This purpose of this sub-pargraph is to off-set the onus of proof that will be on the Prosecutor to establish bad faith in paragraph 2(a) of the involved State.

Crossreferences:
 

Doctrine:
Sharon A. Williams
and William A. Schabas at p. 623, MN 31 in Otto Triffterer 2008.
John T. Holmes p. 667 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[157] Lack of impartiality was during the negotiations at Rome originally put under the hading of inability, in the sense that the State was inable to provide for impartial proceedings and procedural guarantees for the accussed. Eventually, lack of impartiality is regulated in a specic sub-paragraph. It covers situations where the State may act in good faith but the conduct of persons involved in the proceedings may still cause a mistrial or taint evidence. In such cases, the case may be admissible before the Court.

Doctrine:
Sharon A. Williams
and William A. Schabas at p. 623, MN 32 in Otto Triffterer 2008.
John T. Holmes p. 676 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[158] Sub-paragraph 3 concerns situation where due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. This may concern situations such as Somalia or the example of Rwanda after the genocide.
    In Bemba, Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, para. 246, the Trial Chamber determimed "that the CAR national judicial system is unable to investigate effectively or try the accused leads inevitably to the conclusion that for the purposes of Article 17(3) of the Statute, the national judicial system of the CAR is "unavailable", because it does not have the capacity to handle these proceedings."

Doctrine:
Sharon A. Williams
and William A. Schabas at p. 623, MN 33 in Otto Triffterer 2008.
John T. Holmes p. 677-678 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[201] The obligation to satisfy itself that is has jurisdiction in "any case" which is "brought before it" is more narrow than "a situation" as defined in articles 13, 14 and 18.Thus, the Court would not have a duty under this provision to make a determination on its own motion that it has jurisdiction over a situation (as opposed to a case).
    In Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para. 20, PTC I stated when "the existence of national proceedings is the sole reason for a possible finding of inadmissibility, it is a conditio sine qua non for such a finding that national proceedings encompass both the person and the conduct which is the subject of the case before the Court." In the aforementioned case the PTC found that "the proceedings against Germain Katanga in the DRC do not encompass the same conduct which is the subject of the Prosecution Application."
    In Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 23, PTC II considered that, "notwithstanding the language of article 19(1) of the Statute, any judicial body has the power to determine its own jurisdiction, even in the absence of an explicit reference to that effect. This is an essential element in the exercise by any judicial body of its functions. Such power is derived from the well-recognised principle of 'la compétence de la competence'." See also Kony et. al, Decision on the admissibility of the case under article 19(1) of the Statute, 10 March 2009, para. 45 and  Ruto et. al, Decision on the Prosecutor's Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 08 March 2011, para. 8.
    In Kony et. al, Decision initiating proceedings under article 19, requesting observations and appointing counsel for the Defence, 21 October 2008, p. 8, the Pre-Trial Chamber decided to initiate proceedings under article 19(1) of the Statute.
    In Kony et. al, Decision on the admissibility of the case under article 19(1) of the Statute, 10 March 2009, paras. 6 and 23 and 25, the Defence refrained "from positively raising substantive arguments concerning the admissibility of the Case that might be prejudicial to any of the defendants in relation to these proceedings". It held the view that "a determination of the admissibility of the Case at this stage, when none of the persons sought by the Court is in custody, would jeopardize their right to bring a challenge pursuant to article 19(2) at a later stage, i.e. once they are apprehended and appear before the Court." The Chamber highlighted "that the Statute does not rule out the possibility that multiple determinations of admissibility may be made in a given case. ... Nowhere is it said that a challenge brought by either of these parties forecloses the bringing of a challenge by another equally legitimate party, nor that the right of either of the parties to bring a challenge is curtailed or otherwise affected by the Chamber's exercise of its proprio motu powers." (para. 25). The Chamber found that pending the adoption of all relevant legal texts and the implementation of all practical steps, the scenario against which the admissibility of the Case was to be determined remained therefore the same as at the time of the issuance of the Warrants, that is one of total inaction on the part of the relevant national authorities; accordingly, there was no reason for the Chamber to review the positive determination of the admissibility of the Case made at that stage. Thus the case was determined admissible. (paras. 47-52) The decision was confimed by the Appeals Chamber, Judgment on the appeal of the Defence against the "Decision on the admissibility of the case under article 19 (1) of the Statute" of 10 March 2009, 16 September 2009.
     In Ruto et. al, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled "Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute", 30 August 2011, para. 44, the Appeals Chamber stated that "purpose of the admissibility proceedings under article 19 of the Statute is to determine whether the case brought by the Prosecutor is inadmissible because of a jurisdictional conflict. Unless there is such a conflict, the case is admissible."

Doctrine:
Christopher K. Hall at pp. 407-8, MN 2-4 in Otto Triffterer.

Author: Mark Klamberg

[202] In Ruto et. al, Decision on the Conduct of the Proceedings Following the Application of the Government of Kenya Pursuant to Article 19 of the Rome Statute, 4 April 2011, paras. 9-10, the Government of Kenya requested that the Pre-Trial Chamber convene a status conference to organize the proceedings related to the challenge under article 19(2) of the Statute. The Pre-Trial Chamber deemed it sufficient to confine the engagement of the parties in the article 19 proceedings to providing written observations as dictated by rules 58(3) and 59(3) of the Rules. Accordingly, the Chamber considered that the Government's Request should be rejected. See also Muthaura et. al, Decision on the Conduct of the Proceedings Following the Application of the Government of Kenya Pursuant to Article 19 of the Rome Statute, 4 April 2011, paras. 9-10.

[203] There is no definition in the Rome Statute of "[a]n accused". For the purposes of Article 19(2)(a) "an accused" could be defined as person identified in "the document containing the charges" referred to in Article 61(3)(a), as of the moment the document is provided to the Pre-trial Chamber, rather than at the stage when the charges are confirmed, and to consider the person as "an accused" until the charges are not confirmed or the person is acquitted or convicted. "[A] person for whom a warrant of arrest [...] has been issued under article 58" is a person for whom "[t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court" and whose arrest appears necessary (article 58(1)(a) and (b)). "[A] person for whom [...] a summons to appear has been issued under article 58" is someone for whom a warrant of arrest copuld have been issued, but the Pre-Trial Chamber is satisfied that a summons is "sufficient to ensure the person's appearance" (article 58(7)).
    In Prosecutor v. Dyilo, Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute, 3 October 2006, the defence challenged the jurisdiction of the Court. At the time Dyilo was an accused as the document containing the charges was submitted on 28 August 2006.
    In Prosecutor v. Bemba, Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, para.203 and 204, the Trial Chamber decieded that the defence must establish, to the civil standard (a balance of probabilities), the relevant facts and other necessary matters that underpin an admissibility or abuse of process application.

Doctrine:
Christopher K. Hall at pp. 409-10, MN 9-10 in Otto Triffterer.

Author: Mark Klamberg

[203bis] In Muthaura et al., Decision on the "Request by the Government of Kenya in respect of the Confirmation of Charges Proceedings", 20 September 2011, para. 9, the Pre-Trial Chamber stated that "[t]he language of article 19(3) of the Statute and rule 59(l)(a) of the Rules makes clear that a State shall be informed about an admissibility challenge and provided with a summary of its grounds only if the situation was received by way of a State Party referral as opposed to a proprio motu request submitted by the Prosecutor as is the present case. This approach suggests that the drafters intended to exclude States Parties from proceedings in a scenario such as the one sub judice. Thus, the Republic of Kenya cannot be considered as a participant in the instant proceedings and the argument as presented by the Government of Kenya must fail."

[204] In Katanga and Chui, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), 16 June 2009, the defence counsel of Katanga challenged the admissibility of the case. The Trial Chamber noted "that there is no disagreement between the participants as to the consequence that must be drawn from the demonstrated inaction on the part of the authorities of the DRC. In their opinion, the case would thus be automatically admissible." (para. 21) The Chamber had to examine at what the stage the motion challenging admissibility could be brought. According to article 19(4) of the Rome Statute, this must be done before the "commencement of the trial". Does this mean before the Trial Chamber proceedings commence or even before the proceedings of confirmation of charges has ended? The Chamber relied on the prepatory works when it came to the conclusion that "after the confirmation of charges, only challenges based on article 17(1)(c) of the Statute are allowed" (para. 47) Article 17(1)(c) concerns the ne bis in idem principle. The Chamber summarized it in para. 49:
    In sum, the Chamber considers that the Statute provides a three-phase approach in respect of challenges to admissibility. During the first phase, which runs until the decision on the confirmation of charges is filed with the Registry, all types of challenges to admissibility are permissible, subject to the requirement, for States, to make them at the “earliest opportunity”. In the second phase, which is fairly short, running from the filing of the decision on the confirmation of charges to the constitution of the Trial Chamber, challenges may still be made if based on the ne bis in idem principle. In the third phase, in other words, as soon as the chamber is constituted, challenges to admissibility (based only on the ne bis in idem principle) are permissible only in exceptional circumstances and with leave of the Trial Chamber.
    Considering that the Motion of the Defence was late the Chamber stated that it should normally be declared inadmissible. However, for the various reasons, the Chamber considered it appropriate to rule on the merits of the Motion. These reason included the ambiguity of the provisions of the Statute and of the Rules (paras. 56-58). Compare with Prosecutor v. Bemba Decision on the Admissibility and Abuse of Process Challenges, 24 June 2010, paras. 210-211.

[205]  In Bemba, Decision on the «REQUETE AUX FINS DE DIVULGATION DES ELEMENTS PERTINENTS RELATIFS A L'ADMISSIBILITE », 18 September 2009, para. 13 the Pre-Trialö Chamber noted that "according to the second part of article 19(6) in conjunction with rule 60 of the Rules, a challenge to be lodged after the confirmation of the charges should not be referred to the Pre-Trial Chamber but to the Presidency if the competent Trial Chamber was yet to be constituted or designated."

[299] Article 20 lays down the rule against double jeopardy in the context of proceedings under the Statute. Ne bis in idem has traditionally been applied only within one jurisdiction (on ne bis in idem in other contexts, see Tallgren in Otto Triffterer, MN 5 – 8), i.e. where both sets of proceedings were conducted within the same jurisdiction. Thus it is significant that Article 20 is applicable not only to several proceedings before the Court (para. 1), but also where Court proceedings are followed by proceedings before national bodies (para. 2) or vice versa (para. 3).
    Article 20 refers only to proceedings for Article 5 crimes, not to other proceedings before the Court, especially those concerning offences against the administration of justice under Article 70. This is clearly stated in paras. 2 and 3, but must also be true for para. 1, which refers to “crimes” as opposed to “offences” referenced in Article 70 (On this difference generally, see Bruce Broomhall at p. 452 in Otto Triffterer, MN. 17). There is, however, a provision on ne bis in idem for Article 70 offences in Rule 168.

Crossreference:
Article 17(1)(c), Rule 168

Doctrine:
Immi Tallgren at pp. 419–425, MN 1-10 in Otto Triffterer.
Bruce Broomhall at p. 452, MN 17 in Otto Triffterer.
Christine van den Wyngaert and Tom Ongena at pp. 705 – 729 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Björn Elberling

[300] Article 20(1) applies to several proceedings before the Court. It is applicable only where the initial proceedings led to a judgment of acquittal or conviction, i.e. not where the Pre-Trial Chamber refused to confirm the charges under Article 61(7), where proceedings where otherwise terminated, etc. Where initital proceedings led to a judgment, Article 20(1) prohibits any further proceedings based on the “conduct which formed the basis of crimes”. In other words, there may be no further proceedings for the same conduct, even if these are to be based on a different legal qualification. The precise definition of what constitutes the same conduct in this sense may become problematic, especially given the sometimes overlapping definitions of crimes contained in the Statute.
    Article 20(1) explicitly exempts proceedings for challenging judgments which are foreseen in the Statute, which means that appeal and revision procedures, including appeals against acquittal brought by the prosecution, are not in violation of ne bis in idem

Doctrine:
Immi Tallgren at pp. 4
26-427, MN. 11–14 in Otto Triffterer.
Christine van den Wyngaert and Tom Ongena at pp. 7
21-722 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Björn Elberling

[301] Article 20(2) applies to Court proceedings followed by national proceedings (or, depending on future developments, proceedings before other international courts which may have jurisdiction parallel to the ICC). Under Article 34 of the Vienna Convention on the Law of Treaties, Article 20(2) can, of course, only bind member States of the Rome Statute.
    As is the case with para. 1, the provision only applies to proceedings which ended in acquittal or conviction, not to proceedings which were closed in other ways. Contrary to para. 1, however, para. 2 only prohibits further proceedings concerning Statute crimes; states are thus free, under Article 20, to charge the same behavior dealt with by the Court under a different legal qualification, e.g. as murder instead of genocide (for a critique of this aspect of Article 20(2), see van den Wyngaert and Ongena in Antonio Cassese/Paola Gaeta/John R.W.D, at p. 724). 

Doctrine:
Immi Tallgren at pp.
427-428, MN. 15–18 in Otto Triffterer.
Christine van den Wyngaert and Tom Ongena at pp. 723–724 in Antonio Cassese/Paola Gaeta/John R.W.D
.

Author: Björn Elberling

[302] Article 20(3) applies to national proceedings (or proceedings before other international courts which may have jurisdiction parallel to the ICC) followed by proceedings before the ICC. Contrary to paras. 1 and 2, para. 3 refers to persons “who ha[ve] been “tried”, i.e. it applies not only to proceedings which ended in conviction or acquittal, but also to proceedings terminated otherwise. The somewhat awkward wording “for conduct also proscribed under article 6, 7 or 8” covers proceedings for conduct which, if proven, would constitute a Statute crime, regardless of the qualification of that conduct under national law (as long as it adequately reflects the severity of the crime, thus charging, e.g., genocidal killings as simple battery would probably fall under the exception under Article 20(3)(a)) and the outcome of the trial (on the drafting history, see Tallgren in Otto Triffterer, MN. 24). In this context, it is interesting to note that the reference to Article 6, 7 and 8, contrary to the reference contained in Article 22(3), does not cover the crime of aggression should agreement on its definition be reached – whether this means that Article 22(3) will be changed once aggression is added as a crime under the Statute, or whether the drafters wished to exclude national trials for aggression entirely from the ne bis in idem effect under Rule 20(3), is an open question (see van den Wyngaert and Ongena in Antonio Cassese/Paola Gaeta/John R.W.D, at p. 725)
    Article 20(3) prohibits Court proceedings concerning “the same conduct”, showing that differences in the legal qualification of that conduct do not matter under Article 20(3) and that the ICC may conduct proceedings for conduct other than that which were the subject of national proceedings. While the latter statement may be obvious, problems may nonetheless arise in the context of prosecutorial discretion at the national level: A prosecutor confronted with evidence for a number of crimes committed by one person may well decide to limit the investigation to certain of these crimes from the beginning, e.g. for reasons of judicial economy. Where the decision not to pursue certain charges is made at such an early time that the person cannot be said to “have been tried”, the Court would be able to conduct proceedings for those charges, even if the proceedings at the national level overall dealt adequately with the totality of the crimes committed.
    On ne bis in idem in the context of national amnesties and Truth and Reconciliation Commissions, see van den Wyngaert and Ongena in Antonio Cassese/Paola Gaeta/John R.W.D, at p. 726–727.
    Article 20(3)(a) and (b) lists circumstances under which the court may conduct proceedings even if the requirements of the chapeau of Article 20(3) are met. These provisions were taken more or less verbatim from the provision on complementarity in Article 17 (see the commentary on Article 17(2)(a) and (c) and doctrine cited therein; on the qualification “in accordance with the norms of due process reognized by international law” added to Article 20(3)(a) see Tallgren in Otto Triffterer, MN. 29 and van den Wyngaert and Ongena in Antonio Cassese/Paola Gaeta/John R.W.D, at p. 725) 

Crossreference:
Article 17(2) 

Doctrine:
Immi Tallgren at pp. 4
29 – 432, MN. 19–29 in Otto Triffterer.
Christine van den Wyngaert and Tom Ongena at pp. 724–727 in Antonio Cassese/Paola Gaeta/John R.W.D
.

Author: Björn Elberling

[303] The Rome Statute, the Elements of Crimes and the Rules of Procedure and Evidence are placed under equal footing in Article 21(1) of the Rome Statute. However, considering that "[t]he Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute" (Article 51(4)), "[i]In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail" (Article 51(5)), and the “Elements of Crimes shall assist the Court in the interpretation and application of articles 6, 7 and 8 […] and “shall be consistent with this Statute” (Article 9(1) and (3)) it is clear that the Rome Statute is placed at the pinnacle of the pyramid.
    Furthermore, the enumeration in
Article 21, “in the first place [the] Statute…” , “in the second place, where appropriate, treaties and rules of international law”; and “failing that, general principles of law”, indicates that the Rome Statute also has superiority over other treaties, custom and general principles applied by the Court.
    In Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, paragraph 8, PTC I stated that in determining the contours of the framework of article 21(a), the Chamber must look at the general principles of interpretation as set out in article 31 (1) of the Vienna Convention on the Law of Treaties, according to which "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose".
    In Katanga and Chui, Decision on Application for Leave to Appeal by the Defence of Mathieu Ngudjolo Chui against the Decision on Joinder, pp. 8-9, the PTC granted the Application for leave to appeal by the Defence of Mathieu Ngudjolo Chui in relation to "whether the Chamber erred in violation of the principle of legality in its interpretation of article 64(5) of the Statute and rule 136 of the Rules".

Crossreference:
Articles 9(1) and (3), 51(4) and (5)

Doctrine:
Margaret McAuliffe deGuzman at pp. 439-440, MN 8 in Otto Triffterer.
Alain Pellet at pp. 1054-1065 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[304] The Statute of the International Court of Justices lists “the general principles of law recognized by civilized nations” as the third source of international law (ICJ Statute, Article 38(1)(c)). The aforementioned provision is subject to different interpretations and there is no common understanding how it should be understood. 
    The words "General Principles of International Law" in the present provision at least refers to rules of customary law and general principles of law as in Article 38(1)(c) of the ICJ Statute, but may also include logical propositions resulting from judicial reasoning on the basis of existing international law and municipal analogies.
    It is submitted that general principles may divided in two categories, general principles of international law and general principles of national law. In the present provision the first category, principles of international law, is recognized as a source.
    Principles of international law is both a source of law and a method of using other sources in international law (such as treaty provisions and customory rules) - extending existing international rules by analogy and inferring the existence of broad principles from more specific international rules by means of inductive reasoning. In other words, general principles of international law are primarily abstractions from a mass of rules. It is submitted that rules of customary law cannot be founded on extensions by analogy.
    In Prosecutor v. Kony et al., Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 ICC-02/04-01/05-252, 10 August 2007, para. 15, the single Judge of PTC II, identified a general principle of law concerning indirect proof with a reference to the Corfu Channel case (International Court of Justice, Judgment of April 9th, 1949:1.C.J. Reports 1949, p. 18.) and accordingly ruled that indirect proof may be admissible under certain conditions.
    In situation in Uganda, Decision on the Prosecutor's Position on the Decision of Pretrial Chamber II to Redact Factual Descriptions of Crimes from the Warrants of Arrest, Motion for Reconsideration, and Motion for Clarification, 28 October 2005, the Prosecutor submitted that, as a "principle of natural justice", he was "entitled to be heard on the issue of the redactions being contemplated by the Chamber, before the redactions were ordered" (paragraph 8). PTC II rejected the Prosecutor's position and  stated that a position on Chambers decisions is not a procedural remedy under the Statute (paragraph 13). In the Prosecutor’s motion the Prosecutor relied on decisions in which the ICTY and the ICTR had entertained reconsideration. PTC II ruled that the instruments governing the Court's procedure make no provision for such a broad remedy as an unqualified "motion for reconsideration" (paragraph 18). Furthermore PTC II stated that “the rules and practice of other jurisdictions, whether national or international, are not as such ‘applicable law’ before the Court beyond the scope of article 21 of the Statute” and “the law and practice of the ad hoc tribunals, which the Prosecutor refers to, cannot per se form a sufficient basis for importing into the Court's procedural framework remedies other than those enshrined in the Statute.” (paragraph 19) and that the sought remedy would “not only be contrary to the letter and sprit of the statutory texts, but would also result in weakening the predictability of proceedings before the Court and therefore lead to undesirable practical results.” (Paragraph 23). PTC II made similar rulings in situation in
situation Uganda, Decision on the Prosecutor's Motion for Clarification and Urgent Request for Clarification of the Time-limit Enshrined in Rule 155, 18 July 2005, page 2 and in Prosecutor v. Kony et al., Decision on Prosecutor's Application Dated 2 November 2006, 17 November 2006, page 3. PTC I has quoted PTC II:s decision from 28 October 2005 and made similar rulings in Prosecutor v. Dyilo, Decision on the Prosecution Motion for Reconsideration, 23 May 2006, p. 3,  - Decision on the prosecution motion for reconsideration and, in the alternative, leave to appeal, 23 June 2006, p. 5, para. 10. See also Situation in the Democratic Republic of Congo, Decision on the "Demande du BCPV d'accéder au document confidentiel déposé par le Conseil des Fonds d'affectation spéciale au profit des victimes le 7 février 2008, 18 February 2008, p. 4 and Decision on the "Demande des représentants légaux de VPRS1, VPRS2, VPRS3, VPRS4, VPRS5, VPRS6 et a/0071/06 aux fins d'accéder au document confidentiel déposé par le Conseil de direction du Fonds d'affectation spéciale au profit des victimes le 7 Février 2008, 19 February 2008, p. 4
    In Prosecutor v. Dyilo, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007, para. 44 TC I stated that "Article 21 of the Statute requires the Chamber to apply first the Statute, Elements of Crimes and Rules of the ICC. Thereafter, if ICC legislation is not definitive on the issue, the Trial Chamber should apply, where appropriate, principles and rules of international law. In the instant case, the issue before the Chamber is procedural in nature. While this would not, ipso facto, prevent all procedural issues from scrutiny under Article 21(l)(b), the Chamber does not consider the procedural rules and jurisprudence of the ad hoc Tribunals to be automatically applicable to the ICC without detailed analysis."

Doctrine:
Margaret McAuliffe deGuzman at pp. 440-442, MN 11-14 in Otto Triffterer.
Antonio Cassese, 2003 at p. 26

Ian Brownlie at pp. 18-19
Peter Malanczuk at pp. 48-49
Alain Pellet at p. 1073 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[305] The second category of general principles (see comment under Article 21(1)(b)), general principles of national law, have a more precise definition in Article 21(1)(c) of the Rome Statute in comparison with Article 38(c) of Statute of the International Court of Justice: “The Court shall apply […] general principles of law derived […] from national laws of legal systems of the world”. The most frequent use of domestic law analogies has been in the field of evidence procedure, and jurisdictional questions.
    It is submitted that the first part of Article 21(1)(c) covers principles relating to substantive as well as procedural law, while the latter part of the article, which allows the Court to also apply “the national laws of States that would normally exercise jurisdiction over the crime provided”, relates only to national substantive criminal law (such as practice regarding prison sentences) and not procedural rules.
        According to the ICTY jurisprudence general principles of law may be derived from national legal systems and transferred to international criminal proceedings provided that three conditions are met (Prosecutor v. Drazen Erdemović, Separate and Dissenting Opinion of Judge Cassese, ICTY Appeals Chamber Judgement, 7 October 1997, paras. 2-5, Prosecutor v. Drazen Erdemović, Joint Separate Opinion of Judge Mcdonald and Judge Vohrah, ICTY Appeals Chamber Judgement, 7 October 1997, paras 57-58 and Prosecutor v. Furundžija, ICTY Trial Chamber, Judgement of 10 December 1998, paras. 177-178):
    1) One should explore all the means available at the international level before turning to national law;
    2) It is inappropriate to mechanically incorporate into international criminal proceedings ideas, legal
    constructs, concepts or terms of art which only belong, and are unique, to a specific group of national
    legal systems; and
    3) Account must be taken to specificity of international criminal proceedings.
    It is submitted that in order to provide solutions in cases where treaties (including applicable human rights instruments) provide no guidance on procedural matters, general principles of law are more relevant than international customary law.
    In Prosecutor v. Dyilo, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, paragraphs 7, 23 and 24, PTC I ruled that question whether the practice of witness proofing is admissible under the applicable law of the Court and, if so, under which conditions, shall be settled in light of article 21 of the Rome Statute. PTC I found that measures such as witness familiarization is not only admissible but mandatory. Moreover, the Chamber found that, according to article 43 (6) of the Statute and Rules 16 and 17 of the Rules, the VWU, in consultation with the party that proposes the relevant witness, is the organ of the Court competent to carry out the practice of witness familiarisation from the moment the witness arrives at the seat of the Court to give oral testimony. PTC I furthermore found that, pursuant to article 21(1)(c) that the practice of witness proofing is not embraced by any general principle of law that can be derived from the national laws of the legal systems of the world. (paragraphs 35 and 42).
    In Prosecutor v. Dyilo, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007, para. 41, TC I did "not consider that a general principle of law allowing the substantive preparation of witnesses prior to testimony can be derived from national legal systems worldwide, pursuant to Article 21(1)(c) of the Statute."
    In Prosecutor v. Dyilo
, Decison on the confirmation of charges, 29 January 2007, paragraph 69, PTC I  did not make its ruling on the application of the State’s national law. The PTC reasoned that even though the Court shall apply general principles of law derived from national laws, the Court is not bound by the decisions of national courts on evidentiary matters.
    In Katanga and Chui, Decision revoking the prohibition of contact and communication between Germain katanga and Mathieu Ngudjolo Chui, 13 March 2008, p. 12, the single judge stated that "according to article 21 (l)(c) of the Statute, national case law can only constitute a subsidiary source of law before this Court, insofar as it shows the existence of a general principle of law that can be derived from 'national laws of legal systems of the world' and is not inconsistent with the Statute and with international law and internationally recognized norms and standards". The single judge considered that "the Prosecution, whose activities must be directed by the principle of objectivity pursuant to article 54 (1) (a) of the Statute, has used in support of the Prosecution Application a number of sources that manifestly do not offer any support for its application [and] the Prosecution must refrain in future applications from resorting to this practice in order to mislead the Single Judge. ... [T]he analysis of the national case law made in the Prosecution Application is limited to merely two national jurisdictions".

Doctrine:
Ian Brownlie at pp. 16-18
Antonio Cassese, 2003 at pp. 154-156

Margaret McAuliffe deGuzman at pp. 442-444, MN 15-20 in Otto Triffterer.
Peter Malanczuk at p. 49
Alain Pellet at p. 1073 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Gerhard Werle at pp. 47-48, MN 134.

Author: Mark Klamberg

[306] The case law of the Court is only a subsidiary means of determining the law. However, it is submitted that an emerging source of international criminal procedural law is the case law of the international criminal tribunals themselves.
    The doctrine of judicial precedent, which is a major source of law within common law, is founded on the principle of stare decisis, i.e. to adhere to cases adjudicated before. The precedent has no compulsory effect in the civil law model. At least three differents questions may be considered.
    1. Whether the Appeals Chamber is bound to follow its previous decisions. The Appeals chamber in Aleksovski (Judgment 24 March 2000) observed a tendency among courts in all legal systems not to deviate, where possible from their own earlier decisions (para. 97). Therefore, the Appeals Chamber ruled that it will follow the ratio decidendi of its own earlier decisions. However, the Appeals Chamber has attached an important caveat to the principal importance of adherence to the doctrine of precedent by stating that “a proper construction of the Statute, taking due account of its text and purpose, yields the conclusion that in the interests of certainty and predictability, the Appeals Chamber should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice". (para. 107).
    2. Whether precedents set in the same case by the Appeals Chamber are binding on trial chambers. The Appeals Chamber in Aleksovski considered “that a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers" (Aleksovski para. 113). In Prosecutor v. Thomas Lubanfa Dyilo, Decision on the confirmation of charges, 29 January 2007, para. 32 and p. 154, the Pre-Trial Chamber acknowledged the judgments of the Appeals Chamber.
    3. Whether precedents set in an other case within the same Court are binding on trial chambers. The ICTY Trial Chamber in Kupreškić (Judgment 14 January 2000), held that judicial decisions should only be used as a “subsidiary means for the determination of rules of law” and noted that the expression in Article 38(1)(d) of the ICJ Statute must be regarded as declaratory of customary international law. It continued: “generally speaking, and subject to the binding force of decisions of the Tribunal’s Appeals Chamber upon the Trial Chambers, the International Tribunal cannot uphold the doctrine of binding precedent (stare decisis) adhered to in common law countries.[…] Clearly, judicial precedent is not a distinct source of law in international criminal adjudication.[…] Thus, it can be said that the Justinian maxim whereby courts must adjudicate on the strength of the law, not of cases (non exemplis, sed legibus iudicandum est) also applies to the Tribunal as to other international criminal courts” (para. 540). The appeals chamber in Aleksovski  made a similar ruling, stating that the Trial Chambers, in turn, are not bound by the decisions of the other Trial Chambers. However a decision of a Trial Chamber may have persuasive authority (para 114). In Prosecutor v. Kony et al., Decision on victims' applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 ICC-02/04-01/05-252, 10 August 2007, para 5, the single Judge of PTC II, stated that he "will, whenever appropriate, take into account the principles established and the practice followed so far by the Court in the area of victims' participation, with particular focus on the jurisprudence of Pre-Trial Chamber I in the situation in the Democratic Republic of the Congo."
In Bemba, the PTC stated that it "will apply, pursuant to article 21(2) of the Statute, principles and rules of law as interpreted in the Court's decisions, if deemed applicable to the present case. Bemba,  Fourth Decision on Victims' Participation, 12 December 2008, para. 15.
    In Situation in Democratic Republic of the Congo, Decision on the OPCD's request for leave to appeal the 3 July 2008 decision on applications for participation, 4 September 2008, para. 20, the Single Judge noted "that she is not required, pursuant to article 21(2) of the Statute, to apply the principles and rules of law as interpreted in previous decisions, nevertheless ... the Single Judge still applied the existing standard"-

Author: Mark Klamberg

Doctrine:
Margaret McAuliffe deGuzman at p. 445, MN 21-22 in Otto Triffterer.
Geert-Jan Alexander Knoops at pp. 2-6
Alain Pellet at p. 1066 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Gerhard Werle at p. 57

[307] Until Article 21(3) of the Rome Statute the hierarchy of the applicable law is quite clear with the Rome Statute at the pinnacle of the pyramid. With the third paragraph a hierarchy between the norms appear to be introduced which has the effect that certain rules are given precedence based on their subject-matter rather their source. According to this provision “[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights,…”. In other words, the Court is authorized to hold a provision of the Rome Statute which is contrary to “internationally recognized human rights” as inapplicable.
    In Prosecutor v. Thomas 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 19 (2) (a) of the Statute of 3 October 2006, 14 December 2006, paragraph 39, the Appeals Chamber ruled
that article 21 (3) of the Statute makes the interpretation as well as the application of the law applicable under the Statute subject to internationally recognised human rights. It requires the exercise of the jurisdiction of the Court in accordance with internationally recognized human rights norms. The Appeals Chamber continued stating that 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.
    In Prosecutor v. Thomas Lubanga Dyilo, Decision on victim's participation, 18 January 2008, para. 35, TC I considered, with reference to article 21(3) the UN resolution on the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law and the Convention on the Rights of the Child.
    In Bemba, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 24, PTC III observed that "under article 21(3) of the Statute, the expression 'reasonable grounds to believe' must be interpreted in a manner consistent with internationally recognized human rights."
   
Doctrine:
Margaret McAuliffe deGuzman at pp. 445-446, MN 23-25 in Otto Triffterer.
Alain Pellet at pp. 1079-1081 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[308] Article 22 contains the first limb of the maxim nullum crimen, nulla poena sine lege as applied to proceedings before the ICC: The article applies only to proceedings concerning crimes listed in Article 5, not to proceedings concerning offences against the administration of justice under Article 70, as shown by the reference to “crimes” as opposed to “offences” referenced in Article 70 (Broomhall in Otto Triffterer, MN 17). However, the provision of nullem crimen sine lege under general international law may still apply to such proceedings. Also, Article 22 refers only to the definition of crimes, not to other substantive rules necessary for a finding on guilt or innocence, i.e. especially grounds for excluding criminal responsibility. Whether the Court will take into account Article 22, or its corollary under general international law, in this context remains to be seen. 

Crossreferences:
Article
23

Doctrine:
Bruce Broomhall at pp. 447–4
55, MN 1-25 in Otto Triffterer.
Susan Lamb at pp. 733-756 in
Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author: Björn Elberling

[309] Article 22(1) lays down the prohibition of retroactive application of criminal law as applied before the ICC. First of all, a person may only be punished by the ICC for conduct (i.e. acts and omissions) which, at the time of its commission (respectively the time the person should have acted), constituted a crime under the jurisdiction of the Court. What is important in this context is that the provision refers not to crimes under the Statute, but to crimes under the jurisdiction of the court. This means that Article 22(1) requires that the prerequisites for the jurisdiction of the ICC must have been met at that time (Broomhall in Otto Triffterer, MN. 31) – with the exception, logically, of prerequisites for jurisdiction which necessarily refer to events subsequent to the conduct in question, such as the triggering event under Article 13. As far as Article 22(1) concerns prerequisites for the jurisdiction of the Court, there is significant overlap with both Article 11(1) and Article 24(1) (see Broomhall in Otto Triffterer, MN. 51). 

Crossreferences:
Article
s 11(1) and 24(1) 

Doctrine:
Bruce Broomhall at pp. 447–4
56, MN. 26–33 in Otto Triffterer.
Susan Lamb at pp. 749–751 in
Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author: Björn Elberling

[310] Article 22(2) lays down some corollaries to the nullum crimen sine lege principle, covered by the maxims nullum crimen sine lege certa and nullum crimen sine lege stricta: The definition of crimes must be strictly construed and may not be extended by analogy – this does not, however, bar the use of analogy in a narrow set of circumstances in the interpretation of a definition, such as where it contains a gap or a non-exhaustive list for one requirement (see Broomhall in Otto Triffterer, MN 42–43 and Antonio Cassese at pp. 155–156).
    Ambiguities in the definition must be resolved in favor of the defendant – a provision which only applies after interpretation of the provision according to the general rules of interpretation has failed to resolve any ambiguity. 

Doctrine:
Bruce Broomhall at pp. 4
56–459, MN. 34–47 in Otto Triffterer.
Susan Lamb at pp. 7
52-753 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Antonio Cassese at pp. 153–157 

Author: Björn Elberling

[311] Article 22(3) contains a provision concerning Article 22 in general which is rather similar to the provision in Article 10 concerning Part 2 of the Statute. Given the dynamics of international criminal law in general, its main function is to guard against any “freezing” of the status quo of substantive crimes to that contained in the Rome Statute. 

Crossreference:
Article 10 

Doctrine:
Bruce Broomhall at pp. 4
59-460, MN. 48–50 in Otto Triffterer.
Susan Lamb at pp. 7
53-754 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Björn Elberling

[312] Article 23 contains the second part of the maxim nullum crimen, nulla poena sine lege. It limits punishment following convictions by the Court to those contained in the Statute, i.e. imprisonment for up to 30 years or life imprisonment, as well as fines and forfeiture proceedings. Problems under Article 23 may arise where states, e.g. the state of nationality of a convicted person or the state where that person serves her sentence, foresee additional consequences for convicted persons serving a prison term, such as loss of the right to vote or to run for public office. At least with regard to State Parties, a case could be made that such additional penalties not foreseen in the Statute would violate Article 23.
    Article 23 does not only limit the Court to those punishments contained in the Statute, but requires that punishment be “in accordance with this Statute.” This may be read to mean that even a form of punishment generally foreseen may not be inflicted where the requirements for such punishment are not fulfilled. Such cases will presumably not arise often as the sentencing provisions of the Rome Statute only give rather broad guidelines for sentencing. However, a problem under Article 23 could arise, e.g., if defendants were routinely sentenced to life imprisonment without a determination as to whether the requirements of Article 77(1)(b) were fulfilled. 

Crossreference:
Article
s 22 and 77  

Doctrine:
William A. Schabas at pp. 463 – 466 in
Otto Triffterer.
Susan Lamb at pp. 756-766 in
Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Antonio Cassese at pp. 157–158

Author: Björn Elberling

[313] The provision that a prerequisite for criminality is the prior entry into force of the Statute basically repeats, from the perspective of the individual defendant, the provision in Article 11(1) that the Court only has jurisdiction for crimes committed after the entry into force of the Statute. As with Article 11, one problem may occur in the context of omissions and “continuing violations” (see Pangalangan in Otto Triffterer, MN 12–13).  

Crossreferences:
Article 11(1)
and 22(1)

Doctrine:
Raul C. Pangalangan at pp. 46
8–472, MN 2–13 in Otto Triffterer.
Susan Lamb at pp. 7
51-752 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author: Björn Elberling

[314] Article 24(2) lays down the principle of lex mitior – if the content of the law has changed between the commission of the crime and the final judgment, the law more favorable to the defendant must be applied. This not only prohibits the retroactive application of more severe legislation (on which see Pangalangan in Otto Triffterer, MN. 15), but also mandates the application of the more lenient law which only entered into force after the conduct constituting the crime.
    Problems might arise in determing the “law more favourable” where changes to several aspects of the law have resulted in a law that is more lenient in certain aspects and stricter in others.
    As Article 24(2) refers to “the law” as opposed to “(definitions of) crimes”, this provision applies not only to Articles 5–8, but also at least to all substantive provisions, i.e. also to the definitions of forms of participation (Article 25 and 28), grounds for excluding criminal responsibility etc.

Doctrine:
Raul C. Pangalangan at pp. 4
72–473, MN 14–16 in Otto Triffterer

Author: Björn Elberling

[315] During the preparatory works it was discussed whether "legal" or "juridical" persons should be under the Court's jurisdiction. Such proposals were rejected. Thus, the Court has only jurisdiction over natural persons.

Doctrine:
Kai Ambos at pp. 477-478, MN 4 in Otto Triffterer

Author: Mark Klamberg

[316] The paragraph articulates the principle of individual criminal responsibility. "A crime within the jurisidiction of teh Court" refers to genocide, crimes against humanity and war crimes according to articles 5(1)(a)-(c) and 6-8. The possible punishment follows from article 77.

Doctrine:
Kai Ambos
at p. 478, MN 5 in Otto Triffterer    

Author:
Mark Klamberg

[317] The concept of perpetration enshrined in Article 25(3)(a) distinguishes between direct or immediate participation (“as an individual”), co-perpetration (“jointly with another person”), and intermediary perpetration (“through another person”).
    All three forms of perpetration require proof that the accused intended the criminal result and that he or she was aware of the substantial likelihood that a criminal act or omission would occur as a
consequence of his or her conduct.
    Perpetration “as an individual” can be understood that the perpetrator acts on his or her own without relying on or using another person. Direct perpetration also covers the case where there are other parties to the crime who are merely rendering accessory contributions to the commission by the direct perpetrator.
    Co-perpetration or perpetration “jointly with another person” is characterized by a functional division of the criminal tasks between the different co-perpetrators, who all share the same criminal intent.
    The jurisprudence of the ICC will determine whether or not the contribution of each of the co-perpetrators needs to be a conditio sine qua non for the commission of the crimes. In other words, the actus reus of co-perpetration may be interpreted narrowly, in the sense that each co-perpetrator has to physically carry out objective element of the crime, or it may be interpret broadly, in the sense that it is sufficient that one of the co-perpetrators carried out the objective element of the crime and the others, having provided assistance in furthering the crime, may be held responsible for the crime. In Lubanga, Decision on the confirmation of charges of 29 January 2007, paras. 326-339, PTC I found that when a criminal offence is committed by a plurality of persons, the definitional criterion of the concept "joint commission" is linked to the distinguishing criterion between principals and accessories to the crime. After analysis of the three main approaches for distinquishing between principals and accessories to a crime - the objective criterion approach, the subjective criterion approach and the "control over the crime" approach - the Chamber supported the "control over the crime" approach. See also Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, paras. 480-486.
    In Prosecutor v. Bemba, the Pre-Trial Chamber held the view that "criminal responsibility under the concept of coperpetration requires the proof of two objective elements: (i) the suspect must be part of a common plan or an agreement with one or more persons; and (ii) the suspect and the other co-perpetrator must carry out essential contributions in a coordinated manner which result in the fulfilment of the material elements of the crime.",  Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, para. 350
    Intermediary perpetration or perpetration “through another person” is characterized by the predominance of a direct perpetrator who uses the person that physically carries out the crime as his or her instrument. Whereas this human tool is typically an innocent agent, the indirect perpetrator – as a kind of master mind – employs higher knowledge or superior willpower to have the crime executed. It requires more than inducing or soliciting a person to commit a crime, as otherwise this mode of perpetratorship would hardly be discernible from instigation in the terms of Article 25(3)(b) of the ICC Statute. The actus reus consist in
conduct aimed at instrumentalizing another person to commit a crime, by use of force, the exploitation of an error or any other handicap of the tool’s side or in some other way. To establish criminal responsibility for intermediary perpetration, it is immaterial wither the person physically carrying out the crime is criminally responsible for the crime. In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 495, PTC I stated that "[t]he commission of a crime through another person is a model of criminal responsibility recognised by the world's major legal systems. The principal (the 'perpetrator-by-means') uses the executor (the direct perpetrator) as a tool or an instrument for the commission of the crime. Typically, the executor who is being used as a mere instrument will not be fully criminally responsible for his actions. As such, his innocence will depend upon the availability of acceptable justifications and/or excuses for his actions. Acceptable justifications and excuses include the person's: i) having acted under a mistaken belief; ii) acted under duress; and/or iii) not having the capacity for blameworthiness."
    In Bemba, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 84, PTC III considered "that there are reasonable grounds to believe that Mr Jean-Pierre Bemba is criminally responsible under article 25(3)(a) of the Statute, jointly with another person, or through other persons, for the crimes set out in [the] Decision."
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 471, PTC I stated that "If the Chamber finds that there is sufficient evidence to establish substantial grounds to believe that Germain Katanga and Mathieu Ngudjolo Chui are jointly responsible as principals for having committed the crimes listed in the Amended Document Containing the Charges through their subordinates, such a finding renders moot further questions of accessorial liability. This means that the Chamber will not consider other forms of accessorial liability provided for in article 25(3) (b) to (d) of the Statute or the alleged superior responsibility of the two suspects provided for in article 28 of the Statute."

Doctrine:
Kai Ambos
at pp. 478–480, MN 6-11 in Otto Triffterer
Albin Eser at pp.
767795 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author: Mark Klamberg

[318] The mode of liability of instigation summarizes what is also referred to as the “accessory before the fact”. In the terms of the Article 25(3)(b) refers to “ordering”, “soliciting” or “inducing” the commission of a crime. As a mode of participation distinct from perpetration, instigation must remain in a certain  relationship to the principal crime. The principle of the criminal responsibility of a superior for purposes of this subparagraph applies only to those situations in which the subordinate actually carries out or at least attempts to carry out the order to commit the crime, as indicated by the phrase “which in
fact occurs or is attempted”.
    The mode of “ordering” a crime presupposes a superior-subordinate relationship between the accused and the physical perpetrator of the crime. The content of this mode of liability may be construed along the lines of the jurisprudence of the ICTY. The International Law Commission has stated that “(t)he superior who orders the commission of the crime is in some respects more culpable than the subordinate who merely carries out the order and thereby commits a crime that he would not have committed on his own initiative.
    “Soliciting” means to command, authorize, urge, incite, request or advice another person to commit a crime. There may be cases where it is difficult to draw a distinctive line between the mode of “ordering” and “soliciting”.
    “Inducing” a crime means to affect, cause, influence an act or course of conduct, lead by persuasion or reasoning. Again, there may be cases where it is difficult to distinguish this mode of liability from the other modes of accessory before the fact. Inducing may be conceived as an umbrella term, covering soliciting which, in turn, has a stronger and more specific meaning than inducing”. Unlike the case of “ordering” a superior-subordinate relationship is not necessary for the mode of “inducing”.

Doctrine:
Kai Ambos
at pp. 480-481, MN 12-13 in Otto Triffterer
Albin Eser at pp.
795-798 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author: Mark Klamberg

[319] This provision coves the classical field of complicity by assistance. In contrast to the wording of the Statutes of the ICTY and the ICTR, the ICC Statute uses the language “aids, abets or otherwise assists” in the attempt or accomplishment of a crime, including “providing the means for its commission”. Consequently aiding and abetting are not an indistinguishable unity but each of them has its own meaning. Moreover, aiding and abetting are just two ways of other possible forms of "assistance". As far as the mens rea element is concerned, this mode of liability has two different forms. With regard to facilitating the commission of the crime, the aider and abettor must act with ‘purpose’. This requires not only the mere
knowledge that the accomplice aids and abets the principle perpetrator; he or she must also wish that the assistance shall facilitate the commission of a crime. Aiding, abetting or otherwise assisting as defined by Article 25(3)(c) of the ICC Statute implies a lower degree of responsibility than in the case of instigating.
    In certain legal systems, for example the German, it is common that contributions are punishable also after its completion. The International Law Commission drafted a compromise according to which  “complicity should be regarded as aiding, abetting or means provided ex post facto, if they had been agreed on prior to the perpetration of the crime. As the ICC Statute did not address this question, it must be  assumed that the State Parties were not prepared to accept this position.

Doctrine:
M.C. Bassiouni at p. 141, footnote 4 
Kai Ambos
at pp. 481-483 and 491-492, MN 14-19 and 40-41in Otto Triffterer
Albin Eser at pp.
797-801 and 806-807 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author: Mark Klamberg

[320] Article 25(3)(d) presents a compromise with earlier “conspiracy” provisions which since Nuremberg have been controversial. Subparagraph (d) appears to provide the lowest objective threshold for participation under article 25 by using the notion “in any other way contributes to […] a crime”.
    Unlike article 25(3)(c), subparagraph (d) requires that the contribution of the accessory must be provided to “a crime by a group of persons acting with a common purpose”. With a fairly low objective requirement, a correction is made through the subjective level. The contribution to the group crime must be intentional and shall be made in one of the two alternative ways: it must either “be made with the aim of furthering the criminal activity or criminal purpose of the group” or “be made in the knowledge of the intention of the group to commit the crime” In addition the mens rea requirement of Article 30 are applicable which corresponds with the subjective requirements of aiding and abetting.
    In Prosecutor v. Mbarushimana, Decision on the Prosecutor's Application for a Warrant of Arrest against Callixte Mbarushimana, 11 October 2010, para. 39, the Pre-trial chamber was of the view that the notion of "contribution" to a crime committed by a group of persons, as set out in article 25(3)(d) of the Statute has the following specific requirements:
Objective Elements: (i) a crime within the jurisdiction of the Court is attempted or
committed; (ii) the commission or attempted commission of such a crime was carried out
by a group of persons acting with a common purpose; (iii) the individual contributed to
the crime in any way other than those set out in Article 25(3)(a) to (c) of the Statute;
Subjective Elements: (i) the contribution shall be intentional; and (ii) shall either (a) be
made with the aim of furthering the criminal activity or criminal purpose of the group; or
(b) in the knowledge of the intention of the group to commit the crime.

Doctrine:
Kai Ambos
at pp. 483-486, MN 20-25 in Otto Triffterer
Albin Eser at pp.
802-803 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author: Mark Klamberg

[321] Article 25(3)(e) of the ICC Statute criminalizes direct and public incitement of others to commit genocide. It is in substance identical to Article III(c) of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, and the ICTY and ICTR Statutes. Genocide is the only international crime to which public incitement has been criminalized. The reason for this provision is to prevent the early stages of genocide even prior to the preparation or attempt thereof.
    To incite ‘publicly’ means that the call for criminal action is communicated to a number of individuals in a public place or to members of the general public at large particularly by technological means of mass communication, such as by radio or television. To incite ‘directly’ means that a person is specifically urging another individual to take immediate criminal action rather than merely making a vague or indirect suggestion. This incitement comes very close to, if not even substantially covered by, instigation according to article 25(3)(b), thus losing much of its own significance. The difference between ordinary form instigation, e.g. instigation on the one hand and incitement to genocide on the other, lies in the fact that the former is specifically directed towards a certain person or group of persons in private while the latter is directed to the public in general. There is one important difference between incitement to genocide and the forms of complicity under subparagraphs (b), (c) and (d): incitement with regard to genocide does not require the commission or even attempted commission of the actual crime, i.e. genocide. As such, incitement to commit genocide is an inchoate crime.

Doctrine:
Kai Ambos
at pp. 486-488, MN 26-30 in Otto Triffterer
Albin Eser at pp.
803-806 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author: Mark Klamberg

[322] Article 25(3)(f) provides for the criminal responsibility of an individual who attempts to commit a crime within the jurisdiction of the Court if a person commits an act to carry out his or her intention and fails to successfully complete the crime only because of some independent factor which prevents him or her from doing so. The phrase ‘does not occur’ recognizes that the notion of attempt by definition only applies to situations in which an individual endeavours to commit a crime and fails in this endeavour. Thus, an individual incurs criminal responsibility for unsuccessfully attempting to commit a crime only when the following elements are present: (a) intent to commit a particular crime; (b) an act designed to commit it; and (c) non-completion of the crime for reasons independent of the perpetrator's will.
    On the other hand, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime is not criminally responsible. The provision does not clarify at what stage of the commission abandonment is still admissible or under which circumstances the abandonment is voluntarily. This problem is left for the Court. However, some guidance may be sought in the phrase “by taking action commencing the execution of a crime” which is used to indicate that the individual has performed an act which constitutes a significant step towards the completion of the crime.
    In Katanga and Chui, Decision on the confirmation of charges, 30 September 2008, para. 460, PTC I endorsed the "doctrine that establishes that the attempt to commit a crime is a crime in which the objective elements are incomplete, while the subjective elements are complete. Therefore, the dolus that embodies the attempt is the same than the one that embodies the consummated act. As a consequence, in order for an attempt to commit a crime to be punished, it is necessary to infer the intent to further an action that would cause the result intended by the perpetrator, and the commencement of the execution of the act."

Doctrine:
Kai Ambos
at pp. 488-490, MN 31-36 in Otto Triffterer
Albin Eser at pp.
807-818 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author:
Mark Klamberg

[323] The ICC has no direct power to ascertain State responsibility. Nevertheless, the paragraph affirms the parallell vailidity of the rules of state responsibility.

Doctrine:

Kai Ambos
at p. 490, MN 37 in Otto Triffterer
Micaela Frulli at p. 533 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones

Author:
Mark Klamberg

[324] The time limiy of 18 is an absolute border completeley independent of maturity of immaturity. Responsibility of persons above the age of 18 may be excluded by a defence listed in article 31(1)(a), when their immaturity results from a mental disease. It can also be a mitigating factor under article 78(1). This article only applies to the jurisdiction of the ICC which means that youngsters may be tried by national courts.

Doctrine:
Roger S. Clark and Ottof Triffeterer at pp. 771-777, MN 1-24 in Otto Triffterer 2008.
Micaela frulli pp. 533-535 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author:
Mark Klamberg

[325] In Prosecutor v. Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, paras. 42-43, the Pre-Trial Chamber observed that in order to end impunity article 27(1) provides that (i) [the Rome Statute] shall apply equally to all persons without any distinction based on official capacity;" (ii) "official capacity as a Head of State or Government, a member of Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence;" and (iii) "Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.". The Pre-Trial Chamber decided to issue a warrant of arrest for president Omar Al Bashir.
    In Bashir, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir including Annexes & Corrigenda, 12 December 2011, Malawi, relied on article 98(1) of the Statute to justify its refusal to comply with the Cooperation Requests with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir. The Pre-Trial Chamber found "that customary international law creates an exception to Head of State immunity when international courts seek a Head of State's arrest for the commission of international crimes. There is no conflict between Malawi's obligations towards the Court and its obligations under customary international law; therefore, article 98(1) of the Statute does not apply." (para. 43) The Chamber therefore found, "in accordance with article 87(7) of the Statute that the Republic of Malawi has failed to comply with the Cooperation Requests contrary to the provisions of the Statute and has thereby prevented the Court from exercising its functions and powers under this Statute. The Chamber decides to refer the matter both to the United Nations Security Council and to the Assembly of States Parties." (para. 46)

[329] In Lubanga, Decision on the confirmation of charges, 29 January 2007, para. 351-352 the Pre-Trial Chamber suggested that that the “cumulative” reference to “intent” and “knowledge” “requires the existence of a volitional element on the part of the suspect”. This “volitional element” was described as encompassing three situations (dolus directus of the first degree, dolus directus of the second degree and dolus eventualis). However, the Pre-Trial Chamber in Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, paras. 363-369 and the Trial Chamber in Lubanga has stated in Judgment pursuant to Article 74 of the Statute, 14 March 2012, para. 1011, that "[t]he drafting history of the Statute suggests that the notion of dolus eventualis, along with the concept of recklessness, was deliberately excluded from the framework of the Statute (e.g. see the use of the words “unless otherwise provided” in the first sentence of Article 30).  The plain language of the Statute, and most particularly the use of the words “will occur” in Article 30(2)(b) as opposed to “may occur”, excludes the concept of dolus eventualis."

[330] In Lubanga, Decision on the confirmation of charges of 29 January 2007, paras. 351-352, PTC I made reference to 1) dolus directus of the first degree, 2) dolus directus of the second degree and dolus eventualis, defined below.
    The cumulative reference to “intent” and “knowledge“ requires the existence of a volitional element on the part of the suspect. This volitional element encompasses, first and foremost, those situations in which the suspect (i) knows that his or her actions or omissions will bring about the objective elements of the crime, and (ii) undertakes such actions or omissions with the concrete intent to bring about the objective elements of the crime (also known as dolus directus of the first degree).
    It can also encompasses
    1) Situations in which the suspect without having the concrete intent to bring about the objective elements of the crime, is aware that such elements will be the necessary outcome of his or her actions or omissions (also known as dolus directus of the second degree);.
    2) Situations in which the suspect (a) is aware of the risk that the objective elements of the crime may result from his or her actions or omissions, and (b) accepts such an outcome by reconciling himself or herself with it or consenting to it (also known as dolus eventualis).

[508] The Court is organized in three judicial divisions:
- the Appeals Division, comprised of the president and four other judges
- the Tr
ial Division, comprised of not less than six judges
- the Pre-Trial Division, comprised of not less than six judges
    Regulation 10 sets the precedence of the judges. However, in the exercise of their judicial functions, the judges are of equal status.
    One or more judges may remain as an alternate, see Articles 39(4), 74(1), Rule 39 and
Regulation 16 on alternate judges. Considering the words "[a]ll the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations" in article 74(1) it appears that it is not possible to appoint an alternate judge during the proceedings. A Danish proposal to allow the appointment of alternate judges during the proceedings was not retained in Rule 39
   The assignment of Judges shall be based on the nature of the functions to be performed by each division as well as the comptence of the individual judge. Thus, the competence of the judges is an important element when they are assigned to a judicial division.
    According to article 36(3)(b) and (5) the judges, when standing as candidates for election, were registered on either one of two lists: List A for specific "competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings", List B for specific "competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court".
    Considering that "[t]he Trial and Pre-Trial Divisions shall be composed predominantly of judges with criminal trial experience" it is logical to assume that the Appeals Chamber should be composed mostly of lawyers specialised in humanitarian law and human rights.                                                         
    There is no guidance, in the rules of procedure and evidence and the regulations of the Court, on how to strike the proper balance concerning composition of the judicial divisions. It appears as the Presidency has assumed this burden.
    The judges of each Division shall, according to Regulation 14, elect a President of the Division from amongst their members to oversee the administration of the Division.
    According to
Regulation 15 the Presidency shall be responsible for the replacement of a judge, see for example situation in Democratic Republic of the Congo, Decision replacing a judge in Pre-Trial Chamber I, 22 June 2007.
    The Pre-Trial Division shall, in accordance with
Regulation 17, have a duty judge.
    In order give the Court additional flexibility and avoid difficulties in administration the two first sentence of article 39(1) may be amended
by the Assembly of States Parties at at any time, even before the expiry of the seven year freeze on the Rome Statute (article 122(1).

Crossreference:
Article 74, 122(
1), Rule 39, Regulations 10, 14, 15, 16 and 17

Doctrine:
Jules Deschênes at pp. 615-616, MN 1-2 in Otto Triffterer.
Socorro Flores Liera at pp. 313-314 in
Roy S. Lee, 2001.
John R.W.D. Jones at pp. 2632-64 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[509] The work of the three divisions is done through Chambers.
     In order give the Court additional flexibility and avoid difficulties in administration the present provision may be amended by the Assembly of States Parties at at any time, even before the expiry of the seven year freeze on the Rome Statute (article 122(1).

Doctrine:
Jules Deschênes at p. 616, MN 3 in Otto Triffterer.
John R.W.D. Jones at p. 264 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[510] The judges of the Appeals Chamber do not rotate (article 39(4)). In the event that a member of the Appeals Chamber is disqualified, or unavailable for a substantial reason, the Presidency shall attach to the Appeals Chamber on a temporary basis a judge from either the Trial or Pre-Trial Division (regulation 12).   
   The judges of the Appeals Chamber shall decide on a Presiding Judge for each appeal (
regulation 13(1)). The Appeals Chamber shall also, in accordance with Regulation 18, have a duty legal officer.
    In order give the Court additional flexibility and avoid difficulties in administration the present provision may be amended by the Assembly of States Parties at at any time, even before the expiry of the seven year freeze on the Rome Statute (article 122(1).

Crossreference:
Regulations 12, 13 and 18

Doctrine:
Jules Deschênes at p. 616, MN 3 in Otto Triffterer.
John R.W.D. Jones at pp. 263-264 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[511] The judges of each Trial Chamber  shall elect from amongst their members a Presiding Judge who shall carry out the functions conferred upon him or her by the Statute, Rules or otherwise (regulation 13(2)). The Trial Chambers shall also, in accordance with regulation 18, have a duty legal officer.
    The Trial Chamber may hold status conferences (regulation 54).
    In order give the Court additional flexibility and avoid difficulties in administration the present provision may be amended by the Assembly of States Parties at at any time, even before the expiry of the seven year freeze on the Rome Statute (article 122(1).
    In the absence of Judge Blattman, the two other judges of TC I scheduled a hearing. At the hearing, it was first attempted to establish whether, given that Judge Blattman was abroad on leave, two judges could investigate the matter at a hearing. The majority of the Chamber decided that the hearing should not continue, and would be postponed until Judge Blattmann returned from his leave, (Prosecutor v. Dyilo, Order for submissions on whether two judges of the Trial Chamber may hold a hearing, 14 February 2008, para. 6).

Crossreference:
Regulations 18 and 54

Doctrine:
Jules Deschênes at p. 616, MN 3 in Otto Triffterer.
John R.W.D. Jones at pp. 263-264 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[512] The Presidency shall constitute permanent Pre-Trial Chambers with fixed compositions (regulation 46).
   
The judges of each Pre-Trial Chamber shall elect from amongst their members a Presiding Judge who shall carry out the functions conferred upon him or her by the Statute, Rules or otherwise,
Regulation 13(2), see for example Situation in the Democratic Republic of Congo Election of the Presiding Judge of the Pre-trial Chamber I, 16 September 2004.
    The functions of the Pre-Trial Chamber shall be carried out either by the full chamber or by a designated single judge. Rule 7(1) states that the designation of a single judge ishall be done "on the basis of objective pre-established criteria" which is set in regulation 47(1).
    The duties and responsibilities of a single judge may in certain situations be linked to the efficiency and fairness of the proceedings. Thus, the judges have not been granted full discretion to decide for which specific tasks a single judge can be designated. According to article 57(2)(a), orders or rulings of the Pre-Trial Chamber issued under articles 15 (review of investigation), 18 (admissibility), 19 (jurisdiction), 54, paragraph 2 (investigative steps without agreement on cooperation), 61, paragraph 7 (confirmation of charges), and 72 (national security information) must be concurred in by a majority of its judges. All questions on which decision by the full Chamber is not expressly provided for in the Statute or the Rules shall be decided by the single judge (article 57(2)(b) and rule 7(2)), see for example prosecutor v. Kony et. al.,
Decision designating a Single Judge on Victim's issues, 22 November 2006.
    The Pre-Trial Chambers shall also, in accordance with
regulation 18, have a duty legal officer.
    In order give the Court additional flexibility and avoid difficulties in administration the present provision may be amended by the Assembly of States Parties at at any time, even before the expiry of the seven year freeze on the Rome Statute (article 122(1).

Crossreference:
Articles 15, 18, 19, 54, paragraph 2, article 57(2), 61, paragraph 7, and 72, Rule 7,
Regulation 18, 46 and 47

Doctrine:
Jules Deschênes at p. 616, MN 3 in Otto Triffterer.
Socorro Flores Liera at pp. 310-312 in
Roy S. Lee, 2001.

Author: Mark Klamberg

[513] There may be parallell Chambers within both the Pre-Trial and Trial Divisions. In addition, considering the practice of the Pre-Trial Division, it is clear that a judge may be a member of two parallell Chambers.
     In order give the Court additional flexibility and avoid difficulties in administration the present provision may be amended by the Assembly of States Parties at at any time, even before the expiry of the seven year freeze on the Rome Statute (article 122(1).

Doctrine:
Jules Deschênes at p. 616, MN 3 in Otto Triffterer.
Socorro Flores Liera at pp. 310-312 in
Roy S. Lee, 2001.

Author: Mark Klamberg

[514] The Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three years. Should a case be proceeding when the formal end of the term is reached, the term of the judges may be extended. This is consistent with article 74(1) which states that "[a]ll the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations". There is no provision equivalent to article 74(1) concerning the pre-trial stage. Even though the situation in Uganda and the proceedings against Kony et. al before PTC II were ongoing, the term of Judge Slade was not extended when he failed to be re-elected.

Doctrine:
Jules Deschênes at p. 3, MN 4 in Otto Triffterer.

Author: Mark Klamberg

[515] The appeal judges sit during their full mandate, i.e. nine years, and their term may not be extended.

Doctrine:
Jules Deschênes at p. 3, MN 4 in Otto Triffterer.

Author: Mark Klamberg

[516] Appeals Chamber Judges do not rotate.
     In order give the Court additional flexibility and avoid difficulties in administration the present provision may be amended by the Assembly of States Parties at at any time, even before the expiry of the seven year freeze on the Rome Statute (article 122(1).

Doctrine:
Jules Deschênes at p. 617, MN 5-6 in Otto Triffterer.

John R.W.D. Jones at p. 264 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[517] A request to be excused applies to situations where the judge himself or herself initiates the procedure, while disqualification, as set out in article 41(2) and rule 34, involves complaints initiated by a third party.
    According to rule 35 a judge, shall make a request to be excused where he or she has reason to believe that a ground for disqualification exists in relation to him or her. Thus, the grounds for excusing a judge includes those set out in article 41(2) and rule 34(1) concerning impartiality. In addition, a reques
to be for excused may cover cover other situations of personal nature, for example ill health or a family tragedy.
    The discretion given to the Precidency to excuse a judge is also afforded to the Presidency in respect of the Prosecutor or Deputy Prosecutor in article 42(6).
    In Katanga and Chui, Decision replacing judges in the Appeals Chamber, 03 July 2009, the Appeals Chamber noted "the request for excusal filed before the Presidency on 24 June 2009 by Judges Akua Kuenyehia and Anita Usacka ("judges"), pursuant to article 41(1) of the Statute and rule 33 of the Rules of Procedure and Evidence ("Rules"),3 wherein the judges requested to be excused from sitting on the appeal on the basis of their previous involvement in the pretrial phase of the case against Mr Germain Katanga (hereinafter "case"), in the course of which the judges inter alia issued a warrant of arrest for Mr Germain Katanga and confirmed the charges against him". As a result the Appeals Chamber decided to temporarily attach Judge Ekaterina Trendafilova, currently assigned to the Pre-Trial Division, and Judge Joyce Aluoch, currently assigned to the Trial Division, to the Appeals Chamber for the purpose of the appeal.

Crossreference:
Article 42(6), rules 33, 34(1) and 35

Doctrine:
Jules Deschênes at p.
625, MN 1 in Otto Triffterer.
Cate Steins pp. 300-301 in Roy S. Lee, 2001.
John R.W.D. Jones at p. 2
48 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.

Author: Mark Klamberg

[518] Impartiality is closely linked to independence. Each case must be tried on its own merits. In comparison with Article 40 which deals with judicial independence, article 41(2) deals with judicial impartiality.
    Rule 34(1) provides a non-exlusive list containing examples of concrete grounds for disqualification. Rule 34(2) expands upon the procedure in cases of disqualification.
   
In prosecutor v. Kony et al., Decision on the Prosecutor's request to Separate the Senior Legal Adviser to the Pre-Trial Division from rendering Legal Advice Regarding the Case, 31 October 2006, PTC II dismissed the Prosecutor's application to separate the senior legal adviser from giving legal advice to the Pre-Trial Division .

Crossreference:
Rule 34

Doctrine:
Jules Deschênes at p
p. 625-626, MN 2-4 in Otto Triffterer.
John R.W.D. Jones at p
p. 247-248 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Cate Steins p. 302 in Roy S. Lee, 2001.
Richard May and Marieke Wierda p. 31.

Author: Mark Klamberg

[519] Subparagraph (b) states who is allowed to request a disqualification of a judge, namely the Prosecutor or the person being investigated or prosecuted.
    Rule 34(2) expands upon the procedure in cases of disqualification.

Doctrine:
Jules Deschênes at p.
626, MN 5 in Otto Triffterer.
John R.W.D. Jones at p. 264 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Richard May and Marieke Wierda p. 31.

Author: Mark Klamberg

[520] The judge concerned is allowed to attend, and participate in, the discussion of his or her problem, but cannot cast a vote when the matter comes up for a decision. In substance the present sub-paragraph is identical to article 40(4).
    Rule 34(2) expands upon the procedure in cases of disqualification.
    In prosecutor v. Kony et al., Decision on the Prosecutor's Application to Separate the Senior Legal Adviser to the Pre-Trial Division from rendering Legal Advice regarding the Case, 27 October 2006, PTC I declared that it lacks jurisdiction to entertain the Prosecutor’s application to separate the senior legal adviser from rendering legal advice.

Doctrine:
Jules Deschênes at p.
626, MN 6 in Otto Triffterer.
John R.W.D. Jones at p. 264 in Antonio Cassese/Paola Gaeta/John R.W.D. Jones.
Richard May and Marieke Wierda p. 31.

Author: Mark Klamberg

[521] Crossreference:
Rules 33 and 35

Author: Mark Klamberg

[522] Crossreference:
Rule 34

Author: Mark Klamberg

[523] Rule 34(2) expands upon the procedure in cases of disqualification and adds the detail that any question relating to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by "a majority of the judges" of the Appeals Chamber.

Doctrine:
Cate Steins pp. 307-308 in Roy S. Lee, 2001.

Author: Mark Klamberg

[524] Rule 34(2) expands upon the procedure in cases of disqualification.

Doctrine:
Cate Steins p. 307 in Roy S. Lee, 2001.

Author: Mark Klamberg

[525] Rule 34(2) expands upon the procedure in cases of disqualification.

Doctrine:
Cate Steins p. 307 in Roy S. Lee, 2001.

Author: Mark Klamberg

[900] In Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, paragraphs 23 and 24, PTC I found that measures such as witness familiarization is not only admissible but mandatory. Moreover, the Chamber found that, according to article 43 (6) of the Statute and Rules 16 and 17 of the Rules, the VWU, in consultation with the party that proposes the relevant witness, is the organ of the Court competent to carry out the practice of witness familiarisation from the moment the witness arrives at the seat of the Court to give oral testimony.
    In Katanga and Chui, Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, 25 April 2008, para. 32 and p. 54, the Pre-Trial Chamber concluded that the practice of the Prosecutor to ''preventively relocate" witnesses who were not included in the Protection Programme was exceeding the mandate of the Prosecutor and decided that the Prosecutor "shall immediately put an end to the practice of preventive relocation of witnesses". The Pre-Trial Chamber reasoned that article 43(6) of the Statute and regulation 96 of the Regulations of the Registry establish a single Protection Programme, which is run by the Registry and in which the roles of the Prosecutor and the defence are limited to the making of applications to the Registrar (Impugned Decision, paragraph 22). The Pre-Trial Chamber noted that there was no provision in the Statute, the Rules of Procedure and Evidence, the Regulations of the Court or the Regulations of the Registry that expressly provides the Prosecutor with the authority to relocate witnesses preventively (paras. 22-23). The Appeals Chamber found in Judgment on the appeal of the Prosecutor against the "Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules" of Pre-Trial Chamber I, 26 November 2008, paras. 93 and 99 that any disagreement between the VWU and the Prosecutor about the relocation of a witness should ultimately be decided by the Chamber dealing with the case - and should not be resolved by the unilateral and un-checked action of the Prosecutor. The Appeals Chamber agreed with the Pre- Trial Chamber that the general mandate of the Prosecutor pursuant to article 68 (1) of the Statute does not extend to the preventive relocation of witnesses. The Appeals Chamber therefore resolves both parts of the question on this appeal (see paragraph 64 above) in the negative: the Prosecutor cannot unilaterally ''preventively relocate" witnesses either before the Registrar has decided whether a particular witness should be relocated or after the Registrar has decided that an individual witness should not be relocated. The Appeals Chamber confirmed with a 3-2 majority the decision of the Pre-Trial Chamber (para. 109).

[901] Crossreference:
Article 21(1)(a)

[902] Crossreference:
Article 21(1)(a)

[903] In situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 45,the Pre-Trial Chamber stated an assessment of admissibility during the article 53(1) stage should in principle be related to a "situation" (admissibility of a situation), and not necessarily a case.

[904] In situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 27, the Pre-Trial Chamber considered that the "reasonable basis to believe" test referred to in article 53(l)(a) of the Statute is the lowest evidentiary standard provided for in the Statute. Thus, the information available to the Prosecutor is neither expected to be "comprehensive" nor "conclusive", if compared to evidence  gathered during the investigation.
    Furthermore, the Chamber considered that according to a contextual and teleological interpretation, the phrase "a crime within the jurisdiction of the Court" would mean that an examination of the necessary jurisdictional prerequisites under the Statute must be undertaken. Thus, the Chamber considered that for a crime to fall within the jurisdiction of the Court, it has to satisfy the following conditions: (i) it must fall within the category of crimes referred to in article 5 and defined in articles 6, 7, and 8 of the Statute (jurisdiction ratione materiae); (ii) it must fulfill the temporal requirements specified under article 11 of the Statute (jurisdiction ratione temporis); and (iii) it must meet one of the two alternative requirements embodied in article 12 of the Statute (jurisdiction ratione loci or ratione personae), paras. 36-39.
    In Situation in the Republic of Côte d'Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, 3 October 2011, para. 23, the Pre-Trial Chamber stated that the test of "reasonable basis to believe" in Article 53(l)(a) "is the lowest evidential standard provided by the Statute. Thus, the information available to the Prosecutor is not expected to be 'comprehensive' or 'conclusive', which contrasts with the position once the evidence has been gathered during the investigation."

[905] This criterion requires that the Prosecutor consider whether any of the grounds for indmissibility of teh case bar, or would bar. the Court from exercising jurisdiction.

Doctrine:
Morten Bergsmo/Pieter Kruger at p. 1070, MN 17-18 in Otto Triffterer 2008.

[906] In situation in Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, para. 63, the Pre-Trial Chamber stated that "[u]nlike sub-paragraphs (a) and (b), which require an affirmative finding, sub-paragraph (c) does not require the Prosecutor to establish that an investigation is actually in the interests of justice. Indeed, the Prosecutor does not have to present reasons or supporting material in this respect."

[910] In situation in Democratic Republic of Congo the Prosecution declared that he  temporarily suspended the investigation of further crimes allegedly committed by Thomas Lubanga Dyilo. In Decision on the requests of the Legal Representative for victims VPRS1 to VPRS 6 regarding "Prosecutor's information on further investigation", PTC I considered that the Prosecutor had not taken any decision under article 53(l)(c) or (2)(c) of the Statute, and it therefore deemed it not necessary, at that time, to exercise its authority under article 57(3)(c).
    In situation in Democratic Republic of Congo, Decision on the request of the legal representative of victims VPRS 3 and VPRS 6 to review an alleged decision of the Prosecutor not to proceed, 25 October 2010, the Prosecutor submitted that to date no decision on "interests of justice" grounds not to proceed against Mr Bemba with respect to crimes allegedly committed in Ituri had been taken. In light of the information available to the Pre-Trial Chamber, it found that there was no decision for the Chamber to review and there was, accordingly, no basis for it to exercise its powers under article 53(3)(b) of the Statute.

[911]  In Mbarushimana, Decision on the confirmation of charges, 16 December 2011, para. 51, the Pre-Trial Chamber waqs concerned "at the technique followed in several instances by some Prosecution investigators, which seems utterly inappropriate when viewed in light of the objective, set out in article 54(l)(a) of the Statute, to establish the truth by 'investigating incriminating and exonerating circumstances equally'." The Chamber stated that it deprecated such "techniques and from highlighting that, as a consequence, the probative value of evidence obtained by these means may be significantly weakened."

[903bis] In Katanga and Chui, Decision Requesting Observations concerning Article 54 (3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material for the Defence's Preparation for the Confirmation Hearing, 2 June 2008, paras. 10-11, the Single Judge found the "considerable number of documents to indicate that the Prosecution is not resorting to article 54(3) (e) of the Statute only in exceptional or limited circumstances, but rather is extensively gathering documents under such provision" and stated that "[t]his practice ... is at the root of the problems that have arisen in the present case, as well as in the case of the Prosecutor v. Thomas Lubanga Dyilo, with regard to the disclosure to the Defence of those materials identified as potentially exculpatory (article 67(2) of the Statute) or otherwise material for the Defence's preparation for the confirmation hearing (rule 77 of the Rules)34 and that have been collected under the conditions of confidentiality set forth in article 54(3)(e) of the Statute.
    In Katanga and Chui, Decision on Article 54(3)(e) Documents Identified as Potentially Exculpatory or Otherwise Material for the Defence’s Preparation for the Confirmation Hearing, 20 June 2008, para. 70, the single judge considered that at the confirmation hearing, the Pre-Trial Chamber: "(i) is not a truth-finder; (ii) has access to a limited selection of the evidence gathered by the Prosecution (i.e., the core evidence); (iii) has no access to any material potentially exculpatory or otherwise material to the Defence, and that is subjec