bluuebunny/crossref_metadata_2025 huggingface dataset:
Prevention and Management of Conflict and Settlement of Disputes
Authors: Parry Emyr Jones
Published: June 2017

This chapter discusses international conflict resolution. Conflict-related issues occupy a spectrum, ranging from its absence (peace); through emerging conflict, actual conflict or war, and ending hostilities; to the challenge of building stable, peaceful societies and States. Inter-State war has diminished since 1945, partly because of the system of international peace preservation put in place, primarily through the United Nations, and perhaps because such conflict is less likely with more democratically elected governments of States participating in the international trade and financial system. But conflict within States remains potent, with armed non-state actors being a frequent characteristic. Thus this chapter presents an overview of conflict prevention and management, covering topics such as negotiations, peacebuilding, mediation, and so on.
Historical Introduction
Authors: William A Schabas
Published: June 2017

This chapter presents a historical introduction to the Rome Statute of the International Criminal Court. International criminal justice first became an issue of consequence at the Paris Peace Conference of 1919. Between the wars, both intergovernmental and professional bodies developed sophisticated proposals for an international criminal court. These efforts, however, stalled with the advent of the Second World War and Cold War, regained traction in the 1990s, and culminated with the adoption of the Rome Statute of the International Criminal Court on July 17, 1998. The Statute entered into force on July 1, 2002. Within a year, the Court was fully operational. In June 2005, its first arrest warrants were issued and, in January 2009, its first trial began.
Part 1 Establishment of the Court: Institution de la Cour, Art.1 The Court/La Cour
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 1 of the Rome Statute of the International Criminal Court. Article 1 is a sixty-word digest of the salient features of the International Criminal Court. It establishes the Court as a permanent institution with the ‘power’ to exercise jurisdiction over the most serious crimes of international concern. It is to be complementary to national criminal jurisdictions. The provision has not been subject to any significant consideration in the case law of the Court. In a sense, it might well have been omitted from the Rome Statute, as it adds little or nothing in terms of legal consequences.
Part 1 Establishment of the Court: Institution de la Cour, Art.3 Seat of the Court/Siège de la Cour
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 3 of the Rome Statute of the International Criminal Court. Article consists of three paragraphs. Article 3(1) establishes The Hague as the seat of the Court. Paragraph (1) is mandatory, and does not allow for the seat of the Court to be located elsewhere, absent an amendment of the Statute. The Statute also specifies that the Netherlands is the ‘host State’. Article 3(2) requires that there be a Headquarters Agreement between the Court and the host State. Article 3(3) states that The Court may sit elsewhere, whenever it considers it desirable, ‘as provided in the Statute’.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.8 War crimes/Crimes de guerre
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 8 of the Rome Statute of the International Criminal Court. Article 8 defines war crimes, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. Much more than a codification of earlier law and practice, the Rome Statute's provisions on war crimes provide a relatively comprehensive codification of war crimes committed in non-international armed conflict. They also recognize new crimes, such as the recruitment of child soldiers and attacks on peacekeepers. However, they also fall short in some important respects, failing to provide adequate criminalization of prohibited weapons, the result of a nuclear impasse.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.8bis Crime of aggression/Crime d’agression
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 8bis of the Rome Statute of the International Criminal Court. Article 8bis defines the crime of aggression, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. The provision is part of a package of amendments adopted at the Kampala Review Conference in 2010. It entered into force in accordance with article 121(5) one year after ratification of the amendments by the first State Party. Liechtenstein was the first State Party to ratify the amendments, on May 8, 2012. Consequently, the amendment entered into force on May 8, 2013. On that date, the amendment was registered by the depository, the Secretary-General of the United Nations. However, exercise of jurisdiction by the Court over article 8bis is subject to article 15bis and article 15ter.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.9 Elements of Crimes/Éléments des crimes
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 9 of the Rome Statute of the International Criminal Court. Article 9(1) explains that the role of the Elements of Crimes is to ‘assist’ the Court in the interpretation and application of articles 6, 7 and 8, which define the crimes over which the Court has subject-matter jurisdiction. Sometimes the Elements merely repeat elements that are obvious enough from a summary reading of the text in the Statute, but in other cases they provide further detail with respect to a provision, occasionally amplifying its apparent scope while on other occasions reducing it. Given the considerable effort devoted to their drafting and the very extensive academic commentary, the Elements of Crimes have made a paltry contribution to the jurisprudence of the International Criminal Court.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.10
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 10 of the Rome Statute of the International Criminal Court. Article 10 is a rare provision in that it has no title to suggest its content. It is not directed at the application and interpretation of the Rome Statute. Rather, it is intended to guide those who invoke the Rome Statute as an authoritative statement of customary international law, or of general international law. It insulates both the conventional and customary legal obligations of States from claims that these are in some way altered by adoption of the Rome Statute. Article 80 of the Statute has a similar purpose, although it is targeted specifically at capital punishment.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.12 Preconditions to the exercise of jurisdiction/Conditions préalables à l’exercice de la compétence
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 12 of the Rome Statute of the International Criminal Court. Article 12 was ‘[p]erhaps the most difficult compromise in the entire negotiations’. At the Rome Conference, there was a range of views on the ‘preconditions’ for jurisdiction, ranging from the narrow proposals of the United States restricting the Court's jurisdiction to nationals of States Parties, to a form of universal jurisdiction by which the Court would be able to prosecute any crime committed anywhere, providing that it could obtain custody over the offender. Article 12 establishes a general rule by which the Court may exercise jurisdiction over crimes committed on the territory of a State Party and, furthermore, over crimes committed by its nationals anywhere. The Court may also exercise jurisdiction if a non-party State has made a declaration pursuant to article 12(3).
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.14 Referral of a situation by a State Party/Renvoi d’une situation par un état partie
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 14 of the Rome Statute of the International Criminal Court. Article 14 is really the completion of article 13(a). Article 13 lists three sources of ‘triggering’ or authorization for exercise of jurisdiction: the Security Council, a State Party, and the propriomotu initiative of the Prosecutor. Article 14 contrasts with the brief text governing Security Council referral found in article 13(b). Arguably, the two processes are similar, and the different formulations of the concept of referral in articles 13(b) and 14 are puzzling. It would have been preferable to use equivalent language and terminology, given the substantive similarities. The differences can be explained by the complex drafting process, and the fact that the two concepts originate in different provisions within the early versions of the Statute.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.15 Prosecutor/Le Procureur
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 15 of the Rome Statute of the International Criminal Court. Article 15 sets out the rules applicable to the exercise of proprio motu (that is, on the Prosecutor's own initiative) triggering of the jurisdiction of the Court. It is closely associated with article 53, dealing with the ‘[i]nitiation of an investigation’. Article 53 confirms that the Prosecutor has the discretion to decide to proceed with an investigation. This issue is partly addressed by article 15 because it contemplates the ‘triggering’ of an investigation by the Prosecutor and the mechanism by which authorization for this is provided by a Pre-Trial Chamber.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.15bis Exercise of jurisdiction over the crime of aggression (State referral, proprio motu )/Exercice de la compétence à l’égard du crime d’agression (Renvoi par un État, de sa propre initiative)
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 15bis of the Rome Statute of the International Criminal Court. Article 15bis along with article 15ter govern the exercise of jurisdiction by the Court with respect to the crime of aggression. They are part of a package of amendments adopted at the Kampala Review Conference in 2010. Article 15bis governs prosecution for the crime of aggression based upon referral by a State Party or at the initiative proprio motu of the Prosecutor. Its counterpart, article 15ter, deals with referral of a situation involving the crime of aggression by the Security Council. Although article 15bis precedes article 15ter within the architecture of the Rome Statute, in reality the process operates in the opposite order. That is because action under article 15bis is dependent on either action or inaction by the Security Council. If the Security Council determines that an act of aggression has taken place, then either a State Party or the Prosecutor may initiate an investigation.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.16 Deferral of investigation or prosecution/Sursis à enquêter ou à poursuivre
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 16 of the Rome Statute of the International Criminal Court. Article 16 addresses the tension that may exist between the Court and the Security Council, where the latter is of the view that a prosecution should not proceed. The Security Council can also refer a situation to the Court, but the Prosecutor is under no obligation to proceed. Finally, the relationship between the Court and the Security Council may arise should the Court be empowered to exercise jurisdiction over the crime of aggression. As the travaux préparatoires indicate, the relationship between the Court and the Security Council was extremely contentious. Article 16 represents a compromise but one with which many States were not pleased. Moreover, international human rights non-governmental organizations opposed article 16, viewing it as an unacceptable encroachment upon the independence of the Court.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.17 Issues of admissibility/Questions relatives à la recevabilité
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 17 of the Rome Statute of the International Criminal Court. Article 17 sets out the mechanism for ensuring that the Court is indeed complementary to national justice systems. It was carefully negotiated to ensure that States Parties would enjoy a level of confidence that their sovereign right to try crimes committed on their territory would not be encroached upon by the Court. Article 17 imposes three tests for admissibility: ‘complementarity’, double jeopardy (ne bis in idem), and gravity. The Court may not proceed with a case when the concerned States are investigating or prosecuting in good faith.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.18 Preliminary rulings regarding admissibility/Décision préliminaire sur la recevabilité
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 18 of the Rome Statute of the International Criminal Court. Article 18 applies when a situation has been referred to the Court by a State Party and the Prosecutor has deemed that there is reasonable basis to commence an investigation. The Prosecutor is required to notify both States Parties and ‘those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned’. Within one month of receiving 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 relating 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.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.25 Individual criminal responsibility/Responsabilité pénale individuelle
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 25 of the Rome Statute of the International Criminal Court. Article 25 distinguishes various forms of criminal participation. Like much of the Rome Statute, it was a negotiated compromise crafted by jurists from different legal traditions. Concepts and words in one system did not necessarily have the same connotations as they did in others. Judge Van den Wyngaert has described article 25 as being ‘based upon an eclectic combination of sources from several national legal traditions’, adding that ‘such multi-faceted origins comes as no surprise, considering the States Parties' obvious wish to find a compromise between different legal traditions’.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.26 Exclusion of jurisdiction over persons under 18/Incompétence à l’égard des personnes de moins de 18 ans
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 26 of the Rome Statute of the International Criminal Court. Article 26 declares that the Court has no jurisdiction over a person under the age of eighteen at the time of the infraction. However, a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia confirmed that article 26 of the Rome Statute is ‘for jurisdictional purposes’. It also held that there is no rule in convention or customary international law against criminal liability for a war crime committed by an individual below the age of eighteen. Juveniles may be prosecuted for international crimes, just as they may be prosecuted for ordinary crimes, subject to national legislation governing the minimum age of responsibility and the applicable norms of international human rights law.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.28 Responsibility of commanders and other superiors/Responsabilité des chefs militaires et autres supérieurs hiérarchiques
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 28 of the Rome Statute of the International Criminal Court. Article 28 consists of two paragraphs; the first addressing superior responsibility in a military context, the second dealing with the issue with respect to civilians. Unlike the superior responsibility liability that attaches to military commanders, which was well accepted, application of the concept to civilians proved to be very controversial. Some Trial Chambers at the ad hoc tribunals have referred to article 28 as a basis for the view that the ‘distinction between military commanders and other superiors embodied in the Rome Statute is an instructive one’, although this is a rather isolated opinion. Nevertheless, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has acknowledged that whether the liability of civilian superiors ‘contains identical elements to that of military commanders is not clear in customary law’.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.33 Superior orders and prescription of law/Ordre hiérarchique et ordre de la loi
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 33 of the Rome Statute of the International Criminal Court. Prior to the adoption of article 33 of the Rome Statute, those who established international criminal tribunals contented themselves with a blanket prohibition on the defence of superior orders. However, article 33 declared that superior orders is a defence when three conditions are met: the accused must be under a legal obligation to obey orders of a government or superior; the accused must not know that the order was unlawful; and the order must not be manifestly unlawful. To date, the defence of superior orders appears to have been invoked in proceedings at the International Criminal Court only once, in a case involving charges under article 70 relating to the administration of justice and not to one of the core crimes listed in article 5 of the Statute.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.36 Qualifications, nomination, and election of judges/Qualifications, candidature et élection des juges
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 36 of the Rome Statute of the International Criminal Court. Article 36 provides an elaborate list of criteria for selection of judges, aimed at ensuring competence in criminal trial procedure and public international law as well as geographic and gender balance. The Assembly of States Parties has devised a complicated election process in order to ensure that these goals are actually achieved. Specifically, the article sets out the number of judges, the basic qualifications of judges, election procedure, and terms of office. It is also one of the longest provisions in the Rome Statute, comprising ten paragraphs, some of them quite detailed, and more than 1,100 words.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.37 Judicial vacancies/Sièges vacants
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 37 of the Rome Statute of the International Criminal Court. Article 37 consists of two paragraphs, the first concerning the election of a replacement judge in the event of a vacancy, and the second dealing with the term of office of the new judge. A vacancy may be created by death or incapacitation of a judge, by resignation, or by removal pursuant to article 46 of the Statute. It may also occur when a judge has actually been elected but withdraws prior to taking the oath of office. The term of a replacement judge is the remainder of the predecessor's term. It begins on the date of election.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.39 Chambers/Les chambres
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 39 of the Rome Statute of the International Criminal Court. Article 39 sets out the organization and functions of Chambers. The Court is required to ‘organize itself’ into the Appeals Division, Trial Division, and Pre-Trial Division, as set out in article 34(b) of the Statute. In each of the three Divisions, the judicial functions of the Court are carried out by Chambers. The Statute gives judges the authority to organize the composition of the Chambers, which has proven difficult because judges are required to agree upon matters in which they may have strong personal interests. The composition of the Appeals Chamber, widely perceived as being the most prestigious, has sometimes sharply divided the judges. The provisions of article 39 are themselves ambiguous enough to allow for conflicting interpretations.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.40 Independence of the judges/Indépendance des juges
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 40 of the Rome Statute of the International Criminal Court. Article 40 imposes norms aimed at ensuring that judges are not exposed to conflicting obligations or loyalties. The article declares that ‘judges shall be independent in the performance of their functions’. Independence is secured through other provisions of the Statute, including articles 36, 41, 46, 47, and 49. Judges are prohibited from engaging in activities ‘likely to interfere with their judicial functions or to affect confidence in their independence’. Judges who are required to serve full-time at the Court are not to ‘engage in any other occupation of a professional nature’. Disputes concerning activities of judges outside the Court are to be decided by an absolute majority of the judges.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.41 Excusing and disqualification of judges/Décharge et récusation des juges
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 41 of the Rome Statute of the International Criminal Court. Article 41 provides the mechanism to ensure the protection of judicial independence and impartiality that is affirmed in article 40. It distinguishes between ‘excusing’, which refers to a request by the judge to the Presidency, and ‘disqualification’, which describes an application by the Prosecutor or the accused person. The Presidency is without authority to raise issues of impartiality proprio motu, given that‘[n]either the Statute nor the Rules of Procedure and Evidence make provision for the pre-emptive control by the Presidency of the impartiality of the judges’.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.44 Staff/Le personnel
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 44 of the Rome Statute of the International Criminal Court. Article 44 is the basic text governing the appointment of qualified staff which make up the bulk of the employees of the Court. Earlier international criminal tribunals never bothered with such a provision. Most of its ‘norms’ merely stated the obvious. Nevertheless, article 44 addresses some contentious issues, notably the status of gratis personnel. Judges, the Prosecutor, the Deputy Prosecutors, the Registrar, and the Deputy Registrar are not contemplated by this provision, and are not considered ‘staff’ for the purposes of the Rome Statute.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.45 Solemn undertaking/Engagement solennel
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 45 of the Rome Statute of the International Criminal Court. Article 45 imposes a duty to make a solemn undertaking on all of the judges and senior officers of the Court. They are to exercise their functions ‘impartially and conscientiously’. The Rules of Procedure and Evidence make the declaration more elaborate (‘honourably, faithfully, impartially, and conscientiously’), and they also add a duty to respect the confidentiality of investigations and prosecutions. The Rules distinguish between the declaration to be make by the judges and that of the Court's senior officers, the former being required to respect the secrecy of deliberations.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.46 Removal from office/Perte de fonctions
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 46 of the Rome Statute of the International Criminal Court. Article 46 deals with the removal from office of elected officials of the Court, that is, the judges, the Prosecutor and Registrar, and the Deputy Prosecutors and Deputy Registrar. There are two grounds for removal from office. An official may be removed from office where he or she 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 if he or she ‘is unable to exercise the functions required by this Statute’.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.47 Disciplinary measures/Sanctions disciplinaires
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 47 of the Rome Statute of the International Criminal Court. Article 47 sets out the disciplinary measures for elected officials of the Court, that is, judges, the Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who have committed misconduct of a less serious nature than that set out in article 46. Disciplinary measures that may be imposed consist of a reprimand or a pecuniary sanction, not to exceed six months of the salary of the person concerned. The procedural guarantees governing removal to office, pursuant to article 46 of the Statute, are also applicable in the case of disciplinary proceedings.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.49 Salaries, allowances, and expenses/Traitements, indemnités et remboursement de frais
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 49 of the Rome Statute of the International Criminal Court. Article 49 establishes two principles: remuneration is set by the Assembly of States Parties; it may not be reduced during the term of office. It is intimately connected to issues of independence and impartiality. Secure salaries and other forms of remuneration are important for the judges and other officials of the Court, as they have been in national justice systems. With respect to the judge, the relevant related provisions in the Rome Statute are article 35, which requires all judges to be able to serve as full-time members of the Court, and article 40, providing that full-time judges ‘shall not engage in any other occupation of a professional nature’ and excluding all judges from engaging in any activity ‘which is likely to interfere with their judicial functions or to affect confidence in their independence’.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.50 Official and working languages/Langues officielles et langues de travail
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 50 of the Rome Statute of the International Criminal Court. Article 50 sets out the official and working languages of the Court. The ‘official languages’ of the Court are Arabic, Chinese, English, French, Russian, and Spanish. The ‘working’ languages of the Court are English and French. In practice, it seems that the Court works largely in English. The Presidency may authorize one of the other four official languages to be used as a working language when the language is understood and spoken by the majority of those involved in a case before the Court and if any of the participants in the proceedings so requests, and more generally whenever the Prosecutor and the defence so request.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.51 Rules of Procedure and Evidence/Règlement de procédure et de preuve
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 51 of the Rome Statute of the International Criminal Court. Article 51 sets out the Rules of Procedure and Evidence, which have been described as ‘an instrument for the application of the Rome Statute’. They contain more than 225 distinct provisions, many of which are comprised of several paragraphs. The Rules of Procedure and Evidence provide for an intermediate level of legal norms, sitting between the Rome Statute itself and the policies and procedures adopted by the judges. It provides the Assembly of States Parties, which adopts the Rules of Procedure and Evidence, with a flexible mechanism, one that can be amended quickly and efficiently. The Rules of Procedure and Evidence sit at the same level of applicable law as the Elements of Crimes. The former are essentially procedural, the latter substantive.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.52 Regulations of the Court/Règlement de la cour
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 52 of the Rome Statute of the International Criminal Court. Article 52 provides for an additional instrument aimed at governing the ‘routine functioning’ of the Court. Unlike the Rules of Procedure and Evidence, the authority for their adoption is entrusted to the judges of the Court, subject to the power of the Assembly of States Parties to revoke them. There are 126 separate regulations in the Regulations of the Court, grouped in nine chapters: General Provisions; Composition and Administration of the Court; Proceedings before the Court; Counsel Issues and Legal Assistance; Victims Participation and Reparations; Detention Matters; Cooperation and Enforcement; Removal from Office and Disciplinary Measures; and Adoption of the Code of Judicial Ethics.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.53 Initiation of an investigation/Ouverture d’une enquête
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 53 of the Rome Statute of the International Criminal Court. Article 53 takes effect once a ‘situation’ has been triggered, whether it be the result of a Security Council referral, a State Party referral, or exercise of the proprio motu authority of the Prosecutor. It requires the Prosecutor to initiate an investigation, unless he determines that there is no ‘reasonable basis’ to proceed. It sits at the junction between prosecutorial discretion and judicial review, governing, but in only a partial manner, the selection of cases before the Court by the Prosecutor. Article 53 is closely related to article 15. Together, these two provisions define the exercise of discretion by the Prosecutor. They are the key to his independent role in the selection of situations for prosecution by the International Criminal Court.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.54 Duties and powers of the Prosecutor with respect to investigations/Devoirs et pouvoirs du procureur en matière d’enquêtes
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 54 of the Rome Statute of the International Criminal Court. Article 54 sets out the powers and duties of the Prosecutor with respect to investigations. Article 54 is an effort to strike the balance, to ‘build a bridge between the adversarial common law approach to the role of the Prosecutor and the role of the investigating judge in certain civil law systems’. Paragraph 1 sets out the ‘duties’ of the Prosecutor, whereas paragraphs 2 and 3 discuss the ‘powers’. Although the ‘powers’ refer specifically to the investigative phase, the nature of the duties suggests that they apply to the work of the Prosecutor overall, whatever the stage of proceedings.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.55 Rights of persons during an investigation/Droits des personnes dans le cadre d’une enquête
Authors: William A Schabas
Published: June 2017

This chapter comments on Article of 55 the Rome Statute of the International Criminal Court. Article 55 sets out the rights of persons during an investigation. It consists of two paragraphs, the first of general application to all persons ‘[i]n respect of an investigation; the second applicable to a suspect when that person is about to be questioned, either by the Prosecutor or by national authorities acting on behalf of the Court’. The words ‘[i]n respect of an investigation under this Statute’ are understood as encompassing ‘any investigative steps that are taken either by the Prosecutor or by national authorities at his or her behest. Conversely, an investigation conducted by an entity other than the Prosecutor, and which is not related to proceedings before the Court, does not trigger the rights under article 55 of the Statute’.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.57 Functions and powers of the Pre-Trial Chamber/Fonctions et pouvoirs de la chambre préliminaire
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 57 of the Rome Statute of the International Criminal Court. Article 57 sets out the functions and powers of the Pre-Trial Chamber. Article 39 of the Rome Statute established the existence of the Pre-Trial Chamber. It required the creation of a Pre-Trial Division of not less than six judges, and was to be composed predominantly of judges with criminal trial experience. The Pre-Trial Chamber is ‘responsible for any matter, request or information arising out of the situation assigned to it’, subject to the authority of the President of the Pre-Trial Division to assign a matter, request, or information to another Pre-Trial Chamber ‘in the interests of the administration of justice’.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.58 Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear/Délivrance par la chambre préliminaire d’un mandat d’arrêt ou d’une citation à comparaître
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 58 of the Rome Statute of the International Criminal Court. Article 58 sets out the accusatory instrument by which an individual ‘suspect’ is put in jeopardy by formal prosecution proceedings. It is subject to the judicial control of the Pre-Trial Chamber. Article 58 has both a substantive and a procedural dimension. The former involves determination by the Pre-Trial Chamber that there are ‘reasonable grounds’ to believe that a suspect has committed a crime within the jurisdiction of the Court. The latter involves determining whether arrest of the suspect is necessary in order actually to exercise jurisdiction, or whether the person concerned will appear voluntarily before the Court.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.60 Initial proceedings before the Court/Procédure initiale devant la cour
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 60 of the Rome Statute of the International Criminal Court. Article 60 governs the initial appearance of the suspect before the Court. It mainly concerns the issue of interim release once the suspect is in the Court's custody. The title of article 60, ‘Initial proceedings before the Court’, is only partially accurate because a great deal of judicial activity occurs between the issuance of an arrest warrant or a summons to appear, governed by article 58, the arrest in the custodial State pursuant to article 59, and the confirmation hearing held in accordance with article 61. This process typically takes about a year. With some exceptions, the suspect will spend this period in the Court's Detention Unit in The Hague.
Part 6 The Trial: Le Procès, Art.65 Proceedings on an admission of guilt/Procédure en cas d’aveu de culpabilité
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 65 of the Rome Statute of the International Criminal Court. Article 65 deals with proceedings where the accused makes an admission of guilt pursuant to article 64, paragraph 8 (a). Upon the admission of guilt, the Trial Chamber has three options: it may convict the accused on the basis of the admission of guilt and any additional evidence presented; it may order the trial to continue under the ordinary procedure, disregarding the admission of guilt, with the further option of remitting the case to another Trial Chamber; or it may request the presentation of additional evidence, including witness testimony.
Part 6 The Trial: Le Procès, Art.66 Presumption of innocence/Présomption d’innocence
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 66 of the Rome Statute of the International Criminal Court. The presumption of innocence is enshrined in article 11(1) of the Universal Declaration of Human Rights and echoed in the universal and regional human rights conventions. It provides a cornerstone for the fairness of the trial in a substantive as well as a procedural sense. Article 66 declares that everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. The burden is on the Prosecutor to prove the guilt of the accused. The Court must be convinced of the guilt of the accused beyond reasonable doubt in order to convict the accused.
Part 6 The Trial: Le Procès, Art.69 Evidence/Preuve
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 69 of the Rome Statute of the International Criminal Court. Article 69 deals with specific evidentiary issues but lacks a general provision like the one in the Nuremberg Charter. This is addressed in article 64, stating that the Trial Chamber has the power to rule on the admissibility or reliability of evidence. According to a Trial Chamber, ‘the drafters of the Statute framework have clearly and deliberately avoided proscribing certain categories or types of evidence, a step which would have limited — at the outset — the ability of the Chamber to assess evidence “freely”’. Chambers enjoy ‘a significant degree of discretion in considering all types of evidence’. Another judge has said that article 69 provides for ‘the principle of free assessment of evidence. Hence, it is up to the competent Chamber to decide on the probative value of any piece of evidence introduced for the purpose of the confirmation hearing or the trial’.
Part 6 The Trial: Le Procès, Art.70 Offences against the administration of justice/Atteintes à l’administration de la justice
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 70 of the Rome Statute of the International Criminal Court. Article 70 deals with acts punishable by the Court as offences against the administration of justice. These acts may be divided into three categories: those involving perjury or false testimony; obstruction of the activities of the Court; and solicitation of bribes. 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 maximum penalty for article 70 offences is five years imprisonment; a fine is an alternative as well as the possibility of both being imposed. Fines may be set for each individual offence or count, but cannot exceed in total 50 per cent of the convicted person's assets, ‘after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants’.
Part 6 The Trial: Le Procès, Art.71 Sanctions for misconduct before the Court/Sanctions en cas d’inconduite à l’audience
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 71 of the Rome Statute of the International Criminal Court. Article 71 deals with issues of misconduct or ‘contempt of court’. The Court may sanction persons present before it who commit misconduct, including disruption of its proceedings or deliberate refusal to comply with its directions. The available sanctions range from ordering a person to leave or be removed from the Court, to an interdiction of attendance at the proceedings, imposition of a fine and, in the case of an official of the Court, defence counsel, or a legal representative of victims, an interdiction from exercising the person's functions before the Court.
Part 6 The Trial: Le Procès, Art.74 Requirements for the decision/Conditions requises pour la décision
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 74 of the Rome Statute of the International Criminal Court. Article 74 deals with several aspects of the trial itself. It requires members of the Trial Chamber to be present at all stages of the trial, but also allows for alternates to be designated. It indicates that the decision be adopted by a majority, and that the deliberations remain secret. The decision must contain a full and reasoned statement. This is far more specificity than any other international criminal tribunal has required. The Charter of the International Military Tribunal said that the judges must ‘give the reasons on which it is based’. Nowhere did it specify whether the deliberations should be in secret, or whether the decision should be by majority or unanimity, or whether there should be dissenting opinions, yet the judges did essentially what is provided for in article 74 of the Rome Statute.
Part 6 The Trial: Le Procès, Art.76 Sentencing/Prononcé de la peine
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 76 of the Rome Statute of the International Criminal Court. Article 76 governs the imposition of sentence in the event of a conviction. If the accused is convicted, the Trial Chamber is required to establish the ‘appropriate sentence’. In so doing, the Statute instructs it to consider the evidence presented and submissions made during the trial that are relevant to the sentence. Mitigating and aggravating factors relating to the commission of the crime itself, such as the individual role of the offender and of the treatment of the victims, will form part of the evidence germane to guilt or innocence and thus appear as part of the record of the trial.
Part 7 Penalties: Les Peines, Art.77 Applicable penalties/Peines applicables
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 77 of the Rome Statute of the International Criminal Court. Article 77 sets out the penalties the Court may impose on a person convicted of a crime. These include imprisonment for a specified number of years, which may not exceed a maximum of 30 years; a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person; a fine under the criteria provided for in the Rules of Procedure and Evidence; and a forfeiture of proceeds, property, and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
Part 7 Penalties: Les Peines, Art.78 Determination of the sentence/Fixation de la peine
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 78 of the Rome Statute of the International Criminal Court. Article 78 concerns determination of the sentence and addresses three issues: mitigating and aggravating factors, the treatment of time served in detention prior to sentencing, and the imposition of sentences in the case of conviction for more than one offence. Article 78 is to be read in conjunction with detailed provisions in the Rules of Procedure and Evidence. Paragraph 2 governs the calculation of the sentence, allowing for the deduction of time served in detention ‘in accordance with an order of the Court’. Finally, paragraph 3 imposes limits on the length of a custodial sentence.
Part 8 Appeal and Revision: Appel et Révision, Art.82 Appeal against other decisions/Appel d’autres décisions
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 82 of the Rome Statute of the International Criminal Court. Article 82 deals with appeal against ‘other decisions’, which is often referred to as ‘interlocutory appeal’. It sets out the applicable rules and principles governing the appeal of decisions that do not involve acquittal, conviction, and sentence — a matter governed by article 81 of the Statute. Article 82 distinguishes two categories of appeal, one that exists of right and does not require leave of the Court, and the other requiring leave of the Court. There are three types of decision that are subject to appeal by any party, without any preliminary authorization from the Court: those concerning jurisdiction or admissibility; those granting or denying release of the person being investigated or prosecuted; and a decision of the Pre-Trial Chamber to act on its own initiative in order to preserve evidence during an investigation.
Part 8 Appeal and Revision: Appel et Révision, Art.84 Revision of conviction or sentence/Révision d’une décision sur la culpabilité ou la peine
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 84 of the Rome Statute of the International Criminal Court. Article 84 governs the revision of a conviction of sentence. Revision is distinct from appeal. It is not based upon any challenge to the trial judgment. Rather, it attempts to review or quash a decision based upon new facts that were not considered at trial, or because one of the judges ought not to have participated in the proceedings. The ad hoc tribunals call this ‘review’. Revision can only be sought with respect to a conviction. It is not available to the Prosecutor in order to challenge an acquittal.