bluuebunny/crossref_metadata_2025 huggingface dataset:
The UN Convention against Transnational Organised Crime 2000
Authors: Boister Neil
Published: June 2017

Adopted in 2000 in Palermo, the UN Convention Against Transnational Organised Crime (UNTOC) has been neglected after an initial burst of academic interest. It requires states parties to promise to alter their law to enact a new range of offences as well as a range of procedural measures in order to suppress transnational organised crime (TOC). This chapter shows that, because of the inability to agree on a concept of TOC, the UNTOC is based on the concepts of commission of serious crime transnationally by organised criminal groups. These concepts play a role in the definitions of the UNTOC's four specific offences and as conditions for cooperation. The chapter concludes that the UNTOC is a flexible instrument that can be used against emerging criminal activity but this flexibility is also considered a weakness because it cannot be used to compel states parties to criminalize activities commonly associated with TOC.
The UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons 2000
Authors: Heintze Hans-Joachim , Lülf Charlotte
Published: June 2017

As ‘modern day slavery’ and one of the many forms of transnational crime, human trafficking demands an international response. The necessity of countering human trafficking comprehensively becomes apparent when looking at crimes committed, the numbers of people trafficked, and the billions criminal networks make by exploiting the vulnerable. As the pertinent legal instrument at the international level the UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons can be considered the legal foundation and impetus for regional and national anti-trafficking legislation and implementing measures. This chapter analyses the UN Protocol and its regulations in detail and critically reflects on its implementation.
The United Nations Convention against Corruption and its Criminal Law Provisions
Authors: Kubiciel Michael , Rink Anna Cornelia
Published: June 2017

The United Nations Convention against Corruption (UNCAC) from 2003 marks the peak of a broad international development in the fight against corruption, which started in the early 1990s. In recent years, it has been signed and ratified by an overwhelming majority of states. Although the UNCAC is not just a criminal law convention, but encompasses a multitude of rules on prevention, asset recovery, and international cooperation, it also includes a comprehensive arsenal of criminal law provisions. This chapter explores the origin of the UNCAC as a whole and the background and scope of all its criminal law provisions, both mandatory and discretionary.
Transnational Organised Crime and the Illegal Trade in Endangered Species of Wild Fauna and Flora
Authors: Strydom Hennie
Published: June 2017

The involvement of international crime syndicates in the illegal trade in wild fauna and flora has taken on alarming proportions and presents a major law enforcement challenge for the international community. The message is that the states of the world are confronted with an increasing, complex, and difficult situation in successfully combating wildlife crime in many regions of the world, more so since transnational criminal operations pose a serious threat to the security, political stability, and economy of many countries, especially in the developing world. This chapter highlights the scope of the problem and investigates the enforcement potential and related issues associated with the implementation of the 1973 Convention on Illegal Trade in Endangered Species of Wild Fauna and Flora (CITES). In addition other relevant international and regional agreements for the combating of wildlife crime are dealt with.
Special Missions
Authors: Fox Hazel , Foakes Joanne
Published: June 2017

This chapter briefly looks into special missions. A ‘special mission’ is defined as a ‘temporary mission, representing the State, which is sent by one State to another State with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task’. The cost of maintaining permanent missions abroad and speed of travel has thence made special missions essential to the discussion and resolution of issues and protection of states’ interests in others’ capitals. This has resulted in the adoption of the New York Convention on Special Missions in 1969, which entered into force in 1985. The scale of facilities, privileges and immunities provided for in the Convention (Articles 22 to 49), provided in relation to permanent diplomatic missions by the VCDR, are discussed further in this chapter.
Theory and Practice of Multilateral Diplomacy
Authors: Parry Emyr Jones
Published: June 2017

This chapter considers the theory and practice of multilateral diplomacy. The multilateral approach to diplomacy became increasingly common post-1945. It was partly a generic consequence of the modern state system, and partly a response to the challenges of the post-war period when the Bretton Woods institutions and the United Nations were finding their place. This approach also became increasingly common as regional/global efforts grew to address issues which concerned many countries, and were not confined to the territory of one State. The realization that comprehensive solutions to certain challenges for a State could not be met by that State acting alone, but required cooperative action by several States, fuelled the need for multilateral approaches. Indeed the responses required cooperative action by many. Paradoxically this evolution of cooperative action was firmly anchored on the territorial integrity and the equality of States, while nevertheless helping to facilitate peaceful change.
Treaties and other International Instruments—IV Ratification, Accession, Acceptance and Approval, Treaty Succession
Authors: Berman Frank , Bentley David
Published: June 2017

This chapter concerns the expressions of consent made by parties to be bound by a treaty. This consent may be expressed by various means. The treaty itself may provide that it is to enter into force upon signature. In exceptional cases, the initialling of a text may also express the consent of the States concerned to be bound by it. Alternatively, the formal signature of the treaty may simply be postponed until the States concerned are all in a position to commit themselves. The very great majority of multilateral treaties, and a significant proportion of bilateral treaties are, however, nowadays concluded subject to ratification or some other process of subsequent confirmation, and it is to these processes that the chapter turns—ratification, accession, acceptance and approval, and treaty succession.
Treaties and other International Instruments—V Interpretation, Reservations, Termination, The Effect of War, Ius Cogens
Authors: Berman Frank , Bentley David
Published: June 2017

This chapter is devoted to certain miscellaneous aspects of the law of treaties. Treaty interpretation is the daily fare of international activity, and is also of considerable importance at the national level. In addition, the chapter shows how it is important to grasp what reservations are (and what they are not), and what effect they might have—these being difficult and delicate questions that arise both when a treaty is under negotiation and after its conclusion. Similarly, claims by States to terminate their treaty obligations are a frequent source of international friction. The same goes for claims that a treaty, or part of it, should be regarded as void, because it conflicts with a fundamental rule of international law (ius cogens). Finally, the effect of armed conflict on treaty rights and obligations may have immediate consequences for diplomats.
Advice To Diplomats
Authors: Roberts Ivor , Parry Emyr Jones
Published: June 2017

This chapter offers some practical advice for diplomats, especially in taking advantage of the society and technology available to them in modern times. It lays out the ideal characteristics that a diplomat ought to embody in order to carry out their tasks efficiently and with respect to the institutions that they are working with. In this vein, the chapter elaborates on a classic statement on the ideal diplomat—‘the Nicolson test’. Hereafter the chapter proffers more specific advice for engaging the advantages and challenges of modern diplomacy. It looks into such topics as multilateral diplomacy, the problems of protocol and precedence, conduct in public occasions, and internal differences.
Part 1 Establishment of the Court: Institution de la Cour, Art.2 Relationship of the Court with the United Nations/Lien de la Cour avec les Nations Unies
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 2 of the Rome Statute of the International Criminal Court, which sets out the general principle of the Negotiated Relationship Agreement between the Court and the United Nations. Article 2 is itself essentially exhortatory. While it declares that the two bodies ‘shall’ enter into an agreement, it should be obvious that one organization cannot oblige another to a meeting of minds. Nor does the provision in the Statute specify the content of the Agreement, except that it shall provide for a ‘relationship’ between the organizations. Despite the word ‘shall’, article 2 does not seem to be essential for the operation of the Court nor was the existence of an Agreement with the United Nations necessary for the entry into force of the Rome Statute. The Agreement was only finalized and entered into force in late 2004, more than two years after the Court had begun to operate.
Part 1 Establishment of the Court: Institution de la Cour, Art.4 Legal status and powers of the Court/Régime et pouvoirs juridiques de la Cour
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 4 of the Rome Statute of the International Criminal Court. Article 4 is described as ‘an umbrella provision upon which agreement had been reached, establishing in generic terms the international legal personality of the Court and such functional legal capacity as might be necessary’. Consisting of two paragraphs, the article declares that the Court has ‘international legal personality’, and that the Court may exercise its functions and powers on the territory of any State Party, but only of course to the extent that these are authorized by the Statute itself.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.5 Crimes within the jurisdiction of the Court/Crimes relevant de la compétence de la Cour
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 5 of the Rome Statute of the International Criminal Court. Article 5 sets out the subject-matter jurisdiction of the Court. It declares that the jurisdiction is limited to ‘the most serious crimes of concern to the international community as a whole’. It lists the four crimes over which the Court has subject-matter jurisdiction: (i) the crime of genocide; (ii) crimes against humanity; (iii) war crimes; and (iv) the crime of aggression. The chapter argues that the function of Article 5 seems largely symbolic, a consequence of the drafting history. At its beginnings, when it was article 22 of the International Law Association 1993 draft, article 5 was described as the ‘core’ or the ‘heart’ of the Court's jurisdiction ratione materiae, providing an enumeration of crimes whose detailed description was to be left to treaties, customary law, and judicial interpretation. But the Preparatory Committee insisted upon precise definitions, and as the texts emerged — they became articles 6, 7, and 8 of the Statute — the function of article 5 became increasingly redundant.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.6 Genocide/Crime de génocide
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 6 of the Rome Statute of the International Criminal Court. Article 6 defines the crime of genocide, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. The first important ruling on genocide by one of the ad hoc tribunals — the September 2, 1998 judgment of a Trial Chamber of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu — was issued several weeks after the adoption of the Rome Statute. Since then there have been several important judicial pronouncements by the Appeals Chambers of the ad hoc tribunals addressing a range of issues relevant to the interpretation of article 6 as well as two judgments of the International Court of Justice. The Court has indicated that the definition of genocide in article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (and therefore article 6 of the Rome Statute) reflects customary law.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.7 Crimes against humanity/Crimes contre l’humanité
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 7 of the Rome Statute of the International Criminal Court. Article 7 defines crimes against humanity, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. The classic definitions of crimes against humanity, in such instruments as the Charter of the Nuremberg Tribunal, are vague and open-ended, leaving courts to interpret the scope of such expressions as ‘persecution’ and ‘inhumane acts’. Out of concern with the uncertain parameters of the crime, the drafters of the Rome Statute included extra language designed to restrain efforts at generous or liberal interpretation. The five distinct ‘contextual elements’ of crimes against humanity are: (i) an attack directed against any civilian population; (ii) a State or organizational policy; (iii) an attack of a widespread or systematic nature; (iv) a nexus between the individual act and the attack; and (v) knowledge of the attack.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.13 Exercise of jurisdiction/Exercice de la compétence
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 13 of the Rome Statute of the International Criminal Court. Article 13 is the first of three provisions in the Rome Statute on the ‘triggering’ of the jurisdiction. Once it is established that the Court has jurisdiction, a ‘situation’ must be triggered by one of the three mechanisms set out in article 13. The law applicable to referral by a State Party, which is authorized by article 13(a), is thoroughly addressed in article 14 of the Rome Statute. Similarly, the law concerning proprio motu initiation of proceedings by the Prosecutor is dealt with in article 15. As a result, the present analysis focuses on article 13(b), which establishes the authority of the United Nations Security Council to refer a ‘situation’ to the Court.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.15ter Exercise of jurisdiction over the crime of aggression (Security Council referral)/Exercice de la compétence à l’égard du crime d’agression (Renvoi par le Conseil de sécurité)
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 15ter of the Rome Statute of the International Criminal Court. Article 15ter is part of a package of amendments adopted at the Kampala Review Conference in 2010. Under article 13(b), the Security Council may trigger the jurisdiction of the Court with respect ‘over the crime of aggression’. Article 13(b) entitles the Security Council to trigger the Court's jurisdiction, pursuant to Chapter VII of the Charter of the United Nations. Article 15ter(1) makes clear that the Security Council may only trigger jurisdiction over the crime of aggression in accordance with the provisions of article 15ter. Essentially, this is about the temporal limits of the exercise of jurisdiction over the crime of aggression.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.19 Challenges to the jurisdiction of the Court or the admissibility of a case/Contestation de la compétence de la Cour ou de la recevabilité d’une affaire
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 19 of the Rome Statute of the International Criminal Court. The purpose of Article 19 ‘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’. The provision ‘regulates the context within which challenges to jurisdiction and admissibility may be raised by a party having an interest in the matter’. In contrast with article 18 of the Statute, where admissibility of a ‘situation’ is contemplated, article 19 only applies once a ‘case’ has been identified.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.20 Ne bis in idem
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 20 of the Rome Statute of the International Criminal Court. The concept of ne bis in idem has been varoiusly described by such cognate terms such as ‘double jeopardy’, res judicata, and issue estoppel. In the Rome Statute, the principle one of the three components of the admissibility determination, the other two being complementarity and gravity. Article 20 addresses three types of situations: (i) where a person has been tried and either convicted or acquitted by the Court and who is subsequently put on trial again before the Court; (ii) where a person has been tried and either convicted or acquitted by the Court and who is subsequently put on trial again before another court; and (iii) where a person has been tried and either convicted or acquitted by another court and who is subsequently put on trial before the International Criminal Court.
Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.21 Applicable law/Droit applicable
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 21 of the Rome Statute of the International Criminal Court. Article 21 is an important innovation since none of the previous statutes of international criminal tribunals has contained a provision dealing with ‘applicable law’. Article 21(1) imposes a hierarchy of sources, with a three-tiered cascade of applicable norms. Article 21(2) contemplates the case law of the Court, but without indicating where it fits within the hierarchy. Article 21(3) does not, strictly speaking, provide a new source. Rather, it makes all of the applicable law in article 21 subject to ‘internationally recognized human rights’.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.22 Nullum crimen sine lege
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 22 of the Rome Statute of the International Criminal Court. According to the ‘principle of legality’, a person may not be punished if incriminating acts, when they were committed, were not prohibited by law. The rule is one of the rare provisions set out as a non-derogable norm in all of the major human rights conventions. Article 22 is the first of three provisions dealing with issues of retroactivity. A Trial Chamber explained that ‘[r]ead together, these three provisions pertain to the substantive law, such as the crimes set out in Articles 5 to 8bis of the Statute. The principle of non-retroactivity is more applicable to matters of substance than to those of procedure’.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.23 Nulla poena sine lege
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 23 of the Rome Statute of the International Criminal Court. Article 23 serves as a limit on the exercise of discretion by the Court. It cannot impose punishment that is not set out in the Statute or provided in accordance with its delegated legislation, and specifically the Rules of Procedure and Evidence. It also prevents States Parties from imposing additional punishment upon those who have already been convicted by the Court. The ramifications of this remain to be determined, but offenders may argue that civil sanctions such as deprivation of the right to vote, or prohibition of holding office, constitute additional punishment and are therefore prohibited by article 23.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.24 Non-retroactivity ratione personae /Non-rétroactivité ratione personae
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 24 of the Rome Statute of the International Criminal Court. Preceded by two provisions that entrench two Latin maxims described collectively as the principle of legality, article 24 completes the treatment of the subject in Part 3 of the Rome Statute. Article 24 promises the accused that if there is a change in the law applicable to a given case prior to a final judgment, ‘the law more favourable shall apply’. However, this rule giving the defendant the benefit of the ‘more favourable’ provision is not without difficulties. It is not always a simple manner to determine which rule is in fact more favourable. Moreover, there may be an important element of subjectivity, in that individuals may differ in their assessment.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.29 Non-applicability of statute of limitations/Imprescriptibilité
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 29 of the Rome Statute of the International Criminal Court. Article 29 declares that crimes within the Court's jurisdiction are not subject to a statute of limitations. None of the preceding international instruments concerned with international prosecution of atrocities, from the Charter of the International Military Tribunal to the statutes of the ad hoc tribunals, have contained anything similar. This is only logical, because in the absence of texts within the instruments creating a time bar, silence was all that was required. There is also ample precedent for States refusing to extradite offenders where crimes are time barred under their own legislation. At the very least article 29 operates as an answer to any argument from a State Party whereby extradition might be refused because of a statutory limitation in its own domestic penal code.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.30 Mental element/Elément psychologique
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 30 of the Rome Statute of the International Criminal Court. Article 30 sets a demanding standard for the mental element of crimes. It declares that, ‘[u]nless otherwise provided’ the material elements of the offence must be committed ‘with intent and knowledge’. A person has intent with respect to conduct when that person means to engage in the conduct. A person has intent with respect to a consequence when that person means to cause that consequence or is aware that it will occur in the ordinary course of events. Knowledge is defined as ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. Article 30 defines ‘knowledge’, adding that ‘know and knowingly’ shall be construed accordingly. However, ‘know’ and ‘knowingly’ are not otherwise used in either article 30 or, for that matter, elsewhere in the Rome Statute.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.31 Grounds for excluding criminal responsibility/Motifs d’exonération de la responsabilité pénale
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 31 of the Rome Statute of the International Criminal Court. Article 31 describes what is known in most criminal justice systems by the terms ‘defences’, ‘excuses’, and ‘justifications’ for excluding criminal responsibility. It addresses several defences: insanity, intoxication, self-defence, duress, and necessity. It is followed by two other provisions, articles 32 and 33, defining specific defences. It is not apparent why articles 32 and 33 were not consolidated into the general provision, article 31. To the extent that they refute a charge, age (article 26), immunity (article 27), statutory limitation (article 29), and lack of mens rea (article 30) also operate as defences.
Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.32 Mistake of fact or mistake of law/Erreur de fait ou erreur de droit
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 32 of the Rome Statute of the International Criminal Court. Article 32 addresses defences of mistake of fact or mistake of law. The drafters of the Statute did not want to leave the determination of defences to the discretion of judges, an approach used in all of the earlier models including the final draft Code of Crimes adopted by the International Law Commission in 1996. In general, the purpose of codifying defences in the Rome Statute is not to authorize them but rather to confine them. Thus, article 32 admits defences of mistake of fact and law but under certain conditions. If article 32 were not in the Statute, the general rule on mens rea set out in article 30 would apply without restriction, possibly subject to limitation by the Elements of Crimes.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.34 Organs of the Court/Organes de la Cour
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 34 of the Rome Statute of the International Criminal Court. Article 34 consists of four paragraphs that list the principal organs of the Court. It has no other function than to identify the four organs. The Court consists of the following organs: (a) a Presidency; (b) an Appeals Chamber, Trial Chambers and [a Pre-Trial Chamber] [Pre-Trial Chambers]; (c) the Office of the Prosecutor; and (d) a Registry. Each organ has its own provision, to which reference should be made. The expression ‘organs of the Court’ is used in only one other provision of the Statute, article 45(4), concerning the employment of gratis personnel.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.35 Service of judges/Exercice des fonctions des juges
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 35 of the Rome Statute of the International Criminal Court. Article 35 governs the service of judges. It also reflects a debate during the drafting of the Rome Statute about the nature of the Court as a permanent institution. There was a strong tendency to view the institution as a body that existed on a stand-by basis, one that would be called into action from time to time as a kind of permanent ad hoc tribunal, waiting for whatever assignments the Security Council might choose to give it. However, once the Court was actually established, it soon became clear that all of the eighteen judges elected to the Chambers would be required to work full-time. Thus, article 35 operates as more of a transitional provision governing the first few years of the Court's operation. Beginning with a team of six judges working full-time, the Court rather quickly moved to one in which all were employed full-time. Article 35 is related to article 40, on the independence of judges, and article 49, on salaries, allowances, and expenses.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.38 The Presidency/La Présidence
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 38 of the Rome Statute of the International Criminal Court. Article 38 deals with the Presidency, one of the four ‘organs of the Court’ listed in article 34. The Presidency is made up of three judges, elected by their peers. It is responsible for the proper administration of the Court, through management oversight, coordination, and cooperation. It oversees the judicial functions, and has specific responsibilities in this respect assigned by the Statute. The Presidency also assumes a role representing the Court at the international level, broadening its support and promoting its values and ideals. This includes meeting with government officials, representatives of States, parliamentarians, and representatives of international and regional organizations.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.42 The Office of the Prosecutor/Le bureau du procureur
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 42 of the Rome Statute of the International Criminal Court. Article 42 sets out the functions and responsibilities of the Office of the Prosecutor, one of the four organs of the International Criminal Court listed in article 34 of the Rome Statute. The Office of the Prosecutor is 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’. The Prosecutor has ‘full authority over the management and administration of the Office, including the staff, facilities, and other resources thereof’.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.43 The Registry/Le greffe
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 43 of the Rome Statute of the International Criminal Court. Article 43 sets out the functions and responsibilities of the Registry, one of the four organs of the International Criminal Court listed in article 34. It is a neutral body, charged with judicial and administrative support functions for all organs of the Court. In terms of budget and size, it is the largest. With the Registrar at its head and under the supervision of the Presidency, the Registry ensures the non-judicial aspects of the administration and the servicing of the Court. These include responsibilities with regard to the defence, victims and witnesses, outreach, and detention.
Part 4 Composition and Administration of the Court: Composition et Administration de la Cour, Art.48 Privileges and immunities/Privilèges et immunités
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 48 of the Rome Statute of the International Criminal Court. International organizations require privileges and immunities in order to facilitate their functions. Privileges and immunities are granted to individuals not for their own personal benefit, but to enable the institution to operate with expedience and independence. Article 48 consists of five paragraphs that deal with the privileges and immunities of the Court itself, of its judges and senior officials, its staff, and those who are actually involved in the proceedings, such as counsel, witnesses, and experts. The final paragraph provides for waiver of the immunity.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity/Rôle de la chambre préliminaire dans le cas où l’occasion d’obtenir des renseignements ne se présentera plus
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 56 of the Rome Statute of the International Criminal Court. Article 56 provides an exceptional mechanism by which evidence may be collected under judicial oversight and then made available at trial. It authorizes the Pre-Trial Chamber to ‘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’. Thus, the focus is on ensuring that the interests of the defence are protected at a stage that may arise even before a defendant has been identified. However, the benefits of article 56 are not reserved to evidence helpful to the defence. The special function of article 56 can be invoked by the Prosecutor or by the Pre-Trial Chamber itself, acting on its own initiative.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.59 Arrest proceedings in the custodial State/Procédure d’arrestation dans l’état de détention
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 59 of the Rome Statute of the International Criminal Court. Article 59 requires that the custodial State ‘act expeditiously in the surrender of persons subject to an arrest warrant issued by the Court’. By exhaustively listing the issues which the custodial State shall examine, article 59 also safeguards the competence and decisions of the Court, most notably by preventing national authorities from examining the validity of the warrant of arrest. Unlike most provisions of the Rome Statute, article 59 is likely to be read, interpreted, and applied by national judges. Combined with national implementing legislation, they will put into effect the obligations of arrest, the verification of the conditions under which it was carried out, and the granting of interim release. The role of the Pre-Trial Chamber ‘with respect to proceedings under article 59 of the Statute is limited to verifying that the basic safeguards envisaged by national law have been made available to the arrested person’.
Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.61 Confirmation of the charges before trial/Confirmation des charges avant le procès
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 61 of the Rome Statute of the International Criminal Court. Article 61 provides for the confirmation hearing, i.e. the mechanism enabling the Pre-Trial Chamber to determine whether the case should be sent to trial and, if so, on what charges. The confirmation hearing has been described as a ‘gatekeeper’ function. According to Judge Steiner, sitting as a Single Judge, ‘[t]he confirmation hearing has a limited scope and by no means can it be seen as an end in itself, but it must be seen as a means to distinguish those cases that should go to trial from those that should not go to trial’. The confirmation hearing is also described as a mechanism ‘designed to protect the rights of the Defence against wrongful and wholly unfounded charges’.
Part 6 The Trial: Le Procès, Art.62 Place of trial/Lieu du procès
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 62 of the Rome Statute of the International Criminal Court. Article 62 establishes the seat of the Court as the place of the trial. International courts have a ‘seat’. It is where they ‘sit’. Article 3, entitled ‘Seat of the Court’, specifies that the seat ‘shall be established at The Hague in the Netherlands’. It does not state clearly that the Court is to sit, as a general rule, in The Hague, but this is implied by paragraph 3 of article 3. Article 62 seems somewhat redundant and even confusing. Taken literally, its placement in Part 6 of the Statute (‘The Trial’) might be taken to indicate, a contrario, that other proceedings, both pre- and post-trial, must be held in The Hague at the seat of the Court. But that seems to be an absurd result.
Part 6 The Trial: Le Procès, Art.64 Functions and powers of the Trial Chamber/Fonctions et pouvoirs de la chambre de première instance
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 64 of the Rome Statute of the International Criminal Court. Article 64 sets out the functions and powers of the Trial Chamber. It confirms that ‘[t]he 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’. The general duties of the Trial Chamber include ensuring a ‘fair and expeditious’ trial, conducted with ‘full respect for the rights of the accused’ and ‘due regard for the protection of victims and witnesses’.
Part 6 The Trial: Le Procès, Art.67 Rights of the accused/Droits de l’accusé
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 67 of the Rome Statute of the International Criminal Court. Article 67 confers the right to a ‘fair hearing’ to an ‘accused’ person ‘[i]n the determination of any charge’. Article 67 closely resembles article 14(3) of the International Covenant on Civil and Political Rights as well as fair trial clauses found in national constitutions. It is not, however, a typical provision found within criminal or penal codes as such. In effect, such texts generally belong in constitution-type instruments, where their role is hierarchically superior to the criminal law texts that they frame and control.
Part 6 The Trial: Le Procès, Art.68 Protection of the victims and witnesses and their participation in the proceedings/Protection et participation au procès des victimes et des témoins
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 68 of the Rome Statute of the International Criminal Court. Article 68 governs the protection of victims and witnesses. The Court is required to take ‘appropriate measures’ for the protection of ‘the safety, physical and psychological well-being, dignity and privacy of victims and witnesses’. The provision places special emphasis upon victims of sexual or gender violence, or violence against children. It also departs from the general principle of public hearings in order to protect victims and witnesses. Where the personal interests of victims are affected, the Court shall permit their ‘views and concerns’ to be presented and considered.
Part 6 The Trial: Le Procès, Art.72 Protection of national security information/Protection de renseignements touchant à la sécurité nationale
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 72 of the Rome Statute of the International Criminal Court. Article 72 deals with three main concerns of States with respect to information that they consider to be relevant to their national security. The first is the provision of materials to the Court pursuant to the obligations of cooperation of a State Party. The second is the ability to provide the Prosecutor with confidential materials, confident that the Prosecutor is not required to disclose these materials to the defence. The third addresses the intervention of a State to prevent divulgation of such information by a third party, and amounts to a kind of privilege.
Part 6 The Trial: Le Procès, Art.73 Third party information or documents/Renseignements ou documents émanant de tiers
Authors: William A Schabas
Published: June 2017

This chapter comments on Article of 73 the Rome Statute of the International Criminal Court. Article 73 applies when a State Party is requested by the Court to provide a document or information in its custody, possession, or control. If the document was disclosed to that State in confidence by another State, or by an intergovernmental organization or international organization, the State Party need not comply with the request from the Court unless it can obtain the consent of the provider (known as the ‘originator’) of the document or information. If the originator of the information is a State Party, then it is required either to consent to disclosure of the information or document or to resolve the matter in accordance with the provisions of article 72. In other words, the information can only be withheld from the Court if the originator State invokes national security interests. It seems unlikely this part of article 73 will ever have much practical impact. In effect, it amounts to a request from the Court to the State Party that originated the information or document.
Part 6 The Trial: Le Procès, Art.75 Reparations to victims/Réparation en faveur des victimes
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 75 of the Rome Statute of the International Criminal Court. Article 75 gives the Court authority to grant reparations or any other form of compensation or satisfaction to victims of the crimes. An order for reparations must, ‘at a minimum’, have five essential elements: 1) it must be directed against the convicted person; 2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 3) it must specify, and provide reasons for, the type of reparations ordered; 4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and 5) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted.
Part 7 Penalties: Les Peines, Art.79 Trust Fund/Fonds au profit des victimes
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 79 of the Rome Statute of the International Criminal Court. Article 79 deals with the Trust Fund for Victims established to facilitate the distribution of money and other assets obtained as a result of convictions by the Court. The Trust Fund operates ‘for the benefit of victims’. The term ‘victims’ is defined by Rule 85 of the Rules of Procedure and Evidence as ‘natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court’. The Trust Fund may also benefit ‘families of such victims’.
Part 7 Penalties: Les Peines, Art.80 Non-prejudice to national application of penalties and national laws/Le Statut, l’application des peines par les états et le droit national
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 80 of the Rome Statute of the International Criminal Court. Article 80 deals with the application by States of penalties prescribed by their national law. The provision was introduced in the final draft, submitted to the Conference early in the day on 17 July 1998, as part of a compromise aimed at calming the objections of a relatively small number of States that had unsuccessfully campaigned to include capital punishment within the range of available penalties in the Rome Statue. Some of these States were concerned that the exclusion of the death penalty would be interpreted as evidence of a growing abolitionist trend internationally and possibly of an emerging norm of customary international law.
Part 8 Appeal and Revision: Appel et Révision, Art.81 Appeal against decision of acquittal or conviction or against sentence/Appel d’une décision sur la culpabilité ou la peine
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 81 of the Rome Statute of the International Criminal Court. Article 81 deals with what might be called an appeal ‘on the merits’, in that it is addressed to a final decision of a Trial Chamber of either conviction or acquittal or, in the event of conviction, any subsequent decision governing sentence. Both the Prosecutor and the convicted person are authorized to appeal on grounds of procedural error, error of fact, or error of law. The accused person — or the Prosecutor, acting on the accused person's behalf — may invoke an additional ground: ‘Any other ground that affects the fairness or reliability of the proceedings or decision’.
Part 8 Appeal and Revision: Appel et Révision, Art.83 Proceedings on appeal/Procédure d’appel
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 83 of the Rome Statute of the International Criminal Court. Article 83 sets out a general principle by which the Appeals Chamber shall have all the powers of the Trial Chamber with respect to proceedings under articles 81 and 83. It sets out the powers of the Appeals Chamber when it considers a final verdict of a Trial Chamber. It gives it the power to modify a sentence that it considers to be disproportionate to the crime. It deals with the requisite majority of the Appeals Chamber and the possibility of separate or dissenting opinions. It also entitles the Appeals Chamber to deliver its verdict in the absence of the person who has been acquitted or convicted at trial.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.88 Availability of procedures under national law/Procédures disponibles selon la législation nationale
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 88 of the Rome Statute of the International Criminal Court. Article 88 requires States Parties to ensure that there are procedures available under their national law for all of the forms of cooperation. It sets out an obligation of result and not one of conduct. States should review the relevant provisions of their law in order to ensure that they are in a position to comply with requests from the Court for cooperation. They are required to have in place procedures that ‘facilitate timely compliance with requests for assistance’. If they cannot comply with a request because of lacunae or incompatibilities in their national legal systems, they will be in breach of the Rome Statute.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.90 Competing requests/Demandes concurrentes
Authors: William A Schabas
Published: June 2017

This chapter comments on Article 90 of the Rome Statute of the International Criminal Court. Article 90 primarily concerns extradition treaties. Most States Parties to the Rome Statute have pre-existing treaty obligations to facilitate extradition. Some may also have status of forces agreements that govern jurisdiction over crimes committed on their territory. Situations may arise where there are competing requests, one from a third State (which may not be a State Party to the Rome Statute) and one from the International Criminal Court. Article 90 provides a legal framework to resolve such conflicts. If a State Party that has received a request from the Court for surrender pursuant to article 89 also receives a request from a State to surrender the same person for the same conduct, it is to notify the Court and the requesting State of the fact that there are competing requests. From that point, the solution to the problem depends upon whether or not the requesting State is a State Party to the Rome Statute.
Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.91 Contents of request for arrest and surrender/Contenu de la demande d’arrestation et de remise
Authors: William A Schabas
Published: June 2017

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 91 deals with the content of a request to a State for arrest or surrender of a person wanted by the Court. It consists of four paragraphs, of which the first addresses the contents of the request and any supporting documentation. The two subsequent paragraph distinguish between a request concerning a person for whom a warrant of arrest has been issued (paragraph 2) and one for a person who has already been convicted (paragraph 3). Paragraph 4 provides for consultations between the Court and the State Party.