Q5.

The International Criminal Court (139)

Rome Statute of the International Criminal Court: July 1998

1. The ICC in Operation (140)

Anatomy of the Case (140)
Crime: a crime within the jurisdiction of the court.
Case: a case prosecuted against particular individuals
Situation: a situation is referred to the court or is the subject of action by the
Prosecutor
i. Trigger Mechanisms (141)
A situation comes before the court through one of three trigger mechanisms (Art
13). In all situations, P must be satisfied that there is a reasonable basis for
investigation and comply with other requirements in the Rome Statute (including
Art 53) for initiating an investigation (preliminary examination stage).
a. State Referral (Art 14)
A State Party may refer to the Prosecutor a situation in which a crime appears to
have been committed, requesting the Prosecutor to investigate the situation.
b. Security Council Referral (Art 13(b))
The Security Council acting under Chapter VII of the Charter of the United
Nations may refer a matter to the Prosecutor.
c. Exercise of Proprio Motu Powers (Art 15)
The Prosecutor may initiate investigations proprio motu on the basis of
information on crimes within the jurisdiction of the Court (Art 15(1)).

She must analyse the seriousness of the information received (Art 15(2)).
o If she finds that there is reasonable basis to proceed, she must
submit to the Pre-Trial Chamber (PTC) a request (Art 15(3)).
o

If she finds that there is no reasonable basis to proceed, she shall

inform those who provided the information. This does not preclude P
from considering further information submitted regarding the same
situation.

The PTC will examine the request.

o If the PTC considers that there is reasonable basis to proceed and
the Court has jurisdiction over the matter, it will authorise the
investigation (Art 15(4)).

A refusal does not preclude subsequent requests by P based on new

facts or evidence (Art 15(5)).

ii. Deferral by the Security Council (Art 16) (143)

Notwithstanding that proceedings have been initiated, the SC (in a resolution
adopted under Chapter VII) may request that investigations or prosecutions be
deferred for a period of 12 months. The request may be renewed.
iii. Preliminary Examinations (Art 53) (143)
The Prosecutor shall initiate an investigation unless she determines that there is
no reasonable basis to proceed. She must consider: (a) jurisdiction; (b)
admissibility under Art 17; and (c) the interests of justice. (Art 53(1))
P may decide to decline investigation, continue to collect information / assess
national proceedings, or initiate an investigation (subject to JR where triggered
by Ps proprio motu powers).
If P decides not to proceed, P must inform the PTC and the state / SC which made
the referral and give her reasons (Art 53(2)). The state / SC may request that
the PTC review that decision, and the PTC may request that P reconsider (Art
53(3)(a)).
P may at any time reconsider her decision whether to investigate / prosecute
based on new facts or information (Art 53(4)).
Phase 1: Filter (144)
In Phase 1, an initial analysis of the information is made. Potential cases that are
manifestly outside the jurisdiction of the Court are eliminated. Matters that may
be within the jurisdiction and are not already subject to preliminary examination
or investigation or prosecution undergo a new preliminary examination.
Phase 2: Jurisdiction (Art 11-13) (144)
P must have reasonable basis to believe that the 3 jurisdictional requirements
have been met.
i. Temporal Jurisdiction
The ICC only has jurisdiction for acts that were committed after the Rome
Treaty came into effect on 1 July 2002 (Art 11).
Temporal jurisdiction may also depend on:
When the Rome Treaty came into effect for a particular state
Any effective date of a Security Council referral resolution
The date specified in an Article 12(3) ad hoc declaration
ii. Subject Matter Jurisdiction

P must establish a reasonable basis for believing that a crime within the
jurisdiction of the court has been committed. P must consider as a
preliminary matter the chapeau elements, the nexus between the criminal
acts alleged and these contextual elements, the de facto or de jure role of
alleged perpetrators, and any required mental element.
iii. Nationality / Territorial Jurisdiction
P can only consider crimes that have been committed on the territory of, or
by the nationals of, a State Party or a non-party state that has lodged an Art
12(3) declaration (Art 12).
Phase 3: Admissibility (Article 17) (145)
Admissibility involves 2 distinct inquiries: complementarity and gravity.
i. Complementarity (146)
P must assess whether genuine investigations or prosecutions have been
undertaken by a state with jurisdiction over the matter. If there are
adequate domestic proceedings involving potential defendants, P will not
move forward with an investigation.
Complementarity is not fulfilled when:
The case is being investigated or prosecuted by a State which has
jurisdiction over it, unless the State is unwilling or unable genuinely
to carry out the investigation or prosecution (Art 17(1)(a)); OR
The case has been investigated by a State which has jurisdiction over
it and the State has decided not to prosecute the person concerned,
unless the decision resulted from the unwillingness or inability of the
State genuinely to prosecute (Art 17(1)(b)); OR
D has already been tried for conduct which is the subject of the
complaint (Art 17(1)(c)), unless (Art 20(3)):
o The proceedings in the other court were for the purpose of
shielding the person concerned from criminal responsibility in
the ICC; OR
o The proceedings in the other court were not conducted
independently or impartially in accordance with the IL norms of
due process, and were inconsistent with an intent to bring the
person concerned to justice.
In determining unwillingness, the court will consider 3 factors (Art 17(2)):
Whether the decision was made for the purpose of shielding the
person concerned from criminal responsibility in the ICC
Whether there has been an unjustified delay and inconsistency with
an intent to bring the person concerned to justice.
Whether proceedings are being conducted independently/impartially,
and whether they are inconsistent with an intent to bring the person
concerned to justice.

In determining inability, the court will consider (Art 17(3)):

due to a total or substantial collapse or unavailability of its
national judicial system,
the State is unable to obtain the accused or the necessary evidence
and testimony or is otherwise unable to carry out its proceeding
ii. Gravity (148)
The situational gravity is at issue. The concept of gravity includes both
quantitative and qualitative elements, including the crimes scale, nature,
manner of commission, and its impact (OTP Regulations, OTP Policy Paper).
Scale: number of direct and indirect victims, extent of damage / harm to
victims and families , geographical/temporal spread
Nature: specific elements of each offence (e.g. killing, rape, torture)
Manner of Commission: means employed, degree of participation and
intent, extent to which crimes were systematic / planned / organised /
resulted from abuse of power / official capacity, particular cruelty e.g.
vulnerability of victims, discriminatory motives, use of sexual violence
Impact: suffering of victims, their increased vulnerability, the terror instilled,
social / economic / environmental damage to the community
Phase 4: Interests of Justice (Art 53(1)(c)) (150)
The interests of justice element is a countervailing consideration. P will not
move forward if she concludes that there are substantial reasons for
believing that the interests of justice would not be served. She takes into
account the gravity of the crimes, as well as the views of victims and other
relevant stakeholders. The current P has indicated that a decision not to
proceed on these grounds would be highly exceptional (OTP Policy Paper).
iv. Investigations and Case Development (152)
P establishes a team of investigators with representations from each of the 3
divisions of the OTP (Office of the Prosecutor): Jurisdiction, Complemetarity, and
Cooperation. They then analyse the information and evidence collected, develop
additional evidence, develop case hypotheses, and plan for further
investigations.
Once sufficient investigations have been made, and P has found reasonable
grounds to believe that D has committed a crime, P may request that the PTC
issue a warrant of arrest or a summons to appear (Art 58).
v. Admissibility Challenge (153)
A state or D can launch an admissibility challenge (Art 19). The court can also
undertake an admissibility analysis on its own motion.

vi. Confirmation of Charges (153)

After D appears before the Court, the PTC holds a hearing to confirm the charges
(Art 61). P must establish that there are substantial grounds to believe that D
committed the crime (Art 61(5)).
vii. Trial (154)
The President constitutes a Trial Chamber. If D is convicted, a separate
sentencing hearing is held.
viii. Appeals (155)
P or D may appeal against convictions, acquittals, and sentences (Art 81).
Interlocutory appeals may be made regarding jurisdiction, admissibility, release
of a person, or PTC decisions regarding investigations (Art 82).
ix. Reparations
The Court may order that D pay specific reparations to victims, or that such
amounts be paid out of the Trust Fund for Victims (Art 75).
Notes (156)

2. The US and the ICC (164)

The US signed but did not ratify the ICC Statute in the waning days of the Clinton
administration. The Bush administration however pursued a policy of active
opposition to the court, and unsigned the treaty in May 2002 in a letter from
Ambassador John Bolton.
John Bolton, Presidential Speech Draft 1999 (165)
The courts flaws are two-fold: substantive and structural.
Substantive: The ICCs authority is vague and excessively elastic. The definition
of Genocide is unacceptable, but unlike the 1948 Genocide Convention
(approved by the US in 1986), Article 120 does not allow for reservations to the
Statute. War Crimes and Crimes against Humanityare even vaguer. There is a
real risk that an activist court and prosecutor can broaden their language
essentially without limit.
Structural: the Prosecutor has the power of law enforcement an executive
power that the US has been asked to place outside of the complete control of its
national government. The Court and the Prosecutor are effectively accountable
to no one. P will answer to no superior executive power.
It is erroneous to believe that the ICC will have a substantial deterrent effect
against the perpetration of grievous crimes against humanity. Also, the reality is

that justice and political resolution of serious political and military disputes may
not be attainable.
It is a failing that the Rome Statute minimises the SCs role in ICC affairs.
Accumulated experience strongly favors a case-by-case approach, politically and
legally, rather than the inevitable resort to adjudication contemplated by the ICC.
The ICC may disregard the doctrine of complementarity, or deference to national
judicial systems.
Harold Hongju Koh, State Department Adviser 2012 (166)
The typical American would say that specific perpetrators of genocide, war
crimes, or crimes against humanity should be held accountable for their crimes
in particular cases.
Supporting international criminal justice and accountability for those responsible
for atrocities is in the US national security interests as well as humanitarian
interests.
First, we have dropped the hostile rhetoric. Second, we have begun to engage
with the Assembly of State Parities and the Court. Third, we have publicly urged
cooperation and expressed support for the Courts work. Fourth, we find it a
serious cause for concern that 9 individuals who are the subject of ICC arrest
warrants have not been apprehended. Fifth, we have noted that states can lend
expertise and logistical assistance to apprehend ICC fugitives.
The ICC is not the exact court we wanted, but it is the court that exists, and we
fully understand that the ICC has the potential in many cases to advance
common goals in promoting accountability This is part of our broader smart
power approach: not to shut ourselves off to those with whom we disagree, but
to engage and work for mutually beneficial improvements that advance US
interests, including our interest in justice and the rule of law.

3. Complementarity and Admissibility (175)

Democratic Republic of Congo (ICC Appeals Chamber, 2006) (177)
PTC granted a warrant of arrest against Lubanga, but denied it for Ntaganda on
the grounds of inadmissibility, as N was not a central figure in the decisionmaking process and lacked any authority over the development or
implementation of policies, notwithstanding that he was in a command position
over sector commanders and field officers. P appealed. The Appeals Chamber
(AC) made some observations on admissibility and gravity.
The PTCs test for gravity (177, [56]) considered:
1. Whether the conduct was systemic or large scale
2. Whether D fell within the category of most senior leaders of the situation

3. Whether D fell within the category of most senior leaders suspected of

being most responsible, considering
o The role played by him in the organisation, AND
o The role played by the organisation in the overall commission of the
crime
[68] The PTCs test for gravity was incorrect.
[70]-[71] The conduct need not be systematic or large scale. Requiring as such
blurs the distinction between the jurisdictional requirements for war crimes and
crimes against humanity. War crimes do not necessarily require large scale
commission and only Crimes against Humanity require systematic commission.
Such a requirement would render inutile article 8(1) and also contradict the
epress intent of the drafters in rejecting any such fixed requirement therein.
[73]-[76] The second and third prongs of the test are also based on a flawed
interpretation of Art 17(1)(d). The PTC stated that the deterrent effect would be
greatest if the ICC only dealt with the highest ranking perpetrators, but it is
illogical that this is the case if all other categories of perpetrators cannot be
brought before the court. The imposition of rigid standard primarily based on top
seniority may result in neither retribution nor prevention being achieved. The
preventative role of the court may depend on many factors, much broader than
the capacity of an individual to prevent crimes. The particular role of a person
may vary considerably depending on the circumstances of the case and should
not be exclusively assessed or predetermined on excessively formalistic grounds.
Notes (181)

P v Germain Katanga (ICC AC, 2009) (184)

[76] In Article 17(1)(a) and (b), the question of unwillingness or inability is linked
to the activities of the State having jurisdiction.
[78] The initial questions to ask are (1) whether there are ongoing
investigations/prosecutions or (2) whether there have been previous
investigations and the State has decided not to prosecute. It is only when the
answers are in the affirmative that one examines the question of unwillingness
and inability. In case of inaction, the question of unwillingness or inability does
not arise; inaction on the part of the State renders the case admissible before the
Court.
[79] Unwillingness and inability do not have to be considered in case of inaction.
An interpretation otherwise would not only be irreconcilable with the wording of
the provision, but also in conflict with a purposive interpretation of the statute.
Where the State is willing and able to investigate and prosecute, but has no
intention to do so, the Court would be unable to exercise its jurisdiction and a
potentially large number of cases would not be prosecuted at all. Impunity would
persist unchecked and thousands of victims would be denied justice.

[85] The States have a duty to exercise their criminal jurisdiction over
international crimes. Nevertheless, the complementarity principle strikes a
balance between safeguarding the primacy of domestic proceedings vis--vis the
ICC on the one hand, and the goal of the Rome Statute to put an end to impunity
on the other hand. If States do not or cannot investigate and, where necessary,
prosecute, the ICC must be able to step in.
Notes (187)

Situation in Libya (ICC PTC, 2013) (188)

[52], [54] A State that challenges the admissibility of a case bears the burden of
proof to show that the case is inadmissible The Statute does not set out a
standard of proof The State must provide the Court with evidence of a
sufficient degree of specificity and probative value that demonstrates it is indeed
investigating the case.
[76]-[77] The defining elements of a concrete case before the court are the
individual and the alleged conduct the validity of the same person / same
conduct test has been confirmed by the AC. The determination of what is
substantially the same conduct will vary according to the concrete facts and
circumstances of the case and, therefore, requires a case-by-case analysis.
[83] In the circumstances of the case at hand and bearing in mind the purpose
of the complementarity principle it would not be appropriate to expect Libyas
investigations to cover exactly the same acts of murder and persecution
mentioned in the Article 58 Decision and constituting instances of Mr Gaddafis
alleged course of conduct. Instead, the Chamber will assess whether the
alleged domestic investigation addresses the same conduct underlying the
Warrant of Address and Article 58 decision
Notes (196)