1.1 The Emergence of International Criminal Law

 

The intention of international criminal law is to protect human rights by preventing impunity. Thereby “the existence of the International Criminal Court is the result of a 50-year journey, during which the international community struggled to find an effective way to end impunity for international crimes.”[1]

 

1.1.1 The Nuremberg Tribunals and the International Military Tribunal for the Far East

The International Military Tribunals after the Second World War were role models for the International Criminal Court (ICC). They were based on the Nuremberg Charter, codifying international criminal law standards regarding individual crimes by men and not abstract entities in a period of time when the protection of human rights on the international level was insufficient and no general human rights monitoring body existed.[2]  The Nuremberg trials initiated a movement for the prompt establishment of a permanent international criminal court, leading to the adoption of the Rome Statute of the ICC.

In 1943, the Allied forces agreed on the Moscow Declaration to prosecute those high-ranking members of the German Nazi regime that were the most responsible for the commission of war crimes. After the war, the UN Commission of the Investigation of War Crimes, composed of the representatives of most of the Allies was established to set the stage for the post-war prosecution and to prepare a “Draft Convention for the Establishment of a United Nations War Crimes Court”.[3] But it was the London conference consisting of the four victorious powers that laid the basis for the trial in Nuremberg by determining the Agreement for the Prosecution and Punishment of Major War Crimes of the European Axis and Establishing the Charter of the International Military Tribunal, known as “Nuremberg Charter” or “London Charter”, which was formally adopted on 8 August 1945.

A problem, however, was that the Charter of the International Military Tribunal was established after the crimes had been committed. Therefore, the Tribunal was criticized for violating the fundamental principle “nulla poena sine lege” by creating an ex post facto criminalization.[4]  Moreover, the Nuremberg Charter did not provide for a right of appeal or revision. Instead, it provided in Article 26 of the Charter that the judgment would be final.[5]

The principles of law of the Nuremberg Charter were used again in the Tribunal for the Far East, where war crimes committed by Japanese armed forces were tried. The provisions were similar to those used in the Nuremberg Tribunal.

The Nuremberg Charta was the basis for the Control Council Law No. 10 which was enacted in December 1945 and provided the legal basis for post war trials on crimes against humanity, war crimes and crimes against peace.[6]

Subsequently, in December 1946, the UN General Assembly affirmed in Resolution 95 (I) “the principles of international law recognised by the Charter of the Nurnberg Tribunal and the Judgement of the Tribunal”.

In November 1947, the General Assembly established the International Law Commission and adopted Resolution 177 (II) directing the Commission to “(a) formulate the principles of the international law recognized in the Charter of the Nuremberg Tribunal and in the judgement of the Tribunal and (b) prepare a draft code of offences against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in subparagraph (a) above”[7].

 

1.1.2 Ad hoc tribunals

 

1.1.2.1 The International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)

While the International Law Commission considered the draft statute of an international criminal court, a commission of experts established by the Security Council identified war crimes and crimes against humanity being committed in the former Yugoslavia during the Balkan Conflict.

In reaction, the Security Council adopted Resolution 827 of 8 May 1993 to establish the International Criminal Tribunal for the former Yugoslavia (ICTY), an ad-hoc tribunal to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”.

The establishment of ad hoc tribunals is generally based on chapter VII of the UN-Charter by resolutions of the UN Security Council.[8] The structure and organization as well as the personal, temporal and subject matter jurisdiction of these tribunals is set out by their statutes. The statutes also provide for applicable general principles and procedural issues. They are binding for all member states by virtue of Art. 25 of the UN Charter.

The ICTY started functioning in 1995 and consisted of three trial chambers and an appeals chamber. The mandate lasted from 1993 until 2017. The ICTY has charged over 160 persons including heads of states, prime ministers and army chiefs based on their individual responsibility. The last proceeding was finished on 29 November 2017 and the ICTY officially ceased its operation on 31 December 2017.

In November 1994, the Security Council created a second ad-hoc tribunal on request of Rwanda. The International Criminal Tribunal for Rwanda (ICTR) was charged with the prosecution of genocide and serious violations of humanitarian law in Rwanda and neighbouring countries. The tribunal’s statute was identical with the ICTY’s Statute except for the fact that the war crimes provisions also reflected that the genocide took place in a purely internal armed conflict.

The ICTY and the ICTR shared several institutions, such as the prosecutor’s office and the composition of the Appeal Chamber to secure uniformity of prosecutorial policy and appellate jurisprudence. The mandate of the ICTR lasted until 31 December 2015.

In 2015, the responsibilities of both Tribunals had jointly been taken over by the International Residual Mechanism for Criminal Tribunals (IRMTC). The Mechanism was created on 22 December 2010 by the Security Council and started operating on 1 July 2010. During the first years it operated parallel with the ICTY and the ICTR and continued operating after the tribunals closure.

Among the historic achievement of the ICTR was that it was the first tribunal to deliver verdicts against persons responsible for genocide. It also recognised rape as a means of perpetrating genocide.

The first major judgement of the Appeals Chamber made it clear that crimes against humanity could be committed in peacetime and not just in wartime, which had been the situation in the cases dealt with by the Nuremberg Tribunals. The ICTR Appeals Chamber also held that also war crimes committed in internal armed conflicts are punishable under international criminal law.[9]  These judgements where later incorporated in Article 7 and 8 of the Rome Statute of the ICC. Also, the ad-hoc tribunals provided a role model of how an international criminal court could look like.

 

1.1.2.2 Ad-hoc “hybrid” tribunals in Southeast Asia

Ad-hoc tribunals – besides the ICTY and the ICTR, one can also mention the Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon (STL) – have all been set up by the international community in order to achieve justice with regard to particular situations. The same holds true for the two tribunals that have been established in Southeast Asia.

The Special Panels for Serious Crimes (SPSC) in Timor-Leste were set up in 2000 to deal with crimes allegedly committed by Indonesian-backed militia groups and military forces following the 1999 referendum that resulted in the independence of the Democratic Republic of Timor-Leste.[10] The Special Panels were part of the District Court in Dili and they were each composed of two international judges and one East-Timorese judge (a so-called “hybrid” court).  They had the mandate to exercise jurisdiction with respect to genocide, war crimes, crimes against humanity, murder, sexual offences, and torture. In 2005, the SPSC completed their mandate after having handed down 84 convictions and three acquittals. However, most of the convicted perpetrators were low-level militia soldiers as opposed to those high-rank army and militia members who are considered the most responsible for the crimes.[11]

The other “hybrid” tribunal on Asian soil can be found in the Extraordinary Chambers in the Courts of Cambodia (ECCC) dealing with crimes committed between 1975 and 1979 by the Khmer Rouge, which resulted in the death of an estimated 1.7 million people, accounting for about 20 percent of the Cambodian population at the time. The ECCC was put into operation in 2006 pursuant to an agreement between the United Nations and the Royal Government of Cambodia.[12] The trial chambers are each composed of three Cambodian judges and two international judges. The subject-matter jurisdiction of the ECCC is confined to the crimes of genocide, crimes against humanity, and grave breaches of the 1949 Geneva Conventions.

In 2010, the ECCC handed down a judgment holding Kaing Guek Eav, the former head of the S-21 prison, guilty of crimes against humanity and grave breaches of the Geneva Conventions of 1949. Another famous judgment was made in the case against Khieu Samphan who was appointed Democratic Kampuchea’s Head of State and succeeded Pol Pot as leader of the Khmer Rouge in 1987. In 2014, he received life sentences for crimes against humanity, and in 2018, the tribunal found him also guilty of the crime of genocide against the Vietnamese people. Due to governmental interference and disputes between the Cambodian and the international judges, even resulting in the resignation of judges as well as defense lawyers,  the ECCC has been confronted with major obstacles in its work. The outcome of the ECCC has already been criticized as unsatisfactory. However, the potential of “hybrid” international tribunals to make a positive contribution to ongoing reform processes in the domestic justice sector of the respective country is still being emphasized.[13]

 

1.2 The Rome Statute and the International Criminal Court (ICC)

 

1.2.1 The Crimes

The ICC has jurisdiction over the crimes named in Article 5 of the Rome Statute. These are genocide, crimes against humanity, war crimes and, since 17 July 2018, the crime of aggression.

1.2.1.1 Genocide

The term genocide covers actions that are carried out with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such (Article 6). The UN General Assembly adopted the Genocide Convention in 1948 which sets out a careful definition of the crime and prohibits Genocide regardless whether it is perpetrated in war or peacetime.

The different classes of actions constituting “genocide” were spelled out in different judgements of the ICTR. The ICTR decided that “killing” must be interpreted as “murder”, i.e. voluntary or intentional killing.[14]

According to the ICTR, “serious bodily or mental harm do not necessarily mean that the harm is permanent and irremediable.[15] The ICTY ruled that inhuman treatment, torture, rape, sexual abuse and deportation are acts that can cause serious bodily or mental injury.[16]

The ICTR Trial Chamber held that subjecting a group of people to a subsistence diet, systematic expulsion from homes and reduction of essential medical service below minimum requirements or the deliberate deprivation of resources indispensable for survival, such as food or medical services, fulfils the condition of deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.[17] The Trial Chamber also held that “also included is the creating of circumstances that would lead to a slow death, such as lack of proper housing, clothing and hygiene or excessive work or physical exertion.”[18]

The Chamber further held that “imposing measures intended to prevent births within the group” could mean “sexual mutilation, the practice of sterilization, forced birth control and separation of sexes and prohibition of marriages”[19]even if the measures are only mental.[20]  Moreover, “forcibly transferring children of the group to another group” covers also threats or intimidation leading to the forcible transfer.[21]

In the ICTR’s Akayesu case, the Trial Chamber decided that a person can be convicted of genocide even if a relevant action with the required intent is committed against only one member of a group.[22]

The four protected groups under Article 6 have, so far, not been clearly defined. The ICTR Chamber noted that different concepts must be assessed in the light of a particular political, social and cultural context and that membership of a group is attributed rather subjectively than objectively.[23]

Contrary to various commentators, the ICTY Appeals Chamber held that “existence of a plan or policy is not a legal ingredient of the crime.”[24]

The mental requirement for genocide is the intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Genocide is therefore considered as a crime which depersonalizes the victim in a way that individual qualities or characteristics are not required but rather the membership of a group.[25]

The ICTR held that the commission of genocide requires a dolus specialis or special intent. Special intent is qualified by the ICTR as “the special intention, required as a constitutive element of crime which demands that the perpetrator clearly seeks to produce the act charged”.[26] The ICTR also held that the special intent can be inferred “from all acts or utterances of the accused, or from the general context in which other culpable acts were perpetrated systematically against the same group, regardless of whether such other acts were committed by the same perpetrator or even by other perpetrators.”[27]

1.2.1.2 Crimes against Humanity

Article 7 of the Rome Statute stipulates international criminal liability for crimes against humanity. Any of the enumerated acts can be considered as crimes against humanity only if they have been committed as part of a widespread or systematic attack directed against any civilian population. Article 7(2)(a) further provides that this refers to a course of conduct involving the multiple commission of acts referred to Article 7(1) against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The ICC held that, even if carried out over a large geographical area or directed against a large number of victims, such attacks must still be thoroughly organized and follow a regular pattern.[28]

The ICC Pre Trial Chamber II held, that “such a policy may be made by groups of persons who govern a specific territory or by any organisation with the capability to commit a widespread or systematic attack against a civilian population. The policy needs to be formalized”[29]  The Chamber also ruled that “an attack which is planned, directed or organized – as opposed to spontaneous or isolated acts of violence – will satisfy this criterion”.[30] The Pre-Trial Chamber I pointed out, that the attack must be conducted “in furtherance of a common policy involving public or private resources. Such a policy may be made either by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population”.[31]  Consequently, if an individual is unaware of the fact that his actions are part of a widespread or systematic attack on a civilian population, he cannot be guilty of crimes against humanity but, rather, of murder or war crimes.[32] Nonetheless, the definition of crimes against humanity does not require any motive for the commission of such crimes.[33]

Southeast Asian Case Study: “Drug War” in the Philippines

At the beginning of 2018, the Prosecutor of the International Criminal Court announced a preliminary examination (see below 4.1.2.3.2) of the situation in the Philippines. Since then, the Prosecutor has analysed crimes allegedly committed since at least 1 July 2016 in the context of the “war on drugs” campaign launched by the Government of the Philippines under President Rodrigo Duterte. Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations. The Prosecutor needs to decide whether some of the acts committed amount to a widespread or systematic attack against the civilian population.

Shortly after the Prosecutor’s announcement, Philippine President Rodrigo Duterte decided that the Philippines will withdraw from the ICC. In his withdrawal announcement, Duterte complained, in particular, about a lack of respect for the principles of complementarity, due process and the presumption of innocence. The Philippines’ withdrawal became effective in March 2019. However, according to Article 127(2) of the Rome Statute, all actions committed before the withdrawal becomes effective remain subject to the ICC’s jurisdiction. Nonetheless, the Philippines’ withdrawal exemplifies the Court’s fragile foothold across Southeast Asia. To date, Cambodia and Timor-Leste are the only remaining ICC member states.

 

1.2.1.3 War Crimes

The term war crimes refers to serious breaches of international humanitarian law during an international or domestic armed conflict.[34] According to Article 8 of the Rome Statute, this includes certain enumerated grave breaches of the Geneva Conventions of 12 August 1949, including their common Article 3 referring to internal conflicts, and other enumerated serious violations of the laws and customs applicable in international and non-international armed conflict.

1.2.1.4 Aggression

When the Rome Statute entered into force on 1 July 2002, the ICC’s jurisdiction over the crime of aggression was suspended until a suitable definition would be found. ICC member states then decided upon the definition of the crime at a review conference in Kampala in 2010.[35] At the end of the year 2017, the ICC member states finally moved to activate the Court’s jurisdiction over the crime of aggression, effective from 17 July 2018. According to Article 8 bis, the crime of aggression means “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” The act of aggression means “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” These acts can include, among others, invasion, military occupation, and annexation by the use of force, blockade by the ports or coasts.

1.2.2 Jurisdiction of the ICC

The ICC does not have universal jurisdiction. To be persecuted at the ICC as an individual, either territorial or personal jurisdiction must exist:

• Territorial jurisdiction: Crimes committed on the territory of States Parties, regardless of the nationality of the offender (Article 12(2)(a) of the Statute) or crimes committed on the territory of States that accepts the ICC’s jurisdiction on an ad hoc basis (Article 12(3)) or, in accordance with Article 13(b), where jurisdiction is conferred by the United Nations Security Council.[36]
• Personal jurisdiction: Natural persons that are nationals of a State party of the Rome Statute, regardless where they are located (Article 12 (2) (b)), or nationals of non-Party States that accept the jurisdiction of the ICC by filing a declaration with the Court.[37]
• Temporal jurisdiction: Crimes committed after the entry into force of the Statute on 1 July 2002 (Article 11 (1)) or, if a State has become a member at a later date, crimes committed after the date of entry into force for that State. Article 24 also prohibits retroactive jurisdiction.

Principle of Complementarity: The Principle of Complementarity is set out in Article 1. It regulates the relationship between the ICC and domestic criminal jurisdiction. The ICC is not supposed to replace domestic jurisdiction but to provide an additional forum when domestic jurisdiction fails to bring justice in cases of alleged genocide, crimes against humanity, war crimes or aggression. According to Article 17(1)(a), a case is inadmissible before the ICC where the case is being prosecuted or investigated by a state that has jurisdiction over it, unless the state is unable or unwilling genuinely to carry out an investigation or prosecution. The ICC held that the investigation or prosecution has to “encompass both the person and the conduct which is the subject of the case before the Court”.[38]

 

Case study: The Rohingya Crisis and ICC territorial jurisdiction

In 2016 and 2017, Myanmar military forces attacked Rohingya people in the country’s north-west Rakhine state. The atrocities included attacks on people and locations, looting and burning down villages, mass killing of Rohingya civilians, gang rapes, and other sexual violence. According to UN reports, as of September 2018, over 700,000 Rohingya people had fled or had been driven out of Rakhine state who then took shelter in the neighbouring Bangladesh as refugees.

In September 2018, following a request submitted by the ICC Prosecutor, the Pre-Trial Chamber I decided by majority that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar occurred on the territory of Myanmar (which is a State not party to the Statute) to Bangladesh (which is a State party to the Statute). Thus, the ICC stated that it has jurisdiction over acts which have taken place mainly in the territory of Myanmar, however with the consequence of a mass exodus to the ICC member state Bangladesh. Territorial jurisdiction could therefore be established.

Consequently, the Prosecutor announced the opening of a preliminary examination (see below 4.1.2.3.2) concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh as well as potentially other crimes under Article 7 of the Rome Statute (Crimes against Humanity).

 

1.2.3 Legal Process

 

1.2.3.1 Trigger Mechanism

To trigger proceedings at the ICC, there are three mechanisms laid down in Article 13 of the Statute. These are as follows:

a) According to Article 13 (a), the Court may exercise its jurisdiction after a situation has been referred to the prosecutor by a state party. A reciprocity or special interest in the matter is not required. The first three cases of the ICC have been self-referrals by the member states Uganda, the Democratic Republic of Congo and the Central African Republic.

b) The second mechanism to trigger proceedings at the ICC is, according to Article 13 (b), the referral of a situation by the United Nations Security Council acting under Chapter VII of the UN Charter. The Security Council can even refer a situation to the ICC if the concerned state is not a member state. The Security Council first used this mechanism when it referred the situation of Darfur, Sudan, to the ICC in resolution 1593 in the year 2005.[39]

However, according to Article 16, the Security Council has the power to defer an investigation or prosecution for a renewable period of 12 months in a resolution under Chapter VII of the UN Charta in a situation where international peace and security might be better achieved without a criminal investigation or prosecution.

c) The third trigger mechanism is the proprio motu power of the ICC Prosecutor based on Article 13(c) and 15 of the Statute. According to Article 15, the Prosecutor may initiate investigations on the basis of information of crimes within the jurisdiction of the Court. However, in order to actually start an investigation, the Prosecutor needs the authorization of the Pre-Trial Chamber. that the Pre-Trial Chamber will consider whether there is a reasonable basis to proceed and whether the Court has jurisdiction (Article 15 (3), (4)). This control mechanism shall prevent a too powerful Prosecutor to be able to engage politically motivated investigations.[40]

For the first time in ICC history, a request by the Prosecutor has been authorised by the Pre-Trial Chamber in the majority decision of 31 March 2010 regarding the pre-electoral violence in Kenya 2007.

 

Focus on Southeast Asia: States’ opinions toward proprio motu investigations

Southeast Asian countries have been particularly hesitant to join the ICC. To date, after the withdrawal of the Philippines, only Cambodia and Timor-Leste are ICC members. Revisiting Southeast Asian countries’ statements at the Rome Conference in 1998, it becomes apparent that the power of the Prosecutor to conduct investigations proprio motu has been particularly contentious.

With respect to the fundamental principle of national sovereignty, the delegation of Indonesia submitted: “In drafting the Statute, the Conference must uphold the principle of respect for national sovereignty and join the emerging consensus that the Court’s jurisdiction should be complementary to that of national courts and based on the consent of the States concerned. … However, that principle [of complementarity] still had to be defined unambiguously.”[41]

With regard to the Prosecutor’s power to initiate investigations proprio motu, there is a divisive line separating those countries in favour of a powerful Prosecutor and those countries that oppose this concept. According to Indonesia’s position, “[t]he Prosecutor should not be able to initiate investigations proprio motu.”[42] The delegation of Malaysia concurred “in view of the principle of complementarity and the danger of adverse effects on the integrity and credibility of the office and possible accusations of bias.”[43] Finally, “[t]o give the Prosecutor power to initiate proceedings proprio motu was unacceptable” for Vietnam, too.[44]

The Philippines, however, submitted that “[t]he Prosecutor should be independent and be entitled to investigate complaints proprio motu, subject to the safeguards provided by a supervisory pre-trial chamber.”[45] Equally, Thailand “could agree to the Prosecutor initiating investigations ex officio on the basis of information obtained from any source, including non-governmental organizations. […] It […] endorsed the role of the Pre-Trial Chamber in considering the basis on which the Prosecutor should be allowed to proceed further with an investigation.”[46]

 

1.2.3.2 Preliminary examinations

The Prosecutor carries out preliminary examinations to find out whether there is a reasonable basis to proceed under the Rome Statute. The Prosecutor considers the factors listed in Article 53(1)(a)-(c), namely whether the information available provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; whether the case would be admissible, and whether, taking into account the gravity of the crime and the interest of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interest of justice.

If the Prosecutor decides that there is no reasonable basis to proceed, he or she will have to inform the Pre-Trial Chamber. The Pre-Trial Chamber may review this decision on the basis of Article 53(3) of the Statute.

1.2.3.3 Investigations

Once he or she started an investigation, the Prosecutor has to conduct the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute and, in doing so, investigate incriminating and exonerating circumstances equally (Article 54 (1) (a)). During investigations, the Prosecutor is obliged to respect the rights of victims and witnesses and to keep confidentiality. [47] 

The Pre-Trial Chamber can issue a warrant of arrest against a person on the request of the Prosecutor (Article 58(1)). According to Article 59(2) of the Statute, the person shall be promptly brought before the competent judicial authority in the custodial state to control the correct application of the warrant with a right to apply for interim release (Article 59 (2) (3)).

The States Parties are under the general obligation to cooperate with the Court in its investigation and prosecution of crimes (Article 86). According to Article 88, they must ensure that there are procedures available under the national law to provide cooperation. Difficulties may arise, especially in Non-Party States, because the prosecutor must conduct investigations on the territory of sovereign states. The success of investigations therefore depends on the receptivity of the domestic legal system to initiatives from the Prosecutor’s office.[48]  He or she may also seek help from intergovernmental organisations or states (Article 54 (3) (c)) and enter into agreements as may be necessary to facilitate the investigation on the basis of Article 54(3)(d). The Prosecutor can agree to not disclose confidential information at any state of procedure (Article 54(3)(e)). The Appeals Chamber in the Lubanga proceedings decided that the agreement of the Prosecutor has to be respected, and that a Chamber could not order disclosure if confidentiality has been promised.[49]

In case a State Party refuses to cooperate, Article 87(7) states that the Court may take a finding of non-compliance and then refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.

 

1.2.3.4 Pre-Trial Stage

After a suspect or other person has been surrendered to the ICC, the Pre-Trial Chamber has to satisfy itself that the person has been informed of the crimes which he or she is alleged to have committed and of his or her rights under the Statute (Article 60(1)). The Pre-Trial Chamber also has to decide initially and periodically afterwards on the request of detention or interim release (Article 60(2)-(4)).

According to Article 61, the Pre-Trial Chamber hast to hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. On the basis of the hearing, the Pre-Trial Chamber shall determine whether there is sufficient evidence to establish substantial grounds to believe that the person charged committed the crimes (Article 61(7)).

1.2.3.5 Trial Stage

Unless otherwise decided, the place of the trial shall be the seat of the Court (Article 62).

The trial has to be held in public (Article 64 (7)).

During the trial, the accused has to be present at the Court in all parts of the proceedings (Article 63). According to Article 66, the accused is presumed innocent. Thus, the burden of proof is with the Prosecutor and the Court. Article 65 provides different procedural rules in cases of an admission of guilt.

According to Article 64(2), the Trial Chamber hast to ensure that the trial is fair and expeditious and is conducted with full respect for the rights of the accused and with regard for the protection of witnesses and victims. Therefore, Article 68 stipulates several rules for the protection of witnesses and victims. Article 67 states several basic rights of the accused, such as the right of information, the right of defence, the right to an interpreter and the right to remain silent.

Every party has the right to provide evidence, but also the court can require evidence to become part of the record and summon its own witness (Article 64(6) (d)). Unlike in common law systems, the Statute contains no complex and technical rules of evidence. Rather it allows the admission of all relevant and necessary evidence (Article 69 (3)).[50]Moreover, there is no general rule excluding indirect evidence or hearsay.[51]

The accused has the same rights like the prosecution to examine a witness (Article 67(1)(e)) and, in addition, he or she has the right to be the last to examine a witness.[52] At the end of the trial, the defence has the right to make the closing arguments.[53]

The Court has to determine the sentence in accordance with the rules of Procedure and Evidence by taking into account the gravity of the crime and the individual circumstances of the convicted person (Article 79(1)). According to Article 74(2), the judges’ decision shall be based only on evidence submitted and discussed before it at the trial. The Chamber has to issue one decision. If there is no unanimity, the decision shall contain the opinion of majority and minority (Article 74(5)).

1.2.3.6 Appeals stage

The Prosecutor and the convicted can make an appeal on the grounds of procedural error, error of facts or error of law. Also, a sentence can be appealed on the grounds of disproportion between sentence and crime (Article 81).

Either party may appeal against interlocutory decisions of the Pre-Trial Chamber or Trial Chamber including decisions about jurisdiction or admissibility, release of persons being investigated or prosecuted, measures to provide evidence and investigative steps (Article 82).

As regards the proceedings of an appeal, the Appeals Chamber has all powers of the Trial Chamber (Article 83). The Appeals Chamber may reverse or amend the decision or order a different trial before a different Trial Chamber. If the Appeal Chamber finds that the sentence is disproportional to the crime, it may adjust the sentence.

The judgement of the Appeals Chamber shall be rendered by majority decision. Unlike the Trial Chamber, the Appeals Chamber may deliver its judgement in absence of the person convicted. If only the person convicted or the prosecutor on that person’s behalf appealed, the decision cannot be amended to his or her detriment (Article 83).

The convicted, or after his death other specified persons, may also apply to the Appeals Chamber to revise the final judgement on the grounds that new evidence has been discovered that was not available at the time of the trial and is sufficiently important that, had it been proved in trial, it would have been likely to have resulted in a different verdict, but also on the grounds that evidence on which the conviction depends was false, forgotten or falsified.

1.2.3.7 Enforcement of the sentence

The ICC relies on States to enforce the sentences.

According to Article 103 of the Statute, a sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. Nonetheless, the ICC alone has the right to decide about any application for appeal and revision. The state of enforcement shall not impede the making of any such application by a sentenced person (Article 105(2)).

The Court shall supervise the enforcement of a sentence of imprisonment and make sure that the enforcement is consistent with widely accepted international treaty standards regarding the treatment of prisoners (Article 106).

Austria was the first state that signed an agreement with the ICC to accept sentenced persons in 2005.

 

1.3 Conclusion

There are still many important challenges regarding the future of the ICC.

The ICC has yet to turn into a fully operational and functioning judicial institution. The only way this aim can be reached is to turn the ICC into a fully accepted institution within the international community. This aim is not reached yet, and major states like the United States, Israel or Russia have not ratified the Statute. Others, including China and India have neither signed or agreed on the Rome Statute.

Another major limitation of the ICC is that crimes are often committed in unstable and unsafe regions, which makes it very difficult to carry our investigations or collect evidence. Geographical distance of the ICC to the regions where the crimes are committed can also cause serious problems of logistics and organisation.

 

[1] Ellis, M. and Goldstone, R., The International Criminal Court: Challenge to achieving justice and accountability in the 21th century.

[2] Zappala, S., Human rights in international criminal proceedings, p. 8.

[3] Schabas, W., An Introduction to the International Criminal Court, p. 5.

[4] Ibid, p. 6.

[5] Zappala, S., Human rights in international criminal proceedings, p. 1566.

[6] Ibid, p. 1566.

[7] UNGA, Resolution 177 (II).

[8] Security Council, Resolution 827 and 955.

[9] Tadic (ICTY IT – 94 – 1 – AR72), Decision on the Defence Motion on Jurisdiction, 18 June 1997.

[10] The Special Panels were set up by the United Nations Transitional Administration in East Timor (UNTAET). U.N. Transitional Administration in East Timor, On the Establishment of Panels with Exclusive Jurisdiction Over Serious Criminal Offences, Regulation No. 2000/15 (6 June 2000), http://mj.gov.tl/jornal/lawsTL/UNTAET-Law/Regulations%20English/Reg2000-15.pdf (accessed 22 March 2019).

[11] Freeland, S., “International Criminal Justice in the Asia-Pacific Region: The Role of the International Criminal Court Treaty Regime”, p. 1043.

[12] UNGA, Resolution 57/228.

[13] Sperfeldt, C., “From the Margins of Internationalized Criminal Justice: Lessons Learned at the Extraordinary Chambers of Cambodia”, p. 1136; see also Linton, S., “Putting Cambodia’s Extraordinary Chambers into Context”, p. 256 (“Disturbingly substandard as it is, this form of court was the best that could be agreed upon.”).

[14]  Akayesu, (ICTR 96-4-T, TC), 2 September 1998, §§ 500-501; Smemanza, (ICTR-97-20-T, TC), 15. May 2003, § 3129; Kayishema, (ICTR-95-1-A, AC), 1 June 2001, § 151.

[15]  Akayesu, (ICTR 96-4-T, TC), 17 June 2004, § 291.

[16] Krstic, (ICTY IT-98-33-T, TC), 2 August 2001, § 513.

[17] Akayesu, TJ, §§ 505-506

[18] Brdanin, (ICTY IT-99-36-T, TC), 1 September 2004, § 691.

[19] Akayesu,TJ, § 507

[20] Ibid, § 508

[21] Akayesu, TJ, § 509.

[22] Akayesu, TJ, § 521.

[23] Rutaganda, TJ, § 56.

[24] Jelisic, (ICTY IT-95-10-A), AC, 5 July 2001, § 48.

[25] Cassese, A., International Criminal Justice, p. 335.

[26] Akayesu, TJ, § 498.

[27] Ibid, § 523.

[28] Cassese, A., The Rome Statute of the International Criminal Court, p. 389.

[29] Bema, (ICC-01/05-01/08), 21 March 2016, p. 81.

[30] Ibid.

[31] Katanga et al. (ICC-01/04 – 01/07), p. 398.

[32] Schabas, W., International Criminal Court, p. 114.

[33] Ibid.

[34] Office of the United Nations High Commissioner for Human Rights (OHCHR), https://www.ohchr.org/Documents/Countries/CD/FS-2_Crimes_Final.pdf.

[35] The newly defined crime of aggression was inserted into the ICC Statue as Article 8 bis by resolution RC/Res.6 of 11 June 2010.

[36] Schabas, W., International Criminal Court, p. 81.

[37] Ibid., p. 76.

[38] Lubgana Dylio, (ICC- 01/04-01/06-8-US-Corr, P-TC,) 24 February 2006, § 31.

[39] Ibid.

[40] Ibid.

[41] UN, “United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June – 17 July 1998, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole”, p. 106 (statement of Muladi, Head of the Indonesia delegation).

[42] Ibid., p. 200 (statement of Arizal Effendi, Deputy Head of the Indonesia delegation).

[43] Ibid., p. 109 (statement of R. Vengadesan, Head of the Malaysia delegation).

[44] Ibid., p. 308 (statement of Nguyen Ba Son, Head of the Vietnam delegation).

[45] Ibid., p. 82 (statement of Lauro L. Baja, Jr., Head of the Philippines delegation).

[46] Ibid., p. 199 (statement of Piyawat Niyomrerks, Deputy Director-General, Dep’t of Treaties and Legal Affairs, Thai Ministry of Foreign Affairs).

[47] Ibid.

[48] Schabas, W., International Criminal Court, p. 261.

[49] Lubanga (ICC-01/04-01/06 OA 13).

[50] Schabas, W., International Criminal Court, p. 311.

[51] Ibid.

[52] International Criminal Court (ICC), “Rules of Procedure and Evidence”, Rule 140(2).

[53] ICC, “Rules of Procedure and Evidence”, Rule 141.