WCRO Reports on Early Issues Before the International Criminal Court
In 2007 the WCRO launched a new initiative, the ICC Legal Analysis and Education Project, aimed at producing public, impartial, legal analyses of critical issues raised by the Court’s early decisions. This project has benefited from the insights of an Advisory Committee comprised of the following experts in international law:
- Siri Frigaard, Chief Public Prosecutor for the Norwegian National Authority for Prosecution of Organized and Other Serious Crimes;
- Justice Richard Goldstone, former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR);
- Judge Mary McGowan Davis, former Acting New York State Supreme Court Judge and Board Member of the International Judicial Academy and the American Association for the International Commission of Jurists;
- Justice Unity Dow, Commissioner of the International Commission of Jurists (ICJ), member of the ICJ's Executive Committee and former judge of the Botswana High Court;
- until his election as a judge to the Appeals Chamber of the ICC in December 2007, Daniel Nsereko, University of Botswana Professor of International Law and former Uganda Government Delegate to the Assembly of States Parties to the Statute of the International Criminal Court;
- until her appointment as Co-Chair of the American Society of International Law Task Force on US Policy toward the ICC in the fall of 2008, Judge Patricia Wald, former Judge of the ICTY;
- until her appointment as International Reserve Judge of the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in February 2009, Judge Florence Mumba, former Judge of the Supreme Court of Zambia and former judge of the ICTY;
- and until her appointment as Deputy, Office of War Crimes Issues for the U.S. Department of State in October 2009, Diane Orentlicher, WCL Professor and former Special Counsel, Open Society Justice Initiative.
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Report 1 - December 2007 - Victim Participation Before the International Criminal Court This report seeks to clarify the objectives and concerns underlying the design of the ICC victim participation scheme, evaluate the Court’s early jurisprudence on the issue, and suggest potential areas of reform that might allow the Court to better achieve the promise of the Rome Statute to afford victims a meaningful role in proceedings without offending the rights of the accused or significantly delaying the proceedings. Full Report (PDF) |
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Report 2 - January 2008 - Interlocutory Appellate Review of Early Decisions by the International Criminal Court In the context of early investigations and cases, the Pre-Trial Chambers (PTCs) of the ICC have issued decisions on a variety of seminal issues that are likely to impact the structure and operations of the world’s first permanent international criminal court. In this report, we highlight certain aspects of the PTCs’ approach to discretionary interlocutory appeals that appear to be unduly restrictive and recommend a more generous approach that would allow greater appellate review of certain critical issues before final judgment is rendered. Early review of these issues might not only save the Court time by avoiding confusion and resolving unnecessarily time-consuming procedures in the near term, but also help ensure the long-term credibility and integrity of the Court. Full Report (PDF) |
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Report 3 - March 2008 - The Gravity Threshold of the International Criminal Court Article 17(1)(d) of the Rome Statute provides that the International Criminal Court (ICC) shall determine that a case is inadmissible where the case is not of sufficient gravity to justify further action by the Court. This so-called "gravity threshold" has played a critical role in guiding the ICC Prosecutor’s selection of investigations to initiate and crimes to prosecute, not only because of the need to satisfy admissibility requirements, but also as a matter of policy. This aim of this report is therefore to review the underlying purpose of the threshold as understood by the drafters of the Rome Statute, analyze the application of gravity considerations in practice during the initial years of the Court’s operations, and offer recommendations aimed at clarifying both the objectives of the threshold and the factors relevant to its satisfaction. Full Report (PDF) |
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Report 4- July 2008 - Protecting the Rights of Future Accused During the Investigation Stage of International Criminal Court Operations This report reviews the provisions created for the purpose of safeguarding the rights of future accused before the Court, the drafting history of those provisions, and the approach adopted to date by the ICC Pre-Trial Chambers in interpreting those provisions. It then offers recommendations as to how the practices of the ICC might be improved to more fully ensure that the rights of future accused are protected during the situation phase of proceedings, as protecting these rights is critical to guaranteeing the right to a fair trial for those accused eventually charged and brought before the ICC. Full Report (PDF) |
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Report 5- October 2008 - The Confirmation of Charges Process at the International Criminal Court This report addresses the unique process developed under the Rome Statute requiring that, within a “reasonable time” after an accused person has been taken into the custody of the International Criminal Court (ICC), the Pre-Trial Chamber hold a hearing to determine whether there are substantial grounds to believe that the accused committed the crimes charged by the Prosecutor. At this close of this hearing, the Chamber may confirm the charges and commit the accused to trial; decline to confirm the charges; or adjourn the hearing and request the Prosecutor to consider providing further evidence or amending a charge. To date, the ICC has confirmed the charges in two cases - namely, in the case against Thomas Lubanga Dyilo and in the joint case against Germain Katanga and Mathieu Ngudjolo Chui. Focusing on these two cases, the aim of this report is to analyze the confirmation process as carried out by the Court thus far - both in terms of the manner in which the drafters of the Rome Statute seemed to have envisioned the process, as well as with respect to issues not necessarily anticipated by the drafters - and to make recommendations as to how the process might be improved for future accused. Full Report (PDF) |
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Report 6 - February 2009 - Victim Participation at the Case Stage of Proceedings Of all of the novel aspects of the International Criminal Court (ICC), perhaps none has been so widely written about as the Court’s unique and innovative victim participation scheme. Yet for all that has been written on the issue of victim participation - both inside the Court and out - there is little clarity as to the purpose of the scheme or how it should operate. In part, the lack of clarity stems from the fact that Article 68(3) of the Rome Statute, which constitutes the foundational provision for victim participation before the Court, leaves a great deal of discretion to the Chambers to determine how and when victims will be permitted to exercise their right to present their views and concerns to the Court. Nevertheless, more than three years after Pre-Trial Chamber I’s first decision addressing the scope of victim participation, confusion remains as to the purpose of the scheme and how it should operate. Full Report (PDF) |
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Report 7 - July 2009 - Witness Proofing at the International Criminal Court To date, two chambers of the International Criminal Court (ICC) – Pre-Trial Chamber I and Trial Chamber I – have ruled against requests by the Prosecution that the parties be permitted to engage in “witness proofing.” Proofing, as proposed by the Prosecution, is a process that would involve lawyers meeting with witnesses prior to their testimony to allow the witnesses to read their prior statements and refresh their memories in respect of the evidence they would give, as well as to review the questions that the examining lawyer intends to ask at trial and explore any additional information that the witness may be able to offer. This report takes the position that the practice of witness proofing can and should be extended to include meetings between the parties and lay witnesses prior to trial, particularly in the case of vulnerable witnesses. Although there may be some concern that witness “proofing” will develop into witness “coaching,” the report explains that a number of safeguards will work to prevent any improper influencing of witnesses and that, on balance, the potential benefits of witness proofing to the parties, the Chambers, and the witnesses far outweigh the potential drawbacks. Full Report (PDF) |
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Report 8 - August 2009 - The Relationship Between the International Criminal Court and the United Nations The drafters of the Rome Statute recognized that the ICC will often need the active support of the UN to be effective, and thus included several provisions in the Rome Statute aimed at governing the relationship between the Court and the UN. This report focuses on two of those provisions – namely Article 16 and Article 54(3)(e) – each of which has been the subject of some controversy in recent months. In this report, we review the issues that have arisen in regards to Articles 16 and 54(3)(e) of the Rome Statute and offer recommendations regarding the appropriate approach to resolving such issues in the future. Full Report (PDF) |
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Report 9 - October 2009 - The Relevance of "A Situation" to the Admissibility and Selection of Cases Before the International Criminal Court Under the Rome Statute of the ICC, the Court may exercise jurisdiction in only one of three circumstances: (i) where “a situation” is referred by a State Party to the Rome Statute; (ii) where “a situation” is referred by the United Nations Security Council; or (iii) where the ICC Prosecutor “has initiated an investigation” proprio motu with the authorization of the Court’s Pre-Trial Chamber. To date, the Court’s exercise of jurisdiction has been triggered four times and the Court’s Prosecutor has, in turn, initiated a series of individual cases falling within those situations, meaning that much of the focus at the Court in recent years has been on the initiation or progress of these cases. Yet the practice at the Court thus far has also raised questions about the appropriate understanding of situations, a term that is not defined in any of the governing documents of the ICC. This report seeks to address two of those questions, which have notably engendered little discussion, despite potentially having a significant impact on the future work of the Court. The first question is: when the ICC Prosecutor accepts a referral from a State Party or the Security Council, does he or she have to accept the situation as defined by the referral or can he or she expand its parameters? The second issue is: at what point should the Prosecutor consider gravity and other admissibility criteria required by Article 17 of the Rome Statute? Full Report (PDF) |
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Report 10 - November 2009 - Defining the Case Against an Accused Before the International Criminal Court: Whose Responsibility Is It? Since the first case began at the ICC in March 2006, a series of decisions have been issued raising questions about the respective authority of the Prosecutor and the judges to determine the appropriate charges in cases tried before the ICC. The first two decisions relate to the authority of the Pre-Trial Chambers, the main function of which is to oversee the process of confirming the charges against the accused prior to trial. The third decision relates to the authority of the Trial Chamber to change the “legal characterization” of the charges against an accused after the trial has commenced. This report examines the key question underlying these decisions, namely, whether the judges at the ICC maintain a supervisory role over the Prosecution in the latter’s selection of charges. Full Report (PDF) |