ICC Legal Analysis and Education Project

WCRO Reports on Early Issues Before the International Criminal Court

Report 1: Victim Participation Before the International Criminal Court

01 Dec, 2007

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.

Read more

Report 2: Interlocutory Appellate Review of Early Decisions by the International Criminal Court

01 Jan, 2008

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.

Read more

Report 3: The Gravity Threshold of the International Criminal Court

01 Mar, 2008

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.

Read more

Report 4: Protecting the Rights of Future Accused During the Investigation Stage of International Criminal Court Operations

01 Jul, 2008

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.

Read more

Report 5: The Confirmation of Charges Process the International Criminal Court

01 Oct, 2008

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.

Read more

Report 6: Victim Participation at the Case Stage of Proceedings

01 Feb, 2009

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. The goal of this report is to contribute to the ongoing effort to render the victim participation scheme meaningful by identifying certain aspects of the scheme as implemented thus far that might benefit from review and offering recommendations consistent with the intent of the drafters that created the scheme.

Read more

Report 8: The Relationship Between the International Criminal Court and the United Nations

01 Aug, 2009

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.

Read more

Report 7: Witness Proofing at the International Criminal Court

01 Aug, 2009

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.

Read more

Report 9: The Relevance of "A Situation" to the Admissibility and Selection of Cases Before the ICC

01 Oct, 2009

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?

Read more

Report 10: Defining the Case Against an Accused Before the ICC: Whose Responsibility Is It?

01 Nov, 2009

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.

Read more

Report 11: The Practice of Cumulative Charging at the ICC

01 May, 2010

This report examines the Bemba Pre-Trial Chamber's determination that the practice of cumulative charging is not warranted in the context of the International Criminal Court as a general matter, as well as the Chamber's holding that, in the case before it, the charges of torture as a crime against humanity and outrages upon personal dignity as a war crime were inappropriately cumulative. The report begins with a discussion of cumulative charging in international criminal bodies, where the practice is widely accepted. It then lays out the relevant jurisprudence from the Bemba case. Finally, the report analyzes the Bemba jurisprudence and offers recommendations. In particular, the report concludes that nothing prohibits the practice of cumulative charging at the ICC, and persuasive reasons exist to permit the practice. On this basis, it recommends that the ICC broadly permit cumulative charging, or, at a minimum, that it permit multiple charges based on the same evidence where each charge contains a materially distinct element.

Read more

Report 12: The Case-Based Reparations Scheme at the International Criminal Court

01 Jun, 2010

The adoption of the Rome Statute governing the International Criminal Court (ICC) marked the first time that an international criminal body was authorized to award a range of reparations, including restitution, compensation, and rehabilitation, against individual perpetrators of mass atrocities for the benefit of their victims. In the years since, the ICC's reparations scheme has generated a high level of expectations, and it has been suggested that the very success of the Court will, at least in part, depend on its ability to effectively implement the Statute's reparations regime. Nevertheless, little is known about how the scheme will work in practice. This is due in part to the fact that the documents governing the ICC establish the scheme in very general terms, and in part to the fact that the scheme is sui generis in that it is the first international process designed to award reparations to victims of mass atrocities in the context of criminal proceedings against individual perpetrators. The aim of this report is, first, to highlight the need for the Court to establish principles relating to the operation of the case-based reparations scheme outside of the context of any single case, as envisioned under the Rome Statute. Second, the report contains a number of proposals for the Court to consider when drafting its principles on case-based reparations, including those relating to issues of timing, the definition of "victim" for purposes of reparations, forms of reparations, the use of experts in processing claims and determining the substance of reparations awards, and the role of the Trust Fund for Victims in relation to case-based reparations. Finally, the report contains two specific recommendations aimed at facilitating a positive experience for victims in their interactions with the ICC relative to its case-based reparations scheme.

Read more

Report 13: Modes of Liability and the Mental Element: Analyzing the Early Jurisprudence of the International Criminal Court

01 Sep, 2010

The Rome Statute of the International Criminal Court (ICC), unlike the statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, contains detailed provisions relating to the general part of criminal law, including articles distinguishing various modes of direct liability and superior responsibility, and specifying the mental element required for crimes within the jurisdiction of the Court. Importantly, these provisions represent an attempt by the drafters to create truly international principles of criminal law, and thus none is drawn directly from any single domestic legal tradition. While the Rome Statute has been praised for its provisions setting forth the rules of general criminal law applicable to the crimes within the jurisdiction of the ICC, the unique nature of the provisions has raised a number of questions regarding their appropriate interpretation. Two of the Court's Pre-Trial Chambers have attempted to answer some of these questions in the context of the confirmation decisions in the first three cases to go to trial before the ICC. This report examines the holdings in these first decisions regarding individual criminal responsibility and the mental element under the Rome Statute, not for purposes of analyzing the application of the law to the facts in any given case, but rather to look at some of the issues raised by the Chambers' initial interpretations of the Rome Statute's provisions on criminal law and offer recommendations regarding matters that are likely to arise again in the future.

Read more

Report 14: Expediting Proceedings at the International Criminal Court

01 Jun, 2011

In its less than one decade of existence, the International Criminal Court (ICC) has achieved a great deal, opening formal investigations into six situations involving some of the most serious atrocities seen since the birth of the Court in 2002 and commencing cases against a number of the individuals believed to bear the greatest responsibility for those atrocities. However, nearly ten years after coming into being, the ICC has yet to complete a single trial, raising concerns among States Parties to the Rome Statute and others regarding the effective functioning of the Court. Hence, while recognizing that the ICC is still a very young institution faced with a variety of novel substantive and procedural challenges, the aim of this report is to identify areas of unnecessary delays in proceedings currently before the Court that are likely to arise again, and suggest ways in which such delays may be avoided in the future.

Read more

Report 15: Ensuring Effective and Efficient Representation of Victims at International Criminal Court

01 Dec, 2011

The International Criminal Court is frequently lauded for being the first international criminal body to allow victims to participate in proceedings, not just as witnesses for one of the parties, but in their own right. Nevertheless, nearly a decade after the entry into force of the Rome Statute, many questions about the appropriate functioning of the Court’s victim participation scheme remain outstanding, several of which relate to the representation of victims before the Court. Specifically, questions have arisen relating to the respective roles of the Court’s Victims Participation and Reparations Section and Office of Public Counsel for Victims; whether applicants should receive representation prior to a determination on their applications for victim status; when and how victims should be appointed common legal representation; and whether legal representation should be provided solely by external legal representatives, or whether the Office of Public Counsel for Victims should engage in direct representation of victims. To varying degrees, these questions have been addressed by different Chambers of the Court in various cases, but have yet to be answered in a definitive manner, thereby leading to the inconsistent treatment of victims across cases. The aim of this report is to examine the way in which these questions have been dealt with by the Court to date and to recommend responses to the questions that can be applied with consistency across cases.

Read more

Report 16: Investigative Management, Strategies, and Techniques of the International Criminal Court's Office of the Prosecutor

01 Oct, 2012

At the time of this writing, just over ten years after the Rome Statute governing the ICC entered into force, the Court had issued warrants of arrest or summonses to appear against twenty-nine individuals. To date, fourteen of these individuals have appeared before the Court for purposes of participating in a hearing before a Pre-Trial Chamber to determine whether the Prosecution’s charges should be confirmed and the case should be sent to trial. While the Pre-Trial Chambers have confirmed charges against the majority of individuals appearing before them thus far, they have declined to confirm the charges against four suspects, meaning that the Prosecution has failed to establish that there are “substantial grounds to believe” the charges against nearly one-third of its suspects. Furthermore, even in those cases that do survive the confirmation hearing and proceed to trial, charges have occasionally been dropped by the Pre-Trial Chamber due to an insufficiency of evidence. Finally, the first case to actually go to trial before the Court involved limited charges that were widely perceived as not fully reflecting the criminal conduct of the accused, and the Trial Chamber, in its judgment, determined that the evidence provided by a number of Prosecution witnesses could not safely be relied on due to questionable practices employed by intermediaries working with the Office of the Prosecutor (OTP).  

Read more

Report 17: Regulation 55 and the Rights of the Accused at the International Criminal Court

01 Oct, 2013

This report offers recommendations aimed at limiting the availability of Regulation 55 so as to ensure that the rights of the accused to a fair and expeditious trial are safeguarded while maintaining the Trial Chamber’s authority to recharacterize in exceptional circumstances. In addition, the report advocates a more flexible approach to charging on the part of the Prosecution and the Pre-Trial Chambers in the hope that such changes may reduce the need for a Trial Chamber to invoke Regulation 55 after trial proceedings have commenced.

Read more

Report 18: Obtaining Victim Status for Purposes of Participating in Proceedings at the International Criminal Court

01 Dec, 2013

One of the most lauded features of the permanent International Criminal Court (ICC) is its victim participation scheme, which allows individuals harmed by the crimes being prosecuted by the Court to share their views and concerns in proceedings against the persons allegedly responsible. To date, more than 12,000 individuals have applied to participate in proceedings before the ICC, and well over 5,000 have successfully obtained victim status. However, the process established under the documents governing the ICC by which individuals apply for and receive permission to participate – which involves each individual victim submitting a detailed form with supporting documentation to the Court, observations on each application by the parties, and an individualized decision on the application by a Chamber of the Court – has proved inefficient for the applicants, the parties, and the Court. At the same time, the process has been frustrating for victims, as it can take more than two years for applicants to receive a decision on their status, meaning victims are often unable to share their views and concerns with the Court during key proceedings in the case. This frustration is compounded by the fact that, for the vast majority of victims, participation takes place through a common legal representative, appointed by the Court to represent significant numbers of victims together, raising the question as to why individual victims were required to endure such a lengthy and detailed application process.  

Read more

Report 19: The Confirmation of Charges Process at the ICC: A Critical Assessment and Recommendations for Change

01 Oct, 2015

Article 61 of the Rome Statute establishing the International Criminal Court (ICC) creates a process unique among international criminal bodies: the confirmation of charges process. Specifically, the article provides that, prior to committing a suspect to trial before the Court, a Pre-Trial Chamber of the ICC shall hold a hearing to assess whether the Prosecution has presented sufficient evidence to establish substantial grounds to believe that the suspect bears responsibility for the charged crime or crimes. In theory, the confirmation process is intended to achieve several goals, including ensuring prosecutorial fairness and efficiency, protecting the rights of the suspect, and promoting judicial economy. However, as evidenced in the review in this report of the twelve confirmation hearings held at the ICC to date, in practice, the process has fallen far short of achieving these goals. Given the disconnect between the intended goals of the confirmation process and the way the process has played out in practice, it is clear that changes to the system are in order. While some attempts have been made both from within and outside of the Court to improve the Article 61 process in recent years, these initiatives have either been too minor in scope or have tended towards an expansion of the confirmation process, which would likely exacerbate several of the problems identified in this report. We therefore recommend a fundamental change in the approach to the confirmation process by significantly scaling back the proceedings in a way that realigns the confirmation process with the intent of the Rome Statute’s drafters. Specifically, we recommend requiring that the confirmation process be conducted primarily on the basis of written submissions and that it be completed within ninety days of a suspect’s first appearance before the Court, absent exceptional circumstances. As detailed in the report, this could be achieved through a series of amendments to the ICC’s Rules of Procedure and Evidence and Regulations of the Court, coupled with a basic shift in the approach of the Pre-Trial Chambers regarding their role in the confirmation process.

Read more