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);
  • 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;
  • Chief Justice Phillip Rapoza of the Massachusetts Appeals Court and former Chief International Judge serving as Coordinator of the Special Panels for Serious Crimes in East Timor;
  • Juan Mendez, UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and former Special Advisor on Prevention to the Prosecutor of the International Criminal Court;
  • until her appointment as head of the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict, 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;
  • 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.

We welcome your comments on these reports and invite you to complete a brief online survey.

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)


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)


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)


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)


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)


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.

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.

Full Report (PDF)


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)


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)


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)


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)


Report 11 - May 2010 – The Practice of Cumulative Charging at the International Criminal Court

On 15 June 2009, Pre-Trial Chamber II of the International Criminal Court (ICC) issued a decision confirming several of the charges lodged against Jean-Pierre Bemba Gombo and sending the case to trial. Notably, however, the Chamber declined to confirm certain of the charges brought by the Prosecution, including the charges of torture as a crime against humanity and outrages upon personal dignity as a war crime. The Prosecution had alleged that the accused bore responsibility for these crimes based on evidence establishing, inter alia, Mr. Bemba's role in numerous acts of rape committed against civilians in the Central African Republic. Importantly, the Pre-Trial Chamber did find sufficient evidence to establish substantial grounds to believe that these acts of rape took place, and that the accused could be held criminally responsible for the acts. Yet, it held that the prosecution had acted inappropriately by bringing “cumulative charges” based on the acts of rape, and thus only confirmed the charges of rape as a crime against humanity and rape as a war crime, while dismissing the charges of torture as a crime against humanity and outrages upon personal dignity as a war crime.

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.

Full Report (PDF)


Report 12 - June 2010 - The Case-Based Reparations Scheme at the International Criminal Court

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.

Full Report (PDF)


Report 13 - September 2010 - Modes of Liability and the Mental Element: Analyzing the Early Jurisprudence of the International Criminal Court

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.

Full Report (PDF)


Report 14 - June 2011 - Expediting Proceedings at the International Criminal Court

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.

Full Report (PDF)


Report 15 - December 2011 - Ensuring Effective and Efficient Representation of Victims at the International Criminal Court

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.

Full Report (PDF)


Report 16 - October 2012 - Investigative Management, Strategies, and Techniques of the International Criminal Court’s Office of the Prosecutor

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).

We recognize that the challenges of conducting international criminal investigations are legion, given investigators’ restricted access to evidence, either due to the passage of time and/or uncooperative governments; international institutions’ lack of enforcement powers; cultural and linguistic barriers to interviewing witnesses; persistent security concerns; the overwhelming scale of the crimes under investigation; and the fact that those working in international institutions hail from different legal traditions and thus are likely to have different views on appropriate investigative policies and practices.  We also appreciate that, despite these challenges, the OTP has achieved substantial successes in a short period of time, as evidenced most strikingly by the recent conviction of its first suspect and the issuance of warrants and summonses involving a wide range of charges for war crimes, crimes against humanity, and genocide against multiple suspects across seven diverse situations in fewer than ten years.  Nevertheless, we believe that – as the OTP undergoes its first change of leadership with the departure of the Court’s inaugural Chief Prosecutor – it is worth examining some of the potentially problematic aspects of the Office’s investigative practices that have been identified by the judges of the Court and outside observers to date.  The aim of this report is to explore some of those issues and offer recommendations that we hope will contribute to improving the OTP’s investigative practices, thereby helping to build a stronger Office of the Prosecutor and enhancing the Court’s capacity to administer justice more effectively.

Full Report (PDF)


Report 17 - October 2013 - Regulation 55 and the Rights of the Accused at the International Criminal Court

*WCRO prepared this report in collaboration with the International Bar Association's (IBA) Hague Office

In nearly every case that has reached trial before the International Criminal Court (ICC) to date, a significant amount of time and litigation has been devoted to questions regarding the potential use by the Trial Chamber of Regulation 55 of the Regulations of the Court. This is a provision that permits the Chamber to convict an accused of a crime other than that with which he was originally charged by the Prosecution, or to base its conviction on a different mode of liability than originally charged, subject to certain conditions. Notably, one of the rationales behind the adoption of Regulation 55 by the ICC was that it would render the proceedings more efficient by obviating the need for the Prosecution to charge alternative or cumulative charges at the start of trial. However, as described in detail in this report, Regulation 55 has in fact resulted in substantial inefficiencies. Even more significantly, the use of the regulation under certain scenarios raises serious questions regarding the Trial Chamber’s ability to protect the rights of the accused to be informed of the charges against him, even with the safeguards spelled out in the regulation, as seen in the Prosecutor v. Germain Katanga case described in this report.

In light of these concerns, 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.

Full Report (PDF)


Report 18 - December 2013 - Obtaining Victim Status for Purposes of Participating in Proceedings at the International Criminal Court

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.

Recognizing that the current system is both unsustainable and undesirable, various Chambers of the Court have been exploring alternative means by which individuals may obtain victim status in the cases before them, and the Court’s Assembly of States Parties (ASP) is considering reforming the system courtwide. This report examines the different options that have been tried and/or that are under consideration by the ASP and ultimately recommends changes to the victim application system aimed at saving valuable time and resources for applicants, the Registry, the parties, and the Chambers. Importantly, the recommended changes are unlikely to undermine the meaningfulness of victim participation, and in fact will allow victims to gain recognition and the right to representation much more quickly than under the current system, meaning the recommended approach is likely to make participation more meaningful for a large number of victims.

Full Report (PDF)


Report 19 - October 2015 - The Confirmation of Charges Process at the International Criminal Court: A Critical Assessment and Recommendations for Change

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.

Full Report (PDF)