II S i r e n t e ESSAYS ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT volume I editedby FLAVIA LATTANZI and WILLAM A. SCHABAS
CONTENTS Abbreviations Editors' Note XK XXV GIOVANNI CONSO SOME REFLECTIONS ON THE INTERNATIONAL CRIMINAL COURT UMBERTO LEANZA THE ROME CONFERENCE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT: A FUNDAMENTAL STEP IN THE STRENGTHENING OF INTERNATIONAL CRIMINAL LAW 1. Introduction 7 2. The Legal Reasons for Establishing an International Criminal Court 9 3. The Organizational and Procedural Complexity of the Rome Diplomatie Conference 10 4. The Legal and Political Hurdles of the Diplomatie Conference 12 5. The Italian Delegation's Initiatives during the Conference 14 6. The Results Attained 15 7. Italy and the Ratification and Implementation of the Rome Statute 19 PAOLO BENVENUTI COMPLEMENTARITY OF THE INTERNATIONAL CRIMINAL COURT TO NATIONAL CRIMINAL JURISDICTIONS 1. Complementarity as the Main Feature of the ICC: Introductory Remarks 21
VI CONTENTS Section I Relationship between National Jurisdictions and International Criminal Jurisdictions: a Historical Perspective 2. The Experience of the International Tribunals of Nuremberg and Tokyo 23 3. The Traditional Approach of Customary International Law to States' Jurisdiction over Crimes 25 4. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide 26 5. The Repression of War Crimes in the Geneva Conventions of 1949 28 6. The Convention on the Suppression and Punishment of the Crime of Apartheid 30 7. The Duties of Repression in the 1984 Convention against Torture 31 Section II The Concurrent Jurisdiction of the Ad Hoc International Tribunals for Yugoslavia and Rwanda and National Courts 8. The Primacy of the A dhoc International Criminal Tribunals for Yugoslavia and Rwanda 33 9. Primacy as the Content of a Mandatory Rule Binding States, According to the Traditional Dualist Approach of International Relations 34 10. The Duty of States to Co-operate wherever they Exercise Governmental Jurisdiction 36 11. Primacy and Refusal to Co-operate with the Ad hoc International Criminal Tribunals 37 Section III The Complementary Role of the International Criminal Court 12. The Complementary Role of the ICC Founded on the Consent of States 39 13. Complementarity of the ICC and Referral of a Situation by the Security Council 41 14. "Unwillingness" and "Inability" as Conditions for Declaring the Admissibility of a Case 42 15. The Meaning of "Unwillingness" and "Inability" 43 16. The Pre-Trial Procedure Concerning Admissibility 46 17. The Declaration of Admissibility: a Difficult Challenge for the ICC 49
CONTENTS FLAVIA LATTANZI THE ROME STATUTE AND STATE SOVEREIGNTY. ICC COMPETENCE, JURISDICTIONAL LINKS, TRIGGER MECHANISM 1. Introduction 2. The Responsibility of States' Jurisdictions in the Repression of Crimes of International Concern 3. The State Participation to the Statute as Automatic Acceptance of ICC Jurisdiction 4. The Jurisdictional Links for the Exercise of the ICC Jurisdiction 5. The "Trigger-Mechanism" 6. The Power of the UN Security Council to Refer a Situation to the Court 7. The Power of the UN Security Council to Suspend the Court's Activity 1. Introduction PlETRO GARGIULO THE CONTROVERSIAL RELATIONSHIP BETWEEN THE INTERNATIONAL CRIMINAL COURT AND THE SECURITY COUNCIL Section I The Referral of a Situation by the Security Council 2. Art. 13 (b) and its "Legislative" History a) The Initial Proposal of the ILC b) The Proposais Elaborated by the Preparatory Committee c) The Work of the Diplomatie Conference 3. Evaluation of Art. 13 (b) a) The Referral by the Security Council and the Legal Nature of the ICC b) The Referral by the Security Council and the Principle of Complementarity Section II The Deferral of an Investigation or Prosecution by the Security Council 4. Art. 16 of the Statute 5. The Proposal Elaborated by the ILC
VIH CONTENTS 6. The Work of the Preparatory Committee 88 7. The Work of the Diplomatie Conference 89 8. The Evaluation of Art. 16 90 Section III The Problem of Aggression and the Role of the Security Council 9. The Solution Adopted in the Statute on the Crime of Aggression 91 10. The Crime of Aggression in the Draft Code of Crimes against the Peace and Security ofmankind 92 11. The ILC Draft Statute Proposal 95 12. The Work of the Preparatory Committee 96 13. The Work of the Rome Diplomatie Conference 98 14. Some Remarks on the Results Achieved by the Rome Diplomatie Conference 99 Section IV States' Obligations of Co-operation and the Role of the Security Council 15. Non-Compliance of the Obligation to Co-operate by States and the Role of the Security Council 100 Conclusions 102 EMANUELA FRONZA GENOCIDE IN THE ROME STATUTE 1. Introduction 105 2. From Concept to Word 107 3. The Crime of Genocide in International Instruments 109 a) The genocide Convention b) The ILC Draft Code against the Peace and Security ofmankind c) The Statutes of ad hoc Tribunals for the Former Yugoslavia and for Rwanda. 4. Towards and Beyond Art. 6 of the Rome Statute 113 a) The wording of Art. 6 b) The Elements of Crimes 5. The Protected Interest 116
CONTENTS IX 6. The Constituent Elements 119 A. The material element 119 a) Killing members of the group b) Causing serious bodily or mental härm to members of the group c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part d) Imposing measures intended to prevent births within the group e) Forcibly transferring children of the group to another group B. The mental element 127 a) To destroy b) The extension of the destruction of the group: in whole or in part 7. The Victim of Acts of Genocide 132 DARRYL ROBINSON CRIMES AGAINST HUMANITY: REFLECTIONS ON STATE SOVEREIGNTY, LEGAL PRECISION AND THE DICTATES OF THE PUBLIC CONSCIENCE 1. Introduction 139 2. Nexus to Armed Conflict 144 a) The authorities b) The Functional Considerations c) The Outcome 3. Discriminatory Grounds 149 a) The authorities b) The functional considerations c) The outcome 4. The Threshold Test 151 A. Disjunctive test: widespread or systematic 152 a) The issue b) The authorities c) The functional considerations d) The outcome B. Attack directed against any civilian population: Multiple acts 155 a) The issue, authorities, and functional considerations b) The outcome
X CONTENTS C. Attack directed against any civilian population: policy element 156 a) The issue b) The authorities c) The functional considerations d) The outcome S.MensRea 164 a) The authorities b) The functional considerations and outcome 6. The Enumerated Inhumane Acts 166 7. Assessment 167 GABRIELLA VENTURINI WAR CRIMES 1. The Jurisdiction of the International Criminal Courtin Respect of War Crimes 171 2. War Crimes Committed in International Armed Conflicts 172 3. War Crimes Committed in Armed Conflicts not of an International Character 177 4. The Role of the "Elements of Crimes" 179 5. Crimes Excluded from the Jurisdiction of the International Criminal Court (the Case of Treaty-Crimes) 180 BARBARA BEDONT GENDER-SPECIFIC PROVISIONS IN THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1. Introduction 183 2. What Are the Gender Provisions? 184 3. What Is "Gender"? 186 4. The Evolution of Gender Crimes under International Law: from the Hague torome 189 5. An Examination of Certain Gender Crimes 195 a) Forced pregnancy b) Sexual slavery, enforced prostitution and enslavement c) Gender-based persecution 6. The Procedural Provisions: Balancing the Rights of the Accused with the Interests of Victims and Witnesses 202 7. The Institutional Framework 207 8. Outstanding Issues 209 9.Conclusion 210
CONTENTS XI IDA CARACCIOLO APPLICABLE LAW 1. Introduction 211 Section I Draftingof Art. 21 2. Foreword 212 3. Art. 2 of the 1951 Draft Statute for an International Criminal Court 213 4. Art. 33 of the 1994 Draft Statute for an International Criminal Court 215 5. The Ad Hoc Committee and the Preparatory Committee 217 6. Applicable Law at the Rome Conference 221 Section II An Analytical Interpretation of Art. 21 7. Forward 224 8. The Hierarchy of International Sources 225 9. Reference to National Laws and the Role of the Court's Previous Decisions 227 10. Concluding Considerations on the Function of Art. 21 in the Codification and Progressive Development of International Criminal Law 229 GIUSEPPE NESI THE ORGANS OF THE INTERNATIONAL CRIMINAL COURT AND THEIR FUNCTIONS IN THE ROME STATUTE. THE ASSEMBLY OF STATES PARTIES 1. Introduction 233 2.TheJudges 234 3. The Presidency of the Court 237 4. An Appeals Division, a Trial Division and a Pre-Trial Division 23 8 5. The Office of the Prosecutor 242 6. The Registry 244 7. The Assembly of States Parties in Connection with the Composition and Administration of the Court 246 8. Some Conclusive Remarks 248
XU CONTENTS DAVID DONAT-CATTIN THE ROLE OF VICTIMS IN ICC PROCEEDINGS 1. Introduction 251 2. The Right to Justice for Victims of "International Crimes" 253 a) The Right to Access to Justice b) The Right to Know the Truth c) The Right to Reparations 3. Status of the Definition of Victims under International Law 259 4. Protection of Victims and Witnesses before the ICC in Art. 68 262 5. Participation of Victims and Witnesses in the ICC Proceedings in Art. 68 268 6. Conclusions: the Need to Guarantee Justice for Victims through the ICC 272 Appendix: Rules of Procedure Implementing Victims' Participation 272 HELEN BRADY THE SYSTEM OF EVIDENCE IN THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1. Introduction 279 2. Sources of Law for the ICC's Rules of Evidence 281 a) International human rights law b) The practice of international criminal tribunals c) The practice of national criminal justice Systems 3. Summary of Art. 69's Provisions 286 4. The Submission of Evidence before the ICC 287 5. Criteria for Admissibility 288 a) The general test b) Other rules concerning the admission of evidence 6. Exclusionary Rules of Evidence 291 a) The general rule b) Evidence obtained in violation of the Statute or internationally recognized human rights c) No rule against hearsay d) Other exclusionary Rules of evidence 7. Privileges against Testifying 296 a) Privilege against self-incrimination b) Lawyer-client privilege c) Doctor-patient privilege d) Privileges based on other confidential relationships
CONTENTS XUI 8. Other ImportantEvidentiary Rules 300 a) Rules applicable in cases of sexual assault b) Expert evidence and other Rules Conclusion 301 CHRISTIAN P.J. MUTTUKUMARU REPARATIONS FOR VICTIMS 1. Foreword 303 2. Should there Be any Right of Reparations in the Statute? 303 3. What Should Be Encompassed by the Concept of "Reparations"? 304 4. Should there be any Right to Order an Award of Reparations against States? 307 5. At Whose Instance Should a Claim for Reparationsbe Capable of Being Mounted? 309 FAIZA P. KING and ANNE-MARIE LA ROSA PENALTIES UNDER THE ICC STATUTE 1. Introduction 311 2. Nullapoena sine lege 312 3. Sentencing Procedure 316 a) Consolidated v. bifurcated trials b) Reasoned sentencing decision 4. The Death Penalty 319 5. Imprisonment 320 a) Life imprisonment b) Credit for time already served c) Concurrent versus consecutive sentences 6.0therPenalties 325 a) Fines and forfeiture b) Reparations to victims c) Suspension of civil rights 7. Determining the Sentence 328 a) Objectives of punishment b) Proportionality and individualization Conclusion 337
XIV CONTENTS DlNO RlNOLDI AND NlCOLETTA PARISI INTERNATIONAL CO-OPERATION AND JUDICIAL ASSISTANCE BETWEEN STATES PARTIES AND THE INTERNATIONAL CRIMINAL COURT.DlNORlNOLDI Section I General and Introductory Aspects 1. The Scope of the Obligation to Co-operate with the Court 339 2. Forms of Compliance of the States with Requests of Co-operation and Assistance Made by the Court 343 Section II Arrest and Surrender 3. Surrender v. Extradition 345 4. Obligation as to the Arrest and Surrender of Persons: "Simplified Surrender", Deferred Surrender, Conditional Surrender 348 5. Provisional Arrest 351 6. Competing Requests 353 a) Competing requests for the same criminal conduct b) Competing requests for different conduct c) Obligation to notify the Court of the decision not to extradite to the requesting State NlCOLETTA PARISI Section III Other Forms of Co-operation of States Parties with the Court 7. Co-operation in Investigation and Prosecution 357 a) Obligations to act b) Obligations of non-intervention c) Execution of the request for assistance d) Issues relating to the individual ways of providing assistance and co-operation. In particular: the appearance of witnesses and experts as well as of persons held in custody in the requested State 8. Transit through the Territory of a State other than the One to Which Such Person is to be Surrendered 366
CONTENTS XV 9. Objections to the Obligation to Provide Assistance and Co-operation 367 a) Conflict with the domestic law of the requested State b) Conflict with national security c) Competing requests d) Ongoing investigation or prosecution in the requested State e) An admissibility challenge pending before the Court 10. Reciprocity in Co-operation and Assistance between States and the Court 371 11. Confidentiality of Information, Statements and Documents 372 DINO RINOLDI Section IV Issues Common to All Forms of Co-operation 12. The Rule of Specialty: General Remarks 373 a) The Rule of specialty in the Statute b) Sphere of Operation 13. Refusal to Provide Judicial Assistance and Co-operation 376 14. Procedure for Transmission of Requests for Co-operation and Assistance 377 15. The Content of Requests for Assistance 379 16. Duty to Consult with the Court 382 17. The Role of Domestic Law 3 84 DINO RINOLDI AND NICOLETTA PARISI Section V Some Final Considerations GIUSEPPE PALMISANO THE ICC AND THIRD STATES 1. Introduction 391 Section I Problems of jurisdiction and admissibility 2. The Attitüde of Third States to the Establishment of the Court's Jurisdiction. Art. 12(3) as a Treaty Stipulation in Favour of Third States 392 3. Effects of the Court's Complementary Nature on its Relationship with Third States: the Evaluation by the Court of Third States' Ability and Willingness to Prosecute 394 4. Third States and Preliminary Rulings Concerning Admissibility 397
XVI CONTENTS Section II Problems of Co-operation and Judicial Assistance 5. Relevance of Third States' Co-operation and Judicial Assistance for an Effective Exercise by the Court of its Jurisdiction 402 6. The Court's Power to Conclude Agreements of Co-operation and Judicial Assistance with Third States (Art. 87(5)) 403 7. The Problem of Competing Requests for Extradition 407 8. Execution of Requests from the Court for Co-operation and Judicial Assistance, and Respect for State or Diplomatie Immunity of Third States 409 9. Judicial Assistance by the Court in Favour of Third States 411 Section III Problems of Enforcement and Recognition of Judgements 10. Possibility for a Third State to be Designated by the ICC as State of Enforcement of Sentences of Imprisonment 412 11. Recognition of the ICC Judgements and Respect for the Ne bis in idem Principle 414 Section IV The Relationship between the ICC and Third States in the Light of International Legal Sources Other than the Statute 12. The Position of Third States in the Case of a Referral to the Court by the Security Council. The Court's Power to Inform the Security Council about Lack of Co-operation by a Third State 416 13. Possibility to Infer an Obligation for Third States to Co-operate with the ICC from Pre-existing Treaties Prohibiting War Crimes or Crimes against Humanity. Need to Distinguish between Treaties Providing or not Providing for the Jurisdiction of an International Criminal Tribunal 419 14. Remarks on the Usefulness for the Court to Adopt a Flexible Approach in Concluding Co-operation Agreements with Third States 424
CONTENTS XVII ANTONIO MARCHESI THE ENFORCEMENT OF SENTENCES OF THE INTERNATIONAL CRIMINAL COURT 1. The Absence of a General Obligation on Recognition and Enforcement of Judgements 427 2. Enforcement of Sentences of Imprisonment: the State of Enforcement 430 3. General Principles on the Enforcement of Sentences of Imprisonment 436 4. Completion of Sentences of Imprisonment 439 5. Early Release, Escape of Sentenced Persons 441 6. Prosecution or Punishment for Other Offences 443 7. Enforcement of Fines and Forfeiture Measures 444 APPENDIX THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT Preamble 447 Part 1. Establishment of the Court 448 Part 2. Jurisdiction, Admissibility and Applicable Law 449 Part 3. General Principles of Criminal Law 461 Part 4. Composition and Administration of the Court 465 Part 5. Investigation and Prosecution 475 Part 6. TheTrial 483 Part 7. Penalties 492 Part 8. Appeal and Revision 493 Part 9. International Cooperation and Judicial Assistance 496 Part 10. Enforcement 507 Part 11. Assemblyof States Parties 51 Part 12. Financing 512 Part 13. Final Clauses 513