Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.14 Referral of a situation by a State Party/Renvoi d’une situation par un état partie

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Applicable Law

This chapter comments on Article 14 of the Rome Statute of the International Criminal Court. Article 14 is really the completion of article 13(a). Article 13 lists three sources of ‘triggering’ or authorization for exercise of jurisdiction: the Security Council, a State Party, and the propriomotu initiative of the Prosecutor. Article 14 contrasts with the brief text governing Security Council referral found in article 13(b). Arguably, the two processes are similar, and the different formulations of the concept of referral in articles 13(b) and 14 are puzzling. It would have been preferable to use equivalent language and terminology, given the substantive similarities. The differences can be explained by the complex drafting process, and the fact that the two concepts originate in different provisions within the early versions of the Statute.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.13 Exercise of jurisdiction/Exercice de la compétence

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
United Nations Security Council ◽  
State Party ◽  
Applicable Law ◽  
The Law

This chapter comments on Article 13 of the Rome Statute of the International Criminal Court. Article 13 is the first of three provisions in the Rome Statute on the ‘triggering’ of the jurisdiction. Once it is established that the Court has jurisdiction, a ‘situation’ must be triggered by one of the three mechanisms set out in article 13. The law applicable to referral by a State Party, which is authorized by article 13(a), is thoroughly addressed in article 14 of the Rome Statute. Similarly, the law concerning proprio motu initiation of proceedings by the Prosecutor is dealt with in article 15. As a result, the present analysis focuses on article 13(b), which establishes the authority of the United Nations Security Council to refer a ‘situation’ to the Court.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.15bis Exercise of jurisdiction over the crime of aggression (State referral, proprio motu )/Exercice de la compétence à l’égard du crime d’agression (Renvoi par un État, de sa propre initiative)

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Applicable Law ◽  
Opposite Order

This chapter comments on Article 15bis of the Rome Statute of the International Criminal Court. Article 15bis along with article 15ter govern the exercise of jurisdiction by the Court with respect to the crime of aggression. They are part of a package of amendments adopted at the Kampala Review Conference in 2010. Article 15bis governs prosecution for the crime of aggression based upon referral by a State Party or at the initiative proprio motu of the Prosecutor. Its counterpart, article 15ter, deals with referral of a situation involving the crime of aggression by the Security Council. Although article 15bis precedes article 15ter within the architecture of the Rome Statute, in reality the process operates in the opposite order. That is because action under article 15bis is dependent on either action or inaction by the Security Council. If the Security Council determines that an act of aggression has taken place, then either a State Party or the Prosecutor may initiate an investigation.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.8bis Crime of aggression/Crime d’agression

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Secretary General ◽  
State Party ◽  
Applicable Law ◽  
The Subject ◽  
One Year

This chapter comments on Article 8bis of the Rome Statute of the International Criminal Court. Article 8bis defines the crime of aggression, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. The provision is part of a package of amendments adopted at the Kampala Review Conference in 2010. It entered into force in accordance with article 121(5) one year after ratification of the amendments by the first State Party. Liechtenstein was the first State Party to ratify the amendments, on May 8, 2012. Consequently, the amendment entered into force on May 8, 2013. On that date, the amendment was registered by the depository, the Secretary-General of the United Nations. However, exercise of jurisdiction by the Court over article 8bis is subject to article 15bis and article 15ter.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.12 Preconditions to the exercise of jurisdiction/Conditions préalables à l’exercice de la compétence

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United States ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
General Rule ◽  
The United States ◽  
Criminal Court ◽  
State Party ◽  
Applicable Law ◽  
Party State

This chapter comments on Article 12 of the Rome Statute of the International Criminal Court. Article 12 was ‘[p]erhaps the most difficult compromise in the entire negotiations’. At the Rome Conference, there was a range of views on the ‘preconditions’ for jurisdiction, ranging from the narrow proposals of the United States restricting the Court's jurisdiction to nationals of States Parties, to a form of universal jurisdiction by which the Court would be able to prosecute any crime committed anywhere, providing that it could obtain custody over the offender. Article 12 establishes a general rule by which the Court may exercise jurisdiction over crimes committed on the territory of a State Party and, furthermore, over crimes committed by its nationals anywhere. The Court may also exercise jurisdiction if a non-party State has made a declaration pursuant to article 12(3).

The Rome Statute's Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference

2011 ◽  
Vol 11 (1) ◽  
pp. 49-104 ◽  
Author(s):  
Jennifer Trahan
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Potential Conflict ◽  
Opt Out ◽  
Final Agreement

AbstractThis past June, in Kampala, Uganda, at the first Review Conference on the International Criminal Court, States Parties forged an historic agreement, amending the Rome Statute to define the crime of aggression, and agreeing on conditions for the exercise of jurisdiction. While the definition had been essentially agreed upon during years of earlier negotiations, delegations in Kampala had to grapple with a host of complex issues related to the exercise of jurisdiction. They resolved that jurisdiction will be triggered both through Security Council referrals, as well as State Party or Prosecutor referrals, and the related "filter" mechanisms to achieve this. This result represented a significant breakthrough that was pragmatic, designed to avoided potential conflict with the U.N. Charter, and designed to protect the Court's independence. The final agreement, however, also contained compromises, excluding the acts of Non-States Parties from jurisdiction, allowing States Parties to opt out of jurisdiction, and delaying the exercise of jurisdiction until at least 2017.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.18 Preliminary rulings regarding admissibility/Décision préliminaire sur la recevabilité

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Party ◽  
Applicable Law

This chapter comments on Article 18 of the Rome Statute of the International Criminal Court. Article 18 applies when a situation has been referred to the Court by a State Party and the Prosecutor has deemed that there is reasonable basis to commence an investigation. The Prosecutor is required to notify both States Parties and ‘those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned’. Within one month of receiving notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts relating to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.

Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.53 Initiation of an investigation/Ouverture d’une enquête

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Security Council ◽  
Judicial Review ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Prosecutorial Discretion ◽  
Exercise Of Discretion ◽  
Selection Of

This chapter comments on Article 53 of the Rome Statute of the International Criminal Court. Article 53 takes effect once a ‘situation’ has been triggered, whether it be the result of a Security Council referral, a State Party referral, or exercise of the proprio motu authority of the Prosecutor. It requires the Prosecutor to initiate an investigation, unless he determines that there is no ‘reasonable basis’ to proceed. It sits at the junction between prosecutorial discretion and judicial review, governing, but in only a partial manner, the selection of cases before the Court by the Prosecutor. Article 53 is closely related to article 15. Together, these two provisions define the exercise of discretion by the Prosecutor. They are the key to his independent role in the selection of situations for prosecution by the International Criminal Court.

Security Council Referrals to the International Criminal Court as Quasi-Legislative Acts

2016 ◽  
Vol 19 (1) ◽  
pp. 142-175
Author(s):  
Alexandre Skander Galand
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Customary International Law ◽  
Applicable Law ◽  
Definition Of ◽  
Domestic Law ◽  
Principle Of Complementarity

In 1998, the international community decided to establish the first permanent International Criminal Court (ICC) with jurisdiction over persons for the most serious crimes of international concern, as referred to in the Rome Statute. As noted by many observers, some of the specific crimes within the Rome Statute are not grounded on customary international law but are more germane to treaty-based crimes. Thus, the exercise of treaty-based jurisdiction over non-party States would conflict with the principle pacta tertiis nec nocent nec prosunt. While the ICC jurisdiction is limited to crimes committed in the territory or by nationals of its States Parties, the Court may, where a situation is referred by the UN Security Council under Chapter VII of the UN Charter, exercise jurisdiction over crimes committed in the territory and by nationals of States not party to the Statute. Since the Rome Statute may go beyond existing applicable law, the referrals to the ICC are thus normative in their character. They impose new rules to be observed by any actors in the situations referred. This paper argues that this feature of a Security Council referral fits the definition of an international legislative act. The paper also inquires whether the obligation to cooperate fully with the Court arising from the Security Council resolution and the principle of complementarity require the State to modify its domestic law.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.15ter Exercise of jurisdiction over the crime of aggression (Security Council referral)/Exercice de la compétence à l’égard du crime d’agression (Renvoi par le Conseil de sécurité)

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Applicable Law ◽  
The United Nations

This chapter comments on Article 15ter of the Rome Statute of the International Criminal Court. Article 15ter is part of a package of amendments adopted at the Kampala Review Conference in 2010. Under article 13(b), the Security Council may trigger the jurisdiction of the Court with respect ‘over the crime of aggression’. Article 13(b) entitles the Security Council to trigger the Court's jurisdiction, pursuant to Chapter VII of the Charter of the United Nations. Article 15ter(1) makes clear that the Security Council may only trigger jurisdiction over the crime of aggression in accordance with the provisions of article 15ter. Essentially, this is about the temporal limits of the exercise of jurisdiction over the crime of aggression.

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