Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.16 Deferral of investigation or prosecution/Sursis à enquêter ou à poursuivre

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Security Council ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Human Rights ◽  
Applicable Law ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
International Human ◽  
The Relationship

This chapter comments on Article 16 of the Rome Statute of the International Criminal Court. Article 16 addresses the tension that may exist between the Court and the Security Council, where the latter is of the view that a prosecution should not proceed. The Security Council can also refer a situation to the Court, but the Prosecutor is under no obligation to proceed. Finally, the relationship between the Court and the Security Council may arise should the Court be empowered to exercise jurisdiction over the crime of aggression. As the travaux préparatoires indicate, the relationship between the Court and the Security Council was extremely contentious. Article 16 represents a compromise but one with which many States were not pleased. Moreover, international human rights non-governmental organizations opposed article 16, viewing it as an unacceptable encroachment upon the independence of the Court.

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.

The International Criminal Court and "Internationally Recognized Human Rights": Understanding Article 21(3) of the Rome Statute

2010 ◽  
Vol 10 (1) ◽  
pp. 43-71 ◽  
Author(s):  
Daniel Sheppard
Keyword(s):  
Human Rights ◽  
Rome Statute ◽  
Criminal Court ◽  
International Human Rights Law ◽  
International Human Rights ◽  
Legal Personality ◽  
Applicable Law ◽  
International Human ◽  
Human Rights Norms ◽  
International Legal Personality

AbstractArticle 21(3) of the Rome Statute requires that the law applied by the ICC be interpreted and applied in accordance with "internationally recognized human rights." Notwithstanding its paramountcy over other sources of law, Article 21(3) has yet to receive satisfactory consideration and analysis by the Court. In constructing a principled framework for how international human rights should operate within the applicable law of the Court, certain principles serve as important guideposts: rules of statutory interpretation, the complementarity principle, the structure of international human rights law, and principles of international legal personality. Relying on these principles, the Court's jurisprudence and the Statute's travaux préparatoires, it is possible to map out some of the features of Article 21(3). The Article is not merely a rule of interpretation, but is generative of powers and remedies that would otherwise not be available. However, in order to be applied rationally, the scope of "internationally recognized human rights" should be contingent on which state would ordinarily exercise jurisdiction over a prosecution. The institutional relationships between The Court, state parties, and other bodies that interpret and apply human rights norms should also influence how the Court applies these principles, with decisions of international human rights courts being prima face binding in certain circumstances.

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.

NGOs for International Justice

2018 ◽  
Author(s):  
Kjersti Lohne
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Justice ◽  
Relative Lack ◽  
International Crimes ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
The Impact ◽  
Oriented Approach

Kjersti Lohne describes the impact of non-governmental organizations at the International Criminal Court (ICC), in particular discussing the relative lack of regard for defendants’ rights, and especially highlighting the difficulties encountered by those acquitted. After the Coalition for the International Criminal Court contributed to the establishment of the ICC itself in the fight against impunity for international crimes, that Coalition has continued a victim-oriented approach, arguably at the expense of defendants’ rights. The ICC’s focus on victims, ‘truth’, and ‘memory’ may challenge the legitimacy of the Court in the longer run.

scholarly journals Tilting at windmills: Reparations and the International Criminal Court

2021 ◽  
pp. 1-21
Author(s):  
Luke Moffett ◽  
Clara Sandoval
Keyword(s):  
Transitional Justice ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Positive Impact ◽  
Criminal Court ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
International Crimes

Abstract More than 20 years on from the signing of the Rome Statute, delivering victim-centred justice through reparations has been fraught with legal and practical challenges. The Court’s jurisprudence on reparations only began to emerge from 2012 and struggles to find purchase on implementation on the ground. In its first few cases of Lubanga, Katanga, and Al Mahdi the eligibility and forms of reparations have been limited to certain victims, subject to years of litigation, and faced difficulties in delivery due to ongoing insecurity. This is perhaps felt most acutely in the Bemba case, where more than 5,000 victims of murder, rape and pillage were waiting for redress, and the defendant was not indigent, but where he was later acquitted on appeal, thereby extinguishing reparation proceedings. This article critically appraises the jurisprudence and practice of the International Criminal Court (ICC) on reparations. It looks at competing principles and rationales for reparations at the Court in light of comparative practice in international human rights law and transitional justice processes to consider what is needed to ensure that the ICC is able to deliver on its reparations mandate. An underpinning argument is that reparations at the ICC cannot be seen in isolation from other reparation practices in the states where the Court operates. Reparative complementarity for victims of international crimes is essential to maximize the positive impact that the fulfilment of this right can have on victims and not to sacrifice the legitimacy of the Court, nor quixotically strive for the impossible.

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