Part 6 The Trial: Le Procès, Art.72 Protection of national security information/Protection de renseignements touchant à la sécurité nationale

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
National Security ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Third Party ◽  
Information Protection ◽  
State Party ◽  
The Third ◽  
Security Information

This chapter comments on Article 72 of the Rome Statute of the International Criminal Court. Article 72 deals with three main concerns of States with respect to information that they consider to be relevant to their national security. The first is the provision of materials to the Court pursuant to the obligations of cooperation of a State Party. The second is the ability to provide the Prosecutor with confidential materials, confident that the Prosecutor is not required to disclose these materials to the defence. The third addresses the intervention of a State to prevent divulgation of such information by a third party, and amounts to a kind of privilege.

“Situation in Palestine” (Int'l Crim. Ct. Pre-Trial Chamber)

2021 ◽  
pp. 1-74
Author(s):  
Anne Bayefsky
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Party ◽  
The Third ◽  
Territorial Jurisdiction

On February 5, 2021, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) delivered its decision on territorial jurisdiction in the “Situation in Palestine.” The result reflects the controversy surrounding the process and the merits: a divided bench, with a Minority decision three times the length of that of the Majority. The outcome marked the culmination of sustained attempts by Palestinians and their supporters over more than two decades to engage the ICC, beginning with contentious negotiations preceding the vote on the Rome Statute at the Rome Conference and including three preliminary examinations, the third of which concluded with this decision. The Rome Statute, adopted by vote on July 17, 1998, included elements that negotiators acknowledged had never appeared before in international law, and were directed at an Israeli target. For this reason, in large part Israel, which had long supported the principle of an international criminal court, chose not to become a state party to the Statute or to participate in the proceedings.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.99 Execution of requests under articles 93 and 96/Exécution des demandes présentées au titre des articles 93 et 96

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
National Security ◽  
International Cooperation ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Coopération Internationale ◽  
Special Rules ◽  
Judicial Assistance

This chapter comments on Article 99 of the Rome Statute of the International Criminal Court. Article 99 completes articles 93 and 96 by providing for the execution of requests for assistance subject to those provisions. Paragraph 1 confirms that this will take place in accordance with applicable national law. Paragraph 2 states that when a request is urgent, the response should be sent urgently. Paragraph 3 concerns the language and form of the response. Paragraph 4 enables the Prosecutor to execute a request directly on the territory of a State Party. Paragraph confirms the application of special rules concerning national security in such situations.

Part 6 The Trial: Le Procès, Art.73 Third party information or documents/Renseignements ou documents émanant de tiers

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
National Security ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
International Organization ◽  
Third Party ◽  
State Party ◽  
Intergovernmental Organization ◽  
Practical Impact

This chapter comments on Article of 73 the Rome Statute of the International Criminal Court. Article 73 applies when a State Party is requested by the Court to provide a document or information in its custody, possession, or control. If the document was disclosed to that State in confidence by another State, or by an intergovernmental organization or international organization, the State Party need not comply with the request from the Court unless it can obtain the consent of the provider (known as the ‘originator’) of the document or information. If the originator of the information is a State Party, then it is required either to consent to disclosure of the information or document or to resolve the matter in accordance with the provisions of article 72. In other words, the information can only be withheld from the Court if the originator State invokes national security interests. It seems unlikely this part of article 73 will ever have much practical impact. In effect, it amounts to a request from the Court to the State Party that originated the information or document.

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 13 Final Clauses: Clauses Finales, Art.127 Withdrawal/Retrait

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

This chapter comments on Article 127 of the Rome Statute of the International Criminal Court. Article 127 addresses the withdrawal of a State Party from this Statute. A State may withdraw from the Rome Statute by providing a written notification to the depositary, the Secretary-General of the United Nations. The withdrawal takes effect one year after receipt of the notification by the Secretary-General, unless a later date is specified. There have been no notifications of withdrawal from the Rome Statute. The Statute does not indicate whether a notice of withdrawal can itself be withdrawn, thereby returning the State to ordinary status as a Party. Withdrawal does not affect the continuation of the Statute with respect to other States Parties, even if the number of them falls below the threshold of sixty.

Ratifying the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression

2016 ◽  
Vol 19 (1) ◽  
pp. 176-215
Author(s):  
Meagan S. Wong
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Legal Aspects ◽  
Criminal Court ◽  
State Party ◽  
Domestic Legislation ◽  
Force Mechanism ◽  
Relationship Of ◽  
The Relationship

The Review Conference of the Rome Statute of the International Criminal Court in Kampala adopted amendments to the Rome Statute, providing for a definition and conditions for the jurisdiction of the crime of aggression (‘Kampala Amendments’). At present, the jurisdiction over crime of aggression has not come into effect at the International Criminal Court (ICC). For the activation of the Court’s jurisdiction over the crime of aggression, two cumulative conditions must be met: first, a minimum of 30 ratifications of the Kampala Amendments must take place; second, a majority of two thirds of States Parties have to make a decision to activate the Court’s jurisdiction after 1 January 2017. This paper analyses salient legal aspects of the activation of the Court’s jurisdiction over the crime of aggression. First, the question whether the requirements of 30 ratifications will be met will be considered. Second, the relationship of the entry into force mechanism of the amendments and the conditions for the exercise of jurisdiction will be analysed. Third, the procedure of ascertainment of the jurisdictional regime of the ICC over the crime of aggression, with particular reference to State referrals and proprio motu investigations, will be dealt with. Fourth, the need for States Parties intending to ratify the Kampala Amendments to implement the crime of aggression into their domestic legislation will be explored. Finally, the paper will explore the question whether the aggressor State (party) must ratify the Kampala Amendments in order for the jurisdictional regime over the crime of aggression to apply, or whether it suffices that the aggressed State is a ratifying State Party. A qualified solution will be suggested: while the latter reading of the law is the better one, consent of the aggressor State (party) is nevertheless upheld pursuant to the sui generis jurisdictional regime of the ICC over the crime of aggression.

National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute

2014 ◽  
Vol 47 (3) ◽  
pp. 331-359
Author(s):  
Ariel Zemach
Keyword(s):  
National Security ◽  
Present Article ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
The State ◽  
Prosecutorial Discretion ◽  
Selection Of

The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.

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