Part 6 The Trial: Le Procès, Art.76 Sentencing/Prononcé de la peine

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Form Part ◽  
The Individual ◽  
Individual Role

This chapter comments on Article 76 of the Rome Statute of the International Criminal Court. Article 76 governs the imposition of sentence in the event of a conviction. If the accused is convicted, the Trial Chamber is required to establish the ‘appropriate sentence’. In so doing, the Statute instructs it to consider the evidence presented and submissions made during the trial that are relevant to the sentence. Mitigating and aggravating factors relating to the commission of the crime itself, such as the individual role of the offender and of the treatment of the victims, will form part of the evidence germane to guilt or innocence and thus appear as part of the record of the trial.

Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.59 Arrest proceedings in the custodial State/Procédure d’arrestation dans l’état de détention

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Arrest Warrant ◽  
Article 59

This chapter comments on Article 59 of the Rome Statute of the International Criminal Court. Article 59 requires that the custodial State ‘act expeditiously in the surrender of persons subject to an arrest warrant issued by the Court’. By exhaustively listing the issues which the custodial State shall examine, article 59 also safeguards the competence and decisions of the Court, most notably by preventing national authorities from examining the validity of the warrant of arrest. Unlike most provisions of the Rome Statute, article 59 is likely to be read, interpreted, and applied by national judges. Combined with national implementing legislation, they will put into effect the obligations of arrest, the verification of the conditions under which it was carried out, and the granting of interim release. The role of the Pre-Trial Chamber ‘with respect to proceedings under article 59 of the Statute is limited to verifying that the basic safeguards envisaged by national law have been made available to the arrested person’.

Part 5 Investigation and Prosecution: Enquête Et Poursuites, Art.56 Role of the Pre-Trial Chamber in relation to a unique investigative opportunity/Rôle de la chambre préliminaire dans le cas où l’occasion d’obtenir des renseignements ne se présentera plus

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
Special Function ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court

This chapter comments on Article 56 of the Rome Statute of the International Criminal Court. Article 56 provides an exceptional mechanism by which evidence may be collected under judicial oversight and then made available at trial. It authorizes the Pre-Trial Chamber to ‘take such measures as may be necessary to ensure the efficiency and integrity of the proceedings and, in particular, to protect the rights of the defence’. Thus, the focus is on ensuring that the interests of the defence are protected at a stage that may arise even before a defendant has been identified. However, the benefits of article 56 are not reserved to evidence helpful to the defence. The special function of article 56 can be invoked by the Prosecutor or by the Pre-Trial Chamber itself, acting on its own initiative.

scholarly journals A Perspective on the Rome Statute’s Defence of Duress: The Role of Imminence

2018 ◽  
Vol 18 (1) ◽  
pp. 154-177 ◽  
Author(s):  
Clare Frances Moran
Keyword(s):  
Present State ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Definition Of ◽  
The Individual

The concept of duress encapsulated in Article 31(1)(d) of the Rome Statute of the International Criminal Court is a novel inclusion in a statute created to allow prosecution of serious crimes against the person in international criminal law. Despite being the topic of much debate, the present state of the discourse remains at a fairly superficial level: existing studies focus on a general analysis of the defence and its conditions. This has included the way in which the defences merges necessity and duress, with only a few authors examining the conditions of ‘proportionality’ and ‘necessity’. This study looks at an underexplored part of the defence: the condition of imminence. The purpose of this work is to explore the idea of imminence and to review whether a clearer definition of duress could have been used, replacing the idea of imminence with the concept of the individual selecting the lesser evil.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

Theory and practice of mixing procedural models in the Pre-trial Chamber of the International Criminal Court mechanism of functioning

2020 ◽  
Vol 10 (4) ◽  
pp. 100-111
Author(s):  
Denis Pechegin
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Balance Of Power ◽  
Trial Chamber ◽  
Criminal Court ◽  
Theory And Practice ◽  
International Standards ◽  
Legal Proceedings ◽  
Honorary Doctor

The increasing interpenetration of the main models of the process and the approval of international standards for the production of criminal cases raise the question of the development and improvement of the form of legal proceedings in the category of the most relevant in modern science. On the one hand, the attention of many scientists is focused on strengthening the competitive core of the process and ensuring, as far as possible, a balance of power between the parties. On the other hand, it is stated that legal proceedings that do not pursue the goal of achieving material truth, especially due to the absolute nature of the principle of competition, lead to excessive formalism that has nothing to do with fair trial. The solution to the problem of combining trial models (the balance of adversarial and investigative cores) is seen in the International Criminal Court. The procedure of criminal proceedings in the International Criminal Court is the result of special scientific modeling taking into account the indicated doctrinal trends, and the degree of generalization of approaches of leading legal families in the structure of the Rome Statute of the International Criminal Court is so high that it allows us to speak about the universality of this procedural system. If the predecessors of the International Criminal Court preference were really given only one started (so, the ICTY was based on the example of the Anglo-Saxon adversarial procedure model with the “American accent”), the Rome Statute of the International Criminal Court reflected the trend to the initial formation of a balanced trial procedures designed to overcome the deviations in the balance of power by introducing an adversarial process with “inquisitorial” elements: for example, the Pre-trial Chamber, duties of the Prosecutor fully and objectively investigate the circumstances of the case, the duties of the court of first instance to establish the truth in the case. However, this does not mean any disregard for the adversarial core at the pre-trial stage. The article is devoted to theoretical and practical aspects of the combination of adversarial and investigative cores in the activities of the pre-trial Chamber of the International criminal court and reflects the results of a study led by professor Anita Ušacka, honorary doctor of law, in the preparation of a Commentary to the Rome Statute in Russian.

Systematic and Casuistic Approaches to the Role of Victims in Criminal Proceedings Before the International Criminal Court

2009 ◽  
Vol 12 (4) ◽  
pp. 513-528
Author(s):  
Hééctor Oláásolo
Keyword(s):  
Present Article ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Criminal Proceedings ◽  
Specific Manner ◽  
Critical Issues

The scope of victims' participation at the investigation stage of a situation and throughout case-related proceedings is today one of the critical issues before the ICC. The key provision on this matter is Article 68(3) of the Rome Statute. This provision entrusts the ICC Chambers with the discretion to determine (i) when victims can participate in ICC proceedings and (ii) the specific manner in which such participation can take place. The present article, which is written against the backdrop of the first Review Conference scheduled for next year pursuant to Article 121(1) of the Rome Statute, focuses on the systematic and casuistic approaches adopted so far by different ICC chambers in shaping, pursuant to Article 68(3) of the Statute, the role of victims at the investigation stage of a situation and in case-related proceedings.

Part 10 Enforcement: Exécution, Art.107 Transfer of the person upon completion of sentence/Transfèrement du condamné qui a accompli sa peine

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Person Following ◽  
The Individual ◽  
To Receive

This chapter comments on Article 107 of the Rome Statute of the International Criminal Court. Article 107 governs the transfer of the person following completion of the sentence. When a released prisoner is not a national of the State of enforcement, and is not authorized to remain there, two possible scenarios arise: transfer to a State ‘which is obliged to receive him or her’ and transfer to a State ‘which agrees to receive him or her’. Transfer of a released person to a third State upon completion of sentence will invariably require agreement. Absent such agreement, the individual will remain in the State of enforcement. In deciding upon transfer, the wishes of the released prisoner are to be taken into account.

Part 10 Enforcement: Exécution, Art.103 Role of States in enforcement of sentences of imprisonment/Rôle des États dans l’exécution des peines d’emprisonnement

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Rules Of Procedure

This chapter comments on Article 103 of the Rome Statute of the International Criminal Court. Article 103 deals with State enforcement of sentences. The enforcement regime of the International Criminal Court is premised on three broad principles: sentences are served in the prison facilities of States and are subject to their laws; enforcement of the sentence is subject to the supervision of the Court; and the sentence imposed by the Court is binding upon the State of enforcement. The provisions of the Statute governing enforcement are quite succinct, and much of the detail on the issue appears in the Rules of Procedure and Evidence.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.101 Rule of speciality/Règle de la spécialité

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Customary Law ◽  
State Sovereignty ◽  
Coopération Internationale ◽  
The Individual ◽  
Judicial Assistance

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 101 sets out the principle of speciality, which is part of the customary law governing extradition between States. The rationale for the principle of speciality ‘is to protect State sovereignty’. For this reason, the rule is limited to the scenarios in which the person is arrested and is surrendered as a result of a request submitted by the Court to the State. It is inapplicable if the suspect has appeared voluntarily. The State that surrenders the individual to the Court may be asked to waive the rule of speciality if the Court seeks to proceed with respect to crimes that were not part of the original request for surrender.

Part 7 Penalties: Les Peines, Art.77 Applicable penalties/Peines applicables

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Third Parties ◽  
Life Imprisonment ◽  
Rules Of Procedure ◽  
Bona Fide ◽  
The Individual

This chapter comments on Article 77 of the Rome Statute of the International Criminal Court. Article 77 sets out the penalties the Court may impose on a person convicted of a crime. These include imprisonment for a specified number of years, which may not exceed a maximum of 30 years; a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person; a fine under the criteria provided for in the Rules of Procedure and Evidence; and a forfeiture of proceeds, property, and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.

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