scholarly journals The Right to a Fair Trial and Judicial Economy at the International Criminal Court

2016 ◽  
Vol 5 (1) ◽  
pp. 86-118
Author(s):  
Patricia Hobbs
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Final Decision ◽  
Civil Unrest ◽  
Rights Discourse ◽  
The Right ◽  
Human Rights Discourse ◽  
Judicial Economy

Following the civil unrest in Kenya in 2008 and Kenya’s inability to prosecute the perpetrators of those crimes, the International Criminal Court (icc) prosecutor initiated proceedings proprio motu against Mr Uhuru Kenyatta and Mr William Ruto. Despite the impending prosecutions, Mr Kenyatta and Mr Ruto were elected as President and Deputy President of Kenya in 2013. Due to their prominent status, they both applied (separately) to be excused from continuous attendance at their trial proceedings. Mr Ruto’s argument was heard first, and Trial Chamber (A) granted the excusal request. In the course of Mr Kenyatta’s hearing by Trial Chamber (B), but before the Appeals Chamber reversed Mr Ruto’s Trial Chamber (A) decision, the issue of judicial economy was raised by the prosecution. Their contention was that Trial Chamber (B) should in fact wait for the Appeals Chamber’s final decision, but the Chamber dismissed the argument and proceeded with the decision at hand. This article contends that the Court missed a real opportunity to place judicial economy within the human rights discourse, particularly in the light of Article 21(3) of the Rome Statute of the International Criminal Court.

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.

Part 8 Appeal and Revision: Appel et Révision, Art.81 Appeal against decision of acquittal or conviction or against sentence/Appel d’une décision sur la culpabilité ou la peine

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Final Decision ◽  
Procedural Error

This chapter comments on Article 81 of the Rome Statute of the International Criminal Court. Article 81 deals with what might be called an appeal ‘on the merits’, in that it is addressed to a final decision of a Trial Chamber of either conviction or acquittal or, in the event of conviction, any subsequent decision governing sentence. Both the Prosecutor and the convicted person are authorized to appeal on grounds of procedural error, error of fact, or error of law. The accused person — or the Prosecutor, acting on the accused person's behalf — may invoke an additional ground: ‘Any other ground that affects the fairness or reliability of the proceedings or decision’.

The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh: Certain Procedural Questions

2018 ◽  
Vol 31 (4) ◽  
pp. 981-1002 ◽  
Author(s):  
MICHAIL VAGIAS
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Territorial Jurisdiction ◽  
The Right ◽  
First Time

AbstractOn 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.

Denying the Right of Return as a Crime Against Humanity

2021 ◽  
pp. 1-31
Author(s):  
Tomer Levinger
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Need To Belong ◽  
Doctrinal Development ◽  
Right Of Return ◽  
Human Need ◽  
The Right

This article argues that there are firm grounds upon which to regard the act of denying a person's right of return to their country as a crime against humanity. To make its case, the article builds upon two justifications for the right of return: its grounding based on the human need to belong, and its purpose as a means of preventing rightlessness. The human interests underlying these justifications, the article contends, are similarly those reflected by the image of humanness ingrained within the law of crimes against humanity. Therefore, when the right of return is denied, it is also an assault against humanness as such – a crime against humanity. Recently, proceedings before the International Criminal Court (ICC), with regard to the situation in Bangladesh/Myanmar, have made this question highly relevant. Both the Court's Pre-Trial Chamber and Prosecutor have raised arguments in support of regarding the denial of the right of the Rohingya peoples to return to Myanmar a crime against humanity of other inhumane acts. Consequently, this article attempts to offer support for what might turn out to be an important doctrinal development in ICC jurisprudence.

Part 6 The Trial: Le Procès, Art.63 Trial in the presence of the accused/Procès en présence de l’accusé

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

This chapter comments on Article 63 of the Rome Statute of the International Criminal Court. Article 63 establishes the right of the accused to be present at trial. For some pre-trial proceedings it is either implicit or explicit that the accused will not be present. This is the case, for example, in the hearing before the Pre-Trial Chamber on a decision by the Prosecutor not to proceed, the taking of evidence in the case of a ‘unique investigative opportunity’, and the issuance of an arrest warrant or summons. A right to be present is specifically provided for some pre-trial proceedings, such as the confirmation hearing. However, the Pre-Trial Chamber is also authorized to hold a confirmation hearing in the absence of the defendant.

State of Exception

2020 ◽  
Author(s):  
Ardi Imseis
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Of Exception ◽  
Critical Examination ◽  
Territorial Jurisdiction ◽  
Preliminary Examination ◽  
Occupied Palestinian Territory ◽  
Palestinian Territory

Abstract In December 2019, the Prosecutor of the International Criminal Court concluded her preliminary examination into the situation in Palestine, determining there is a reasonable basis to initiate an investigation into the situation. Instead of doing so, she first decided to seek a ruling from the Pre-Trial Chamber on the scope of the Court’s territorial jurisdiction, specifically aimed at confirming her view that the ‘territory’ over which the Court may exercise its jurisdiction comprises the Occupied Palestinian Territory (OPT). This article focuses on the amici curiae observations and other communications made by eight states parties in the proceedings — Australia, Austria, Brazil, Canada, Czech Republic, Germany, Hungary and Uganda. A critical examination of these observations and communications reveals that they did not answer the question posed by the OTP, but rather advanced a number of strained arguments aimed, inter alia, at impugning the very notion that the Court has any jurisdiction at all on the basis that Palestine is not a state. When juxtaposed against the ostensible commitment of these states parties to the object and purpose of the Statute, their observations and other communications reveal a conspicuous hypocrisy. If accepted by the Court, these observations and communications would operate to not only affirm the continued contingency of the state of Palestine on the international plane, but, even worse, to shield persons known to have committed or be committing crimes of the gravest concern to the international community with impunity.

scholarly journals Victim’s Right of Access to International Criminal Courts

2016 ◽  
Vol 10 (1) ◽  
pp. 279
Author(s):  
Fazlollah Foroughi ◽  
Zahra Dastan
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Level ◽  
Human Beings ◽  
International Crimes ◽  
The Government ◽  
The Right ◽  
Right Of Access

Due to quantitative expansion and evolution in committing the crime at the international level, the scope of criminal proceedings has been widened significantly. Tolerance and forgiveness towards crimes that happen at international level not only is a double oppression on the victims, but also provide a fertile context for others to commit crimes more daringly. Thus, it is essential that international criminals are held accountable to the law and competent institution, and the realization of this issue leads to the victim satisfaction in international law. Not only in international law, but also in domestic law, show respect and protection of human rights is effective only when there is an effective justice system to guarantee the rights. Although some international crimes practically occur by the government or at least high-ranking government officials, the Statute of the International Criminal Court has reiterated this point that they only have jurisdiction over the crimes committed by natural persons rather than legal entities, which one good example is governments, and although the real victims of these crimes have been human beings, in the case of action and referring the case to the competent international courts, these are the states (rather than the victims) that actually have the right of access to the authorities and not beneficiaries .Thus, at the first step, we should see whether the Court has jurisdiction over the crime committed by the government and whether people can file an action independently in the International Criminal Court or not? When people, rather than governments, are beneficiaries in some international crimes, why only the government and not the people is the plaintiff? And what is the right of the victim in such category of crimes? Accordingly, the current research seeks to examine these rights and restrictions, and relevant limitations.

scholarly journals The right to self-representation before International Criminal Tribunals, while not absolute, should only be denied in limited circumstances

2020 ◽  
Vol 62 (3) ◽  
pp. 235-247
Author(s):  
Paul Bassett
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
International Criminal Tribunals ◽  
The Right

One of the most controversial aspects of the International Criminal Tribunals (ICTs) and the International Criminal Court (ICC) concerns the right to self-representation. Many defendants have sought to use the trial as a stage on which to challenge the legitimacy of the court and to play to the crowd in their own home states. As a result, the various ICTs have sought to place limitations on the accused’s right to selfrepresentation. The recent amendment to the Statute of the Supreme Iraqi Criminal Tribunal (SICT) is an example of this. This evolution raises questions concerning the effect such limitations may have on the overall fair trial rights of the accused. This article argues that there is a need to establish a guaranteed right of self-representation, provided the accused adheres to an objective set of conditions placed on the right. Such conditions should be confined to those strictly necessary to ensure the integrity of the court. Such a move would allow the court to gain some much needed legitimacy while at the same time deny defendants the ability to turn the court into a political stage.

Better Late than Never: Reparations for Sexual Violence in the Ntaganda case before the International Criminal Court

2021 ◽  
Vol 2 (1) ◽  
pp. 27-47
Author(s):  
Sunneva Gilmore
Keyword(s):  
Sexual Violence ◽  
International Criminal Court ◽  
International Criminal ◽  
Child Soldiers ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Medical Background ◽  
Modest Contribution ◽  
First Time

The Prosecutor v Bosco Ntaganda case at the International Criminal Court (ICC) represents the long awaited first reparation order for sexual violence at the court. This will hopefully see the implementation of reparations for the war crimes and crimes against humanity of rape and sexual slavery among civilians and former child soldiers, after previous cases such as against Jean-Pierre Bembe and Laurent Gbagbo were acquitted of rape. This article drawing from the author's role as a reparation expert in the case, is a reflection on the challenges of designing and providing reparations at the ICC against convicted individuals, as well as amidst insecurity and the COVID-19 infectious disease pandemic. It begins by discussing how the Ntaganda reparation order expanded reparation principles for the first time since the Lubanga case, in particular for crimes of a sexual nature. This is followed by an outline of some of the harms as a result of sexual violence from the perspective of an expert with a medical background. The analysis then turns to the appropriate reparations in this case and the details contained within the chamber's reparation order. Final conclusions consider how the procedural and substantive elements of reparations in this case will be instructive to future cases that address sexual violence. Ultimately, key insights are offered on the modest contribution an appointed reparation expert can do in assisting a trial chamber in the reparation process.

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.

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