International Criminal Procedure

International criminal court ICC


1 The Development of International Criminal Procedure
A Forerunners

I Versailles: an international trial for the German Emperor

II Nuremberg: the birth of international criminal procedure
1 The origins of the IMT Statute
2 The trial system
3 Flaws in the system
a Independence and impartiality
b Structural inequalities
c Procedural novelty
4 General evaluation

III Tokyo: the forgotten sister tribunal?

IV The Nuremberg subsequent trials

V The ILC drafts: intermediaries without future?

VI The ICTY: the re-inventor of international criminal procedure
1 The development of the ICTY
2 The trial system
3 Flaws in the system

VII The ICTR: a dissimilar-similar copy
1 The establishment of the ICTR
2 Procedural issues

VIII Special Court for Sierra Leone
1 Establishment of the Special Court for Sierra Leone
2 The hybrid court—differences to the ad hoc Tribunals
a Legal status of the SCSL
b Composition of chambers
c Location and legacy
d Applicable law
e The Defence Office
f Funding
3 Cases before the SCSL
a The CDF, RUF, and AFRC cases
b The Charles Taylor case

IX East Timor
1 Background
2 The courts in East Timor and the Special Panels for Serious Crimes
3 Procedural issues discussed at the SPSC
4 Critique of the East Timorese model

X Extraordinary Chambers in the Court of Cambodia
1 Establishing the ECCC
2 The code of procedure
3 The trial procedures

XI Special Tribunal for Lebanon
1 Background
2 The Special Tribunal for Lebanon
3 The Rules of Procedure and Evidence

XII The ICC: the ultimate benchmark
1 The road to Rome
2 The Rome Statute and the completion of the procedural framework
3 The structure of the ICC according to the Rome Statute
a The institutional background
b Structure of the Court
B The Different Systems and Traditions
I Misunderstandings
II Structural differences
III Consequences for international criminal procedure
C The Importance of Human Rights
I History of the fair trial
II The relevance of human rights from a normative perspective
1 Criminal procedure
2 Duty to prosecute
3 Fairness versus efficiency

2 The Special Circumstances of International Criminal Procedure

A Purposes and Aims
I Purpose of international criminal law
1 Retribution
2 Deterrence
3 Positive-preventive aspects
4 Justice for the victims
5 International legal order
II Purpose of international criminal procedure
1 Direct procedural aims
2 Indirect aims (prevention)
3 The caveats concerning the positive effects of an international trial
4 Conclusion
B Questions of Competencies
I Ad hoc Tribunals
II The ICC jurisdiction
1 Jurisdiction
a Jurisdiction ratione materiae
b Jurisdiction ratione temporis
c Jurisdiction ratione personae
d Jurisdiction in the formal sense
(1) Universality
(2) Jurisdictional basis of Art. 12 ICCSt
2 Trigger mechanisms
a State referral
b Referral of UN Security Council
c Proprio motu
d Triggering aggression
(1) State referrals and proprio motu investigations
(2) Security Council referrals
3 Differentiation between ‘situation’ and ‘case’
C Complementarity (Hilde Farthofer)
I Purpose of Art. 17 ICCSt
1 Concurrent jurisdiction
2 Genuine investigation and prosecution
II Inadmissibility as the rule
III Challenges
IV Exceptions to the inadmissibility principle
1 Unwillingness genuinely to investigate or prosecute
2 Inability to investigate or prosecute
V Ne bis in idem
VI Gravity threshold
VII Conclusion

3 A Methodology for International Criminal Procedure

A The Necessity of a Procedural Theory
B The Legal Sources
I The applicable law according to Art. 21 ICCSt
1 Art. 21 (1) (a) ICCSt
2 Art. 21 (1) (b) ICCSt
3 Art. 21 (1) (c) ICCSt
II The problem of customary law and criminal procedure
C General Methodological Remarks
I Legal methodology in civil law
II Legal methodology in common law
III Legal methodology in international law
1 General remarks
2 The Rome Statute
3 Summary
D Basic Parameters of a Procedural Methodology
I Autonomous interpretation
II The functional approach
1 Social functionality
2 Institutional functionality
3 Interrelated functionality
III The normative approach
IV The comparative approach
V Summary: a functional-normative theory of international criminal procedure

4 The Participants

A The Court (Hilde Farthofer)
I Electoral procedure
II Guiding principles for judges
III Presidency
IV Pre-Trial Chamber
1 Chamber
2 Single judge
3 Conclusion
V Trial Chamber
VI Appeals Chamber
B The Prosecutor (Hilde Farthofer)
I Electoral procedure
II Guiding principles for the Prosecutor
III Preliminary examination
IV Investigation phase
V Pre-trial phase
VI Trial phase
VII Appeals phase
VIII Conclusion
C The Registry (Hilde Farthofer)
I Preliminary phase
II Investigation phase
III Pre-trial phase
IV Trial phase
V Detention
VI Conclusion
D Victims and Witnesses
I Victims of international crimes
1 The background to the concept of ‘the victim’
2 Victims’ interests
II Definition of victims
III The role of the victim in criminal procedure
1 Victim protection
2 Victim participation
a State of the art
b Criticism
c Solutions
3 Compensation for victims
E The Accused and the Defence Counsel (Alena Hartwig)
I The defence within the structure of the Court
II Defence counsel at the ICC
III Basic functions of the Defence
1 The defendant
2 Functions of defence counsel
IV The defence throughout the course of the proceedings
1 Initial phase of the proceedings
2 Trial stage
3 Appeals stage
V Self-representation
VI Conclusion

5 The Procedural Structure and Preliminary Issues

A The Procedural Structure
B Preliminary Questions of Jurisdiction and Admissibility
I Admissibility rulings pursuant to Art. 18 ICCSt
1 Scope and structure
2 Notification
3 The request for deferral
4 Decision to defer
5 Investigative powers
II Preliminary rulings on jurisdiction
1 The right and duty to determine its own competence
2 Challenges before the Court
a The claimants
b The time frame
c Procedure
3 Powers of the Prosecutor
4 Summary

6 The Investigation Stage

A Two Normative Guidelines
I Principle of objectivity: searching for the truth
II Discretionary powers of the Prosecutor
1 Gravity of the crime
2 Interests of victims
3 Alleged perpetrator
4 Other criteria
B The Structure and Aim of the Investigation Stage
I Pre-investigation
1 State and Security Council referral
2 Individual communication
a Step One: request for authorization
b Step Two: authorization by the Pre-Trial Chamber
c Step Three: reapplication to the Pre-Trial Chamber
3 General review by the Pre-Trial Chamber
II The investigation phase
1 Beginning and end of the investigation phase
2 Structure of the investigation
III The prosecution phase
1 Decision to charge in substance
2 Formulation of the ‘charges’
a The use of the word ‘charge’ in legal texts
b The structural differences
c The definition of the ‘charge’
3 Form of presentation
C Investigatory Powers of the Prosecutor
I Pre-investigative phase
1 General powers
2 Unique investigative opportunity
a General considerations
b The procedure and measures
c Pre-conditions
d Responsibilities
e The role of the defence
II Investigative phase
1 Human rights law and national jurisdictions
a Human rights
b National systems
2 The ad hoc Tribunals and the ICC
a The ad hoc Tribunals
b The legal context at the ICC
3 General principles
4 Different measures—general overview
5 Collect and examine evidence: general framework
a Mode 1: consensual
(1) General agreements
(2) Confidentiality agreements
b Mode 2: cooperative
(1) General considerations
(2) The list of measures
(3) Exception in Art. 99 (4) ICCSt
(4) Procedure to be applied
c Mode 3: non-consensual
6 Interfering with rights of the individual
a Searching
b Seizure
c Forensic testing
(1) Applicable human rights norms
(2) Justification for the interference
d Electronic surveillance
(1) The national states
(2) Human rights bodies
e Data collection
f Summary
D The Rights of the Suspect (Alena Hartwig)
I Right to remain silent
II Notification of charge
E Pre-Trial Detention of the Suspect (Alena Hartwig)
I Pre-trial detention under the issuance of a warrant of arrest pursuant to Art. 58 (1) ICCSt
1 Procedural questions
2 Requirements for the issuance of a warrant of arrest
a Reasonable suspicion
b Necessity of the arrest
(1) To ensure the person’s appearance at trial
(2) To prevent the obstruction of the investigation or the court proceedings
(3) To prevent the commission of further crimes
II Provisional arrest or arrest and surrender pursuant to Art. 58 (5) ICCSt
III Arrest proceedings in the custodial state
IV Interim release
1 Initial request upon first appearance
2 Application for interim release
3 Requirements for continued detention
a Continuing existence of the requirements of Art. 58 (1) ICCSt
(1) Reasonable grounds to believe
(2) To ensure the person’s appearance at trial
(3) To prevent the obstruction of the investigation or court proceedings
(4) To prevent the commission of crimes
b Views of the relevant state
c Burden of proof
d Legal consequences of the decision
4 Periodic review by the Pre-Trial Chamber
V Conditional release
F Victims’ Participation
I Participation in the proceedings under Art. 15 (3) ICCSt
II Participation under Art. 19 (3) ICCSt
III Participation under Rule 119 (3) RPE
IV The influence of Art. 68 (3) ICCSt on the pre-trial stage
1 Situations
2 Cases

7 The Confirmation Proceedings

A Confirmation Proceedings
I Procedure before the confirmation hearing
II Procedure at the confirmation hearing
1 Preliminary issues
2 On the merits of the charges
3 Presence of the person concerned
4 The decision
III After confirmation
B Confirmation Hearings in Practice
I Situation in the Democratic Republic of the Congo
1 Thomas Lubanga Dyilo
2 Germain Katanga and Mathieu Ngudjolo Chui
II Situation in the Central African Republic
Jean-Pierre Bembo Gombo
III Situation in Darfur, Sudan
1 Bahar Idris Abu Garda
2 Abdallah Banda Abakaer Nourain and Saleh Mohammad Jerbo Jamus
C The Nature of Confirmation
I Unsolved questions
II The aim of the confirmation process
1 The threshold requirement
2 The function of confirmation in the context of the entire criminal proceedings
III Summary and conclusions
D Disclosure of Evidence (Lars Büngener)
I Introduction
1 The human rights aspect
2 The procedural management aspect
3 The truth-finding aspect
II Disclosure by the Prosecutor
1 Nuremberg
2 Ad hoc Tribunals
(1) The Rome Statute
(2) The Rules of Procedure and Evidence
(1) Incriminating evidence Rule 76 and 77 RPE ICC
(2) Exculpatory evidence, Art. 67 (2) ICCSt, Rule 83 RPE ICC
III Disclosure by the Defence
1 The IMT at Nuremberg
2 The ad hoc Tribunals
3 The ICC
IV Exceptions and limitations to disclosure
1 The ad hoc Tribunals
2 The ICC
V Disclosure and the bench
1 Ad hoc Tribunals
(1) Pre-confirmation disclosure
(2) Pre-trial disclosure
VI Disclosure and victims
VII Electronic disclosure
VIII Conclusion
E Victim’s Participation

8 The Trial

A Principles of the Trial
I Fair trial
1 Human rights law
2 Tribunals
4 Conclusion
II Expeditious trial
1 Human rights law
2 Tribunals
4 Conclusion
III Public trial
1 Human rights law
a Publicizing the decision
b Publicizing the hearing
2 Tribunals
a For protection purposes
b Confidentiality purposes
4 Conclusion
IV Defendant’s presence at trial
1 Human rights law
2 Tribunals
4 Conclusion
V Oral trial
1 Human rights law
2 Tribunals
4 Conclusion
VI Presumption of innocence
1 Human rights law
a Burden of proof
b Proof of guilt
c Conduct of officials
2 Tribunals
a Onus of proof
b Standard of proof
c Conduct of officials
4 Conclusion
VII The principle of equality of arms
1 Human rights law
2 Tribunals
4 Conclusion
VIII Immediate trial
1 Human rights law
2 Tribunals
4 Conclusion
B Preparing for Trial
I Status conferences
1 Mandatory Status Conference
2 Other Status Conferences
3 Evaluation
II Pre-trial motions
III Record
IV Joinder and severance
1 Joinder
2 Severance
V Summary
C The Structure of the Trial
I Preliminary issues that may influence structure
1 The two-act system
2 The guilty plea
3 Plea bargaining
II The structure of the trial at the ICC
1 Phase 1: Guilty plea
a Validity of the admission of guilt
b Supporting facts
c Further evidence despite valid admission of guilt
d A full trial and rejection of admission
e Partial admission
2 Phase 2: Presentation of evidence
a Structure of the trial
b Form of presentation of evidence
c Summary
3 Phase 3: Determination of the sentence
D Evidence (Hilde Farthofer)
I Different forms of evidence
1 Testimonial evidence
a Witness
b Self-incriminating testimony
c Rule 82 RPE ICC witness
d Expert witness
2 Documentary evidence
a Written statements or transcripts
b Impeachment documents
c Court documents
d Reports, books, and other documents
e Forensic evidence and other expert reports
3 Facts of common knowledge, adjudicated facts, and agreed facts
a Facts of common knowledge
b Adjudicated facts
c Agreed facts
II Admissibility of evidence
1 General requirements
a Relevance
b Probative value
c Prejudice
2 Hearsay
3 Exclusionary rule Art. 69 (7) ICCSt
III Privileges
1 Legal counsel-client privilege
2 Self-incriminating testimony
3 Other confidential relationships
4 Officials of the UN
5 Privilege on non-disclosure of state security information
6 The ICRC
7 Journalists working in conflict zones
E Witnesses and Victims Protection: A Summary (Hilde Farthofer)
I Reasons for protection
II Protection measures
1 Inside the courtroom
a Expunctions
b Pseudonym
c Non-disclosure
d Testimony by technical means
e Non-public proceedings
2 Outside the courtroom
III Conclusion
F Judgment
I Deliberations
II Written and reasoned judgment
III Pronouncement
IV Structure of the judgment
V Reasonable doubts requirements and majority verdicts
VI Conclusion
G Victim’s Participation

9 Appeal and Revision (Alena Hartwig)

A Appeal
I The right to appeal
II Constitution of the Appeals Chambers
III The appeal against a decision of acquittal or conviction or against sentence
1 Grounds for appeal
a Procedural error
b Error of fact
c Error of law
d Any other ground that affects the fairness or reliability of the proceedings or decision
2 Appeal against sentence or conviction only
3 Procedure
4 Detention pending trial
IV Appeal against other decisions
1 Grounds of appeal that do not require leave
a Decisions with respect to jurisdiction or admissibility
b Decisions granting or denying release
c Decisions of the Pre-Trial Chamber pursuant to Art. 56 (3) ICCSt
2 Grounds of appeal that require leave of the Court
a Appeals pursuant to Art. 82 (1) (d) ICCSt
b Appeals pursuant to Art. 82 (2) ICCSt
3 Suspensive effect of the appeal
4 Procedure for interlocutory appeals
a Procedure for appeals that do not require leave of the Court
b Procedure for appeals requiring leave of the Court
c Common provisions
V Admissibility of an appeal
VI Additional evidence before the Appeals Chamber
VII Authority of previous judgments
VIII Victim participation in appeal proceedings
B Revision

10 Contempt of Court (Hilde Farthofer)

I Offences against the administration of justice
1 False testimony
2 Presenting false evidence
3 Interference with witnesses and evidence
4 Interference with officials of the Court
5 Retaliating against an official of the Court
6 Soliciting or accepting a bribe as an official of the Court
7 Sanctions for offences against the administration of justice
II Misconduct before the Court
1 Disruption of proceedings
2 Refusal to comply with a direction by the Court
3 Sanctioning provided for misconduct before the Court
III Grounds for excluding criminal liability

Source: Contents taken from International Criminal Procedure-Christoph Safferling-2012

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