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International Criminal Court (ICC)
The Statute of the International Criminal Court (ICC) was adopted in Rome on 17 July 1998, as the result of an international diplomatic conference organized under the aegis of the UN. The Rome Statute entered into force on 1 July 2002. The Court has its seat in The Hague, Netherlands, and started functioning in March 2003 when the prosecutor, judges, and registrar were appointed. As of June 2015, 123 States have ratified the Rome Statute. The latest countries that have deposited their instruments of ratification to the Court are Grenada, Tunisia, the Philippines, the Maldives, Cape Verde, Vanuatu, Guatemala, Cote d’Ivoire, and Palestine respectively in May, June, August, September, October, December 2011, April 2012, February 2013, and January 2015.
The ICC fills a void in the ability of the international community to punish the perpetrators of the most serious crimes of international concern. The Rome Statute was adopted with the goal of expanding on the work of the ad hoc International Criminal Tribunals established for the former Yugoslavia (ICTY) and for Rwanda (ICTR) in 1993 and 1994. The ICC has jurisdiction over individuals accused of the crime of genocide, war crimes, crimes against humanity, and the crime of aggression (Art. 5 of the Rome Statute).
However, one aspect of the ICC that limits its international scope is the fact that, contrary to the ICTY and ICTR, it does not have primacy over national criminal jurisdictions but rather is complementary to the domestic prosecution. The ICC initiates proceedings only if the State in question is “unwilling or unable genuinely to carry out the prosecution or investigation” (Statute, Art. 17). This means that if a national legal entity is carrying out such proceedings, the ICC may not act unless it can prove that the proceedings are not being carried out in good faith (explained further in Section IV). The aim of this approach is to encourage States to carry out their own prosecutions whenever possible.
Another compromise that was reached in establishing the Court actually subordinates the exercise of the ICC’s jurisdiction to the prior consent of States. Whether a case concerns genocide, war crimes, or crimes against humanity, the Court may only investigate the crimes if either the State of nationality of the person accused or the State on whose territory the crime was committed has accepted the ICC’s jurisdiction (Statute, Art. 12). The absence of any reference to the State of nationality of the victim or of the State where the accused is located has doomed the most realistic scenarios under which investigations might have been triggered. Today, 90 percent of conflicts are internal; therefore, the State of nationality of the criminal and the State where the crime was committed are often the same. Finally, the Statute includes a provision allowing States to refuse the Court’s jurisdiction over war crimes for seven years after the statute’s entry into force for the State concerned (Statute, Art. 124).
The Security Council of the UN enjoys a high level of authority regarding the jurisdiction of the ICC. It is the only body that can bypass the requirement of State consent as it has the option to refer a situation to the prosecutor when it establishes there is a threat to international peace and security. Thus, the Security Council may impose the jurisdiction of the ICC on a State. The Security Council may also defer or prohibit an investigation or prosecution from being started or proceeded with, for one year, renewable indefinitely (Statute, Art. 16).
The ICC represents progress in the realm of international criminal law. The idea of a permanent international criminal court was first considered after the Nuremberg Tribunal in 1945, but States failed to agree until 1998. Furthermore, the Rome Statute represents an important step in combining different legal systems of the world. For instance, in comparison with the existing International Criminal tribunals for the former Yugoslavia and Rwanda (which were predominantly influenced by the common law system), the establishment of a Pre-Trial Chamber as a check on the prosecutor and the possibility for victims to apply for reparations represent additions that are derived from civil law systems.
The Statute of the ICC is notably innovative in areas such as the definition of crimes and the recognition of the right of victims to reparation.
In July 2002, when the Rome Statute entered into force, the Assembly of State Parties (ASP) adopted two documents, the Rules of Procedure and Evidence and the Elements of Crimes. The Rules of Procedure and Evidence is a document that helps the Court with the application of the Rome Statute and sets out the procedure before the Court, while the Elements of Crimes assists the Court in the interpretation and application of the substantive crimes in the Statute, namely genocide, crimes against humanity, and war crimes. The Elements of Crimes and Rules of Procedure and Evidence may be amended through proposition by (a) any State Party, (b) the judges acting by an absolute majority, and (c) the prosecutor. Amendments have to be adopted by a two-third majority of the members of the Assembly of State Parties, and they must be consistent with the ICC Statute (Arts. 9 and 51 of the Rome Statute).
Structure and Organization of the ICC
The ICC is made up of several principal organs: the Office of the Prosecutor, the judicial Divisions and Chambers, the Registry, and the Presidency (Art. 34 of the ICC Statute).
There is also an Assembly of States Parties (Statute, Art. 112), in which each State Party has one representative. It is this Assembly, and not the Court itself, that is responsible for adopting the Rules of Procedure and Evidence; for providing management oversight to the Presidency, prosecutor, and the Registry, regarding the administration of the Court; for considering and deciding the budget of the Court; and for examining any question relating to non-cooperation on the part of States.
The ICC’s funding (€118.75 million in 2013—proposed budget) comes from fixed contributions made by States Parties, funds provided by the UN, and voluntary contributions from governments, international organizations, individuals, corporations, and other entities in accordance with specific criteria (Arts. 115 and 116 of the Rome Statute).
Office of the Prosecutor
As of 15 June 2012, the ICC prosecutor is Fatou Bensouda of Gambia. She succeeded Luis-Moreno Ocampo of Argentina. The Prosecutor’s Office is “responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the court, for examining them, and for conducting investigations and prosecutions before the Court” (Art. 42 of the Statute).
The prosecutor is elected for a non-renewable nine-year term by an absolute majority of the members of the Assembly of State Parties. He or she may be assisted by one or more deputy prosecutors, who are elected in the same way from a list of candidates provided by the prosecutor.
The prosecutor and the deputy (or deputies) are fully independent and must all be of different nationalities. They must be persons of high moral character, be highly competent, and have extensive experience with criminal matters. They may not engage in any other professional occupation while exercising the function of ICC prosecutor or deputy.
The prosecutor can nominate the personnel necessary to his or her work, such as advisors and investigators.
Under certain circumstances, the prosecutor can launch an investigation on his or her own initiative ( proprio motu ), on the basis of information received from diverse sources, concerning crimes within the jurisdiction of the Court. He or she may “seek additional information from states, organs of the UN, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony” (Art. 15.2 of the Rome Statute).
If the prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she must request authorization from the Pre-Trial Chamber. Pending its ruling, the prosecutor may “on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence,” if there is an opportunity to obtain important evidence, or if there is a risk that it may not be available subsequently (Statute, Art. 18.6).
The Chambers and Judges
The judicial organ of the ICC is composed of eighteen judges, divided into the different Chambers. The judges are elected by the Assembly of State Parties from the list of candidates presented by the States Parties (Art. 36 of the Rome Statute). They are chosen from among persons of high moral character, impartiality, and integrity, who possess the qualifications required in their respective States for appointment to the highest judicial offices. They must be competent in relevant areas of international law, such as humanitarian law or human rights law, and have the necessary relevant experience in criminal law and procedure.
In selecting the judges, States Parties must take into account the need for the representation of the principal legal systems of the world, equitable geographic representation, and fair gender representation. Judges will hold office for a term of nine years, and they may not be reelected. They may not engage in any other professional occupation.
The judges are divided into three divisions, whose judicial functions are carried out by three Chambers (Art. 39 of the Rome Statute):
- The Appeals Division is composed of the president and four judges; the Appeals Chamber is composed of all the judges in the Division.
- The Trial Division is composed of no fewer than six judges; the Trial Chamber is composed of three of the judges from this Division.
- The Pre-Trial Division is composed of no fewer than six judges; the composition of the Pre-Trial Chamber is decided according to the Rules of Procedure and Evidence.
The Statute provides for the possibility of having more than one Trial or Pre-Trial Chambers operating simultaneously when the Court’s workload so requires.
The Registry is the administrative organ of the ICC. It is responsible for the non-judicial aspects of the administration and servicing of the Court (Statute, Art. 43). The registrar is elected by an absolute majority of the judges for a five-year term, open for reelection once. He or she may have a deputy registrar, if needed, who is elected in the same manner. The registrar exercises his or her functions under the authority of the president of the Court. The registrar’s responsibilities include the establishment of a Victims and Witnesses Unit (Art. 43.6 of the Rome Statute) that is in charge of assisting victims and witnesses who appear before the Court and others who are at risk on account of testimony given by such witnesses—namely, their families. The Unit provides for protective measures, security arrangements, counseling, and other appropriate assistance.
Three judges are elected by an absolute majority of judges to the offices of president and first and second vice presidents, for three-year terms. They can be reelected once. The Presidency is responsible for the proper administration of the Court and any other function conferred on it in accordance with the Statute (Art. 38).
Exercise of Jurisdiction
The Rome Statute establishes that the exercise of jurisdiction of the Court can be triggered if a State Party (Art. 14) or the UN Security Council (Art. 13) refers a situation to the prosecutor. The prosecutor may also trigger the ICC’s jurisdiction, on his or her own initiative, subject to control by the Pre-Trial Chamber (Art. 15). However, as explained, if a State Party or the prosecutor refers a situation to the ICC, there is a precondition to the Court’s exercise of jurisdiction: either the State of nationality of the accused or the State where the crime was committed must be a party to the Rome Statute. Only a referral by the Security Council overrides this constraint (Art. 13). It is also possible for a State that is not a party to the Rome Statute, but is either the State of nationality of the accused or the State where the crime was committed, to accept the jurisdiction of the ICC with respect to a case, on an ad hoc basis, in which case it must also agree to cooperate fully with the Court (Art. 12).
Furthermore, even if the court’s jurisdiction is being exercised, the Security Council can interrupt or prevent the Court from investigating or prosecuting a situation by adopting a resolution to that effect under Chapter VII of the UN Charter. This deferral lasts twelve months and can be renewed indefinitely (Art. 16).
As of June 2015, the Office of the Prosecutor is investigating twenty-two cases in nine situations: in the Democratic Republic of Congo, in Northern Uganda, in Darfur (Sudan), in the Central African Republic (2 investigations since September 2014), in Kenya, in Libya, in Côte d’Ivoire, and in the Republic of Mali.
Regarding Uganda, the Democratic Republic of the Congo, the Central African Republic, and Mali, referrals were made directly to the ICC by the States concerned. The Republic of Mali was the latest country that referred a situation to the Office of the Prosecutor, on 13 July 2012.
Regarding Sudan, the Security Council referred the situation to the prosecutor, thereby imposing this decision on the Sudanese government in the context of the conflict in Darfur (Resolution 1593, 31 March 2005). In the Libyan case, the Security Council similarly imposed the ICC’s competence by charging the Libyan president while authorizing an international military intervention to protect the civilian population against its own government (Resolution 1970, 26 February 2011). Libya and Sudan are not among the States Parties.
On 31 March 2010, the ICC Pre-Trial Chamber II authorized the prosecutor to open an investigation propio motu into the situation of Kenya with respect to crimes against humanity allegedly committed in relation to the post-election violence of 2007–2008. On 3 October 2011, the ICC Pre-Trial Chamber III also authorized the prosecutor to open an investigation propio motu into the situation in Côte d’Ivoire with respect to alleged crimes committed since 28 November 2010, as well as with regard to crimes that may be committed in the future in the context of this situation. Côte d’Ivoire, which ratified the Rome Statute in February 2013, had already made a declaration accepting the jurisdiction of the ICC on 18 April 2003 and more recently on 3 May 2011.
The Office of the Prosecutor is also conducting preliminary examinations in a number of situations, including in Afghanistan, Georgia, Guinea, Colombia, Honduras, the Republic of Korea, and Nigeria.
Summary of the Rules Governing the ICC’s Exercise of Jurisdiction
- The ICC can only exercise its jurisdiction over a crime if either the State of which the person accused is a national or the State on whose territory the crime was committed has accepted the jurisdiction of the court for this crime by ratifying the Rome Statute (Art. 12 of the Statute). This option is further restricted if the State of nationality of the accused and the State where the crime was committed are the same. In today’s conflicts, this is most often the case.
- This restriction is not applicable if a situation is referred by the UN Security Council acting under Chapter VII of the UN Charter (Art. 12.2).
- Upon ratifying the Rome Statute, States may choose to refuse the Court’s jurisdiction over war crimes for a period of seven years (Art. 124).
- The Court’s jurisdiction may not be exercised if a case is being investigated or prosecuted by a State that has jurisdiction over the case. This may be overruled if the Court can prove that the proceedings were undertaken for the purpose of shielding the accused from criminal responsibility before the ICC, if there was unjustified delay in the national proceedings, or if these were not conducted independently and impartially (Arts. 17 and 20).
- The Court may also exercise its jurisdiction if it proves that the State is unable to carry out the investigation or prosecution—for instance, due to a total or substantial collapse or unavailability of its national judicial system (Art. 17.3).
Subject Matter Jurisdiction (Jurisdiction Ratione Materiae)
Article 5 lists the crimes within the jurisdiction of the Court:
- The crime of genocide (defined in Art. 6). For the purpose of the Statute, the term genocide means
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction, in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
This definition is taken from the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
- Crimes against humanity (defined in Art. 7). ▸ War crimes/Crimes against humanity
- War crimes (defined in Art. 8). ▸ War crimes/Crimes against humanity
However, upon ratifying the ICC Statute, States may choose to refuse the Court’s jurisdiction over war crimes for seven years (Art. 124).
- Aggression . According to Article 5.2 of the Rome Statute, the ICC shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. During the Review Conference of the Rome Statute held in Kampala, Uganda, between 31 May and 11 June 2010, the Assembly of State Parties adopted by consensus a definition of the crime of aggression and a regime establishing how the Court will exercise its jurisdiction over this crime. Inspired by General Assembly Resolution 3314, the definition of the crime of aggression was inserted in the Rome Statute as Article 8bis. ▸ Aggression
The Elements of Crimes of the ICC have been amended to integrate those of the crime of aggression. One of the elements affirms that the crime of aggression must be perpetrated by one or several persons “in a position effectively to exercise control over or to direct the political or military action of the State which committed the act of aggression.” In contrast to the other crimes under the Court’s jurisdiction, the crime of aggression has a unique jurisdictional regime. The prosecutor may proceed to an investigation on his own motion ( propio motu ) or on a State referral only (1) after ascertaining whether the Security Council has made a determination of the existence of an act of aggression (under Art. 39 of the UN Charter); (2) where that situation concerns an act of aggression committed between States Parties; and (3) after the Pre-Trial Division of the Court has authorized the commencement of the investigation if, six months after the event, the Security Council has not recognized the act of aggression.
The Court will not be able to exercise its jurisdiction over the crime until after 1 January 2017, when at least thirty States Parties will have ratified or accepted the amendment and when two-third of the State Parties will have adopted a decision to activate the Court’s jurisdiction.
Personal Jurisdiction (Jurisdiction Ratione Personae)
The Court has jurisdiction over any individual accused of a crime within the jurisdiction of the ICC, except for any person who was under the age of eighteen at the time of the alleged commission of the crime (Statute, Art. 26).
The Rome Statute expressly foresees that immunity can never be invoked with regard to the crimes over which it has jurisdiction.
Article 27 of the Statute stipulates that the Court will have jurisdiction over “all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.”
This article confirms the principles emanating from the precedent established by the Nuremberg Tribunal and the two International Criminal Tribunals for the Former Yugoslavia and Rwanda, and it gives them a permanent and mandatory legal status. It also reaffirms provisions already adopted to this effect in several international conventions.
Temporal Jurisdiction (Jurisdiction Ratione Temporis)
The ICC has jurisdiction only over crimes committed after the entry into force of the Rome Statute for the State concerned (Art. 11). This is derived from the well-established legal principle of non-retroactivity of criminal laws, according to which a law may not be applied to acts committed before the law was enacted.
The Court may impose penalties of imprisonment for up to thirty years or, at most, a term of life imprisonment. It may also order fines and confiscation of proceeds, property, and assets derived directly or indirectly from that crime (Art. 77 of the Rome Statute). It is the only international institution that is able to impose such penalties on individuals.
The sentence of imprisonment is served in a State chosen by the Court from a list of States that have indicated their willingness to accept sentenced persons (Statute, Art. 103). The ICC supervises the implementation of the sentences, but the conditions of imprisonment are governed by the law of the State responsible for its implementation (Statute, Art. 106). Only the Court has the right to decide any application for appeal and revision (Statute, Art. 105).
Relationship Between States and the ICC
Relationship between the ICC and National Jurisdictions
In contrast to the ad hoc International Criminal Tribunals, the ICC does not have primacy over national criminal jurisdictions. Its jurisdiction is complementary to domestic systems, meaning that the Court’s jurisdiction may not be exercised if a case is being investigated or prosecuted by a State that has jurisdiction over it. This may be overruled if the Court can prove that the proceedings were undertaken for the purpose of shielding the accused from criminal responsibility before the ICC, if there is unjustified delay in the national proceedings, or if these are not conducted independently and impartially (Arts. 17 and 20 of the Rome Statute). The Court may also exercise its jurisdiction if the State in question is unable to carry out the investigation or prosecution—for instance, due to total or substantial collapse or unavailability of its national judicial system (Statute, Art. 17.3).
2.Ne Bis in Idem
This is a firmly established principle of law—in both general criminal and international law—according to which one person may not be judged twice for the same crime (also known as protection from double jeopardy). It is one of the main due process guarantees and is reflected in Article 20 of the Rome Statute.
An individual tried before the ICC thus cannot be tried again before a national court for the same crime. By the same token, the ICC may not rule on an act for which a person was already tried by a national court. However, there are exceptions: the ICC may subsequently try the person if the proceedings in the other court were carried out “for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the person concerned to justice” (Art. 20.3 of the Rome Statute).
Obligations of State Cooperation and Mutual Judicial Assistance
The Rome Statute establishes that States have a general obligation to cooperate fully with the Court (Art. 86). However, if a State fails to cooperate, there is no provision to penalize it. Article 87, paragraphs 5 and 7, establishes the only recourse for the Court: it can notify the Assembly of State Parties (which has no powers to penalize a State), or, if the UN Security Council referred the matter to the ICC, it can notify the UN Security Council about a State’s refusal to cooperate.
The obligation to cooperate is applicable to all requests made by the Court in the context of its investigations and prosecutions. The requests may be related to the arrest and surrender of persons to the Court, the production of documents or evidence, the identification and whereabouts of a person, the execution of searches and seizures, and other types of assistance.
States are allowed to transmit information to the prosecutor on a confidential basis (Art. 54.3.e). If the disclosure of such information or documents would, in the opinion of a State, prejudice its national security interests, it may deny the Court’s request. In that case, the Court and the State must take all reasonable steps to find a solution enabling the documents to be used without posing a threat to the national security of the State. If the State considers that there are no means or conditions under which it would authorize the disclosure of the information, it must so notify the Court, which then has no recourse other than those from Article 87, mentioned earlier.
Special Status for the International Committee of the Red Cross
The specific nature and constraint of humanitarian action in situations of armed conflict and violence has led the ICRC to request and obtain a status of exemption from obligation of cooperation with the Court. This protects the ICRC from transmitting documents, information, and evidence as well as appearing as witness in any case or situation under examination by the Court. These privileges are granted to the ICRC on a permanent basis by Rule 73 of the Rules of Procedure and Evidence, adopted by the Assembly of State Parties in 2002. This rule also gives this priviledge to individuals and information bound by professional secrecy: doctors, lawyers, journalists, and so on.
Humanitarian organizations acting in similar situations of armed conflict or violence can claim similar privileges on a case-by-case basis. Their request should be connected to the spirit of this provision and be consistent with their own practice and behavior.
Status of Victims and Witnesses
Reparations for Victims
Contrary to the current practice in the ad hoc International Criminal Tribunals, victims can be represented as such before the ICC and may be awarded reparations. This is an important step toward bringing justice to victims of the egregious crimes over which the ICC has jurisdiction. The Court therefore makes a distinction between the status of victims and that of witnesses, in accordance with the prevailing approach in the civil law system.
The Rome Statute authorizes victims to be represented before the Court by attorneys if their personal interests are affected (Art. 68.3). Article 75 allows the Court to define the scope and extent of any damage and establishes the principles relating to the different forms of reparation to be given to—or with respect to—the victims, including restitution, compensation, and rehabilitation. In order to facilitate the procedure, the Court has developed a form that victims will use to apply for reparations.
In conformity with Article 79, a Trust Fund for Victims (TFV) was set up in September 2002 for the benefit of victims and their families. It is managed by a board of directors composed of five members appointed by the Assembly of State Parties for three-year terms—which are renewable only once. The Court may order that money and other property belonging to the accused be collected through fines or forfeiture to be transferred to the Trust Fund. The Trust Fund receives voluntary contributions from governments, international organizations, individuals, and other funds allocated by the Assembly of State Parties. Reparations may be allocated on an individual or collective basis and are drawn from the accused or from the Trust Fund. They may be paid directly to the victims or through international or national organizations approved by the Fund (Art. 79).
During its Fourth Session in 2005, the Assembly of State Parties had to consider the draft regulations of the Trust Fund for Victims and decide on their adoption. Despite many discussions, States remained divided on the issue of earmarking of voluntary contributions for victims of a given country. The debate also revolved around the Trust Fund’s scope of mandate and trigger mechanisms. The main issue was whether the Trust Fund should only be used to implement Court-ordered reparations awarded to identified victims from a convicted person, or if it could be used for providing general assistance to victims affected by a situation of concern to the ICC even before the completion of a given trial.
While some States (including France, Belgium, and the Democratic Republic of Congo) believed it should also have an assistance component that could intervene before convictions of an indicted person and independently of the Court, others (including the United Kingdom and Canada) firmly believed that the Trust Fund should have a reparative function only and should strictly act upon an order of the Court.
A compromise was reached that allows the Trust Fund to have a general assistance mandate in countries and situations under investigation from the Court. In such situations, the Fund can use voluntary contributions from donors to provide victims and their families with physical rehabilitation, material support, and psychological rehabilitation work.
However, the board of the Fund has to inform in advance the relevant Chamber of the Court of its decision to undertake particular activities. Such activities should not pre-determine any issue to be determined by the Court (including the individual status of victims), violate the presumption of innocence, or be prejudicial to or inconsistent with the rights of the accused to a fair and impartial trial.
As of April 2013, the Fund was running thirty-one projects out of thirty-four accepted by the Court; sixteen projects in Democratic Republic of Congo and eighteen in northern Uganda, which have reached or are currently reaching an estimated 80,000 victims of crimes under the Court’s jurisdiction. The allocation of funds is through various NGO programs supporting victims of violence in the areas of concerns for the ICC. By November 2010, the total voluntary contributions amounted to €5.8 million. Out of the total contributions, approximately €4.45 million have been dedicated to grants in the Democratic Republic of Congo and northern Uganda since 2007–2008. Another €1.35 million have been allocated for activities in the CAR (€600,000) and for any potential Court orders for reparations (€750,000). The first ten major donors of the Fund are Germany, the United Kingdom, Sweden, Finland, Norway, the Netherlands, Ireland, Belgium, Denmark, and France.
On 7 August 2012, the ICC Trial Chamber I rendered its first judgment defining the principles applicable to reparations for victims of war crimes and crimes against humanity committed by Thomas Lubanga Dyilo, found guilty by the ICC on 14 March 2012. The Chamber decided that reparations would be awarded through the intermediary of the Trust Fund for Victims (infra Jurisprudence).
Protection of Victims and Witnesses
Provisions have also been adopted to provide for the security, physical and psychological well-being, dignity, and privacy of victims and witnesses (Art. 68). Provisions include the possibility of conducting any part of the proceedings in camera or presenting evidence by electronic means. A Victims and Witnesses Unit, attached to the Registry of the ICC, has been established to implement these protective measures.
In most of these cases, the prosecutor focused investigations and bills of indictment on certain crimes such as the enlistment of child soldiers and sexual violence. From 2002 to 2012, the prosecutor issued thirty arrest warrants and subpoenas. Out of the fifteen suspects who appeared before judges, four received a dismissal and a fifth was acquitted. A third of the cases have failed to produce a conviction. This should lead to a change in the investigation and indictment policy of the Office of the Prosecutor.
Situations and Cases before the ICC (as of April 2013)
Democratic Republic of Congo
The judges have issued five arrest warrants in this situation. One in 2006 for Thomas Lubanga Dyilo, the chief of the Union des Patriotes Congolais (UPC), a militia rebel group active in the east of DRC (Ituri); one in 2007 for Germain Katanga, the former senior commander of the Force de Résistance Patriotique en Ituri (“FRPI”); one in 2007 for the former senior commander of the Front Nationaliste et Intégrationiste (FNI), Mathieu Ngudjolo Chui; one in 2006 (renewed in 2012) for Bosco Ntaganda, former deputy chief of the General Staff of the Forces Patriotiques pour la Libération du Congo (FPLC) and current alleged chief of staff of the Congrès national pour la défense du people (CNDP), an armed group active in the east of DRC (North Kivu); and one in 2012 for Sylvestre Mudacumura, commander of the military wing of the Forces Démocratiques pour la Libération du Rwanda (FLDR).
Five cases have been brought before the Court: Prosecutor v. Thomas Lubanga Dyilo ; Prosecutor v. Bosco Ntaganda ; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui ; Prosecutor v. Callixte Mbarushimana ; and Prosecutor v. Sylvestre Mudacumura . The accused Thomas Lubanga Dyilo, Germain Katanga, Callixte Mbarushimana, and Bosco Ntaganda (the latter voluntarily surrendered on 22 March 2013) are currently in the custody of the ICC. The suspect Mathieu Ngudjolo Chui was released from custody following his acquittal by Trial Chamber II of the ICC. The prosecutor has appealed the verdict. On 27 February 2015, the Appeals Chamber confirmed, by majority, Trial Chamber II’s decision of 18 December 2012 acquitting Mathieu Ngudjolo Chui of charges of crimes against humanity. The trial in the case Prosecutor v. Thomas Lubanga Dyilo started on 26 January 2009. On 14 March 2012, he was found guilty of the war crimes of enlisting and conscripting children under the age of fifteen years and using them actively in hostilities. On 10 July 2012, he was sentenced to fourteen years of imprisonment. The trial in the case of Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui started on 24 November 2009. On 7 March 2014, Trial Chamber II of the ICC ruling in the majority rendered its judgment in this case. Germain Katanga was found guilty, of one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging) committed on 24 February 2003. On 23 May 2014, Germain Katanga was sentenced to a total of 12 years’ imprisonment. The confirmation of charges hearing in the case Prosecutor v. Callixte Mbarushimana took place from 16 to 21 September 2011. On 16 December 2011, Pre-Trial Chamber I decided by majority to decline to confirm the charges against Mr. Mbarushimana and to release him from the custody of the Court, on the completion of the necessary arrangements.
ICC judges have issued warrants of arrests for the top leaders of the Lord Resistance Army (LRA) on 8 July 2005. Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, and Dominic Ongwen have all been named in numerous counts of crimes against humanity and war crimes.
The case Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, and Dominic Ongwen is currently being heard before Pre-Trial Chamber II. Following the confirmation of the death of Mr. Lukwiya, the proceedings against him have been terminated. Dominic Ongwen was surrendered to ICC custody on 16 January 2015. His trial should happen in 2016. The three remaining suspects are still at large. The three remaining suspects are still at large.
For the first investigation in the Darfur region for crimes committed in 2003–2004, two arrest warrants were issued on 2 May 2007 for Ahmad Muhammad Harun and Ali Kushayb for numerous counts of crimes against humanity and war crimes. These warrants are outstanding. Following a second investigation, the Pre-Trial Chamber issued on 4 March 2009 a second warrant of arrest against Omar Al Bashir for three counts of genocide committed against the Fur, Masalit, and Zaghawa ethnic groups.
There are five cases in this situation: Prosecutor v. Ahmad Muhammad Harun (“Ahmad Harun”) and Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) ; Prosecutor v. Omar Hassan Ahmad Al Bashir ; Prosecutor v. Bahar Idriss Abu Garda ; and Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus and Prosecutor v. Abdel Raheem Muhammad Hussein . A summons to appear was issued for Mr. Abu Garda, who appeared voluntarily before the Chamber on 18 May 2009. After the hearing of confirmation of charges, in February 2010, Pre-Trial Chamber I declined to confirm the charges. Mr. Abu Garda is not in the custody of the ICC. Two other summonses to appear were issued for Mr. Banda and Mr. Jerbo, who appeared voluntarily on 17 June 2010; the confirmation of charges hearing took place on 8 December 2010. On 7 March 2011, Pre-Trial Chamber I unanimously decided to confirm the charges of war crimes brought by the ICC’s prosecutor against Mr. Banda and Mr. Jerbo and committed them to trial. In June 2015, proceedings against Mr Jerbo were terminated because his death, and trial of Mr Banda is still pending.
Central African Republic (CAR)
An arrest warrant for Mr. Jean Pierre Bemba, the former vice president of the DRC, was issued on 23 May 2008 for crimes against humanity and war crimes in CAR. Mr. Bemba was arrested in Brussels on 24 May 2008. Mr. Bemba, the first person to be arrested in the context of the ICC investigation in Central African Republic, was transferred to The Hague on 3 July 2008.
On 12 January 2009, a three-day confirmation of charges hearing was held. As a consequence, ICC Pre-Trial Chamber II decided on 15 June 2009 that Bemba would face trial. It confirmed two counts of crimes against humanity (rape and murder) and three counts of war crimes (rape, murder, and pillaging) against him, sending his case to trial. His trial, which was set to start on 14 July 2010, was postponed due to a pending appeal in the case. On 19 October 2010, the ICC Appeals Chamber dismissed Jean-Pierre Bemba’s appeal against the decision on the admissibility of his case. Trial Chamber III subsequently set the trial’s opening for 22 November 2010. On 6 June 2011, the defence filed an application for the accused’s provisional release, which was denied by the Trial Chamber III on 26 September 2011. The trial should happen at the end of the year 2015.
On 26 February 2011, the United Nations Security Council decided unanimously to refer the situation in Libya since 15 February 2011 to the ICC prosecutor. On 3 March 2011, the ICC prosecutor announced his decision to open an investigation in the situation in Libya, which was assigned by the Presidency to Pre-Trial Chamber I. On 27 June 2011, Pre-Trial Chamber I issued three warrants of arrest respectively for Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi, and Abdullah Al-Senussi for crimes against humanity (murder and persecution) allegedly committed across Libya from 15 until at least 28 February 2011, through the State apparatus and Security Forces. On 22 November 2011, Pre-Trial Chamber I formally terminated the case against Muammar Gaddafi due to his death. The two other suspects remain at large.
Côte d’Ivoire, which is party to the Rome Statute since February 2013, had accepted the jurisdiction of the ICC on 18 April 2003 and more recently on 3 May 2011. On 3 October 2011, Pre-Trial Chamber III granted the prosecutor’s request for authorization to open investigations proprio motu into the situation in Côte d’Ivoire with respect to alleged crimes within the jurisdiction of the Court, committed since 28 November 2010, as well as with regard to crimes that may be committed in the future in the context of this situation.
On 23 November 2011, Pre-Trial Chamber III issued a warrant of arrest under seal in the case Prosecutor v. Laurent Gbagbo for four counts of crimes against humanity. The arrest warrant against Mr. Gbagbo was unsealed on 30 November 2011, when the suspect was transferred to the ICC detention center at The Hague by the Ivorian authorities. On 5 December 2011, Pre-Trial Chamber III held an initial appearance hearing and set the date for the confirmation of charges hearing to start on 18 June 2012. This was postponed a first time to 2 August, and again on 13 August, until the issue of Mr. Gbagbo’s fitness to take part in it is resolved. In the meantime, the Court has decided on 23 February 2012 to expand the scope of investigation in Côte d’Ivoire to include crimes allegedly committed between 19 September 2002 and 28 November 2010. To be added: The trial should happen at the end of the year 2015.
Republic of Kenya
On 31 March 2010, Pre-Trial Chamber II granted the prosecutor’s request to open an investigation proprio motu in the situation in Kenya, State Party since 2005. Following summonses to appear issued on 8 March 2011, six Kenyan citizens voluntarily appeared before Pre-Trial Chamber II on 7 and 8 April 2011. The confirmation of charges in the case Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey, and Joshua Arap Sang was decided on 23 January 2012. The trial is scheduled to open in 28 May 2013 for the accused William Samoei Ruto and Joshua Arap Sang. Pre-Trial Chamber II declined to confirm the charges against Mr. Kosgey after having found that there were not reasonable grounds to believe that he was an indirect co-perpetrator to the alleged crimes. The confirmation of charges in the case Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali was decided on 23 January 2012. The trial is scheduled to open on 9 July 2013 for the accused Kirimi Muthaura and Mohammed Hussein Ali, as Pre-Trial Chamber II declined to confirm the charges against Mr. Ali. On 13 March 2015, the charges against Mr Kenyatta were dropped.
Republic of Mali
On 16 January 2013, the Office of the Prosecutor opened an investigation into alleged crimes committed on the territory of Mali since January 2012. The situation in Mali was referred to the Court by the government of Mali on 13 July 2012. After conducting a preliminary examination of the situation, including an assessment of admissibility of potential cases, the Office of the Prosecutor determined that there was a reasonable basis to proceed with an investigation.
▸ Aggression ▸ Children ▸ Genocide ▸ Human rights ▸ Immunity ▸ Individual recourse ▸ International Criminal Tribunals ▸ Non-applicability of statutory limitations ▸ Non-retroactivity ▸ Penal sanctions in humanitarian law ▸ Rape ▸ Reparation (Compensation) ▸ Security Council of the UN ▸ War crimes/Crimes against humanity ▸ Women
List of States Party to International Humanitarian Law and Human Rights Conventions (no. 31)
- Jurisdiction, Admissibility of Cases, and Applicable Law
- Preconditions to the Exercise of the Court’s Jurisdiction
Preconditions to the exercise of the Court’s jurisdiction were considered in two decisions of the ICC with regard to the Lubanga Case and the situation in the Republic of Kenya ( Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya , 31 March 2010). Regarding this situation, the prosecutor initiated an investigation proprio motu (on his own initiative). It was the first country for which the prosecutor used his proprio motu powers. Since then, the prosecutor used the propriu motu powers to initiate an investigation in Côte d’Ivoire.
In the Lubanga Case ( Prosecutor v. Thomas Lubanga Dyilo , Decision on the Applications for Participation in the Proceedings, 17 January 2006, paras. 83–93), the ICC Pre-Trial Chamber I recalled that several conditions must be met for a crime to fall within the Court’s jurisdiction:
It must be one of the crimes mentioned in Article 5 of the Rome Statute, which are genocide, crimes against humanity, and war crimes.
It must have been committed within the time period laid down in Article 11 of the Statute, which means that the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute for the State concerned, unless that State has made a declaration under Article 12 (jurisdiction ratione temporis ).
The crime must meet one of the two alternative conditions described in Article 12 of the Statute; it must either have occurred on the territory of a State party to the Rome Statute or have been perpetrated by a national of a State party to the Statute.
The situation must have been referred to the prosecutor either by a State Party, by the Security Council acting under Chapter VII of the United Nations Charter, or by the prosecutor him- or herself.
In this Decision, the ICC Pre-Trial Chamber also explained the difference that exists between a “situation” and a “case,” a difference that can be understood in terms of the different kinds of proceedings that they entail. The Chamber held that situations are generally defined in terms of temporal and territorial parameters, such as the Situation in the Democratic Republic of the Congo since 1 July 2002, for which the Rome Statute envisages the necessary proceedings to determine whether a particular situation should give rise to a criminal investigation. Cases, on the other hand, comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, and entail proceedings that take place only after the issuance of a warrant of arrest (para. 65). Situations can comprise several cases; for example, in the situation in the Democratic Republic of the Congo, four cases are currently being heard: Prosecutor v. Thomas Lubanga Dyilo ; Prosecutor v. Bosco Ntaganda ; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui ; and Prosecutor v. Callixte Mbarushimana .
These same preconditions were reasserted by the ICC Pre-Trial Chamber II with regard to the situation in the Republic of Kenya ( Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya , 31 March 2010, paras. 36–39).
- Admissibility of Cases and Challenges of Such Admissibility
In the Lubanga Case ( Prosecutor v. Thomas Lubanga Dyilo , 24 February 2006, paras. 29–63), the ICC Pre-Trial Chamber I held that pursuant to Article 17.1 of the Rome Statute, two cumulative criteria must be met for a case to be admissible:
the State’s inactiveness, unwillingness, or inability to proceed in relation to a case, provided that the State’s inability to proceed is not binding for the Court and;the Gravity threshold, which means that only cases against “the most senior leaders suspected of being the most responsible” are admissible.
The two same conditions of admissibility were reasserted by the Pre-Trial Chamber II in its Decisions Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (31 March 2010, paras. 40–62); Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey, and Joshua Arap Sang , Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant of Article 19(2)(b) of the Statute, 30 May 2011, paras. 47–70; and Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali , Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, 30 May 2011, paras. 43–66). In its Judgment on the Appeal of the Republic of Kenya against the Decision of Admissibility by Pre-Trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” (30 August 2011), the Appeals Chamber of the ICC confirmed previous Pre-Trial Chamber decisions. It ruled that, for a case to be inadmissible, a national investigation must be ongoing and must cover the same individuals and substantially the same conduct as alleged in the proceedings before the ICC (para. 39). It considered that the Pre-Trial Chamber made no error when it found that the government of Kenya had failed to provide sufficient evidence that it was investigating the suspects (paras. 82–83).
In the Lubanga Case ( Prosecutor v. Thomas Lubanga Dyilo , 9 November 2005), the Chamber held that, according to Article 19 of the Rome Statute, challenges to the admissibility of a case may be made by:
an accused or a person for whom a warrant of arrest or a summons to appear has been issued under Article 58 of the Rome Statute;
a State that has jurisdiction over a case, on the grounds that it is investigating or prosecuting the case or has investigated or prosecuted; or
a State from which acceptance of jurisdiction is required under Article 12 of the Rome Statute.
In a further Appeals Chamber decision ( Prosecutor v. Thomas Lubanga Dyilo , 14 December 2006, para. 24), the ICC ruled that the “abuse of process” could not constitute a ground for challenging the jurisdiction of the Court.
- Applicable Law
In the Kony Case ( Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen , 28 October 2005, para. 19), the ICC Pre-Trial Chamber II made a restrictive interpretation of Article 21 of the Statute referring to applicable law by the ICC, holding that rules and practice of other jurisdictions, whether national or international, are not “as such applicable law before the Court beyond the scope of article 21 of the Statute,” which means that national laws can be used as applicable law before the Court only if the Court has failed in applying other sources of applicable law, namely the Rome Statute, the Elements of Crimes, and the Rules of Procedure and Evidence, as well as applicable treaties and principles and rules of international law, where appropriate. Moreover, if, national laws can constitute applicable law, they must be consistent with the Rome Statute and with international law, both treaty-based and customary.
If the rules and practice of International Criminal Tribunals are not considered by the Court as applicable law per se, they shall be used as implicit guidance ( Prosecutor v. Thomas Lubanga Dyilo , 3 October 2006, p. 9).
The Court also held that the application and interpretation of law must be consistent with “internationally recognized human rights,” which, on the Court’s opinion, refers to UN General Assembly and Security Council Resolutions, as well as the jurisprudence of the Inter-American Court of Human Rights and European Court of Human Rights ( Prosecutor v. Thomas Lubanga Dyilo , 17 January 2006, paras. 81, 115–116).
- Use and Misuse of Confidential Documents Witness by the Court
The Lubanga Case
Thomas Lubanga Dyilo is the first accused to be tried by the ICC. In 2004, the Democratic Republic of Congo (DRC) requested that the Court investigate and prosecute crimes that had occurred in the DRC since 1 July 2002. In 2006, the ICC issued an arrest warrant for Thomas Lubanga, who was accused of war crimes for conscripting, enlisting, and using child soldiers. This led to a number of procedural questions related to managing confidential documents and the protection of witnesses without compromising the right of defense and fair trial.
In 2006, the ICC Pre-Trial Chamber I held that the Court could enter into a “cooperation regime” with the United Nations through an agreement that must be approved by the Assembly of State Parties and thereafter concluded by the president of the Court on its behalf, a regime that allows the UN to provide confidential information to the Court while knowing that those documents will not be disclosed ( Prosecutor v. Thomas Lubanga Dyilo , Decision on Defense Requests for Disclosure of Materials, 17 November 2006, pp. 5, 7).
The ICC Pre-Trial Chamber I recalled that, pursuant to Article 54,3,e of the Rome Statute, the prosecutor must seek the consent of the provider of the evidence if he or she wants to disclose it in a redacted form ( Prosecutor v. Thomas Lubanga Dyilo , 28 September 2006, p. 5).
The ICC Pre-Trial Chamber I also recalled Rule 82.3 of the Rules of Procedure and Evidence, which states that if the prosecutor calls a witness to introduce any material or information that has been obtained and protected under Article 54.3.e, it may not be possible to compel that witness to answer any question relating to this material or information ( Prosecutor v. Thomas Lubanga Dyilo , 8 November 2006, p. 5).
The ICC Pre-Trial Chamber I held that the surrender of the accused, Mr. Thomas Lubanga Dyilo, to the Court on 17 March 2006 triggered the obligation of the prosecution to disclose, “as soon as practicable,” any exculpatory evidence to the defense, as stated in Article 67.2 of the Rome Statute ( Prosecutor v. Thomas Lubanga Dyilo , 23 March 2006, pp. 3, 7).
In a further decision on the same case, the Chamber decided that exculpatory evidence should be disclosed by the prosecution prior to the confirmation hearing and that this obligation will be wider “whenever new charges, or new factual allegations supporting the current charges, are alleged” ( Prosecutor v. Thomas Lubanga Dyilo , 15 May 2006, paras. 119, 123).
The Court recalled that the right to be tried without delay and with expeditiousness is one of the main attributes of a fair trial. This must be respected at all stages of the proceedings ( Prosecutor v. Thomas Lubanga Dyilo , 13 July 2006, para. 11).
With regard to the protection of the victim and its impact on fair trial, the ICC Pre-Trial Chamber I held that “not disclosing the identity of the applicants to the Defence does not constitute an infringement of the presumption of innocence” ( Prosecutor v. Thomas Lubanga Dyilo , 6 November 2006, p. 7).
On 13 June 2008, the ICC Trial Chamber I decided to stay proceedings because of the inability of the prosecution to disclose potentially exculpatory information to the defense, an inability that, in the Chamber’s opinion, entailed a violation of the rights of the defense to a fair trial: Prosecutor v. Thomas Lubanga Dyilo , 13 June 2008, para. 94).
This decision ruled that the prosecution has not properly used Article 54.3.e of the Rome Statute, which allows the prosecution to receive confidential information or documents in order to find new evidence, and which provides that those documents would not be used during trial. It stated that the prosecution had widely used this article, while it was to be used on an exceptional basis only. It also held that, under Article 67.2 of the Statute, the disclosure of exculpatory evidence in the possession of the prosecutor is a fundamental aspect of the right of the accused to a fair trial. At the time of the decision to discontinue the proceedings, the United Nations had not yet agreed to allow disclosure of confidential documents they had submitted to the prosecution. The Chamber accordingly suspended the trial because it found that the possibility of a fair trial was in danger. Eventually, this permission was obtained and the materials were disclosed. In November 2008, the judges ruled that the prosecutor had taken the necessary steps to ensure Lubanga’s fair trial rights were respected, allowing the trial to proceed.
- The Protection of Victims and Witnesses
- Measures to Be Implemented to Protect Victims and Witnesses
Article 68.1 of the Rome Statute provides that the Court shall take appropriate measures to protect victims and witnesses. The Court has recommended the adoption of different types of measures, such as the setting up of trainings on the Court proceedings by the Victims and Witnesses Unit (VWU); the enhancement of cooperation in matters of protection with the State concerned, or with other States Parties, non-States Parties, and intergovernmental organizations ( Prosecutor v. Thomas Lubanga Dyilo , 19 September 2006); as well as the authorization of anonymous participation to the confirmation hearing when necessary ( Prosecutor v. Thomas Lubanga Dyilo , Decision on the Arrangements for Participation of Victims, 22 September 2006, p. 6), the restriction of contacts between organs of the Court and victims ( Situation in the Democratic Republic of Congo , Decision on Protective Measures Requested by Applicants, July 21, 2005, p. 6), and the reclassification of a public decision as confidential ( Prosecutor v. Thomas Lubanga Dyilo , 9 November 2006, p. 2). Nonetheless, the Court has held that those protective measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial ( Prosecutor v. Thomas Lubanga Dyilo , 14 December 2006, para. 34).
- Modalities of Victims’ Participation to the Proceedings
Article 68.3 of the Rome Statute states that “where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings.” The Court has clarified the modalities of this participation; they have the right to be heard, to express views and concerns, to file submissions, to attend public hearings and other hearings related to their interests, to request the relevant Chamber to order specific measures, to be informed of the proceedings, and to be notified when public documents and other documents related to their interests are released ( Prosecutor v. Thomas Lubanga Dyilo , 17 January 2006, paras. 70–76). Victims also have the right not to attend hearings if their security is at stake ( Prosecutor v. Thomas Lubanga Dyilo , 20 October 2006, p.11) and to choose whether or not they agree to disclose their identity to the defense before the commencement of the trial ( Prosecutor v. Thomas Lubanga Dyilo , 15 September 2006, p. 9). On 3 October 2012, Trial Chamber V ruled on victims’ legal representation and rights in the two Kenyan cases in order to cope with the huge number of victims and their needs of protection ( Prosecutor v. Uhuru Muigai Kenyatta ; Prosecutor v. William Samoei Ruto and Joshua Arap Sang ). The Trial Chamber set out a new procedure to be followed by victims who want to participate in the trials. This new procedure creates a new category of victims: the ones who do not wish to appear in court in person. Only the ones wishing to appear in person in Court must submit a detailed application as required under Rule 89 of the Rules of Procedure and Evidence. The others may still register with the Registry through a less detailed process and participate in the trial through the Common Legal Representative for Victim, who will also voice the views and concerns of unregistered or unidentified victims. This pragmatic evolution based on wishes of victims does not contribute to the clarification of their rights based status of representation in front of the ICC.
- Reparation for Victims
By decision of 7 August 2012 in the Lubanga Case (ICC-01/04-01/06, Prosecutor v. Thomas Lubanga Dyilo , Decision Establishing the Principles and Procedures to be Applied to Reparations), the ICC Trial Chamber I spelled out the principles applicable to the reparations of victims. Considering the nature and the extent of the crimes committed by Thomas Lubanga, which affected many communities, the Chamber decided to adopt a collective approach. Those principles are the following:
- The right to reparations is a well-established and basic human right (para. 185).
- All victims are to be treated fairly and equally as regards reparations, irrespective of whether they participated in the trial proceedings. The needs of all the victims shall be taken into account, and particularly those of children, the elderly, those with disabilities, and the victims of sexual or gender violence. Victims shall be treated with humanity and dignity, and their safety, physical, and psychological well-being and privacy shall be ensured. Besides, reparations shall be granted to victims without adverse distinction on the grounds of gender, age, race, color, language, religion or belief, political or other opinion, sexual orientation, national, ethnic, or social origin, wealth, birth, or other status. Finally, reparations should avoid further stigmatization of the victims and discrimination by their families and communities (paras. 187–93).
- Reparations may be granted to direct and indirect victims, including the family members of direct victims, but also to legal entities (para. 194).
- Reparations should be accessible to all victims, by adopting a gender- and culture-sensitive approach. Victims, their families, and communities should be able to participate in the reparation process (paras. 195–96).
- These favor community rehabilitation projects rather than individual compensation.
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