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THE PRACTICAL GUIDE TO HUMANITARIAN LAW

« Calling things by the wrong name adds to the affliction of the world. » Albert
Camus.


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CATEGORIES

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INDEX

 1. Alias
 2. Alphabetical index
 3. International conventions
 4. Ratified conventions by countries
 5. Advanced search

OTHERS

 1. Authors and participants


INTERNATIONAL CRIMINAL COURT (ICC)


I. BACKGROUND

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 United Nations (UN). The Rome Statute entered into force
on 1 July 2002 following its ratification by 60 States. The Court has its seat
in The Hague in the Netherlands and started functioning in March 2003 when the
Prosecutor, judges, and registrar were appointed.

As of October 2023, 124 States have ratified the Rome Statute. However, two
countries have withdrawn from the ICC: Burundi (withdrawal effective on October
2017) and the Philippines (withdrawal effective on 17 March 2019), while two
others had notified of their decision to withdraw but later revoked it: South
Africa (notification made on 19 October 2016 and revoked on 7 March 2017) and
The Gambia (notification made on10 November 2016 and revoked on 10 February
2017).

The ICC is the first permanent international criminal tribunal having
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).

The ICC should not be confused with the International Court of Justice (ICJ),
which was created by the UN Charter in 1945 to adjudicate on legal disputes
between States and is also based in The Hague.

The idea of establishing a permanent international criminal court was first
considered after the Nuremberg trials held under the International Military
Tribunal (IMT) established after the Second World War in 1945 but States failed
to agree until 1998.

The Rome Statute was adopted with the aim of filling the gap left since the
Second World War in the international community’s ability to prosecute and
punish the perpetrators of the most serious crimes. It builds on the experience
of the two ad hoc International Criminal Tribunals established by the UN
Security Council (UNSC) resolutions to prosecute crimes committed in the former
Yugoslavia (ICTY) (operational from 1993 through 2017) and in Rwanda (ICTR)
(operational from 1994 through 2015).

However, contrary to the ICTY’s and ICTR’s jurisdictions, the ICC does not have
primacy over national criminal jurisdictions but rather is complementary to
domestic prosecution. The ICC can initiate proceedings only if the State in
question is “unwilling or unable genuinely to carry out the investigation or
prosecution” (art. 17 of the Rome Statute). 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 incentivise States to carry out
their own prosecutions whenever possible.

The jurisdiction of the ICC over these crimes remains subordinated to the
condition of State consent through a ratification process and special conditions
depending on the nature of crime ( infra , section III).

Whether a case involves genocide, war crimes or crimes against humanity, the
Court can 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 (art. 12 of the Rome Statute). The absence of
any reference to the State of nationality of the victim or of the State where
the accused is located has limited the Court’s ability to investigate situations
of non-international armed conflicts since the State of nationality of the
accused and the State where the crime was committed are the same.

With respect to the crime of aggression, the ICC’s theoretical jurisdiction has
only been effective since 17 July 2018, and the entry into force of the relevant
amendments to the Rome Statute. However, the ICC’s jurisdiction over the crime
of aggression remains optional for States Parties and is subject to restrictive
conditions that differ from those applicable to the Court’s jurisdiction over
other international crimes.

The UNSC has a high degree of authority over the jurisdiction of the ICC. It is
the only body that can bypass the requirement of State consent, as it can impose
ICC jurisdiction on any State, provided that none of its five permanent members
vetoes the decision. The UNSC can also defer or prohibit the commencement or
continuation of an investigation or prosecution for one year, which can be
extended indefinitely (art. 16 of the Rome Statute). The special privileges
granted by the Rome Statute to the UNSC reflect the hybrid nature of the ICC as
an independent judicial body on the one hand and as an instrument of
international conflict management on the other. This has led to uncomfortable
and confusing situations of selective enforcement of international justice. The
politicisation of the initial referral of a case can be exacerbated by the
Prosecutor’s dependence on evidence provided by States. But it can also be
mitigated by the judges who require strict adherence to due process and high
standards of evidence in the investigation and prosecution phases, even if this
leads to the acquittal of suspects.

Despite these constraints, the ICC represents a step forward in the
consolidation and implementation of international criminal law. It is an
important step towards unifying the definition of international crimes and
bringing together the world’s diverse legal systems and standards of criminal
investigation, fair trial and due process. By promoting complementarity of
jurisdiction between the ICC and national courts over commonly defined
international crimes, it also strengthened the application of the principle of
universal jurisdiction, which allows national courts to prosecute perpetrators
of mass crimes committed abroad. The number of countries that have ratified the
Rome Statute has disproved the pessimists’ predictions. It shows that the ICC is
seen as a protective instrument for those numerous countries that cannot rely on
their super military power.

The structure and organisation of the ICC reflects its mixed international and
judicial nature (II) and defines the role of the various organs and their
respective powers in the concrete exercise of the ICC’s jurisdiction over the
different situations and types of crimes (III). The relationship between States
and the ICC is reflected (IV) and is complemented for the first time by the
special status accorded to victims and witnesses including the recognition of
victims’ right to reparation (V). Throughout its 20 years of existence, the ICC
Prosecutor and Judges have navigated between the limitations of the Rome Statute
and the expectations of victims. This is reflected both in the number of
situations and cases brought before the ICC, but also in the many challenges and
shortcomings associated with their investigation or adjudication by the ICC
(VI). Despite the failures and frustrations, the work of the ICC is contributing
to the emergence of international jurisprudence, consolidating the learning
process of international criminal justice in relation to mass crimes and
disseminating common standards at the national level. ( infra , Jurisprudence,
see end of section).


II. STRUCTURE AND ORGANIZATION OF THE ICC

The ICC is made up of several principal organs: (1) the Assembly of State
Parties (ASP) (2) the Office of the Prosecutor (OTP), (3) the judicial Divisions
and Chambers (Appeals, Trial and Pre-Trial), (4) the Registry, and (5) the
Presidency (art. 34 of the Rome Statute).

The ICC’s funding (€173.234 million in the 2023 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).


1. THE ASSEMBLY OF STATE PARTIES (ASP)

The specificity of the ICC is reflected in the existence of an additional body
in which each State Party has one representative. Created by article 112 of the
Rome Statute, the ASP plays an important role in guiding and supporting the
functioning of the Court.

In particular, it is the Assembly, and not the Court itself, that is responsible
for adopting two key procedural documents: the Rules of Procedure and Evidence
and the Elements of Crimes .

The ASP is also the body responsible for electing the Prosecutor and Judges and
for approving the budget. It is also responsible for supervising the Presidency,
the Prosecutor, and the Registry with regards to the administration of the Court
including its budget; and for examining any matter relating to the
non-cooperation of States.


2. OFFICE OF THE PROSECUTOR (OTP)

As of 12 February 2021, the ICC Prosecutor is Karim A. A. Khan. He succeeded
Fatou Bensouda of The Gambia. The OTP 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 Rome Statute).

The Prosecutor is elected for a non-renewable nine-year term by an absolute
majority of the members of the ASP. 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 may appoint the staff necessary for the performance of his or her
duties, including advisers and investigators.

The OTP investigate cases or situations that have been referred either by a
State Parties (art. 14 of the Rome Statute) or by the UNSC (art. 13 of the Rome
Statute). Under certain circumstances, the Prosecutor may also 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 (art. 15 of the Rome Statute).

In such cases, 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 to officially open a case. Pending the Pre-Trial Chamber’s
ruling, the Prosecutor may only, “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 such evidence may not be available subsequently (art.
18(6) of the Rome Statute).

The Prosecutor 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). (see infra , Section III.1 and Section VI).


3. THE CHAMBERS AND JUDGES

The judicial organ of the ICC is composed of 18 judges, divided into the
different Chambers (Pre-Trial, Trial and Appeals). The judges are elected by the
ASP 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 international
humanitarian law or human rights law, and have the necessary relevant experience
in criminal law and procedure.

In selecting the judges, States Parties must consider 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
maximum full term of nine years (except to enable them to conclude any trial or
appeal they conducted and for which the hearing has already commenced during
their term), and they may not be re-elected. 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 of the Division.

•The Trial Division is composed of not less than six judges; the Trial Chamber
is composed of three of the judges from this Division.

•The Pre-Trial Division is composed of not less than six judges; the composition
of the Pre-Trial Chamber is composed of three judges or a single judge of that
Division in accordance with 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 (art. 39(2)(c) of the Rome Statute).


4. THE REGISTRY

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 (art. 43
of the Rome Statute). The registrar is elected by an absolute majority of the
judges for a five-year term, open for re-election 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, counselling,
and other appropriate assistance.


5. THE PRESIDENCY

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 re-elected once. The Presidency is responsible for the proper administration
of the Court and any other function conferred on it in accordance with the Rome
Statute (art. 38).


III. JURISDICTION


1. EXERCISE OF JURISDICTION

The Rome Statute provides that the exercise of the Court’s jurisdiction may be
triggered in three different ways. A State Party (art. 14 of the Rome Statute)
or the UNSC (art. 13 of the Rome Statute) can refers a situation to the
Prosecutor. The Prosecutor (art. 15 of the Rome Statute) may also trigger the
ICC’s jurisdiction proprio motu , meaning on his or her own initiative, subject
to control by the Pre-Trial Chamber. However, as previously 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 UNSC overrides this constraint
(art. 13 of the Rome Statute). 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 the State in
question must agree to cooperate fully with the Court (art. 12 of the Rome
Statute).

However, even when the Court’s jurisdiction is being exercised, the UNSC has the
right to suspend the Court’s investigation or prosecution for a period of 12
months. This suspension requires the adoption of a UNSC resolution under Chapter
VII of the UN Charter, which deal with the management of international security.
Such deferral may be renewed in the same form indefinitely (art. 16 of the Rome
Statute).

In addition to investigating cases or situations formally referred to the Court
the OTP may also conduct preliminary examinations on its own initiative in a
number of situations of concern.

As of October 2023, the ICC is investigating 17 cases in 16 countries: in the
DRC (since 1 July 2002), in Northern Uganda (since 1 July 2002), in Darfur
(Sudan) (since 1 July 2002) in the Central African Republic (since 1 July 2002
with two investigations focusing on the periods 2002-2003 and 2012 onwards), in
Kenya (since 1 June 2005 focusing on the period of post-election violence in
2007-2008), in Libya (since 15 February 2011), in Ivory Coast (since 19
September 2002 focusing on the period of post-election violence in 2010-2011),
in the Republic of Mali (since 1 July 2002 focusing on the period of January
2012), in Georgia (between 1 July and 10 October 2008), in Burundi (since 26
April 2015 until 26 October 2017), Bangladesh/Myanmar (since 1 June 2010
focusing on the period of 2016-2017), Afghanistan (since 1 May 2003), State of
Palestine (since 13 June 2014), Republic of the Philippines (between 1 November
2011 and 16 March 2019), Venezuela (since 1 July 2002) and in Ukraine (since 21
November 2013).

The ICC is also conducting three preliminary examinations in: Nigeria (since
2010), and for other cases concerning Venezuela (since 2014) and the DRC (since
2022).

Given the existence of three different channels of referral to the ICC, it is
worth noting how each of them has been used in relation to the various cases in
progress.

As of October 2023, the following States have referred their cases directly to
the ICC: Uganda in 2003 was the first State to refer a situation on its own
territory. It was followed by the DRC in 2004 which later (June 2023) referred
another case to the ICC regarding alleged crimes committed in its North Kivu
region in 2022. Then, the following countries also referred their cases to the
ICC: Central African Republic in 2005 and 2014, Mali in 2012, Comoros in 2013
and Gabon in 2016.

As of October 2023, the UNSC used its power to impose the ICC’s jurisdiction on
States in two instances. In the case of Sudan in 2005, the UNSC 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 case of Libya, the UNSC similarly imposed the ICC’s jurisdiction
by indicting the Libyan president, while at the same time authorising an
international military intervention to protect the civilians from their own
government (Resolution 1970, 26 February 2011). It should be stressed that
neither Libya nor Sudan are States Parties to the ICC.

As of October 2023, the ICC Prosecutor has exercised its power to open cases
proprio motu in six different instances. As the case of Ukraine was subsequently
referred by other States, the Prosecutor is currently investigating five cases
on his own initiative. On 31 March 2010, the ICC Pre-Trial Chamber II authorised
the Prosecutor for the first time to open an investigation proprio motu into the
situation of Kenya with respect to crimes against humanity allegedly committed
in the context of the 2007-2008 post-election violence. On 3 October 2011, the
ICC’s Pre-Trial Chamber III also authorised the Prosecutor to open an
investigation proprio motu into the situation in Ivory Coast with respect to
crimes allegedly committed since 28 November 2010 and crimes that may be
committed in the future in relation to this situation. Ivory Coast, 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. On 27 January 2016, the ICC Pre-Trial Chamber I authorised the
Prosecutor to open an investigation proprio motu into the situation in Georgia
with respect to alleged crimes committed in the context of an international
armed conflict between 1 July and 10 October 2008 in and around South Ossetia.
On 14 November 2019, the Pre-trial Chamber III authorised the Prosecutor to
investigate alleged crimes within the jurisdiction of the ICC committed in the
situation in Bangladesh/Myanmar. This authorization followed the Prosecutor’s
request submitted on 4 July 2019, to open an investigation into alleged crimes
within the jurisdiction of the ICC committed against the Rohingya people in
Myanmar. The Chamber concluded that the Court can exercise jurisdiction over the
crimes if part of the criminal conduct took place on the territory of a State
Party. Although Myanmar is not a State Party, Bangladesh acceded to the Rome
Statute in 2010. After reviewing the available information, the Chamber accepted
that there were reasonable grounds to believe that widespread and/or systematic
acts of violence may have been committed that could as amount to the crimes
against humanity of deportation across the Myanmar-Bangladesh border and
persecution on the basis of ethnicity and/or religion against the Rohingya
population. The Chamber did not find it necessary to consider whether other
crimes within the jurisdiction of the Court may have been committed, although
such alleged crimes may form part of the Prosecutor’s future investigation. On
14 June 2021, the Prosecutor requested to open an investigation into the
situation of the Republic of the Philippines, which was granted on 15 September
2021 by the Pre-Trial Chamber I. The investigation concerns any alleged crime
including but not limited to the crime against humanity of murder, committed in
the Philippines between 1 November 2011 and 16 March 2019 in the context of the
so-called “war on drugs” campaign. (see infra , section VI).


2. CRIMES UNDER THE JURISDICTION OF THE ICC (JURISDICTION RATIONE MATERIAE)
RATIONE MATERIAE )

Article 5 of the Rome Statute lists the crimes within the jurisdiction of the
Court:

 * The crime of genocide (defined in art. 6)

The definition of the ICC is the same that is used in the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide.

➔ Genocide

 * Crimes against humanity (defined in art. 7)

➔ War crimes/Crimes against humanity

 * War crimes (defined in art. 8)

The definition of the ICC covers crimes committed in international armed
conflicts that were already listed in IHL as well as crimes committed in
non-international armed conflicts that were not yet covered by previous
international conventions. However, when ratifying the Rome Statute, States have
the possibility of opting out of the Court’s jurisdiction over war crimes for a
non-renewable period of seven years (art. 124 of the Rome Statute).

➔ War crimes/Crimes against humanity

 * Aggression (defined in art. 8 bis of the Rome Statute)

According to former 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.”

By its very nature the crime of aggression involves the direct responsibility of
the head of State. This explains why it has taken longer for States Parties to
reach consensus on the definition and prosecution of this particular
international crime has taken longer time. It also explains for the specific
limitations agreed between States on the ICC’s jurisdiction over the crime of
aggression.

The ICC’s theoretical jurisdiction over the crime of aggression, provided for in
the original 1998 Statute, has slowly materialised.

The definition of aggression was adopted by consensus by the ASP during the 2010
Rome Statute Review Conference held in Kampala, Uganda. The definition of the
crime of aggression, inspired by the UN General Assembly Resolution 3314 of 14
December 1974, was thus incorporated into the Rome Statute in article 8 bis .
Two thresholds’ requirements had to be met before the Court could exercise its
jurisdiction over the crime: first, at least 30 States Parties had to ratify or
accept the amendment, and second, two-thirds of the State Parties had to adopt a
decision to activate the jurisdiction of the Court (arts. 9(1), 15 bis (2), (3),
15 ter (2), (3) and 121(5) of the Rome Statute). The 30th State, Palestine,
adopted the amendment on 26 June 2016. On 14 December 2017, the ASP voted by
consensus to adopt the amendment, marking the first time in history that an
international court is permanently empowered to hold individuals accountable for
the crime of aggression.

However, States have adopted two additional conditions limiting the ICC’s
jurisdiction over the crime of aggression. These restrictive conditions differ
from those applicable to the other crimes under ICC’s jurisdiction. The first
condition relates to the possibility for any State Party to opt out of the ICC’s
jurisdiction over aggression. The second condition relates to the specific
requirement that both the State accused of aggression and the State victim are
parties to the Rome Statute and have not opted out of this particular
jurisdiction of the ICC. The ICC’s jurisdiction over the crime of aggression has
only been effective since 7 July 2018, when the Rome Statute entered into force
with its various related amendments establishing the special regime of the ICC’s
jurisdiction over this crime. This is reflected in the new articles 15 bis (4)
and (5) and article 121(5) of the Rome Statute.

These cumulative conditions limit the ICC’S effective jurisdiction over the
crime of aggression. The Elements of Crimes of the ICC have also been amended to
include those of the crime of aggression. One of the elements affirms that the
crime of aggression must be committed by a person or 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.” ( Elements of Crimes
, art. 8 bis , Elements 2, p. 30). The crime of aggression has a unique
jurisdictional regime in contrast to the other crimes under the jurisdiction of
the Court. Indeed, the Prosecutor must respect three conditions to open an
investigation either upon referral by a State party (art. 14(1) of the Rome
Statute) or on his own initiative ( propio motu ) (art. 15(1) of the Rome
Statute). The Prosecutor may only act: (1) after having ascertained whether the
UNSC has determined the existence of an act of aggression (pursuant to art. 39
of the UN Charter) (art. 15 bis (6) and (7) of the Rome Statute); (2) in the
case of an act of aggression committed between States Parties; and (3) after the
Pre-Trial Division of the Court has authorized the opening of the investigation
if, six months after the event, the UNSC has not recognized the act of
aggression (art. 15 bis (8) of the Rome Statute). ➔ Aggression

In addition to the definition of crimes provided in articles 6, 7, 8 and 8 bis
of the Rome Statute, two essential procedural documents have been adopted by the
ASP in July 2002, when the ICC entered into force: the Rules of Procedure and
Evidence and the Elements of Crimes . States intended to provide strict guidance
to the judges in their interpretation of the definition of crimes and in the
conduct of their investigation as well as regarding standard of evidence require
in front of the ICC. 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 definition of crimes listed 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. However, the proposed amendments must be
adopted by a two-thirds majority of the members of the ASP and they must be
consistent with the Rome Statute (arts. 9 and 51 of the Rome Statute).


3. PERSONAL JURISDICTION (JURISDICTION RATIONE PERSONAE) 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 18 at
the time of the alleged commission of the crime (art. 26 of the Rome Statute).

The Rome Statute expressly foresees at article 27 that immunity can never be
invoked regarding the crimes over which the ICC has jurisdiction.

Article 27(1) of the Rome 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 reaffirms the principles derived from the precedents set by the
Nuremberg trials conducted under the auspice of the International Military
Tribunal (IMT) (see art. 7 of the London Charter (establishing the IMT) and IMT,
Judgment of 1 October 1946 in The Trial of German Major War Criminals , Germany,
Part 22 at p. 56), the International Military Tribunal of Tokyo (see art. 6 of
the IMT Tokyo Charter), the Eichmann case held in Israel in 1961 and the
International Court of Justice (ICJ) (see the Democratic Republic of the Congo
v. Belgium , Case concerning the arrest warrant of 11 April 2000 , Judgment, 14
February 2002, para. 61) and the two ad hoc International Criminal Tribunals for
the Former Yugoslavia (see art. 7(2) of its Statute) and Rwanda (see art. 6(2)
of its Statute). It gives permanent and binding legal status to the
impossibility for officials to invoke immunity for their individual criminal
responsibility regarding crimes against humanity, aggression and/or war crimes
before an international court (see for example, the Geneva Conventions, the
Convention against Genocide and the Convention against Torture).

➔ Immunity


4. TEMPORAL JURISDICTION (JURISDICTION RATIONE TEMPORIS) RATIONE TEMPORIS )

The ICC has jurisdiction only over crimes committed after the entry into force
of the Rome Statute for the State concerned (arts. 11 and 24(1) of the Rome
Statute). This is derived from the well-established legal principle of
non-retroactivity of criminal laws which is a derivative of the nullum crimen
sine lege doctrine (no crime without law) and according to which a law may not
be applied to acts that took place before the law was enacted.

➔ Non-retroactivity </content/article/3/non-retroactivity/>__


5. PENALTIES

The ICC may impose penalties of imprisonment for up to 30 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 convicted persons
(art. 103 of the Rome Statute). The ICC supervises the implementation of
sentences, but the conditions of imprisonment are governed by the law of the
State responsible for its implementation but must, in any case, be in accordance
with international standards governing the treatment of prisoners (art. 106 of
the Rome Statute). The right to decide any application for appeal and revision
is however reserved to the ICC (art. 105 of the Rome Statute).


IV. RELATIONSHIP BETWEEN STATES AND THE ICC


1. 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, which means that the Court’s jurisdiction
cannot be exercised if a case is being investigated or prosecuted by a State
that has jurisdiction over it. This restriction may be overcome if the Court can
establish that the proceedings were undertaken for the purpose of shielding the
accused from criminal responsibility before the ICC, if there is undue delay in
the national proceedings, or if the national proceedings 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 conduct
the investigation or prosecution—for instance, due to total or substantial
collapse or unavailability of its national judicial system (art. 17(3) of the
Rome Statute).


2. NE BIS IN IDEM NE BIS IN IDEM

This is a well-established principle of law—in both national criminal law and
international law—that a person should not be tried twice for the same offence
(also known as a protection from double jeopardy). It is one of the most
important 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 o]therwise 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).


3. 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 of the Rome Statute). However, if a State fails to
cooperate, there is no provision to penalize it. Article 87(5)(b) and (7),
establishes the only recourse available to the ICC: it can notify the ASP (which
has no powers to penalize a State), or, if the UNSC referred the matter to the
ICC, it can notify the UNSC about a State’s refusal to cooperate. Unfortunately,
such cases of non-cooperation have become frequent and have hindered the
effective functioning of the Court as demonstrated by the Sudan, Libya, and
Kenya situations.

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 (arts. 89 and 93 of the
Rome Statute).

States are allowed to transmit information to the Prosecutor on a confidential
basis (art. 54(3I). 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 (see for example art. 57(3)(c) of
the Rome Statute) 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 (art. 72(5) of the Rome Statute). 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 (art. 72(6 of the
Rome Statute), which then has no recourse other than those from article 87(5)(b)
and (7) of the Rome Statute, mentioned earlier.


V. STATUS OF VICTIMS AND WITNESSES


1. REPARATIONS FOR VICTIMS

Contrary to the practice of 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 restorative justice to victims of the most
egregious crimes over which the ICC has jurisdiction and also in implementing
the UN General Assembly resolution 60/147 of 21 March 2006 on Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law.

The Court therefore distinguishes between the status of victims and that of
witnesses, in line with the prevailing approach of the civil law system.

Indeed, the ICC Rules of Procedure and Evidence defines victims at Rule 85(a) as
“natural persons who have suffered harm as a result of the commission of any
crime within the jurisdiction of the Court.” Therefore, eligibility for
reparations is limited to victims who suffered harm as a result of the crimes
for which the accused was convicted. Where reparations are awarded to benefit a
community, only members of the community who meet the relevant criteria will be
eligible. (see Prosecutor v. Thomas Lubanga Dyilo , Case No. ICC-01/04-01/06,
Judgment on the appeals against the “Decision establishing the principles and
procedures to be applied to reparations” of 7 August 2012 , Appeals Chamber, 3
March 2015, para. 8).

Apart from the ICC, the ECCC is the only other international (or hybrid)
criminal court in which victims can apply for reparations (see ECCC Internal
Rules , Rules 23(1)(b), 23 bis (1)) and 23 quinquies (1). However, at the ECCC,
only collective and moral reparations can be awarded, and monetary payments are
not permitted. (ECCC Internal Rules , Rule 23 quinquies (1)).

The Rome Statute allows victims to be represented before the ICC by attorneys
when their personal interests are affected (art. 68(3)). Article 75 allows the
Court to define the scope and extent of any damage and sets out the principles
relating to the various forms of reparation to be made to —or with respect
to—the victims, including restitution, compensation, and rehabilitation. In
order to facilitate the process, the Court has developed a form that victims can
use to apply for reparations.

In accordance with article 79 of the Rome Statute, a Trust Fund for Victims
(TFV) was set up in September 2002 for the benefit of victims and their
families. It is separate from the ICC and is governed by a five members board of
directors appointed by the ASP for a three-year term, —renewable once. The Court
can order that money and other property belonging to the offender be collected
through fines or forfeiture, to be transferred to the TFV. The TFV receives
donations and voluntary contributions from governments, international
organizations, individuals, and other funds allocated by the ASP. Reparations
may be awarded on an individual or collective basis and may be paid by the
offender or by the TFV. They may be paid directly to the victims or may be
transferred to them through international or national organizations approved by
the TFV (art. 79).

During its fourth Session in 2005, the ASP had to consider the draft regulations
of the TFV and decide whether to adopt them. Despite much discussion, States
remained divided on the issue of earmarking voluntary contributions for victims
from a particular country. The debate also revolved around the scope of the
TFV’s mandate and trigger mechanisms. The main issue was whether the TFV should
only be used to implement court-ordered reparations awarded to identified
victims by a convicted person, or whether the TFV could be used to provide
general assistance to victims affected by a situation of concern to the ICC even
before the conclusion of a particular trial. While some States (including
France, Belgium, and the DRC) were of the view that the TFV should also have an
assistance component which could intervene prior to the conviction of an accused
person and independently of the Court, others (including the United Kingdom and
Canada) firmly believed that the TFV should have only a reparative function and
should act strictly upon an order of the Court. A compromise was reached that
allows the TFV to have a general assistance mandate in countries and situations
under investigation by the Court. In such situations, the TFV may use voluntary
contributions from donors to provide physical rehabilitation, material support,
and psychological rehabilitation to victims and their families. However, the
board of the TFV shall inform the relevant Chamber of the Court in advance of
its decision to undertake certain activities. Such activities should not
prejudge any issue to be determined by the Court (including the individual
status of victims), violate the presumption of innocence, or prejudice or be
inconsistent with the rights of the accused to a fair and impartial trial.

As of October 2023, the TFV was involved in five cases that had reached the
reparations stage based on the ICC’s final judgment on those cases. The amount
of reparations determined by the ICC judgments in these five cases was as
follows: 10 million US dollars for collective service-based and symbolic
reparation in the Lubanga case, 1 million US dollars in the Katanga case for
individuals and collective reparations, €2.7 million in the Al Mahdi case for
individuals and collective reparations,31,300 million US dollars in the Ntaganda
case and €52,429 million in the Ongwen case. As per information available from
the June 2022 report, the TFV was running 20 assistance projects in the Central
African Republic, Ivory Coast, the DRC, Mali and Uganda, with the start of new
assistance programmes in Georgia, Kenya and Mali for which implementing partners
have been already selected. These assistance projects have reached an estimated
418,000 victims of crimes under the Court’s jurisdiction during the year 2021.
For the 2023-2025 period, TFV is considering providing continued support in the
Central African Republic, Ivory Coast, the Democratic Republic of the Congo,
Georgia, Kenya, Mali and Uganda.

Funds are allocated through various NGO programs supporting victims of violence
in ICC areas of concern. In 2023, the approved budget for the TFV was of €3,88
905 million. The top donor countries of the TFV between 2004 and 2020 were
Belgium, Finland, Ireland, the Netherlands, Sweden and the United Kingdom.

On 7 August 2012, the ICC Trial Chamber I rendered its first decision defining
the principles applicable to reparations for victims of war crimes and crimes
against humanity in the case of 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 TFV ( infra , Jurisprudence). After his conviction was
upheld in appeal, more than two years later, on 3 March 2015, the Appeals
Chamber issued a reparation order against Lubanga and directed the TFV to draft
an implementation plan that was later approved by the Trial Chamber.

➔ Reparation (Compensation)


2. 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
of the Rome Statute). Provisions include the possibility of conducting any part
of the proceedings in private ( in camera ) or by presenting evidence by
electronic means (art. 68(2) of the Rome Statute). A Victims and Witnesses Unit,
attached to the Registry of the ICC, has been established to implement these
protective measures.

In the majority of these cases requiring protection for victims and witnesses,
the Prosecutor focused investigations and indictment on specific crimes such as
the enlistment of child soldiers and sexual violence.


3. SPECIAL HUMANITARIAN STATUS FOR THE INTERNATIONAL COMMITTEE OF THE RED CROSS
(ICRC)

The specific nature and constraints of humanitarian action in situations of
armed conflict and violence has led the ICRC to request and obtain a status of
exemption from the obligation to cooperate with the Court. This protects the
ICRC from having to provide documents, information, and evidence and from
appearing as a witness in any case or situation under consideration by the
Court. These privileges are granted to the ICRC on a permanent basis by Rule
73(4) of the Rules of Procedure and Evidence , adopted by the ASP in 2002. This
rule also grants this privilege to persons and information bound by professional
secrecy: doctors, lawyers, journalists, and so on (art. 73(3) of the Rules of
Procedure and Evidence ).

Impartial humanitarian organisations operating in similar situations of armed
conflict or violence may claim similar privileges on an ad hoc basis when faced
with a request to provide information, testimony or any other form of
cooperation to the ICC. Their request should be based on the spirit of this
provision and on previous decisions of the ad hoc international tribunals on the
same issue. Such an international tribunal has already recognised the
incompatibility between the activities and security of impartial humanitarian
workers and their associated organisations operating in a situation of armed
conflict and that of a witness in a criminal case. Such a request should be
consistent with the policy and practice of the requesting humanitarian
organisation.


VI. SITUATIONS AND CASES BEFORE THE ICC

As of October 2023, the ICC is investigating several situations and cases in 17
countries: DRC, Uganda; Sudan, Central African Republic, Libya, Ivory Coast,
Republic of Kenya, Republic of Mali, Georgia, Burundi, Bangladesh/Myanmar,
Afghanistan, State of Palestine, Ukraine, Republic of Philippines, Venezuela.
The ICC is also involved in preliminary examination of other situations in three
countries: Nigeria, Venezuela and the DRC.

The Prosecutor had issued 42 arrest warrants as of October 2023, of which 16
were executed and seven were withdrawn following the death of the suspects or
because the evidence on which the arrest warrant was based could no longer be
considered to meet the evidentiary threshold required by article 58(1)(a) of the
Rome Statute.

To date, 31 cases involving 51 defendants have been brought before the Court, of
which six cases have resulted in convictions against 10 defendants. Four cases
involving six defendants were dismissed and three cases involving four
defendants, resulted in acquittals. This means that cases involving more than a
quarter of all defendants have not resulted in a conviction.

While this reality reveals obvious failures in the quality of investigations and
evidence, it also shows that respect for due process is not compromised by the
pressure to combat impunity for perpetrators of mass crimes.

These situations and cases (1), investigations (2), and preliminary examinations
(3) are summarised below.

**1- Situations and Cases before the ICC (as of October 2023)*

Democratic Republic of the Congo (DRC)*

The DRC ratified the Rome Statute on 11 April 2002 and referred itself to the
ICC on 19 April 2004. Following a preliminary examination, the OTP officially
opened an investigation on 23 June 2004.

The judges have issued six arrest warrants in this situation. One in February
2006 for Thomas Lubanga Dyilo, the President of the Union des Patriotes
Congolais (UPC)/Forces Patriotiques pour la Libération du Congo (UPC/FPLC), a
militia rebel group active in the east of DRC (Ituri); one in July 2007 for
Germain Katanga, the alleged former commander of the Force de Résistance
Patriotique en Ituri (“FRPI”); another one at the same time as for Katanga, in
July 2007 against the leader of the Front Nationaliste et Intégrationiste (FNI),
Mathieu Ngudjolo Chui; one in August 2006 (renewed in July 2012) for Bosco
Ntaganda, former deputy chief of Staff and commander of operations for the
Forces Patriotiques pour la Libération du Congo (FPLC); one in September 2010
for Callixte Mbarushimana, the alleged former Executive Secretary of the Forces
Démocratiques pour la Liberation du Rwanda- Forces Combattantes Abacunguzi
(FDLR-FCA, FDLR) and one in July 2012 for Sylvestre Mudacumura, alleged supreme
commander of the military wing of the Forces Démocratiques pour la Libération du
Rwanda (FLDR).

Six cases have been brought before the Court: Prosecutor v. Thomas Lubanga Dyilo
; Prosecutor v. Bosco Ntaganda ; Prosecutor v. Germain Katanga ; Prosecutor v.
Mathieu Ngudjolo Chui ; Prosecutor v. Callixte Mbarushimana ; and Prosecutor v.
Sylvestre Mudacumura .

On 25 January 2011, the French authorities handed Mr. Mbarushumana over to the
ICC and he was then transferred to the Court’s Detention Centre in The Hague.
The confirmation of charges hearing in the case of Prosecutor v. Callixte
Mbarushimana took place from 16 to 21 September 2011. On 16 December 2011, the
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.

The accused Bosco Ntaganda voluntarily surrendered to the ICC on 22 March 2013.
The trial in the case of Prosecutor v. Bosco Ntaganda commenced on 2 September
2015 and closing statements were made from 28 to 30 August 2018. On 8 July 2019,
the Trial Chamber VI found Mr. Ntaganda guilty beyond a reasonable doubt of 18
counts of war crimes and crimes against humanity for crimes against humanity
committed in Ituri, DRC, in 2002-2003. The Trial Chamber VI sentenced him on 7
November 2019 to 30 years of imprisonment. Both the Prosecutor and Mr. Ntaganda
have appealed the verdict and on 30 March 2021, the ICC Appeals Chamber
confirmed the conviction and the sentence. Mr. Ntaganda was thus transferred to
the Kingdom of Belgium to serve his sentence of imprisonment at the
Leuze-en-Hainaut prison on 14 December 2022. On 8 March 2021, Trial Chamber VI
delivered its Order on Reparations to victims to be made through the ICC Trust
Fund for Victims (TFV) and for which several issues were remanded by the
judgment of the Appeals Chamber on 12 September 2022. Further to this 2022
decision, the Trial Chamber was requested to issue a new reparations order. On
14 July 2023, the Trial Chamber II issued an addendum to the Reparations Order
of 8 March 2021 in which it assessed Mr. Ntaganda’s liability for reparations in
an amount of up to 31,300,000 US dollars and it ruled on all aspects of the
Draft Implementation Plan that do not require further submissions from the TFV
or the parties.

The trial in the case of 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 15 years and using them
actively in hostilities. On 10 July 2012, he was sentenced to 14 years of
imprisonment. The verdict and sentence were confirmed by the Appeals Chamber on
1 December 2014. On 19 December 2015, Mr Lubanga was transferred to a prison in
the DRC to serve his sentence of imprisonment and was released after completion
on 15 March 2020. Regarding reparations, on 7 August 2012, the Trial Chamber I
issued a decision on the principles and process to be applied for reparations to
victims in the case, decision which was amended by the Appeals Chamber on 3
March 2015. On 21 October 2016, the Trial Chamber II approved and ordered to
start the implementation of a plan submitted by the TFV for symbolic collective
reparations for the victims and on 6 April 2017 it also approved the
programmatic framework for collective service-based reparations. Finally, on 15
December 2017, Trial Chamber II set the amount of Thomas Lubanga Dyilo’s
liability for collective reparations at 10,000,000 US dollars.

The trial in the case of Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui
started on 24 November 2009 and was separated into two cases ( Prosecutor v.
Germain Katanga and Prosecutor v. Mathieu Ngudjolo Chui ) on 21 November 2012.
On 18 December 2012, Trial Chamber II acquitted Mathieu Ngudjolo Chui of the
charges of war crimes and crimes against humanity and ordered his immediate
release. The Appeals Chamber upheld this verdict on 27 February 2015 and Chui
was released from custody.

On 7 March 2014, Trial Chamber II, ruling in the majority, rendered its judgment
in the Katanga 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, he was sentenced to a total of 12 years’
imprisonment. On 25 June 2014, the Defence for Germain Katanga and the OTP
discontinued their appeals against the judgment which rendered it final.

On 24 March 2017, Trial Chamber II issued an Order awarding individual and
collective reparations to the victims. The Trial Chamber II awarded 297 victims
with a symbolic compensation of 250 US dollars per victim as well as collective
reparations in the form of support for housing, support for income generating
activities, education aid and psychological support (totally 1 million US
dollars from the TFV’s Board decision). On 8 March 2018, the Appeals Chamber
confirmed, for the most part, the Reparations Order in the case.

As of October 2023, Mr. Sylvestre Mudacumura remains at large and until he is
arrested, the case stands at the Pre-trial stage.

On 23 May 2023, the DRC has submitted a new referral of its case to the ICC and
requested that the Court initiate an investigation into alleged crimes under the
Statute committed in North Kivu province of DRC, from 1 January 2022 to date. On
15 June 2023, the situation was assigned to the Pre-Trial Chamber I. The OTP is
currently conducting a preliminary examination of the information received.

Northern Uganda

Uganda ratified the Rome Statute on 14 June 2002, and it referred itself to the
ICC on 16 December 2003. Following a preliminary examination, the OTP officially
opened an investigation on 28 July 2004. ICC judges issued warrants of arrests
for five top leaders of the Lord Resistance Army (LRA) on 8 July 2005. The
individuals named in the warrants— 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 formerly known as Prosecutor v. Joseph Kony, Vincent Otti, Raska
Lukwiya, Okot Odhiambo, and Dominic Ongwen was heard before the Pre-Trial
Chamber II. Following the confirmation of the deaths of Mr. Lukwiya and Mr.
Odhiambo, the proceedings against them have been terminated on 11 July 2007 and
10 September 2015 respectively. Two of the three remaining suspects of this case
are still at large; Joseph Kony and Vincent Otti. Until they are arrested and
transferred to the seat of the Court in The Hague, the case will remain in the
Pre-Trial stage considering that the ICC does not try individuals unless they
are present in the courtroom ( in absentia ).

The accused Dominic Ongwen (a former child soldier who would rise to become one
of the top commanders of the LRA armed group) was surrendered to ICC custody on
16 January 2015 and his trial before Trial Chamber IX began on 6 December 2016.
On 4 February 2021, he was found guilty of a total of 61 counts comprising
crimes against humanity and war crimes, committed in Northern Uganda between 1
July 2002 and 31 December 2005. He was sentenced on 6 May 2021 to 25 years of
imprisonment. Despite raising 90 grounds of defence in appeal, his guilt and
sentence were confirmed by the Appeals Chamber on 15 December 2022. The Appeal
Chamber acknowledged the complexity and dilemmas raised by the case notably in
ascertaining the level of criminal responsibility of a person who committed war
crimes while having been himself victim of war crimes when enrolled as child
soldier. It was the first time the ICC has to assess grounds for excluding or
mitigating criminal responsibility such as duress, and to interpret certain
sexual and gender-based crimes.

The phase dedicated to reparations for victims ended on 28 February 2024, two
decades after the beginning of the case, when the Trial Chamber IX issued its
order, setting the amount of reparations at €52,429 million for a total of
49,772 victims. This is the highest amount ever awarded by the TFV. In light of
Mr Ongwen’s indigence, the Trial Chamber encouraged the TFV to complete the
reparations awards to the extent possible and to undertake additional
fundraising efforts to the extent necessary in order to complement the totality
of the award. This is a major challenge for the TFV as it lacks the financial
resources to comply with the Court’s order. The judges of the Trial Chamber
noted that the TFV will have to undertake substantial fundraising efforts with
States, organisations, companies and individuals.

➔ Children , Rape

Darfur, Sudan

Sudan is not a State party to the ICC. On 31 March 2005, the UNSC referred the
situation in Darfur/Sudan to the ICC for investigation through its Resolution
1593. Following a preliminary examination, the OTP officially opened an
investigation in Darfur on 6 June 2005.

The judges have issued six arrest warrants in this situation. On 27 April 2007,
two arrest warrants were issued against Mr. Ali Muhammad Ali Abd-Al-Rahman, the
alleged leader of the Militia/Janjaweed (reissued on 11 June 2020) and Mr. Hamad
Harun, the former minister of State for the Interior. Then on 4 March 2009, a
first warrant for arrest was issued against Mr. Omar Hassan Ahmad Al Bashir and
a second one followed on 12 July 2010. Mr. Al Bashir had been the President of
the Republic of Sudan since 16 October 1993 until he was ousted on 11 April
2019. The Court also issued an arrest warrant on 7 May 2009 for the former
Chairman and General Coordinator of Military Operations of the United Resistance
Front, Mr. Bahar Idriss Abu Garda. Following this, on 27 August 2009 an arrest
warrant was issued for Mr. Abdallah Banda Abakaer Nourain, former
Commander-in-Chief of Justice and Equality Movement Collective-Leadership.
Finally, on 1 March 2012, another arrest warrant was issued for the former
Minister of National Defence, Mr. Abdel Raheem Muhammad Hussein, who at the time
of the warrant was serving as former Minister of the Interior and former Special
Representative of the President of Sudan in Darfur.

Six cases have been brought before the Court: Prosecutor v. Ahmad Muhammad
Harun; Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman; Prosecutor v. Omar Hassan
Ahmad Al Bashir; Prosecutor v. Bahar Idriss Abu Garda; Prosecutor v. Abdallah
Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus ; and Prosecutor v. Abdel
Raheem Muhammad Hussein .

Following the first investigation in the Darfur region for crimes committed in
2003–2004, two arrest warrants were issued back in 2007 for Ahmad Muhammad Harun
and Ali Muhammad Ali Abd-Al-Rahman for numerous counts of crimes against
humanity and war crimes allegedly committed between August 2003 and at least
April 2004 in Darfur, Sudan. While Mr. Harun remains at large and his arrest
warrant is outstanding, Mr. Abd-Al-Rahman surrender himself voluntarily while in
Central African Republic. He was transferred to the ICC’s custody on 9 June
2020. On 9 July 2021, in the case of Prosecutor v. Ali Muhammad Ali
Abd-Al-Rahman , all 31 charges were confirmed by the Pre-Trial Chamber II. The
trial phase started on 5 April 2022 and is currently ongoing before the Trial
Chamber I.

Following a second investigation, the Pre-Trial Chamber issued a warrant of
arrest against Omar Hassan Ahmad Al Bashir, President of Sudan at that time, for
three counts of genocide committed against the Fur, Masalit, and Zaghawa ethnic
groups, five counts of crimes against humanity and two counts of war crimes
allegedly committed between 2003 and 2008 in Darfur, Sudan. It was the first
time that a sitting head of State was wanted by an international court and also
the first genocide charge ever brought by the ICC. A second warrant for his
arrest was issued on 12 July 2010 but remains outstanding. His case illustrates
a problem that the ICC continually faces, as mentioned before, since carrying
out an arrest warrant depends on the cooperation of the country where the
fugitive is located, and of its police force. On 6 May 2019 the ICC ruled that
the State of Jordan failed to meet its international legal obligations to arrest
Al-Bashir during a 2017 visit there. The ruling confirmed that there is no Head
of State immunity when the Court requests that a State Party to the Rome Statute
arrests and surrenders the Head of State of another State Party. While the
arrest warrants have reduced the number of countries to which Mr. Al Bashir can
safely travel, he continues to travel to many countries, including ICC States
Parties, without being arrested. On 11 April 2019, the Sudanese military
announced that it ousted him from power and arrested him. After stating they
would transfer him to the ICC, the joint transitional government made up of the
top army officials and civilians, decided to judge him in Sudan for domestic
charges for money laundering, financing terrorism and the killing of
demonstrators during the anti-government protests prior to his arrest. He was
transferred to the Kober prison in Khartoum, on 17 April 2019 and is allegedly
serving a two-year sentence for his conviction on charges of corruption and
money laundering. Following questions over his release from prison after
fighting broke out in the country in April 2023, the Sudanese army declared that
Mr. Al Bashir was being held in a military hospital under the guard and
responsibility of the judicial police. However, despite these charges put
forward in Sudan, the ICC arrest warrant remains in force.

Mr. Bahr Idriss Abu Garda appeared voluntarily before the Chamber on 18 May
2009. After the hearing of confirmation of charges in February 2010, the
Pre-Trial Chamber I declined to confirm the charges and a further request to
appeal the decision was rejected. Mr. Garda has since been released from custody
and his case is considered closed unless new evidence is presented.

In the case of Prosecutor v. Abdallah Banda Abakaer Nourain , on 27 August 2009,
the Court issued a summons to appear to Abdallah Banda Abakaer Nourain and Saleh
Mohammed Jerbo Jamis for three counts of war crimes committed in an attack
against the African Union Peacekeeping Mission at the Haskanita Military Group
Site in Darfur (Sudan). Mr. Nourain appeared voluntarily before the Pre-Trial
Chamber I on 17 June 2010. The Pre-Trial Chamber I unanimously decided on 7
March 2011 to confirm the charges of war crimes brought against Mr. Banda and
Mr. Jerbo and committed them to trial. However, after receiving evidence that
pointed to Jerbo’s death, the Court terminated proceedings against him on 4
October 2013. While Mr. Banda appeared voluntarily during the Pre-Trial stage of
his case, the Trial Chamber Judges had to issue an arrest warrant on 11
September 2014 to ensure his presence at trial. The accused is still at large,
and the trial will commence pending the accused’s arrest or voluntary
appearance.

Since the issuance of a warrant of arrest in 2012, the suspect Mr. Abdel Raheem
Muhammad Hussein is at large, and his case remains at the Pre-Trial stage
pending his arrest or voluntary appearance before the ICC.

Central African Republic (CAR) I

The CAR is a State Party to the ICC and ratified the Rome Statute on 3 October
2001. The first situation referred on 22 December 2004 by the CAR government to
the Court alleged was for war crimes and crimes against humanity committed in
the context of a conflict in CAR between 2002 and 2003. The OTP opened a
preliminary investigation following this referral and on 22 May 2007, it opened
a formal investigation.

An arrest warrant for Mr. Jean Pierre Bemba Gombo, the former President and
Commander-in-chief of the Mouvement de libération du Congo, was issued on 23 May
2008. Mr. Bemba was arrested in Brussels by Belgian authorities 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. Then on 20 November 2013, arrest warrants under seal have been issued
regarding various offences against the administration of justice related to
false testimonies in the Bemba case for which he was arrested in 2008. The
warrants are for Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo, former
defence counsel of Jean-Pierre Bemba Gombo, Fidèle Babala Wandu, Member of
Parliament in the DRC and Narcisse Arido, a national of CAR. They were all
arrested that same day and transferred to the ICC, except for Mr. Arido who was
transferred on 18 March 2014. Mr. Jean Pierre Bemba Gombo is also concerned by
this arrest warrant, but he was already in custody of the ICC at the time.

Two cases have therefore been brought before the Court: Prosecutor v.
Jean-Pierre Bemba Gombo and Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo
Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido .

On 12 January 2009, a three-day confirmation of charges hearing was held in the
Prosecutor v. Jean-Pierre Bemba Gombo case. As a consequence, ICC Pre-Trial
Chamber II decided on 15 June 2009 that Bemba would face trial. The Chamber
confirmed two counts of crimes against humanity (rape and murder) and three
counts of war crimes (rape, murder, and pillaging) against Bemba, sending his
case to trial. The trial, Prosecutor v. Jean-Pierre Bemba Gombo , 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 Bemba’s appeal of the
decision to move forward with a trial, which Bemba had brought on admissibility
grounds. The 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 the Trial Chamber III denied on 26
September 2011. On 21 March 2016, the Trial Chamber III declared, unanimously,
Jean-Pierre Bemba Gombo guilty beyond any reasonable doubt of all counts with
which he was charged and, on 21 June 2016, sentenced him to 18 years of
imprisonment. Bemba appealed the decision, and, on 8 June 2018, the Appeals
Chamber acquitted him of all charges. In support of this decision, the Appeal
Chamber listed a number of procedural and factual errors casting doubt on the
respect of standard of proof by the trial chamber. Furthermore, the Appeal
Chamber considered that such factual and legal errors impact the Trial Chamber
findings that Bemba failed to take all necessary and reasonable measure to
prevent or punish crimes committed by his subordinate MLC soldiers in CAR. The
Appeals Chamber judge that one of the elements of command responsibility under
article 28(a) of the Statute was not properly established and therefore Mr.
Bemba cannot be held criminally liable under that provision for the crimes
committed by MLC troops during the 2002-2003 CAR operation. (paras. 45, 49, 191
and 194).

➔ Duty of Commanders

In March 2019, Mr Bemba’s defence filed an application for compensation and
damages under article 85 of the Rome Statute. On 18 May 2020, the Pre-Trial
Chamber II, which has been designated by the Presidency to consider the request,
decided that he was not entitled to compensation since he failed to establish
that he suffered a grave and manifest miscarriage of justice. The Pre-Trial
Chamber stated : “the drafting history and international human rights law make
it clear, however, that the drafters of the Statute never meant to go so far as
to vest an acquitted person with a right to benefit from compensation by mere
virtue of the fact that the acquittal was preceded by time spent in custody, or
of the mere duration of the proceedings, however lengthy either might have been;
the duration of the proceedings per se, as long as there is no grave and
manifest miscarriage of justice, is not a factor triggering a right to
compensation” ( Prosecutor v. Jean-Pierre Bemba Gombo , Case No.
ICC-01/05-01/08, Decision on Mr Bemba’s claim for compensation and damages , 18
May 2020, para. 44) and “that it was never meant to provide a remedy for damages
of an economic and financial nature which are not the result of a grave and
manifest miscarriage of justice” (see at para. 61). The case is now closed.

The second case in this situation, Prosecutor v. Jean-Pierre Bemba Gombo, Aimé
Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse
Arido , was opened on 20 November 2013 for alleged offenses against the
administration of justice, specifically corruptly influencing defence witnesses,
committed in connection with the first Bemba case and per article 70 of the Rome
Statute. The Pre-Trial Chamber II confirmed the charges and committed the case
to trial on 11 November 2014. The Trial Chamber VII began the trial on 29
September 2015 and, on 19 October 2016, found all five defendants guilty. The
Trial Chamber VII sentenced defendants on 22 March 2017 and all five appealed
the decision. On 8 March 2018, the Appeals Chamber confirmed the convictions on
most charges. However, the Appeals Chamber acquitted Bemba, Kilolo, and Mangenda
of the charge of violating article 70(1)(b) of the Rome Statute (which prohibits
the presentation of evidence to the Court that a party knows is false or
forged), holding that the provision applies only to documentary evidence, not to
the calling of witnesses. All five defendants were resentenced on 17 September
2018. The convictions as well as acquittals and sentence are final. The
imprisonment sentences, that were from six months up to 30 months, were served.

CAR II

A second situation was referred by the CAR government to the Court on 30 May
2014 to investigate alleged war crimes and crimes against humanity committed in
the context of renewed violence starting on 1 August 2012 to present and which
involved CAR government forces under President Francois Bozize, Seleka rebel
armed group, and anti-balaka rebel armed group.

The OTP announced on 24 September 2014, after a preliminary investigation, that
another investigation in CAR would be opened for crimes allegedly committed
since 2012. On 24 September 2014, the OTP opened a formal investigation. On 11
November 2018 an arrest warrant was issued against Mr. Alfred Yekatom, the
former caporal-chef in the Forces Armées Centrafricaines, and a member of CAR
parliament and he was surrender to the ICC six days later, on 17 November 2018.
A second arrest warrant was issued against Mr. Patrice-Edouard Ngaïssona, the
alleged most senior leader and the “National General Coordinator” of the
Anti-Balaka, on 7 December 2018. Mr. Ngaïssona was arrested by French
authorities on 12 December 2018 and transferred to the ICC on 23 January 2019. A
third arrest warrant was issued on 10 December 2018 for Mr. Maxime Jeoffroy Eli
Mokom Gawaka, an alleged former National Coordinator of Operations of the
Anti-Balaka. He surrendered to the ICC on 14 March 2022. The latest arrest
warrant for this situation was issued on 7 January 2019 for a Seleka commander,
Mr. Mahamat Said Abdel Kani who surrendered to the ICC on 24 January 2021.

Within the situation of CAR II, there are three cases: Prosecutor v. Alfred
Yekatom and Patrice-Edouard Ngaïssona; Prosecutor v. Mahamat Said Abdel Kani and
Prosecutor v. Maxime Jeoffroy Eli Mokom Gawaka.

On 20 February 2019, the Pre-Trial Chamber II decided to join the case of
Yekatom and Ngaïssona. The confirmation of charges hearing in the Prosecutor v.
Alfred Yekatom and Patrice-Edouard Ngaïssona case was then held from 19 to 25
September and 11 October 2019. Both accused were then committed to trial on 11
December 2019 with the charges of war crimes and crimes against humanity
partially confirmed by the Pre-Trial Chamber II. The trial opened on 16 February
2021 before the Trial Chamber V and the evidence of the Prosecutor was
presented. The testimonies of the Prosecution witnesses are currently ongoing.

The confirmation of charges hearing took place from 12 to 14 October 2021 in the
case of Prosecutor v. Mahamat Said Abdel Kani . On 9 December 2021, the
Pre-Trial Chamber II partially confirmed the charges of crimes against humanity
and war crimes and referred Mr. Said to trial. The trial which started on 26
September 2022 is ongoing.

In the case of Prosecutor v. Maxime Jeoffroy Eli Mokom Gawaka , charges of war
crimes and crime against humanity, committed between 5 December 2013 and April
2014, were brought up by the Prosecutor in sealed warrant of arrest issued on 10
December 2018. The accused made his first appearance before the Pre-Trial
Chamber II on 22 March 2022. The confirmation hearing was held from 22-24 August
2023 and the decision of the Pre-Trial Chamber on the confirmation of charges
was expected for December 2023. However, on 16 October 2023, the Prosecutor
notified the Pre-Trial Chamber II of its decision to withdraw all of the charges
against the accused pursuant to article 61(4) of the Rome Statute and to free
the accused. The Prosecutor stated that after having considered the totality of
the evidence in the Mokom case and considering that several critical witnesses
are unavailable to testify, he has concluded that there are no longer any
reasonable prospects of conviction at trial even if the charges were confirmed.
The case is therefore considered closed unless new evidence is presented.

It should be stressed that in 2015, CAR established (through its Organic Law
15/003 ) a hybrid tribunal, the Special Criminal Court (SCC) which is integrated
into its national justice system but applying a mix of CAR and international
law. The SCC is “authorized to investigate, prosecute and try serious violations
of human rights and serious violations of international humanitarian law […] in
particular the crime of genocide, crimes against humanity, and war crimes” from
1 January 2003 onward (art. 3, Organic Law 15/003 [our translation]). It began
active work in October 2018 following the adoption of its Rules of Procedure and
Evidence . It is based in Bangui, is made up of national and international
magistrates who were appointed by Presidential Decree on 19 January 2021.

The SCC operates in partnership with the United Nations peacekeeping mission in
CAR (the MINUSCA) following the signature of a memorandum of understanding with
MINUSCA in August 2014. The SCC is working in parallel to the ICC per the
principle of complementarity. It entered into a judicial cooperation protocol
with the ICC in October 2021 and per which, for example, the ICC and SCC can
share relevant information to reinforce their respective efforts.

The SCC first trial (“Paoua case”) begun on 19 April 2022 in a case involving
war crimes and crimes against humanity committed in May 2019 in Koundjili and
Lemouna villages, in the northwestern part of the country in the province of
Paoua, allegedly by members of the “3R” rebel group (“ Retour, reclamation,
rehabilitation ”). The judgement in this case was rendered on 31 October 2022 in
which all three accused (Mr. Issa Sallet Adoum, Ousman Yaouba and Mahamat
Tahir), members of the 3R rebel group were convicted of crimes against humanity
and war crimes for severe violence committed in a massacre of at least 46
civilians in May 2019. One of the accused, Mr. Adoum, received a life sentence
and the two others were sentenced to 20 years of imprisonment. All accused have
appealed the judgement and on 20 July 2023 the Appeal judgment was delivered.
The Appeal judgement acquitted Mr. Adoum, of the crime against humanity of other
inhumane acts and of the war crime of committing outrages upon personal dignity.
The Appeals Chamber reduced accordingly his sentence of life imprisonment to 30
years of imprisonment. The Appeals Chamber confirmed the verdict of the Trial
Chamber for all other aspects. On 16 June 2023, the SCC had also delivered its
first decision on reparations for the victims of this first case.

*Libya

 * 

Libya is not a State Party to the Rome Statute. On 26 February 2011, the UNSC
decided unanimously to refer the situation in Libya, shortly after the beginning
of the Libyan civil war on 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 the Pre-Trial
Chamber I.

On 27 June 2011, the Pre-Trial Chamber I issued three warrants of arrest
respectively for Mr. Muammar Mohammed Abu Minyar Gaddafi, acting as the Libyan
Head of State at the time and former Commander of the Armed Forces of Libya; Mr.
Saif Al-Islam Gaddafi, Honorary chairman of the Gaddafi International Charity
and Development Foundation and acting as the Libyan de facto Prime Minister, at
the time and Mr. Abdullah Al-Senussi, Former colonel in the Libyan Armed Forces
and head of the Military Intelligence for crimes against humanity (murder and
persecution) allegedly committed across Libya from 15 February 2011 onwards,
through the State apparatus and Security Forces. On 22 November 2011, the
Pre-Trial Chamber I formally terminated the case against Muammar Gaddafi due to
his death. A fourth arrest warrant was issued under seal on 18 April 2013 and
unsealed on 24 April 2017 for Mr. Al-Tuhamy Mohamed Khaled, alleged former
Lieutenant General of the Libyan army and former head of the Libyan Internal
Security Agency (ISA). Mr. Khaled was charged with crimes against humanity
allegedly committed in Libya from 15 February 2011 until 24 August 2011 and war
crimes allegedly committed in Libya from at least early March 2011 to 24 August
2011. Proceedings were terminated on 7 September 2020 by the Pre-trial Chamber I
after the notification of the accused death. To this day, the final arrest
warrant issued was on 15 August 2017 and again on 4 July 2018 for Mr. Mahmoud
Mustafa Busayf Al-Werfalli, Commander in the Al-Saiqa Brigade regarding murder
as a war crime which took place from on or before 3 June 2016 until on or about
17 July 2017 in Benghazi or surrounding areas and on 24 January 2018, in front
of the Bi’at al-Radwan Mosque in Benghazi, Libya. However, following
notification of his death, the ICC Pre-trial Chamber I terminated the
proceedings in this case on 15 June 2022.

Three cases have therefore been brought before the Court: Prosecutor v. Mahmoud
Mustafa Busayf Al-Werfalli, Prosecutor v. Al-Tuhamy Mohamed Khaled and
Prosecutor v. Saif Al-Islam Gaddafi . Following the deaths of two accused
person, only the Gaddafi case remains active before the ICC.

In the case of Prosecutor v. Saif Al-Islam Gaddafi , involving three accused
persons, cases were brought against both Mr. Al-Senussi and Mr. Saif Al-Islam
Gaddafi. Libya filed a challenge to the admissibility of Al-Senussi’s case on 2
April 2013, arguing that Al-Senussi was subject to domestic proceedings by
competent domestic authorities. The Pre-Trial Chamber I declared on 11 October
2013 that the case was inadmissible before the ICC. The defence appealed this
decision, highlighting, among other legal arguments, that in Mr. Al-Senussi’s
case, any domestic trial in Libya would inevitably result in the imposition of
the death penalty. ( Defence Response to “Appeal on behalf of Mr. Abdullah
Al-Senussi against the ‘Decision on Libya’s postponement of the execution of the
request for arrest and surrender of Abdullah Al- Senussi pursuant to article 95
of the Rome Statute and related Defence request to refer Libya to the UN
Security Council’ ”, 20 September 2013, para. 54) The ICC dismissed the appeal
and the case against Mr. Al-Senussi was terminated on 24 July 2014. The Libyan
authorities sentenced Al-Senussi to death in 2015. He remains in Libyan custody.

Libya also filed a challenge against the admissibility of Mr. Saif Al-Islam
Gaddafi’s case. Unlike the Al-Senussi case, the Pre-Trial Chamber I rejected
Libya’s challenge in the Saif Al-Islam Gaddafi case on 31 May 2013, a decision
confirmed by the Appeals Chamber on 21 May 2014. The Libyan government failed to
comply with the Court order to surrender the suspect to the ICC and issued an
official finding of non-compliance by the Government of Libya on 10 December
2014 and referred the matter to the UNSC. In July 2015, a Tripoli court
sentenced Mr. Saif Al-Islam Gaddafi to death in absentia , drawing widespread
condemnation, with Human Rights Watch saying the trial was riddled with legal
flaws and carried out amid widespread lawlessness undermining the credibility of
the judiciary. In May 2016, following a UNSC meeting on the situation in Libya,
the ICC Prosecutor noted that Mr. Saif Al-Islam Gaddafi had been continuously
held by the militia in the Libyan city of Zintan since 2011 and that the Libyan
authorities therefore declared that Gaddafi was “unavailable” to the State. In
July 2016, Mr. Saif Al-Islam Gaddafi was released by the militia and was granted
an amnesty by the Libyan government. Mr. Gaddafi appealed his case before the
ICC on the principle of Ne Bis in Idem but the ICC rejected his appeal on 5
April 2019.

The case remains in the pre-trial stage pending his transfer to seat of the
Court in The Hague.

Ivory Coast

Ivory Coast, which has been a party to the Rome Statute since 15 February 2013,
first accepted the jurisdiction of the ICC on 18 April 2003 and reaffirmed this
commitment more recently on 3 May 2011. On 3 October 2011, the Pre-Trial Chamber
III granted the Prosecutor’s request for authorization to open investigations
proprio motu into the situation in Ivory Coast 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. The investigation was later expanded to cover evidence of crimes
since19 September 2002.

A first warrant of arrest under seal was issued on 23 November 2011 by the
Pre-Trial Chamber III for Mr. Laurent Koudou Gbagbo, the former president of
Ivory Coast at the time, 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 centre at The Hague by the Ivorian
authorities. On 21 December 2011 a second arrest warrant under seal was issued
for Mr. Charles Blé Goudé, an Ivorian politician. The arrest warrant was
unsealed on 30 September 2013, and he was taken into ICC custody on 22 March
2014. Then a third arrest warrant was issued, again under seal, on 29 February
2012 by the Pre-Trial Chamber III for Simone Ehivet Gbagbo, former first lady of
Ivory Coast and wife of Laurent Koudou Gbagbo, for four counts of crimes against
humanity. The arrest warrant was unsealed on 22 November 2012. On 11 December
2014, the Pre-Trial Chamber I rejected the Republic of Ivory Coast’s challenge
to the admissibility of the case, concluding that Ivory Coast’s domestic
authorities were not taking tangible, concrete and progressive steps aimed at
ascertaining whether Simone Gbagbo is criminally responsible for the same
conduct that is alleged in the case before the Court. The Pre-Trial Chamber I
reminded Ivory Coast of its obligation to surrender Simone Gbagbo to the ICC
without delay. This decision was appealed and on 27 May 2015, the Appeals
Chamber confirmed the admissibility of this case before the ICC. Mrs. Gbagbo was
never surrendered to the ICC.

Three cases have been brought before the Court in this situation: Prosecutor v.
Laurent Gbagbo; Prosecutor v. Charles Blé Goudé and Prosecutor v. Simone Gbagbo
.

In the case of Prosecutor v. Laurent Gbagbo , the Pre-Trial Chamber III held an
initial appearance hearing on 5 December 2011 and set the date for the
confirmation of charges against Mr. Gbagbo hearing to start on 18 June 2012.
This was postponed a first time to 13 August 2012, and again on 2 August 2012,
until the issue of Mr. Gbagbo’s fitness to take part in it be resolved. In the
meantime, the Court has decided on 23 February 2012 to expand the scope of
investigation in Ivory Coast to include crimes allegedly committed between 19
September 2002 and 28 November 2010.

In the cases of Prosecutor v. Laurent Gbagbo and Prosecutor v. Charles Blé Goudé
, charges for four counts of crimes against humanity were confirmed against each
Mr. Gbagbo on 12 June 2014 and Mr. Blé Goudé on 11 December 2014. On 11 March
2015, the Trial Chamber I joined the two cases in order to ensure the efficacy
and expeditiousness of the proceedings and the case against Mr. Gbagbo and Blé
Goudé was thus named Prosecutor v. Laurent Gbagbo and Charles Blé Goudé . Their
trial opened on 28 January 2016. On 15 January 2019, the Trial Chamber I, by
majority, acquitted both Mr. Gbagbo and Blé Goudé on all counts.

Concerning the case of Prosecutor v. Simone Gbagbo , on 19 July 2021, the
Pre-Trial Chamber II vacated the arrest warrant against Mrs. Gbagbo. It
concluded that “both the ‘case theory’ and the ‘supporting material’
underpinning the allegations against her have been largely tested in the trial
against Laurent Gbagbo and Charles Blé Goudé, including in particular the
contextual elements of the crimes against humanity pleaded [and] that
developments at the trial and appeal stage of the case of Mr Gbagbo make it
apparent that the evidence upon which the Warrant of Arrest for Simone Gbagbo
was grounded can no longer be considered as satisfying the evidentiary threshold
required in Article 58(1)(a) of the Statute.” ( Prosecutor v. Simone Gbagbo ,
Case No. ICC-02/11-01/12, Decision on the Prosecutor’s request to vacate the
effect of the Warrant of Arrest issued against Ms Simone Gbagbo , 19 July 2021,
paras. 13-14).

All of these cases are now final and closed.

Republic of Kenya

Kenya is a party to the Rome Statute which it ratified on 15 March 2005. On 31
March 2010, the Pre-Trial Chamber II granted the Prosecutor’s request to open an
investigation p roprio motu into the situation in Kenya.

On 8 March 2011, six summonses to appear regarding charges of crimes against
humanity committed in the context of the 2007-2008 post-election violence in
Kenya were issued for Mr. Henry Kiprono Kosgey, former Kenyan Minister of
Industrialization; Mr. Joshua Arap Sang, former radio broadcaster; Mr. William
Samoei Ruto, Kenyan Minister of Higher Education and former parliamentary member
for Eldoret North; Mr. Francis Kirimi Muthaura, Head of the Public Service and
Secretary to the Cabinet and Chairman of the National Security Advisory
Committee; Mr. Mohamed Hussein Ali, former Commissioner of the Kenya Police and
Mr. Uhuru Muigai Kenyatta, Deputy Prime Minister and Minister of Finance in
Kenya.

All voluntarily appeared before the Pre-Trial Chamber II on 7 and 8 April 2011.
The cases against the six suspects were consolidated into two cases.

On 2 August 2013, the ICC issued an arrest warrant under seal for Mr. Walter
Osapiri Barasa, a journalist and previously an intermediary between the ICC OTP
and Kenyan witnesses in the investigation of the Kenya situation. He was charged
of three counts of offences against the administration of justice consisting of
corruptly influencing or attempting to corruptly influence three ICC witnesses
regarding cases from the situation in Kenya. The arrest warrant was unsealed on
2 October 2013 and the suspect is still at large. The case remains in the
Pre-Trial stage, pending the suspect’s arrest or voluntary appearance before the
Court.

The latest arrest warrants were issued under seal on 10 March 2015 for Mr. Paul
Gicheru and Mr. Philip Kipkoech Bett for offences against the administration of
justice consisting of corruptly influencing witnesses regarding cases from the
situation in Kenya. The arrest warrants were unsealed on 10 September 2015. On 2
November 2020, Mr. Gicheru surrendered to the authorities of The Netherlands
while Mr. Bett remains at large.

Five cases were brought before the ICC in the situation of Kenya: P rosecutor v.
William Samoei Ruto and Joshua Arap Sang; Prosecutor v. Uhuru Muigai Kenyatta;
Prosecutor v. Walter Osapiri Barasa; Prosecutor v. Paul Gicheru and Prosecutor
v. Philip Kipkoech Bett .

In the case of P rosecutor v. William Samoei Ruto and Joshua Arap Sang , which
involved initially three suspects, the confirmation of charges was decided on 23
January 2012 with the Pre-Trial Chamber II declining to confirm the charges
against Mr. Kosgey after having found that there were no reasonable grounds to
believe that he was an indirect co-perpetrator of the alleged crimes. The trial
was scheduled to open on 28 May 2013 for the accused William Samoei Ruto and
Joshua Arap Sang. However, on 5 April 2016, the Trial Chamber V decided, by
majority, to terminate the case based on an assessment of the Prosecution’s
evidence that there is ‘no case to answer’, without prejudice to re-prosecution
in future.

The charges in the case of Prosecutor v. Uhuru Muigai Kenyatta which originally
involved three accused persons were heard on 23 January 2012. Charges were
confirmed against Mr. Muthaura and Mr. Kenyatta, committing the case to trial.
The Pre-Trial judges declined to similarly confirm charges against Mr. Ali. On
11 March 2013, the Prosecutor withdrew charges against Mr. Muthaura. Owing in
large part to the non-cooperation of the Kenyan government in Mr. Kenyatta’s
case, the charges against Mr. Kenyatta were also withdrawn on 5 December 2014
due to insufficient evidence but without prejudice of the possibility of
bringing a new case should additional evidence become available. On 13 March
2015, Trial Chamber V(B) terminated the proceedings in this case, noting however
that the Court retains jurisdiction over any interference with a witness or with
the collection of evidence and that the protective measures ordered for
witnesses and victims would continue.

On 11 December 2020, Pre-Trial Chamber A severed the cases against Paul Gicheru
and Philip Kipkoech Bett.

In the case of Prosecutor v. Paul Gicheru , on 15 July 2021, the Pre-Trial
Chamber A confirmed the charges and committed him to trial. The Trial started on
15 February 2022 before the Trial Chamber III and closing statements took place
on 27 June 2022. Proceedings were then terminated on 14 October 2022 following
the death of the accused.

The cases of Prosecutor v. Walter Osapiri Barasa and Prosecutor v. Philip
Kipkoech Bett are still in the Pre-Trial stage since both accused are not in ICC
custody. They will remain at this stage until they are arrested and transferred
to the seat of the Court in The Hague.

Republic of Mali

Mali is a State Party to the ICC and ratified the Rome Statute on 16 August
2000. On 16 January 2013, the OTP opened an investigation into alleged crimes
committed on the territory of Mali since January 2012. It followed a preliminary
investigation opened on 18 July 2012 after the self-referral the Court received
on 13 July 2013 from the government of Mali on alleged atrocity crimes committed
during an armed conflict between Malian government forces, the Mouvement
national de libération de l’Azawad (MNLA), and Muslim armed groups such as the
Al-Qaeda in the Islamic Maghreb (AQIM) and the Ansar Dine. The armed conflict
occurred from 17 January 2012 to the present.

Two arrest warrants were issued by the Court. On 18 September 2015, the Court
issued an arrest warrant for Mr. Ahmad Al Faqi Al Mahdi for war crimes of
intentionally directing attacks against religious and historic and he was
transferred to the ICC on 26 September 2015. The Court issued a second arrest
warrant on 27 March 2018 for Mr. Al-Hassan Ag Abdul Aziz Ag Mohamed Ag Mahmoud,
who is charged with several counts of crimes against humanity and war crimes.
Malian authorities surrendered Al-Hassan to the ICC on 31 March 2018.

In the Mali situation, two cases were opened before the ICC: Prosecutor v. Al
Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud and Prosecutor v. Ahmad Al Faqi Al
Mahdi.

On 24 March 2016, charges for co-perpetrating war crimes of intentionally
directing attacks against religious and historic buildings in Timbuktu, Mali in
June and July 2012 were confirmed in Prosecutor v. Ahmad Al Faqi Al Mahd i case
which was then committed to trial. The trial took place from 22 to 24 August
2016, during which Al Mahdi made an admission of guilt. On 27 September 2016,
the Trial Chamber VIII found Mr. Al Mahdi guilty of his charges and sentenced
him to nine years imprisonment. This is the first time the ICC has ruled on war
crimes committed against religious, artistic, and historic protected objects and
buildings. The Court issued a reparations order on 17 August 2017 for the amount
of €2.7 million for individual and collective reparations for the community of
Timbuktu. The order was largely confirmed by the Appeals Chamber on 8 March
2018. On 25 November 2021, Mr. Al Mahdi sentenced was reduced to two years by
the Appeals Chamber and he completed his imprisonment term on 18 September 2022.

In the case of Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud ,
charges were confirmed on 30 September 2019 and the Trial opened on 14 July
2020. The charges of war crimes and crimes against humanity in this case are
numerous. More than any other case before the ICC, it puts rebel leadership
under a judicial scrutiny. Closing statements took place on 23 to 25 May 2023
and the judges have started their deliberations. The judgment will be pronounced
in due course.

**2- Investigations before the ICC (as of October 2023)*

Georgia*

Georgia ratified the Rome Statute on 5 September 2003. On 27 January 2016, the
Pre-Trial Chamber I authorized the Prosecutor to proceed with a proprio motu
investigation for crimes against humanity and war crimes, allegedly committed in
and around South Ossetia, Georgia, between 1 July and 10 October 2008. The
investigation phase concluded on 16 December 2022 and three arrest warrants were
issued on 30 June 2022 against Mr. Mikhail Mayramovich Mindzaev, Mr. Gamlet
Guchmazov and Mr. David Georgiyevich Sanakoev for charges of unlawful
confinement, torture and ill-treatment, hostage taking and subsequent unlawful
transfer of ethnic Georgian civilians in the context of an occupation by the
Russian Federation.

Burundi

Burundi had ratified the Rome Statute on 21 September 2004 but later withdrew
from it. The ICC may therefore exercise its jurisdiction over crimes listed in
the Rome Statute committed on the territory of Burundi or by its nationals from
1 December 2004 to 26 October 2017. On 25 April 2016, after receiving
communications of alleged atrocity crimes committed in Burundi, the ICC OTP
opened a preliminary examination. The Pre-Trial Chamber III then authorized the
Prosecutor to open an investigation proprio motu on 25 October 2017. The ongoing
investigation concerns the situation in Burundi and outside Burundi for crimes
committed by its national from 1 December 2004 until 26 October 2017, the date
on which Burundi withdrew from the Rome Statute. The Prosecutor is investigating
alleged crimes against humanity, including murder, rape, torture, enforced
disappearances, and persecution. It must be recalled that a State is not
discharged, by reason of its withdrawal, from its obligations under the Rome
Statute including the duty to cooperate with investigations and proceedings
which were commenced prior to the date on which the withdrawal became effective
under article 127(2) of the Rome Statute. The investigation is ongoing.

Bangladesh/Myanmar

Bangladesh ratified the Rome Statute on 23 March 2010 and more than nine years
later, on 14 November 2019, the Pre-Trial Chamber III authorised the Prosecutor
to proceed with an investigation. The investigation is into crimes allegedly
committed on or after 1 June 2010 of crimes against humanity, such as
deportation and persecution, allegedly committed against the Rohingya population
- committed at least in part on the territory of Bangladesh or on the territory
of any other State Party and is also valid for any future crimes, as long as
such crimes are sufficiently linked to the situation. The investigation is still
in progress.

Afghanistan

Afghanistan is a State Party to the ICC since 10 February 2003. After receiving
communications since June 2006 of alleged atrocity crimes committed in
Afghanistan, the Prosecutor made public its preliminary examination in 2007. On
12 April 2019, the Pre-Trial Chamber II rejected the Prosecutor’s request and
declined to authorize an investigation. The Court determined that an
investigation would not be “in the interests of justice for several reasons,
including the significant time passed since the preliminary examination began in
2006 and the lack of cooperation expected from states involved. On 5 March 2020,
the Appeals Chamber decided unanimously to authorize the Prosecutor to open an
investigation. The Appeals Chamber held that the Pre-Trial Chamber erred in
considering whether an investigation was in the “interests of justice.”

The Prosecutor was therefore authorized to commence an investigation into crimes
allegedly committed on the territory of Afghanistan since 1 May 2003, and other
alleged crimes that have a nexus to the armed conflict, are sufficiently linked
to the situation in Afghanistan, and were committed on the territory of other
States Parties to the Rome Statute since 1 July 2002.

In April 2020, Afghanistan filed a request under article 18 of the Rome Statute
asking the Prosecutor to “defer to Afghanistan’s national investigations and
proceedings” which Afghanistan alleges “cover allegations of crimes committed by
Afghan forces, the Taliban and related groups, other terrorist groups and
international forces.” Afghanistan provided further confidential information on
national proceedings in June 2020 which were under review by the Prosecutor.

On 31 October 2022, the Pre-Trial Chamber II authorised the Prosecution to
resume investigation into the Afghanistan Situation. The judges considered that
Afghanistan is not presently carrying out genuine investigations in a manner
that would justify a deferral of the Court’s investigations and that Afghanistan
authorities are not showing an interest to pursue the deferral request it
submitted on 26 March 2020. The investigation is still in progress.

State of Palestine

Palestine is a State Party of the ICC and ratified the Rome Statute on 2 January
2015. On 22 January 2009, the Palestinian Authority submitted a declaration
recognizing ICC jurisdiction over alleged atrocity crimes committed on its
territory.

After receiving the declaration, the Prosecutor opened a preliminary
examination. In November 2012 report, the OTP decided that, as of 3 April 2012,
due to Palestine’s UN “observer entity” status, the declaration could not be
accepted and closed the preliminary examination. In its November 2013 report,
the OTP decided that, as of 29 November 2012, due to Palestine’s UN “non-member
observer state” status, a new declaration could be accepted. On 1 January 2015,
the government of Palestine submitted a new declaration recognizing ICC
jurisdiction over alleged atrocity crimes committed on its territory since 13
June 2014.

On 16 January 2015, after receiving the new declaration, the Prosecutor opened a
preliminary examination. On 3 March 2021, the Prosecutor announced the opening
of the investigation into the situation in the State of Palestine. This followed
Pre-Trial Chamber I’s decision on 5 February 2021 that the Court could exercise
its criminal jurisdiction in the Situation and, by majority, that the
territorial scope of this jurisdiction extends to Gaza and the West Bank,
including East Jerusalem. Therefore, the ICC competence is established, and
investigation is ongoing on alleged crimes committed since 2014 in Palestine
territory including occupied territory. The 2021 Appeal Chamber’s decision
clarified that: [I]ts conclusions in this decision are limited to defining the
territorial parameters of the Prosecutor’s investigation in accordance with the
Statute” and that “by ruling on the territorial scope of its jurisdiction, the
Court is neither adjudicating a border dispute under international law nor
prejudging the question of any future borders [of the Palestine State] (
Situation in the State of Palestine , Case No. ICC-01/18, Decision on the
‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s
territorial jurisdiction in Palestine’ , 5 February 2021, para. 130).

On 30 October 2023, following the attacks of Hamas on Israel and the outbreak of
a new phase of the armed conflict between Israel and the Hamas in Gaza, the
Prosecutor reaffirmed the ICC’s competence and ongoing investigation by a
dedicated team over crimes committed by both parties to the current armed
conflict.

Republic of the Philippines

The Philippines ratified the Rome Statute on 30 August 2011 but on 17 March
2018, the Government of the Philippines deposited a written notification of
withdrawal from the Rome Statute which took effect on 17 March 2019. However,
the Court retains jurisdiction over alleged crimes that occurred in the
Philippines during the time period when it was a State Party to the Court – from
1 November 2011 through 16 March 2019.

The preliminary examination of the situation in the Republic of the Philippines
focuses on alleged atrocity crimes committed since 1 July 2016 in the context of
the Government of the Philippines’ “war on drugs” campaign.

The Pre-Trial Chamber I authorized the opening of an investigation on 15
September 2021 and emphasized that “based on the facts as they emerge at present
and subject to proper investigation and further analysis, the so-called ‘war on
drugs’ campaign cannot be seen as a legitimate law enforcement operation, and
the killings discussed above neither as legitimate nor as mere excesses in an
otherwise legitimate operation, and that “[r]ather, the available material
indicates that an attack against the civilian population within the meaning of
Article 7(2)(1) of the Statute occurred.” On 18 November 2021, the Republic of
the Philippines requested, pursuant to article 18(2) of the Rome Statute, that
the investigation into the Philippines situation be deferred.

On 26 January 2023, following a careful analysis of the materials provided by
the Philippines, Pre-Trial Chamber I granted the Prosecutor’s request to resume
investigation into the situation of the Republic of the Philippines since it was
not satisfied that the Philippines is undertaking relevant investigations that
would warrant a deferral of the Court’s investigations on the basis of the
complementarity principle. The investigation is still in progress.

Venezuela I

The ICC has jurisdiction in Venezuela for crimes committed since 1 July 2002
since the country ratified the Rome Statute on 7 June 2000. On 28 September
2018, the Presidency of the ICC, assigned the situation of Venezuela to the
Pre-Trial Chamber I, following the 27 September 2018 referral of a group of
States Parties to the ICC (Argentine, Canada, Colombia, Chile, Paraguay and
Peru) requesting to initiate an investigation on crimes against humanity
allegedly committed in the territory of Venezuela since 12 February 2014. The
situation was then reassigned to the Pre-Trial Chamber III by the Prosecutor on
19 February 2020. In its 14 December 2020 report, the OTP announced that it had
completed its subject-matter assessment of the situation in Venezuela I and
concluded that there is a reasonable basis to believe that crimes against
humanity (deprivation of liberty, torture, rape and/or other acts of sexual
violence, and persecution on political grounds) have been committed in Venezuela
since at least April 2017. It requested information from the Government of
Venezuela on any national proceedings relevant to these crimes. Venezuela
requested on 16 April 2022 that the ICC defer investigations in favour of the
actions carried out by its national authorities pursuant to article 18 of the
Rome Statute. Then, on 27 June 2023, then Pre-Trial Chamber I authorised the
Prosecution to resume its investigation following its request to do so of 1
November 2022. The investigation phase is still in progress.

Ukraine

Although not a State Party to the Rome Statute, Ukraine has twice (on 9 April
2014 and 8 September 2015) exercised its prerogatives to accept the Court’s
jurisdiction over alleged crimes under the Rome Statute occurring on its
territory, pursuant to article 12(3) of the Rome Statute.

Preliminary examination of the situation in Ukraine by the ICC focused on
alleged atrocity crimes committed during the following related situations: the
2014 Ukrainian political crisis, also known as the Maidan protests, (occurring
from 21 November 2013 to 22 February 2014), involved Ukrainian government forces
and pro-European anti-government protesters ; the 2014 Ukraine separatist armed
conflicts with Crimea, Donetsk, and Luhansk involved Ukrainian government
forces, pro-Russian anti-government armed groups and Russian government forces
(occurring from 20 February 2014 to the present).

On 28 February 2022, following Russian’s direct military intervention in Ukraine
launched on 24 March 2022, the ICC Prosecutor announced, he would seek
authorisation to open a proprio motu investigation into the situation in
Ukraine, encompassing any new alleged crimes falling within the jurisdiction of
the Court.

On 2 March 2022, following the official referral of the situation by Lithuania
and 38 other States Parties to the ICC (per article 14), requesting
investigation on past and present allegations of war crimes, crimes against
humanity or genocide committed on any part of the territory of Ukraine by any
person from 21 November 2013 onwards, the Prosecutor announced the opening of
the investigation in Ukraine on this new legal basis.

On 17 March 2023, the Pre-Trial Chamber II issued two arrest warrant for Mr.
Vladimir Vladimirovich Putin, current President of the Russian Federation, and
Ms. Maria Alekseyevna Lvova-Belova, the current Commissioner for Children’s
Rights of the Russian Federation on allegations of war crime of unlawful
deportation of population (children) and unlawful transfer of population
(children) from occupied areas of Ukraine to the Russian Federation.

The investigation phase is ongoing.

**3- Preliminary examinations before the ICC (as of October 2023)*

**

Nigeria

Nigeria is a State Party to the ICC and ratified the Rome Statute on 27
September 2001. On 18 November 2010, after receiving communications of alleged
atrocity crimes committed in Nigeria, the Prosecutor announced a preliminary
examination. The preliminary examination has focused on alleged Boko Haram
crimes from 2009 onwards, and alleged crimes by Nigerian security forces
committed during the non-international armed conflict from 2011 onwards but has
also potentially examined information of crimes beyond the armed conflict
context.

In an August 2013 report, the OTP determined that there is a reasonable basis to
believe that Boko Haram committed crimes against humanity. In a November 2015
report, the OTP identified eight potential groups of allegations involving
crimes against humanity and war crimes committed by Boko Haram (and Nigerian
security forces. In his 2019 report, the Prosecutor identified two further types
of potential crimes that could form subject matter jurisdiction: alleged Boko
Haram attacks against personnel or objects involved in humanitarian assistance
and Nigerian security forces alleged recruitment and use of child soldiers.

In its December 2020 report on preliminary examination activities, the OTP
detailed the conclusion of its admissibility assessment of the situation in
Nigeria, concluding that potential cases arising from the situation would likely
be admissible. It determined that Nigeria’s domestic investigations and
proceedings to date had been limited in scope and depth, finding that
proceedings against Boko Haram either “did not cover substantially the same
alleged conduct” or were against low-level perpetrators, and that proceedings
against Nigerian security forces either were absent or “did not demonstrate any
tangible, concrete, and progressive steps by the authorities.”

On 11 December 2020, the Prosecutor announced the conclusion of its preliminary
examination of the situation in Nigeria and the case is pending a prosecutorial
decision to seek authorization from a Pre-Trial Chamber to open an
investigation. In the interim, the Prosecutor continues to take measures to
preserve the integrity of any future investigation into the situation in
Nigeria. The Prosecutor stated that the OTP, along with the incoming Prosecutor,
needed to consider prioritization of the OTP’s workload and other concerns
before taking decisions on moving forward in several concluded preliminary
examinations.

.. warning:

Venezuela II*

Venezuela is a State Party to the ICC since 7 June 2000 and it submitted a
self-referral to the ICC on 13 February 2020 regarding alleged crimes against
humanity in Venezuela as a result of sanctions imposed by the United States.

The preliminary examination of the situation of Venezuela II focuses on alleged
crimes against humanity allegedly committed on the territory of Venezuela, with
the view to determining whether one or more persons should be charged with the
commission of such crimes. In its referral, Venezuela stated that these crimes
were a result of United States imposed sanctions, which have allegedly resulted
in increases in both adult and child mortality, and negatively impacted human
rights such as right to food, access to medical care and education.

Under article 53(1) of the Rome Statute, the Prosecutor must consider issues of
jurisdiction, admissibility, and the interests of justice in making a
determination to need of opening of an investigation into a situation. In its 14
December 2020 report, the OTP stated that it intends to conclude its subject
matter jurisdiction assessment of the situation in Venezuela II in the first
half of 2021 but since then no further information was communicated. On 10 June
2023, the Prosecutor announced that it had signed a Memorandum of Understanding
establishing an in-country office in Venezuela to allow it to increase the scale
and impact of the OTP field presence and broaden the domestic interface for the
ICC’s work to identify and support meaningful efforts to improve national
justice initiatives.

The preliminary examination of Venezuela II is thus still in the subject-matter
jurisdiction assessment phase.

*DRC II

DRC is a State Party to the ICC since 11 April 2002. On 23 May 2023, it
submitted a second self-referral to the Court to initiate an investigation with
respect to alleged crimes within the jurisdiction of the Court committed in
North Kivu, DRC, from 1 January 2022 to date. The situation was assigned to the
Pre-Trial Chamber I on 15 June 2023 and the Prosecutor will conduct a
preliminary examination of the information received.

➔ Aggression </content/article/3/aggression/>__ ▸ Children
</content/article/3/children/>__ ▸ Genocide </content/article/3/genocide-1/>__ ▸
Human rights </content/article/3/human-rights/>__ ▸ Immunity
</content/article/3/immunity/>__ ▸ Individual recourse
</content/article/3/individual-recourse/>__ ▸ International Criminal Tribunals
</content/article/3/international-criminal-tribunals-for-the-former-yugoslavia-icty-and-rwanda-ictr/>__
▸ Non-applicability of statutory limitations
</content/article/3/non-applicability-of-statutory-limitations/>__ ▸
Non-retroactivity </content/article/3/non-retroactivity/>__ ▸ Penal sanctions in
humanitarian law </content/article/3/penal-sanctions-in-humanitarian-law/>__ ▸
Rape </content/article/3/rape/>__ ▸ Reparation (Compensation)
</content/article/3/reparation-compensation/>__ ▸ Security Council of the UN
</content/article/3/security-council-of-the-un/>__ ▸ War crimes/Crimes against
humanity </content/article/3/war-crimescrimes-against-humanity/>__ ▸ Women
</content/article/3/women/>__

➔ List of States Party to International Humanitarian Law and Human Rights
Conventions (no. 31)

*Jurisprudence

=============*

The ICC jurisprudence has provided clarification over the interpretation and
application of numerous legal provisions. ICC jurisprudence touching on IHL
legal concepts are presented in relevant thematic sections such as ➔ Attacks
</content/article/3/attacks/>__*(on civilians) , Children , Duty of Commanders ,
Judicial guarantees , Rape , Responsibility , Reparation (Compensation) , War
crimes/Crimes against ▸ humanity

The topics referred below are directly linked to the functioning of the ICC: 1)
Jurisdiction admissibility; 2) use and misuse of confidential documentation and
witness testimony by the ICC;3) Protection of victims and witnesses; 4)
Reparation for victims and 5) Appeal.


1. JURISDICTION, ADMISSIBILITY OF CASES, CONFIRMATION HEARING AND APPLICABLE LAW

A. PRECONDITIONS TO THE EXERCISE OF THE COURT’S JURISDICTION

Article 19(1) of the Rome Statute indicates that: “[t]he Court shall satisfy
itself that it has jurisdiction in any case brought before it.” In general, it
is the responsibility of the Pre-Trial Chamber to determine whether
preconditions tothe exercise of the Court’s jurisdiction have been met. A number
of decisions from the Pre-Trial Chambers directly cite article 19(1), including
decisions in:

 * the Bemba case (Prosecutor v. Jean-Pierre Bemba Gombo, Case No.
   ICC-01/05-01/08-424, Decision Pursuant to article 61(7)(a) and (b) of the
   Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo
   , 15 June 2009, para. 22);
 * the Kenyatta case (Prosecutor v. Francis Kirimi Muthaura, Uhuru
   MuigaiKenyatta and Mohammed Hussein Ali, Case No. ICC-01/09-02/11-382-Red,
   Decision on the Confirmation of Charges Pursuant to article 61(7)(a) and (b)
   of the Rome Statute , 23 January 2012, para. 22);
 * the Gbagbo case (Prosecutor v. Laurent Gbagbo , Case No.
   ICC-02/11-01/11-656-Red, Decision on the Confirmation of Charges Against
   Laurent Gbagbo , 12 June 2014, para. 18); and
 * the Ruto case (Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and
   Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the Confirmation of
   Charges Pursuant to article 61(7)(a) and (b) of the Rome Statute , 23 January
   2012, para. 23).

 * 
 * 

Beyond referring to article 19(1) generally, the ICC has, on a number of
occasions, explained precondition requirements in more details. Most notably,
the Court has explained the preconditions in:

 * 
 * 

-the Lubanga case (Situation in the Democratic Republic of the Congo, Case No.
ICC-01/04, Decision on the Applications for Participation in the Proceedings ,
17 January 2006, paras. 83–93);

-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);

-the Al Mahdi case (Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No.
ICC-01/12-01/15, Decision on the Confirmation of Charges Against Ahmad Al Faqi
Al Mahdi , 24 March 2016, para. 2);

-the Gbagbo case, (Prosecutor v. Charles Blé Goudé, Case No.
ICC-02/11-02/11-186, Decision on the Confirmation of Charges Against Blé Goudé,
11 December 2014, para. 11; Prosecutor v. Laurent Gbagbo, Case No.
ICC-02/11-01/11 , Decision on the Confirmation of Charges Against Laurent
Gbagbo, 12 June 2014, para. 18); and

-the Kenyatta case (Prosecutor v. Francis Kirimi Muthaura, Uhuru Muiai Kenyatta
and Mohammed Hussein Ali, Case No. ICC-01/09-02/11-382-Red, Decision on the
Confirmation of Charges Pursuant to article 61(7)(a) and (b) of the Rome
Statute, 23 January 2012, paras. 22 and 24).

 * 
 * 

In the Lubanga case, the ICC Pre-Trial Chamber I noted that four conditions must
be met for a crime to fall within the Court’s jurisdiction:

 1. The crime must fall within the scope of article 5 of the Rome Statute, i.e.
    it must qualify as either genocide, a crime against humanity, a war crime or
    a crime of aggression (jurisdiction ratione materiae).
 2. The crime must have been committed within the time period set out in article
    11 of the Rome Statute, which means that the Court may only exercise its
    jurisdiction over 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).
 3. The crime must meet one of the two alternative conditions described in
    article 12 of the Rome Statute: it must have been committed either on the
    territory of a State Party to the Rome Statute (jurisdiction ratione loci)
    or have been perpetrated by a national of a State Party to the Rome Statute
    (jurisdiction ratione personae).

4. The situation must have been referred to the Prosecutor either by a State
Party, by the UNSC acting under Chapter VII of the UN Charter, or by the
Prosecutor, him or herself.

In the Al Mahdi, Gbagbo and the Kenyatta cases, these four conditions —in
addition to the requirement that the case be referred through an appropriate
channel —are also required. The same preconditions had already been asserted by
the ICC Pre-Trial Chamber II, two years prior, with regard to the Situation in
the Republic of Kenya (Case No. ICC-01/09, 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).

It should be recalled that in the situation regarding Kenya, the Prosecutor
initiated an investigation proprio motu (on his own initiative). This was the
first country for which the Prosecutor used his proprio motu powers. Since then,
the Prosecutor has also used the proprio motu powers to initiate investigations
in Ivory Coast in 2011, Georgia in 2016, Burundi in 2016, Bangladesh and Myanmar
in 2019, Afghanistan in 2020 and Palestine, Colombia and the Philippines in
2021. In the situation in Kenya, the ICC Pre-Trial Chamber II also explained the
difference that exists between a “situation” and a “case,” which can be
understood in terms of the different types of proceedings they entail.
(Situation in the Republic of Kenya, Case No. ICC-01/09, 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). In the Lubanga
case, the Chamber held that situations are generally defined in terms of
temporal and territorial parameters, such as the situation in the DRC since
1July 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 may
include several cases; for example, six cases relate to the situation in the DRC
: Prosecutor v. Sylvestre Mudacumura (pre-trial phase); Prosecutor v. Bosco
Ntaganda (reparations phase); Prosecutor v. Thomas Lubanga Dyilo (reparations
phase); Prosecutor v. Germain Katanga (reparations phase); Prosecutor v. Mathieu
Ngudjolo Chui (case closed);and Prosecutor v. Callixte Mbarushimana (case
closed).

With regard to the precondition to the exercise of the ICC’s territorial
jurisdiction (art. 12(2) of the Rome Statute), in the Palestinian situation, the
Pre-Trial Chamber I had to interpret the scope of the Court’s territorial
jurisdiction under article 12(2)(a) of the Rome Statute with the aim to
establish whether Palestine qualified as “[t]he State on the territory of which
the conduct in question occurred” and, if yes, whether the ICC’s jurisdiction
comprises the Occupied Palestinian Territories. The Pre-Trial Chamber stated
that the reference in article 12(2)(a) to the State in the territory of which
the acts in question occurred must be interpreted as a reference to a State
Party to the Rome Statute. It further clarified that by ruling on the
territorial scope of its jurisdiction, the Chamber is neither adjudicating a
border dispute under international law nor prejudging the question of any future
borders. (Situation in the State of Palestine, Case No. ICC-01/18, Decision on
the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s
territorial jurisdiction in Palestine’, 5 February 2021, para. 130).

Only the assession of the State Party to the Rome Statute is to be considered
for the determination of the ICC’s territorial jurisdiction. Therefore, the
Trial Chamber affirmed that that the Court’s territorial jurisdiction in the
Situation in Palestine extends to the territories occupied by Israel since 1967,
namely Gaza and the West Bank, including East Jerusalem. ( Situation in the
State of Palestine, Case No. ICC-01/18-143, Decision on the ‘Prosecution request
pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction
in Palestine’, 5 February 2021, paras. 57, 93, 100, 102, 104, 106, 108-109 and
112-118).

A State not party to the Rome Statute, may also confer jurisdiction on the Court
pursuant to article 12(3). This is the case of Ukraine, with its first
declaration in April 2014, retroactive to the events of 21 November 2013 to 22
February 2014, and with its second declaration in September 2015, extending the
validity of the first declaration indefinitely ( Situation in Ukraine, Case No.
ICC-01/22-1, Annex I to the Decision assigning the situation in Ukraine to
Pre-Trial Chamber II , 2 March 2022).

According to article 1 and 17(1)(a) of its statute, the competence of the ICC is
complementary to the national criminal jurisdictions. On 28 October 2021, the
Prosecutor closed the investigation in Colombia on this legal basis. Given the
complementarity mandate of the Court, the Prosecutor expressed contentment,
stating that it “is satisfied that complementarity is working today in Colombia”
and there was no more reasonable basis to continue ICC investigations.
(Situation of Colombia, Case No. ICC-RoC46(3)-01/22, Prosecution response to
FIDH and CAJAR requests ICC-RoC46(3)-01/22-3 and ICC-RoC46(3)-01/22-1-Red, 6
June 2022 and Decision on the ‘Request for review of the Prosecutor’s decision
of 28 October 2021 to close the preliminary examination of the situation in
Colombia’ and related requests , 22 July 2022).

B. CONFIRMATION HEARING

Article 61 of the Rome Statute refers to the confirmation of charges hearing,
where the Prosecutor presents evidence to the Pre-trial judge in the presence of
the accused and his or her counsel. This process is essential as it prevents
unfair trials by ensuring that there is substantial evidence to support the
commission of the alleged crimes by the accused person. This safeguard is
crucial in protecting individuals from unfounded accusations. It ensures that
individuals are presumed innocent until proven guilty and that they receive a
fair and impartial trial. (See Prosecutor v. Germain Katanga and Mathieu
Ngudjolo Chui, Case No. ICC-01/04-01/07, Decision on the Confirmation of the
Charges, 30 September 2008, para. 63; Prosecutor v. Mahamat Said Abdel Kani,
Case No. ICC-01/14-01/21, Decision on the Confirmation of the Indictment against
Mahamat Said Abdel Kani, 9 December 2008, para. 35; Prosecutor v. Callixte
Mbarushimana, Case No. ICC-01/04-01/10, Decision on Confirmation of Charges, 16
December 2011, para. 41; Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai
Kenyatta and Mohammed Hussein Ali, C ase No. ICC-01/09-02/11, Decision on the
Confirmation of the Charges Pursuant to Article 61(7)(a) and (b) of the Rome
Statute, 23 January 2012, para. 52; Prosecutor v. William Samoei Ruto, Henry
Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the
Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome
Statute, 23 January 2012, para. 40 ; Prosecutor v.Laurent Gbagbo, Case No.
ICC-02/11-01/11, Decision adjourning the hearing on the confirmation of charges
pursuant to article 61(7)(c)(i) of the Rome Statute , 3 June 2013, para. 18).

Once the charges have been confirmed, the President establishes a Trial Chamber,
which marks the beginning of the trial phase. Alternatively, article 61(4) of
the Rome Statute allows the Prosecutor to withdraw the charges before the
confirmation hearing takes place.

In 2023, the most significant development at the ICC is likely to be the
Prosecution’s decision to withdraw the charges against Mr. Mokom shortly before
the confirmation hearing. This move was prompted by the unavailability of a key
witnesses and unsuccessful gathering of evidence (Prosecutor v. Maxime Jeoffroy
Eli Mokom Gawaka, Case No. ICC-01/14-01/22, Notice of Withdrawal of the Charges
against Maxime Jeoffroy Eli Mokom Gawaka, 16 October 2023). This incident
mirrors an earlier one in 2014, when the Prosecutor withdrew charges in the
Kenyatta case, citing insufficient evidence following the corruption and death
of witnesses and political interference ( Prosecutor v. Uhuru Muigai Kenyatta,
Case No. ICC-0l/09-02/11, Decision on the Withdrawal of Charges against Mr.
Kenyatta , 13 March 2015).

C. ADMISSIBILITY OF CASES AND CHALLENGES OF SUCH ADMISSIBILITY

In the fundamental case of Lubanga Case ( Prosecutor v. Thomas Lubanga Dyilo ,
Case No. ICC-01/04-01/06-8-Corr, Decision on the Prosecutor’s Application for a
warrant of arrest. Article 58 , 10 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:

 * 
 * 

1. 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;

2. 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 have been repeatedly reasserted by the
Pre-Trial Chambers, including in the Situation in the Republic of Kenya , Case
No. ICC-01/09, 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. 40–62; Prosecutor v. William Samoei Ruto, Henry Kiprono
Kosgey, and Joshua Arap Sang , Case No. ICC-01/09-02/11-96, 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;
Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed
Hussein Ali , Case No. ICC-01/09-02/11, 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); and Prosecutor v.
Germain Katanga and Mathieu Ngudjolo Chui , Case No. ICC-01/04-01/07 OA 8,
Judgment on the Appeal of Mr. Germain Katanga Against the Oral Decision of Trial
Chamber II of 12 June 2009 on the Admissibility of the Case , 25 September 2009,
para. 56. In this Katanga case, the Court also added that admissibility should
“be determined on the basis of the facts as they exist at the time of the
proceedings concerning the admissibility challenge”. ( Katanga , para. 56). 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 confirmed previous Pre-Trial Chambers 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).

 * 
 * 

The ICC has since clarified the standards for each of the two parts of the
admissibility test; the State inaction linked to its inability or unwillingness
to investigate or prosecute and the gravity threshold.

State unable or unwilling to act (art. 17(1)(a) and (b) of the Rome Statute):

In the Abu Garda case, ( Prosecutor v. Bahar Idriss Abu Garda , Case No.
ICC-02/05-02/09, Decision on the Confirmation of Charges, 8 February 2010), the
Court held that “in the absence of any State action, it is not necessary to
address any issues relating to the unwillingness or inability of any given State
to investigate or prosecute the Case” ( Abu Garda, para. 29). This affirmed a
standard set by the Katanga case, in which the Court had additionally held that
“the question of unwillingness or inability has to be considered only (1) when
there are, at the time of the proceedings in respect of an admissibility
challenge, domestic investigations or prosecutions that could render the case
inadmissible before the Court, or (2) when there have been such investigations
and the State having jurisdiction has decided not to prosecute the person
concerned.” ( Katanga , paras. 1 and 2).

In addition to discussing the total absence of State action, the Court in the
Katanga case also clarified its approach to the standard of “unwillingness” when
the State has taken some form of action. Three circumstances in particular are
red flags for “unwillingness” as understood by the drafters of the Rome Statute.
These include: (a) domestic legal proceedings “were or are being undertaken […]
for the purpose of shielding the person concerned from criminal responsibility”
within the ICC’s jurisdiction; (b) legal proceedings were unjustifiably delayed
under circumstances that are “inconsistent with an intent to bring the person
concerned to justice;” and (c) the proceedings were or are not conducted
impartially. (Katanga , para. 74).

***

The Court also clarified that as per rule 53 of the*Rules of Procedure and
Evidence of the ICC: “the onus is on the State to show that investigations or
prosecutions are taking place or have taken place” by providing the Court with
evidence that “tangible, concrete and progressive investigative steps are
undertaken […] with a view to conduct criminal prosecutions”. (see Situation in
the Islamic Republic of Afghanistan , Case No. ICC-02/17, Decision pursuant to
article 18(2) of the Statute authorising the Prosecution to resume investigation
, 31 October 2022, paras. 45 and 79; Prosecutor v. Saif Al-Islam Gaddafi , Case
No. ICC-01/11-01/11, Decision on the admissibility of the case against Saif
Al-Islam Gaddafi , 31 May 2013, para. 54). In accordance with the natural
justice fundamental principle of audi alteram partem (opportunity to be heard),
the Court stated that “any decision of the Trial Chamber that might imply or
express a finding that a State Party has failed to discharge its obligation
under the Rome Statute, engages an obligation on the part of the Trial Chamber
to give that State a reasonable opportunity to make submission before that
decision is rendered”. (see Prosecutor v. Alfred Yekatom and Patrice-Édouard
Ngaïssona , Case No. ICC-01/14-01/18 OA, Judgment on Mr Yekatom’s appeal against
Trial Chamber V’s “Decision on the Yekatom Defence’s Admissibility Challenge” ’,
11 February 2021, paras. 45-57).

With respect to a challenge to the non-admissibility of a case brought before
the Court under article 18(2) of the Rome Statute on, the burden of providing
relevant information remains on the State seeking to defer to the ICC. Indeed,
when a State claims that a case is inadmissible on the basis that it is
investigating or has investigated its nationals or others within its
jurisdiction for criminal acts that may constitute crimes referred to in article
5 of the Rome Statute, the Appeals Chamber confirmed that the State must provide
the Court with evidence of a sufficient degree of specificity and probative
value to show that it is in fact investigating the case ( Prosecutor v. Saif
Al-Islam Gaddafi , Case No. ICC-OI/II-OI/IIOA6, Judgment on the appeal of Mr.
Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October
2013 entitled ‘Decision on the admissibility of the case against Abdullah
Al-Senussi’ , 24 July 2014, para. 166). It is not sufficient to assert that an
investigation is under way. “[I]t is an essential tenet of the rule of law that
judicial decisions must be based on facts established by evidence” and,
crucially, that “[p]roviding evidence to substantiate an allegation is a
hallmark of judicial proceedings””. ( Situation in the Republic of Philippines ,
Case No. ICC-01/21 OA, Judgment on the appeal of the Republic of the Philippines
against Pre-Trial Chamber I’s “Authorisation pursuant to article 18(2) of the
Statute to resume the investigation” , 18 July 2023, paras. 72-73; Prosecutor v.
Jean-Pierre Bemba Gombo , Case No. ICC-01/05-01/08OA3, Judgment on the Appeal of
Mr. Jean-Pierre Bemba Gombo of Trial Chamber III’s Decision of 24 June 2010
entitled ‘Decision on the Admissibility and the Abuse of Process Challenges’ ,
19 October 2010, para. 10).

 * 
 * 

However, even if the Court finds that a State is unwilling to prosecute a crime,
the case may remain inadmissible if other grounds for inadmissibility are met,
such as Ne Bis In Idem (art. 17(1)(c) of the Rome Statute), or if the case is
not of sufficient gravity to justify further action by the Court (art. 17(1)(d)
of the Rome Statute) (the gravity threshold, infra) is not met (see also Katanga
, para. 59).

 * 
 * 

Gravity threshold (art. 17(1)(d) of the Rome Statute):

The second prong of the admissibility test is the gravity requirement. An
assessment of the gravity of a case may contemplate issues regarding the
“nature, manner and impact” of the alleged crime (Abu Garda, para. 31) but that
the “[q]uantitative criteria alone, including the number of victims, are not
determinative of the gravity of a given case” ( Prosecutor v. Al Hassan Ag
Abdoul Aziz Ag Mohamed Ag Mahmoud , Case No. ICC-01/12-01/18 OA, Judgment on the
appeal of Mr Al Hassan against the decision of Pre-TrialChamber I entitled
‘Décision relative à l’exception d’irrecevabilité pour insuffisance degravité de
l’affaire soulevée par la défense’ , 19 February 2020, para. 94), as well as
other factors listed in rule 145(1)(c) of the Rules of Procedure and Evidence
relating to the determination of a sentence ( Kenyatta , para. 50). The
assessment should be both quantitative and qualitative in nature ( Abu Garda ,
para. 31) and “involves a holistic evaluation” of the four main factors
established in the jurisprudence of the Court: (i) “the scale of the alleged
crimes: number of victims, geographical area affected, span and intensity of the
alleged crimes over time”; (ii) “the nature of the alleged crimes: legal
characterisation of the alleged conduct, human rights violated as a result of
the alleged crimes”; (iii) “the manner of commission of the alleged crimes:
means employed to execute the alleged crimes, whether the alleged crimes were
committed with particular cruelty or brutality, whether they were committed on
the basis of discriminatory motives, against a victim who is particularly
defenceless or vulnerable, or pursuant to a plan or policy”; and (iv) “the
impact of the alleged crimes: harm caused to the victims and their families,
extent of the damage caused, impact beyond the direct victims and their families
or beyond the immediate damage” ( Situation on the Registered Vessels of the
Union of the Comoros, The Hellenic Republic and the Kingdom of Cambodia , Case
No. ICC-01/13, Decision on the ‘Application for Judicial Review by the
Government of the Comoros’ , 16 September 2020, paras. 20-21; Prosecutor v.
Charles Blé Goudé , Case No. ICC-02/11-02/11, Decision on the Defence Challenge
to the Admissibility of the case against Charles Ble Goude for Insufficient
Gravity , 12 November 2014, para. 19). It is not necessary for the accused to be
a high-ranking offender ( Goudé , para. 18). The gravity threshold must be met
“in addition to” the crime being listed in articles 6 through 8 of the Rome
Statute; gravity alone is not sufficient. (A bu Garda , para. 30).

The Court has held that an admissibility determination is not mandatory but is,
rather, discretionary, unless any of the parties mounts a challenge. (
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang ,
Case No. ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to
Article 61(7)(a) and (b) of the Rome Statute , 23 January 2012, para. 38).

**

Per article 19(2) of the Rome Statute, challenges to the admissibility of a case
and jurisdiction of the Court may be made by:

 1. 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;
 2. 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
 3. a State from which acceptance of jurisdiction is required under article 12
    of the Rome Statute.**

 * 

In an Appeals Chamber decision (*Prosecutor v. Thomas Lubanga Dyilo , Case No.
ICC-01/04-01/06 (OA4), Judgment on the Appeal of Mr. Thomas Lubanga Dyilo
against the Decision on the Defence Challenge to the Jurisdiction of the Court
pursuant to article 19 (2) (a) of the Statute of 3 October 2006 , 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. Finally, a challenge to
the admissibility of a case must be made prior to or at the start of the trial,
which is understood to mean “the point in time when the Trial Chamber is
constituted”. ( Katanga , para. 28).

 * 

 * c. Applicable Law:
   
   ***

The Court has the inherent authority to determine the scope of its own
competence pursuant to the principle of la compétence de la compétence
(*Situation in Bangladesh/Myanmar , Case No. ICC-RoC46(3)-01/18, Decision on the
‘Prosecution’s Request for a Ruling on Jurisdiction Under Article 19(3) of the
Statute’ , 6 September 2018, para. 33).

***

In the*Kony case ( Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot
Odhiambo, and Dominic Ongwen , Case No. ICC-02/04-01/05, Decision on the
Prosecutor’s position on the decision of Pretrial Chamber II to redact factual
descriptions of crimes from the warrants of arrest, motion for reconsideration,
and motion for clarification , 28 October 2005, para. 19), the ICC Pre-Trial
Chamber II restrictively interpreted article 21 of the Rome 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,” meaning
that national laws can be used as applicable law before the ICC only if the
Court has not reached a conclusion after applying other sources of applicable
law.

The ICC founding texts must be interpreted as a whole, interpretation cannot
disregard or render any other of its provisions void ( Katanga, Judgment, 7
March 2014, para. 46). In 2016, the Court, in the case of Prosecutor v. Bemba
discussed the “hierarchy” of sources of law set out in article 21 ( Prosecutor
v. Jean-Pierre Bemba Gombo , Case No. ICC-01/05-01/08, Judgement Pursuant to
article 74 of the Statute , 21 March 2016, para. 66). This hierarchy requires
the Chamber to first apply the Rome Statute itself, the Elements of Crimes , and
the Rules of Procedure as primary sources of law. If a conflict arises between
these three sources, the Rome Statute itself remains the primary source of
authority.

 * 

 * If the application of these primary sources leaves a “lacuna,” the Chamber
   may next consider “applicable treaties” and “principles and rules of
   international law” ( Bemba , paras. 69-71). In the past, the Chamber has
   applied the Vienna Convention on the Law of Treaties, the Convention on the
   Rights of the Child, the Genocide Convention, the Geneva Conventions of 12
   August 1949, and the two Additional Protocols to the Geneva Convention (
   Bemba , para. 70). For evidence of international law, the Chamber has turned
   to the jurisprudence of other international courts, particularly the ICJ (
   Bemba , para. 71). While the rules and practice of ad hoc International
   Criminal Tribunals are not considered by the Court as applicable law per se,
   they should nonetheless be used as implicit guidance ( Prosecutor v. Thomas
   Lubanga Dyilo , Case No. ICC-01/04-01/06, Decision on the Defence Challenge
   to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the
   Statute , 3 October 2006, p. 9; Katanga, Judgment , 7 March 2014, para. 47).
   The ICC may also consider its own precedent at this stage although they are
   not legaly binding, ( Bemba , para. 74).
   * 
 * Finally, if the question before the Court is still not satisfied with any of
   the above approaches, the ICC may turn to “general principles of law derived
   by the Court from national laws of legal systems of the world including, as
   appropriate, the national laws of States that would normally exercise
   jurisdiction over the crime” ( Bemba , para. 73, quoting article 21(1)(c) of
   the Rome Statute). However, for national laws to constitute applicable law,
   these laws must be consistent with the Rome Statute and with international
   law, both treaty-based and customary. However, when the Court’s legal
   framework exhaustively regulates a matter, no recourse to secondary sources
   of law is required (Situation in the Bolivarian Republic of Venezuela I ,
   Case No. ICC-02/18, Decision authorising the resumption of the investigation
   pursuant to article 18(2) of the Statute , 27 June 2023, para. 37).
   * 
 * The Court has also emphasised that the application and interpretation of law
   must always be consistent with “internationally recognized human rights,”
   which, according to the Court, refers to UN General Assembly and UNSC
   Resolutions as well as the jurisprudence of the Inter-American Court of Human
   Rights and European Court of Human Rights ( Situation in the DRC , Case No.
   ICC-01/04, Decision on the Applications for Participation in the Proceedings
   of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6 , 17 January 2006,
   paras. 81, 115-116).

**2. Use and Misuse of Confidential Documents and Witness Testimony by the Court

==============================================================================**

**The Lubanga case

—————-**

**Thomas Lubanga Dyilo was the first accused to be individually tried by the
ICC. In 2004, the 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 Dyilo, 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 defence and fair
trial.**

In 2006, the ICC’s Pre-Trial Chamber I determined that the President of the
Court could establish a “cooperation regime” with the UN through an agreement
that must be approved by the ASP. This cooperation regime allows the UN to
provide the Court with confidential information, with the assurance that those
documents will not be disclosed ( Prosecutor v. Thomas Lubanga Dyilo , Case No.
ICC-01/04-01/06, Decision on Defense Requests for Disclosure of Materials , 17
November 2006, p. 5 and 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 , Case No. ICC-01/04-01, Decision on the Prosecution
Information in respect of the Second Decision on Rule 81 Motions , 28 September
2006, p. 5). Additionally, the Court can request counterbalancing measures to
disclose the information needed to ensure fair trial rights of the accused (
Prosecutor v. Thomas Lubanga Dyilo , Case No. ICC-01/04-01/06 OA 13, Judgment on
the appeal of the Prosecutor against the decision of Trial Chamber I entitled
‘Decision on the consequences of non-disclosure of exculpatory materials covered
by Article 54(3)(e) agreements and the application to stay the prosecution of
the accused, together with certain other issues raised at the Status Conference
on 10 June 2008’ , 21 October 2008, para. 48).

***

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,
Case No. ICC-01/-04-01/06, Decision on the Practices of Witnesses
Familiarisation and Witness Proofing , 8 November 2006, p. 21).

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 defence, prior to the confirmation hearing, as stated in article 67(2) of
the Rome Statute ( Prosecutor v. Thomas Lubanga Dyilo , Case No.
ICC-01/-04-01/06, Decision requesting observations of the Prosecution and the
Duty Counsel for the Defence on the System of Disclosure and Establishing an
Interim System of Disclosure , 23 March 2006, p. 3, 4 and 7).

 * 

 * ***

In a further decision in the same case, the Chamber decided that exculpatory
evidence should be disclosed by the Prosecution prior to the confirmation
hearing and that this obligation is wider “whenever new charges, or new factual
allegations supporting the current charges, are alleged” (*Prosecutor v. Thomas
Lubanga Dyilo , Case No. ICC-01/-04-01/06, Decision on the Final System of
Disclosure and the Establishment of a Timetable , 15 May 2006, paras. 119 and
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 (*Situation in the DRC , Case No.
ICC-01/-04, Judgment on the Prosecutor’s Application for Extraordinary Review of
Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal , 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 , Case No. ICC-01/-04-01/06,
Decision on the Defence request for leave to appeal regarding the transmission
of applications for victim participation , 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 defence, an inability that, in the Chamber’s opinion, entailed a
violation of the rights of the defence to a fair trial:*Prosecutor v. Thomas
Lubanga Dyilo , Case No. ICC-01/-04-01/06, Decision on the consequences of
non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements
and the application to stay the prosecution of the accused, together with
certain other issues raised at the Status Conference on 10 June 2008 , 13 June
2008, paras. 91 and 94).

 * 

 * This decision ruled that the Prosecution had 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 Rome
   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 UN had
   not yet agreed to allow disclosure of confidential documents it 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.
   
   ***

3. The Protection of Victims and Witnesses

==========================================

a. 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 , Case No. ICC-01/04-01/06, Decision on a
General Framework concerning Protective Measures for Prosecution and Defence
Witnesses , 19 September 2006); as well as the authorization of anonymous
participation to the confirmation hearing when necessary ( Prosecutor v. Thomas
Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision authorising the filing of
observations on the applications for participation in the proceedings a/0004/06
to a/0009/06, a/0016/06 to a/0063/06 and a/0071/06 , 22 September 2006, p. 4 and
5), the restriction of contacts between organs of the Court and victims (
Situation in the DRC , Case No. ICC-01/04, Decision on Protective Measures
Requested by Applicants 01/04-1/dp to 01/04-6/dp , 21 July 2005, p. 6), and the
reclassification of a public decision as confidential (P rosecutor v. Thomas
Lubanga Dyilo , Case No. ICC-01/04-01/06, Decision Reclassifying Document Number
ICC-01/04-01/06-690 , 9 November 2006, p. 2). Other measures have included
Court-ordered witness protection status, allowing certain portions of the trial
during which victims give testimony to be “private” or “closed,” and redacting
sensitive portions of Court documents, including sometimes replacing witnesses’
names with numbers. ( Prosecutor v. Jean-Pierre Bemba Gombo , Case No.
ICC-01/05-01/08, Judgment Pursuant to Article 74 of the Statute , 21 March 2016,
paras. 247-249; Prosecutor v. Germain Katanga , Case No. ICC-01/04-01/07,
Judgment Pursuant to Article 74 of the Statute , 7 March 2014, paras. 97-100;
and Prosecutor v. Mathieu Ngudjolo , Case No. ICC-01/04-02/12, Judgment Pursuant
to Article 74 of the Statute , 18 December 2012, paras. 63-66).

Nonetheless, the Court has held that those protective measures shall not be
prejudicial to or inconsistent with the rights of the accused and to a fair and
impartial trial (Prosecutor v. Thomas Lubanga Dyilo , Case No. ICC-01/04-01/06
(OA 5), Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision
of Pre-Trial Chamber I entitled “First Decision on the Prosecution Requests and
Amended Requests for Redactions under Rule 81” , 14 December 2006, para. 34;
Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona , Case No.
ICC-01/14-01/18, Decision on the Prosecutor’s Request to Use Anonymised
Summaries of Witness Statements , 3 February 2020, para. 26). This means that
the use of confidentiality for the protection of victims and witnesses is not
absolute in the sense that their identities are not disclosed to the public but
will be available for the defence and/or to the accused person to ensure the
right to a fair and effective defence.

B. MODALITIES OF VICTIMS’ PARTICIPATION IN 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, to be notified when
public documents and other documents related to their interests are released, to
request that evidence be admitted into the record, to filesubmissions throughout
the proceedings, to make opening statements and file closing briefs, to make
closing statements and to choose whether or not they agree to disclose their
identity to the defence before the commencement of the trial ( Prosecutor v.
Thomas Lubanga Dyilo , Case No. ICC-01/04-01/06, First Decision on the
Prosecution Requests and Amended Requests for Redactions under Rule 81 , 15
September 2006, p. 9; Prosecutor v. Germain Katanga , Case No. ICC-01/04-01/07,
Judgment pursuant to article 74 of the Statute , 7 March 2014, paras. 31-36;
Prosecutor v. Ngudjolo , Case No. ICC-01/04-02/12, Judgment pursuant to article
74 of the Statute , 18 December 2012, para. 27; Prosecutor v. Thomas Lubanga
Dyilo , Case No. ICC-01/04, Decision on the Applications for Participation in
the Proceedings , 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 , Case No. ICC‐01/04‐01/06, Decision on applications for
participation in proceedings a/0004/06 to a/0009/06, a/0016/06, a/0063/06,
a/0071/06 to a/0080/06 and a/0105/06 in the case of The Prosecutor v. Thomas
Lubanga Dyilo , 20 October 2006, p. 11; Prosecutor v. Bahar Idriss Abu Garda ,
Case No. ICC-02/05-02/09, Decision on Victims’ Modalities of Participation at
the Pre-Trial Stage of the Case , 6 October 2009, paras. 14 and 15; Prosecutor
v. Jean-Pierre Bemba Gombo , Case No. ICC-01/05-01708, Fourth Decision on
Victims’ Participation , 12 December 2008, para. 103 and Decision on the
Participation of Victims in the Trial and on 86 Applications by Victims to
Participate in the Proceedings , 12 July 2010, para. 47; Prosecutor v. Abdallah
Banda Abakaer Nourain , Case No. ICC-02/05-03/09, Decision on the Participation
of Victims in the Trial Proceedings , 20 March 2014, paras. 36 and 38;
Prosecutor v. Dominic Ongwen , Case No. ICC-02/04-01/15, Decision on Disclosure
of Victims’ Identities , 17 June 2016; Prosecutor v. Al Hassan , Case No.
ICC-01/12-01/18, Decision on LRVs’ Request to Present Evidence and Views and
Concerns , 9 December 2021.

On 3 October 2012, the 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 created a new category of victims: the ones who did
not wish to appear before the Court in person. Only the ones wishing to appear
in person in Court were obliged to submit a detailed application as required
under Rule 89 of the Rules of Procedure and Evidence. The others were still
permitted to register with the Registry through a less detailed process and to
participate in the trial through the Common Legal Representative for Victims,
who voiced the views and concerns of unregistered or unidentified victims.

In the Katanga case, the Trial Chamber authorized a similar procedure,
establishing separate legal counsel for victims in general and for victims who
were child soldiers. This allowed each group to have the best representation
possible and eliminated potential conflicts of interest between the two groups (
Prosecutor v. Germain Katanga , Case No. ICC-01/04-01/07, Judgment pursuant to
article 74 of the Statute , 7 March 2014, para. 34; See also Prosecutor v.
Ongwen , Case No. ICC-02/04-01/15, Observations on the organisation of victims’
legal representation , 6 June 2016).

However, these pragmatic developments, based on the wishes of victims, do not
contribute to clarifying the rights of victims with regards to their
representation before the ICC.


4. REPARATION FOR VICTIMS

Reparation cannot be ordered without a conviction ( Prosecutor v. William Samoei
Ruto and Joshua Arap Sang , Case No. ICC-01/09-01/11, Decision on the Request
regarding Reparations , 1 July 2016, para. 6). As of October 2023, five ICC
cases have reached the reparations stage. The first case to advance to this
point was the Lubanga case in August 2012, followed by the Katanga case in March
2017 and then the Al Mahdi case in August 2017 and finally the Ntaganda case in
March 2021. The Ongwen reparations procedures were opened in May 2021 and closed
on 28 February 2024. Those cases are now closed.

By decision of 7 August 2012 in the Lubanga case, ( Prosecutor v. Thomas Lubanga
Dyilo , Case No. ICC-01/04-01/06, Decision Establishing the Principles and
Procedures to be Applied to Reparations ), the ICC Trial Chamber I first 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, colour, 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.
187-193);

•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 and 196);

 * In combination, these principles favour community rehabilitation projects
   rather than individual compensation.

 * 

The Trial Chamber II added to this outline in its reparations order in the case
of*Prosecutor v. Germain Katanga , Case No. ICC-01/04-01/07, given on 24 March
2017.

 * 

 * The Chamber delineated three types of reparations:
   * 
 * **1. Individual reparation;

 2. Collective reparations aimed at benefiting the community as a whole; and**
    
    3. Collective reparations focused on the individual members of the group.
    
     * 

 * The Chamber further noted that “the modalities of reparations are not
   confined to those set down in article 75(1) of the Statute […] It may
   transpire that other modalities of reparations are appropriate, for instance,
   those of symbolic, preventative or transformative value.” ( Katanga , Case
   No. ICC-01/04-01/07, O rder for Reparations pursuant to Article 75 of the
   Statute , 24 March 2017, paras. 281-297). From these three types of
   reparations, the Chamber gave preference to individual reparations and
   collective reparations focused on individuals, noting in particular the
   importance of individual compensation in affording “personal and symbolic
   acknowledgment of the harm suffered” ( Katanga, Reparations , para. 285).
   However, the Chamber also emphasized that this decision was made in part
   because individual reparation was possible: there were 297 individual victims
   in the Katanga case, which the Court declared would make “individual awards
   feasible” ( Katanga, Reparations, para. 287). For all reparations programs,
   whether individual or collective, the Chamber declared it desirable that
   support be “self-sustaining” to ensure the disbursal of benefits over an
   extended period of time ( Katanga, Reparations, para. 268).
   
   ***

Although focusing on individual rather than collective compensation, the Court
otherwise reaffirmed many of the principles announced in the*Lubanga case. The
Chamber agreed that “reparations should reflect local cultural and customary
practices” and added the caveat that reparations should not reproduce
discriminatory practices ( Katanga, Reparations, para. 268). The Court also
confirmed that reparations should avoid stigmatization ( Katanga, Reparations,
para. 285) and that the victims themselves should perceive the reparations as
meaningful ( Katanga, Reparations, para. 268).

Regarding collective compensation, the Chamber clarified that the “crux of
collective reparations lies in the perceptions of the members of the group who
experience harm,” meaning that victims must perceive themselves as “having
suffered shared harm” in order for a collective award to be appropriate (
Katanga, Reparations, para. 275). However, this requirement does not mean the
group must be vested with a prior collective legal personality ( Katanga,
Reparations, para. 276).

***

5. Appeals

==========

Both the Prosecutor and the defendant(s) may raise an appeal regarding a Trial
Chamber judgment or decision. The same standard of review applies to appeals
from either party (compare the case of*Prosecutor v. Thomas Lubanga Dyiolo ,
Case No. ICC-01/04-01/06 A 5, Appeal Judgment, 1 December 2014 with the case of
Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-02/12 A, Judgment on the
Prosecutor’s appeal against the decision of Trial Chamber II entitled “Judgment
pursuant to article 74 of the Statute” , 7 April 2015). Pursuant to article
81(1) of the Rome Statute, an appeal may raise (i) procedural errors, (ii)
errors of fact, (iii) errors of law, or (iv) any other ground that affected the
fairness of the proceedings or the decision at the level of the Trial Chamber.
Furthermore, pursuant to article 83(2), the Appeals Chamber may only interfere
with the Trial Court’s decision if the error or other ground in question
“materially affected” the decision in question and “[a] decision is “materially
affected by an error of law” if the chamber “would have rendered a [decision]
that is substantially different from the decision that was affected by the
error, if it had not made the error”. ( Situation in the Republic of Philippines
, Case No. ICC-01/21 OA, Judgment on the appeal of the Republic of the
Philippines against Pre-Trial Chamber I’s “Authorisation pursuant to article
18(2) of the Statute to resume the investigation” , 18 July 2023, para. 36; See
also Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No.
ICC-01/04-01/07 OA 8, Judgment on the Appeal of Mr. Germain Katanga Against the
Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the
Case , 25 September 2009, para. 37; Lubanga, Appeal Judgment, para. 16;
Ngudjolo, Judgment on Prosecutor’s Appeal, para. 18). The Appeals Chamber’s
review is corrective in nature and is not de novo ( Prosecutor v. Abdallah Banda
Abakaer Nourain and Saleh Mohammed Jerbo Jamus , Case No. ICC-02/05-03/09-295
(OA 2), Judgment on the Appeal of the Prosecutor Against the Decision of Trial
Chamber IV of 12 September 2011 entitled “Reasons for the Order on Translation
of Witness Statements (ICC-02/05-03/09-199) and Additional Instructions on
Translation” , 17 February 2012, para. 20).

***

a. Procedural Error:

——————–

Allegations of procedural errors may be raised based on events of both pre-trial
and trial proceedings*(Ngudjolo, Judgment on Prosecutor’s Appeal, para.
21).Often, claims of procedural errors allege that the Trial Chamber has abused
its discretion. An abuse of discretion occurs when “the decision is so unfair or
unreasonable as to ‘force the conclusion that the Chamber failed to exercise its
discretion judiciously’” (Prosecutor v. Ukuru Muigai Kenyatta, Case No.
ICC-01/09-02/11 OA 5, Judgment on the Prosecutor’s appeal against Trial Chamber
V(B)’s “Decision on Prosecution’s application for a finding of non-compliance
under Article 87(7) of the Statute” , 19 August 2015, paras. 22-25).

B. ERROR OF FACT:

The Appeals Chamber will not interfere with the Trial Chamber’s factual findings
unless the Trial Chamber committed a clear error. The Appeals Chamber will not
disturb a Trial Chamber’s findings of fact merely because it would have reached
a different conclusion. ( Situation in the Republic of Philippines , para. 41;
See also Prosecutor v. Abd-Al-Rahman, Case No. ICC-02/05-01/20 OA12, Judgment on
the appeal of Mr Ali Muhammad Ali Abd-Al-Rahman against the decision of Trial
Chamber I of 17 February 2023 entitled “Decision on the admissibility of video
(DAR-OTP-0216-0119) and records of telephone calls (DAR-OTP-0216-0127,
DAR-OTP-0216-0128)” , para. 22 and Prosecutor v. Bosco Ntaganda, Case No.
ICC-01/04-02/06-2667-Red (A3), Judgment on the appeal of Mr Bosco Ntaganda
against the decision of Trial Chamber VI of 7 November 2019 entitled ‘Sentencing
judgment’ Judgment, 30 March 2021, paras. 27-29.)The Appeals Chamber has
clarified that a “clear error” may include a misappreciation of facts, taking
into account irrelevant facts, or failing to take into account relevant facts.
(Kenyatta, Judgment on Prosecutor’s Appeal, paras. 22-25). The ultimate test is
whether the Trial Chamber “could have reasonably reached the contested
conclusion” ( Lubanga, Appeal Judgment, para. 21). Finally, the Appeals Chamber
recalled that an “appellant is obliged to set out all the alleged errors in the
appeal brief and “indicate, with sufficient precision, how [the] alleged error
would have materially affected the impugned decision”. ( Situation in the
Republic of Philippines , paras. 38, 52 and 55).

C. ERROR OF LAW:

The Appeals Chamber will not defer to the Trial Chamber on questions of law.
Instead, the Appeals Chamber will “arrive at its own conclusions as to the
appropriate law” ( Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10
(OA 4), Judgment on the Appeal of the Prosecutor Against the Decision of
Pre-Trial Chamber I of 16 December 2011 Entitled “Decision on the Confirmation
of Charges”, 30 May 2012, para. 15; and Lubanga, Appeal Judgment, para. 18).
However, as with errors of procedure or fact, the Appeals Chamber will only
intervene if the error of law “materially affected” the decision.

D. APPEALS ON OTHER GROUNDS:

An appeal can also be brought on the grounds that a particular decision or
judgment is unfair in a way that affected the reliability of the decision or
sentence. To satisfy the Appeals Chamber on these grounds, two conditions must
be met. First, the appellant must set out the exact ways in which the
proceedings were unfair. Second, the appellant must demonstrate how the unfair
nature of the proceedings “affected the reliability” of the decision (Prosecutor
v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 A, Judgment on the appeal
of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s “Judgment pursuant to
Article 74 of the Statute”, 8 June 2018, para. 62).

***

The Appeals Chamber may also review sentences, which it will only amend if the
sentence imposed by the Trial Chamber is “disproportionate” to the crime
(*Lubanga , para. 39, cited with approval in Bemba, Appeal Judgment , para. 21).

@ www.icc-cpi.int

https://www.icc-cpi.int/cases

 * 

 * Trust Fund for Victims: https://www.trustfundforvictims.org
   
   Coalition for the ICC: https://www.iccnow.org

**For Additional Information:*

**

***

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ARTICLE ALSO REFERENCED IN THE 6 FOLLOWING CATEGORIES :

 * Human Rights (37)
 * International law (32)
 * Recourse (26)
 * Responsibility (12)
 * Sanctions (26)
 * United Nations (UN) (27)

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