From: Barton Legum editor, kmational Litigation Strategies and Practice (2005)
The creation of the International Criminal Court (ICC or the Court)-the
world's first permanent tribunal for genocide, war crimes, and crimes against
humanity-raises enormous hopes that the perpetrators of the worst interna-
tional uimes will at last be punished when national courts are unable or u n d -
ing to act. Whether the ICC is able to fulfii these expectations depends most
fundamentally on the nearly 100 governments that have joined the ICC. These
countries d have to sustain an.extraordinarylevel of commitment by adequately
funding and staffing the Court, by cooperating fdly in investigations, by assisting
in the apprehension of suspects, and by remaining vigilant in their oversight and
The ICC's prospects also depend on the lawyers who wiU appear before it. For - ----- ----- --- -
these lawyers, the experience of practicing before the ICC promises to be uniquely
rewarding and challenging. However, if lawyers do not maintain the highest levels
of competence and professionalism, then the ICC d be diminished and its
critically important mission hindered. Never before have such broad goals relating
, . t a - - i r r t m . a ~ B ~ . p a c B ~ ~ +,WBd '.*F.P~Fm~mree3p;tlftlfc'~cg~:
community's professional obligations.
This chapter will provide a basic understandmg of ICC practice and proce-
dure. The focus w d be on issues of concern to counsel iriterested in appearing
before the ICC, which is now fully operational. The primary rules and q u l a -
tions have been promulgated, the Court's Prosecutor, Registrar, and 18 judges
have been klected, and several hundred staff have been h i d (with more to
come). Moreover, following state referrals, the ICC..'.,P m s ; ~ t ~ ; , ~ ~ o ~ ~ $. B u l :
,- 9 .'c'=.' ,..
' ' ' --
mid-2004 the launch of ~ ~ ~ ~ ~ u ~ ~ ; , ~ f L c i t . ~ w o ~ ~ f d r ~ ~ & t r k s t 1 ~ a t i 6 n s ~ r n
*The author thanks Elise Groulx, John Washburn, and Ken Gallant for valuable comments on an
256 CHAPTER 20
Uganda and in the Ituri region in the Democratic Republic of the Congo (DRC).
In June 2005, following the frtst Security Council referral, the ICC Prosecutor
announced an investigation into the situation in Darfur, Sudan. The legal com-
munity therefore must be ready to meet the challeng&spresented by the Court.
@ THE ICC I S DIFFERENT
The ICC represents a historic achievement: Never before has there been a per-
manent tribunal for genocide, war crimes, and crimes against humanity. In addi-
tion, many aspects of the ICC are unique, including the broad rights afforded to
victims; the conscious effort to make the ICC restorative and not wholly retribu-
tive; the deliberate efforts to ensure a diverse set of judges; and the influential
role of nongovernmental organizations.
Another distinctive feature is the ICC's fundamental design as a court of last
resort that can act only when a legitimate national court is unavailable. This
bedrock principle of "complementarity" permits a series of pretrial motions by
an accused or interested states designed to test the willingness and ability of
national courts. The factual question of whether a national court is willing
and able to prosecute is not one that international courts have previously faced.
Moreover, bringing the cases arising from the Uganda, DRC, and Darfur investi-
gations wiU be unusually clficult. The events in question allegedly occurred
thousands of miles from the seat of the Court in The Hague, in remote geo-
graphical areas, where linguistic complexities make communication with victims,
wimesses, and defendants dacultZ and where there is scant experience of an
independent judicial system.
For American lawyers, the ICC is unique in another sense. Although the U.S.
government had a critical role in creating every other international criminal tri-
, strongly opposes the ICC and, since 2002, has waged an anti-ICC diplo-
b ~ n a lit ~
matic campaign. This campaign arises in part from legislation that prohibits any
assistance to the ICC and that authorizes an invasion of The Hague under
certain circumstance^.^ Moreover, the U.S. has engaged in a worldwide campaign
to pressure every country to sign bilateral agreements undermining the ICC's
jurisdicti~n.~ a result, although U.S. lawyers are expected to appear in ICC
,proree&gs-.indeeedi G-rccePrr58eei:iif h..~Pha-gd.s;:fdi-e; '-u;~:~f;-J-';;~-'p;;;~-
cutor to lead the investigation in Northern Uganda-the government's con-
tinuing hostility toward the ICC may affect private U.S. lawyers in their deahgs
with the Court.
The documents that govern the substantive and procedural law of the ICC6
The Rome Statute of the International Criminal Court .(Rome Statute)'
i l l. .
The Rules of Procedure sd~:Egiden$e (RP/B)B. r
' ' .
. ' . . .
The Elements of Crimesg
. _ ._.:., . . .
The Regulations of the Court ,(Regulations)l0
The Code of Professional Conduct for counsel (draft Code of Conduct)"
The International Criminal Cowt: An Overview 257
These are the ICC's constituent document^.'^ Together they form the basis for
practice before the ICC and in effect create a new model for international crimi-
nal litigation. Before a description of how this model will operate, however, a
brief summary of how the ICC was created is in order.
@ PRELUDE T O THE CREATION OF T H E ICC
For more than four decades after the successes of the World War I1 war crimes
tribunals at Nuremberg and Tokyo, international c1 a
- tribunals were consid-
ered either ineffective, undesirable, or impractical, primarily due to Cold War
divisions.13 It was not until 1989 that, almost sidtaneously with the fall of the
Berlin Wall, Trinidad and Tobago introduced a proposal in the General Assembly
to create a permanent criminal court for drug trackers. The General Assembly
responded by requesting the International Law Commission (LC) to study the
issue and, in 1992, called upon the ILC to draft a statute for an International
Criminal Court "as a matter of urgen~y."'~
As the ILC considered the ICC statute, the eruption of atrocities in Europe and
Africa abruptly changed the international legal landscape. Evidence of genocide
and other crimes in the former Yugoslavia led the UN Security Council in 1993 to
create the International Criminal Tribunal for the former'Yugoslavia (ICTY)." Less
than two years later, the horrific genocide in Rwanda led to the Security Council's
creation of the International Criminal Tribunal for Rwanda (ICTR).16 The ILC
drafted statutes for both tribunals; as a result, there was suddenly a viable model
for how an international criminal tribunal could be constituted.
In late 1994 the ILC submitted to the General Assembly its draft statute for
the ICC.17 This draft served as the basis for negotiations among the diplomats,
legal speciahts, and nongovernmental organizations that met at UN Headquarters
in New York from early 1995 through April 1998 to debate the proposed court.
During these years of debate, the ICTY and the ICTR developed into respected
institutions,l8 demonstrating that international criminal tribunals were legitimate
and effective, and issued an impressive body of law regarding substantive and pro-
cedural international criminal law. As a result, the ICC negotiations accelerated
much faster than had been anticipated, culminatingin anintensj~e five-week diplo-
matic conference in Rome, Italy. At the conclusion of the conference, on July 17,
1998, the Rome Statute of the International Criminal Court was adopted.
After receiving the requisite 60 ratifications in less than four years, the Rome
Statute entered into force on July 1, 2002. As of June 2005, 99 countries have rat-
ified or acceded to the Rome Statute, and 139 countries have signed the Statute.
This section describes the primary institutions created by the Rome Statute:
(1) the Assembly of States Parties; (2) the Presidency; (3) the judicial Divisions for
258 CHAPTER 20
Appeals, Trial, and Pre-Trial proceedings; (4) the Ofice of the Prosecutor; and
(5) the Registry
Assembly of States Parties B$
The governance, budget, and oversight of the ICC is entrusted to the Assembly
of States Parties (ASP). Each state party to the Rome Statute has one representa-
tive in the ASP, which meets at least once per year in The Hague.19 The ASP'S
proposed budget for the ICC for 2004-2005 totals nearly 70 million Euro~.~O
The ASP has ultimate authority over the operational organs of the ICC, and
if the Court is going to function effectively, the ASP must effectively execute
these functions. Among other duties under the Rome Statute, the ASP elects
judges, decides the Court's budget, and exercises :'management oversight" over
the other organs of the C o ~ r t . TJGs includes the ability to remove from office
any judge, the Prosecutor, or the Registrar for "serious misconduct or a serious
breach of hls or her duties."2z The ASP also has a legislative function that
indudes approving the Court's constituent documents.
The Presidency consists of three judges-the President and First and Second
Vice-Presidents-who are elected by a majority of the Court's judges. They serve
for three-year terms and can be reelected once. The Presidency is responsible for
"[tlhe proper administration of the Court, with the exception of the Office of the
Prosec~tor."~~ Court's first President, elected by the judges in February 2003,
is Philippe Kirsch of Canada.
The ludges: Pre-Trial, Trial, and Appeals Divisions
The Court's judicial functions are carried out by the Pre-Trial, Trial, and Appeals
Divisions, each of which operate through chamber^.^? The Appeals Division con-
sists of the President and~fourother judges, and all five comprise the Appeals
chamber. The Trial and Pre-Trial Divisions must be at least six judges each, and
these Divisions function through Chambers ~ . three judges. Most functions -.., ., . of e - .
cg~'ibz ~ $ . i ; i n $ " a single judge, ",.~.,..~..--..-...-..,.....~.*~~~.-:.~-.'~
the- pre-tf'd-.c$gfi;iB&f ~ d~y 7.,,c-.
except that requests
for authorization of an investigation and r u h g s regarding adrnissibdity and juris-
diction must be decided by a three-judge Chamber. The Trial and re- rial Divi-
sions must be predominantly judges with criminal trial experience.
The 18 judges who serve on the three Divisions were elected by the ASP in
February 2003 from two lists: (1) "List A" candidates, who had established
competence m criminal law and procedure as judge, prosecutor, or advocate
or in a similar capacity in criminal proceeclmgs; and (2) "List B candidates,
who had established competerifk! ih rel;t;ant areas of international law such
as international humanitarian law and the law of human rights.25 The first
18 ICC judges of the ICC, who are serving staggered nine-year terms, are listed
The International Criminal,Court: An Overview 259
Name Nationality Term of Office
Maureen Harding Clark Ireland 9 years
Fatoumata Dembele Diarra Mali 9 years
Adrian Fulford United Kingdom 9 years
Karl T. Hudson-Philhps Trinidad and Tobago 9 years
Claude Jorda France 6 years
Elizabeth Odio Benito Costa Rica 9 years
Georghios M. Plkis Cyprus 6 years
Tuiloma Neroni Slade Samoa 3 years
Sang-Hyun Song Republic of Korea 3 years
Sylvia Steiner Brazil 9 years
"List B" judges
Rene Blattmann Bolivia 6 years
Hans-Peter Kaul Germany 3 years
Philippe Kirsch Canada 6 years
Erkki Kourula Finland 3 years
Akua Kuenyehla Ghana 3 years
Navanethem Pillay South Africa 6 years
Mauro Politi "taly 6 years
Anita Usacka Latvia 3 years
Office of the Prosecutor (OTP)
The Office of the Prosecutor (OTP), which is headed by'the Prosecutor, must "act
independently as a separate organ of the Court" and is responsible for receiving
referrals and other information on crimes within the Court's jurisdicti~n.~~ The
Court's fxst Prosecutor, Luis Moreno Ocampo of Argentina, was administered the
solemn undertaking on June 16, 2003. The Deputy Prosecutor, Serge Brarnmertz
of Belgium, was elected by the ASP on September 9,2003. Prosecutor Ocampo's
term is nine years and Deputy Prosecutor Brammertz's term is six years." In
November 2004, the _ASP elected Fatou~ensoudaof The Gambia to a nine-year.
. . fe?-K. ,D6. -,..
i-i . __ :.__.__- _
puty Prosecutor (Prosecutions).
,- -._ >.,,...
~ --:, - . .
i,.- -. ' ' ' '
The Prosecutor has unique authority-the first such person to be given
such authority-to initiate an investigation anywhere.in the world if it appears
that there is a reasonable basis to believe a crime within the ICC's jurisdiction
has been committed. This is the Prosecutor's proprio motu power to act
independently to launch an investigation. This authority is circumscribed,
however, because before the investigation can proceed he is required to seek
authorization from the Pre-Trial Chamber, which must dq.tprzghe.. . .. tha~c
there is a reasonable basis~,:oiqto~~,.ed.~:d"d& cade is within the Court's
; ,: ?. :. juri6dic-jon:
The OTP will not have the resources to prosecute every violation of interna-
tional criminal law. Instead, it is assumed that the OTP will. be monitoring up to
260 CHAPTER 20
eight "situations" and that the Court's active docket will consist of three or four
situations focusing on "the most significant perpetrator^."^^
The Regis try
The Registry is responsible for the nonjudidal aspects of the administration of
the The Registrar heads the Registry and is "the principal administrative
officer of the Court," operating under the authority of the ICC P r e ~ i d e n tThe
Registrar is elected by a majority of the judges, taking into account the ASP'S rec-
ommendation. In May 2003, Bruno Cathala of France was elected to a renewable
flve-year term as the ICC's first Registrar.
For lawyers, the Registrar exercises a si@cant amount of authority. It is the
Registrar who promulgates the qualifications for counsel appearing before the
Court and maintains the list of counsel from which representation for indigent
persons is selected. The Registrar also controls the fund; that are paid to counsel
and is in charge of ensuring that conditions for defense counsel are sufficient.
These critical duties of the Registrar are discussed in the following sections.
@ QUALIFICATIONS O F COUNSEL
Counsel seeking to appear before the ICC need not obtain any special ICC
license, and there is no rule that restricts the right to practice before the ICC to
citizens of state parties. However, there are qualifications that all counsel must
possess. The RPE and the Regulations3' require that counsel meet the following
Established competence in international or criminal law and procedure;
At least ten years' experience as a judge, prosecutor, or advocate or in a
similar capacity in criminal proceedings;
. ~.~ .
No serious criminal convictions or disciphary offenses that would
be "incompatible with the nature of the office of counsel before the
Fluency in English or French.
by, the :. .,. . to. indigent
. . . - . . . ~ ~.
re.4 nI.fe.m . - . ~- -
EEfics. ...,... ._ . .
, ,i~ ,..>=. .: : '
, , - '
defendants and to counsel chosen by persons exercising their right to choose their
legal counsel.32 They also apply to counsel acting on behalf of persons under
investigation, victims, witnesses, and states.
The decision as to whether an individual lawyer meets these standards is left
to the Registrar, who must maintain a list of counsel authorized to act before the
If a person is in need of legal assistance before the Court, the Registrar
will consult the list and select counsel. Similarly, ,lf.
sented by a. lawyer.not~om.the'list, that lawyer must apply and be named to the
list before undertaking the representation. Any lawyer considering appearing as
counsel before the ICC, therefore, must be on the Registrar's list of counsel. To
be eligible, the following documents must be submitted:
The International Criminal Court: An Overview 261
An application form provided by the Registrar, showing the q ~ ~ c a t i o n s
set forth above;
A certificate of good standing and a certificate from the "relevant author-
ity" of the applicant's home country stating whether there has been any
Copies of the applicant's curriculum vitae, birth certificate, identity card,
passport, and private and professional insurance policy, and two photo-
graphs of the applicant.34
The documents should be sent to:
Registry of the International Criminal Court
Division of Non Administrative Services under the Registrar's Responsibility
PO Box 19519
2500 CM The Hague
Upon receipt of the lawyer's application, the Registrar must establish whether the
relevant q ~ ~ c a t i o have been met and then notlfy the applicant. The Registrar
also has the power to remove or suspend a lawyer from the list for misconduct or
professional malfea~ance.~~ application is refused, the Registrar must pro-
vide reasons and information on how to apply for a review of the denial from the
Pre~idency.~~of July 2004, 48 lawyers had declared that they wished to be
included on the list.37
The Registrar is also required to maintain a separate list of "duty counsel"
who are available at any time on short notice to represent a person or the inter-
ests of the defense. Circumstances where the appointment of a duty counsel may
be necessary include urgent situations when a person has not yet secured repre-
sentation or where counsel is ~navailable.~~ A Chamber may also appoint counsel
"where the interests of justice so require."39
In connection with the appointment of duty counsel, the Registrar is also
required to establish and develop an Office of Public Counsel (OPC) for the
defense, which shall protect the rights of the defense during the initial stages of
the investigation. Although the OPC is within the Registrar's ambit for adminis-
trative purposes, it "otherwise shall function as a wholly independent office."
Counsel and staff members of the 0PC "shall-act independently."40.
A lawyer who does not qualify for inclusion on the list of counsel can be a
member of a defense team as a consultant or investigator or in a similar capacity.
The Registrar has also created lists of quaMed assistants, experts, and investiga-
tors who can be consulted by defense teams.
@ INEQUALITY OF ARMS?^'
The most glaring omission from
ariite digah 'for the defense. The delegates at the 1998 Rome Conference never
seriously considered establishmg an Ofice elf the Defense as a foundmg organ of
the Court. In a tacit recognition of thls deficiency, the RPE, the Regulations, and
262 CHAPTER 20
the draft Code of Conduct attempt to ehure a greater degree of institutional
support for the defense.
The primary responsibility for ensuring that defense counsel have adequate
resources rests with the Registry, which is required to
Facilitate the protections of attorney-client confidentiality;
Provide support, assistance, and information to all defense counsel and
any necessary support for investigators;
Assist accused or arrested persons in obtaining legal advice and the assis-
tance of counsel;
Advise the Prosecutor and Chambers on defense-related issues;
Ensure the "professional independence of defence counsel";
Provide the defense with necessary facilities; and
Facilitate the disserninatlon of information and case law to defense coun-
sel and promote training of lawyers.42
These functions are all necessary, but it remains to be seen whether the inde-
pendence and integrity of the defense can be maintained by having the Registry
be the main guarantor of the rights of defense counsel.43Defense counsel at the
ICTY and the ICTR have experienced great difficulty in their experiences with
the Registrat. The Office of Public Counsel, which is to be an "independent
office," appears to be an effort to avoid the problems that arose at the ICTY and
the ICTR. ow ever, it is not apparent that the OPC is really intended to be the
strong institution needed to guarantee equality of arms for the defense. Notably,
the proposed budget for 2004-2005 does not include any funds for the OPC.
Moreover, although the Regulations caU for the OPC to be "independent,"
recent Court documents concerning the budget appear to focus the Registry's
support for counsel in the Defense Support Section. A better approach, proposed
by a leading nongovernmental organization, would appear to be to use the
Defense Support Section as the vehicle for assessing lawyers' qualifications and
maintaining the list of counsel and to transfer the'Registrar's defense counsel
duties to the OPC."
To fill the gap created by the Rome Statute's failure to create an Office of
Defense, a group of lawyers created the International Criminal Bar (ICB) in 2002.
The ICB is intended to be the voice. for .the. legd,pr.ofessi~nat
? - -
role to the Court, and to guarantee the independence of the legal pro-
fession at the ICC. Among other activities, the ICB drafted a proposed Code of
Conduct, which was presented to the Registrar in February 2003.
The ICB accepts both individual and collective members, and the American
Bpr Association joined as a collective member in August 2002. The contact infor-
mation for the International Criminal Bar is
BPI / ICB / CAP1
725975 'XM The Hague
Tel: +3 1-70-326-8070
Pax: +3 1-70-335-3531
The International Criminal Court: An Overview 263
Web site: http://www.bpi-icb.org
@ JURISDICTION AND "ADMISSIBILITY99
The scope of the ICC's exercise of jurisdiction is limited in several critical.
respects. Indeed, these restrictions are so onerous that it is probable that it will
handle cases only if the country where the crimes occurred consents. As dis-
cussed below, these limitations may provide a basis for multiple pretrial motions
by defense counsel and other interested parties. The key limitations on jurisdic-
tion are discussed below.
Absolute Jurisdictional Barriers
The most si@cant barrier is that the ICC has jurisdiction only with respect to
crimes committed afier July 1, 2002, the date the Rome Statute entered into
force.45Any uirne committed before July 1, 2002, is outside its jurisdiction. In
addition, the Court has jurisdction only over "natural persons," not over corpo-
rations or instit~tions.~~ the ICC lacks jurisdiction over anyone under the
age of 18 at the time of the alleged ~ i r n e . ~ '
The rigorous state consent requirement must be satisfied unless the case is
referred to the Court by the Security Council.48As a result, when an investigation
is initiated by the Prosecutor proprio motu or by a state party referral, the Court
can exercise jurisdiction only if it has obtained the consent of either (1) the terri-
torial state or ( 2 ) the state of whch the person accused is a national.49For these
purposes, "consent" for state parties means the act of ratification and for non-
state parties means the f h g of a declaration with the Registrar accepting the
Security Council Deferral
The Security Council has the power to stop any ICC investigation or -trial.
Under artlcle 16 of the Rome Statute, the Security Counul can defer for renew-
able 12-month periods any investigation or prosecution by adopting a resolution
under Chapter VII of the UN Charter.
Even if the above hurdles are overcome, the case must stiU b52$&.,$blq," vykg~h
raises the question of whether a ngtional court is & d i n g or unable to handle
the case. A case,is inad-sible if
The case is being investigated or prosecuted by a state with jurisdiction,
unless that state is "unwilling or unable genuinely to carry out the investi-
gation or prosecution";
264 CHAPTER 20
A state with jurisdiction has investigated and decided not to prosecute,
unless the decision not to do so "resulted from the unwihgness or inabil-
ity of the State genuinely to prosecu;e";
The person accused has already been tried for the crimes in question; or
The case is "not of sufficient gravity to just@ further action by the
Admissibility issues are addressed almost immedrately. Once the Prosecutor opens
a formal investigation, any state has one month to inform the Court "that it is
investigating or has investigated," and the Prosecutor "shall defer to that State's
investigati~n."~~deferral can be reviewed %y the Pre-Trial Chamber in six
months if the state .appears unwilling or unable to genuinely investigate, but the
mandatory narure of the deferral represents a siWcant hurdle.53 In addition,
either the Prosecutor or the state involved is entitled to appeal to the Appeals
Chamber any adverse decision as to adrmssib1lity.5~
Even after resolution of the admissibihty issue at this stage, the ruling is con-
sidered only "preliminary" and a person accused of a crime, a state with jurisdic-
tion, the territorial state, or the Prosecutor can bring a motion challenging the
admissibility of a case, as long as the hotion raises different grounds or there has
been some change in circ~rnstances.~~ challenge for the Court will be to
expeditiously resolve these admissibility motions while preserving the rights of
the interested parties to be heard.
@ SUBSTANTIVE LAW OF THE ICC
The subject matter jurisdiction of the ICC encompasses three crimes: (1) genocide,
(2) crimes against humanity and (3) war crimes. A fourth crime-the "crime of
aggression"-is listed in the Rome Statute but with the siM1cant caveat that the
ICC shall have no jurisdiction over aggression until the next Review Conference
in 2009, and then only if seven-eighths of the ASP can. agree on a definition and
conditions for exercising jurisdiction over aggres~ion.~~
The definition of genocide, taken almost verbatim from the Genocide Con-
vention, defmes genocide as lulling and other acts "committed with intent to
\ e~ ~~~ or
d e s ~ o ~ - i n - - . u r h o lpart,oa .national,,etbjs:d,,.raa.d. r e & g j . ~ ~ ~ g ~ o u p ~ ~ ~ . ~ ' .
.. ,, ,,
Crimes against humanity must be committed "as part of a widespread or sys-
tematic attack directed against any civilian population, with knowledge of the
atta~k."~" addition, the attack must involve a "course of conduct involving the
multiple commission of acts . . . pursuant to or in furtherance of a State or orga-
nizational policy to commit such attack."" The Statute lists eleven categories of
acts that can constitute crimes against humanity, which expands the definition
found in the ICTY statute. For example, the types of persecution that could be
considered a crime against humanity are! broad, and ;include pees&iiiti~ri
,.. ..?i .-. .
.i;i . . .
"any identifiablegroup y6r tollecf.i$ifl'. ': [on ariy] grourids that are universally
recognized as impermissible under international law."
The categories of war crimes are also broad..They include grave breaches of
the Geneva conventions of 1949; other serious violations of the law of interna-
The International Criminal Court: An Overview 265
tional armed conflict; violations of common artide 3 of the Geneva Conventions
pertaining to noninternational armed conflict; and any other serious violations of
the law applicable in noninternational armed conflicts. A si@~cant limitation,
however, is that the ICC can have jurisdiction only overwar crimes "committed as
part of a plan or policy or as part of a large-scale commission of such crimes."60
Al three crimes must be committed with "intenrand kn~wledge."~~ A person
can be liable either individually or with another; as an aider and abettor; or as
one who orders, solicits, induces, or contributes to the commission of a crime.62
In addition, the ICTY has approved the concept of "joint criminal enterprise," so
it is possible the ICC may incorporate this concept.
The Prosecutor rightly emphasizes the OTP's intention to "only prosecute
those bearing the greatest responsibdity"6' As a result, it is likely that the provi-
sions on command responsibility will assume ~ i ~ c a n cUnder artide 28 of the
Rome Statute, a military commander, or a civilian acting as a commander, is
criminally liable for the actions of subordinates if the commander knew or
should have known of the crimes and failed to take all reasonable and necessary
measures to stop such crimes.
@ THE ROLE OF VICTIMS
The prominent role afforded to of international crimes is one of the
Rome Statute's most innovative features. Victims' roles encompass two primary
aspects: the right to attend and participate in ICC proceedings and the right to
Participation in Proceedings
Generally, the Court isrequired to permit the views of victims to be "considered
and presented at any stage of the proceedmgs when "the personal interests of
the victims are Indeed, submissions by victims are authorized from
the beginning of an investigation, and when the Prosecutor submits to the
Pre-Trial Chamber a request for authorization, only victims are specifically
authorized to "make representations to the Pre-Trial Chamber."66Victims also are ,.".,.- . ,
,>;, ,-, .'<"
.r,.s-'p-'i.. !. . ..~,. . '. .
'...-. .' -
pvrmittdto suBmt oT5servat1ons" to the Court in any proceedings relating to
jurisdction or admi~sibility.~~trial, victims, or lawyers acting on their behalf,
are permitted to make submissions, attend proceedings, and question witnesses.
The judges have considerable leeway in controlling the participation of
victims. Victims must make a written application to the Registrar,who transmits
the application to the relevant Chamber, the Prosecution, and the defense. The
Chamber may reject the application if the applicant is not a genuine victim, if the
victim's personal interests are not affected, orifthe. righe:o@~&@:~&~&~~~$i$~:B$
trial would be prej~diced:~,~,A Chamber also has the power to confine a victim's
partiti'p&ion or questioning of witnesses to written form.6'
Victims have a right to counsel, although a Chamber also has the right to
require a "common legal representative" for groups of victims.70The primary
266 CHAPTER 20
conduit for counsel acting on behalf of victims will be the Witnesses Protection
and Victims Participation Section within the Registry, whlch has two primary
tasks: (1) providmg protection and security to withesses and victims that appear
before the Court and to others who may be endangered as a result of a witness's
testimony; and (2) developing and implementing a system of reparations. The
ASP has allocated funds for a "Unit for Victims" within the Office of the Prose-
cutor to advise investigators with regard to taking statements from traumatized
persons, especially children and victims of sexual assault.
The ICC is the first international uiminal court with the power to order one indi-
vidual to pay compensation to another. Reparations include "restitution, com-
pensation and rehabilitation," and the appropriateness of reparations is decided
following a conviction. However, after an arrest warrant has been issued for a
person, victims' counsel can also seek to preserve assets of the accused that may
be available for reparations, particularly through forfeiture proceedings in coop-
eration with the relevant state.71
In another unique step, the Rome Statute creates an institution through
which reparations can be paid: the Victims Trust Fund, which is administered by
the Registry but supervised by an independent Board of Directors. The Trust
Fund accepts contributions from individuals, organizations, and corporations, as
well as money and property collected through fines and forfeitures imposed by
the ICC. The members of the Victims Trust Fund Board, elected by the ASP in
September 2003, are Queen Rania Al-Abdullah of Jordan; Archbishop Emeritus
Desmond Tutu of South Africa; Mr. Tadeusz Mazowieclu, former Prime Minister
of Poland; Dr. Oscar Arias Sanchez, former President of Costa Rica; and Madame
Simone Veil, former President of the European Parliament. The Court may order
that a reparations award '%be made through the Trust Fund."72
The Court is required to "take account" of representations from victims
(hectly or through counsel) before awarding any reparation^.^^ Before ordering
such reparations, the Court may consider "representations from or on behalf of
the convicted person, victims, other interested persons or interested States."74
- . ~ ~ X ~ . C ~ ~ & X S ~ ~ S S . ~ ~ ~ ! F ~ E,~@ , ~ , F ~ ~ P - F ~ . S,,.,..... ~ U .S ~-,..,,>.-.,..,,
.,w$t@gy ,tsc .",..:&.. ,.. . .
.be ~ E submitted the Reg-
istrar. In any hearing on reparations, counsel for victims is entitled' to question
witnesses, experts, and the person ~oncerned.'~
@ OTHER ISSUES FOR C O U N S E L
This section hghlights several critical areas that counsel should consider during
the course ,of an investigation and trial.
. . ., . .
~ . ,.< ' . !
~ i ~ h of s Accused
The rights of the accused are set forth in articles 66 and 67 of the Rome Statute.
Generally, everyone is presumed innocent and the Prosecutor must prove guilt
The International Criminal Court: A n Overview 267
beyond a reasonable doubt. With the exception of the right to a jury trial, the
rights are consistent with the U.S. Bl of Rights, and include the right to counsel,
the right to examine witnesses, and the right to remain silent. A majority of the
Trial Chamber is required for a decision, whch must be in writing and must
contain a full exposition of the Trial Chamber's findmgs.
During the investigation stage, the Rome Statute provides a number of guar-
antees: the right not to incriminate oneself' or to confess g d t ; the right not to be
subjected to coercion, duress, or threats; and the right not to be subject to arbi-
trary arrest.76A target or subject of an investigation has the right to remain silent;
a right to legal assistance; and the right to be questioned only in the presence of
A written record of interviews, signed by the interviewee and the person
asking the questions, is required for all investigatory interviews. If the person
being interviewed is an accused person, then the interview must be audio- or
video-recorded. During the investigatory stage, the Prosecutor must investigate
"incriminating and exonerating circumstances equally."78
Arrest, Confirmation, and Trial
A single judge of the Pre-Trial Chamber may issue an arrest warrant if the Pros-
ecutor's application shows that there are reasonable grounds to believe the person
committed a crime within the ICC's jurisdiction and an arrest appears necessary.
In urgent cases, the Court can order the "provisional arrest" of a suspect. Alter-
natively, if a person does not constitute a fhght risk, the Pre-Trial Chamber can
issue a summons requiring the person to appear.79
Within a "reasonable time" after the person's surrender or voluntaryappear-
ance, the Pre-Trial Chamber must conduct a hearing to confirm the charges. The
purpose of the hearing is to determine whether &ere is "sufficient evidence to
establish substantial grounds to believe that the person committed each of the
crimes charged."80The Prosecutor must provide to defense counsel before the
hearing the evidence upon which the Prosecutor will rely. Counsel for the person
charged must be present at the hearing, but if the person has waived the right to
be present or has fled, the Court can conduct the confirmation hearing without
the presence of the person being charged (although counsel may st111 attend).
f iiC;"gGsea; ig---.~;;iidency
.h"5ii:F"bT2"n"n."n ; ; ; ; ; ; ; ; = . - . ; ; ; '
- ..,~dme..t.19-P.,.,,rhrhg 'a ' ' ' ' ' .
. .. .. . . . .~~
Trial Chamber that then becomes responsible for all further proceedings. The
Trial Chamber must promptly conduct a status conference in order to set a date
The Trial Chamber also may "rule on the admissibdity or relevance of
evidence" and must "give reasons for any rulings it makes on evidentiary
matters."82 The only guidelines seem loose by common law standards: The
Court is permitted to consider "inter aha, . the p;gb?tivei, v3$y4:<$f~!.$~~~@~@&~&
. . . .
: ", '
and any,, : e j ~ , & ~ e ; ~ . ~ te~idence
p . ~ s u c h may cause a fair Evidence obtained
. , . . , .inviolation of the Rome statute or human rights standards can be excluded if
the violation affects the reliability of the evidence or if admitting it would
seriously damage the integrity of the proceedings. There is no rule against
admission of hearsay.
268 CHAPTER 20
The Trial Chamber must also provide for disclosure of documents to defense
counsel sufficiently in advance to enable adequate p r e p a r a t i ~ n The materials
subject to disclosure include names of testimonial witnesses; any prior witness
statements; and any books, documents, or objects in the Prosecutor's control that
are relevant to the defense o r that will be used by the Prosecutor as evidence. The
defense must disclose or permit inspection of similar materials." One important
exception to the Prosecutor's disclosure obligations could present a problem for
defense counsel. Under article 54(3)(e) of the ~ o ' m e Statute, the Prosecutor can
refuse to disclose information obtained on the condition of confidentiality if the
party that provided the information does not consent. This provision is designed
to protect sensitive intelligence Information that is received from a government.
Any lawyer privileged to practice before the International Criminal Court wdl
have the unusual opportunity to contribute to a designed to advance
international peace and security while also serving the hghest ideals of the legal
profession. The ICC, however, also represents a daunting challenge. Its proce-
dures are novel and untested, its upcoming cases are complex and highly time
consuming, and the commitment of the governments that have promised to sus-
tain the Court may fade. The ICC, however, must succeed in its critically impor-
tant mission. If it is to do so, then the lawyers practicing before the ICC must rise
to the challenge and the Court itself must ensure that counsel are given sufficient
independence and resources to ensure that the rights of the accused, victims, and
witnesses are fully protected.
1. Concerns have already arisen. In August 2004, the ICC's Committee on Budget and Finance
reported that as the operations of the Court increase, there is a danger that the Court could
: . . -.r>m..,.*,. ",",,..,7........, >~*...,-,,..~,,..,..,,...: ...,.......,..-,....-.y.
,,-:-,.. .- -7.... .-.F. . . ~. . .
ace a cash crisisdue to nonpayment by States Parties."
2. Counsel practicing before the ICC w d be confronted with daunting problems of translation
and language, especially considering that the first cases will come from the Ituri region of the
DRC and Uganda. The Prosecutor is provided with a Language Services Unit, and as to doc-
uments that may be trial exhibits, the ASP has called for the creation of a "common revision
service" withn the Registry. A judgments of the Court as well as any "decisions resolving
fundamental issues" are required to,be published in Arabic, Chlnese, English, French, Russian,
and Spanish, the "official languages" of the Court. The Court's " ~ o + ~ ~ l a n ~ ~ are Eng-" ages
lish and French.
3. The U.S. government had'a ~bL%iahkd ndgokating team of lawyers from the Defense, State,
ahd tic& Departments during the Preparatory Committee negotiations from 1995 to1998
and at the 1998 Rome Conference, where the large U.S. contingent, led by Ambassador David
Scheffer, made numerous contributions to every aspect of the Rome Statute and largely
drafted the Elements of Crimes. At the conclusion of the Conference, however, the U.S.
The International Criminal Court: An Overview 269
stood with only six other countries in opposing the adoption of the Rome Statute. Even after
Rome, though, the U.S. stayed engaged in the process and, t o permit the U.S. to be involved in
the ongohg negotiations, President Clinton signed the Rome Statute on December 31,2000. The
Bush adminismation, however, has withdrawn kom the process, even though it has the right to
an observer in the Assembly of States Parties. In a letter to UN Seuetary-General Kofi Annan
datedMay 6,2002, the U.S. government renounced its signature on the RomeStatute, stating that
"the United States does not intend to become a party to the [ICC] treaty . . . [and] has no legal ,
obligations arising from its signature-on- e c e m b e 3 1, 2000."
4. In February 2002, the American Bar Association's House of Delegates recommended that the
U.S. government accede to the Rome Statute.
5. See ~rnericanServicemembers Protection Act, 22 U.S.C. $5 7421 et seq. Approximately 80
countries have reportedly signed 'bilateral agreements with the United States that obligate
them not to surrender U.S. citizens to the ICC.
6. These documents are available on the ICC's Web site, http://www.icc-cpi.int: A wealth of
information about the ICC is also available at excellent Web sites maintained by the NGO
Coalition for the ICC, http://www.iccnow.org, and by the American Coalition for the ICC,
7. U.N. Doc. AICONE 18319 (1998); enteredinto$rce ~ u 1, l2002. ~
8. ICC-ASP/1/3, entered intofbrce September 9, 2002.
9. ICC-ASPIlI3, entered intofbrce September 9, 2002.
10. ICC-BD/01-01-04, entered intoforce May 26, 2004.
11. The Registry, in consultation with the Prosecutor, prepared the proposed Code of Professional
Conduct for Counsel, which theAssembly of States Parties considered during its meeting in
September 2004., See Proposal for a Draft Code of Professional Conduct for Counsel before
the International Criminal Court, ICC-ASP13111 (11 Aug. 2004). The ASP did not adopt the
Registry's proposed Code, and instead requested the Bureau of the ASP to prepare an
12. Another key document, the Agreement on Privileges and Immunities, entered into force on
June 30, 2004. This provides to judges, court officials, staff, counsel, experts, and witnesses
with the certain privileges and immunities to conduct their work.
13. The Nuremberg precedent was the basis for an unsuccessful effort in the early 1950s in which
the General Assembly created a committee, which was chaired by the United States, to draft
a statute for an international criminal court. See Revised Draft Statute for an International
Criminal Court (Annex to the Report of the Committee on International Criminal Jurisdic-
tion), 7 U.N. GAOR, Supp. No. 12, at 23, U.N. Doc. A12645 (1954).
14. G;A. Res. 46/54 (Nov. 25, 1992), U.N. Doc. ~'/47/584.
. ;5 :
, -,;&see "an 'interria:
dona1 tribunal shall be established for the prosecution of persons responsible for serious vio-
lations on international humanitarian law committed in the territory of the former Yugoslavia
since 1991"); SC Res. 827 (1993) (adopting the Statute of the ICTY). See also Report of the
SecretaqGeneral Pursuant to paragraph' 2 of Security Council Resolution 808 (1993), U.N.
Doc. S/25704 (May 3, 1993).
16. SC Res. 955 (1994) (establishing the ICTR).
17. jee Report of the International Law Commission on the Work of
U.N.-GAOR, Supp. No. 10, U.N. Doc. A/49/10 (1994).
18. In 11 years, the ICTY has conducted 35 coxnplet~d'c&'s,and 103 accused persons have
appeared bef6w,tha.~?fpib&a1. The'ICTR, which issued its first indictments in late 1995, has
'indicted 70 persons and taken ctistody of 60. Thirteen trials have been completed, resulting in
one acquittal and 12 convictions, including the former Prime Minister of Rwanda. Pursuant to
the "completion strategies," the ICTY and ICTR will complete all investigations by 2004, all
trials by 2008, and all appeals by 2010.
270 CHAPTER 20
19. Rome Stapte, art. 112(1).
20. See Draft Programme Budget for 2005, ICC-ASPI312, para. 4 (26 July 2004).
21. Rome Statute, art. 112(2)(b).
22. Rome Statute, art. 46(1).
23. Rome Statute, art. 38(3)(a).
24. Rome Statute, art. 39(2)(a).
25. Rome Statute, arts. 36(3), (5).
26. Rome Statute, art. 42(1).
27. Article 42(4) states that the Deputy Prosecutor's term shall be nine years "[u]nless a shorter
term i decided upon at the time of their election," The ASP decided in September 2003 that
the Deputy Prosecutor's term of office should be six years.
28. See Budget, supra note 20, 7 14.
29. ~ o m e s t a t u t e art. 43(1).
30. Rome Statute, art. 43(1).
31. W E Rule 22; Regulation 67.
32. Rome Statute, art. 55(2) (c). -
33. RPE 21(2) ("The Registrar shall create and maintain a list of counsel who meet the criteria").
See also http://www.icc-cpi.int/defence/defcounsel.html.
34. Regulation 69.
35. Regulation 71.
36. Regulation 72.
37. See Overview of the efforts of the Registrar in relation to the defense, the legal participation of
victims, and the consultation process followed-report pursuant to paragraph 4 of the state-
ment of the focal point on the establishment of an international criminal bar, ICC-ASP1317
(9 July 2004).
38. Regulation 73.
39. Regulation 76.
40. Regulation 77(2).
41. The principle of "equality of arms" is part of the guarantee of a fair trial and is well estab-
lished in international criminal law. It provides that "the Prosecution and the Defence must be
equal before the Trial Chamber . . . [and] the Chamber shall provide every practicable facility
it is capable of granting under the Rules and the Statute when faced with a request by a party
for assistance in presenting its case." Prosecutor v. Tadic, Case No. IT-94-1 (Appeals Chamber),
J d y , 15, 1999, 77 4 3 4 8 .
42. W E 20.
43. See Elise Groulx, Inequality of Arms: The Position of the Legal Profession in International
Criminal Justice 6 9 (2004) (unpublished manuscript o n file with the author). , .
, ... ,.-. ..,-.--.. y , . - ,
3 - - - ...--,.
; -.~.,~.,~...,., .--.i...,,
^ r;-- - -: . - -.. . - - -.. - - -
44. See The Budget and Finance Team of the Coalition for the International Criminal Court
(CICC), Submission to the 3rd meeting of the Assembly of States Parties (Aug. 26, 2004).
45. Rome Statute, art. 24(1).
46. Rome Statute, art. 24(1).
47. Rome Statute, art. 26. Witnesses under the age of 18, however, may test~fy.W E 66(2). The
prohibition o n prosecuting persons under age 18 may affect the investigation of the Lord's
Resistance Army in Uganda because 85 percent of the LRA reportedly consists of child sol-
diers. See Human Rights First Press Release, International Criminal Court to,OpenJnvestigg-
tion in Uganda (July 29, 2004). , .,,.. ,
48 Rome Statutc, art. 12(2). The state consent requirement is unnecessary with regard to situa-
tions referred by the Security Council acting under Chapter VII because such a referral is bind-
mg o n all UN member states.
49 Rome Statute, art. 12(2).
The International Criminal Court: An Overview 271
50. Rome Statute, art. 12(3).
51. Rome Statute, art. 17(1).
52. Rome Statute, art. 18(2).
53. See David Stoelting, ICC Prehial Proceedings: Avoiding Gridlock, 9 ILSA J. INT'L& COMP. 413,
41 7 (Spring 2003).
54. Rome Statute, art. 82(1); RPE 154(1).
55. Rome Statute, art. 19(2), (3).
56. A Special Working Group on the Crime of Aggression is considering these issues in the mean-
57. Rome Statute, art. 6.
58. Rome Statute, art. 7(1).
59. Rome Statute, art. 7(2).
60. Rome statute, art. 8(1).
61. Rome Statute, art. 30(1).
62. Rome Statute, art. 25(3)(a).
63. Press Release, Statement by the Prosecutor Related to Crimes Committed in Barlonya Camp
in Uganda (Feb. 23, 2004).
64. A "victim" is defmed as a person who has "suffered harm" as a result of the commission of a
, crime within the jurisdiction of the Court and may include certain "org&ations and institu-
tions that have sustained direct harm." RPE 85.
65. Rome Statute, art. 68(3).
66. Rome Statute, art. 15(3).
67. Rome Statute, art. 19(3).
68. Rome Statute, art. 68(3); RPE 89.
69. RPE 91.
70. RPE 89(2).
71. Rome Statute, arts. 57(3)(e), 93(l)(k).
72, Rome Statute, art. 75(2).
73. Rome Statute, art. 75(3).
74. Rome Statute, art. 75(3).
75. RPE 91(4).
76. Rome Statute, art. 55(l).
77. Rome Statute, art. 55(2).
78. Rome Statute, art. 54(1).
79. Rome Statute, art. 58(7).
80. Rome Statute, art. 61.
81. RPE 132.
^ --.--,-,.,,-.* - .--.-
.4.~. .: . -
Rome Statute, art.69(4); RPE 64(2).
83. Rome Statute, art. 69(4).
84. Rome Statute, art. 64.
85. RPE 76-79.
xvi About t h e Authors
David Stoelting is Senior Trial Counsel, United States Securities and Exchange
C o m s s i o n , Division of Enforcement, New York City; ABA Representative and
Council Member, International Criminal Bar (2003-present); and Chair, Comrnit-
tee on African Affairs, Association of the Bar of the City of New York (2002-
2005). Previously, he was Chair and Vice-Chair, Committee on International
Criminal Law, ABA Section of International Law & Practice (1998-2001); and Co-
Chair, Coordinating Committee on the International Criminal Court, ABA Sec-
tion of International Law & Practice (1997-1999). He is the pnmary author of
ICC reports adopted by the ABA (1998 and 2002) and Association of the Bar of
the City of New York (1997). Mr. Stoelting was ABA Representative at Rome
Diplomatic Conference on ICC (1988) and meetings of ICC Preparatory Com-
mittee and Preparatory Commission (1996-2002). He is the author of more than
two dozen articles in various legal periodicals, including The New York LawJour-
nal, The International Lawyel; StanfordJournal of International Law, and ILSAJournal
of International and Comparative Law. His previously held positions include Lec-
turer in Law, Seton Hall Law School (2004); Senior Fellow, Center for Interna-
tional Studies, NYU School of Law (1991-1992); Law Clerk, Judge Nathaniel R.
Jones, U.S. Court of Appeals for the Sixth Circuit (1990-1991); and Managing Edi-
tor, Human Rights Quarterly (1988-1990). Mr. Stoelting received his LL.M. in
International Legal Studes from NYU School of Law (1992) and his J.D. from the
University of Cincinnati College of Law (1990). (The Securities and Exchange
Commission disclaims responsibility for any private publication of any SEC
employee. This chapter expresses the author's views and does not necessarily
reflect those of the Commission, the Commissioners, or other members of the
Louise Ellen Teitz is Professor of Law, Roger Williams University Ralph R.
Papitto School of Law, Bristol, Rhode Island.
Detlev Vagts is Bemis Professor of International Law, Harvard Law School, Cam-
Elpidio Villarreal is Vice President and Assistant General Counsel-Litigation and
__ ~.. . . .
Conflict Management for Schering Plough Corporation in Ke~worsh,..N~w~Jer-
..._, .?.?.- - -
..syEarlierWMFs'c-*eei;'he served as Senior Counsel, Litigation & I.egal Policy
for General Electric Company in Fairfield, Connecticut.