Contents

Acknowledgments

About the Editors

Secretary-General’s 1998 Letter

Preface to the First Edition by the United Nations Secretary-General

Introduction

Photos

Table of Abbreviations

Part 1

Chapter 1 Chronology of Relevant Historic Dates and Events

Chapter 2 International Criminal Justice: A Historical Perspective

Introduction

Section 1 International Investigative and Prosecutorial Bodies: 1919–1994

Section 2 Establishing a Permanent International Criminal Court: 1937–1998

2.1 The Period of Slow Progress: 1937–1989

2.2 Rapidly Changing Times: 1989–1998

2.3 1995–1998: Preparing the Draft ICC Statute

2.4 Informal Inter-Sessional Meetings

2.5 The ‘Like-Minded States’

2.6 The NGO Community

Section 3 The 1998 Rome Diplomatic Conference

3.1 Introduction

3.2 Setting the Stage for the Conference

3.3 The Diplomatic Conference’s Beginnings

3.4 The Flow of Texts to the Drafting Committee

3.5 The Negotiating Process

3.6 The Final Stage

Section 4 The Absence of Legal Method

4.1 Deference to National Sovereignty and the Problems of National Implementing Legislation

Section 5 Post-Rome: The Preparatory Commission (1998–2002) and Assembly of States Parties and the Review Conference

5.1 The Preparatory Commission: 1998–2002

5.2 The Assembly of States Parties

5.3 The Kampala Review Conference

Conclusion

Chapter 3 The ICC’s Nature, Functions, and Mechanisms

Section 1 Nature of the Institution

1.1 Characteristics

1.2 The Subjects of the ICC

1.3 Prospective Jurisdiction

Section 2 Jurisdictional Mechanisms

2.1 Particularities of the ICC’s Jurisdiction

2.2 Referral of a ‘Situation’

2.3 Complementarity: The ICC and National Legal Systems

2.4 Jurisdictional Bases and Preconditions to the Exercise of Jurisdiction

2.5 Admissibility

2.6 Jurisdiction of the ICC over Nationals of Non-Party States

2.7 The Security Council’s Jurisdictional Role

2.8 The Article 98 Jurisdictional Exception

2.9 Jurisdictional Issues and Other Obligations under International Law

2.10 Settlement of Jurisdictional Conflicts

Section 3 Crimes within the Jurisdiction of the ICC

3.1 Genocide

3.2 Crimes against Humanity

3.3 War Crimes

3.4 The Crime of Aggression

3.5 Elements of Crimes

3.6 Other Crimes

Section 4 Elements of Criminal Responsibility and Penalties

4.1 Ne bis in idem

4.2 Penalties and Sentencing

Section 5 Applicable Law

Section 6 Stages of the Judicial Proceedings

6.1 Initiation of the Investigation and Prosecution

6.2 The Trial

6.3 The Appeal

6.4 Procedural Due Process

Section 7 Victims’ Rights

Section 8 Cooperation and Enforcement Modalities

8.1 Overall Character

8.2 General Nature of the Obligation to Cooperate

8.3 Exceptions to the Obligation to Cooperate

Section 9 Organization and Operation of the ICC

9.1 The Presidency

9.2 The Court: The Appeals, Trial, and Pre-Trial Divisions

9.3 The Office of the Prosecutor

9.4 The Registry

9.5 The Assembly of States Parties

9.6 The Seat and Languages of the ICC

Section 10 National Implementing Legislation

Section 11 Ratification, Amendment, and Reviewing the Statute

Section 12 The Relationship of the ICC with the United Nations

Conclusion

Part 2

The Rome Statute, Elements of Crimes, Rules of Procedure & Evidence and Regulations of the Court: Integrated Text

Part 1 Establishment of the Court

Part 2 Jurisdiction, Admissibility, and Applicable Law

Part 3 General Principles of Criminal Law

Part 4 Composition and Administration of the Court

Part 5 Investigation and Prosecution

Part 6 The Trial

Part 7 Penalties

Part 8 Appeal and Revision

Part 9 International Cooperation and Judicial Assistance

Part 10 Enforcement

Part 11 Assembly of States Parties

Part 12 Financing

Part 13 Final Clauses

Bibliography

Appendix 1 – Negotiated Relationship Agreement between the International Criminal Court and the United Nations

Appendix 2 – Agreement on the Privileges and Immunities of the International Criminal Court

Index

Explanatory Note on the Integrated Legislative Text

Drafts of the ICC Statute

Introduction

Preamble

Part 1 Establishment of the Court

Article 1 The Court

Article 2 Relationship of the Court with the United Nations

Article 3 Seat of the Court

Article 4 Legal Status and Powers of the Court

Part 2 Jurisdiction, Admissibility and Applicable Law

Article 5 Crimes within the Jurisdiction of the Court

Article 6 Genocide

Article 7 Crimes against Humanity

Article 8 War Crimes

Article 8 bis Crime of Aggression

Article 9 Elements of Crimes

Article 10

Article 11 Jurisdiction ratione temporis

Article 12 Preconditions to the Exercise of Jurisdiction

Article 13 Exercise of Jurisdiction

Article 14 Referral of a Situation by a State Party

Article 15 Prosecutor

Article 15 bis Exercise of Jurisdiction over the Crime of Aggression

Article 15 ter Exercise of Jurisdiction over the Crime of Aggression

Article 16 Deferral of Investigation or Prosecution

Article 17 Issues of Admissibility

Article 18 Preliminary Rulings regarding Admissibility

Article 19 Challenges to the Jurisdiction of the Court or the Admissibility of a Case

Article 20 Ne bis in idem

Article 21 Applicable Law

Part 3 General Principles of Criminal Law

Article 22 Nullum crimen sine lege

Article 23 Nulla poena sine lege

Article 24 Non-retroactivity ratione personae

Article 25 Individual Criminal Responsibility

Article 26 Exclusion of Jurisdiction over Persons under Eighteen

Article 27 Irrelevance of Official Capacity

Article 28 Responsibility of Commanders and Other Superiors

Article 29 Non-applicability of Statute of Limitations

Article 30 Mental Element

Article 31 Grounds for Excluding Criminal Responsibility

Article 32 Mistake of Fact or Mistake of Law

Article 33 Superior Orders and Prescription of Law

Part 4 Composition and Administration of the Court

Article 34 Organs of the Court

Article 35 Service of Judges

Article 36 Qualifications, Nomination and Election of Judges

Article 37 Judicial Vacancies

Article 38 The Presidency

Article 39 Chambers

Article 40 Independence of the Judges

Article 41 Excusing and Disqualification of Judges

Article 42 The Office of the Prosecutor

Article 43 The Registry

Article 44 Staff

Article 45 Solemn Undertaking

Article 46 Removal from Office

Article 47 Disciplinary Measures

Article 48 Privileges and Immunities

Article 49 Salaries, Allowances and Expenses

Article 50 Official and Working Languages

Article 51 Rules of Procedure and Evidence

Article 52 Regulations of the Court

Part 5 Investigation and Prosecution

Article 53 Initiation of an Investigation

Article 54 Duties and Powers of the Prosecutor with Respect to Investigations

Article 55 Rights of Persons during an Investigation

Article 56 Role of the Pre-Trial Chamber in Relation to a Unique Investigative Opportunity

Article 57 Functions and Powers of the Pre-Trial Chamber

Article 58 Issuance by the Pre-Trial Chamber of a Warrant

Article 59 Arrest Proceedings in the Custodial State

Article 60 Initial Proceedings before the Court

Article 61 Confirmation of the Charges before Trial

Part 6 The Trial

Article 62 Place of Trial

Article 63 Trial in the Presence of the Accused

Article 64 Functions and Powers of the Trial Chamber

Article 65 Proceedings on an Admission of Guilt

Article 66 Presumption of Innocence

Article 67 Rights of the Accused

Article 68 Protection of the Victims and Witnesses and Their Participation in the Proceedings

Article 69 Evidence

Article 70 Offences against the Administration of Justice

Article 71 Sanctions for Misconduct before the Court

Article 72 Protection of National Security Information

Article 73 Third-Party Information or Documents

Article 74 Requirements for the Decision

Article 75 Reparations to Victims

Article 76 Sentencing

Part 7 Penalties

Article 77 Applicable Penalties

Article 78 Determination of the Sentence

Article 79 Trust Fund

Article 80 Non-prejudice to National Application of Penalties and National Laws

Part 8 Appeal and Revision

Article 81 Appeal against Decision of Acquittal or Conviction or against Sentence

Article 82 Appeal against Other Decisions

Article 83 Proceedings on Appeal

Article 84 Revision of Conviction or Sentence

Article 85 Compensation to an Arrested or Convicted Person

PART 9 International Cooperation and Judicial Assistance

Article 86 General Obligation to Cooperate

Article 87 Requests for Cooperation: General Provisions

Article 88 Availability of Procedures under National Law

Article 89 Surrender of Persons to the Court

Article 90 Competing Requests

Article 91 Contents of Request for Arrest and Surrender

Article 92 Provisional Arrest

Article 93 Other Forms of Cooperation

Article 94 Postponement of Execution of a Request in Respect of Ongoing Investigation or Prosecution

Article 95 Postponement of Execution of a Request in Respect of an Admissibility Challenge

Article 96 Contents of Request for Other Forms of Assistance under Article 93

Article 97 Consultations

Article 98 Cooperation with Respect to Waiver of Immunity and Consent to Surrender

Article 99 Execution of Requests under Articles 93 and 96

Article 100 Costs

Article 101 Rule of Speciality

Article 102 Use of Terms

Part 10 Enforcement

Article 103 Role of States in Enforcement of Sentences of Imprisonment

Article 104 Change in Designation of State of Enforcement

Article 105 Enforcement of the Sentence

Article 106 Supervision of Enforcement of Sentences and Conditions of Imprisonment

Article 107 Transfer of the Person upon Completion of Sentence

Article 108 Limitation on the Prosecution or Punishment of Other Offences

Article 109 Enforcement of Fines and Forfeiture Measures

Article 110 Review by the Court Concerning Reduction of Sentence

Article 111 Escape

Part 11 Assembly of State Parties

Article 112 Assembly of States Parties

Part 12 Financial

Article 113 Financial Regulations

Article 114 Payment of Expenses

Article 115 Funds of the Court and of the Assembly of States Parties

Article 116 Voluntary Contributions

Article 117 Assessment of Contributions

Article 118 Annual Audit

Part 13 Final Clauses

Article 119 Settlement of Disputes

Article 120 Reservations

Article 121 Amendments

Article 122 Amendments to Provisions of an Institutional Nature

Article 123 Review of the Statute

Article 124 Transitional Provision

Article 125 Signature, Ratification, Acceptance, Approval or Accession

Article 126 Entry into Force

Article 127 Withdrawal

Article 128 Authentic Texts

Index