Legal Recharacterization and the Materiality of Facts at the International Criminal Court: Which Changes Are Permissible?

2016 ◽  
Vol 29 (2) ◽  
pp. 577-597 ◽  
Author(s):  
ELINOR FRY
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Contextual Elements ◽  
At Will ◽  
As If

AbstractThe ICC's Regulation 55, which allows the Trial Chamber to modify the legal characterization of facts in the final judgment, has been used too often and too carelessly. Recharacterization must not exceed the facts and circumstances described in the charges, but material facts and their legal qualification are like communicating vessels; changing the latter affects the former (and vice versa). In their application of Regulation 55 to date, chambers have underappreciated this, treating cases as if they have blurry factual boundaries where material facts can be swapped, neglected, or created at will. This article is not a plea for abolition of Regulation 55, though, but explores which modifications are permissible, and finds that when comparing a change regarding the contextual elements or (sub)categories of crimes to a change regarding the mode of participation the latter is most problematic and often detrimental to the rights of the accused.

Prosecutor v. Germain Katanga: Judgment on the Appeal Against the Decision of Trial Chamber II of 21 November 2012 (Int’l Crim. CT.)

2013 ◽  
Vol 52 (4) ◽  
pp. 873-904
Author(s):  
Steven Arrigg Koh
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Introductory Note

The Appeals Chamber of the International Criminal Court (ICC) in the case of Prosecutor v. Germain Katanga held that a Trial Chamber, during the deliberations stage of trial proceedings, may, pursuant to Regulation 55 of the Regulations of the Court (Regulation 55), give notice of a possible modification of the legal characterization of the facts in its final Judgment, so long as the trial remains fair. This Introductory Note will provide background on the Katanga case and Regulation 55, summarize the Appeals Chamber’s Judgment, and discuss the implications of this ruling.

The Expressive Nature of Law: What We Learn from Conjugal Slavery to Forced Marriage in International Criminal Law

2018 ◽  
Vol 18 (2) ◽  
pp. 331-353 ◽  
Author(s):  
Annie Bunting ◽  
Izevbuwa Kehinde Ikhimiukor
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Courts ◽  
Forced Marriage ◽  
Sexual Slavery

The March 2016 Confirmation of Charges Decision of the Pre-Trial Chamber of the International Criminal Court in Prosecutor v. Dominic Ongwen characterized the practice of forced conjugal association as the crime against humanity of ‘other inhumane acts’. This decision of the Pre-Trial Chamber comes amidst an unsettled jurisprudence on the legal characterization of the practice of forced conjugal association. The unsettled nature of the jurisprudence has led to inconsistencies in the legal characterization of forced conjugal association as either forced marriage as an ‘other inhumane act’ or sexual slavery, a variant of the general rubric of slavery. Accordingly, this article analyses the expressive effects of the labelling by contemporary international criminal courts and tribunals of forced conjugal association as either forced marriage as an ‘other inhumane act’ or slavery.

State of Exception

2020 ◽  
Author(s):  
Ardi Imseis
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Of Exception ◽  
Critical Examination ◽  
Territorial Jurisdiction ◽  
Preliminary Examination ◽  
Occupied Palestinian Territory ◽  
Palestinian Territory

Abstract In December 2019, the Prosecutor of the International Criminal Court concluded her preliminary examination into the situation in Palestine, determining there is a reasonable basis to initiate an investigation into the situation. Instead of doing so, she first decided to seek a ruling from the Pre-Trial Chamber on the scope of the Court’s territorial jurisdiction, specifically aimed at confirming her view that the ‘territory’ over which the Court may exercise its jurisdiction comprises the Occupied Palestinian Territory (OPT). This article focuses on the amici curiae observations and other communications made by eight states parties in the proceedings — Australia, Austria, Brazil, Canada, Czech Republic, Germany, Hungary and Uganda. A critical examination of these observations and communications reveals that they did not answer the question posed by the OTP, but rather advanced a number of strained arguments aimed, inter alia, at impugning the very notion that the Court has any jurisdiction at all on the basis that Palestine is not a state. When juxtaposed against the ostensible commitment of these states parties to the object and purpose of the Statute, their observations and other communications reveal a conspicuous hypocrisy. If accepted by the Court, these observations and communications would operate to not only affirm the continued contingency of the state of Palestine on the international plane, but, even worse, to shield persons known to have committed or be committing crimes of the gravest concern to the international community with impunity.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

Better Late than Never: Reparations for Sexual Violence in the Ntaganda case before the International Criminal Court

2021 ◽  
Vol 2 (1) ◽  
pp. 27-47
Author(s):  
Sunneva Gilmore
Keyword(s):  
Sexual Violence ◽  
International Criminal Court ◽  
International Criminal ◽  
Child Soldiers ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Medical Background ◽  
Modest Contribution ◽  
First Time

The Prosecutor v Bosco Ntaganda case at the International Criminal Court (ICC) represents the long awaited first reparation order for sexual violence at the court. This will hopefully see the implementation of reparations for the war crimes and crimes against humanity of rape and sexual slavery among civilians and former child soldiers, after previous cases such as against Jean-Pierre Bembe and Laurent Gbagbo were acquitted of rape. This article drawing from the author's role as a reparation expert in the case, is a reflection on the challenges of designing and providing reparations at the ICC against convicted individuals, as well as amidst insecurity and the COVID-19 infectious disease pandemic. It begins by discussing how the Ntaganda reparation order expanded reparation principles for the first time since the Lubanga case, in particular for crimes of a sexual nature. This is followed by an outline of some of the harms as a result of sexual violence from the perspective of an expert with a medical background. The analysis then turns to the appropriate reparations in this case and the details contained within the chamber's reparation order. Final conclusions consider how the procedural and substantive elements of reparations in this case will be instructive to future cases that address sexual violence. Ultimately, key insights are offered on the modest contribution an appointed reparation expert can do in assisting a trial chamber in the reparation process.

Theory and practice of mixing procedural models in the Pre-trial Chamber of the International Criminal Court mechanism of functioning

2020 ◽  
Vol 10 (4) ◽  
pp. 100-111
Author(s):  
Denis Pechegin
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Balance Of Power ◽  
Trial Chamber ◽  
Criminal Court ◽  
Theory And Practice ◽  
International Standards ◽  
Legal Proceedings ◽  
Honorary Doctor

The increasing interpenetration of the main models of the process and the approval of international standards for the production of criminal cases raise the question of the development and improvement of the form of legal proceedings in the category of the most relevant in modern science. On the one hand, the attention of many scientists is focused on strengthening the competitive core of the process and ensuring, as far as possible, a balance of power between the parties. On the other hand, it is stated that legal proceedings that do not pursue the goal of achieving material truth, especially due to the absolute nature of the principle of competition, lead to excessive formalism that has nothing to do with fair trial. The solution to the problem of combining trial models (the balance of adversarial and investigative cores) is seen in the International Criminal Court. The procedure of criminal proceedings in the International Criminal Court is the result of special scientific modeling taking into account the indicated doctrinal trends, and the degree of generalization of approaches of leading legal families in the structure of the Rome Statute of the International Criminal Court is so high that it allows us to speak about the universality of this procedural system. If the predecessors of the International Criminal Court preference were really given only one started (so, the ICTY was based on the example of the Anglo-Saxon adversarial procedure model with the “American accent”), the Rome Statute of the International Criminal Court reflected the trend to the initial formation of a balanced trial procedures designed to overcome the deviations in the balance of power by introducing an adversarial process with “inquisitorial” elements: for example, the Pre-trial Chamber, duties of the Prosecutor fully and objectively investigate the circumstances of the case, the duties of the court of first instance to establish the truth in the case. However, this does not mean any disregard for the adversarial core at the pre-trial stage. The article is devoted to theoretical and practical aspects of the combination of adversarial and investigative cores in the activities of the pre-trial Chamber of the International criminal court and reflects the results of a study led by professor Anita Ušacka, honorary doctor of law, in the preparation of a Commentary to the Rome Statute in Russian.

scholarly journals Managing Frozen Assets at the International Criminal Court

2020 ◽  
Vol 18 (3) ◽  
pp. 765-790
Author(s):  
Daley J Birkett
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
War Crimes ◽  
Legal Framework ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
The Hague

Abstract On 8 June 2018, more than 10 years after his arrest, the Appeals Chamber of the International Criminal Court (ICC) reversed Jean-Pierre Bemba Gombo’s conviction by the Trial Chamber for crimes against humanity and war crimes, acquitting him of all charges. Soon after the start of his time in detention in The Hague, assets belonging to Bemba were frozen by states across a number of jurisdictions at the request of the ICC. Many of these assets remain frozen, more than 18 months after his acquittal. This article examines the consequences of prolonged asset freezes by the ICC through the lens of the Bemba case, demonstrating the existence of gaps in the legal framework applicable to the management of frozen assets under the ICC Statute system and suggesting possible responses thereto at the domestic and international levels.

International Centre for Settlement of Investment Disputes (ICSID):Azurix Corporation V. the Argentine Republic

2004 ◽  
Vol 43 (2) ◽  
pp. 262-285
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Concentration Camp ◽  
Former Yugoslavia ◽  
Crimes Against Humanity ◽  
Argentine Republic ◽  
Common Purpose

On 25 June 2001, Milorad Kmojelac, a Bosnian Serb, was indicted by the Prosecutor of the International Criminal Court for the Former Yugoslavia (ICTY) on twelve counts of crimes against humanity and violations of the laws and customs of war. He had served as the commander of the Foca Kazneno-Popravni Dom (“KP Dom”) concentration camp in Bosnia-Herzegovina from April 1992 to August 1993. The charges against Kmojelac were based upon his acting in “common purpose” (as defined by Articles 7(1) and 7(3) of the ICTY Statute) with the KP Dom guards in persecuting Muslim and other non-Serb civilian detainees through torture, beatings, and murder. The Trial Chamber convicted Kmojelac of several of the charged offenses and sentenced him to a total of 7 Vi years imprisonment. He was acquitted of counts of torture, murder, imprisonment, and other inhumane acts. Both the defense and the prosecution appealed on various grounds. The Appeals Chamber dismissed all defense appeals and found for the prosecution on several grounds, increasing Krnolejac's sentence to 15 years.

A Review of the Experiences of the Pre-Trial and Appeals Chambers of the International Criminal Court Regarding the Disclosure of Evidence

2008 ◽  
Vol 21 (1) ◽  
pp. 151-163 ◽  
Author(s):  
DAVID SCHEFFER
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Timely Manner ◽  
International Criminal Tribunals ◽  
Statutory Power ◽  
And Performance ◽  
Atrocity Crimes ◽  
Minimal Evidence

AbstractNegotiators of the Rome Statute of the International Criminal Court (ICC) did not intend the Pre-Trial Chamber (PTC) to act as a de facto investigating judge; rather, their intent was that the PTC ensure that the Prosecutor act responsibly and within well-defined limits. Several opportunities have arisen in the Lubanga case before the ICC's PTC and the Appeals Chamber to examine the Prosecutor's duty and performance in disclosing documentary evidence and the identities of witnesses at the pre-trial stage. International criminal tribunals necessarily must bridge the evidentiary magnitude of atrocity crimes with a pragmatic focus on one person's role. The PTC judge should aggressively narrow the charges and focus the Prosecutor on the requirement of minimal evidence to meet the sufficiency standard for the remaining charges, direct the Prosecutor to share existing and emerging evidence with the accused in a timely manner and not wait until 30 days prior to confirmation hearing, and use statutory power to ensure timely non-disclosure requests and determinations.

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