Article 124 of the Rome Statute of the International Criminal Court: ‘Transitional Provision’ or ‘The Right to (Convenient) Opt-out’

2015 ◽  
Vol 15 (5) ◽  
pp. 949-969 ◽  
Author(s):  
Vivek V. Nemane ◽  
Indraneel D. Gunjal
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Opt Out ◽  
The Right

Article 123 of the Rome Statute of the International Criminal Court provides for a Review Conference to consider any amendments to the statute. Amendments proposed and forwarded by the Assembly of State Parties (asp) were considered during the first Review Conference held at Kampala in 2010. Out of the three potential amendments to the Rome Statute, a proposal to delete Article 124 of the Statute failed. This article evaluates the consistency between contents and objectives of the Rome Statute with reference to a dichotomy which has been emerged after the first Review Conference due to the retention of Article 124. The article questions the basis of the retention of Article 124, and argues that the ‘opt-out provision’ enshrined in Article 124 should be deleted from the Rome Statute during the fourteenth session of the asp in 2015.

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.

The Rome Statute's Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference

2011 ◽  
Vol 11 (1) ◽  
pp. 49-104 ◽  
Author(s):  
Jennifer Trahan
Keyword(s):  
Security Council ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
State Party ◽  
Potential Conflict ◽  
Opt Out ◽  
Final Agreement

AbstractThis past June, in Kampala, Uganda, at the first Review Conference on the International Criminal Court, States Parties forged an historic agreement, amending the Rome Statute to define the crime of aggression, and agreeing on conditions for the exercise of jurisdiction. While the definition had been essentially agreed upon during years of earlier negotiations, delegations in Kampala had to grapple with a host of complex issues related to the exercise of jurisdiction. They resolved that jurisdiction will be triggered both through Security Council referrals, as well as State Party or Prosecutor referrals, and the related "filter" mechanisms to achieve this. This result represented a significant breakthrough that was pragmatic, designed to avoided potential conflict with the U.N. Charter, and designed to protect the Court's independence. The final agreement, however, also contained compromises, excluding the acts of Non-States Parties from jurisdiction, allowing States Parties to opt out of jurisdiction, and delaying the exercise of jurisdiction until at least 2017.

scholarly journals Shifting Priorities: Are Attitudes Changing at the International Criminal Court about Trials in absentia?

2021 ◽  
pp. 1-29
Author(s):  
Caleb H. Wheeler
Keyword(s):  
Criminal Law ◽  
General Principle ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Future Trial ◽  
The Right

Abstract A recent decision by the International Criminal Court’s Appeals Chamber in the Gbagbo and Blé Goudé case raised the possibility of a shift away from the long-standing practice of only holding trial in the presence of the accused. The final paragraphs of the 28 May 2020 decision asserts that any future trial proceedings in the Gbagbo et al. case could be held in the absence of the defendants should Mr Gbagbo and Mr Blé Goudé be released from custody and then later fail to appear for trial. This article examines the Appeals Chamber’s decision in light of the Court’s Statute, existing jurisprudence at the icc and within the larger context of international criminal law. It concludes that the Appeals Chamber’s decision fails to properly understand the right to be present at trial as it exists in the Rome Statute nor does it comply with any identified general principle of law.

Part 10 Enforcement: Exécution, Art.105 Enforcement of the sentence/Exécution de la peine

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
The Right ◽  
In Transit

This chapter comments on Article 105 of the Rome Statute of the International Criminal Court. Article 105 declares that the Court alone shall have the right to decide any application for appeal and revision. Thus, the State where the sentence is served cannot modify the sentence imposed by the Court. Article 105(1) says that the sentence is binding on States Parties. This might lead to constitutional difficulties in some States, if for example a prisoner landed there while in transit, or escaped to such a State. Then there might be an incompatibility between a State's obligation to respect the sentence and its own internal law, mandating the individual's release.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.23 Nulla poena sine lege

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Rules Of Procedure ◽  
Nulla Poena Sine Lege ◽  
Right To Vote ◽  
The Right ◽  
Exercise Of Discretion

This chapter comments on Article 23 of the Rome Statute of the International Criminal Court. Article 23 serves as a limit on the exercise of discretion by the Court. It cannot impose punishment that is not set out in the Statute or provided in accordance with its delegated legislation, and specifically the Rules of Procedure and Evidence. It also prevents States Parties from imposing additional punishment upon those who have already been convicted by the Court. The ramifications of this remain to be determined, but offenders may argue that civil sanctions such as deprivation of the right to vote, or prohibition of holding office, constitute additional punishment and are therefore prohibited by article 23.

scholarly journals Shifting Priorities: Are Attitudes Changing at the International Criminal Court about Trials in absentia?

2021 ◽  
pp. 1-29
Author(s):  
Caleb H. Wheeler
Keyword(s):  
Criminal Law ◽  
General Principle ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Future Trial ◽  
The Right

Abstract A recent decision by the International Criminal Court’s Appeals Chamber in the Gbagbo and Blé Goudé case raised the possibility of a shift away from the long-standing practice of only holding trial in the presence of the accused. The final paragraphs of the 28 May 2020 decision asserts that any future trial proceedings in the Gbagbo et al. case could be held in the absence of the defendants should Mr Gbagbo and Mr Blé Goudé be released from custody and then later fail to appear for trial. This article examines the Appeals Chamber’s decision in light of the Court’s Statute, existing jurisprudence at the icc and within the larger context of international criminal law. It concludes that the Appeals Chamber’s decision fails to properly understand the right to be present at trial as it exists in the Rome Statute nor does it comply with any identified general principle of law.

Part 6 The Trial: Le Procès, Art.63 Trial in the presence of the accused/Procès en présence de l’accusé

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Arrest Warrant ◽  
The Right

This chapter comments on Article 63 of the Rome Statute of the International Criminal Court. Article 63 establishes the right of the accused to be present at trial. For some pre-trial proceedings it is either implicit or explicit that the accused will not be present. This is the case, for example, in the hearing before the Pre-Trial Chamber on a decision by the Prosecutor not to proceed, the taking of evidence in the case of a ‘unique investigative opportunity’, and the issuance of an arrest warrant or summons. A right to be present is specifically provided for some pre-trial proceedings, such as the confirmation hearing. However, the Pre-Trial Chamber is also authorized to hold a confirmation hearing in the absence of the defendant.

La sentenza della Corte penale internazionale contro Lubanga Dyilo: il primo caso di complementarietŕ calpestata?

2012 ◽  
pp. 580-585
Author(s):  
Elisabetta Bonomo
Keyword(s):  
Formal Verification ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
War Crimes ◽  
Criminal Court ◽  
Objective Interpretation ◽  
The Right

On 14th March 2012 Mr Thomas Lubanga Dyilo was convicted by the International Criminal Court for the conscription of children under the age of 15 (war crimes pursuant to art. 8, par. 2, (e), (viii) of the Rome Statute). The Lubanga Dyilo case shows the wide interpteration given by the ICC to the principle of complemetarity, that seems contrary to the aims affirmed in the Preamble and those pursued by the Office of the Prosecutor. Indeed, the admissibility of the Lubanga Dyilo case appears to be inconsistent with the "proactive complemetarity" that should bring to a strict and objective interpretation of the concepts of "unwillingness" and "inability". Furthermore, the analysis is intended to demonstrate that the right moment to proceed with a formal verification of the admissibility should not come before the issue of a warrant of arrest.

scholarly journals The Roles of Victims in the ICC: Victims’ Protection or the Accused’s Fair Trial Right Violation?

2019 ◽  
Vol 5 (1) ◽  
pp. 28
Author(s):  
Mahfud Jufri
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
Due Process ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
Appeal Chamber ◽  
Legal Research ◽  
The Right ◽  
Due Process Rights

The International Criminal Court (ICC) has provided the right to present victims views in the ICC’s proceeding. The objectives of this article are to identify to which extent the roles of victims in the ICC and to analyze whether victims’ participation would be a violation to the rights of a fair trial of the accused in the ICC or not. This is pure legal research meaning that the materials required in this article are available in libraries, archives and other databases. The article concludes that the victims, in the ICC, are allowed to participate and to seek reparation in accordance with Article 68 (3) of the Rome Statute. In addition, the participation would violate the due process rights of the defendants despite the fact at a particular case; the Appeal Chamber of the ICC decided that there is no such violation as aiming at ending individual impunity.

Broadening International Criminal Jurisdiction?

2015 ◽  
Vol 4 (1) ◽  
pp. 53-80
Author(s):  
Solon Solomon
Keyword(s):  
Security Council ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Criminal Jurisdiction ◽  
Broad Interpretation ◽  
The Right

The interests of justice are embedded in Article 53 (1) of the Rome Statute of the International Criminal Court (Rome Statute). They give the Prosecutor the right to decline to initiate an investigation or suspend a prosecution. In these cases, the interests of justice act as a basis for the Prosecutor to refrain from any action. This article argues that due to their non-positivist character, the interests of justice could serve as the platform also of prosecutorial action, acting as the legal vehicle for a broad interpretation of the Rome Statute in the name of justice. Nevertheless, such broad, interests of justice-instigated interpretation, cannot but have positivism as its outmost limit. The Rome Statute is an international criminal law instrument and international criminal law is governed by the legality principle, which narrows any hermeneutical endeavors. Along these lines, this article examines the nexus between the expansive interpretational interests of justice function and its limits by referring to cases where the International Criminal Court (icc) was called to endorse or not a broad interpretation of notions included in the Rome Statute. The article examines cases arising from situations referred to the icc by States and by the un Security Council.

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