INTERNATIONAL CRIMINAL LAW AND...

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International Criminal Law and Procedure Law Annotated International Criminal Law and Procedure (1 May 2013) – © Larcier 1 INTERNATIONAL CRIMINAL LAW AND PROCEDURE Statute – Rome Statute of the International Criminal Court . . . . . . . . . . . . . . . . . 3 Rules, 9 September 2002 – International Criminal Court, Rules of Procedure and Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 Declaration, 9 September 2002 – Elements of Crime . . . . . . . . . . . . . . . . . . . . . . . 581 Regulations, 26 May 2004 – Regulations of the Court (ICC) . . . . . . . . . . . . . . . . . 605 Resolution 827, 25 May 1993 – International Criminal Tribunal for the Former Yugoslavia, statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 641 Resolution 955, 8 November 1994 – International Criminal Tribunal for Rwanda, statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739

Transcript of INTERNATIONAL CRIMINAL LAW AND...

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International Criminal Law and Procedure

Law Annotated International Criminal Law and Procedure (1 May 2013) – © Larcier 1

INTERNATIONAL CRIMINAL LAW AND PROCEDURE

Statute – Rome Statute of the International Criminal Court . . . . . . . . . . . . . . . . . 3

Rules, 9 September 2002 – International Criminal Court, Rules of Procedureand Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523

Declaration, 9 September 2002 – Elements of Crime . . . . . . . . . . . . . . . . . . . . . . . 581

Regulations, 26 May 2004 – Regulations of the Court (ICC) . . . . . . . . . . . . . . . . . 605

Resolution 827, 25 May 1993 – International Criminal Tribunal for the FormerYugoslavia, statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 641

Resolution 955, 8 November 1994 – International Criminal Tribunal forRwanda, statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739

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Rome Statute of the International Criminal Court

Table of contents PagesPREAMBLE 7

PART 1. – ESTABLISHMENT OF THE COURT 11

Art. 1. The Court 11

Art. 2. Relationship of the Court with the United Nations 13

Art. 3. Seat of the Court 17

Art. 4. Legal status and powers of the Court 22

PART 2. – JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW 25

Art. 5. Crimes within the jurisdiction of the Court 25

Art. 6. Genocide 26

Art. 7. Crimes against humanity 30

Art. 8. War crimes 55

Art. 8bis. Crime of aggression 60

Art. 9. Elements of Crimes 63

Art. 10. 69

Art. 11. Jurisdiction ratione temporis 73

Art. 12. Preconditions to the exercise of jurisdiction 76

Art. 13. Exercise of jurisdiction 82

Art. 14. Referral of a situation by a State Party 84

Art. 15. Prosecutor 87

Art. 15bis. Exercise of jurisdiction over the crime of aggression 90

Art. 15ter. Exercise of jurisdiction over the crime of aggression (Security Council referral) 99

Art. 16. Deferral of investigation or prosecution 101

Art. 17. Issues of admissibility 109

Art. 18. Preliminary rulings regarding admissibility 115

Art. 19. Challenges to the jurisdiction of the Court or the admissibility of a case 118

Art. 20. Ne bis in idem 125

Art. 21. Applicable law 128

PART 3. – GENERAL PRINCIPLES OF CRIMINAL LAW 131

Art. 22. Nullum crimen sine lege 131

Art. 23. Nulla poena sine lege 136

Art. 24. Non-retroactivity ratione personae 139

Art. 25. Individual criminal responsibility 142

Art. 26. Exclusion of jurisdiction over persons under eighteen 156

Art. 27. Irrelevance of official capacity 159

Art. 28. Responsibility of commanders and other superiors 164

Art. 29. Non-applicability of statute of limitations 168

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Art. 30. Mental element 170

Art. 31. Grounds for excluding criminal responsibility 174

Art. 32. Mistake of fact or mistake of law 181

Art. 33. Superior orders and prescription of law 183

PART 4. – COMPOSITION AND ADMINISTRATION OF THE COURT 187

Art. 34. Organs of the Court 187

Art. 35. Service of judges 188

Art. 36. Qualifications, nomination and election of judges 189

Art. 37. Judicial vacancies 191

Art. 38. The Presidency 192

Art. 39. Chambers 193

Art. 40. Independence of the judges 194

Art. 41. Excusing and disqualification of judges 195

Art. 42. The Office of the Prosecutor 196

Art. 43. The Registry 197

Art. 44. Staff 200

Art. 45. Solemn undertaking 201

Art. 46. Removal from office 202

Art. 47. Disciplinary measures 203

Art. 48. Privileges and immunities 204

Art. 49. Salaries, allowances and expenses 205

Art. 50. Official and working languages 206

Art. 51. Rules of Procedure and Evidence 210

Art. 52. Regulations of the Court 214

PART 5. – INVESTIGATION AND PROSECUTION 217

Art. 53. Initiation of an investigation 217

Art. 54. Duties and powers of the Prosecutor with respect to investigations 223

Art. 55. Rights of persons during an investigation 229

Art. 56. Role of the Pre-Trial Chamber in relation to a unique investigative op-portunity 232

Art. 57. Functions and powers of the Pre-Trial Chamber 237

Art. 58. Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear 241

Art. 59. Arrest proceedings in the custodial State 247

Art. 60. Initial proceedings before the Court 253

Art. 61. Confirmation of the charges before trial 258

PART 6. – THE TRIAL 274

Art. 62. Place of trial 274

Art. 63. Trial in the presence of the accused 277

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Art. 64. Functions and powers of the Trial Chamber 280

Art. 65. Proceedings on an admission of guilt 284

Art. 66. Presumption of innocence 288

Art. 67. Rights of the accused 295

Art. 68. Protection of the victims and witnesses and their participation in the proceedings 322

Art. 69. Evidence 344

Art. 70. Offences against the administration of justice 355

Art. 71. Sanctions for misconduct before the Court 364

Art. 72. Protection of national security information 365

Art. 73. Third-party information or documents 368

Art. 74. Requirements for the decision 370

Art. 75. Reparations to victims 377

Art. 76. Sentencing 387

PART 7. – PENALTIES 389

Art. 77. Applicable penalties 389

Art. 78. Determination of the sentence 395

Art. 79. Trust Fund 400

Art. 80. Non-prejudice to national application of penalties and national laws 402

PART 8. – APPEAL AND REVISION 403

Art. 81. Appeal against decision of acquittal or conviction or against sentence 403

Art. 82. Appeal against other decisions 407

Art. 83. Proceedings on appeal 410

Art. 84. Revision of conviction or sentence 413

Art. 85. Compensation to an arrested or convicted person 417

PART 9. – INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE 420

Art. 86. General obligation to cooperate 420

Art. 87. Requests for cooperation: general provisions 421

Art. 88. Availability of procedures under national law 422

Art. 89. Surrender of persons to the Court 433

Art. 90. Competing requests 439

Art. 91. Contents of request for arrest and surrender 444

Art. 92. Provisional arrest 446

Art. 93. Other forms of cooperation 448

Art. 94. Postponement of execution of a request in respect of ongoing investiga-tion or prosecution 456

Art. 95. Postponement of execution of a request in respect of an admissibility challenge 457

Art. 96. Contents of request for other forms of assistance under article 93 459

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Art. 97. Consultations 461

Art. 98. Cooperation with respect to waiver of immunity and consent to surren-der 463

Art. 99. Execution of requests under articles 93 and 96 470

Art. 100. Costs 474

Art. 101. Rule of speciality 475

Art. 102. Use of terms 480

PART 10. – ENFORCEMENT 481

Art. 103. Role of States in enforcement of sentences of imprisonment 481

Art. 104. Change in designation of State of enforcement 484

Art. 105. Enforcement of the sentence 485

Art. 106. Supervision of enforcement of sentences and conditions of imprison-ment 486

Art. 107. Transfer of the person upon completion of sentence 487

Art. 108. Limitation on the prosecution or punishment of other offences 489

Art. 109. Enforcement of fines and forfeiture measures 491

Art. 110. Review by the Court concerning reduction of sentence 492

Art. 111. Escape 494

PART 11. – ASSEMBLY OF STATES PARTIES 495

Art. 112. Assembly of States Parties 495

PART 12. – FINANCING 499

Art. 113. Financial Regulations 499

Art. 114. Payment of expenses 500

Art. 115. Funds of the Court and of the Assembly of States Parties 501

Art. 116. Voluntary contributions 502

Art. 117. Assessment of contributions 503

Art. 118. Annual audit 504

PART 13. – FINAL CLAUSES 511

Art. 119. Settlement of disputes 511

Art. 120. Reservations 513

Art. 121. Amendments 514

Art. 122. Amendments to provisions of an institutional nature 515

Art. 123. Review of the Statute 516

Art. 124. Transitional Provision 517

Art. 125. Signature, ratification, acceptance, approval or accession 518

Art. 126. Entry into force 519

Art. 127. Withdrawal 520

Art. 128. Authentic texts 521

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PREAMBLE

The States Parties to this Statute,

Conscious that all peoples are united by commonbonds, their cultures pieced together in a sharedheritage, and concerned that this delicate mosaicmay be shattered at any time,

Mindful that during this century millions of chil-dren, women and men have been victims of unim-aginable atrocities that deeply shock the con-science of humanity,

Recognizing that such grave crimes threaten thepeace, security and well-being of the world,

Affirming that the most serious crimes of concern tothe international community as a whole must notgo unpunished and that their effective prosecutionmust be ensured by taking measures at the nationallevel and by enhancing international cooperation,

Determined to put an end to impunity for the per-petrators of these crimes and thus to contribute tothe prevention of such crimes,

Recalling that it is the duty of every State to exer-cise its criminal jurisdiction over those responsi-ble for international crimes,

Reaffirming the Purposes and Principles of theCharter of the United Nations, and in particularthat all States shall refrain from the threat or use offorce against the territorial integrity or political in-dependence of any State, or in any other manner in-consistent with the Purposes of the United Nations,

Emphasizing in this connection that nothing inthis Statute shall be taken as authorizing anyState Party to intervene in an armed conflict or inthe internal affairs of any State,

Determined to these ends and for the sake ofpresent and future generations, to establish an inde-pendent permanent International Criminal Court inrelationship with the United Nations system, withjurisdiction over the most serious crimes of concernto the international community as a whole,

Emphasizing that the International CriminalCourt established under this Statute shall be com-plementary to national criminal jurisdictions,

Resolved to guarantee lasting respect for and theenforcement of international justice,

Have agreed as follows:

ERIC DAVID

1. The preamble has not been much debated during the sessions of the Preparatory Committee on the estab-lishment of the ICC. The ILC had prepared, in its 1994 draft ‘Statute of an International Criminal Court’ a pre-amble with three paragraphs which:

– encouraged international co-operation to improve efficiency of the suppression of international crimes;

– limited the ratione materiae competence of the Court to ‘the most serious crimes…’;

– established the complementary character of the Court towards domestic courts in cases when internal pro-ceedings would not exist or would not be sufficient.

2. During the Diplomatic Conference in Rome (15 June – 17 July 1998), the preamble was developed and becamethe current text which consists of 11 paragraphs. For the most, this text resulted from informal consultations heldby the coordinator, Tuiloma Neroni Slade (Samoa). Presented in the Plenary Commission, on 10 July 1998, T. N.Slade’s text (‘Les Etats Parties au présent Statut, Conscients que tous les peuples sont unis par des liens communs etque leurs cultures mêlées forment un patrimoine commun, une tapisserie délicate qui risque à tout moment d’êtredéchirée par des atrocités inimaginables menaçant la paix, la sécurité et le bien-être du monde, Ayant à l’espritqu’au cours du siècle écoulé des millions d’enfants, de femmes et d’hommes ont été victimes de graves crimes quiheurtent profondément la conscience de l’humanité, Affirmant que des crimes d’une telle gravité qui interpellentl’ensemble de la communauté internationale ne sauraient rester impunis, ce pour quoi leur répression doit être as-surée de façon efficace, tant par des mesures prises au niveau national que par le renforcement de la coopérationinternationale, Soulignant que la Cour criminelle internationale créée en vertu du présent Statut sera complémen-taire des juridictions pénales nationales [, sur lesquelles elle n’aura pas d’incidence], Rappelant qu’il est du devoir dechaque Etat d’exercer sa juridiction pénale à l’encontre des responsables de crimes internationaux, Déterminés àmettre un terme à l’impunité de ces crimes et à contribuer ainsi à leur prévention, Réaffirmant les buts et principesde la Charte des Nations Unies, Déterminés, à ces fins et dans l’intérêt des générations présentes et futures, à insti-tuer une cour criminelle internationale permanente liée au [en relation avec le] système des Nations Unies, qui aitcompétence pour connaître des crimes les plus graves préoccupant l’ensemble de la communauté internationale,Résolus à garantir durablement le respect de la justice internationale et l’exécution de ses décisions, Sont convenusde ce qui suit:’ in DOC A/CONF.183/C.1/L.61, 11 July 1998) had only been subject to very minor amendments.

In the following pages, we will examine in turn the legal significance of the preamble (I.), the provisions whichcan be considered as optional (II.) and the ones which are normative (III.).

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1. The Legal Significance of the Preamble

3. It is often said that the preamble of a treaty has no compulsory legal significance (cf. Avis jurid. choisis duSecrétariat de l’OIT, Ann.jur.NU 2004, p. 399). According to A. Pellet, P. Daillier et M. Forteau: ‘Dans l’ordre in-ternational, le préambule d’un traité ne possède pas de force obligatoire’ (P. DAILLIER, M. FORTEAU and A. PELLET,Droit International Public, Paris, Librairie Générale de Droit et de Jurisprudence, 2009, 8th ed., p. 146-147, para.73). The writers refer to this classic excerpt of the South West African case (2nd phase) when the ICJ says:

‘Humanitarian considerations may constitute the inspirational basis for rules of law, just as, for instance, thepreambular parts of the United Nations Charter constitute the moral and political basis for the specific legalprovisions thereafter set out. Such considerations do not, however, in themselves amount to rules of law.’(South West Africa Cases, 2nd Phase, ICJ Reports 1966, p. 34, para. 50).

It is true that provisions which state that ‘the peoples of the United Nations’ say they are ‘determined to savesucceeding generations from the scourge of war’, ‘to promote social progress’, ‘to practice tolerance’, etc, canseem to be moral and political commitments. However, this does not necessarily imply that a preamble wouldbe, by definition, optional.

4. Furthermore, the same authors also mention the Rights of Nationals of the U.S. in Morocco case when the Courthad observed that the preamble of the 1906 Algesiras General Act referred to three principles (sovereignty andindependence of the Sultan, integrity of States, equal economic liberty), that these three principles had alreadybeen accepted by France and Morocco in 1905 and that one of those principles amounted to an obligation:

‘Considered in the light of these circumstances, it seems clear that the principle [of economic liberty without anyinequality] was intended to be of a binding character and not merely an empty phrase’ (ICJ Reports 1952, p. 184).

5. In other words, a preamble can be as binding as the operative provisions of a treaty; such is the case if theseprovisions only reflect rules already admitted by the contracting parties: they keep their binding character.Such is also the case if the preamble or some of its paragraphs are stated in a normative way. The preamble isa part of the treaty as its annexes; Article 31, para. 2, of the Vienna Convention (VC) on the law of treaties men-tions the preamble as an element of the ‘context’ for the purpose of the interpretation of the treaty (Art. 31,para. 2: ‘The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, in-cluding its preamble and annexes […]’ (emphasis added). For an example of recourse to the ICC preamble inorder to determine the Prosecutor policy, see Policy Paper on Preliminary Examinations, S04101, October 2010,paras. 21, 93, 95), but in its commentary, the ILC observes that the preamble is indeed a part of the treaty:

‘That the preamble forms part of a treaty for purposes of interpretation is too well settled to require comment’(Yearbook of the International Law Commission 1966, II, p. 221).

Pacta sunt servanda (VC, Art. 26) applies to the preamble as to the rest of the treaty. It follows that the provi-sions of the preamble worded in a normative way or expressing international rules already agreed upon by theStates parties to the treaty are compulsory.

6. As to the moral, political or ideological provisions, they are optional only if they do not comprise commit-ments or prescriptive character formulae.

Yet, even limited to moral or philosophical statements, these provisions play a role in the interpretation andthe implementation of the treaty as provided for by the VC on the Law of Treaties: it is not a hazard if it is oftenstated as a ‘principe de droit parlementaire’ the fact that ‘le législateur ne parle pas pour ne rien dire’ (M. AUGER,Radio-Canada on www.vigile.net).

Therefore, we shall distinguish, the optional clauses of the preamble and the prescriptive ones.

2. Optional Provisions

7. The three first paragraphs of the Preamble can be considered as optional because they do not set out pre-scriptive rules; they merely state facts: the discourse is constatative; these facts are only intellectual or psycho-logical realities; the first words of each paragraph confine themselves to observe those facts. The States partiessay they are ‘conscious’ (1st para.), or ‘mindful’ (2nd para.) or ‘recognising that’ (3rd para.).

In other words, the discourse does not prescribe; it informs; however, as any information establishes realityand can become normative, it is better to say that these paragraphs are more ‘constative’ than ‘perfomative’(these words are drawn from J.L. AUSTIN, How to Do Things With Words, Oxford, Clarendon, 1962; in this re-gard, see E. DAVID, ‘Le Performatif dans l’Énonciation et le Fondement du Droit International’, Mélanges Chau-mont, Paris, Pedone, 1984, p. 240-261), more declaratory than normative instead of saying they are constativeor declaratory and not performative or normative.

8. The first paragraph refers to

– the bonds which unite the people;

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– the belonging of their culture to a shared heritage;

– the fragility of these bonds.

The text is clearly constative; it enunciates no rule, no goal to reach as did the draft preamble prepared by theILC in 1994 for the draft ICC Statute (Yearbook of the International Law Commission 1994, II, Part 2, p. 26-27).

9. However, the affirmation in this paragraph that the cultures of the people belong to a ‘shared heritage’ goesbeyond a mere cliché of the reality; this is also a way to stress the importance of the cultures and the gravity ofthe infringement to the culture; this reinforces the incriminations of the Statute which affect the culture, moreespecially the ‘persecution against any identifiable group on […] cultural […] grounds’ as a crime against human-ity (Statute, Art. 7, para. 1, h) and the attacks directed ‘against buildings dedicated to religion, education, art,science or charitable purposes, historic monuments […]’ as war crimes (Statute, Art. 8, para. 2, a, ix, and e, iv).

Thus, the constative character of the paragraph does not deprive it of any normative size.

The reference to a ‘shared heritage’ was presented in the draft text of the co-ordinator as a ‘delicate tapestry’(Doc. A/CONF.183/C.1/L.54/E/Rev.2, 10 July 1998); the ‘tapestry’ will become a ‘mosaic’ following, appar-ently, comments from France, Japan and some Muslim States (O. TRIFFTERER (ed.), Commentary on the RomeStatute of the International Criminal Court: Observer’s Notes, Article by Article, Munich/Oxford/Baden-Baden,C.H. Beck/Hart/Nomos, 2nd ed., 2008, p. 6).

10. The second paragraph affirms that ‘during this century millions of children, women and men have beenvictims of unimaginable atrocities’: the text remains chiefly informative but it insists on the fact that theseatrocities hurt everyone.

11. The third paragraph states that those crimes ‘threaten the peace, security and well-being of the world’. Theparagraph only recalls a qualification that the Security Council does not hesitate to use to establish its compe-tence in case of ‘systematic, flagrant and widespread violations of international humanitarian and humanrights law’ (e.g. S/RES/1296, 19 April 2000, para. 5; 1674, 28 April 2006, para. 26). The text however is notnormative; it only confirms, indirectly, a well-known practice.

12. The ninth paragraph has no real prescriptive significance because it is confined to state a pledge – to estab-lish an international criminal court – which has been respected and which became a reality on 1st July 2002,after the deposit of the 60th instrument of ratification. Nevertheless, by insisting on the limitation of the juris-diction of the Court ‘over the most serious crimes of concern to the international community as a whole’, thisparagraph which is, in part, the mirror of Article 1 of the Statute allows to conclude that the crimes over whichthe Court has jurisdiction are indeed the most serious ones and, for this very reason, they concern all States.

3. Prescriptive Provisions

13. Paragraphs 4 to 6 of the Statute are fundamental because they enunciate the principle of the fight againstimpunity (paras. 4-5) and the individual obligation of each State to ensure the punishment of these crimes.These provisions are normative because they oblige States and the international community as a whole.

These paragraphs did not appear in the draft preamble of the ILC (above); added by States during the diplo-matic Conference in Rome, they show that the obligation to fight against impunity is not only a wish of thecivil society; it is also a legal obligation which bind States.

14. The normative character of theses clauses comes from their wording and their content:

– The fourth paragraph ‘affirms’ a prohibition: ‘the most serious crimes of concern to the international com-munity as a whole must not go unpunished’; as the text refers to the Statute, it means that the crimes providedfor by the Statute are ‘the most serious’; the seriousness of the crimes matters more than the importance of theperpetrators (ICC, Situation in DCR, ICC-01/04-169, Judgment on the Prosecutor's appeal against the decisionof Pre-Trial Chamber I entitled 'Decision on the Prosecutor's Application for Warrants of Arrest, Article 58,' 13July 2006, para. 79; comp. however Sep. op. Pikis, ibid., para. 16, 73 et seq.).

– The obligation to punish these crimes is underlined by the use of the word ‘must’;

– The obligation is repeated with different words but with the same prescriptive significance in the 5th paragraphwhich expresses a formal commitment: the States parties to the Statute are ‘determined’ not to accept impunityany longer; the case law of the ICC often stressed this objective (e.g. ICC, Prosecutor v. Katanga, ICC-01/04-01/07-474, Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage ofthe Case, 13 May 2008, para. 40; ICC, Prosecutor v. Al Bashir, ICC-02/05-01/09-3, Decision on the Prosecution'sApplication for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, 4 March 2009, para. 42; ICC, Prose-cutor v. Katanga, ICC-01/04-01/07-1497, Judgment on the Appeal of Mr. Germain Katanga against the Oral De-cision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, paras. 85-86; ICC,Prosecutor v. Lubanga, ICC-01/04-01/06-1497, Prosecution’s Provision of Further Information on UndisclosedItems pursuant to Trial Chamber’s Orders at 29 October 2008 Ex Parte Hearing, 12 November 2008, para. 33;ibid., 8 January 2010, para. 10; ICC, Prosecutor v. Bemba, ICC-01/05-01/08, 24 June 2010, para. 240).

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– A repetition of the same obligation appears in the 6th paragraph as this paragraph ‘recalls that it is the dutyof every State to exercise its criminal jurisdiction’ in its domestic legal order (ICC, Situation in DCR, ICC-01/04-169, 13 July 2006, Sep.op. Pikis, para. 31).

The triple assertion of the rule to fight against impunity stresses its normative character.

15. The obligation of punishment towards the States parties to the Statute is not a new rule. It represents theiropinio juris since it already appears

– for the punishment of genocide;

— in Articles III-VIII of the 1948 Genocide Convention;

— in Article I-IV of the 1968 Convention preventing any statute of limitations for war crimes and crimesagainst humanity;

— in Article 9 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind;

– for the punishment of crimes against humanity;

— in resolutions of the UNGA 3 (I) of 13 February 1946, 2840 (XXVI) of 18 December 1971, 3074 (XXVIII) of3 December 1973;

— in the provisions quoted here above of the 1968 Convention and the 1996 Draft Code of crimes against thePeace and Security of Mankind;

– for the punishment of war crimes;

— in common Articles 49/50/129/146 of the 4th Geneva Conventions on the Protection of the Victims of War;

— in the provisions quoted above of the 1968 Convention and the 1996 Draft Code of crimes against thePeace and Security of Mankind.

These paragraphs merely refer to conventional and customary norms which already bind States Parties.

16. The customary character of these rules is confirmed by the numerous UN calls to fight against impunity. Aquick look at the practice – a look which does not pretend to be exhaustive – shows that from 1995 to 2011, theSecurity Council requested States, more than 70 times, to fight against impunity and to prosecute perpetrators ofcrimes, mainly IHL crimes (for a detailed list, E. DAVID, Eléments de Droit Pénal International et Européen, Brussels,Bruylant, 2009, para. 13.2.19). The same statistical exercise could be made with the UNGA (e.g, see ibid., TrialChamber II, Oral decision, ICC-01/04-01/07-T-67-FRA and WT 12-06-2009 1/9 NB T, Bemba, 12 June 2009, p. 7).

The former Commission of Human Rights and the HR Committee reach the same conclusion when they concludethat amnesty and the lack of criminal prosecution against the presumed perpetrators of IHL crimes are HR viola-tions, especially violations of Articles 2 and 3 of the Covenant on Civil and Political Rights (obligation of States par-ties to the act to ensure by judicial, administrative or legislative means the respect of rights and freedoms providedfor by the Covenant) (see General Comment n° 31 on the Nature of the General Legal Obligation Imposed on StatesParties to the Covenant, 29 March 2004, paras. 15 and 18, doc. ONU HRI/GEN/1/Rev.9 (Vol. I); also see: declarationof the H. R. Commission, doc. ONU E/CN.4/2002/L.11Add.7, Res. 2003/72, 25 April 2003 (adopted without a vote)).

17. Paragraphs 7 and 8 are normative because they recall classical and basic rules of the law of friendly relations:the prohibition of the use of force stated more or less in the same words than in Articles 2 and 4 of the UN Char-ter, and the prohibition of intervention in the domestic affairs of the States (A/RES/2131 (XX), 21 Dec. 1965;Declaration on Friendly Relationship, 2625 (XXV), 24 October 1970, 3rd Principle; 36/103, 9 December 1981).

18. Paragraph 10 states the complementarity principle which is repeated in Articles 1 and 17 of the Statute.This is not the place to address extensively this principle (relevant literature does not miss; cf. a.o. ibid, E. DAVID,2009, para. 14.4.26) which is consistent with the obligation of the States to punish the crimes provided for bythe Statute (above). The principle was already in the preamble of the draft Statute prepared by the ILC in 1994(Ann. CDI 1994, II, Part 2, p. 28).

19. The eleventh and last paragraph is a solemn commitment which squares with the importance of the estab-lishment of the ICC in the history of international relations. There is consequently some logic that States ex-press pledges which commit them more than wedding promises. This formula can seem a little bit naïve, butit does not matter: they are written and law is a semantic discipline. As Antoine Loysel wrote in 1607, ‘on lie lesbœufs par les cornes et les hommes par les paroles’ … (A. LOYSEL, Institutes Coutumières, 1846 ed., inwebu2.upmf-grenoble.fr/Haiti/Cours/Pdf/Loysel1.pdf).

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PART 1ESTABLISHMENT OF THE COURT

Art. 1. The Court

An International Criminal Court («the Court») ishereby established. It shall be a permanent insti-tution and shall have the power to exercise its ju-risdiction over persons for the most seriouscrimes of international concern, as referred to in

this Statute, and shall be complementary to na-tional criminal jurisdictions. The jurisdiction andfunctioning of the Court shall be governed by theprovisions of this Statute.

DIANE BERNARD

Article 1 formally establishes an International Criminal Court. This introductory provision may appear as re-dundant or even superfluous (W.A. SCHABAS, The International Criminal Court: A Commentary on the RomeStatute, Oxford, Oxford University Press, 2010, p. 57). But the establishment of the Court constitutes indeed therationale of the Statute as a whole.

As such, it seems that Article 1 merely summarises issues set out elsewhere in the Statute. It nevertheless ap-pears to be customary for statutes of ad hoc Tribunals to start with such a declamatory provision (see e.g. TheLondon Agreement creating the International Military Tribunal of Nuremberg, 8 August 1945, Art. 1, or theCharter of the International Military Tribunal for the Far East, 19 January 1946, Art. 1).

Due to its general character and the fact that it has been discussed in informal consultations during the nego-tations of the Statute, the precise historical drafting of this Article is difficult to reconstruct (O. TRIFFTERER, (ed.),Commentary on the Rome Statute of the International Court: Observers’ Notes, Article by Article, Munich/Ox-ford/Baden-Baden, Beck/Hart/Nomos, 2008, p. 50) and the official record does not provide any revealing in-sights. A few remarks can nevertheless be made.

First, that the Court would be established by a treaty had been widely accepted long before the 1998 RomeConference (according to the ad hoc Committee itself, see Report of the ad hoc Committee on the Establish-ment of an International Criminal Court, A/50/22, paras. 15-16). It is stated in the Preamble and other provi-sions of the Statute that the Court is ‘permanent’ (in Rome, the Drafting Committee transplanted this precisionfrom Article 4 to Article 1: see the Report of the Preparatory Committee on the Establishment of an Interna-tional Criminal Court, A/CONF.183/2/Add.1, 14 April 1998, p. 10). The general debate about the creation ofan ICC lost its intensity after the creation by a treaty was chosen, the permanent character of the Court beingdeeply connected to the issue of its independence from States’ pressions (see O. TRIFFTERER, ‘Article 1. TheCourt’ in O. TRIFFTERER (ed.), Commentary on the Rome Statute of the International Court: Observers’ Notes, Ar-ticle by Article, Munich/Oxford/Baden-Baden, Beck/Hart/Nomos, 2008, p. 50).

Secondly, the title of the first international, permanent institution and criminal jurisdiction was the subject of somedebate: Article 1 establishes a ‘Court’ and not a ‘Tribunal’. In 1993, the International Law Commission changed theterm ‘Court’ (used since the beginning of the debates within the United Nations) to ‘Tribunal’, in order to presentthe ‘Court’ or the judicial organ, the ‘Registry’ and the ‘Procuracy’ (the future Office of the Prosecutor) ‘as constitu-ting an international judicial system as a whole’ (Report of the International Law Commission to the General As-sembly on the work of its 45th session, A/CN.4/SER.A/1993/Add.l (Part 2), 101, para. 12). The same year, the UNSecurity Council had chosen to call the ad hoc judicial body with authority to prosecute mass atrocities in the Bal-kans a ‘Tribunal’. However, some members of the International Law Commission thought that it was unusual tohave a ‘Court’ within a ‘Tribunal’, and others preferred not to use the word ‘Tribunal’ in relation to a permanentbody intended to exercise criminal jurisdiction (Report of the International Law Commission to the General Assem-bly on the work of its 46th session, A/CN.4/SER.A/1994/Add.l, Part 2, p. 27). The Commission then decided ‘thatthe term ‘Court’ should be used to refer to the entity as a whole, and that where specific functions were intended tobe exercised by particular organs (such as the Presidency, the Procuracy, the Registry), this would be specificallystated’ (ibid., p. 27). In its final draft, the UN GA, the Preparatory Committee on the Establishment of the Interna-tional Criminal Court, established by the General Assembly of the United Nations, recommended to use the term‘Court’ to include its constituent organs, including the Prosecutor (Report of the Preparatory Committee on the Es-tablishment of an International Criminal Court, A/CONF.183/2/Add.1, 14 April 1998, p. 10). This recommenda-tion does not seem to have been followed in the Statute. In several provisions, the term ‘Court’ is used to refer to theChambers or the judges. Article 15(4) for instance refers to ‘determinations by the Court’ regarding jurisdiction andadmissibility, and obviously means the Chambers (see also Art. 19(4), Art. 19(8) and Art. 103 of the Statute).

Secondly, an explicit reference to the principle of complementarity is made in Article 1, which indicates clearlythat this mechanism constitutes ‘the cornerstone of the Statute and of the functioning of the Court’ (ICC, Situ-ation in Uganda, Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, ICC-02/04-01/05,Decision on the admissibility of the case under Article 19(1) of the Statute, 10 March 2009, para. 34. See alsoK. AMBOS et al., ‘Establishing an International Criminal Court and an International Criminal Code, Observa-tions from an International Criminal Law Viewpoint’, European Journal of International Law, 7, 1996-4, p. 523or S.A. WILLIAMS and W.A. SCHABAS, ‘Article 17. Issues of admissibility’ in O. TRIFFTERER (ed.), Commentary on theRome Statute of the International Court: Observers’ Notes, Article by Article, Munich/Oxford/Baden-Baden,

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Beck/Hart/Nomos, 2008, p. 606). Complementarity is not defined as such in the Statute: but is proclaimed bythe Preamble, repeated in Article 1 and then further elaborated in several Articles (see Art. 17 and 18 in partic-ular, but also Art. 12 to 15 or 86 to 102). Its insertion in Article 1 met ‘certain concerns about the symbolismand image of the very first Article of the draft Statute’ (as explained in Rome by the coordinator of Part 1 of theStatute, Summary record of the 1st meeting, UN Diplomatic Conference of Plenipotentiaries on the Establish-ment of an International Criminal Court, A/Conf.183/C.1/SR.1, 16 June 1998, para. 10).

Finally, it should be noted that the Court’s ‘power to exercise its jurisdiction’ applies to ‘persons’ (natural per-sons, as made explicit by Article 25(1)) and is limited to what is ‘referred to in this Statute’ (see O. TRIFFTERER,(ed.), Commentary on the Rome Statute of the International Court: Observers’ Notes, Article by Article, Munich/Oxford/Baden-Baden, Beck/Hart/Nomos, 2008, p. 54-55).

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Art. 2. Relationship of the Court with the United Nations

The Court shall be brought into relationshipwith the United Nations through an agreement tobe approved by the Assembly of States Parties to

this Statute and thereafter concluded by the Pres-ident of the Court on its behalf.

MATTHIAS VANHULLEBUSCH

1. The Relationship of the ICC with the UN as Defined by the Rome Statute

Though the International Criminal Court (‘ICC’) is an independent organization established by its own treaty, i.e.the 1998 Rome Statute, it has a formal relationship with the United Nations (‘UN’). The Preamble of the Statuteexplicitly reaffirms the need to establish such ‘an independent permanent International Criminal Court in relation-ship with the United Nations system, with jurisdiction over the most serious crimes of concern to the internationalcommunity as a whole’. As the ICC has international legal personality (below, the annotation on Art. 4 of the RomeStatute), it could enter into this relationship, in accordance with Article 2 of the Rome Statute, by virtue of the Ne-gotiated Relationship Agreement signed between the ICC and the UN and which entered into force on 22 July2004. While the ICC and the UN are strictly independent organizations, this Agreement acknowledges their differ-ent mandates and addresses different areas of exchange, coordination and cooperation between both institutions.

Apart from the Relationship Agreement, some provisions of the Rome Statute similarly cover the interaction be-tween the Court and some other organs of the UN, such as the Security Council, the International Court of Justiceand the Secretary-General. In this regard, Articles 13 and 16 of the Rome Statute authorise the Security Council re-spectively to trigger the jurisdiction of the Court by referring situations and to defer or suspend the proceedings ofsituations before the jurisdiction of the Court. Articles 121, 123, and 125-128 of the Rome Statute determine the de-positary responsibilities of the Secretary-General. Finally, Article 119, para. 2 of the Statute assigns the InternationalCourt of Justice the role to settle disputes ‘between two or more States Parties relating to the interpretation or appli-cation of this Statute’. Besides these interactions, the Rome Statute reaffirms the respect for the Purposes and Prin-ciples of the Charter of the UN regarding ‘States to refrain from the threat or use of force against the territorial integ-rity or political independence of any State' (cf. Article 2(4) of the UN Charter and the Preamble of the Rome Statute).

The establishment of this close though loose relationship between the ICC and the UN was preceded by seriousdiscussions in several diplomatic and legal forums about the nature and scope of their interaction. Since 1990, theInternational Law Commission uttered two major options, namely to integrate the ICC within the UN system as anorgan of the UN or to set up an independent organization in relationship with the UN (Thiam, Eighth Report, paras.86-88; ‘Report of the International Law Commission on the work of its forty-second session (1 May – 20 July 1990)’,UN Doc. A/45/10, paras. 139-140). The former option would require amending the Charter of the UN and wouldface political opposition to accomplish this goal. The latter would only necessitate the signing of a new treaty. Alsoin the 1990s, the creation of the International Criminal Tribunal for the former Yugoslavia and for Rwanda as sub-sidiary bodies of the Security Council by its Chapter VII Resolutions, proved to be an efficient response to give juris-diction to a new subsidiary body having jurisdiction over the most heinous crimes of concern to the internationalcommunity as a whole. Understandably, the authority of such subsidiary organ would heavily rely on the decisionsof the Security Council (‘Report of the International Law Commission on the work of its forty-fifth session (3 May –23 July 1993)’, UN Doc. A/48/10, para. 61). Alternatively, as part of the UN system, the new Court could be a spe-cialised agency of the UN and be brought into relationship with the UN in accordance with Article 57 and 63 of theUN Charter. The latter ‘special relationship’ (see W.A. SCHABAS, The International Criminal Court: A Commentary onthe Rome Statute, Oxford, Oxford University Press, 2010, p. 71) has been reflected in the language of the final ver-sion of the Working Group on the Establishment of the Court and Relationship with the UN (‘Consolidated texts forArticles 2 and 4, and A to E, on financing’, UN Doc. A/AC.249/1998/wg.8/CRP.1; ‘Text of the Draft Statute for theInternational Criminal Court’, UN Doc A/AC.249/1998/CRP.7; ‘Report of the Working Group on the Establishmentof the Court and Relationship with the United Nations’, UN Doc. A/AC.249/1998/L.19).

2. The Relationship of the ICC with the UN according to the Negotiated Relationship Agreement

The Negotiated Relationship Agreement (UN Doc. A/RES/58/318) further defines the areas of exchange, coor-dination and cooperation between the Court and UN.

The Preamble of the Negotiated Relationship Agreement reaffirms the respect for the Purposes and Principles ofthe Charter of the UN and the desire ‘to make provision for a mutually beneficial relationship whereby the dis-charge of respective responsibilities of the United Nations and the International Criminal Court may be facilitated’.

The other four sections, entitled ‘General Provisions’, ‘Institutional Relations’, ‘Cooperation and Judicial Assis-tance’ and ‘Final Provisions’, operationalize these objectives accordingly.

2.1. ‘General Provisions’ (Art. 1-3)

The first section, ‘General Provisions’ (Art. 1-3), outlines the mutual recognition of the status, legal personality,mandate and responsibilities by both organizations as defined under their respective constitutive treaties, i.e.the Charter of the UN and the Rome Statute.

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Beyond these general principles, Article 3 further supports the preambulary clauses, namely to ‘cooperate closely,whenever appropriate, with each other and consult each other on matters of mutual interest pursuant to the pro-visions of the present Agreement and in conformity with the respective provisions of the Charter and the Statute’.

2.2. ‘Institutional Relations’ (Art. 4-14)

The second section, ‘Institutional Relations’ (Art. 4-14), explains the nature and scope of the mutual institu-tional relationship between the Court and the UN.

Article 4, ‘Reciprocal representation’, on the one hand, authorises the UN Secretary-General to attend the pub-lic hearings of the ICC. On the other hand, the ICC can attend and participate, as an observer, in the work ofthe UN General Assembly. Moreover, the President or Prosecutor can be invited to address the UN SecurityCouncil whenever it deals with issues related to the activities of the ICC.

According to Article 5, ‘Exchange of information’, the UN and the ICC ‘shall, to the fullest extent possible and prac-ticable, arrange for the exchange of information and documents of mutual interest’. They shall do so ‘where ap-propriate, to combine their efforts to secure the greatest possible usefulness and utilization of such information’.

Pursuant to Article 6, ‘Reports to the United Nations’, the ICC submits reports to the UN on an annual basis.

Article 7, ‘Agenda items’, allows the UN and the ICC to propose points for consideration to the agenda of theirrespective (specialized) organs of the UN or the Assembly of States Parties.

Article 8, ‘Personal arrangements’, governs the cooperation and consultation between the UN and the ICC in‘matters of mutual interest relating to the employment of their officers and staff […] in order to achieve themost efficient use of specialized personnel, systems and services’.

In order to avoid duplication of efforts and to save costs, Article 9, ‘Administrative cooperation’, imposes theUN and the ICC to consult about the use of their respective facilities or services and about ‘common facilitiesor services in specific areas’.

Article 10, ‘Services and facilities’, further specifies the terms and conditions of the availability of UN servicesand facilities as requested by the Court.

According to Article 11, ‘Access to United Nations Headquarters’, the Assembly of States Parties, the ICC Bu-reau or other subsidiary bodies may have access to the UN Headquarters whenever they hold their meetings.

Article 12, ‘Laissez-passer’, gives officials of the ICC the permission to use the UN laissez-passer which is a traveldocument recognized by the Convention on the Privileges and Immunities of the UN ((1946) 1 UNTS 15) andby the Agreement on the Privileges and Immunities of the ICC (ICC-ASP/1/3, Art. 29).

Article 13, ‘Financial matters’, deals with the financial costs supported by ICC, in particular those ‘expenses in-curred due to referrals by the Security Council’ (Art. 115(b) of the Statute), that are subject to separate arrange-ments between the UN and the ICC.

Pursuant to Article 14, ‘Other agreements concluded by the Court’, the ‘United Nations and the Court shallconsult, when appropriate, on the registration or filing and recording with the United Nations of agreementsconcluded by the Court with States or international organizations’.

2.3. ‘Cooperation and Judicial Assistance’ (Art. 15-20)

The third section, ‘Cooperation and Judicial Assistance’ (Art. 15-20), governs the specific relation between theUN organs and the ICC bodies in the fulfilment of the latter’s proceedings before its jurisdiction.

In this regard, Article 15, ‘General provisions regarding cooperation between the United Nations and theCourt’, and pursuant to Article 87, para. 6 of the Rome Statute, specifies the nature and scope of judicial coop-eration and assistance between the UN and the ICC in terms of disclosure of information and documentationin the hands of the UN or other forms of cooperation and assistance that the UN can provide to the Court.

Article 16, ‘Testimony of the officials of the United Nations’, deals with the waiver of the obligation of confiden-tiality of UN officials as well as the appointment of a representative whenever the former have to appear aswitnesses before the Court.

According to Article 17, ‘Cooperation between the Security Council of the United Nations and the Court’, boththe UN Security Council and the ICC are due to communicate their activities to each other. The UN SecurityCouncil can decide to refer a situation, pursuant to Article 13(b) of the Rome Statute, to the jurisdiction of theCourt or to defer an investigation or prosecution, pursuant to Article 16 of the Rome Statute. The UN Secretary-General shall respectively ‘transmit the written decision of the Security Council to the Prosecutor together withdocuments and other materials’ or notify the deferral to the President and Prosecutor of the ICC. Whenever theCourt decides to take actions in both cases, it shall generally inform the UN Security Council through the UN

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Secretary-General accordingly; particularly, in case of referral, when a state fails to cooperate. In this regard,pursuant to Article 87, para. 5(b) or para. 7 of the Rome Statute, ‘the Court shall inform the Security Council orrefer the matter to it, as the case may be, and the Registrar shall convey to the Security Council through theSecretary-General the decision of the Court, together with relevant information in the case’.

Article 18, ‘Cooperation between the United Nations and the Prosecutor’, facilitates the cooperation betweenthe UN and the ICC Prosecutor in its latter duty to investigate, pursuant to Article 54 of the Rome Statute, ‘allfacts and evidence relevant to an assessment whether there is criminal responsibility’. Special arrangementshave to made between the Prosecutor and the UN, its programs, offices and funds in view of ensuring the con-fidentiality of revealed information and the protection of UN personnel or any other activity or operation of theUN. Moreover, disclosure of information and documentation provided by the UN that generates new evidenceshall not take place without the consent of the UN as underscore Article 18, para. 3 of the Negotiated Relation-ship Agreement and Article 54, para. 3(e) of the Rome Statute.

Nevertheless, Article 67, para. 2 of the Rome Statute and Rule 77 of the Rules of Procedure and Evidence mandatethat such information in the hands of the Prosecutor should be disclosed whenever helpful to the defence to sup-port his or her case. While Article 67, para. 2 of the Rome Statute as a general rule takes precedence over Article 54,para. 3(e) of the Rome Statute, the Trial Chamber of the ICC in the Lubanga case ordered a stay of proceedings asa result of the failure of the Prosecutor to disclose such evidence that could possibly exculpate the defence and itsimpact upon the defence’s right to a fair trial. The Prosecutor argued here that Article 67, para. 2 of the Rome Stat-ute should be read in conjunction with Article 18, para. 3 of the Negotiated Relationship Agreement and ‘that, inthe result, the obligation [to disclose exculpatory material] is limited to material that has not been provided to theprosecution confidentially or whenever the information provider, under a confidentiality agreement, has grantedconsent’ (ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on the consequences of non-disclosure of excul-patory 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, para. 34). Finally,the Appeals Chamber in the Lubanga case has ruled on this tension between the right to a fair trial and the respectfor an agreement between the Prosecutor and the information provider that is covered by a confidentiality clause.

While Article 18(3) provides that the Prosecutor may agree that material may not be disclosed to other organs ofthe Court, including to the Chambers, this does not mean that reliance by the Prosecutor on this provision wouldbe appropriate in all circumstances. The wording of Article 18(3) (‘may agree’) leaves room for other arrangementsbetween the UN and the Prosecutor. Whenever material is offered to the Prosecutor on the condition of confiden-tiality, he will have to take into account the specific circumstances, including the expected content and nature ofthe documents, and its potential relevance to the defence. On that basis he will have to determine under what exactconditions he may accept the material in question, bearing in mind his obligations under the Statute, and particu-lar under its Article 67(2) (ICC, Prosecutor v. Lubanga, ICC-01/04-01/06 OA, Judgment on the appeal of the Prose-cutor against the decision of Trial Chamber I entitled Decision on the consequence of non-disclosure of exculpa-tory 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. 51).

Moreover, the Appeals Chamber in this case confirmed the position of the Trial Chamber that evidence obtainedby the Prosecutor under Article 54, para. 3(e) of the Rome Statute can be potentially used subject to ‘the prior con-sent of the provider of the material or information and adequate prior disclosure to the accused’, as stipulates Rule82, para. 1 of the Rules of Procedure and Evidence. In the same case, the Appeals Chamber clarified the position ofthe Trial Chamber that the exceptional circumstances in which Article 54, para. 3(e) of the Rome Statute can beinvoked, only apply ‘to the generation of new evidence and that the provision must be applied in light of the otherobligations of the Prosecutor’ (ICC, Prosecutor v. Lubanga, ICC-01/04-01/06 OA, Judgment on the appeal of theProsecutor against the decision of Trial Chamber I entitled Decision on the consequence of non-disclosure of excul-patory 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. 55).

Article 19, ‘Rules concerning United Nations privileges and immunities’, regulates the waiver of privileges and immu-nities enjoyed by UN officials ‘necessary for the independent exercise of his or her work for the United Nations’; inorder for the Court to exercise its jurisdiction over those persons who are ‘alleged to be criminally responsible for acrime within the jurisdiction of the Court’. UN officials who commit those crimes that fall under the jurisdiction of theCourt would be barred from the Court’s jurisdiction as their privileges and immunities are determined by the Conven-tion on the Privileges and Immunities of the United Nations. They are not affected by Article 27 of the Rome Statutethat considers irrelevant only those immunities and privileges of nationals of States Parties to the Rome Statute andwho were acting under an official capacity. Therefore, Article 19 of the Negotiated Relationship Agreement implicitlyrecognizes the immunities and privileges of UN officials and explicitly expects that the waiver of such immunitiestakes place ‘in accordance with the Convention on the Privileges and Immunities of the United Nations and the rele-vant rules of international law’ in order for those UN officials to be brought before the jurisdiction of the Court.

Pursuant to Article 20, ‘Protection of confidentiality’, the UN is obliged to seek the consent of the originator of‘any information or documentation in its custody, possession or control which was disclosed to it in confidenceby a State or an intergovernmental, international or non-governmental organization or an individual’ and in-form the ICC accordingly of that consent.

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2.4. ‘Final Provisions’ (Art. 21-23)

The fourth section, ‘Final Provisions’ (Art. 21-23), deals with ‘Supplementary arrangements for the implemen-tation of the present Agreement’ (Art. 21), ‘Amendments’ (Art. 22), and ‘Entry into force’ (Art. 23).

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Art. 3. Seat of the Court

1. The seat of the Court shall be established atThe Hague in the Netherlands («the host State»).

2. The Court shall enter into a headquartersagreement with the host State, to be approved by

the Assembly of States Parties and thereafter con-cluded by the President of the Court on its behalf.

3. The Court may sit elsewhere, whenever itconsiders it desirable, as provided in this Statute.

MATTHIAS VANHULLEBUSCH

1. The Seat of the ICC in the Host State (Art. 3, para. 1 of the Rome Statute)

Since 1998, The Hague, the ‘legal capital of the world’ (P.J. VAN KRIEKEN and D. MCKAY (eds.), The Hague, LegalCapital of the World, The Hague, T.M.C. Asser Press, 2005), has once again been chosen to host another inter-national judicial institution. Besides the International Court of Justice (‘ICJ’), the International Criminal Tribu-nal for the former Yugoslavia (‘ICTY’) and the Appeals Chamber of the International Criminal Tribunal forRwanda (‘ICTR’), the Trial Chamber of the Special Court for Sierra Leone (‘SCSL’) and the Special Tribunal forLebanon (‘STL’), it also welcomes the International Criminal Court (‘ICC’).

Already in 1995, ‘the degree of cooperation of the host country in providing the necessary premises (e.g., court-rooms, office buildings) and detention facilities’ (‘Provisional Estimates of the Staffing, Structure and Costs ofthe Establishment and Operation of an International Criminal Court, Preliminary Report of the Secretary-Gen-eral’, UN Doc. A/AC.244/L.2, para. 48(c)), has been a determining factor for the United Nations (‘UN’) Secre-tariat in assessing the financial costs of sieging the future Court in any host State.

The Rome Statute in its Article 3, para. 1 explicitly recognizes the Netherlands as the host State and considersthe seat of the Court in The Hague to be mandatory and hence not subject to removal except when the RomeStatute would be amended accordingly. However, as the last paragraph of this Article indicates, the Court cansit in other locations when deemed desirable (below).

2. The Headquarters Agreement (Art. 3, para. 2 of the Rome Statute)

Before the final version of the Headquarters Agreement was approved by the Assembly of States Parties in2006, the relationship between the ICC and the Netherlands, i.e. the host State, was provisionally governed bythe Agreement between the UN and the Netherlands concerning the Headquarters of the ICTY (‘Report on theDraft Headquarters Agreement between the International Criminal Court and the Host State’, ICC-ASP/25,para. 3). Ultimately, the Headquarters Agreement only entered into force on 1 March 2008 (see ‘HeadquartersAgreement between the International Criminal Court and the Host State’, ICC-BD/04-01-08).

The Headquarters Agreement defines the nature and scope of the relationship between the ICC and the Neth-erlands in order ‘to facilitate the smooth and efficient functioning of the Court in the host State’ (see ‘Headquar-ters Agreement between the International Criminal Court and the Host State’, ICC-BD/04-01-08, Preamble).

The Preamble of the Headquarters Agreement continues and recognizes, firstly, the necessity for the Court toenter into a relationship with the host State, pursuant to Article 3, para. 2 of the Rome Statute, secondly, theCourt’s international legal capacity to do so, pursuant to Article 4 of the Rome Statute, thirdly, the enjoymentof the immunities and privileges ‘necessary for the fulfilment of its purposes […] in the territory of each StateParty, pursuant to Article 48 of the Rome Statute, and fourthly, the availability of detention facilities by thehost State, pursuant to Article 103 of the Rome Statute.

The other six chapters are entitled: ‘General Provisions’, ‘Status of the Court’, ‘Privileges, Immunities and Facil-ities accorded to Persons under this Agreement’, ‘Waiver of Privileges and Immunities’, and ‘Cooperation be-tween the Court and the Host State’, and ‘Final Provisions’.

2.1. ‘General Provisions’ (Art. 1-2)

Article 1, ‘Use of terms’, is an enumeration of the several denominations used in the present Headquarters Agreement.

Article 2, ‘Purpose and scope of this Agreement’, highlights the nature and scope of regulating all matters related toproper functioning of the Court, its Secretariat, and Assembly of States Parties, its Bureau and other subsidiary bodies.

2.2. ‘Status of the Court’ (Art. 3-16)

Article 3, ‘Legal status and juridical personality of the Court’, sets out the international legal personality of theCourt and its legal capacity ‘necessary for the exercise of its functions and the fulfilment [sic] of its purposes’, inaccordance with Article 4, para. 1 of the Rome Statute (below, the annotation on Art. 4 of the Rome Statute).

Article 4, ‘Freedom of assembly’, gives the Assembly of States Parties, its Bureau and other subsidiary bodies the ‘fullfreedom of assembly, including freedom of discussion, decision and publication’, as guaranteed by the host State.

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According to Article 5, ‘Privileges, immunities and facilities of the Court’, the ICC ‘shall shall enjoy, in the territoryof the host State, such privileges, immunities and facilities as are necessary for the fulfilment [sic] of its purposes’.

Article 6, ‘Inviolability of the premises of the Court’, Article 7, ‘Protection of the premises of the Court and theirvicinity’, Article 8, ‘Law and authority on the premises of the Court’, and Article 9, ‘Public services for thepremises of the Court’, give a detailed explanation of the respective responsibilities of the Court and the hostState with respect to the inviolability, use, protection and law applicable on the premises of the Court, both inthe normal conduct of its activities but also in case of emergency scenarios. Article 10, ‘Flag, emblem andmarkings’, gives equal entitlement to the Court to ‘display its flag, emblem and markings at its premises andon vehicles and other means of transportation used for official purposes’.

Article 11, ‘Funds, assets and other property’, exempts ‘funds, assets and other property of the Court, whereverlocated and by whomsoever held’, and which are immune from legal process or ‘search, seizure, requisition,confiscation, expropriation and any other form of interference’, and ‘from restrictions, regulations, control ormoratoria of any nature’.

Linked with the inviolability of the premises of the Court, its funds, assets and other property, pursuant to Ar-ticle 12, ‘Inviolability of archives, documents and materials’, ‘the archives of the Court, and all papers and doc-uments in whatever form, and materials being sent to or from the Court, held by the Court or belonging to it,wherever located and by whomsoever held, shall be inviolable’.

Article 13, ‘Facilities in respect of communications’, regulates the rights and duties of the Court with respect toits ‘official communication and correspondence’.

Linked with the exemption stipulated under Article 11 of the Headquarters Agreement, pursuant to Article 14,‘Freedom of financial assets from restrictions’, the Court can freely dispose and raise its funds, purchase anycurrency and ‘shall enjoy treatment not less favourable than that accorded by the host State to any intergov-ernmental organization or diplomatic mission in respect of rates of exchange for its financial transactions’.

According to Article 15, ‘Exemption from taxes and duties for the Court and its property’, ‘[w]ithin the scope ofits official activities, the Court, its assets, income and other property shall be exempt from all direct taxes,whether levied by national, provincial or local authorities’, except for public utilities services charges.

Related to Article 13 of the Headquarters Agreement, Article 16, ‘Exemption from import and export restric-tions’, does not impose any restrictions upon the Court to import or export Articles ‘for its official use and inrespect of its publications’.

2.3. ‘Privileges, Immunities and Facilities accorded to Persons under this Agreement’ (Art. 17-29)

Article 17, ‘Privileges, immunities and facilities of judges, the Prosecutor, the Deputy Prosecutors and the Reg-istrar’, and Article 18, ‘Privileges, immunities and facilities of the Deputy Registrar and staff of the Court’, reg-ulate the privileges, immunities and facilities of the respective persons during and after their mandate but inthe exercise of their functions, including, inter alia, personal inviolability and of their official papers, immunityfrom legal process, taxation/import/export exemption, and for their family members. Pursuant to Article 19,‘Personnel recruited locally and not otherwise covered by this Agreement’ shall also be ‘accorded immunityfrom legal process in respect of words spoken or written and all acts performed by them in their official capac-ity for the Court’ and which shall extend ‘after termination of their employment with the Court’.

Article 20, ‘Employment of family members of officials of the Court’, enumerates which members of the familyof ICC officials can work for the ICC and the social and fiscal legislation of the host State applicable to theirwork relationship with the Court.

According to Article 21, ‘Representatives of States participating in the proceedings of the Court’, Article 22,‘Representatives of States participating in the Assembly and its subsidiary bodies and representatives of inter-governmental organizations’, and Article 23, ‘Members of the Bureau and of subsidiary bodies’, these categoryof persons enjoy similar privileges and immunities in the exercise of their respective functions like those set outin Article 17 and 18 of the Headquarters Agreement.

Article 24, ‘Interns and visiting professionals’, sets out the details of registration procedures of interns and vis-iting professionals as well as the limited immunities ‘from legal process in respect of words spoken or writtenand all acts performed by them in their official capacity for the Court’ and the ‘inviolability of all papers, docu-ments in whatever form and materials relating to the performance of their functions for the Court’.

According to Article 25, ‘Counsel and persons assisting counsel’, counsels and those assisting them shall enjoysimilar immunities as set out in Article 17 and 18 of the Headquarters Agreement in ‘the free and independentperformance of their functions before the Court’ upon the condition they comply with the production of a cer-tificate when appointed as recognized counsel before the Court in accordance with the Rome Statute and theRules of Procedure and Evidence and the Regulations of the Court.

Article 26, ‘Witnesses’, gives witnesses similar immunities as set out in Article 17 and 18 of the HeadquartersAgreement ‘to the extent necessary for their appearance before the Court for purposes of giving evidence’, until

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‘after fifteen consecutive days following the date on which the presence of the witness concerned is no longerrequired by the Court, provided such witness had an opportunity to leave the host State during that period’.Article 27, ‘Victims’, gives similar immunities to victims and adopts similar conditions as set out in Article 26.

Article 28, ‘Experts’, gives experts, similar immunities as set out in Article 25 of the Headquarters Agreement‘to the extent necessary for the independent performance of their functions’, until ‘after fifteen consecutivedays following the date on which the presence of the expert concerned is no longer required by the Court, pro-vided such expert had an opportunity to leave the host State during that period’.

According to Article 29, ‘Other persons required to be present at the seat of the Court’, sets out similar condi-tions to the immunities and privileges of other persons required to be present at the seat of the Court as de-tailed in Article 27 of the Headquarters Agreement.

2.4. ‘Waiver of Privileges and Immunities’ (Art. 30-32)

Article 30, ‘Waiver of privileges, immunities and facilities provided for in Articles 17,18, 19, 24, 25, 26, 27, 28 and 29’,reminds that the privileges, immunities and facilities provided to the persons described in their respective Articles ofthe Headquarters Agreement ‘are granted in the interests of the good administration of justice and not for the per-sonal benefit of the individuals themselves’ and that they can be waived when ‘they would impede the course ofjustice’. Such waiver should take place in accordance with Article 48 of the Rome Statute and with respect for therespective authority responsible to waive those immunities and privileges of the persons under their authority.

Article 31, ‘Waiver of privileges, immunities and facilities of representatives of States and members of the Bu-reau provided for in Articles 21, 22 and 23’, and Article 32, ‘Waiver of privileges, immunities and facilities ofmembers of subsidiary bodies and of experts for the Assembly, including its Bureau and subsidiary bodies, pro-vided for in Articles 23 and 28, para. 6’, adopts similar conditions as set out in Article 30 of the HeadquartersAgreement when it concerns the waiver of privileges, immunities and facilities of the respective persons.

2.5. ‘Cooperation between the Court and the Host State’ (Art. 33-51)

Chapter V of the Headquarters Agreement is subdivided in three sections, entitled respectively ‘General’ (Art. 33-36), ‘Visas, permits and other documents’ (Art. 37-42), and ‘Security, operational assistance’ (Art. 43-51).

2.5.1. ‘General’ (Art. 33-36)

Article 33, ‘General cooperation between the Court and the host State’, gives a general introduction to the co-operation between the respective competent authorities and agents of the host State and the Court who areresponsible for their actions between them and are acting as contact points between both authorities.

Article 34, ‘Cooperation with the competent authorities’, lists different areas and domains of cooperation be-tween the Court and the competent authorities of the host State, especially in the field police and fire regula-tions, public order and national security, and other national laws and directives enacted by the host State.

Article 35, ‘Notification’, imposes upon the Court and the host State to respectively notify the host State aboutthe arrival and departure of its officials and their members family and/or domestic servants as well as issuethose officials and their members of family and/or domestic servants the required identity cards.

According to Article 36, ‘Social security regime’, Court officials and their members of family are exempt fromany provisions related to the social security regime of the host State, unless they respectively ‘they take up gain-ful activity in the host State’ or ‘are engaged in gainful employment in the host State, or are self-employed, orreceive social security benefits from the host State’.

2.5.2. ‘Visas, permits and other documents’ (Art. 37-42)

Article 37, ‘Visas for the officials of the Court, visas for representatives of States participating in the proceedingsof the Court, and visas for counsel and persons assisting counsel’, Article 38, ‘Visas for witnesses, victims, ex-perts, interns, visiting professionals and other persons required to be present at the seat of the Court’, and Ar-ticle 39, ‘Visas for visitors of persons detained by the Court’, set out the scope and limitation of the freedom ofmovement and the costs for visa applications of the respective categories of persons.

In order to facilitate the cooperation between civil society and other media groups and the Court, Article 40,‘Independent bodies of counsel or legal associations, journalists and non-governmental organizations’, dealswith the accreditation of such bodies and the organization of visa and residence permits for these respectivecategories of persons.

According to Article 41, ‘Laissez-passer’, ‘[t]he host State shall recognize and accept the United Nations laissez-passer or a travel document issued by the Court to its officials as valid travel documents’.

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Article 42, ‘Driving licence’, regulates all matters related to the recognition of valid foreign driving licences ofthe Court officials and their members of family and/or their domestic servants.

2.5.3. ‘Security, operational assistance’ (Art. 43-51)

Article 43, ‘Security, safety and protection of persons referred to in this Agreement’, requires that the Court shall ob-serve all security and safety directives issued by the host State and that the host State ‘shall take effective and adequateaction which may be required to ensure the security, safety and protection of persons referred to in this Agreement’.

According to Article 44, ‘Transport of persons in custody’, the Court’s requests for any transport of individualsin custody, either from ‘the point of arrival in the host State to the premises of the Court’, from ‘the point ofdeparture from the host State’, or ‘in the host State outside the premises of the Court’, shall be carried out byand in consultation with the competent authorities of the host State.

Article 45, ‘Transport of persons appearing before the Court voluntarily or pursuant to a summons’, appliesmutatis mutandis. Moreover, Rule 192, para. 1, ‘Transfer of a person in custody’, of the Rule of Procedure andEvidence before the ICC, continues that the ‘[t]ransfer of a person in custody to the Court in accordance withArticle 93, para. 7, shall be arranged by the national authorities concerned in liaison with the Registrar and theauthorities of the host State’. Rule 184, ‘Arrangements for surrender’, of the same Rules of Procedure and Evi-dence, adds that ‘[t]he Registrar shall maintain contact with the authorities of the host State in relation to thearrangements for the surrender of the person to the Court’.

Article 46, ‘Cooperation in detention matters’, regulates all matters related to the detention of persons in orderto facilitate the performance of the functions of the Court in its detention centre.

Article 47, ‘Interim release’, imposes the obligation upon the host State to ‘facilitate the transfer of personsgranted interim release into a State other than the host State’ or their re-entry into the host State ‘for any pur-pose related to proceedings before the Court’.

Whenever a persons is released without conviction, Article 48, ‘Release without conviction’, imposes the Courtto make arrangements accordingly with any State who ‘is obliged to receive him or her’, who ‘agrees to receivehim or her’, or who ‘has requested his or her extradition with the consent of the original surrendering State’.Rule 185, para. 1, ‘Release of a person from the custody of the Court other than upon completion of sentence’,of the Rules of Procedure and Evidence before the ICC continues that ‘the host State shall facilitate the transferin accordance with the agreement referred to in Article 3, para. 2 [i.e. the Headquarters Agreement betweenthe ICC and the host State], and the related arrangements’.

In the case where no State has been designated ‘to accept sentenced persons’ in accordance with Article 103,para. 1 of the Rome Statute, then, by default, in accordance with Article 103, para. 4 of the Rome Statute, the‘sentence of imprisonment shall be served in a prison facility made available by the host State’. In this regard,Article 49 of the Headquarters Agreement, ‘Enforcement of sentences in the host State’, points out the differentresponsibilities and procedures to facilitate this process accordingly. Article 50, ‘Short-term detention arrange-ments’, similarly lists the respective responsibilities and procedures available to the Court and the host State,namely to detain sentenced persons for a short period.

Article 51, ‘Limitation to the exercise of jurisdiction by the host State’, regulates matters of extradition or assis-tance requests from other State to the host State.

2.6. ‘Final Provisions’ (Art. 52-58)

According to Article 52, ‘Supplementary arrangements and agreements’, ‘[t]he Court and the host State may,for the purpose of implementing this Agreement or of addressing matters not foreseen in this Agreement,make other supplementary agreements and arrangements as appropriate’.

Article 53, ‘No less favourable treatment provision’, entitles the Court to benefit from ‘more favourable privi-leges, immunities and treatment’ whenever the host State gives those to other international organizations ortribunals on its territory.

Article 54, ‘Settlement of disputes with third parties’, authorizes the Court, ‘without prejudice to the powersand responsibilities of the Assembly under the Statute’, to adopt provisions for settling disputes, either ‘arisingout of contracts and other disputes of a private-law character to which the Court is a party’ or ‘involving anyperson referred to in this Agreement who, by reason of his or her official position or function in connectionwith the Court, enjoys immunity, if such immunity has not been waived’.

Pursuant to Article 55, ‘Settlement of differences on the interpretation or application of this Agreement or sup-plementary arrangements or agreements’, the Court and host State shall settle such differences ‘by consulta-tion, negotiation or other agreed mode of settlement’, such as through an arbitral tribunal.

According to Article 56, ‘Application’, the Headquarters Agreement ‘shall apply to the part of the Kingdom inEurope only’.

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Article 57, ‘Amendments and termination’, permits the Court and the host State to amend, terminate andcease to be in force this Headquarters Agreement.

Article 58, ‘Entry into force’, sets the day of the entry into force of this Headquarters Agreement.

3. The Sitting of the ICC outside the Host State (Art. 3, para. 3 of the Rome Statute)

Once fully operational, according to Article 3, para. 3 of the Rome Statute, ‘[t]he Court may sit elsewhere,whenever it considers it desirable’. Article 62 of the Rome Statute that regulates the place of trial, states thefollowing: ‘Unless otherwise decided, the place of the trial shall be the seat of the Court’. Rule 100 of the Rulesof Procedure and Evidence before the ICC regulating the place of the proceedings, continues:

1. In a particular case, where the Court considers that it would be in the interests of justice, it may decide to sitin a State other than the host State.

2. An application or recommendation changing the place where the Court sits may be filed at any time after theinitiation of an investigation, either by the Prosecutor, the defence or by a majority of the judges of the Court.Such an application or recommendation shall be addressed to the Presidency. It shall be made in writing andspecify in which State the Court would sit. The Presidency shall satisfy itself of the views of the relevant Chamber.

3. The Presidency shall consult the State where the Court intends to sit. If that State agrees that the Court cansit in that State, then the decision to sit in a State other than the host State shall be taken by the judges, in ple-nary session, by a two- thirds majority.

However, Article 62 of the Rome Statute and Rule 100 of the Rules of Procedure and Evidence only deal respec-tively with the place of trial and of the proceedings before the Court, and not with other situations, such as forexample the establishment of field offices and liaison offices with other international organizations. In the sit-uation on Kenya before the Court, the Pre-Trial Chamber II did consider the place of the proceedings regardingthe confirmation of the charges to take place in Kenya but ultimately ruled that, ‘absent any decision to thecontrary [by the plenary of Judges]’, they will take place in The Hague (ICC, Prosecutor v. Ruto et al., ICC-01/09-01/11, Decision requesting the parties to submit information for the preparation of the confirmation ofcharges hearing, 29 June 2011, para. 14). Evidently, as the Court pointed out in the Lubanga case, the hostcountry, i.e. the Democratic Republic of the Congo, would also have to consent that parts of the proceedingscould take place on its territory (ICC, Prosecutor v. Lubanga, ICC-01/04-01/06, Decision on disclosure issues,responsibilities for protective measures and other procedural matters, 24 April 2008, Annex 2, para. 105).

Field offices in particular facilitate the investigation into a situation before the Court’s jurisdiction, the outreach,and the collaboration with the defence, witnesses and victims. Seven situations are currently before the ICC wherethe Court has field offices in six countries: the Democratic Republic of the Congo, Uganda, Central African Republic,Darfur (Sudan), Kenya and Côte d’Ivoire (see Report of the International Criminal Court on its activities for 2010/11, UN Doc. A/66/309). In the Katanga case, the Judges found it also useful to organize a judicial site visit to theconcerned region in the Democratic Republic of the Congo in order to better understand the context (see ICC, Pros-ecutor v. Katanga, ICC-01/04-01/07, Order Inviting the Parties and Participants to Make Observations Regarding aJudicial Site Visit, 26 August 2011, para. 7). Moreover, Article 12 of the Agreement on the Privileges and Immunitiesof the International Criminal Court, ‘Exercise of the functions of the Court outside its headquarters’, recognizes that:

In the event that the Court, pursuant to Article 3, para. 3, of the Statute, considers it desirable to sit elsewherethan at its headquarters at The Hague in the Netherlands, the Court may conclude with the State concernedan arrangement concerning the provision of the appropriate facilities for the exercise of its functions.

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