ICTP Flashcards
Trigger mechanisms
-state party referral
-UNSC referral
-Prosecutor initiates proprio motu
Standard for preliminary investigations
reasonable basis to proceed
Phase 1 (prelim investigation)
only necessary for proprio motu investigations; initial assessment as to whether to proceed
Phase 2 (prelim investigations)
formal commencement stage of preliminary investigations, analyze whether preconditions for jurisdiction exist
Phase 3 (prelim investigations)
preliminary investigations stage analyzing admissibility (i.e complementarity and gravity)
Phase 4 (prelim investigations)
Preliminary investigations stage analyzing interests of justice
Preconditions for jurisdiction
Subject-matter (core crimes); territorial (state party); personal (whoever committed an int crime); temporal (after ratification)
Complementarity
ICC admissibility criteria: foregoing international prosecution in favor of a domestic prosecution. “Positive” version of this (encouraging domestic prosecution) currently OTP strategy at ICC
Same conduct test
test for complementarity: domestic prosecutions must cover “same individual and substantially the ____”
Kenya situation
case which established the principle at ICC that complementarity is not satisfied by a state simply giving assurances that they will prosecute
Primacy
Ad hocs: int. tribunal takes priority over domestic courts
Standard for complementarity
ICC can take a case even if a domestic court is prosecuting it if state is “unwilling or unable” to prosecute
Factors for assessing gravity
-Scale of crimes
-nature of crimes
-manner of commission
-impact
Case selection criteria
-strategic (one case is more important than the other considering resources)
-operational (one case has better evidence)
Art. 99(4) RS
ICC article outlining exceptions for need for state cooperation in on site evidence gathering
Art. 57(3)(d) RS
ICC article for failed state scenario (PTC authorizes on site evidence gathering w/o state consent)
Judicial investigative powers under IRMCT
Issuance of orders, warrants, summonses, subpoenas necessary for investigations, or required for preparation or conduct of the trial at request of the prosecutor in the context of indictment review (art. 17(2), IRMCT St.); at request of either party or proprio motu (R55, IRMCT RPE)
Judicial investigative powers at ICC
-TC: may require attendance/testimony/docs/other evidence through state assistance, order production of additional evidence (either party), provide for protection of accused/witnesses/victims
-PTC: arts. 56 and 57, Functions to facilitate investigations, no evidentiary power; Exception for unique investigative opportunity
IRMCT Standard for arrest warrants
Prima facie standard
Exceptional circumstances standard
At ad hocs, old rule that provisional detention was the norm
Summons to appear
Alternative to arrest warrant at ICC
ICC standard for arrest warrants
Reasonable grounds to believe
Art. 58(1)(b) RS
Article outlining balancing of risks to determine whether provisional detention is necessary
Bemba appeal
Case that discussed changing circumstances and inexcusable delay by prosecutor requirements, decided that defendants shouldn’t have been released
ICC Grounds for arrest
-risk of flight
-risk of obstruction/endangerment of investigations or proceedings
-risk of reoffense
Requirements for provisional detention
-sine qua non condition (reasonable suspicion that a crime has been committed)
-intention to bring person to trial
-“relevant and sufficient grounds”
Relevant and sufficient grounds
-flight risk
-risk of obstruction of justice
-risk of release causing public disorder
Safeguards of provisional detention
-necessity
-subsidiarity
-proportionality
-right to challenge detention
Evidentiary requirements to establish prima facie case
-Sufficient basis to seek an arrest warrant or summons
-Admissibility
-Interests of justice
DCC (document containing the charges)
ICC version of indictment
Requirements for indictment
-include material facts underpinning prosecution
-describe facts and circumstances related to charge
iura novit curia principle
ICC Rules and Regs 55, principle that the court knows the law: judges may modify the legal characterization of the facts subject to relevant guarantees
Ad hoc confirmation of charges standard
Prima facie case: credible case which would be sufficient to convict if defense didn’t respond
ICC confirmation of charges standard
Substantial grounds threshold: substantial grounds to believe that the elements of the crime can be met
Types of evidentiary rules
-Power-based
-rights-based
-procedural
Trial standard of proof
Beyond a reasonable doubt, standard that applies also to any facts indispensable for conviction
Categories of evidence
-Testimonial
-documentary
-physical
-forensic
Bemba test for admissibility of evidence
-relevance
-probative value
-weighing of probative value against potential prejudice to defendant
Mandatory exclusion test
Evidence must be excluded if:
-Evidence was obtained in violation of statutory scheme or HR violations
-Casts substantial doubt on reliability of evidence/integrity of proceedings
Victim participation in common law systems
Limited roles as witnesses, victim impact statements
French model for victim participation
Used in France, Belgium, and Cambodia; victim participation model where parties pursue private interests and reparations are part of trial
German model for victim participation
Victim participation model where victims are on the side of the Prosecution; they assist in securing convictions, acting as an auxiliary/accessory/secondary/subsidiary prosecutor
Scandinavian model for victim participation
Model for victim participation used in Sweden and Finland where victims are sui generis participants and have extensive involvement, including a right to testify in their own right
ICC Victim rights
-right to legal representation
-right to protection
-right to reparations
-right to participate
-right to be notified (depends on status and stage of proceedings)
ICC victims legal status
sui generis generally, and dual status during trial as witnesses, representatives at reparations proceedings
Art. 68(3) RS
Article of ICC with legal test for qualifying victims for participation
Modalities of participation
-Opening and closing statements (confirmation hearing, trial)
-Attendance, written submissions, access to documents
-Questioning witnesses, experts or the accused (upon leave and subject to parties’ responses)
-Present “views and concerns” in person
-Leading evidence re. determination of the truth + challenge admissibility
Art. 64 RS
ICC Article setting out balancing test between rights of victims and rights of accused
Art. 57(3)(d)
Article for unique investigative opportunity (someone dies before proceedings, etc.) allowing PTC to investigate evidence
TFV
Trust Fund for Victims; independent but interconnected with ICC, dual mandate of implementing court ordered reparations and assistance to victims
Registry (for victims)
Organ of ICC mandated to serve victims
