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Jurisdiction & Cooperation > ICTP > Flashcards

ICTP Flashcards

1
Q

Trigger mechanisms

A

-state party referral
-UNSC referral
-Prosecutor initiates proprio motu

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1
Q

Standard for preliminary investigations

A

reasonable basis to proceed

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2
Q

Phase 1 (prelim investigation)

A

only necessary for proprio motu investigations; initial assessment as to whether to proceed

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3
Q

Phase 2 (prelim investigations)

A

formal commencement stage of preliminary investigations, analyze whether preconditions for jurisdiction exist

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4
Q

Phase 3 (prelim investigations)

A

preliminary investigations stage analyzing admissibility (i.e complementarity and gravity)

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5
Q

Phase 4 (prelim investigations)

A

Preliminary investigations stage analyzing interests of justice

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6
Q

Preconditions for jurisdiction

A

Subject-matter (core crimes); territorial (state party); personal (whoever committed an int crime); temporal (after ratification)

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7
Q

Complementarity

A

ICC admissibility criteria: foregoing international prosecution in favor of a domestic prosecution. “Positive” version of this (encouraging domestic prosecution) currently OTP strategy at ICC

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8
Q

Same conduct test

A

test for complementarity: domestic prosecutions must cover “same individual and substantially the ____”

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9
Q

Kenya situation

A

case which established the principle at ICC that complementarity is not satisfied by a state simply giving assurances that they will prosecute

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10
Q

Primacy

A

Ad hocs: int. tribunal takes priority over domestic courts

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11
Q

Standard for complementarity

A

ICC can take a case even if a domestic court is prosecuting it if state is “unwilling or unable” to prosecute

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12
Q

Factors for assessing gravity

A

-Scale of crimes
-nature of crimes
-manner of commission
-impact

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13
Q

Case selection criteria

A

-strategic (one case is more important than the other considering resources)
-operational (one case has better evidence)

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14
Q

Art. 99(4) RS

A

ICC article outlining exceptions for need for state cooperation in on site evidence gathering

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15
Q

Art. 57(3)(d) RS

A

ICC article for failed state scenario (PTC authorizes on site evidence gathering w/o state consent)

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16
Q

Judicial investigative powers under IRMCT

A

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)

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17
Q

Judicial investigative powers at ICC

A

-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

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18
Q

IRMCT Standard for arrest warrants

A

Prima facie standard

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19
Q

Exceptional circumstances standard

A

At ad hocs, old rule that provisional detention was the norm

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20
Q

Summons to appear

A

Alternative to arrest warrant at ICC

21
Q

ICC standard for arrest warrants

A

Reasonable grounds to believe

22
Q

Art. 58(1)(b) RS

A

Article outlining balancing of risks to determine whether provisional detention is necessary

23
Q

Bemba appeal

A

Case that discussed changing circumstances and inexcusable delay by prosecutor requirements, decided that defendants shouldn’t have been released

24
Q

ICC Grounds for arrest

A

-risk of flight
-risk of obstruction/endangerment of investigations or proceedings
-risk of reoffense

25
Q

Requirements for provisional detention

A

-sine qua non condition (reasonable suspicion that a crime has been committed)
-intention to bring person to trial
-“relevant and sufficient grounds”

26
Q

Relevant and sufficient grounds

A

-flight risk
-risk of obstruction of justice
-risk of release causing public disorder

27
Q

Safeguards of provisional detention

A

-necessity
-subsidiarity
-proportionality
-right to challenge detention

28
Q

Evidentiary requirements to establish prima facie case

A

-Sufficient basis to seek an arrest warrant or summons
-Admissibility
-Interests of justice

29
Q

DCC (document containing the charges)

A

ICC version of indictment

30
Q

Requirements for indictment

A

-include material facts underpinning prosecution
-describe facts and circumstances related to charge

31
Q

iura novit curia principle

A

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

32
Q

Ad hoc confirmation of charges standard

A

Prima facie case: credible case which would be sufficient to convict if defense didn’t respond

33
Q

ICC confirmation of charges standard

A

Substantial grounds threshold: substantial grounds to believe that the elements of the crime can be met

34
Q

Types of evidentiary rules

A

-Power-based
-rights-based
-procedural

35
Q

Trial standard of proof

A

Beyond a reasonable doubt, standard that applies also to any facts indispensable for conviction

36
Q

Categories of evidence

A

-Testimonial
-documentary
-physical
-forensic

37
Q

Bemba test for admissibility of evidence

A

-relevance
-probative value
-weighing of probative value against potential prejudice to defendant

38
Q

Mandatory exclusion test

A

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

39
Q

Victim participation in common law systems

A

Limited roles as witnesses, victim impact statements

40
Q

French model for victim participation

A

Used in France, Belgium, and Cambodia; victim participation model where parties pursue private interests and reparations are part of trial

41
Q

German model for victim participation

A

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

42
Q

Scandinavian model for victim participation

A

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

43
Q

ICC Victim rights

A

-right to legal representation
-right to protection
-right to reparations
-right to participate
-right to be notified (depends on status and stage of proceedings)

44
Q

ICC victims legal status

A

sui generis generally, and dual status during trial as witnesses, representatives at reparations proceedings

45
Q

Art. 68(3) RS

A

Article of ICC with legal test for qualifying victims for participation

46
Q

Modalities of participation

A

-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

47
Q

Art. 64 RS

A

ICC Article setting out balancing test between rights of victims and rights of accused

48
Q

Art. 57(3)(d)

A

Article for unique investigative opportunity (someone dies before proceedings, etc.) allowing PTC to investigate evidence

49
Q

TFV

A

Trust Fund for Victims; independent but interconnected with ICC, dual mandate of implementing court ordered reparations and assistance to victims

50
Q

Registry (for victims)

A

Organ of ICC mandated to serve victims

Jurisdiction & Cooperation (2 decks)

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