Procedural Aspects

Question 1

What are the unique features of International Criminal Procedure?

Answer 1

Heavy reliance on cooperation with national justice systems.
Complex investigations and trials for mass atrocities, leading to lengthy proceedings.
Dependence on witnesses and external publicity.
Participants with different legal backgrounds.
Absence of a complete justice system (e.g., no effective legislature).
Lack of supervision by international human rights systems.

Question 2

How has International Criminal Procedure evolved from Post-WWII to the ICC?

Answer 2

Post-WWII Tribunals: Simple, adversarial, few rules.
ICTY/ICTR: Judge-made rules, mixed adversarial/inquisitorial, human rights emphasis.
ICC: More inquisitorial elements, victim roles, state cooperation challenges.

Question 3

What are the preconditions for ICC jurisdiction?

Answer 3

1. Temporal: Post-2002 crimes.
2. Territorial/Personal: State nationals or crimes in states under ICC jurisdiction.
3. A non-State Party, when the UN Security Council has referred the situation to the Court, under Chapter VII of the UN Charter

Question 4

What is the complementarity principle in ICC admissibility?

Answer 4

The ICC steps in only if a state is unwilling or unable to prosecute due to shielding suspects, bias, or system collapse.

Question 5

What are the ICC’s core crimes?

Answer 5

Genocide, war crimes, crimes against humanity, and aggression.

Question 6

What challenges are associated with ICC investigations?

Answer 6

Lack of state cooperation.
Over-reliance on intermediaries.
Insufficient pre-trial investigations.
Security, cultural, and linguistic barriers.
Over-collection of crime base materials and under-collection of linkage evidence.

Question 7

What are the ICC Pre-Trial Chamber’s roles in investigations?

Answer 7

Authorize investigations.
Ensure evidence preservation.
Facilitate protective measures for witnesses and victims

Question 8

What principles guide ICC arrest and detention procedures?

Answer 8

Right to liberty and presumption of innocence.
Detention as an exception, not the rule.
Risks assessed: flight, obstruction, or public endangerment

Question 9

What is the ICC process for arrest warrants?

Answer 9

Prosecutor applies to Pre-Trial Chamber (PTC).
Grounds: reasonable belief of crime and risks (flight, obstruction).
States are obligated to cooperate for execution

Question 10

How is evidence evaluated in international criminal law?

Answer 10

Relevance, probative value, and prejudicial effect.
Holistic assessment in light of all evidence.

Question 11

What are the key evidentiary standards in the ICC?

Answer 11

Confirmation of charges: Substantial grounds to believe.
Trial: Guilt beyond a reasonable doubt.

Question 12

What types of evidence are increasingly used in ICC trials?

Answer 12

Digital evidence: social media, satellite images, financial records.
Expert analyses on geolocation and metadata.

Question 13

What are the pre-conditions for admissibility at the ICC

Answer 13

Complementarity + Gravity, also In the Interest of Justice. Also the state cannot be pursuing in essence the same crime. - we want to encourage national proceedings

Question 14

Complementarity

Answer 14

Unwillingness (art. 17) – shielding a person from criminal responsibility; lack of impartiality; unjustified delay in bringing the person to justice. Inability (art. 17) – total or substantial collapse of the judicial system.

Question 15

Gravity

Answer 15

Highly discretionary. Factors include: scale of the crime, nature of the crimes (prioritizes crimes like sexual crimes, killing, etc.), manner of commission (how violence and cruel it was), impact of the crimes. Interests of justice – prosecutorial discretion but there is a ‘substantial reasons to believe’ standard.

Question 16

Interests of Justice

Answer 16

The prosecutor can consider if it is NOT in the interests of justice to proceed, but she does not need to establish whether an investigation would be in the interests of justice.

Question 17

Jurisdiction or the admissibility of a case may be challenged at any time prior to the commencement of trial by…

Answer 17

(1) the accused or a person for whom a warrant of arrest or a summons to appear has been issued;
(2) any state with concurrent jurisdiction over the crimes and where the investigation or prosecution has been commenced; and
(3) any state from which acceptance of jurisdiction is required

Question 18

Referral Mechanisms

Answer 18

State party, UNSC referral, or proprio motu by Prosecutor.

Question 19

Preliminary examination at the ICC Standard

Answer 19

‘Reasonable basis to proceed’ (art. 53(1) RS). this is the lowest standard of proof within the RS.

Question 20

Preliminary Investigation Statutory Criteria

Answer 20

Positive requirements: (a) jurisdiction; (b) admissibility (complementarity + gravity); Countervailing considerations: (c) interests of justice

Question 21

What is the Preliminary Investigation phased approach

Answer 21

Phase 1: (initial assessment) only for art. 15 communications
Phase 2: (formal commencement) preconditions for jurisdiction
Phase 3: admissibility – complementarity + gravity
Phase 4: interests of justice

Question 22

What does the ICC Pre-Trial Chamber do?

Answer 22

Authorizes investigations when required (proprio motu cases).
Issues orders to facilitate investigations.
Protects participants and ensures evidence preservation.
Can authorize on-site investigations in exceptional circumstances

Question 23

What does the ICC Trial Chamber do?

Answer 23

Manages evidence presentation, witness testimony, and procedural fairness during trials.

Question 24

Formal Investigation and Case Selection

Answer 24

• Full scope of investigative powers (art. 54 RS) → higher threshold to prosecute specific cases – ‘sufficient basis to prosecute’ – and the same parameters are applied in a stricter way, with a new focus (art. 53(2) RS).
• Case prioritization criteria: strategic and operational criteria, when faced with the ‘need to prioritize among the selected cases within a situation and across the various situations’.

Question 25

Investigations at International Criminal Tribunals:

Answer 25

Standard: Pima Facie case
* Distinct features:
- Reliance on state cooperation for access and collection of evidence
- Distance between trials and evidence, the complexity of on-site investigations
- Need to preserve evidence
- Flexible regulation and broad discretion to accommodate ‘realities on the ground’ on a case by case basis
- Prosecutors are responsible for conducting investigations
- There is an emphasis placed on the importance of the Prosecutor independently and directly gathering evidence ‘on site’ because of the reluctance of witnesses to testify, the principle of upholding standards of admissibility, and the importance of general familiarization with the ‘crime scene’
- Prosecutorial power to conduct on site investigations are, in theory, unconditional and bypasses the permission of states in the case of international tribunals

Question 26

Role of ICC Pre-Trial Chamber in Investigations

Answer 26

• Issuing orders for prosecutorial investigations and/or to assist the defense (art. 57)
• Providing for the protection and sometimes privacy of relevant participants and persons and ensuring evidence preservation. (art. 57)
• Can authorize on-site investigations without state cooperation in exceptional circumstances. (art. 57)
• Can seek state cooperation to take protective measures for the purpose of forfeiture. (art. 57)
• Can take measures to ensure the efficiency and integrity of the proceeding at the request of the prosecutor or proprio motu after consultation with the prosecutor on unjustified failure to request such measures

Question 27

Defense investigations

Answer 27

• Representation completely independent from the court
• No duty of states to cooperate with the defense, but the ICC PTC may seek assistance on their behalf
• Defense has rights to a fair trial, and, specifically, right to have adequate time and facilities to prepare defense art. 19, IRMCT St. / art. 67, RS. A budget is provided for this.
• Disclosure of evidence by the Prosecution is important, to avoid imbalance in access to information and evidence ( R71, IRMCT RPE; art. 67(2), RS).
• At the ICC, administrative and logistical support is provided by the Counsel Support Section of the Registry.
• Lack of regulations for defense investigations

Question 28

Suspect

Answer 28

Pre-indictment

Question 29

Accused

Answer 29

Post-indictment

Question 30

The process for arrest and detention is

Answer 30

Arrest → detention in custodial state → transfer/surrender to tribunal/court → detention in host state

Question 31

Substantive requirements for lawful detention:

Answer 31

(i) ‘Reasonable suspicion’ as to the commission of a crime (conditio sine qua non).
(ii) ‘Relevant and sufficient grounds’: risk of flight, risk of obstruction, risk of recidivism, risk of public disorder.

Question 32

Pre-Trial Detention Safeguards

Answer 32

Necessity, subsidiarity and proportionality: detention as last resort, no alternative less restrictive measures available.
Gravity of the crime cannot be the sole factor; arrest/detention cannot be used in anticipation of high prison sentence (presumption of innocence).
Focus should be on concrete situation; no ‘stereotyped formulae’ or ‘general and abstract’ considerations.
Right to challenge detention at reasonable intervals → judicial review of continuing necessity (substantive conditions) and reasonable duration (the longer the detention, the more critical the evaluation of legality).
Prohibition against the use of torture and other forms of ill-treatment (art. 7, ICCPR and UNCAT).

Question 33

Arrest and detention at the ad hoc tribunals

Answer 33

• Must be a prima faciae case for there to be an arrest warrant issued
• Legality of arrest in the custodial state is primarily a matter for the national courts.
• Investigation stage follows the transmission of an indictment to and review by the Trial Court
• Arrest warrant may be requested by the Prosecutor and issued by the Trial Court
• There is a possibility of arresting and detaining suspects before indictment

Question 34

Provisional release at the ad hoc tribunals

Answer 34

• Release is only possible if ordered by a Chamber.
• Requirements for release: views of the host country and State envisaged; no risk of flight, or risk of obstruction or endangerment.
• Discretionary grounds: sufficiently compelling humanitarian grounds (e.g., illness).
• Potential conditions for release: execution of a bail bond, and any conditions ‘necessary to ensure the presence of the accused for trial and the protection of others’.
• Decision to (not) release is reviewed upon a filing of an appeal.
• Respect for IHRL: liberty as the exception, detention as the rule?

Question 35

Grounds for arrest and detention at the ICC

Answer 35

(i) risk of flight; (ii) risk of obstruction or endangerment of investigation or proceedings; (ii) risk of reoffending

Question 36

Provisional release at the ICC

Answer 36

Right of the suspect/accused to apply for interim release pending surrender or pending trial (art. 59(3) and 60(2), RS)

Question 37

Bemba et al

Answer 37

• Decision ordering the conditional interim release of Kilolo, Kabongo, Babala and Arido
• Condition: appearance for trial or whenever summoned ensured by the signing of a personal commitment to that effect.
• PTC II decision reversed by the AC and remanded to TC VII (29 May 2015); still, taking into account the length of time that had passed since their release, the AC found that it would not be in the interests of justice for the suspects to be re-arrested.
• Accused were convicted of the charges under art. 70, but remained on conditional release, pending the sentencing judgment (except for Bemba, whose release was only granted in 2018 pending a decision on appeals against the sentencing judgment).
• AC ordered the deduction from the sentence of the time spent in detention; the sentences of imprisonment were considered served, since the imposed sentence was equivalent to or less than the sentence applied.

Question 38

Gicheru

Answer 38

• Decision ordering the interim release of Gicheru, during the confirmation of charges proceedings, with specific conditions restricting liberty (PTC A, 29 January 2021).
• Financial security to the ICC Registrar.
• Full compliance with all orders, especially of immediate surrender; appearance before the Chamber.
• No obstruction or endangerment of the investigation or proceedings.
• No public statements, social media posts, or contact with the media about the merits of the case.
• No international travel, in principle.
• Residence in Kenya; weekly report to the Registrar.

Question 39

Confirmation of charges Standard

Answer 39

Prosecutor must support the charges with sufficient evidence to establish ’substantial grounds to believe’ (higher than prima facie case) that the person committed the crime

Question 40

Admissibility test (Bemba, pursuant to Art. 69(4) and R64

Answer 40

1. Relevance (e.g., direct material evidence or indirect circumstantial evidence).
2. Probative value (capacity to prove guilt, based on reliability, credibility, and potential to influence a determination)
3. Weight of probative value against prejudicial effect

Question 41

Qualifying for participation of Victims – legal test of Art. 68(3), RS

Answer 41

(i) victims (formal definition – ICC RPE) + causal link with the crimes charged.
(ii) Personal interests (unclear concept and scope)
(iii) Affected by the proceedings before the Court, in which participation is sought
(iv) No prejudice arising from the manner of participation to the rights of the accused and to a fair and impartial trial

Question 42

How do victims participate at trial?

Answer 42

Modes of participation – general participatory regime of Art. 68(3) RS
Opening and closing statements (confirmation hearing, trial).
Attendance, written submissions, and 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.
Active modalities of participation are expressly foreseen for LRVs (R91-93, ICC RPE)

Question 43

The four risks that could justify pre-trial detention are:

Answer 43

1. Flight risk
2. Risk that the accused would obstruct the administration of justice
3. The risk that the accused would commit further offenses
4. The risk that his or her release would cause further public disorder

Question 44

Provisional Release Before the Ad Hoc Tribunals

Answer 44

• Presumption in favor of detention
• ICTY Rule 65 states that if an accused wants to challenge their pre-trial detention, they must take the initiative themselves
• Humanitarian reasons - such as family or medical care could be reasons for pre-trial release if exceptional
• Inconsistencies on whether voluntary surrender weights in favor of the defendant
• Cooperation also weighs in favor of an early release
• Insufficient guarantees from countries to prevent accused from absconding can prevent the accused from being released from pre-trial detention
• Proximity to victims post-release is a negative factor for release
• Still, both tribunal’s average detention time is pretty lengthy

Question 45

The presumption of innocence has two aspects

Answer 45

1. Procedural: rebuttable presumption; someone other than the accused must prove guilt; if burden of proof is not met, the accused must be acquitted - makes sure that criminal convictions are not to easy to achieve
2. Non-procedural: Protects individuals from being treated like they are guilty of a crime before they have been found guilty. - makes sure that criminal procedure is followed before someone is punished

Question 46

Victimhood as a legal category

Answer 46

Jurified victimhood: narrows who can be considered a victim. Once a situation has been selected, the temporal, geographical, and personal parameters of the situation further narrow the pyramid of recognized victims.
* Whether victims can be legally recognized as such also depends on which group or groups the OTP is investigating