Recommendations for an Independent and Effective International Criminal Court
Human Rights Watch
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Copyright © June 1998 by Human Rights Watch.
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ISBN:1-56432-184-3
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HUMAN RIGHTS WATCH
Human Rights Watch conducts regular, systematic investigations of human rights abuses in some seventy countries around the world. Our reputation for timely, reliable disclosures has made us an essential source of information for those concerned with human rights. We address the human rights practices of governments of all political stripes, of all geopolitical alignments, and of all ethnic and religious persuasions. Human Rights Watch defends freedom of thought and expression, due process and equal protection of the law, and a vigorous civil society; we document and denounce murders, disappearances, torture, arbitrary imprisonment, discrimination, and other abuses of internationally recognized human rights. Our goal is to hold governments accountable if they transgress the rights of their people.
Human Rights Watch began in 1978 with the founding of its Europe and Central Asia division (then known as Helsinki Watch). Today, it also includes divisions covering Africa, the Americas, Asia, and the Middle East. In addition, it includes three thematic divisions on arms, children's rights, and women's rights. It maintains offices in New York, Washington, Los Angeles, London, Brussels, Moscow, Dushanbe, Rio de Janeiro, and Hong Kong. Human Rights Watch is an independent, nongovernmental organization, supported by contributions from private individuals and foundations worldwide. It accepts no government funds, directly or indirectly.
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The regional directors of Human Rights Watch are Peter Takirambudde, Africa; José Miguel Vivanco, Americas; Sidney Jones, Asia; Holly Cartner, Europe and Central Asia; and Hanny Megally, Middle East and North Africa. The thematic division directors are Joost R. Hiltermann, arms; Lois Whitman, children's; and Dorothy Q. Thomas, women's.
The members of the board of directors are Jonathan Fanton, chair; Lisa Anderson, Robert L. Bernstein, William Carmichael, Dorothy Cullman, Gina Despres, Irene Diamond, Adrian W. DeWind, Fiona Druckenmiller, Edith Everett, James C. Goodale, Jack Greenberg, Vartan Gregorian, Alice H. Henkin, Stephen L. Kass, Marina Pinto Kaufman, Bruce Klatsky, Harold Hongju Koh, Alexander MacGregor, Josh Mailman, Samuel K. Murumba, Andrew Nathan, Jane Olson, Peter Osnos, Kathleen Peratis, Bruce Rabb, Sigrid Rausing, Anita Roddick, Orville Schell, Sid Sheinberg, Gary G. Sick, Malcolm Smith, Domna Stanton, Maureen White, and Maya Wiley. Robert L. Bernstein is the founding chair of Human Rights Watch.
CONTENTS
INTRODUCTION 1
SECTION A: THE SUBJECT MATTER JURISDICTION OF THE COURT 5
Part 1: WAR CRIMES 5
GUIDING PRINCIPLES 6
International and non-international distinction 6
Fundamental legal principles 8
Customary international law and existing treaties as guiding principles, not limiting factors 11
LIST OF BASIC CRIMES WHICH SHOULD COME WITHIN THE JURISDICTION OF THE COURT FOR INTERNATIONAL OR NON-INTERNATIONAL CONFLICTS 12
OTHER CRIMES UNDER CUSTOMARY INTERNATIONAL LAW 31
THE THRESHOLD 32
Part 2: CRIMES AGAINST HUMANITY 34
THE CHAPEAU TO THE DEFINITION 34
Nexus with armed conflict 34
The widespread and/or systematic requirement 36
The proposed limitation on the "grounds" on which crimes against humanity are committed 37
SPECIFIC ACTS CONSTITUTING CRIMES AGAINST HUMANITY 39
Enforced disappearance 39
Persecution 39
Gender persecution 42
Persecution on other grounds 44
SECTION B: THE JURISDICTION OF THE COURT 46
UNDERLYING PRINCIPLES 46
RECOMMENDATION ON ARTICLES 6, 7 AND 9 50
Opt-in regime: the `selection' of core crimes 50
State consent in individual cases 52
Non- state parties and the exercise of jurisdiction 53
Ability of Non-State Parties to Recognize the Jurisdiction of the Court 54
JURISDICTION OVER MINORS 55
SECTION C: ROLE OF THE SECURITY COUNCIL 58
REFERRALS BY THE SECURITY COUNCIL 58
SECURITY COUNCIL CONTROL OVER CASES BEFORE THE COURT 60
Option one: the operation of security council veto 61
Option two: a decision of the security council to suspend ICC jurisdiction 62
SECTION D: HOW AN INVESTIGATION IS TRIGGERED 63
COMPLAINT BY STATES 63
State parties 63
Non-state parties 64
SECURITY COUNCIL 64
EX OFFICIO POWERS OF THE PROSECUTOR 64
Addressing concerns regarding a proprio motu prosecutor 66
PRE-TRIAL CHAMBER REVIEW OF THE DECISION TO INVESTIGATE EX OFFICIO 67
SECTION E: COMPLEMENTARITY 69
THE COMPLEMENTARITY TEST 69
PROVISION FOR AMNESTY LAWS 72
CHALLENGES TO ADMISSIBILITY UNDER ARTICLE 17[12] 74
Who can challenge 74
Burden of proof 75
Timing of challenges and right of appeal 76
Review in the light of new facts 76
Provisional measures 76
TRANSFER OF SUSPECTS FROM THE ICC UPON A FINDING OF INADMISSIBILITY BASED ON COMPLEMENTARITY 77
PRE-INVESTIGATION DETERMINATION OF COMPLEMENTARITY AND ADMISSIBILITY 78
Existing provisions safeguarding complementarity 78
The legitimate scope of article 16 [11 bis] 79
Public announcement 79
Scope of article 16 [11 bis] 80
Time restrictions on deferral 80
Preservation of evidence 81
Appeal 82
Burden of proof 82
Multiple challenges to admissibility on the basis of complementarity 83
SECTION F : GENERAL PRINCIPLES OF CRIMINAL LAW 85
AGE OF RESPONSIBILITY 85
STATUTE OF LIMITATION 85
DEFENSES 86
SECTION G: APPLICABLE LAW 94
STATUTE AND INTERNATIONAL LAW 94
PREVIOUS JUDICIAL DECISIONS 96
CONSISTENCY WITH INTERNATIONAL HUMAN RIGHTS LAW 96
SECTION H: COMPOSITION AND ADMINISTRATION OF THE COURT 98
DIVERSITY IN THE COMPOSITION OF THE COURT 98
LEGAL EXPERTISE IN SEXUAL AND GENDER VIOLENCE AND PROTECTION OF CHILDREN 99
VICTIM AND WITNESS SUPPORT AND PROTECTION UNIT 100
THE RULES OF PROCEDURE AND EVIDENCE 101
SECTION I: INVESTIGATION AND PROSECUTION 103
NOTIFICATION 103
PRIORITIZING INVESTIGATIONS IN THE INTERESTS OF JUSTICE 104
ON-SITE INVESTIGATIONS 105
THE PRESERVATION OF EVIDENCE 106
INFORMATION REGARDING NATIONAL PROCEEDINGS 107
ORDERS 109
CONFIRMATION OF INDICTMENTS 110
ORDERS REGARDING THE CONDUCT OF TRIAL 111
PRE-TRIAL ARREST AND DETENTION 112
ISSUING AN INTERNATIONAL ARREST WARRANT 112
INTERIM RELEASE 113
PERIOD OF PRE-TRIAL DETENTION 114
NOTIFICATION OF INDICTMENT 115
SECTION J: THE TRIAL 116
SIGNIFICANCE OF A GUILTY PLEA 116
TRIALS IN ABSENTIA 116
PROTECTION OF VICTIMS AND WITNESSES 118
EVIDENCE 119
SECTION K: REPARATION TO VICTIMS 122
SECTION L: PENALTIES 127
APPLICABLE PENALTIES 127
DETERMINING THE SENTENCE IN THE PARTICULAR CASE 131
APPLICABLE NATIONAL LEGAL STANDARDS 134
SECTION M: THE PROTECTION OF NATIONAL SECURITY 136
The protection of legitimate interests 136
The scope of the national security privilege 137
FREESTANDING ARTICLE ON THE PROTECTION OF NATIONAL SECURITY INTERESTS 138
STATE COOPERATION: CHALLENGING A REQUEST FROM THE COURT 141
CRIMINAL PROCEDURE: MEASURES TO PROTECT SENSITIVE INFORMATION 143
CRIMINAL PROCEDURE: DISCLOSURE 143
CRIMINAL PROCEDURE: WITNESS INVOCATION OF NATIONAL SECURITY 144
SECTION N: INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE 146
THE OBLIGATION TO COMPLY 148
DELETION OF GROUNDS FOR REFUSAL 149
EXCLUDING NATIONAL LAWS AS A BASIS FOR NON COMPLIANCE 150
THE POWER TO ORDER PROVISIONAL MEASURES 151
PRIORITY OF REQUESTS OF THE COURT OVER OTHER STATE PARTIES 152
RELATIONSHIP OF THE STATUTE TO OTHER INTERNATIONAL INSTRUMENTS 153
DELAY TO THE TRANSFER OF PERSONS SOUGHT 154
REQUESTS FOR OTHER FORMS OF COOPERATION 155
INFORMATION PROVIDED FOR THE PURPOSE OF GENERATING EVIDENCE ONLY 155
NON APPLICABILITY OF THE RULE OF SPECIALITY 156
SECTION O: COMPENSATION TO THE ACCUSED 158
SECTION P: FINANCING OF THE ICC 159
SECTION Q: FINAL CLAUSES 162
SETTLEMENT OF DISPUTES 162
RESERVATIONS 162
EARLY ACTIVATION OF PRINCIPLES AND RULES OF THE 164
RATIFICATION 164
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