Chapter 4: The ICC‟s contribution to war crimes trials in the DRC
4.2 Functioning and procedures
sacrosanct principles of criminal law were integrated, such as the legality of crime and sanction (which requires the definition by the law of an offence and its specific punishment prior to perpetration of the crime); non-retroactivity; a case which has not yet been treated cannot be re-opened or ne bis idem; those responsible for crimes must be prosecuted individually;361 and that the accused are presumed innocent until proven guilty. Immunity cannot be granted due to the official capacity of the accused.
Factors such as age, mental state, error, and the power of individuals are considered to indict or not those presumed responsible for the perpetration of crimes.362 Many other important principles are set out in the 128 different articles, which are not appropriate to reproduce here. In brief, the Rome Statute constitutes a large step forward in the codification of the principles of international criminal law.363
Presidency collaborates with the Prosecutor to deal with “all matters of mutual concern”.365
In conformity with article 39 (1) (2) of the Rome Statute, the Court is structured in divisions and chambers comprising judges as follows:
the Appeals Chamber, composed of five judges, including the President, who also comprise the Appeals Division;
the Trial Chamber, whose three judges are part of the Trial Division which is constituted of at least six judges;
the Pre-Trial Chamber, where one or three judges of the Pre-Trial Division might be competent to act; and
the Pre-Trial Division is comprised of at least six judges.
In other words, the judicial activities are really exercised by Chambers, which can be increased at Pre-Trial and Trial level.
Beside the Chambers, there is the Office of the Prosecutor .The latter is headed by the Prosecutor who is assisted by a number of Deputy Prosecutors and is elected by the Assembly of States Parties. He/she is independent and exercises his/her function before the Court as an independent organ. All referrals and necessary information or details relating to crimes as provided in the Rome Statute are referred to this office to be examined, investigated and eventually prosecuted before the Court. The Prosecutor may appoint advisors with specific skills to assist him/her to fulfill his tasks, for instance on violence relating to gender and children‟s issues.366 Another structure, which plays an important role in the administration of the ICC, is the Registry. The Registry handles non-judicial administrative matters. It is directed by the Registrar who is elected by the judges upon the recommendation of The Assembly of States Parties. He/she is considered “the principal administrative officer of the Court” and as such the President of Court has some authority over him/her.367
The different personnel of those organs and most staff of the Court are elected or appointed on the basis of competence, integrity, and equity, representing different
365 Article 38 (4) of the Rome Statute.
366 Article 42 (2) (2) (3) (4) (5) (6) (7) (8) (9) of the Rome Statute.
367 Article 43 (1) (2) of the Rome Statute.
parts of the world. To prosecute a case, the Court requires the interaction of all of these organs, which work separately but with close collaboration.
When serious crimes within the jurisdiction of ICC are alleged to have been committed in the territory of state parties or by a national of a State Party, the Prosecutor shall prosecute. The procedure is applied as follows.
Having received information from States, NGOs, individuals368 or other reliable sources that is delivered to the ICC office, the Prosecutor may open an investigation into these alleged crimes to establish more information on the perpetrators of such crimes.369 When its investigations are concluded, the Prosecutor may ask the Court to indict those alleged to be responsible for these crimes of concern to the international community.370
The Court must verify if its jurisdiction can be exercised satisfactorily. Certain conditions must be fulfilled before the commencement of an investigation in the territory of a State. A State may refer a case to the Office of the Prosecutor, or the Prosecutor may launch an investigation in the State in question, on his/her own initiative371 by exercising the ICC‟s jurisdiction propio motu in accordance with article 15 of the Rome Statute (1).372
368 L Mekhemar „The status of the individual in the Statute of the International Criminal Court‟ in M Politi & G Nesi The Rome Statute of the International Criminal Court: a challenge to impunity (2001) 123, 125.
369“Neither referrals, whether by a State Party or the UN Security Council, nor private
communications automatically „trigger‟ the powers of the Prosecutor. In all cases the OTP must first conduct an analysis of information in order to determine whether the statutory threshold to start an investigation is met: there must be „a reasonable basis to proceed‟”, ICC Communications and Referrals available athttp://www.icc-
cpi.int/Menus/ICC/Situations+and+Cases/Referals+and+communications/, accessed on 02 August 2011.
370 Article 15 (2) of the Rome Statute.
371 S A Fernandez de Gurmendi „The Role of the Prosecutor‟ in M Politi & G Nesi The Rome Statute of the International Criminal Court: a challenge to impunity (2001) 55.
372 „To date, there have been three state referrals from the governments of the Democratic Republic of Congo, Uganda, and the Central African Republic, two referrals from the United Nations Security Council regarding the situation in Darfur and the situation in Libya, and one investigation propio motu regarding the situation in Kenya (the Côte d‟Ivoire will be the second situation of investigation propio motu considering the process under way since Ivorian authorities have accepted the ICC‟s jurisdiction in 2003 and 2010 and the authorisation of investigation by the ICC in 2011). The Office has also received over 8733 communications since July 2002 from more than 140 countries, with the majority of those communications coming from individuals in the United States of America, the United Kingdom, Germany, Russia and France available at http://www.icc-
cpi.int/Menus/ICC/Situations+and+Cases/Referals+and+communications/, accessed on 02 August
If the State in question is not party to the Rome Statute, the Prosecutor and the Court may not have jurisdiction. In such a case there are two situations that can allow the Court to apply its jurisdiction to adjudicate the case: where the case is referred by the UN Security Council, and where the State voluntarily accepts the jurisdiction of the Court.
According to article 13 (b) of the Rome Statute, the UN may decide to act under Chapter VII of the UN Charter by referring the case to the ICC.
Currently there are two cases before the ICC that were referred by the UN Security Council: the Case of Darfur and the Case of Libya.
Although this is a way to fight impunity for crimes committed in the territory of a non-member State, it is limiting, as it cannot be applied to all non-member States. For instance, it seems impossible to use this procedure against nationals of certain powerful countries, like the US, China or Russia, because they may use their veto vote to block such action. Referral by the UN Security Council is therefore subject to the risk of politicization,373 or the application of double standards. In their current form, some UN organs appear to function in an anachronistic manner and need to be reformed to allow the ICC to operate in a democratic, rather than a Cold War, spirit.
A non-member State Party374 can accept the jurisdiction of the ICC, in terms of article 12 (3) of the Rome Statute, which provides that “that State may, by declaration lodged with the registrar, accept the exercise of the jurisdiction by the Court with respect to
2011;MH Arsanjani & WM Reisman “The Law-in-Action of the International Criminal Court”
(2005)(99)(317) American Journal of International Law 385,passim.
373 R Cryer & N D White „The Security Council and the International Criminal Court: who‟s feeling threatened? In O Bekou & R Cryer (eds) The International Criminal Court (2004) 495-521; D Sarooshi
„The peace and justice paradox : the International Criminal Court and the UN Security Council‟ in D McGoldrick, P J Rowe & E Donelly (eds) The permanent International Criminal Court: legal and policy issues (2004) 95-97; Security Council referral confirms ICC as a critical international institution (2 March 2011) available at http://mg.co.za/article/2011-03-02-security-council-referral-confirms-icc- as-a-critical-international-institution accessed on 07 May 2011; A Louw „Africa should work with, not against, the ICC in resolving the Libyan crisis‟ (21 July 2011) available at
http://www.iss.co.za/iss_today.php?ID=1323, accessed on 27 July 2011.
374 D Akande „The jurisdiction of the International Criminal Court over nationals of non-Parties: legal basis and limits‟ in O Bekou & R Cryer The International Criminal Court (2004) 225-227.
the crime in question. The accepting State shall cooperate with the Court without any delay or exception”.
However, despite the Prosecutor acting in conformity with article 19 (1) of the Rome Statute, the jurisdiction of the Court is not automatic. This article states that “the Court shall satisfy itself that it has jurisdiction in any case brought before it .The Court may, on its own motion, determine the admissibility of a case”. But how does the Court determine its jurisdiction?