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JUSTICE PORTFOLIO COMMITTEE
5 October 2000
ROME STATUTE ON THE INTERNATIONAL COURT: BRIEFING
Rome Statute of the International Criminal Court
Explanatory Memorandum: Ratification of the Rome Statute (see Appendix 1)
Summary of Main Features of the Rome Statute on the International Criminal Court (Appendix 2)
Professor Rwelamira from the Department of Justice came from Pretoria to brief the Members on the Rome Statute on the International Court (ICC). He went through the ICC Statute part by part and took many questions from the Committee. Questions focused on the enabling legislation South Africa will have to pass to be able to implement the legislation and the practical function of the ICC, how it will work and what its relation will be to South Africa's domestic criminal justice system.
Professor Rwelamira from the Department of Justice came from Pretoria to brief the Members on the Rome Statute on the International Court (ICC). The Statute was adopted in 1998 and so far 20 countries have ratified it. Of SADC countries, Lesotho and Botswana have ratified. South Africa has signed but not ratified. Enabling legislation will be required in order for the Statute to be implemented in South Africa. Prof Rwelamira suggests the ratification and enabling legislation processes go on simultaneously. The enabling legislation, he said is the only outstanding matter for the Committee although, in terms of the Statute, there are still practical issues to resolve, such as the finalisation of the evidence procedures and the relationship agreement with the UN has to be negotiated.
(Q) Chairperson de Lange: How can we approve the enabling legislation if there are still other outstanding issues?
(A) Professor Rwelimira: There is no connection between the enabling legislation and other matters.
The Statute relies on the principle of complementarity, meaning that one state can try citizens of other countries for crimes committed elsewhere. Special courts will be in place for this.
(Q) Mr Landers (ANC): What if the crime is committed by a national of a country that hasn't signed or ratified the treaty; for example, the USA?
(A) Professor Rwelimira: Yes, the USA has refused to sign. The ICC would have had jurisdiction if the state where the crime was committed (the territorial state) and the state where the accused currently is (the custodial state) are both signatories. But there is now an alternative mechanism so that if either the territorial state or the custodial state are signatories, the ICC has jurisdiction.
(Chairperson de Lange had to leave to attend another meeting; Ms Jana [ANC] took over as Chair.)
(Q) Mr Mzizi (IFP): What about the nationality of the accused?
(A) Professor Rwelimira: This is not an issue.
(Q) Mr Landers (ANC): What about the power to arrest? Is a signatory country expected to arrest; for example, if a crime occurs in South Africa?
(A) Professor Rwelimira: Yes, if the suspect is in South Africa.
(Q) Ms Jana (ANC): You said 60 countries need to ratify the treaty in order for it to be operational. But so far only 20 have ratified whereas 92 have signed.
(A) Professor Rwelimira: In fact, this treaty has had the highest rate of success of any UN treaty, other than the Landmine Convention. The ICC Statute has had over 90 signatures in two years.
(Q) Ms Camerer (NNP): Do we have to adopt the enabling legislation before we can implement the treaty here?
(A) Professor Rwelimira: Yes, the domestic legislation is necessary for the treaty's implementation.
(Q) Ms Chohan-Kota (ANC): What will be the status of this ICC vis-à-vis other courts; for example, in relation to the High Court and the Courts of Appeal? Our Constitution is very specific about our court hierarchies.
(A) Professor Rwelimira: Obviously, the ICC will not be part of the formal hierarchy of the South Africa court system. Its functioning relies on the principle of complementarity between states.
If the national courts of a state have tried and convicted an accused for an offence, the ICC has no jurisdiction unless it can establish that the national proceedings were in fact a sham. So the ICC will have jurisdiction over crimes and criminals in South Africa only if South Africa refuses or is unable to prosecute in its national judicial system.
(Q) Ms Jana (ANC): What will be the relationship of this court to other international courts?
(A) Professor Rwelimira: As set out in Article 5 of the Statute, the jurisdiction of the ICC will be limited to genocide, crimes against humanity, war crimes and crimes of aggression. The ICC's jurisdiciton will also be limited to individuals. The International Court of Justice deals with the crimes of states. So the ICC will be a very unique court with a unique jurisdiction.
Overview of the Statute
Professor Rwelimira then went through the Statute, part by part.
There are 13 parts to the Statute:
Part 1 - Establishment of the Court
Part 2 - Jurisdiction, Admissibility and Applicable Law
Part 3 - General Principles of Criminal Law
Here, Article 33 removes the defence that the accused was merely "following orders" from a superior.
Part 4 - Composition and Administration of the Court
Part 5 - Investigation and Prosecution
Part 6 - The Trial
The basic rights of the accused are outlined in Parts 5 and 6, such as the presumption of innocence and the right to counsel, etc.
Part 7 - Penalties
These can be either imprisonment or a fine. Part 7 also provides for the creation of a trust fund for the benefit of victims.
Part 8 - Appeal and Revision
The ICC will be made up of a trial and an appeal division.
Part 9 - International Cooperation and Judicial Assistance
This makes up the bulk of the Statute and sets up the mechanisms of international comity. It is for this that a ratifying state must pass domestic enabling legislation.
Part 10 - Enforcement
Part 11 - Assembly of States Parties
This Part allows for the creation of an Assembly.
Part 12 - Financing
Financing of the ICC is a major problem. It will not be part of the UN, but will have an independent existence. Although it will receive its initial funding from the UN, its regular funding will come from contributions from member states.
Part 13 - Final Clauses
(Q) Ms Jana (ANC): What if the sentencing conflicts with domestic legislation? I am thinking of the death penalty and Arab states.
(A) Professor Rwelimira: Yes, we argued a lot with Arab states over the death penalty. They wanted the death penalty to be available to the ICC but we were rigidly against this. We reached a compromise: the ICC itself can't impose the death penalty. But where a state is exercising its own jurisdiction, it is free to impose the death penalty. But the ICC may not impose it.
(Q) Mr Mzizi (IFP): I am concerned about issues of admissibility at Art 17. Where a person has immunity, can se be compelled to respond to questions?
And where is the right to remain silent?
(A) Professor Rwelimira: Art 17 is about the admissibility of a case, not the admissibility of evidence. It is about what has to be present in order for the ICC to assume jurisdiction. Once jurisdiction has been assumed, the defendant can raise the issue of admissibility.
As for the right to remain silent, an accused has that right. There is also a privilege against self-incrimination. But silence cannot be used to prove a case. The prosecution must make its case, regardless of an accused's silence.
(Q) Mr Solomon (ANC): What about the defendant? Will the state provide funds for defence?
(A) Professor Rwelimira: This is a big issue. The tendency is to put resources at the disposal of the prosecutor, but not of the defendant. But the rules here say there must be a dedicated branch to dela with the needs of the defence and some budget must be allocated for this.
(Q) Ms Jana: What if the state fails to comply?
(A) Professor Rwelimira: Yes, state non-cooperation is a major issue. Enforcement is always the major obstacle in international law. There is not much the international community can do if a state refuses to cooperate. This problem has to be approached on a case-by-case basis.
(Q) Mr Landers: A trial goes to the ICC by a referral of the UN Security Council What if their members veto the trial? Also, what about financial contributors? Can non-party states who contribute to the UN complain that some of that contribution will go to the ICC?
(A) Professor Rwelimira: UN Security Council referrals were a big issue. Art 16, "Deferral of investigation or prosecution", provides a compromise. It means a state can proceed unless the UN SC has made a resolution telling it to stop. This makes it harder for the UN to block proceedings, but if the UN SC agrees unanimously, it can block proceedings.
Yes, there is a danger that non-state parties can block funding to the ICC. The Statute says the UN supports it only in respect of the initial budget, after which it will be funded by its member states.
(Q) Ms Chohan-Kota (ANC): Which organ of the ICC initiates investigators and prosecutors? Also, if the ICC is called in when a state is unable to prosecute, what happens when a state is unable to investigate a crime?
(A) Professor Rwelimira: The prosecution initiates an investigation. It can be prompted by the state, by a referral from the UN SC or the prosecution can use its own inherent powers to initiate investigations of its own. A state may not investigate a crime at all. When it refuses to do so, the ICC prosecutor is empowered.
(Q) Mr Swart (ACDP): What is the role of our Portfolio Committee with the UN?
(A) Professor Rwelimira: The Portfolio Committee is not part of these processes.
NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES
EXPLANATORY MEMORANDUM: RATIFICATION OF THE ROME STATUTE
The purpose of this memorandum is to -
1.1 set out the history, purposes and consequences of the Rome Statute of the International Criminal Court; and
1.2 highlight some of the most important provisions of the Rome Statute, with a view to obtaining Parliament's approval for the Republic of South Africa to ratify the said Rome Statute as contemplated in section 231(2) of the Constitution of the Republic of South Africa, 1 996 (Act No 1 OB of 1 996) (the Constitution).
2. OBJECTS OF THE ROME STATUTE
2.1 The Rome Statute seeks to establish the permanent International Criminal Court (the ICC) with inherent jurisdiction over serious crimes of international concern namely crime of genocide, crimes against humanity, war crimes and crime of aggression.
2.2 The ICC established under the Rome Statute is complementary to national criminal jurisdictions which have the duty to exercise their respective jurisdictions over persons responsible for the commission of above crimes.
2.3 The ICC shall have jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute. The Rome Statute will be operational after 60 instruments of ratification have been lodged with the UN General-Secretary, and presently there are only 20 ratification instruments.
3. HISTORICAL BACKGROUND
3.1 WorId Wars 1 and II and subsequent trials before the Nuremberg and Tokyo War Crimes Tribunals set the stage for efforts to create a permanent ICC. During 1949 -1954 the International Law Commission (ILC), as mandated by the UN General Assembly (GA), prepared a draft Statute for the ICC. However, the GA abandoned the effort due to opposition from powerful States on both sides of the cold war. At the end of the cold war in 1989 the GA asked the ILC to prepare a draft Statute; and in 1992 the ILC was requested to complete the draft Statute for an ICC. Wars in Bosnia-Herzegovina and Rwanda during 1992 and 1994 respectively and the establishment of the ad hoc Tribunals for these countries strengthened the urgent need for the establishment of the permanent court.
3.2 During 1994 the ILC presented a final draft Statute on the ICC to the GA and recommended that a Conference of plenipotentiaries be convened to negotiate a treaty to enact the Statute. The GA established an ad hoc Committee on the ICC to review the draft Statute. During 1995 the ad hoc Committee held three 2-week meetings at the UN Head Quarters. In December 1995, the GA established a Preparatory Committee (Prepcom) to finalise a text to be presented at a convention of plenipotentiaries. The GA convened six Prepcom meetings to continue to draft the ICC from 1996 - 1998; and South Africa was represented by a delegation comprising the Departments of Justice (then), Foreign Affairs and Defence to these meetings. In September 1997 the 14 nations of SADC set out 1 0 basic- principles to be included in the ICC Statute.
3.3 On 17 July 1998 the United Nations Diplomatic Conference of Plenipotentiaries, at which South Africa was represented, adopted the Rome Statute on the ICC. This was the first important step towards the establishment of a permanent international criminal justice system which will complement national laws in the prosecution of individuals for abovementioned crimes of international concern. In terms of article 125 of the Statute, the Statute is open for signature by all States until 31 December 2000. Thereafter it is subject to ratification by signatory States. South Africa has already signed the Statute. In terms of article 126, the Statute enters into force only after the deposit of the 60th instrument of ratification with the Secretary-General of the United Nations.
4. RATIFICATION: OBLIGATIONS AND IMPLICATIONS
4.1 Ratification of the Rome Statute by South Africa would result in an obligation for it to cooperate fully with the ICC in its investigation and prosecution of crimes within the jurisdiction of the ICC. Furthermore, South Africa would be obliged to ensure that there are procedures available under its national law for all the forms of cooperation specified in the Rome Statute which, inter alia, include arrest of persons and surrender of persons to the ICC. South Africa may, if it so accepts, be designated to accept sentenced persons for purposes of serving their sentences in our prisons. Furthermore, the ICC may sit elsewhere other than at the Hague (host State); and this implies that South Africa might be a seat of the ICC.
4.2 Therefore, the implications arising out of the ratification of the Rome Statute are two-fold namely, promotion of legislation which will incorporate the Rome Statute into our national legal system and ensure cooperation with the ICC. This legislation should criminalise the crime of genocide, crimes against humanity and war crimes so as to create jurisdiction by our national court over these crimes. The crime of aggression will only be criminalised once a provision defining the crime has been agreed to by the Review Conference of Assembly of Slate Parties and included in the Rome Statute. Another implication relates 10 financial resources relating to cooperation with the ICC and States Parties contributions to the ICC. Parliament is referred to paragraphs 7 and 8 below in this regard.
5. RATIFICATION: NEED
5.1 While the Rome Statute will become operational after 60 countries have ratified it and while 20 countries including Lesotho and Botswana have, to date, deposited their instruments of ratification, South Africa's early ratification is of paramount importance, particularly in view of South Africa's leadership role among SADC States both during negotiations in the Prepcom as well as during the Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC. In July 1999 South Africa hosted a SADC Conference on the Statute on the ICC in Pretoria. The purpose of the Conference was to discuss the process of ratification, as well as other outstanding issues on the agenda of the United Nations Preparatory Commission on the establishment of the ICC. The objectives of the Conference were among others, to familiarise government officials with the provisions of the Statute, to discuss the implications thereof on national legislation and to co-ordinate the process of ratification on the SADC region. The Conference adopted a Statement of Common Understanding.
5.2 Cabinet has approved that steps be taken to request Parliament to approve the ratification of the Rome Statute. This decision underscores the commitment demonstrated by South Africa, especially within SADC, during the negotiations of the Rome Statute. Therefore, ratification of the Rome Statute by Parliament will, in essence, send a strong message to the international community about our commitment. Ratification would add to the number of ratification instruments required (60) for the Rome Statute to come into force. Once the Rome Statute is in force, the ICC can try persons who commit abovementioned crimes of international concern. Our implementation legislation referred to in paragraph 7 below would allow South Africa to cooperate with the ICC in dealing with offenders, and to deal with offenders in our national courts. Ratification would send a strong message to offenders that South Africa is not a haven of crime and that offenders cannot commit the above-mentioned crimes with impunity.
6. OVERVIEW OF IMPORTANT PROVISIONS OF THE ROME STATUTE
A short overview of the important provisions of the Rome Statute is set out in the attached document. (Annex A).
7. COMMENT BY THE STATE LAW ADVISERS
7.1 The State Law Advisers and International Law Advisers are part of the Inter-departmental Committee established during November 1998 with a mandate to facilitate South Africa's ratification of the Rome Statute and preparation of the required legislation for purposes of implementing the Statute in South Africa. This Committee consists, in addition to the above institutions, the Constitutional Court (Justice R Goldstone), Supreme Court of appeal (Justice P J J Olivier), the Magistrate's Court (Mr M C Bashe), the National Prosecuting Authority (Dr J A van S d'Oliveira, SC) the Office of the President, the SAPS, SANDF and Intelligence Services and the Departments of Home Affairs, Correctional Services and Justice and Constitutional Development.
7.2 The State Law Advisers and International Law Advisers have, during the Inter-departmental meetings, supported the ratification of the Rome Statute; and have expressed the views that the provisions of the Rome Statute are not in conflict with South Africa's domestic law and international obligations respectively. Their views were shared by the lnter-departmental Committee in general. Presently, the State Law Advisers are editing the International Criminal Court Bill which seeks to incorporate the Rome Statute into our domestic law. This Bill will be table dbefore parliament in the near future.
8. FINANCIAL IMPLICATIONS
8.1 In the Cabinet memorandum it was indicated that if South Africa ratifies
the Rome Statute, it will be expected to pay assessed contributions made
by State Parties as required in Part 1 2 of the Statute. It was indicated
that if the International Tribunal for the Law of the Sea is used as a basis,
South Africa will be required to contribute US $42 700 (R300 000) per
year. However, it has been established recently that the Center on
International Coorperation under the auspices of the Project on
International Courts and Tribunals (PICT) prepared a paper to provide a
hypothetical assessment of the financial implications to State Parties of
the ICC. In order to make a realistic hypothetical assessment of the
financial implications to ICC State Parties, PICT took a basket of sixty
States most likely to be the first sixty to ratify the ICC Statute, including
South Africa. PICT estimates that the budget for the ICC's running cost
would be US $1 00 million. This estimation is derived from comparing the
budgets of the International Tribunal for the former Yugoslavia, which is
US $106 169 40'D and the International Tribunal for Rwanda, which is US
$86 1 54 for the budget year 2000. PICT estimates that in the event the
United States and Japan do riot become State Parties to the ICC Statute
then the EU States will collectively pay US $78 166051,90. Fourteen
States would pay less than US $10000 each, the smallest contributors
paying US $2 157,08 each. South Africa would pay US $789 490,71 x 7
(R5 526 434,90). If the United States and Japan were to become State
Parties to the ICC Statute, South Africa's assessed contribution would be
US $398 120,35 x 7 (R2 786 842,40) per annum on US $100 million
budget of the ICC. It is unlikely that the United States will become a party
to the ICC Statute whereas Japan is likely to become a Party since they
voted in favour of the Statute in Rome. If Japan becomes a State Party
to the ICC Statute then the assessed contributions for South Africa are
estimated at US $546 823,64 x 7 (R3 827 765,40). The above estimated contributions by South Africa are based on the UN scale of assessment for the budget year 2000, which is 0,366% for South Africa.
8.2 Other financial implications relate to cooperation with the court especially ordinary costs or execution of requests, which costs shall be borne by the Requested State (South Africa), except for the following, which shall be borne by the court:
(a) Costs associated with the travel and security of witnesses and experts or transfer of persons in custody
(b) Costs of translation, interpretation and transcription
(c) travel and substance costs of the judges, the prosecutor, the deputy registrar and staff of any organ of the ICC
(d) Costs of any expert opinion or report requested by the ICC
(e) Costs associated with the transport of a person being surrendered to the court by a custodial State
(f) Following consultations, any extraordinary costs that may result from the execution of a request.
Other costs relate to enforcement of sentences of the ICC in South Africa. There are no financial implications in case South Africa is chosen, in a given case/s, to be a seat of the ICC since the existing national High Court(s) or Supreme Court of Appeal or any court can be used for this purpose.
It is recommended that Parliament approve the ratification of the Rome Statute of the ICC (Annex B). After approval by Parliament the Ministry of Foreign Affairs will prepare an instrument Of ratification and deposit it with the Secretary General of the United Nations.
SUMMARY OF MAIN FEATURES OF THE ROME STATUTE ON THE
INTERNATIONAL CRIMINAL COURT
The Statute addresses the need for geographical representation and the inherent jurisdiction of the International Criminal Court (ICC) over the core crimes of genocide, crimes against humanity, war crimes and aggression.
Part 1 deals with the establishment Of the Court. It defines the Court's relationship with the United Nations, as well as with the host country. The Court will also have international legal personality. The seat of the Court is in The Hague in the Netherlands but it may sit in other countries.
Part 2 deals with jurisdiction, admissibility and the applicable law. This Part sets out the crimes which fall within the jurisdiction of the ICC, namely the crimes of genocide, crimes against humanity, war crimes and aggression. It is also important to note that while war crimes apply to both international and internal armed conflicts, the definition of crimes against humanity under the Statute now includes the crime of Apartheid. This means that States which have not ratified the Apartheid Convention will, on ratification, be bound to prosecute and punish such crimes. The definition of war crimes has also been expanded to include sexual offences, the use of weapons or means of warfare which are likely to cause indiscriminate, superfluous or unnecessary injury and the conscripting or enlisting of children into armed forces or groups. Although the crime of aggression is included in the Statute, the Court will not be able to exercise its jurisdiction until an acceptable definition has been agreed upon. The Elements of Crimes, which will assist the ICC in the interpretation and application of the provisions dealing with these crimes, are in the process of being finalised. The ICC can only try crimes committed after the Statute becomes operational and States can only prosecute offenders in terms of this legislation after they have ratified the Statute.
A State which becomes party to the Statute, accepts the jurisdiction of the ICC in respect of the above crimes. The jurisdiction of the Court will not be subject to an additional requirement of consent by a State party. However, in order to broaden acceptance of the Court's jurisdiction, it was agreed that for the Court to assume jurisdiction in a specific case, at least one of the following States should be parties to the Statute, namely, the State in which the act or omission occurred or the State in which the person being investigated or prosecuted is a national. The jurisdiction of the Court may be invoked through a complaint by a State party, by a referral by the Security Council or by the Prosecutor of the ICC, acting under his or her ex officio powers, in terms of which he or she can initiate an investigation or prosecution.
The ICC can decide that a case is inadmissible if -
the case is being investigated or prosecuted by a State which has jurisdiction over it, unless that State is unwilling or unable to do so;
the case has been investigated by the State and it has decided not to prosecute,
unless the decision not to prosecute resulted from the unwillingness or inability of the State to prosecute;
the person has already been tried for the conduct in question;
the case is not of sufficient gravity.
No person may be tried before the Court in respect of conduct which formed the basis of crimes for which the person has been convicted or acquitted by the ICC and no person may be tried before another court for a crime contemplated in the Statute in respect of which that person has already been convicted or acquitted by the ICC. No person who has been tried by another court for conduct proscribed by the Statute may be tried by the ICC for that conduct, unless the proceedings in the other court were for the purpose of shielding that person or unless they were not conducted independently or impartially.
Regarding the applicable law, the ICC will apply the Statute, the Elements of Crimes (referred to above) and its Rules of Procedure and Evidence, which are also in the process of being finalised. Applicable treaties and the principles and rules of international law will also be applicable where appropriate, as will general principles of law derived by the ICC from national laws of legal systems throughout the world. The ICC may also apply principles and rules of law as interpreted in its previous decisions.
Part 3 of the Statute contains general procedural principles of criminal law. These include nullum crimen sine lege (a person is not criminally responsible unless the conduct in question constitutes a crime at the time of commission thereof), nulla poena sine lege (a person may only be punished as provided for in the Statute), non-retroactivity ratione personae (no person is criminally responsible for conduct prior to the operation of the Statute), and principles governing individual criminal responsibility, responsibility of commanders and other superiors, requisite mental element as well as grounds for excluding criminal responsibility, eg mistake of fact or mistake of law. The ICC has no jurisdiction over any person who was under 18 years at the time of the alleged commission of a crime and there is no limitation on the time within which a prosecution can be instituted. In other words, these crimes do not prescribe.
Part 4 deals with the composition and administration of the ICC. The ICC will consist of the Presidency, an Appeals Division, a Trial Division, a Pre-Trial Division, the Office of the Prosecutor and the Registry. The ICC will have 1 8 judges, who will be chosen from participating States. The Presidency, consisting of the President of the ICC and a First and Second Vice President, will be chosen by the judges and this Division will be responsible for the proper administration of the ICC and other functions conferred on it by the Statute, with the exception of the Office of the Prosecutor. The Appeals Division will consist of the President and 4 other judges, the Trial Division of not less than 6 judges and the Pre-Trial Division of not less than 6 judges. The Office of the Prosecutor will act independently of the ICC and will be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the ICC, for examining them and for conducting investigations and prosecutions before the ICC. The Prosecutor will be assisted by one or more Deputy Prosecutors and these functionaries will be elected by participating States (as members of the Assembly of States). They will be assisted by advisers with legal expertise on specific issues, among others, sexual and gender violence and violence against children. The Registry will be responsible for the nonjudicial aspects of the administration and servicing of the ICC and will be headed by the Registrar and Deputy Registrar, who will fall under the authority of the President of the ICC. The Registrar must set up a Victims and Witnesses Unit within the Registry, which will provide protective measures and security arrangements, counselling and other assistance for witnesses and victims. The Prosecutor and Registrar must appoint qualified staff to assist them in the performance of their functions, including investigators. The Statute also makes provision for the removal of judges, prosecutors and registrars from office and for disciplinary measures. In order to guarantee the independence of judges and the Prosecutor there are provisions relating to their privileges and immunities, salaries and advances. The ICC is also empowered to make regulations necessary for the routine functioning thereof. The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar will receive the salaries, allowance and expenses as decided by the Assembly of States Parties.
Part 5 of the Statute deals with investigations and prosecutions. It sets out, among others, the duties and powers of the Prosecutor, eg the Prosecutor must decide on the information made available, whether the information provides a reasonable basis to believe that a crime has been committed falling within the jurisdiction of the Court, that the case is admissible in terms of Article 1 7 and that an investigation would serve the interests of justice and then make a recommendation to the Pre-Trial Chamber. The Prosecutor then initiates an investigation (eg collecting and examining evidence, requiring States to assist) during which the rights of persons must be respected. This Part also sets out the functions and powers of the Pre-Trial Chamber, eg issuing orders or warrants of arrest that may be required and authorising the Prosecutor to take specific investigative steps. Other matters provided for in this Part include arrest proceedings in the custodial state at the request of the Court, the surrender of the person to the Court by the custodial State and confirmation of the charges before the trial, in terms of which the Pre-Trail Chamber must hold a hearing to confirm the charges against the person. The person must also be informed of the evidence on which the Prosecutor intends to rely and the Prosecutor must support each charge with sufficient evidence to establish substantial grounds to believe that the person committed the crimes with which he or she has been charged. The person charged may object to the charges challenge the evidence and present evidence. The PreTrial Chamber, at the conclusion of this hearing, must decide whether there is sufficient evidence to commit the person to a Trial Chamber for trial or whether to decline to confirm the charges. The underlying principle is that the rights of persons being investigated should be respected at every stage of the proceedings.
Part 6 deals with the actual trial of the accused. It sets out the principles governing proceedings before the Trial Chamber, eg the trial must take place in the presence of the accused person the trial must be fair, quick and be held in public. The Trial Chamber has the power to rule on the admissibility of evidence. This Part also regulates the proceedings where guilt is admitted. It deals with the rights of an accused person, including the presumption of innocence, rights relating to interpreters and legal representation and the right 10 remain silent. It makes provision for the protection of witnesses and victims (including in camera proceedings where necessary), and for the manner in which evidence is to be given. It provides for offences against the administration of justice, eg the giving of false evidence, requiring States Parties to extend their criminal laws in this regard to cover proceedings relating to this Statute. Numerous provisions in this Part deal with the protection of information relating to national security or confidentiality. In terms of Article 75 the Court must establish principles relating to reparations for victims. Orders for reparations can be made against an accused person or an award for reparations can be made through the Trust Fund provided for in Article 79.
Part 7 deals with penalties that may be imposed by the Court, namely imprisonment not exceeding 30 years or even a term of life imprisonment when this is justified by the extreme gravity of the crime. In addition the Court may impose a fine or order the forfeiture of proceeds, property and assets derived from the crime in question. In terms of Article 79 a Trust Fund is to be established by a decision of the Assembly of States Parties for the benefit of victims of crimes and their families. The Court may order money and other property collected through fines or forfeiture to be transferred to the Trust Fund. This Fund will be managed according to criteria to be determined by the Assembly of States Parties.
Part 8 provides for grounds of appeal and revision. The Prosecutor or the accused person may appeal on the grounds of procedural error or error of fact or error of law. An appeal may also relate to the sentence imposed by the Court. An appeal may also lie against other decisions of the Court, eg decisions relating to the jurisdiction or admissibility of a case before the Court or the further detention or release of an accused person. Appeals are heard by the Appeals Chamber which has all the powers of the Trial Chamber and which can reverse or amend a decision or sentence of the Trial Chamber or order a new trial before a different Trial Chamber.
Part 9 deals with international co-operation and judicial assistance. States Parties are under an obligation to co-operate fully with the Court on request through an appropriate channel, as may be designated by each State Party. Apart from arrest and surrender of persons to the Court, States Parties are required to co-operate with the Court regarding matters such as the questioning of any person being investigated or prosecuted, service of documents, on site investigations and execution of searches and seizure. Other areas of assistance include protection of victims and witnesses, the identification of persons, the taking and the preservation of evidence, the provision of documents or records, etc. Where a State Party fails to comply with a request from the Court for assistance, preventing the Court from exercising its functions and powers under the Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or to the Security Council. To facilitate this assistance, States Parties are required to ensure that there are appropriate procedures available under their domestic legislation. This Part also makes provision for the procedure to be followed and the contents of requests relating to the arrest and provisional arrest of a person, as well as to the surrender of persons to the Court. States must also authorise and assist in the transportation of persons who have been surrendered to the Court through their territories. Article 90 deals with the situation where there are competing requests, that is a request from both the Court for surrender and from another State Party seeking extradition. Generally speaking, the request for extradition of the requesting State Party will prevail in these circumstances. If the requesting State is however, not party to the Statute, generally speaking, the request of the Court should prevail. The ordinary costs for the execution of requests in the territory of the requested State are usually borne by that Slate.
Part 10 of the Statute deals with enforcement. Article 103, for instance, provides that a sentence of imprisonment must be served in a State designated by the Court from a list of States that have indicated their willingness to accept sentenced persons. The enforcement of a prison sentence is subject to the supervision of the Court and must be consistent with the international treaty standards governing the treatment of prisoners. This Part also requires States Parties to give effect to fines or forfeitures ordered by the Court in accordance with their domestic law.
Part 11 of the Statute establishes an Assembly of States Parties whose powers and duties include providing management oversight to the Presidency, Prosecutor and Registrar regarding the administration of the court, consideration of the budget and enforcement of measures to ensure co-operation with the Court. Other functions of the Assembly of States Parties, at least initially, include the consideration and adoption of recommendations of the Preparatory Commission established in terms of the Final Act. Each State Party will have one vote in this Assembly. The Assembly will be assisted by a Bureau. A State Party could lose its vote in the Assembly if it is in arrears in the payment of its financial contributions towards the costs of the Court.
Part 12 deals with the financing of the court. Expenses of the Court and the Assembly of States Parties will be paid from the funds of the Court, which will come from assessed contributions made by States Parties, funds provided by the United Nations and additional funds, voluntary contributions from Governments, international organisations individuals, corporations and other entities. The contributions of States Parties will be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based.
Part 13 contains the Final Clauses of the Statute, eg it addresses procedures for settlement of disputes, amendments, and withdrawal from the Statute. It also provides for matters regarding signature, ratification, acceptance and approval or accession. Although the Statute was opened for signature in Rome immediately after its adoption, it will, after 17 October 1998, remain open for signature in New York at the UN Headquarters until 31 December 2000. The Statute only comes into force after 60 instruments of ratification have been received. No reservations may be made to the Statute by any State Party.
Although the Conference has adopted the Statute, a number of issues remain unresolved. These will have to be resolved through further consultations. As a result, in the Final Act which was adopted together with the Statute, it was recommended that these outstanding issues be deliberated further at the future PREPCOM sessions. These issues are:
Rules of Procedure and Evidence
Elements of the Crimes
A relationship agreement between the Court and the United Nations
Basic principles governing a headquarters agreement to be negotiated between
the Court and the host country.
Financial regulations and rules
An agreement on the privileges and immunities of the Court.
A budget for the first financial year
The rules and procedure of the Assembly of States Parties.
Proposals for a provision on aggression and the conditions under which the
International Criminal Court would exercise its jurisdiction with regard to this crime, which will be submitted to the Assembly of States Parties at a Review Conference.
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