Week 2: Initiation of Investigations and Selection of Cases

Territorial, Personal, and Temporal Jurisdiction

-focus on 1 situation

-ICTY/R temporally defined

-personal jurisdiction, those bearing greatest responsbility

ICC Material Jurisdiction

Genocide

Crimes Against Humanity

War Crimes

Crime of Aggression

Temporal Jurisdiction (After July 2002)

Territorial and Personal Jurisdiction

Defined parameters personal jurisdiction (those responsible for international crimes + > 18)

Preconditions for jurisdiction: “crime committed in the territory of or by the national of…”

Preconditions for Jurisdiction; “crime committed in the territory of or by the national of…a state party” (automatic jurisdiction)

Exception: Art. 124 war crimes; Art 15bis(2)&(4) + 121(5) aggression

Preconditions for Jurisdiction; “crime committed in the territory of or by the national of…a non-state party who has accepted, on an ad hoc basis, the jurisdiction of the court with respect to the crime in question”

Preconditions for Jurisdiction; “crime committed in the territory of or by the national of…a non-state party, when the UNSC has referred situation to the court”

Trigger Mechanisms

Trigger Mechanism: Referral by UNSC

Trigger Mechanism: Referral by State Party

Trigger Mechanism: Proprio motu Prosecutor

+Art. 15(3)(4) & Art 54 because full investigation requires PTC authorization

Deferral by the UNSC

Concurrent jurisdiction: tribunal has “primacy”: requires states to defer any proceedings they were contemplating or undertaking to the court (ICTY/R)

Request for deferral to competence Tribunal

Referral of indictment to domestic court

• shift in approach tribunals: indictments to own national authorities (referring cases back to national authorities)

• -> this lead to the abolition of the death penalty in Rwanda; in order to ensure fair trial standards and be able to have domestic prosecutions

Referral of cases low-mid level perp to domestic court

Primacy for most senior leaders suspected of being the most responsible

Complementarity

• Art. 17(1)(a)-(c) => states fail to prosecute

• Art. 17(2)-(3) => States are unwilling or unable

IRMCT Prosecutor does not have the power to prepare new indictments against

persons not previously indicted by the ICTY and ICTR

-ICTY Initiates investigations under art. 18(1)

-ICTR initiates investigations under art. 17(1)

Initiation of Investigation

After trigger mechanism, before formal investigation, a preliminary investigation must take place. Has to be determined whether there is a “reasonable basis to proceed” (53(1)(a))

R 104(1) RPE + Art. 53(1)(a)-(c) + Art. 15(3)

Prosecutor evaluates seriousness of information in order to determine whether there is a ‘reasonable basis to proceed’

PTC authorization only for proprio motu investigation

Reasonable basis to proceed (legal standard: 1 jurisdiction, 2 admissibility, 3 interests of justice)

< ‘sufficient basis for a prosecution’ < ‘reasonable

grounds to believe’ < ‘substantial grounds to believe’.

Phase 1: Initial assessment

Phase 2: Formal commencement

Phase 3: Admissibility

Phase 4: Interests of Justice

Only for Art. 15 Communications

Art. 12 ex vi 51(3)(a), preconditions for jurisdiction

Art. 17 ex vi 51(1)(b) => Complementarity + Gravity

Art. 53(1)(c)

PTC review under 53(3)(b)

-Art. 53(3)(a): judicial review at request of referring state or UNSC

-Art. 53(3)(b): PTC’s own decision if based on IoJ only

Request for ruling on jurisdiction

e.g. Myanmar/Bangladesh

→ Authorized under Art. 15

e.g. Palestine

→ Referral obliged OTP to open investigation after OTP determined reasonable basis to proceed (that ICC may exercise jurisdiction)

Gravity

outlines the factors relevant in assessing gravity

• Scale of the crimes (number of victims; damage caused, in particular bodily or psychological harm; geographical or temporal spread);

• Nature of the crimes (specific elements of each offence; especially, killings, SGBV, crimes against children);

• Manner of commission (means employed; systematic nature / plan or organised policy; particular cruelty and motives);

• Impact of the crimes (sufferings endured by the victims and their increased vulnerability; terror, and social, economic and environmental damage).

Full scope of investigative powers Prosecutor

‘sufficient basis to prosecute’ -> same parameters applied in a stricter way with a new focus