Week 2: Initiation of Investigations and Selection of Cases

Article 1 IRMCT

Territorial, Personal, and Temporal Jurisdiction

ICTY/R and SCSL Focus Jurisdiction

-focus on 1 situation

-ICTY/R temporally defined

ECCC/SCSL Focus Jurisdiction

-personal jurisdiction, those bearing greatest responsbility

Article 5 RS

ICC Material Jurisdiction

Article 6 RS

Genocide

Article 7 RS

Crimes Against Humanity

Article 8 RS

War Crimes

Article 8bis RS

Crime of Aggression

Article 11 RS

Temporal Jurisdiction (After July 2002)

Article 12(2) RS

Territorial and Personal Jurisdiction

RS Preamble + Art. 26

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

Article 12 RS

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

Article 12(1) RS

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

Article 12(3) RS

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”

Chapter VII UN Charter

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”

Article 13 RS

Trigger Mechanisms

Article 13(2)

Trigger Mechanism: Referral by UNSC

Article 14

Trigger Mechanism: Referral by State Party

Art. 15(1) (+ Art. 53)

Trigger Mechanism: Proprio motu Prosecutor

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

Article 16

Deferral by the UNSC

Article 5 IRMCT

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

Rule 9 RPE ICTY/R

Request for deferral to competence Tribunal

Rule 11bis RPE ICTY/R

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

Art. 6 and 1(3)(4) IRMCT

Referral of cases low-mid level perp to domestic court

Art. 5 and 1(2) IRMCT

Primacy for most senior leaders suspected of being the most responsible

Article 17 RS

Complementarity

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

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

Article 16(1) IRMCT

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)

Article 53

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))

Preliminary Examinations ICC

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

Rule 104(1) RPE ICC + Art. 53(1)(a)-(c) RS

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

Art. 15(3) RS

PTC authorization only for proprio motu investigation

Art. 53(1) RS

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

Standard of Proof (ranked) ICC

< ‘sufficient basis for a prosecution’ < ‘reasonable

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

Phases of Preliminary Examinations ICC

Phase 1: Initial assessment

Phase 2: Formal commencement

Phase 3: Admissibility

Phase 4: Interests of Justice

Phase 1: Initial assessment

Only for Art. 15 Communications

Phase 2: Formal commencement

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

Phase 3: Admissibility

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

Phase 4: Interests of Justice

Art. 53(1)(c)

PTC review under 53(3)(b)

No reasonable basis to proceed?

-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

Article 19(3) RS

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)

Art. 17(1)(d) RS

Gravity

OTP Regulation 29(2)

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).

Art. 54 RS

Full scope of investigative powers Prosecutor

Art 53(2) RS

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