Previous comments - Part 3

Article 34

[327] Organs of the Court
The Court shall be composed of the following organs:
(a) The Presidency;
(b) An Appeals Division, a Trial Division and a Pre-Trial Division;
(c) The Office of the Prosecutor;
(d) The Registry.
General Remarks
Unlike the ICTY, ICTR and SCSL, which were comprised of three organs: Chambers, the Office of the Prosecutor and the Registry, the ICC has a separate organ for the Presidency. Article 38 sets out the function and structure of the Presidency. The role and structure of the remaining organs of the ICC – Chambers, the Office of the Prosecutor, and the Registry – are elucidated in Articles 39, 42 and 43 of the Statute.

Cross-references:
Articles 39, 42 and 43
Regulation 3

Author: Yvonne McDermott

Updated: 30 June 2016

Article 35

[328] Service of judges
General Remarks
The drafters of the Statute envisioned that there may be times in the Court’s lifetime when the full complement of judges would not be needed to sit on a full-time basis (Schabas, 2010). In a sense, the structure for service of judges as set out in Article 35 is akin to that of the Mechanism for the International Criminal Tribunals (MICT) and the Residual Special Court for Sierra Leone, which were established to continue the mandate of the ICTY, ICTR, and SCSL once all of their trials and appeals were completed. These residual mechanisms function with a skeleton staff and sitting Presidency, but have a roster of judges who can be called upon should any ad hoc functions (e.g. review of convictions or acquittals; contempt of court proceedings) arise. In practice, this provision has had little significance, since all of the judges have sat on a full-time basis for the majority of the Court’s lifetime.

Preparatory Works
Article 35 reflects the drafters’ perception of the ICC as a type of standby ad hoc tribunal, which could be called into action when the need arose (Schabas, 2010).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 35(1)

[329] 1. All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office.
Article 35(1), stating that elected judges are to be available ‘as full time members of the Court’, may seem at odds with Article 35(3), which outlines that the Presidency may decide which remaining judges are to sit on a full-time basis. However, the key word here is ‘available’. In principle, judges are free to take on other work, but their key priority is to the Court as full-time judges. As such, they must make themselves available as soon as the need arises (Wen-qi and Chana, 2008).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 35(2)

[330] 2. The judges composing the Presidency shall serve on a full-time basis as soon as they are elected.
The three judges who make up the Presidency, a stand-alone organ of the Court whose functions are set out in Article 38, are required to sit on a full-time basis from the moment they are elected. This is logical, given that the Presidency is responsible for the proper administration of the Court (except for the Office of the Prosecutor), according to Article 38. The President and two Vice-Presidents are elected for a three-year renewable term.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 35(3)

[331] 3. The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such arrangement shall be without prejudice to the provisions of Article 40.
The Presidency is given the discretion to decide which of the remaining judges are to sit on a full-time basis. This provision is made without prejudice to Article 40 on judicial independence. Presumably, the cross-reference is made to copper fasten the provisions in Article 40 that judges may not engage in other professional activity that may create the appearance of bias or partiality, and that judges who are sitting on a full-time basis may not take on any other employment that might jeopardize their appearance of impartiality.
In September 2003, the then-President of the Court, Philippe Kirsch, informed the Assembly of State Parties that it was expected that the judges of the Pre-Trial and Appeals Chambers would be required to sit on a full-time basis from 2004 (Wen-qi and Chana, 2008; Schabas, 2010). By 2006, all three judicial divisions had become fully operational and only two trial judges were serving on a non-full time basis (Assembly of States Parties, Proposed Programme Budget for 2007 of the International Criminal Court, 5th Session, 22 August 2006).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 35(4)

[332] 4. The financial arrangements for judges not required to serve on a full-time basis shall be made in accordance with Article 49.
Article 49 leaves matters of remuneration in the hands of the Assembly of States Parties, and the Assembly is charged with making financial arrangements for judges not sitting full-time. Pursuant to the ‘Conditions of Service and Compensation of the Judges of the International Criminal Court’, part-time judges are entitled to an annual allowance of 20,000 euros, and may have their income supplemented up to 60,000 euros if their annual declared income falls short of that amount (Wen-qi and Chana, 2008). If judges are sitting on a non-full time basis and the need arises for them to sit full-time, they are paid from the contingency fund (Assembly of States Parties, Proposed Programme Budget for 2007 of the International Criminal Court, 5th Session, 22 August 2006).

Cross-references:
Articles 38, 40 and 49
Regulation 9

Doctrine:

William, A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 520-523.
Zhu Wen-qi/Sureta Chana, "Article 35", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 937-939.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 36

[333] Qualifications, nomination and election of judges
General remarks
The Statute contains detailed provisions on the appointment and qualifications of judges, which are designed to ensure adequate global and gender representation. The provision on the increase and reduction of the number of judges is a pragmatic innovation, doubtlessly inspired by the issues that arose in the ad hoc tribunals when the workload became disproportionate to the number of judges over the course of the their lifetimes.

[343] 10. Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with Article 39 shall continue in office to complete any trial or appeal the hearing of which has already commenced before that Chamber.
Where a judge’s term of office has completed but s/he is sitting on an ongoing case, they are permitted to remain in office until the case is complete. This was the situation of Judge Blattmann, for example, who was elected in 2003 for a period of six years. Although he was not eligible for re-election in 2009, Judge Blattmann was permitted to remain sitting as a judge until 2012, when the Lubanga case ended.
This arrangement is sensible and will alleviate many of the difficulties faced by the ad hoc tribunals when judges were not re-elected. Rule 15bis of the ICTY and ICTR Rules of Procedure and Evidence were amended in 2003 to allow proceedings to continue with a substitute judge where a judge of the original bench had not been re-elected. This was less than satisfactory, because the substitute judge would not have had the opportunity to watch the witnesses testify in person and thus observe their credibility, and in cases involving protected witnesses, that testimony might not have been recorded (See Prosecutor v. Nyiramashuko et al., (Case No. ICTR-97-21-T), ICTR A. Ch., Decision on the Matter of Proceedings under Rule 15bis, 24 September 2003, Dissenting Opinion of Judge David Hunt)

Cross-references:
Article 37

Doctrine:

Michael Bohlander, "The International Criminal Judiciary: Problems of Judicial Selection, Independence and Ethics", in Michael Bohlander (Ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures, Cameron May, London, 2007, pp. 325-390.
Valerie Oosterveld, "Prosecution of Gender-Based Crimes in International Law", in Dyan Mazurana et al. (Eds.), Gender, Conflict and Peacekeeping, Rowman & Littlefield Publishers Inc., Lanham, 2005, pp. 67-82.
Christoph Safferling, International Criminal Procedure, Oxford University Press, Oxford, 2012, p. 130.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 524-535.
Zhu Wen-qi/Sureta Chana, "Article 35", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 941-948.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 37

[344] Judicial vacancies
1. In the event of a vacancy, an election shall be held in accordance with Article 36 to fill the vacancy.
2. A judge elected to fill a vacancy shall serve for the remainder of the predecessor's term and, if that period is three years or less, shall be eligible for re-election for a full term under article 36.
General remarks
This Article is relatively uncontroversial. It merely states that where a judge is unable to carry on with proceedings, a substitute judge will be elected in accordance with the procedure set out in Article 36 to serve the remainder of his/her term. The successor judge will not be eligible for re-election, unless the predecessor’s remaining term of office is less than three years.

Preparatory works
The main controversies in drafting this provision were whether the replacement judge’s qualifications should match those of his/her predecessor, and the question of eligibility for re-election (Schabas, 2010). It was soon decided that any attempt to match the successor’s expertise with that of their predecessor would be too complex, and the idea was abandoned (ibid.) The International Law Commission had initially proposed that where the predecessor’s term was five years or less, the replacement judge should be eligible for re-election; this was ultimately reduced to three years (ibid.).

Analysis
The wording of this provision seems to suggest that as soon as a judicial vacancy arises, an election to appoint a replacement judge shall take place. In reality, this has not been the case. In 2012, an election was held to replace the vacancies left by Judges Blattmann, Fulford and Odio-Benito. Judge Blattmann’s term of office had ended in 2009, and the terms of office of his colleagues on Trial Chamber I had ended on 10 March 2012, but all three remained in office until the Lubanga judgment was issued on 14 March. When three replacement judges were elected, it was unclear which of the new judges had replaced Judge Blattmann, and which had succeeded the other two judges. Ultimately, lots were cast to decide upon this question (Schabas, 2010).
Under Rule 36 of the Rules of Procedure and Evidence, the Presidency must inform the Presidency of the Bureau of the Assembly of States Parties of the death of a judge, presumably so that an election for the judge’s replacement can be organised. Pursuant to Rule 37, when a judge wishes to resign, they should inform the Presidency (who will in turn inform the Assembly of States Parties) with ideally six months’ notice.

Cross-references:
Article 36
Rules 36, 37, 38 and 39.

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 536-538.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 38

[345] The Presidency

General Remarks
The Presidency is a unique organ to the International Criminal Court. It is responsible for the proper administration of the Court, and other functions as set out in the ICC Statute, such as excusing judges from the exercise of their judicial functions under Article 41, and proposing an increase in the number of judges pursuant to Article 36. Some functions are conferred on the President as an individual, such as concluding the relationship agreement with the United Nations on the Court’s behalf under Article 2.

Preparatory Works
One of the proposed functions of the Presidency, to determine whether the Prosecutor or Deputy Prosecutor should be disqualified on the basis of their prior involvement with a case or any other ground relating to their independence, was rejected by delegates at the Rome Conference. It was felt that such a power might risk the Presidency wielding excessive influence over the Office of the Prosecutor (Rwelamira, 1998). The final Article 38 is careful in maintaining the independence of the Prosecutor from the Presidency.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 38(1)

[346] 1. The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once.
The President and two Vice-Presidents sit for terms of office of three years each, and may be re-elected once. They are elected by a majority of the judges. The first two Presidents of the Court, Philippe Kirsch and Sang-Hyun Song, both sat for two terms of office.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 38(2)

[347] 2. The First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified.
When the President is unable or disqualified from conducting one of his or her tasks, the first Vice-President acts in his or her place. If neither the President nor the first Vice-President is available, the second Vice-President will step in. In September 2013, the second Vice-President, Judge Cuno Tarfusser, corresponded with the African Union on the Court’s behalf, in response to a request received to defer prosecutions in the Kenya situation before the Court.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 38(3)

[348] 3. The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for:
(a) The proper administration of the Court, with the exception of the Office of the Prosecutor; and
(b) The other functions conferred upon it in accordance with this Statute.
The Presidency is tasked with the proper administration of the Court, with the exception of the Office of the Prosecutor. It can be seen from other provisions of the Statute (e.g. Articles 35; 37) that there is a particular focus on organising the work of the judicial divisions of the Court in this regard. The Presidency also bears some important functions as regards the external relations of the Court. For example, the President presents a statement to the Association of States Parties annual meeting every year. Perhaps most importantly, the Presidency is responsible for the direct supervision of the Registrar as the principal administrative officer of the Court, pursuant to Article 43(2).
There has been some jurisprudence on the meaning and precise scope of the term ‘proper administration of the Court’ as it relates to the Presidency’s functions. In 2006, the Prosecutor requested the Presidency to take steps to ensure that an individual, who had previously worked for the Office of the Prosecutor as a Legal Adviser and had gone on to become Senior Legal Adviser to the Pre-Trial Chamber in the same case, be removed from the case. The Presidency declared that it lacked competence in the matter, holding that issues relating to staff competence fell outside the scope of ‘proper administration of the Court’, and communicated the matter to the Pre-Trial Chamber for its consideration (Prosecutor v. Lubanga, ICC PT. Ch., Decision on the Prosecutor’s Application to Separate the Senior Legal Adviser to the Pre-Trial Division from Rendering Legal Advice Regarding the Case, ICC-01/04-01/06-623, 27 October 2006). The Appeals Chamber has thus far declined to comment on whether matters of the payment of legal assistance and the appointment of counsel could fall within the scope of the Presidency’s duties, although it has held that the Registrar may ‘have recourse to the President for necessary advice and guidance’, pursuant to Article 43(2) (Prosecutor v. Lubanga, Decision of the Appeals Chamber upon the Registrar’s Requests of 5 April 2007, ICC-01/04-01/06-873, 27 April 2007).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 38(4)

[349] 4. In discharging its responsibility under paragraph 3 (a), the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.
Where matters of mutual concern to both the Prosecutor and the Presidency are at issue, the Presidency shall consult with ‘and seek the concurrence of’ the Prosecutor. Such matters might include such issues as security arrangements for defendants and witnesses, or matters concerning the functioning of the Registry (Schabas, 2010). Some have argued that this is an unwelcome provision in the Statute, on the basis that the relationship between the Presidency and the Prosecutor should not be too collegiate, and given that the Presidency is not obliged to consult the Defence on such matters of mutual concern (Jones, 2002).

Cross-references:
Articles 35, 37 and 43
Rule 8
Regulation 11

Doctrine:

Medard R. Rwelamira, "Composition and Administration of the Court", in Roy S. Lee (Ed.), The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 153-173.
John R. W. D. Jones, "Composition of the Court", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 235-269.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 539-549.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 39

[350] Chambers
General remarks
The ICC’s 18 judges are divided into three divisions: Appeals (five judges); Trial (six judges) and Pre-Trial (six judges), with one alternate judge.

Author: Yvonne McDermott and Mark Klamberg

Updated: 30 June 2016

Article 40

[360] Independence of the judges
General remarks
The right to be tried by an independent tribunal is a key component of the right to a fair trial. Article 40 sets out the conditions for judicial independence, meaning the freedom from external interference with the exercise of judicial functions.

Preparatory works
An original proposal that a judge could not sit on a case where the accused bears the same nationality as him/her was dropped during the drafting of the Rome Statute (Jones, 2002). Article 10 of the ILC’s draft statute proposed that judges could not hold office in a state concurrently with a judicial position in the ICC; in order to recognise that individuals can occasionally merely hold a title, this was later replaced with a more practical examination of whether they actively engaged in the judicial process of a state (Jones, 2002). Another proposal that the Presidency would be responsible for deciding questions of judicial independence was also replaced with the current arrangements under Article 40(4) (Jones, 2002).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 40(1)

[361] 1. The judges shall be independent in the performance of their functions.
Article 40(1) states that judges shall be independent in carrying out their judicial functions. This provision is supplemented by the ICC’s Code of Judicial Ethics, which was adopted in 2005. Article 3 of the Code states that judges shall uphold the ‘independence of their office and the authority of the Court’ in their conduct, and shall not engage in any conduct that would give rise to questions about their independence. Article 9 of the Code stresses that judges have the right to freedom of expression, but that this right should be exercised in a manner consistent with their independence and impartiality, and that they should not comment on pending cases or express views ‘which may undermine the standing and integrity of the Court’.
One issue that arises is that judges, particularly those who sit on the Presidency, have a role in the external relations of the Court and are frequently asked to give speeches on the work of the Court (Cryer, 2009). This can affect confidence in their independence and impartiality. For example, in the Lubanga case, the defence asked that Judge Song be recused from hearing the appeal, on the basis of remarks he had made in his capacity as President of the Court (Prosecutor v. Lubanga, ICC PT. Ch. I,Decision of the Plenary of Judges on the Defence Application of 20 February 2013 for the Disqualification of Judge Sang-Hyun Song from the case of The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-3040-Anx, 11 June 2013). Judge Song had referred to the Lubanga conviction as a ‘landmark judgment’ and one that ‘sets a crucial precedent in the fight against impunity’. The Plenary of Judges held that a fair-minded observer would not see these statements in their context as a comment on the merits of the appeal or on any legal or factual aspect of the appeal.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 40(2)

[362] 2. Judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.
The Statute and the Code of Judicial Ethics both state that judges shall not exercise any extra-judicial function that might reasonably call their independence or impartiality into question, with Article 10 of the Code adding that ‘judges shall not exercise any political function’. In Lubanga, an alleged incompatibility arose between Judge Song’s position as a judge and his concurrent role as President of UNICEF Korea, given that the accused was charged with the conscription and use of child soldiers. This argument was rejected by a majority of the judges (Prosecutor v. Lubanga, Decision of the plenary of judges on the Defence Application of 20 February 2013 for the disqualification of Judge Sang-Hyun Song from the case of The Prosecutor v. Thomas Lubanga Dyilo, 11 June 2013). This decision follows precedent from the ICTY and SCSL, where involvement with related interest groups or inter-governmental organisations tends not to give rise to the dismissal of a judge on the grounds of independence or impartiality (Prosecutor v. Norman, SCSL PT. Ch., Decision on the Motion to Recuse Judge Winter from the Deliberation in the Preliminary Motion on the Recruitment of Child Soldiers, Case No. SCSL-2004-14-PT, 28 May 2004; Prosecutor v. Furundžija, Judgment, Case No. IT-95-17/1-A, 21 July 2000.)

Author: Yvonne McDermott

Updated: 30 june 2016

Article 40(3)

[363] 3. Judges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature.
Full-time judges may not engage in any other occupation of a professional nature. A greater leeway is afforded to judges who are not full-time members of the Court; they are merely to refrain from any activity likely to interfere with their judicial functions or give rise to questions over their independence, under Article 40(2).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 40(4)

[364] 4. Any question regarding the application of paragraphs 2 and 3 shall be decided by an absolute majority of the judges. Where any such question concerns an individual judge, that judge shall not take part in the decision.
Decisions on questions of independence are to be decided by an absolute majority of the remaining judges, pursuant to Article 40(4). Although the link is not made explicit, presumably the provisions of Article 41 and the related rules on excusal, and the due process safeguards inherent thereto, would attach to such a decision.

Cross-references:
Articles 38 and 41

Doctrine:

Robert Cryer, "The International Criminal Court and its Relationship to Non-Party States" in Carsten Stahn/Göran Sluiter (Eds.), The Emerging Practice of the International Criminal Court, Nijhoff Publishers, Leiden, 2009, pp. 115-133.
Jules Deschênes/Christopher Staker, "Article 40", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 961-965.
John R. W. D. Jones, "Composition of the Court", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 235-269.
Anja Seibert-Fohr, "International Judicial Ethics", in Cesare Romano et al. (Eds.), The Oxford Handbook of International Adjudication, Oxford University Press, 2013, pp. 757-779.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 41

[365] Excusing and disqualification of judges
General remarks
While Article 40 is primarily concerned with the independence or freedom from external influence of judges, Article 41 sets out the procedure for excusal or disqualification on the grounds of perceived or actual bias on the part of the judge. Rule 35 of the Rules of Procedure and Evidence requires a judge to request recusal if any circumstances exist that might call his or her impartiality into question. Article 41 sets down some examples of such circumstances, and is complemented by Rule 34 of the Rules in this regard. It also outlines the procedure to be followed for the disqualification of a judge.

Preparatory works
In the International Law Commission’s 1993 draft, it suggested that the majority of the remaining judges in a Chamber would decide on the disqualification of their colleague, in conjunction with the Presidency. (Schabas, 2010) By 1994, this had been amended to leave the decision solely to the remaining judges of the Chamber concerned. The Preparatory Committee later decided that the question should be decided by a majority of the judges of the Court, and it is this formulation that remains in Article 41(2)(c) today.
At the Rome Conference, there was some discussion as to whether States could make requests for recusal of judges, and also about whether nationality might be a factor giving rise to doubts of the impartiality of a judge. (Schabas, 2010) Ultimately, these questions were answered in the negative, insofar as they were not included in the final text of Article 41. Nevertheless, it would certainly remain open to the Association of States Parties to amend the Rules of Procedure and Evidence accordingly, if it were to later decide that nationality of judges should be a factor in considering impartiality and/or that states should be able to lodge requests for disqualification of a judge.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 41(1)

[366] 1. The Presidency may, at the request of a judge, excuse that judge from the exercise of a function under this Statute, in accordance with the Rules of Procedure and Evidence.
Article 41(1) deals with ‘excusal’, or what might be called ‘recusal’ in other courts. This is where a judge requests that he or she be excused from their judicial functions on the basis of a conflict of interest. Such requests are made in writing to the Presidency, and pursuant to Rule 33, the request and the decision are kept confidential (unless the judge involved gives his or her consent for the decision to be made public). In Katanga, two judges of the Appeals Chamber requested excusal from hearing an interlocutory appeal on the basis that they had previously sat on the Pre-Trial Chamber for the same case (Prosecutor v. Katanga and Ngudjolo Chui, ICC A. Ch., Decision on the Request to be Excused from Sitting on the Appeal against the Decision on Admissibility in the case of The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui pursuant to Article 41 of the Rome Statute, ICC-01/04-01/07-1266-AnxII, 3 July 2009.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 41(2)(a)

[367] 2. (a) A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted. A judge shall also be disqualified on such other grounds as may be provided for in the Rules of Procedure and Evidence.
Article 41(2) explicitly mentions ‘inter alia’ two circumstances that might give rise to disqualification. The first is the involvement with any prior stage of the case that they have been allocated to in any capacity. For example, a new judge elected on the basis of their expertise in international law might previously have given legal assistance given to a state in challenging the admissibility of a case; this would disqualify them from later hearing that case, even though the admissibility issue has long since been settled. The second ground listed in Article 41(2) is the involvement at national level in a ‘related criminal case’. An example might be where a judge who was elected on the basis of their judicial experience had earlier sat on a case involving atrocities committed by an armed group that the accused was a commander of.
   Article 34 supplements this list by adding four potential further grounds for disqualification. First, if the judge has a close relationship (personal or professional) with any of the parties, his or her impartiality might reasonably be doubted. Before the ICTR, the impartiality of Judge Vaz was challenged on the basis that she was living with a member of the prosecution team. The remaining judges on the Trial Chamber dismissed this challenge, finding that there was no question of her impartiality notwithstanding this fact. (Prosecutor v. Karemera et al., (Case No. ICTR-98-44-AR15bis.2), ICTR A. Ch., Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004, para 69.) The Appeals Chamber later held that a reasonable apprehension of bias could be found against the Chamber as a whole on the basis of that decision. (Prosecutor v. Karemera et al., Decision on Severance of André Rwamakuba and Amendments of the Indictment, Case No. ICTR–98–44–PT, 7 December 2004, para 22.)
   Second, Rule 34 states that involvement in a private capacity in any legal proceedings where the suspect or accused is an opposing party will be a ground for disqualification. It seems highly unlikely that a judge of the International Criminal Court will be involved in a civil suit against an accused before the Court, initiated either before or during their involvement in the case. One wild hypothetical might be where the accused person publishes some material or makes a statement that would seriously lower a judge’s reputation in the eyes of right-thinking members of society, and the judge seeks to take a defamation action against him or her. It goes without saying that this hypothetical is exceptionally improbable, not least because judges have traditionally shown resilience in the face of insults and allegations made by obstreperous defendants in the past, but also because privilege attaches to court proceedings in many jurisdictions.
   Third, the performance of functions prior to taking office ‘during which he or she could be expected to have formed an opinion on the case in question’ or on the parties or their legal representatives that could affect their impartiality as a judge is a further potential ground for dismissal. Many international criminal judges tend to have had some scholarly involvement in the issues at hand, or have served on advisory boards, prior to their judicial appointments. This will not be a cause for recusal in and of itself, and the extent to which it affects the impartiality of the individual judge will be decided on a case-by-case basis. Before the SCSL, Judge Winter’s involvement in children’s rights causes generally was not seen to give rise to actual or perceived bias in a case involving chid soldiers. (Prosecutor v. Norman, Decision on the Motion to Recuse Judge Winter from the Deliberation in the Preliminary Motion on the Recruitment of Child Soldiers, Case No. SCSL-2004-14-PT, 28 May 2004.) Similarly, in Furundžija, it was held that Judge Mumba’s past involvement with the United Nations Committee on the Status of Women similarly did not risk an appreciation of bias on her part; indeed, involvement with such organisations or interest groups may serve as proof of the judge’s suitability for the job. (Prosecutor v. Furundžija, Judgment, Case No. IT-95-17/1-A, 21 July 2000.)
   Fourth, the expression of opinions that could give rise to objective doubts as to the impartiality of the judge will be a ground for dismissal. This was the case in Sesay before the SCSL, where a judge’s publication that specifically mentioned the armed group of which the accused was a member was held to give rise to a reasonable apprehension of bias. (Prosecutor v. Sesay, (Case No. SCSL-2004-15-AR15), SCSL A.Ch., Decision on Defence Motion Seeking the Disqualification of Justice Robertson from the Appeals Chamber, Case No. SCSL-2004-15-AR15, 13 March 2004.) A request for disqualification of Judge Eboe-Osuji on the basis of a blog post was dismissed by a majority of the plenary of judges in Banda and Jerbo. (Prosecutor v. Banda and Jerbo, ICC Presidency, Decision of the Plenary of the Judges on the ‘Defence Request for the Disqualification of a Judge’, ICC-02/05-03/09-344-Anx, 5 June 2012.) The blog post, written before Judge Eboe-Osuji was appointed to the Court, discussed the relationship between the African Union and the Court and the Situation in Sudan, of which the Banda and Jerbo case was a part. The majority found that this general comment cast no doubt on the impartiality of the judge.
   As mentioned above, nationality was one debated ground for impartiality challenges that ultimately did not make it into the final ICC Statute. In the Banda and Jerbo disqualification decision, however, the fact that Judge Eboe-Osuji shared a nationality with the alleged victims was raised as a ground in the challenge. This was dismissed by the plenary of the judges. This appears to be justified by national jurisprudence, where more often than not the judge shares the nationality of the victim; human rights law, which says nothing on nationality as a grounds for lacking impartiality, and international criminal procedure where, in courts including the SCSL and the ECCC, a certain number of domestic judges share the bench with their international counterparts.
   In Lubanga, a question arose as to whether Article 41(2) could also apply to judicial assistants, as well as to judges. The Prosecutor argued that ‘[a]n adviser or clerk to a judge has no greater freedom to work on cases in which he or she has already been involved as a prosecuting lawyer, than the judge to whom the adviser or clerk provides legal advice.’ (Prosecutor v. Lubanga, ICC PT. Ch., Decision on the Prosecutor's Application to Separate the Senior Legal Adviser to the Pre-Trial Division from rendering Legal Advice regarding the Case, ICC-01/04-01/06, 27 October 2006) It would seem reasonable to suggest that an individual advising a judge on a case on which he or she previously worked for the prosecution should recuse himself or herself from that position, but there is nothing in the Statute or Rules on the impartiality of judicial advisors. The Pre-Trial Chamber ultimately requested the President to convene a plenary of judges to consider whether Article 41 could apply to a senior legal adviser to the Chamber. The President, in turn, declined this request on the basis that the remaining judges in a later meeting unanimously held that Article 41 did not apply, since the request had nothing to do with the disqualification of a judge. (Prosecutor v. Lubanga, Decision of the President on the request of the President of the Pre-Trial Division of 20 October 2006, Case No. ICC-01/04-01/07, 7 November 2006). See also Prosecutor v. Kony et al., ICC PT. Ch., III, Decision on the Prosecutor's request to Separate the Senior Legal Adviser to the Pre-Trial Division from rendering Legal Advice Regarding the Case, ICC-02/04-01/05-124, 31 October 2006.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 41(2)(b)

[368] (b) The Prosecutor or the person being investigated or prosecuted may request the disqualification of a judge under this paragraph.
Procedure for disqualification
Pursuant to Rule 35, judges are expected to ask to be excused from judicial duty where circumstances exist that could give rise to doubt as to their impartiality, rather than waiting for an Article 41(2) decision to be issued against them. Failure to do is a breach of duty giving rise to possible expulsion further to Article 46 (Schabas, 2010).
Under Article 41(2)(b), only the prosecution or the defence may make requests for disqualification. Rule 34 states that, ‘The request shall state the grounds and attach any relevant evidence, and shall be transmitted to the person concerned’. The challenged judge is entitled to present written submissions in response to the request for disqualification, although of course they may not participate in the decision of their judicial colleagues. In Katanga, the victims’ representative filed an application for the disqualification of Judge van den Wyngaert. The majority of the judges found that the request was inadmissible, as the victims had no locus standi pursuant to Article 41(2)(b). They said:

The Majority considered that the ordinary meaning of Article 41(2)(b) of the Statute was neither ambiguous nor unreasonable. Nor was there any lacuna in the law which called for further judicial interpretation. The law was plain and determinate as to who was entitled to bring an application for the disqualification of a judge. That right was limited to the Prosecutor and the person being investigated or prosecuted. (Katanga, Decision of the Plenary of Judges on the Application of the Legal Representative for Victims for the disqualification of Judge Christine Van den Wyngaert from the case of The Prosecutor v Germain Katanga, 22 July 2014, para. 44)

Cross-references:
Articles 40 and 46
Rules 33, 34 and 35

Doctrine:

Steven W. Becker, The “Presumption of Impartiality” and other Errors in the International Criminal Court’s Plenary Decision Concerning Judicial Disqualification of the President of the Court in The Prosecutor v. Thomas Lubanga Dyilo", Global Community Yearbook of International Law and Jurisprudence, vol. 1, 2013, pp. 111-124.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 568-573.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 42

[369] The Office of the Prosecutor
General remarks
In order for the ICC to retain credibility, it is imperative that it is staffed by a competent and independent Office of the Prosecutor. Article 42 sets out the functions and composition of this Office, as well as the required qualifications of the Prosecutor and Deputy Prosecutor, the process of election and disqualification, and the role of special advisers.

[377] 8. Any question as to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by the Appeals Chamber.

(a) The person being investigated or prosecuted may at any time request the disqualification of the Prosecutor or a Deputy Prosecutor on the grounds set out in this Article;

(b) The Prosecutor or the Deputy Prosecutor, as appropriate, shall be entitled to present his or her comments on the matter;
Challenges to the impartiality of the Prosecutor or Deputy Prosecutor(s) are to be decided by a majority of the Appeals Chamber, pursuant to Article 42(8) and Rule 34(3).
In practice, only the fourth enumerated ground in Rule 34 – the expression of opinions that could adversely impact upon the perceived impartiality of the Prosecutor or Deputy Prosecutor – has been adjudicated to date. The remarks made by Prosecutor Luis Moreno-Ocampo following the issuance of an arrest warrant for Sudanese President Omar Al-Bashir might provide an example. In an Article for The Guardian, Moreno-Ocampo made statements like, ‘Bashir's forces continue to use different weapons to commit genocide’ and failed to qualify his remarks by pointing out that these were allegations that the Court had yet to adjudge upon. The remarks were subject to a challenge brought by ad hoc defence counsel for Bashir, but were deemed inadmissible as falling outside of the ad hoc counsel’s mandate (Prosecutor v. Al. Bashir, ICC PT. Ch. I, Decision on the Application for an Order, ICC-02/05-01/09, 24 August 2009).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 42(9)

[378] 9. The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.
The Prosecutor can appoint advisers with specific legal experience in particular areas. It would appear that these positions are pro bono, but there is nothing in the Regulations of the Office of the Prosecutor that precludes these advisors from getting paid for their assistance. Some of the areas that special advisers have been appointed in are: gender; prosecution strategies; crimes against humanity; children in armed conflict and international humanitarian law.

Cross-references:
Articles 14, 15, 38, 40, 41, 44, 53 and 54
Rule 9, 10 and 11

Doctrine:

Luc Reydams/Jan Wouters/Cedric Ryngaert, International Prosecutors, Oxford University Press, 2012.
Arman Savarian, Professional Ethics at the International Bar, Oxford University Press, Oxford, 2013.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 574-584.
Sergey Vasiliev, The Role and Legal Status of the Prosecutor in International Criminal Trials, Grotius Center for International Legal Studies, 2010.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 43

[379] The Registry
General remarks
The Registry is the principal administrative organ of the Court. Article 43 sets out the role of the Registry and its head, the Registrar, as well as the conditions of service, means of election, and requisite qualifications of the Registrar.

Preparatory works
One of the key debates in the drafting of the Rome Statute was the issue of responsibility over the Victims and Witnesses Unit. Some advocated for this Unit to be shared with the Office of the Prosecutor (Schabas, 2010).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 43(1)

[380] 1. The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with Article 42.
As mentioned in the commentary to Article 42, the Office of the Prosecutor is an independent organ of the Court, responsible for its own administration. Therefore, there is some interplay and possible tension between its operation and the role of the Registry. Article 43(1) underscores this by noting that the powers of the Registry are ‘without prejudice to the functions and powers of the Prosecutor’. The Office of the Prosecutor, in creating Regulations for its operation pursuant to Rule 9, is to consult with the Registrar ‘on any matters that may affect the operation of the Registry’.
The Registry has primary for the ‘non-judicial aspects of the administration and servicing of the Court’, pursuant to Article 43(1). This role involves keeping records on behalf of the court (Rule 15); serving as the channel of communication of the Court (without prejudice to the OTP’s right to establish such channels of communication in the course of its investigations) (Rule 13), and ensuring the security of Court premises (Rule 13). The Registrar is responsible for ensuring the safety of detained persons (see Prosecutor v. Lubanga, ICC Registrar, Decision to classify the ‘registrar’s decision pursuant to Regulation 196(1) of the Regulations of the Registry’ as a public document, ICC-01/04-01/06-52, 23 March 2006), for organizing the surrender to the Court of suspects abroad (Rule 184); the transfer of persons in custody (Rule 192) and the transfer of convicted persons to the state where they will serve their sentence (Rule 206).
The Registry bears a significant role in ensuring that the defence rights of the accused under Article 67 are respected. It is responsible for providing ‘access to appropriate and reasonable administrative assistance’ to defence counsel and ensuring their professional independence. According to Rule 20, for the purpose of promoting the rights of the defence, ‘the Registrar shall, inter alia:

(a) Facilitate the protection of confidentiality, as defined in Article 67, paragraph 1 (b);
(b) Provide support, assistance, and information to all defence counsel appearing before the Court and, as appropriate, support for professional investigators necessary for the efficient and effective conduct of the defence;
(c) Assist arrested persons, persons to whom Article 55, paragraph 2, applies and the accused in obtaining legal advice and the assistance of legal counsel;
(d) Advise the Prosecutor and the Chambers, as necessary, on relevant defence- related issues;
(e) Provide the defence with such facilities as may be necessary for the direct performance of the duty of the defence;
(f) Facilitate the dissemination of information and case law of the Court to defence counsel and, as appropriate, cooperate with national defence and bar associations or any independent representative body of counsel and legal associations referred to in sub-rule 3 to promote the specialization and training of lawyers in the law of the Statute and the Rules.’

Author: Yvonne McDermott

Updated: 30 June 2016

Article 44

[386] Staff
General remarks
Article 44 sets out provisions on the qualifications of, and regulations applicable to, staff appointed by the Prosecutor and Registrar. Importantly, it sets out the status of so-called gratis personnel.

Preparatory works
Article 44 was introduced into the Statute at a late stage of the drafting process. It was initiated by a request from a representative of the United States to include something on the statue of gratis personnel, and this later was subsumed into a more general provision on personnel before the Court (Schabas, 2010).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 44(1)

[387] 1. The Prosecutor and the Registrar shall appoint such qualified staff as may be required to their respective offices. In the case of the Prosecutor, this shall include the appointment of investigators.
As the Statute notes numerous times, while the Registrar is the chief administrative officer of the Court, the Prosecutor has independence over the running of his or her office under Article 42(2). Article 44(1) reiterates this distinction, stating that the Prosecutor and Registrar shall appoint such staff as may be required ‘to their respective offices’. It adds, perhaps unnecessarily, that the Prosecutor will appoint investigators under Article 44. One possible reason for this inclusion is to underscore the fact that investigators are staff, not independent contractors, and as such, they bear all of the duties set out in the Staff Regulations.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 44(2)

[388] 2. In the employment of staff, the Prosecutor and the Registrar shall ensure the highest standards of efficiency, competency and integrity, and shall have regard, mutatis mutandis, to the criteria set forth in Article 36, paragraph 8.
The Registrar and Prosecutor are to have regard to the provisions of Article 36(8) when hiring staff. In other words, they should be mindful of the need to have representation of the principal legal systems of the world, equitable geographical representation and gender balance. According to a Report released by the Registry in 2013, ‘as at 31 March 2013, out of 319 professionals, 54 come from Africa, 20 from the Asia- Pacific Group, 23 from Eastern Europe, 26 from the Group of Latin American and Caribbean States and 196 from the Group of Western European and Other States.’ The gender balance was quite good, with 49.4 percent of staff at Professional or Director level being female, and 50.6 percent being male.
Staff members are mandated by Article 44(2) to embody the highest standards of efficiency, competency and integrity. The Regulations of the Court add that they must ‘uphold and respect the principles embodied in the Rome Statute, including faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women. The standard reference request used by the Court asks whether the individual is free from prejudice or intolerance with regard to race, gender, religious and ethnic background. The core competencies to work at the Court are set out as including honesty, integrity, attitude towards others, temperament, and ability to work harmoniously in a large diverse multi-cultural environment.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 44(3)

[389] 3. The Registrar, with the agreement of the Presidency and the Prosecutor, shall propose Staff Regulations which include the terms and conditions upon which the staff of the Court shall be appointed, remunerated and dismissed. The Staff Regulations shall be approved by the Assembly of States Parties.
Article 44(3) tasks the Registrar with proposing Staff Regulations including the terms and conditions on which recruitment, remuneration and dismissal of Court staff are to be based. These Regulations were adopted in 2003. They include such matters as a the independence of staff members, the confidentiality of investigations and prosecutions, disciplinary measures and payment of staff.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 44(4)

[390] 4. The Court may, in exceptional circumstances, employ the expertise of gratis personnel offered by States Parties, intergovernmental organizations or non-governmental organizations to assist with the work of any of the organs of the Court. The Prosecutor may accept any such offer on behalf of the Office of the Prosecutor. Such gratis personnel shall be employed in accordance with guidelines to be established by the Assembly of States Parties.
Under Article 44(4), the Court can ‘in exceptional circumstances’ accept the services individuals on secondment from States, inter-governmental organisations or non-governmental organisations. These people are known as ‘gratis personnel’, given that they are not paid directly by the Court. Guidelines for the selection and engagement of gratis personnel were adopted in 2005. Pursuant to these guidelines, gratis personnel must accept the independence of the Court, and must not accept instruction from their sending state or organisation, or indeed from any external authority. They cannot be hired to replace a paid member of staff. The Prosecutor or Deputy Prosecutor may not delegate their prosecutorial functions to gratis personnel serving in the Office of the Prosecutor (Rule 11).

Cross-references:
Articles 36 and 42

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 601-606.
David Tolbert/Brigitte Benoit, "Article 44", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 993-999.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 45

[391] Solemn undertaking
Before taking up their respective duties under this Statute, the judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall each make a solemn undertaking in open court to exercise his or her respective functions impartially and conscientiously.
General remarks
Article 45 sets out that judges, the Prosecutor, Deputy Prosecutor, Registrar, and Deputy Registrar shall make a ‘solemn undertaking’ to exercise their functions independently and conscientiously.

Preparatory works
Early drafts of the Statute placed a duty on judges to make such an undertaking; this was later extended to other senior officers of the Court.

Analysis:
It is commonplace in the majority of legal systems that judges should make an oath declaring that they will exercise their functions impartially. At the ICC, the requirement to make such a ‘solemn undertaking’ extends not just to judges, but to the Prosecutor, Deputy Prosecutors, Registrar and Deputy Registrar as well. This clearly relates to the accused’s right to be tried by an impartial court, under Article 67, and the duty of impartiality imposed on judges, the Prosecutor, and Deputy Prosecutors under Articles 41 and 42. Article 43 does not set down a requirement that the Registrar or Deputy Registrar be impartial, but this was clearly obvious to the drafters that this should be the case, given their inclusion in Article 45.
In some domestic legal systems, judges are required to swear an oath on a religious text. The ICC’s solemn declaration under Article 45, like the solemn declaration for witnesses under Article 69(1), is non-denominational. Judges make the following declaration, set out in Rule 5: ‘I solemnly undertake that I will perform my duties and exercise my powers as a judge of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions and the secrecy of deliberations.’ The undertaking made by the Prosecutor, Registrar, and their Deputies is almost identical, save for the ‘secrecy of deliberations’ element, which clearly does not apply.
Although it is not required under Article 45, the Rules also include a solemn undertaking to be made by every staff member of the Office of the Prosecutor and the Registry, to carry out their duties honourably, faithfully, impartially and conscientiously, and to respect the confidentiality of investigations. Interpreters and translators must also make a solemn undertaking, before commencing any duties, to perform their duties honourably, faithfully, impartially and conscientiously.

Cross-references:
Articles 41, 42, 43, 45, 67 and 69
Rules 5 and 6

Doctrine:
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 607-608.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 46

[392] Removal from office
General remarks
The Statutes of the ad hoc Tribunals contained no provision for removal from office of judges or any other senior staff member of the Court. Article 46 of the ICC Statute, by contrast, sets out the reasons for removal, and the process that is to be followed in reaching a decision on removal from office.

Preparatory works
The drafting of this provision was relatively uncontroversial. Some delegations at the Rome Conference took the view that a distinction should be drawn between those who were to be removed from office because they were no longer in a position to fulfil their functions, for example because of ill health, and those whose misconduct necessitated removal from office (Schabas, 2010).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 46(1)

[393] 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person:
(a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or
(b) Is unable to exercise the functions required by this Statute.
Article 46(1) sets out two separate grounds for removal of a judge, Prosecutor, Deputy Prosecutor, Registrar, or Deputy Registrar: inability to carry out their functions under the Statute, and ‘misconduct of a serious nature’ or a ‘serious breach of duty’. Pursuant to Rule 24, misconduct of a serious nature might include: disclosing confidential facts, where such disclosure is seriously prejudicial to the judicial proceedings or to any person; concealing information that would have precluded him or her from holding office, and abuse of office in order to obtain unwarranted favourable treatment. Such misconduct can also occur outside the course of official duties, if the conduct is ‘of a grave nature causes or is likely to cause serious harm to the standing of the Court.’ An obvious example would be the commission of a serious crime.
A ‘serious breach of duty’ implies gross negligence in the conduct of an individual’s functions. Two examples are given in Rule 24: the failure to request to be excused, where there are grounds for doing so (e.g. if one of the judges had a close relationship with one of the parties), and (b) repeatedly causing unwarranted delay in the initiation, prosecution or trial of cases. An example of the latter might be where a Prosecutor or Deputy Prosecutor is disorganized and continually fails to file their submissions on time.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 46(2)

[394] 2. A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot:
( a) In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges;
(b) In the case of the Prosecutor, by an absolute majority of the States Parties;
(c) In the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation of the Prosecutor.
Articles 46(2) and (3) set out precisely which organ can decide on the removal of office of an individual high-ranking member of the Court’s staff, and a great deal of detail is included in the Rules of Procedure and Evidence on the procedure to be followed. This is doubtless an improvement on the ad hoc tribunals where in practice, judges decided on the removal of a fellow judge in a plenary session, but, as Judge Shahabuddeen pointed out, there was nothing in the Statute granting this power to the plenary, and thus its competence to pass judgment on such a question was uncertain. (Prosecutor v. Delalić et al., (Case No IT-96-21), ICTY Bureau, Decision of the bureau on motion to disqualify judges pursuant to Rule 15 or in the alternative that certain judges recuse themselves, 25 October 1999.) Further, there is an added safeguard against arbitrariness in that the Assembly of State Parties makes the final decision on the question of removal of a judge, Prosecutor or Deputy Prosecutor (Article 46(2)).
For a judge to be removed from office, the other judges must meet in plenary session and a two-thirds majority must recommend that he or she be removed. This recommendation is communicated by the Presidency to the President of the Bureau of the Assembly of States Parties. The Assembly of States Parties then decides on the matter in a secret ballot; a two-thirds majority of the States Parties is needed to effectuate a removal from office. For a Prosecutor to be removed, a secret ballot of the Assembly of States Parties is taken, and an absolute majority of States Parties is needed before he or she can be removed from office. In the case of a Deputy Prosecutor, the Prosecutor must recommend his or her removal to the Assembly of States Parties, which decides on the matter by absolute majority.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 46(3)

[395] 3. A decision as to the removal from office of the Registrar or Deputy Registrar shall be made by an absolute majority of the judges.
An absolute majority of the judges is needed to remove a Registrar or Deputy Registrar from office, and the Presidency then communicates that decision to the Assembly of States Parties.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 46(4)

[396] 4. A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar whose conduct or ability to exercise the functions of the office as required by this Statute is challenged under this article shall have full opportunity to present and receive evidence and to make submissions in accordance with the Rules of Procedure and Evidence. The person in question shall not otherwise participate in the consideration of the matter.
It may be decided that the conduct is more appropriately classified as ‘misconduct of a less serious nature’ pursuant to Article 47, and the individual concerned can be reprimanded accordingly.
In both Article 46 and Article 47 proceedings, some due process rights attach: the individual concerned has the right to present and receive evidence, to put forward his or her own submissions on the matter, and to be represented by counsel.

Cross-references:
Article 47
Rules 23, 24, 26, 27, 28, 29 and 31
Regulations 119, 120, 121, 122, 123, 124 and 125,

Doctrine:

John R. W. D. Jones, "Duties of Officials", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 285-288.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 609-614.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 47

[397] Disciplinary measures
A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature than that set out in Article 46, paragraph 1, shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence.
General remarks
This short Article sets out the grounds and procedure for the invocation of disciplinary measures against senior members of the Court’s staff.

Preparatory works
There was no provision on disciplinary measures in the Statutes of the ad hoc tribunals, and according to Schabas, this provision only arose in the drafting of Article 46 on removal from office. One discussion arose as to whether the Rules of Procedure and Evidence or the Regulations was the best place to set out the procedure for enacting disciplinary proceedings; ultimately, this was included in the Rules (Schabas, 2010).

Analysis
Article 47 is notable in its brevity on the types of act that might be considered ‘misconduct of a less serious nature’, the nature of disciplinary measures that can be imposed, and the procedure to be followed in the event of such alleged misconduct. However, it is heavily supplemented by the Rules of Procedure and Evidence.
   Rule 25 defines ‘misconduct of a less serious nature’ as conduct that causes or is likely to cause harm to the proper internal functioning of, or administration of justice before, the Court, if committed in the course of official duties. An example might be the leaking of sensitive information that did not reach the level of seriousness envisioned under Article 46. The Rule outlines three examples of its own: interfering in the exercise of the functions of a judge, Prosecutor, Registrar, or Deputy Prosecutor or Registrar; failing to comply with request made by the Presiding Judge or the Presidency in the exercise of their lawful duty; or (in the case of judges) failing to enforce disciplinary measures when the judge is aware or should be aware of a serious breach of duty on their part. Misconduct of a less serious nature can also be committed outside the course of official duty, and is described as conduct that causes or is likely to cause harm to the standing of the Court.
   Of course, the boundaries between serious misconduct and misconduct of a less serious nature are blurred, and in reality, violations as outlined in Rule 25 might constitute ‘serious misconduct’ or a ‘serious breach of duty’ giving rise to action under Article 46, depending on the circumstances. Thus, Rule 25 quite wisely notes that nothing in the rule precludes the examples set out in sub-rule 1(a) from being classified as serious misconduct or a serious breach of duty, for the purposes of Article 46.
   The Rules outline two types of disciplinary measure for misconduct under Article 47 – a reprimand, or a pecuniary sanction that may not exceed six months of the salary paid by the Court to the individual concerned (Rule 32). The Rules mandate that any decision to impose a disciplinary measure on a judge, Registrar or Deputy Registrar will be taken by the Presidency. There does not seem to be any provision made for when a judge who is a member of the Presidency has carried out the alleged misconduct. Presumably, the other two judges would decide upon any disciplinary measure, but as they would be two, it would raise difficulties if they could not reach a consensus. Any decision to impose a disciplinary measure on the Prosecutor shall be made by the Bureau of the Association of States Parties, by majority. The Prosecutor can issue a reprimand to the Deputy Prosecutor, but the Bureau of the ASP, by majority, must approve pecuniary sanctions (Rule 30).
   The Rules set out a procedure for complaints of alleged misconduct under Article 47 that aim to ensure procedural justice. Complaints shall be confidentially transmitted to the Presidency, which has the right to ‘set aside anonymous or manifestly unfounded complaints’, before transmitting any legitimate complaints to the competent organ. The ‘competent organ’ differs, depending on who the complaint has been made about: The Presidency for judges, Registrar or Deputy Registrar; the Bureau of the ASP for the Prosecutor, and the Prosecutor for the Deputy Prosecutor. Rule 27 establishes that the person who is subject to such disciplinary proceedings has the right to be informed of the complaint, to submit and receive evidence, to make written submissions, to answer any questions put to him or her, and to be represented by counsel.

Cross-references:
Article 46
Rules 25, 26, 28, 30 and 32

Doctrine:

Milan Markovic, "The ICC Prosecutor’s Missing Code of Conduct", Texas International Law Journal, vol. 47, 2011, pp. 201-236.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, 2010, pp. 615-618.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 48

[398] Privileges and immunities
General remarks
The International Criminal Court and its staff require some privileges and immunities to exercise their functions independently and without interference from states. Article 48 recognises a ‘sliding scale’ of privileges and immunities, from full diplomatic privileges and immunities being afforded to judges, the Registrar and the Prosecutor and Deputy Prosecutor when they are on court business, to a limited reference to ‘treatment as is necessary’ given to counsel, experts, witnesses, and other persons required to be present at the seat of the Court.

Preparatory works
It was obvious that judges should be afforded some level of diplomatic immunity when on Court business. Most of the debate in the drafting of Article 48 centred on the extent to which the Prosecutor, investigators and counsel needed and should be afforded such immunity to guarantee the effective carrying out of their functions.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 48(1)

[399] 1. The Court shall enjoy in the territory of each State Party such privileges and immunities as are necessary for the fulfilment of its purposes.
The Court itself is entitled to ‘such privileges and immunities as are necessary for the fulfilment of its purposes, pursuant to Article 48(1). This means that, pursuant to the Headquarters Agreement, the property and funds of the Court are ‘immune from search, seizure, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action.’

Author: Yvonne McDermott

Updated: 30 June 2016

Article 48(2)

[400] 2. The judges, the Prosecutor, the Deputy Prosecutors and the Registrar shall, when engaged on or with respect to the business of the Court, enjoy the same privileges and immunities as are accorded to heads of diplomatic missions and shall, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity.
Judges, the Prosecutor, Registrar and Deputy Prosecutor(s) are entitled to privileges analogous to those afforded to a head of a diplomatic mission. This means, practically, that they cannot be arrested be subject to the legal process in any way; they cannot be obliged to pay taxes; they are exempt from national service and restrictions on immigration; they are entitled to repatriation in times of emergency; their official papers and documents are inviolable, as is any personal baggage carried with them, and so forth.
These individuals cannot be sued for remarks made during their time in office as part of their official functions, even after that time has expired. So, an acquitted person who was affronted by remarks made by the Prosecutor alleging him or her to be guilty of heinous crimes during trial cannot later sue the former Prosecutor for defamation.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 48(3)

[401] 3. The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry shall enjoy the privileges and immunities and facilities necessary for the performance of their functions, in accordance with the agreement on the privileges and immunities of the Court.
Staff of the Office of the Prosecutor and the Registry, along with the Deputy Registrar, are entitled to such privileges and immunities as are necessary for the performance of their functions. So, for example, their right to liberty cannot be restricted by states attempting to thwart their investigations in that state. It is most unfortunate that the same functional immunity was not extended to defence counsel or members of defence investigating teams within this provision. A defence counsel practicing before the ICTR was arrested and detained by Rwanda in 2011 on charges of ‘genocide denial’, linked to statements made in the course of his client’s defence, and four members of ICC staff acting on behalf of Saif Gaddafi were detained by Libyan authorities in 2012.
An ‘Agreement on Privileges and Immunities of the ICC’ was adopted by the Association of State Parties in 2002, and it came into force in 2004. The agreement defines ‘counsel’ as including ‘defence counsel and representatives of victims’. Article 18 entitles such counsel to inviolability of documents and papers, immunity from legal process of any kind in respect of acts or words spoken as part of their official function; immunity from arrest and detention; and free communication as part of their role. Righteous as it may be, it is unlikely that this Article represents customary international law, and thus it is unfortunate that only 74 states have thus far acceded to the agreement. As regards the duty of non-Party States to the ICC, such as Libya, to respect the immunities afforded to staff under Article 48, it has been argued that this is an obligation pursuant to the Security Council’s referral of that state to the ICC, demanding Libya to ‘fully cooperate’ with the Court (Heller, 2012).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 48(4)

[402] 4. Counsel, experts, witnesses or any other person required to be present at the seat of the Court shall be accorded such treatment as is necessary for the proper functioning of the Court, in accordance with the agreement on the privileges and immunities of the Court.
Article 48(4) applies to ‘counsel, experts, witnesses or any other person required to be present at the seat of the Court’ and states that they are entitled to ‘such treatment as is necessary for the proper functioning of the Court, in accordance with the Agreement on Privileges and Immunities of the ICC. For some authors, the wording of this provision suggests that such treatment will just be afforded at the seat of the Court itself, given that it extends to ‘any other person required to be present at the seat of the Court’. (Schabas, 2010) The International Bar Association appears to be of the view that it applies in any state, and not just the seat of the Court (IBA, 2012).
The latter interpretation appears to be correct for two reasons. First, the word ‘witnesses’ is not followed by a comma in the list, which would make the terms ‘witnesses’ and ‘any other person’ disjunctive, therefore applying the ‘seat of the Court’ proviso to all those on the list. Without that comma, the terms are conjunctive, meaning that the treatment is owed to: (a) counsel, (b) experts, (c) witnesses required to be present at the seat of the Court, and (d) anyone else required to be present at the seat of the Court. Second, the reference to the Agreement on Privileges and Immunities of the Court would be curious if this provision were only to apply at the seat of the Court, given that the Headquarters agreement would surely be the more relevant instrument.
‘Such treatment’ clearly falls short of the privileges and immunities offered to others in Article 48. The Agreement on Privileges and Immunities of the Court suggests some types of treatment that may be owed to witnesses, including immunity from arrest and detention; immunity from legal processes of any kind; exemption from immigration restrictions, and inviolability of documents, provided that such measures are necessary for their appearance before the Court for purposes of giving evidence.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 48(5)

[403] 5. The privileges and immunities of:
(a) A judge or the Prosecutor may be waived by an absolute majority of the judges;
(b) The Registrar may be waived by the Presidency;
(c) The Deputy Prosecutors and staff of the Office of the Prosecutor may be waived by the Prosecutor;
(d) The Deputy Registrar and staff of the Registry may be waived by the Registrar.
Immunities can be waived where they are not necessary for the proper functioning of the Court, for example where a member of staff has sought to avoid paying a parking fine on the basis of their immunity. Article 48(5) establishes that an absolute majority of the judges can waive the privileges and immunities of a judge or the Prosecutor; the Presidency can waive the Registrar’s privileges and immunities; the Prosecutor can waive the privileges and immunities of OTP staff or the Deputy Prosecutor, and the Registrar can waive the privileges and immunities of Registry staff or the Deputy Registrar.

Doctrine:

Stuart Beresford, "The Privileges and Immunities of the International Criminal Court: Are they sufficient for the proper functioning of the Court or is there still room for improvement?", San Diego International Law Journal, vol. 3, 2002, pp. 83−132.
Kevin Jon Heller, "Why I Think the Detained ICC Personnel Are Entitled to Diplomatic Immunity", Opinio Juris, 15 June 2012.
International Bar Association, Counsel Matters before the International Criminal Court, November 2012, pp. 31-33.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 619-626.
Hannah Woolaver, The Immunity of Defence Team Members at the ICTR: Lessons from the Jurisprudence of the ICTR, ICTY and the ICC, African Yearbook of International Humanitarian Law, vol. 134, 2013.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 49

[404] Salaries, allowances and expenses
The judges, the Prosecutor, the Deputy Prosecutors, the Registrar and the Deputy Registrar shall receive such salaries, allowances and expenses as may be decided upon by the Assembly of States Parties. These salaries and allowances shall not be reduced during their terms of office.
General remarks
The ICC has to strike a delicate balance on salaries, allowances and expenses; it must pay a reasonable and fair wage suffice to attract the most talented individuals, but these benefits must not be so excessive as to draw criticism. In addition, these conditions must be decided by a body not directly impacted by them, but must not be subject to interference where that body is dissatisfied with some aspect of the Court’s work. Article 49 attempts to strike that balance.

Preparatory works
The International Law Commission’s Draft Statute initially proposed that the judges of the Court might receive ‘allowances and expenses’ from the Court, with their home state paying a salary. This proposal was not successful. There was some discussion as to whether the salaries of the judges of the International Court of Justice might be used as a basis for calculation, but overall, the drafting of this provision seems to have been relatively uncontroversial. (Schabas, 2010)

Analysis
In analysing this provision, it must be borne in mind that full-time judges are not permitted to exercise any external professional function, pursuant to Article 40. In addition, it is imperative that they be seen to be independent in the exercise of their functions, so any payment that could be interfered with by one state would give rise to questions about that independence.
The Association of States Parties in its ‘Conditions of Service’ Resolution agreed that the remuneration for judges would be €180,000 per annum. The President receives an additional €18,000. There are allowances built in for the education of dependants, and travel/relocation allowances. Judges are entitled to join a pension scheme similar to that available to the judges of the International Court of Justice. Non-permanent judges receive an annual allowance of €20,000, but where a judge declares his or her total annual income to be less than €60,000, he or she will receive an allowance, payable monthly, to supplement his or her declared net income up to that amount.
Judges’ salaries and allowances cannot be reduced during their terms of office under Article 49.

Cross-references:
Article 40

Doctrine:
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 627-633.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 50

[405] Official and working languages
General remarks
The Statute distinguishes between ‘official languages of the Court’, of which there are six, and its ‘working languages’, English and French. All documents must be in one of the two working languages, and certain decisions and judgments are to be published in all six official languages. Translation and interpretation are the responsibility of the Registry (Regulation 40).

Preparatory works
Throughout the drafting process, it was clear that the working languages of the Court were to be the official languages of the United Nations, French and English. According to Schabas, the distinction between official and working languages and the addition of Arabic, Russian, Chinese and Spanish came at the final stage of negotiations, owing to intense lobbying from a group of Spanish-speaking countries (Schabas, 2010).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 50(1)

[406] 1. The official languages of the Court shall be Arabic, Chinese, English, French, Russian and Spanish. The judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages. The Presidency shall, in accordance with the criteria established by the Rules of Procedure and Evidence, determine which decisions may be considered as resolving fundamental issues for the purposes of this paragraph.
It is clear that all final judgments on guilt or innocence of the accused should be published in each of the official languages. In addition, the Statute mandates that ‘other decisions resolving fundamental issues before the Court’ should also be published in Arabic, Chinese, English, French, Russian and Spanish. Article 50(1) permits the Presidency to determine which decisions may be considered ‘fundamental’ for these purposes. That authority must be exercised in accordance with the Rules of Procedure and Evidence, and Rule 40 declares four types of decision to be considered as resolving fundamental issues: all decisions of the Appeals Chamber; all admissibility and jurisdiction decisions; all Trial Chamber decisions on guilt or innocence, sentencing and reparations, and all decisions on Article 57(3)(d) (investigative steps in the absence of state cooperation). This seems to spread the net of translation, which is a costly and wieldy process, very wide. In practice, however, the Court appears to have been quite lackadaisical on its obligations to translate these documents into all of the official languages. Three years after its issuance, the Lubanga judgment remained available in English and French only.
Rule 40 further determines that decisions on the confirmation of charges and offences against the administration of justice shall be published in all official languages of the Court ‘when the Presidency determines that they resolve fundamental issues’. This provision is rather superfluous, given that any decision is to be published in all six languages if the Presidency sees it as a decision resolving fundamental issues before the Court. The Rules offer further discretion to the Presidency to have any decisions involving ‘major issues relating to the interpretation or the implementation of the Statute or concern[ing] a major issue of general interest’ published in all of the official languages.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 50(2)

[407] 2. The working languages of the Court shall be English and French. The Rules of Procedure and Evidence shall determine the cases in which other official languages may be used as working languages.
English and French are the working languages of the Court. Some have criticised the Court for its excessive Anglophonism, but there is a delicate balance to be achieved between hiring staff from a wide geographic distribution and those who are competent in both working languages of the Court (Schabas, 2010).
Many of the first accused persons before the Court were from Francophone African countries. Thus, the provisions on working languages strongly interplayed with their right to a fair trial. Pursuant to Article 67(1)(f), the accused has the right to free interpretation of proceedings into a language he or she fully understands and speaks, and to translation of any documents that are necessary to ensure fairness. The ‘fully understands and speaks’ proviso goes further than the ‘in a language which he understands’ formulation found in the ICCPR, and the ‘fully’ is not to be overlooked. (Prosecutor v. Katanga, ICC A. Ch., Judgment on the appeal of Mr Germain Katanga against the decision of the Pre-Trial Chamber I entitled 'Decision on the defence request concerning languages', ICC 01/04-01/07 (OA 3), 27 May 2008.) In Lubanga, it was held that, since the majority of the defence team spoke only French whereas the majority of the prosecution were English-speaking, the fact that simultaneous transcripts of the trial were only made available in English put the defence at a significant disadvantage vis-à-vis the prosecution. Thus it was ordered that live transcripts should be provided in both languages. (Prosecutor v. Lubanga, Decision on defence’s request to obtain simultaneous French transcripts, ICC-01/04-01/06, 14 December 2007.)
Article 50(2) permits the Presidency to designate one of the official languages of the Court as a working language for a case. The circumstances of such an authorisation are set down in Rule 41, namely where the language is spoken by the majority of those involved in a case and any of the participants have requested it to become a working language, or where ‘the Prosecutor and the defence so request’. This wording suggests that both parties need to make a request for one of the other official languages to be used as a working language. The Presidency may authorise such a request ‘if it considers that it would facilitate the efficiency of the proceedings.’ (Rule 41) There is no record of any such request having been made to date.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 50(3)

[408] 3. At the request of any party to a proceeding or a State allowed to intervene in a proceeding, the Court shall authorize a language other than English or French to be used by such a party or State, provided that the Court considers such authorization to be adequately justified.
Article 50(3) permits the Court to authorise the use of another language by any party or by any State intervening in a proceeding, provided that it believes such an authorisation to be adequately justified. There is no inherent limitation to any of the other official languages of the Court in the wording of Article 50(3), which simply refers to ‘a language other than English or French’.

Cross-references:
Article 67
Rules 40, 41, 42 and 43
Regulation 40

Doctrine:

William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 634-641.
Flores Liera Socorro, "Publications, Languages and Translation", in Roy S. Lee (Ed.), The Making of the Rome Statute: Issues, Negotiations and Results, Kluwer Law, The Hague, 1999, pp. 314-320.
David Tolbert/Magdalini Karagiannakis, "Article 50", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1025-1031.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 51

[409] Rules of Procedure and Evidence
General remarks
At the ad hoc Tribunals, Judges had the power to make and amend Rules of Procedure and Evidence, which led to significant fluidity of the Rules to adjust to individual circumstances (McDermott, 2013). At the ICC, this power is vested in the Association of States Parties. Article 51 sets down the conditions for the Rules of Procedure and Evidence’s adoption and operation.

Preparatory works
The main debate on this Article concerned the degree of freedom to be afforded to judges in the adoption and amendment of Rules of Procedure and Evidence. It was decided at the Rome Conference to leave the drafting of the Rules of Procedure and Evidence until after the Conference (Schabas, 2010).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 51(1)

[410] 1. The Rules of Procedure and Evidence shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties.
The Rules of Procedure and Evidence were drafted by the Preparatory Commission after the successful conclusion of the Rome Conference. Article 51(1) states that the Rules will be adopted by a two-thirds majority of the Assembly of States Parties, and will enter into force immediately thereafter. The Rules were adopted by consensus and entered into force in 2002.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 51(2)

[411] 2. Amendments to the Rules of Procedure and Evidence may be proposed by:
(a) Any State Party;
(b) The judges acting by an absolute majority; or
(c) The Prosecutor.

Such amendments shall enter into force upon adoption by a two-thirds majority of the members of the Assembly of States Parties.
Rule amendments can be proposed by: any State Party; the judges acting in absolute majority, or the Prosecutor, and enter into force when adopted by a two-thirds majority of the Assembly of States Parties.
While the Rules of Procedure and Evidence are undeniably comprehensive in nature, and indeed, as Schabas notes, many procedural issues are extensively discussed in the Statute itself, there were certain issues of procedure that could not have been envisioned at the time of their drafting. For example, the Court had to deal with requests for non-attendance of high-ranking political figures in Kenya, who were simultaneously on trial before the Court. In 2013, a new Rule 134quater was adopted to cover the situation of those accused persons who are ‘mandated to fulfill extraordinary public duties at the highest national level’. It states that the Trial Chamber shall grant a request for excusal from trial received from such persons, where it is convinced that it is in the interests of justice and not prejudicial to the rights of the accused to do so (Resolution ICC-ASP/12/Res.7, Adopted at the 12th plenary meeting on 27 November 2013 by consensus).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 51(3)

[412] 3. After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties.
Article 51(3) allows a two-thirds majority of judges to draw up provisional Rules ‘in urgent cases where the Rules do not provide for a specific situation before the Court. These Rules are to be applied until the next session of the Association of States Parties, where they can be adopted, rejected or amended.
In practice, as can be seen from the Kenya situation, judges tend not to draw up such provisional rules, but rather rely on judicial interpretation of the Statute to justify a particular solution or course of action. They can later seek a change of the Rules to retroactively include that solution within the Court’s procedural framework.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 51(4)

[413] 4. The Rules of Procedure and Evidence, amendments thereto and any provisional Rule shall be consistent with this Statute. Amendments to the Rules of Procedure and Evidence as well as provisional Rules shall not be applied retroactively to the detriment of the person who is being investigated or prosecuted or who has been convicted.
Importantly, Article 51(4) stresses that new or provisional Rules cannot be applied retroactively to the detriment of a suspect, accused, or convicted person. The retroactive application of amended Rules was controversial before the ICTR. In the case of Nyiramasuhuko et al., Rule 15bis had stated that continuation of a trial in the long-term absence of one of the judges could ‘only be ordered with the consent of the accused’. This was changed in May 2003 to allow the trial to continue without the accused’s consent, and in November 2003, a decision was made to proceed with a substitute judge, even though five of the six accused had not consented to this.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 51(5)

[414] 5. In the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.
Article 51(4) states that the Rules and any amendments thereto must be consistent with the Statute. Pursuant to Article 51(5), the Statute shall prevail where there is any conflict between the Statute and the Rules. The primacy of the Statute over any subsidiary instruments was previously noted in Prosecutor v Milošević, ICTY T. Ch., Decision on assigned counsel's motion for withdrawal, Case No IT-02-54-T, 7 December 2004, para. 13, where the ICTY held that:

The Rules and all other applicable instruments, including the Directive and the ICTY Code, are to be read and applied subject to the Statute. That is the natural relationship between an enabling instrument and any other instrument, including Rules, made thereunder — a point not specifically covered in the Statute of the ICTY, but expressly set out in the ICC Statute.

Cross-references:
Article 21
Rule 3
Regulation 5

Doctrine:

Yvonne McDermott, "The Admissibility and Weight of Written Witness Testimony in International Criminal Law: A Socio-Legal Analysis", Leiden Journal of International Law, vol. 27, 2013, pp. 971-989.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 642-649.

Author: Yvonne McDermott

Updated: 30 June 2016

Article 52

[415] Regulations of the Court
General remarks
Article 52 entrusts judges with the power to draw up Regulations of the Court ‘necessary for its routine functioning’.

Preparatory works
Early drafts of the Statute distinguished between ‘rules of the tribunal’ and ‘internal rules of the tribunal’. The United States of America proposed the formulation of ‘Regulations of the Court’ (Schabas, 2010).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 52(1)

[416] 1. The judges shall, in accordance with this Statute and the Rules of Procedure and Evidence, adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning.
Pursuant to Article 52(1), the judges shall adopt, by majority, such Regulations as are ‘necessary for the routine functioning of the Court’. The Regulations were adopted in 2004, and they cover such matters as broadcasts of Court proceedings (Regulations 20-21); the required content of the document outlining the charges; choice of defence counsel (Regulation 75), and legal aid (Regulation 84).
By far the most controversial Regulation adopted to date has been Regulation 55, which permits the Court to reclassify ‘the legal characterisation of facts to accord with the crimes under Articles 6, 7 or 8, or to accord with the form of participation of the accused under Articles 25 and 28.’ In Lubanga, the status of this rule as ‘necessary for the routine functioning of the Court’ was challenged, but a request to declare it contrary to Statute and Rules was denied (Prosecutor v. Lubanga, Decision on the status before the Trial Chamber of the evidence heard by the Pre-Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner in which evidence shall be submitted, ICC-01/04-01/06-1084, 13 December 2007).
More controversially, in Katanga and Chui, the defendants had initially been charged with co-perpetration as a mode of liability under Article 25(3)(a). In 2012, after the trial proceedings had ended, the Trial Chamber opted to use Regulation 55 to recharacterise Katanga’s mode of liability to common purpose liability under Article 25(3)(d)(ii). He was later convicted, while his co-accused was acquitted. (Prosecutor v. Katanga and Chui, ICC T. Ch., Decision on the Implementation of Regulation 55 of the Regulations of the Court and Severing the Charges against the Accused Persons, ICC-01/04-01/07-3319, 21 November 2012.) Regulation 55 has been heavily criticised for its operation in the Katanga case and the resultant impact on the ability of the accused to prepare for trial and launch a defence against the charges, given that those charges could change at any time. In this way, it clearly risks jeopardising the right to be informed of the charges under Article 67(1).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 52(2)

[417] 2. The Prosecutor and the Registrar shall be consulted in the elaboration of the Regulations and any amendments thereto.
The Prosecutor and Registrar are to be consulted in the drafting and amendment of the Regulations (Article 52(2)).

Author: Yvonne McDermott

Updated: 30 June 2016

Article 52(3)

[418] 3. The Regulations and any amendments thereto shall take effect upon adoption unless otherwise decided by the judges. Immediately upon adoption, they shall be circulated to States Parties for comments. If within six months there are no objections from a majority of States Parties, they shall remain in force.
Although (unlike the Rules of Procedure and Evidence) drafting of the Regulations is left primarily in the hands of the judges, there is some supervision by the Assembly of States Parties over these Regulations. Article 51(3) notes that amendments shall take effect immediately upon adoption, unless otherwise decided by the judges. Upon adoption, they are to be circulated to States Parties for comments and if there are no objections from a majority of States Parties within six months, they remain in force.

Cross-references:
Articles 21 and 67
Regulations 4 and 6

Doctrine:

Sophie Rigney, "'The Words Don't Fit You': Recharacterisation of the Charges, Trial Fairness, and Katanga", Melbourne Journal of International Law, vol. 15, 2015, pp. 515-533.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 650-652.
Carsten Stahn, "Modification of the Legal Characterization of Facts in the ICC System: A Portrayal of Regulation", Criminal Law Forum, vol. 55, 205, pp. 1-31.

Author: Yvonne McDermott

Updated: 30 June 2016

Commentary continued - Part 5

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Article 34

Article 35

Article 35(1)

Article 35(2)

Article 35(3)

Article 35(4)

Article 36

Article 36(1)

Article 36(2)

Article 36(3)

Article 36(4)

Article 36(5)

Article 36(6)

Article 36(7)

Article 36(8)

Article 36(9)

Article 36(10)

Article 37

Article 38

Article 38(1)

Article 38(2)

Article 38(3)

Article 38(4)

Article 39

Article 39(1)

Article 39(2)(a)

Article 39(2)(b)(i)

Article 39(2)(b)(ii)

Article 39(2)(b)(iii)

Article 39(2)(c)

Article 39(3)(a)

Article 39(3)(b)

Article 39(4)

Article 40

Article 40(1)

Article 40(2)

Article 40(3)

Article 40(4)

Article 41

Article 41(1)

Article 41(2)(a)

Article 41(2)(b)

Article 42

Article 42(1)

Article 42(2)

Article 42(3)

Article 42(4)

Article 42(5)

Article 42(6)

Article 42(7)

Article 42(8)

Article 42(9)

Article 43

Article 43(1)

Article 43(2)

Article 43(3)

Article 43(4)

Article 43(5)

Article 43(6)

Article 44

Article 44(1)

Article 44(2)

Article 44(3)

Article 44(4)

Article 45

Article 46

Article 46(1)

Article 46(2)

Article 46(3)

Article 46(4)

Article 47

Article 48

Article 48(1)

Article 48(2)

Article 48(3)

Article 48(4)

Article 48(5)