[4] 1. The judges shall meet in plenary session after having made their solemn undertaking, in conformity with rule 5. At that session the judges shall elect the President and Vice-Presidents.
2. The judges shall meet subsequently in plenary session at least once a year to exercise their functions under the Statute, the Rules and the Regulations and, if necessary, in special plenary sessions convened by the President on his or her own motion or at the request of one half of the judges.
3. The quorum for each plenary session shall be two-thirds of the judges.
4. Unless otherwise provided in the Statute or the Rules, the decisions of the plenary sessions shall be taken by the majority of the judges present. In the event of an equality of votes, the President, or the judge acting in the place of the President, shall have a casting vote.
5. The Regulations shall be adopted as soon as possible in plenary sessions.
Rule 4 adds details to article 38 of the Rome Statute which concerns the the election and function of the Presidency.
   Paragraph 1 of the rule was amended by resolution ICC-ASP/10/Res.1, 20 December 2011, wheares the old rule required the judges to meet in plenary "not later than two months after their election", current rule 4(1) provides that they "shall meet in plenary session after having made their solemn undertaking". As indicated by resolution ICC-ASP/10/Res.1 the amendment aims to enhance the efficiency and effectiveness of the Court.
   Sub-paragraph 5 provides that the regulations of the court shall be adopted as soon as possible in plenary sessions. This sub-paragraph relates to Article 52 which provides that the judges shall adopt, by an absolute majority, the Regulations of the Court necessary for its routine functioning. The original regulations of the Court were Adopted by the judges of the Court on 26 May 2004. They have been subsequently been amended four times: i) as amended on 14 June and 14 November 2007, date of entry into force of amendments: 18 December 2007; ii) as amended on 2 November 2011, date of entry into force of amendments: 29 June 2012; iii) as amended on 10 February 2016, date of entry into force of amendments: 10 February 2016; and iv) as amended on 6 December 2016, ate of entry into force of amendments: 6 December 2016.

Doctrine: 
Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, 155-172.

Author:
Mark Klamberg

Updated:
30 April 2017

[5] 1. Pursuant to article 38, paragraph 3, the Presidency is established upon election by the plenary session of the judges.
2. As soon as possible following its establishment, the Presidency shall, after consultation with the judges, decide on the assignment of judges to divisions in accordance with article 39, paragraph 1.
Rule 4 and 4 bis adds details to articles 38 and 39 of the Rome Statute which, inter alia, concerns the the assignment of judges to divisions.
    Rule 4 bis was introduced by resolution ICC-ASP/10/Res.1, 20 December 2011, wheares the old rule 4 required the judges to meet in plenary "not later than two months after their election" and at that session assign judges to divisions, current rule 4 bis requires the Presidency, as soon as possible following its establishment and after consultation with the judges, to decide on the assignment of judges to divisions.   As indicated by resolution ICC-ASP/10/Res.1 the amendment aims to enhance the efficiency and effectiveness of the Court.
   Assignment under rule 4 bis is not only used when the Presidency is established, it is also used when a new judge is elected, as illustrated by Situation in the DRC, Decision assigning Judge Raul Pangalangan to the Pre-Trial Division, Presidency, ICC-01/04-637, 15 July 2015.  

Author:
Mark Klamberg

Updated:
30 April 2017

[6] 1. As provided in article 45, before exercising their functions under the Statute, the following solemn undertakings shall be made:

(a) In the case of a judge:

“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.”;

(b) In the case of the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court:

“I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.”

2. The undertaking, signed by the person making it and witnessed by the President or a Vice-President of the Bureau of the Assembly of States Parties, shall be filed with the Registry and kept in the records of the Court.
Rule 5 describe the undertakings of the senior officials of the International Criminal Court, including the judges, the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court. The obligation to make a solemn undertaking for these officials are required by article 45 of the Rome Statute. In contrast to some domestic legal systems where, judges are required to swear an oath on a religious text, the ICC’s solemn declaration is non-denominational.
     The solemn undertaking places emphasis on that the officials carry out their work honourably, faithfully, impartially and conscientiously, and with respect of the confidentiality of investigations and prosecutions and the secrecy of deliberations. In the drafting process of the Rome Statute there was a detailed proposal in the Zutphen draft based on a French proposal [Karagiannakis, 2008, p. 1297]. Para. 2 of the Zutphen draft stated that "In performing their duties, the officers of the Court and the staff of the Court shall not seek or accept instructions from any Government or any authority outside the Court. They shall refrain from any act incompatible with their status and shall be accountable only to the Court." Para. 3 stated that "The States Parties undertake to respect the exclusive international character of the duties of the officers of the Court and the staff of the Court and not to seek to influence them in the performance of their duties." These were deleted during the negotiations of the Rome Statute on the ground that details could be elaborated in the Rules [Zutphen draft, Preparatory Committee on The Establishment of an International Criminal Court, A/AC.249/1998/L.13, 4 February 1998; Karagiannakis, 2008, p. 1297]. The proposal of Zutphen draft did not find it ways into the ICC rules. Instead expressions "honourably" and "faithfully" were adopted which may also be found in the Rules of the ICJ and the rules of the ad hoc tribunals.

Doctrine:
1 . Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, 157-158.
2. Magda Karagiannakis, "Article 45", 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. 1296-1298.

Author:
Mark Klamberg

Updated:
30 April 2017

[7] 1. Upon commencing employment, every staff member of the Office of the Prosecutor and the Registry shall make the following undertaking:

“I solemnly undertake that I will perform my duties and exercise my powers as (title) of the International Criminal Court honourably, faithfully, impartially and conscientiously, and that I will respect the confidentiality of investigations and prosecutions.”;

The undertaking, signed by the person making it and witnessed, as appropriate, by the Prosecutor, the Deputy Prosecutor, the Registrar or the Deputy Registrar, shall be filed with the Registry and kept in the records of the Court.

2. Before performing any duties, an interpreter or a translator shall make the following undertaking:

"I solemnly declare that I will perform my duties faithfully, impartially and with full respect for the duty of confidentiality.";

The undertaking, signed by the person making it and witnessed by the President of the Court or his or her representative, shall be filed with the Registry and kept in the records of the Court
While article 45 and rule 5 concern the principals officers, sub-paragraph 1 Rule 6 describes the solemn undertakings of the staff of the Office of the Prosecutor and the Registry upon commencement of employment. Sup-paragraph 2 contains a similar undertaking by interpreters and translators. The undertakings are to be shall be filed with the Registry and kept in the records of the Court.

Doctrine:
1 . Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, 157-158.
2. Magda Karagiannakis, "Article 45", 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. 1296-1298.

Author:
Mark Klamberg

Updated:
30 April 2017

[8] 1. Whenever the Pre-Trial Chamber designates a judge as a single judge in accordance with article 39, paragraph 2 (b) (iii), it shall do so on the basis of objective pre-established criteria.
The functions of the Pre-Trial Chamber shall be carried out either by the full chamber or by a designated single judge. The present rule states that the designation of a single judge shall be done "on the basis of objective pre-established criteria" which is set in regulation 47(1). A single judge does not constititute a Pre-Trial Chamger, rather some functions could be exericed by a single judge.

Crossreference:
Article 39, paragraph 2 (b) (iii)
Regulation 47(1)

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 101.
2. Jules Deschênes, "Article 39", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1250, para. 6.
3. Socorro Flores Liera, "The Elaboration of the Rules of Procedure and Evidence" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 310-312.

Author:
Mark Klamberg

Updated:
30 April 2017

[9] 2. The designated judge shall make the appropriate decisions on those questions on which decision by the full Chamber is not expressly provided for in the Statute or the Rules.
The rule does not specify which rules trhat a single judge can rule on. This is already made clear in article 57(2). Thus, sub-rule 2 states that the single judge may make the appropriate decisions on those questions on which decision by the full Chamber "is not expressly provided for in the Statute or the Rules".
   Thus, the judges have not been granted full discretion to decide for which specific tasks a single judge can be designated. According to article 57(2)(a), orders or rulings of the Pre-Trial Chamber issued under articles 15 (review of investigation), 18 (admissibility), 19 (jurisdiction), 54, paragraph 2 (investigative steps without agreement on cooperation), 61, paragraph 7 (confirmation of charges), and 72 (national security information) must be concurred in by a majority of its judges. All questions on which decision by the full Chamber is not expressly provided for in the Statute or the Rules shall be decided by the single judge (article 57(2)(b) and rule 7(2)), see for example prosecutor v. Kony et. al., Decision designating a Single Judge on Victim's issues, 22 November 2006.

Crossreference: 
Articles 15, 18, 19, 54, paragraph 2, article 57(2), 61, paragraph 7, and 72

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 102.
2. Jules Deschênes, "Article 39", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1250, para. 6.
3. Socorro Flores Liera, "The Elaboration of the Rules of Procedure and Evidence" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 310-312

Author:
Mark Klamberg

Updated:
30 April 2017

[10] 3. The Pre-Trial Chamber, on its own motion or, if appropriate, at the request of a party, may decide that the functions of the single judge be exercised by the full Chamber.
Sub-rule 3 provides that the Pre-trial Chamber has the right to decide at any moment that the functions of a single judge may be exercised by the full Chamber.

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 102.
2. Jules Deschênes, "Article 39", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1250, para. 6.
3. Socorro Flores Liera, "The Elaboration of the Rules of Procedure and Evidence" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 310-312

Author:
Mark Klamberg

Updated:
30 April 2017

[11] 1. The Presidency, on the basis of a proposal made by the Registrar, shall draw up a draft Code of Professional Conduct for counsel, after having consulted the Prosecutor. In the preparation of the proposal, the Registrar shall conduct the consultations in accordance with rule 20, sub-rule 3.
2. The draft Code shall then be transmitted to the Assembly of States Parties, for the purpose of adoption, according to article 112, paragraph 7.
3. The Code shall contain procedures for its amendment.  
Rule 8 deals with an issue that is not mentioned in the Rome Statute, namely a Code of Professional Conduct for counsel. Based on the experience of the UN ad hoc tribunals such a code would appear necessary. Rule 8 provides that the Presidency based on a proposal made by the Registrar, after consultation with Prosecutor, shall submit a draft Code to the Assembly of States Parties. The task of drafting a Code of Professional Conduct for counsel is within the responsibility of the Presidency for the proper administration of the Court pursuant to Article 38(3) of the Rome Statute.
   Rule 20(3) provides that for purposes such as the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties.
   The Assembly of States Parties adopted Code of Professional Conduct for counsel (Resolution ICC-ASP/4/Res.1) on its 3rd plenary meeting on 2 December 2005, by consensus.

Crossreferences:
Article 112(7)
Rule 20(3)

Doctrine:
1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Second Edition, Oxford, 2016, p. 708.
2. Socorro Flores Liera, "The Elaboration of the Rules of Procedure and Evidence" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, p. 158.

Author:
Mark Klamberg

Updated:
1 June 2017

[12] In discharging his or her responsibility for the management and administration of the Office of the Prosecutor, the Prosecutor shall put in place regulations to govern the operation of the Office. In preparing or amending these regulations, the Prosecutor shall consult with the Registrar on any matters that may affect the operation of the Registry.
Rule 9 concerns the operation and functioning of the Office of the Prosecutor. The rule reaffirms the independence of the Prosecutor by giving him or her authority over the management and administration of the office. There was general agreement during the discussion of rule 9 that the Prosecutor had such authority. However, there was some disagreement whether the rule was needed since the same competences of the Prosecutur are explicitly stated in article 42(2) of the Rome Statute (Rwelamira, p. 260).
   The rule provides that, after consulations with the Registry, the Prosecutor should put in place regulations to govern the operation of the Office. Draft regulations for the Ofice of the Prosecutoir were circulated in June 2003 (Schabas, p. 742). However, the final rules entered into force six years later, 23rd April 2009 (Regulations of the Office of the Prosecutor, ICC-BD/05-01-09).

Doctrine:
1. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Second Edition, Oxford, 2016, p. 742.
2. Morten Bergsmo/Frederik Harhoff/Dan Zhu, "Article 42", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1271-1272.
3. Medard Rwelamira, "Composition and Administration of the Court" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 260.

Author:
Mark Klamberg

Updated:
30 April 2017

[13] The Prosecutor shall be responsible for the retention, storage and security of information and physical evidence obtained in the course of the investigations by his or her Office.
Rule 10 concerns the retention, storage and security of information and physical evidence. The rule builds upon the protection in articles 54 and 57 of the Rome Statute and rules 81 and 82. This obligation is particularly important during the investigations in order to protect victims, witnesses as well as the integrity of the investigation.

Doctrine:
Medard Rwelamira, "Composition and Administration of the Court" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 260-261.

Author:
Mark Klamberg

Updated:
30 April 2017

[14] Except for the inherent powers of the Prosecutor set forth in the Statute, inter alia, those described in articles 15 and 53, the Prosecutor or a Deputy Prosecutor may authorize staff members of the Office of the Prosecutor, other than those referred to in article 44, paragraph 4, to represent him or her in the exercise of his or her functions.
According to Rule, the Prosecutor may authorize staff, other than gratis personnel, to represent him or her in the exercise of his or her functions. The exclusion of the ‘inherent powers’ as contemplated by articles 15 and 53, seems to target the discretionary powers of the Prosecutor with regard to the selection of situations and cases. Underlying this rule is the Prosecutor’s independence.

Cross-reference:
Article 42

Doctrine:
1. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 159.
2. Medard Rwelamira, "Composition and Administration of the Court" in Roy S. Lee (Ed.) The International Criminal Court: elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 261-262.

Author:
Karel De Meester

Updated:
15 August 2017

[15] 1. As soon as it is elected, the Presidency shall establish a list of candidates who satisfy the criteria laid down in article 43, paragraph 3, and shall transmit the list to the Assembly of States Parties with a request for any recommendations.

2. Upon receipt of any recommendations from the Assembly of States Parties, the President shall, without delay, transmit the list together with the recommendations to the plenary session.

3. As provided for in article 43, paragraph 4, the Court, meeting in plenary session, shall, as soon as possible, elect the Registrar by an absolute majority, taking into account any recommendations by the Assembly of States Parties. In the event that no candidate obtains an absolute majority on the first ballot, successive ballots shall be held until one candidate obtains an absolute majority.

4. If the need for a Deputy Registrar arises, the Registrar may make a recommendation to the President to that effect. The President shall convene a plenary session to decide on the matter. If the Court, meeting in plenary session, decides by an absolute majority that a Deputy Registrar is to be elected, the Registrar shall submit a list of candidates to the Court.

5. The Deputy Registrar shall be elected by the Court, meeting in plenary session, in the same manner as the Registrar.
Rules 12-15 contain general provisions relating to the Registry which underpin article 43 of the Rome Statute. Rule 12 concerns the qualifications and election of the Registrar and the Deputy Registrar.
   Despite its title, rule 12 does not add additional provisions regarding the qualifications of the Registrar or the deputy Registrar. Sub-rule 1 only contains a reference to the criteria laid down in article 43(3). Instead the rule specifies the procedure of electing the Registrar and the Deputy Registrar. 
   Sub-rules 1-3 deal with the election of the Registrar. It is the Presidency who shall inititiate the process "as soon as it is elected". he Presidency shall establish a list of candidates who satisfy the criteria laid down in article 43, paragraph 3, and shall transmit the list to the Assembly of States Parties with a request for any recommendations. The Court, meeting in plenary session, shall, as soon as possible, elect the Registrar by an absolute majority, taking into account any recommendations by the Assembly of States Parties. Past elections indicate that the Assembly of States Parties is reluctant to recommedn particular candidates (Karagiannikis, p. 1284).
   Sub-rule 4 provides that a Deputy Registrar shall be elected only of there is a need. Pursuant to sub-rule 5 the Deputy Registrar shall be elected by the Court.

Doctrine:
1. Gerard Dive, "The Registry" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 263-264.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 159.
3. Magda Karagiannikis, "Article 43", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1284, paras. 12-13.

Author:
Mark Klamberg

Updated:
10 August 2017

[16] 1. Without prejudice to the authority of the Office of the Prosecutor under the Statute to receive, obtain and provide information and to establish channels of communication for this purpose, the Registrar shall serve as the channel of communication of the Court.

2. The Registrar shall also be responsible for the internal security of the Court in consultation with the Presidency and the Prosecutor, as well as the host State.
Rule 13 provides additional details to article 43, paragraphs 1 and 2.
   The first sub-rule provides that the  Registrar shall serve as the channel of communication of the Court without prejudice to the authority of the Office of the Prosecutor under article 42.
   The second sub-rule designates the Registrar as the person responsible for  the internal security of the Court in consultation with the Presidency and the Prosecutor, as well as the host State. The word "internal" has been added to qualify "security" in order to clarify the division of responsibility between the Court itself and the host state, wherbey the later is responsible for the security outside the premises of the Court.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 112.
2. Gerard Dive, "The Registry" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 264-265.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 159.
4. Magda Karagiannikis, "Article 43", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1282, para. 8.

Author:
Mark Klamberg

Updated:
10 August 2017

[17] 1. Without prejudice to the authority of the Office of the Prosecutor under the Statute to receive, obtain and provide information and to establish channels of communication for this purpose, the Registrar shall serve as the channel of communication of the Court.

2. The Registrar shall also be responsible for the internal security of the Court in consultation with the Presidency and the Prosecutor, as well as the host State.
Sub-rule 14(1) authorizes the Registrar to adopt regulations in consultation with the Prosecutor to facilitate the Registry's operations.
   Sub-rule 2 concerns the Registrar's function in relation to the defence counsel. The Registrar shall provide administrative assistance for the defence counsel. This is of particular importance in an international setting. The Registrar's assistance concerns measures of administrative nature. Assistance of judicial nature, for example a request for judicial assistance from, a state, is instead to be provided by a Chamber of the Court (Dive, 2001, p. 265), see parts 5 and 9 of the Rome Statute.

Doctrine:
1. Gerard Dive, "The Registry" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 264-266.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 160.

Author:
Mark Klamberg

Updated:
10 August 2017

[18] 1. The Registrar shall keep a database containing all the particulars of each case brought before the Court, subject to any order of a judge or Chamber providing for the non-disclosure of any document or information, and to the protection of sensitive personal data. Information on the database shall be available to the public in the working languages of the Court.

2. The Registrar shall also maintain the other records of the Court.
Rule 15 concerns a matter not regulated in the Rome Statute. The rule provides that he Registrar shall keep a database containing all the particulars of each case brought before the Court, subject to any order of a judge or Chamber providing for the non-disclosure of any document or information, and to the protection of sensitive personal data. Sub-rule 2 provides that the Registrar shall also maintain the other records of the Court. The responsibility for the Registrar to keep records is also addressed in rules 121(10) and 137.
   The scope of the submisson of evidence to the Chambers, and thus also what should be inserted in to the record by the the Registry, is controversial. Pre-Trial Chamber I in Lubanga initially adopted a disclosure system which involved that “Incriminating Evidence or the Exculpatory Evidence by the prosecution to the defence should be channeled through the Registry” and that “the interim system of disclosure /. . ./ must apply to any evidence or material that the prosecution might be prepared to disclose to the defence” including inspection (Prosecutor v. Thomas Lubanga Dyilo, (Case No. ICC-01/04–01/06), ICC PT. Ch. I, Decision Requesting further Observations from the Prosecution and the Duty Counsel for the Defence on the System of Disclosure, 27 March 2006, 4f.). However, the interim system of disclosure was challenged by both parties, in particular the part of the interim decision that disclosure will take place via the Registry of the Court. As a result the process of disclosure was later changed to be conducted inter partes. Further, the processes of (i) disclosure before the confirmation hearing vis-à-vis the opposing party and (ii) communication to the Pre-Trial Chamber of the evidence that the parties intend to present at the aforementioned hearing were considered two distinct features of the Court’s criminal procedure (Prosecutor v. Thomas Lubanga Dyilo, (Case No. ICC-01/04-01/06), ICC PT. Ch. I, Decision on the Final System of Disclosure and the Establishment of a Timetable, 15 May 2006). The Bemba Pre-Trial Chamber ruled in contrast that "all evidence is to be registered into the record of the case by the Registry", Prosecutor v. Jean-Pierre Bemba Gombo, (Case No. ICC-01/05-01/08), ICC PT. Ch. III, Decision on the Evidence Disclosure System and Setting a Timetable for Disclosure between the Parties, 31 July 2008, para. 55. Judge Trendafilova, a member of the Bemba Pre-Trial Chamber, repeated the same approach in Ruto et al. and Muthaura et al. (Ruto et al., ICC PT. Ch. II, 6 April 2011, paras. 4 and 6; Muthaura et al., ICC PT. Ch. II, 6 April 2011, paras. 5 and 7). In Abu Garda, Judge Tarfusser of PTC I followed Bemba when he stated that the Chamber should have access “to all the evidence exchanged between the Prosecutor and the Defence, regardless of whether the parties intend to rely on it for the purposes of the confirmation hearing. As a consequence, it is necessary that the Pre-Trial Chamber have access to all the exculpatory material gathered by the Prosecutor” (Prosecutor v. Bahr Idriss Abu Garda, (Case No. ICC-02/05–02/09), ICC PT. Ch. I, Decision Scheduling a Hearing on Issues relating to Disclosure between the Parties, 30 May 2009, para. 10).
   The rule is inspired by the equivalent provisions in the ICTY and ICTR Rules, rule 36 in the ICTY and ICTR rules, respectively. The term "Record Book" has been replaced by "database". The ICC rule also differs as it provides that "sensitive personal data" shall be protected as a default, i.e. even without an explicit court order to that effect (Dive, 2001, p. 266).
   The information in the database shall be available to the public but may be subjected to a limitation by an order of a Judge or an Chamber providing for the non-disclosure of any document or information. Confidentiality of information could be order for pursposes such as protection of an ongoing investigation (article 54), protection of witnesses and victims (article 68), national security information (article 72) commitments towards States or other entities who have provided information (article 54 and 93).

Cross-references:
Rules 121(10) and 137.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 511-513.
2. Gérard Dive, "The Registry" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 266-267.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 160.
4. Mark Klamberg, Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events, Martinus Nijhoff Publishers, Leiden, 2013, pp. 318-323.

Author:
Mark Klamberg

Updated:
10 August 2017  

[19] 1. In relation to victims, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules:

(a) Providing notice or notification to victims or their legal representatives;

(b) Assisting them in obtaining legal advice and organizing their legal representation, and providing their legal representatives with adequate support, assistance and information, including such facilities as may be necessary for the direct performance of their duty, for the purpose of protecting their rights during all stages of the proceedings in accordance with rules 89 to 91;

(c) Assisting them in participating in the different phases of the proceedings in accordance with rules 89 to 91;

(d) Taking gender-sensitive measures to facilitate the participation of victims of sexual violence at all stages of the proceedings.

2. In relation to victims, witnesses and others who are at risk on account of testimony given by such witnesses, the Registrar shall be responsible for the performance of the following functions in accordance with the Statute and these Rules:[4]

(a) Informing them of their rights under the Statute and the Rules, and of the existence, functions and availability of the Victims and Witnesses Unit;

(b) Ensuring that they are aware, in a timely manner, of the relevant decisions of the Court that may have an impact on their interests, subject to provisions on confidentiality.

3. For the fulfilment of his or her functions, the Registrar may keep a special register for victims who have expressed their intention to participate in relation to a specific case.

4. Agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses may be negotiated with the States by the Registrar on behalf of the Court. Such agreements may remain confidential.
Article 43(6) requires that the Registrar shall set up a Victims and Witnesses Unit within the Registry. Sub-section 2 of the Rules of Procedure and Evidence contains two kinds of rules. Rule 16 entails a broad description of the Registrar's general obligations relating to victims, witnesses and other persons at risk on account of testimony given by such witnesses. Rules 17 to 19 describe the functions of the Unit, its responsibilities and the expertise that it should possess. Altough rule 16 only mentions the "Victims and Witnesses Unit", the provision addresses the Registry as a whole.
   While sub-rule 1 to "victims", sub-rule 2 refers to "victims, witnesses and others who are at risk on account of testimony given by such witnesses". There are more functions listed under sub-rule 1, however it should be noted that sevaral of the functions in sub-rule 1 supplemenmt provisions elsewhere in the Rules, including Rules 89 to 92 on the participation of victims in the Court's proceedings. In Prosecutor v. Lubanga, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, paragraphs 7, 23 and 24, PTC I found that measures such as witness familiarization is not only admissible but mandatory. Moreover, the Chamber found that, according to article 43 (6) of the Statute and Rules 16 and 17 of the Rules, the VWU, in consultation with the party that proposes the relevant witness, is the organ of the Court competent to carry out the practice of witness familiarisation from the moment the witness arrives at the seat of the Court to give oral testimony. In Prosecutor v. Lubanga, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007, para. 33, TC I concurred with the approach of PTC I. In Lubanga, Decision regarding the Protocol on the practices to be used to prepare witnesses for trial, 23 May 2008, the TC directed the VWU to facilitate the witness familiarisation process as set out in paragraphs 38 to 44 of the decision. In Lubanga, Order instructing the Registry to provide aid and assistance to the Legal Representatives and the Trust Fund for Victims to identify victims potentially eligible for reparations, 15 July 2016, TC II made a reference to rule 16(1)(c) when it instructed the Registry to provide the Legal Representatives of victims and the Trust Fund for Victims with all the necessary and appropriate aid and assistance for the purpose of locating and identifying victims potentially eligible for reparations in the instant case.
   Sub-rule 3 provides that for the fulfilment of his or her functions, the Registrar may keep a special register for victims who have expressed their intention to participate in relation to a specific case.
   Sub-rule 4 authorizes the Registrar to negotitate on behalf of the Court, agreements on relocation and provision of support services on the territory of a State of traumatized or threatened victims, witnesses and others who are at risk on account of testimony given by such witnesses.

Doctrine:
1. Gérard Dive, "The Registry" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 267-271.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 160-161.

Author:
Mark Klamberg

Updated:
10 August 2017

[20] 1. The Victims and Witnesses Unit shall exercise its functions in accordance with article 43, paragraph 6.
Rule 17 supplements Article 43(6) with setting out more specific functions of the Victims and Witnesses Unit (VWU). The Victims and Witnesses Unit shall exercise its functions under the authority of the Registrar as indicated in reference to article 43(6) of sub-rule 1.

Author:
Mark Klamberg

Updated:
10 August 2017

[21] 2. The Victims and Witnesses Unit shall, inter alia, perform the following functions, in accordance with the Statute and the Rules, and in consultation with the Chamber, the Prosecutor and the defence, as appropriate:

(a) With respect to all witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances:

(i) Providing them with adequate protective and security measures and formulating long- and short-term plans for their protection;

(ii) Recommending to the organs of the Court the adoption of protection measures and also advising relevant States of such measures;

(iii) Assisting them in obtaining medical, psychological and other appropriate assistance;

(iv) Making available to the Court and the parties training in issues of trauma, sexual violence, security and confidentiality;

(v) Recommending, in consultation with the Office of the Prosecutor, the elaboration of a code of conduct, emphasizing the vital nature of security and confidentiality for investigators of the Court and of the defence and all intergovernmental and non-governmental organizations acting at the request of the Court, as appropriate;

(vi) Cooperating with States, where necessary, in providing any of the measures stipulated in this rule;

(b) With respect to witnesses:

(i) Advising them where to obtain legal advice for the purpose of protecting their rights, in particular in relation to their testimony;

(ii) Assisting them when they are called to testify before the Court;

(iii) Taking gender-sensitive measures to facilitate the testimony of victims of sexual violence at all stages of the proceedings.
Although the Unit is under the authority of the Registrar, it has has some indepence which is indicated in the chapeau of sub-rule 2 where it is left for the unit to consult with the Chamber, the Prosecutor and the defence, as appropriate. Sub-rule 2 reiterates the Three categories mentioned in article 43(6): 1) all witnesses, 2) victims who appear before the Court, and 3) others who are at risk on account of testimony given by such witnesses. This provision was introduced to limit the unit's responsibilities, but may leave room for a broader Group of clients if the Regiustrar so decided (Dive, 2001, p. 282). In Prosecutor v. Lubanga, Decision on the Practices of Witness Familiarisation and Witness Proofing, 8 November 2006, paragraphs 7, 23 and 24, PTC I found that measures such as witness familiarization is not only admissible but mandatory. Moreover, the Chamber found that, according to article 43 (6) of the Statute and Rules 16 and 17 of the Rules, the VWU, in consultation with the party that proposes the relevant witness, is the organ of the Court competent to carry out the practice of witness familiarisation from the moment the witness arrives at the seat of the Court to give oral testimony. In Prosecutor v. Lubanga, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, 30 November 2007, para. 33, TC I concurred with the approach of PTC I. In Dyilo, Decision regarding the Protocol on the practices to be used to prepare witnesses for trial, 23 May 2008, the TC directed the VWU to facilitate the witness familiarisation process as set out in paragraphs 38 to 44 of the decision.

Author:
Mark Klamberg

Updated:
10 August 2017

[22] 3. In performing its functions, the Unit shall give due regard to the particular needs of children, elderly persons and persons with disabilities. In order to facilitate the participation and protection of children as witnesses, the Unit may assign, as appropriate, and with the agreement of the parents or the legal guardian, a childsupport person to assist a child through all stages of the proceedings.
Sub-rule 3 contains two elements. The first sentence gives a general recommendation that the Unit shall give due regard to the particular needs of children, elderly persons and persons with disabilities The second sentence is more specific, providing that the Unit may in order to facilitate the participation and protection of children as witnesses assign a childsupport person to assist a child through all stages of the proceedings. This person i snot meant to replace the parents, but only to assist a child through the proceedings (Dive, 2001, p 274).

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 174.
2. Gerard Dive, "The Registry" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 271-274.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 160-163.
4. Magda Karagiannikis, "Article 43", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1284-1288.

Author:
Mark Klamberg

Updated:
10 August 2017

[23] For the efficient and effective performance of its work, the Victims and Witnesses Unit shall:
(a) Ensure that the staff in the Unit maintain confidentiality at all times;
(b) While recognizing the specific interests of the Office of the Prosecutor, the defence and the witnesses, respect the interests of the witness, including, where necessary, by maintaining an appropriate separation of the services provided to the prosecution and defence witnesses, and act impartially when cooperating with all parties and in accordance with the rulings and decisions of the Chambers;(i)
(c) Have administrative and technical assistance available for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses, during all stages of the proceedings and thereafter, as reasonably appropriate;
(d) Ensure training of its staff with respect to victims’ and witnesses’ security, integrity and dignity, including matters related to gender and cultural sensitivity;
(e) Where appropriate, cooperate with intergovernmental and non-governmental organizations.

General remarks
The Victims and Witness Unit (VWU) is a section within the Registry tasked with the provision of protective measures and security arrangements, counselling and other appropriate assistance for witnesses, victims who appear before the Court, and other who are at risk on account of testimony given by such witnesses. Rule 18 further defines these responsibilities, clarifying that the VWU must cooperate with all those participating in the proceedings, but must remain impartial and defend the witnesses’ interests. The assistance provided by the VWU starts prior to the person’s appearance before the Court and continues after said appearance. VWU staff cooperates with other organisations and is especially trained for the fulfilment of its responsibilities.

Cross-references
Article 43(6)

Doctrine
Dive, Gérard, Composition and Administration of the Court: The Registry, in Lee, Roy S., et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, 267-269, 274-275, Transnational Publishers, Ardsley, 2001

Author
Enrique Carnero Rojo

Updated:
30 May 2017

[24] In addition to the staff mentioned in article 43, paragraph 6, and subject to article 44, the Victims and Witnesses Unit may include, as appropriate, persons with expertise, inter alia, in the following areas:
(a) Witness protection and security;
(b) Legal and administrative matters, including areas of humanitarian and criminal law;
(c) Logistics administration;
(d) Psychology in criminal proceedings;
(e) Gender and cultural diversity;
(f) Children, in particular traumatized children;
(g) Elderly persons, in particular in connection with armed conflict and exile trauma;
(h) Persons with disabilities;
(i) Social work and counselling;
(j) Health care;
(k) Interpretation and translation.

General remarks
Rule 19 grants the Victims and Witness Unit (VWU) the possibility to resort to external personnel in order to fulfil the responsibilities attributed to the VWU by rule 18. Said staff may, exceptionally, include gratis personnel offered by States Parties, pursuant to article 44(4) of the Rome Statute.

Analysis
Professionals with diverse expertise
The Registry must submit in advance of the trial a comprehensive list of professionals who are available to assist the relevant witnesses before, during and after their testimony, in addition to the support staff of the Victims and Witnesses Unit. The list should include professionals with diverse relevant expertise, including inter alia, psychologists. The Registry should take all necessary steps to secure fair gender representation and the list should reflect the language and cultural background of the witnesses that it is anticipated will be called during the trial [Lubanga, ICC T. Ch. I, 29 January 2008, para. 39].

Cross-references
Articles 43(6), 44
Rules 17-18

Doctrine
1. David Donat-Cattin, "Article 68: Protection of victims and witnesses and their participation in the proceedings", in Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, First Edition, Nomos Verlagsgesellschaft, Baden-Baden, 1999, pp. 869-888
2. Gérard Dive, "Composition and Administration of the Court: The Registry", in Roy S. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 262-284.
3. John R.W.D. Jones, "Protection of Victims and Witnesses", in Antonio Cassese, et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, 2002, Vol. II, pp. 1355-1370.
4. David Donat-Cattin, "Article 68: Protection of victims and witnesses and their participation in the proceedings", in Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, Second Edition, Nomos Verlagsgesellschaft, Baden-Baden, 2008, pp. 1276-1300.
5. Bruno Cathala, "Article 43: Le Greffe", in Julian Fernandez and Xavier Pacreau (Dirs.), Statut de Rome de la Cour pénale international: Commentaire article par article, Pedone, Paris, 2012, Vol. I, pp. 1033-1071.
6. Rogier Bartels, "Rome Statute of the International Criminal Court – Article 68: Protection of victims and witnesses and their participation in the proceedings", Paul De Hert et al. (Eds.), Code of International Criminal Law and Procedure, Larcier Ghent, Brussels, 2013, pp. 322-343.
7. Anne-Marie De Brouwer and Mikaela Heikkilä, "Victim Issues: Participation, Protection, Reparation, and Assistance", in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, 2013, pp. 1299-1354.

Author:
Enrique Carnero Rojo

Updated:
30 May 2017

[25] General remarks
The ICC Registrar has several important functions concerning the rights of the defence. During the Rome Conference, there was controversy about whether to have a separate ‘Office of the Defence’, i.e., not within the Registry. Rather than providing for such a separate office, Rule 20 refers to general principles for the organization of the Registrar and certain functions that (s)he shall perform. Rule 20 underlines the important role that an organization of the Registrar has in a manner to recognize the independence of both the defence and defence counsel [Dive, 2001, p. 278]. In turn, Rule 20 does not instruct the Registrar in detail how to organize the Registry to fulfil the purposes and functions set forth in Rule 20 [Dive, 2001, p. 278]. Therefore, the establishment of a separate unit was not precluded provided that this is subject to administrative and financial accountability [Dive, 2001, pp. 278-279].

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
2 March 2017

[26] 1. In accordance with article 43, paragraph 1, the Registrar shall organize the staff of the Registry in a manner that promotes the rights of the defence, consistent with the principle of fair trial as defined in the Statute. For that purpose, 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.
Alongside other infra-statutory provisions, Rule 20 fleshes out the general mandate of the Registry, which consists in “administration and servicing of the Court” under Article 43(1) of the ICC Statute. This article is explicitly referred to in the said rule. Indeed, the responsibilities of the Registrar concerning the defence are laid down in Rule 20 .   
Rule 20 (1)(a)-(f) lays down some of the Registrar’s functions and, thus, provided further guidance to the Regulations that the Registrar prepared (see Regulations 74-78) on administrative assistance to defence counsel, called for under Rule 14(2) [Dive, 2001, p. 279].

As part of the Registrar’s overall duty to assist persons in obtaining legal advice and the assistance of legal counsel under Rule 20(1)(c), and part of the Registry’s mandate to provide assistance to a person entitled to legal assistance (Regulation 128(2) of the Regulations of the Registry), the Registrar has the duty of establishing and maintaining a roster under Regulation 73(1) of the Regulations of the Court, which has so far been implemented. In accordance with Regulation 73(2), besides the wishes of the person, the Registrar has considered and should consider the languages spoken, availability and geographical proximity of the counsel [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, paras. 49-51]. The Registrar is expected to make the roster of duty counsel and the list of counsel available in both working languages of the ICC and to guarantee that the above-mentioned roster and list clearly distinguish between those only willing to represent the defence, those only willing to represent victims, those willing to represent both the defence and victims and those who have indicated no preference [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, para. 55]

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

 [27] 2. The Registrar shall carry out the functions stipulated in sub-rule 1, including the financial administration of the Registry, in such a manner as to ensure the professional independence of defence counsel.
An important concern is the lack of a specific mechanism to review and evaluate the performance of the Office of Public Counsel for Defence (OPCD) and the Office of Public Counsel for Victims. These offices fall within the Registry for administrative purposes only. Thus, the Registry cannot monitor or examine their substantive work for risk of trespassing on the OPCD’s independence. The OPCD submits a report on its overall work to the Registrar on annual basis; however, the said report does not necessarily enable the Registrar to appraise the work of individual staff members [International Bar Association, 2011, p. 31]. Regulation 144 of the Regulations of the Court provides for that “[t]he members of the Office shall not receive any instructions from the Registrar in relation to the discharge of their tasks as referred to in regulations 76 and 77 of the Regulations of the Court”. This regulation implements Rule 20(2). A review conducted by the Registry would breach the OPCD’s substantive functions as an independent OPCD is a pivotal condition for conducting its mandate independently, namely, without any pressure and respecting the relationship between the OPCD and the defendants [International Bar Association, 2011, p. 31]. Having said so, accountability and governance of the OPCD as an organ of the ICC are crucial to enhance its legitimacy and, thus, governance also applies to the OPCD provided that a system of governance does not compromise its independence [International Bar Association, 2011, pp. 31-32].

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[28] 3. For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body of counsel or legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Parties.
Under Rule 20(3), the Registrar “shall consult, as appropriate” with any independent legal associations or body of counsel to manage legal assistance and develop a Code of Professional Conduct, which should take place in accordance with Rule 21(1) [Dive, in Roy S. Lee (Ed.), 2001, 279]. Indeed, a Code of Professional Conduct for Counsel was adopted by the Assembly of States Parties via Resolution ICC-ASP/4/Res.1 adopted at the 3rd plenary meeting on 2 December 2005.  

The Office of Public Counsel for the Defence (OPCD) was established within the Registry in accordance with Regulation 77 of the ICC Regulations which reads as follows: “The Registrar shall establish and develop an Office of Public Counsel for the defence for the purpose of providing assistance”. As a matter of principle, the defendant can select an OPCD member or the OCD itself to act as his/her counsel in the proceedings provided that there is no conflict of interest [Gut et al., in Göran Sluiter et al. (Eds.), 2013, p. 1229]. However, other than ad hoc or preliminary issues dealt with by the OPCD, external counsel and external defence support members have mainly conducted representation for specific defendants [Gut et al., in Göran Sluiter et al. (Eds.), 2013, p. 1229].
   Concerning the debate on the OPCD vis-à-vis an external representative body, proponents of the latter suggest the establishment of a representative body of counsels recognized by the Assembly of State Parties. Indeed, the International Criminal Bar, which was created in June 2002 to inter alia promote the development of an independent legal profession and practice at the ICC by providing assistance to the counsels who represent defendants at the ICC and facilitating communication between the bodies of the ICC and lawyers, has pursued to achieve the said representative role [International Bar Association, 2011, p. 35]. According to the International Criminal Bar, Rule 20(3) was included because the ICC drafters acknowledged the existence of an independent self-governing bar association as a key element to guarantee a fair and independent system of justice [International Bar Association, 2011, p. 35]. Despite this, the Assembly of State Parties has not recognized the International Criminal Bar and, indeed, the latter has yet to receive full support from the lawyers on the ICC’s List of Counsel. This situation evidences complexity and disagreements [International Bar Association, 2011, p. 35].

Cross-references:
ICC Statute, Article 43.1; Rules of Procedure and Evidence, Rules 14(2), 21(1); Regulations of the Court, Regulations 73-78, 144; Regulations of the Registry, Regulation 128(2).

Doctrine: 
1. Gerard Dive, “The Registry” in Roy S. Lee (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, pp. 262-284.
2. Till Gut et al., “Defence Issues”, in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 1203-1297. 
3. International Bar Association, Fairness at the International Criminal Court, IBA, London, 2011.

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[29] General remarks
In accordance with Rules 20-21, ICC Statute Article 43 and Regulations of the Court 83-85 and 130-136, the Registry is primarily responsible for managing the ICC’s legal assistance scheme, including overseeing the scheme of legal assistance paid by the ICC and the determination of the matters relating to the qualification, appointment or assignment of counsel. Rule 21 lays down the matter of assignment of defence counsel.

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[30] 1. Subject to article 55, paragraph 2 (c), and article 67, paragraph 1 (d), criteria and procedures for assignment of legal assistance shall be established in the Regulations, based on a proposal by the Registrar, following consultations with any independent representative body of counsel or legal associations, as referred to in rule 20, sub-rule 3.
Rule 21(1) refers to a Registrar’s proposal for the Regulations in consultation with any representative body of counsel or legal associations [Dive, 2001, p. 282]. Rule 21(1) limits the Registry’s ability to apply subjective criteria, namely, its own criteria and policies, without previous consultation with the legal profession, and the approval of the judges and the Assembly of States Parties [See Gut et al., 2013, p. 1222]. Rule 21(1) also enables the ICC to enact further criteria for counsel in the Regulations and only regulates procedures concerning the assignment of legal assistance to indigent defendants, which is clearer in the French version [See Gut et al., 2013, p. 1236].            

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[31] 2. The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations. The person shall freely choose his or her counsel from this list or other counsel who meets the required criteria and is willing to be included in the list.
Rule 21(2) provides that the person shall be free to choose counsel from the list or someone else who both meets the requirements and is willing to be included in the list. Indeed, any counsel to be assigned has to meet all the required criteria [Dive, 2001, pp. 282-283]. As a matter of principle, the accused is entitled to choose his/her counsel freely although the latter must meet certain minimum requirements and, thus, to increase the chances of proper, high quality representation at the ICC [Ambos, 2016, p. 144].   

In principle, during investigation and trial, a person who faces charges or is accused has the right to counsel of his/her choice. Nevertheless, the Rules of Procedure and Evidence and the Regulations of the Court provide for that the choice of counsel is limited to counsel who are on the list kept by the Registry, who are qualified to practice at the ICC, or who fulfil the criteria and are willing to be included on the list [Rule 21(2); Regulation 75; Gut et al., 2013, p. 1210]. The ICC lacks an official bar and admission to practice at the ICC is linked to inclusion in the ICC’s list of counsel alongside with domestic bar membership [Rule 21(2); Regulation 75; Gut et al., 2013, p. 1256].

When a person needs urgent legal representation and has not yet secured legal assistance or when his/her counsel is unavailable and in order to guarantee the right to a fair and expeditious trial, duty counsel is provided (in accordance with Regulation 73(2) of the Court), which may be affected when duty counsel is appointed in contravention of the Regulations or when the appointment of duty counsel is unreasonably refused [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, para. 16].  

Although the right to legal representation and to select one’s own counsel is provided for under Article 67(1)(d) of the ICC Statute and Rule 21(2), such right is not absolute and is subject to certain limitations [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, para. 25]. This is even more limited when a duty counsel is appointed (Regulation 73 of the Regulations of the Court) and the ICC has to decide whether the person’s interests demand that (s)he be represented by the duty counsel appointed by the ICC. Regulation 73 provides for that when appointing duty counsel, although the Registrar should consider the concerned person’s wishes, the Registrar and not the person for whom duty counsel is being appointed adopts the final decision. Since the duty counsel is appointed when a person needs urgent legal representation, the Registrar would generally have to decide with some urgency in appointing duty counsel. The Registrar may consider the concerned person’s views; however, the Registrar does not need to follow them in all circumstances and, thus, (s)he may override the said wishes if there are reasonable and valid grounds to proceed in this manner. Moreover, Regulation 73 actually introduces limitations to a person’s choice of duty counsel such as availability and geographical proximity. Two factors underlie a different degree of involvement by a person in the appointment process from that in the procedure for the assignment of counsel of his/her choice under Article 67(1)(d) of the ICC Statute and Rule 21(2). These factors are: the limited mandate granted to the duty counsel and the urgency with which duty counsel would normally be needed [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, paras. 26-27].      

Article 71 of the ICC Statute and Rule 171 establish sanctions and procedures for removing a counsel from exercising functions at the ICC. In turn, Chapter 4 of the ICC Code of Professional Conduct for Counsel provides for the procedural and evidentiary rules for disciplinary procedure, including matters of admissibility and the organization of the disciplinary procedure. The ICC Code of Professional Conduct for Counsel includes duties towards clients that are similar to those available in other national and international codes and incorporates accepted principles of legal ethics relating to duties owned to the court [Gut et al., 2013, p. 1256].

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[32] 3. A person may seek from the Presidency a review of a decision to refuse a request for assignment of counsel. The decision of the Presidency shall be final. If a request is refused, a further request may be made by a person to the Registrar, upon showing a change in circumstances.
The Registrar acts under the authority of the President who is a member of the Presidency which is responsible for the ICC’s proper administration. Explicit powers have been granted upon the Presidency to review the Registrar’s decisions concerning the assignment of counsel, including decisions that reject requests for the assignment of counsel to a person under Rule 21(3). The appointment of duty counsel is not explicitly laid down in Rule 21(3); however, the Presidency’s power (under Rule 21(3)) to review the Registrar’s decision refusing a request for the assignment of a counsel would include a situation in which the Registrar rejected a request for the appointment of duty counsel under regulation 73(2) [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, para. 17].      

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[33] 4. A person choosing to represent himself or herself shall so notify the Registrar in writing at the first opportunity.
5. Where a person claims to have insufficient means to pay for legal assistance and this is subsequently found not to be so, the Chamber dealing with the case at that time may make an order of contribution to recover the cost of providing counsel.
Rule 21(4) states that an individual who prefers representing him(her)self without a counsel needs to inform the Registrar of this in writing at the earliest opportunity. Rule 21(5) establishes that a Chamber may order a person who claims to have insufficient means to pay for legal assistance to contribute to recover the cost of providing counsel for him/her if it is subsequently found not to be so. The consequence of this finding is to withdraw the assistance; however, Rule 21 does not address matters such as the withdrawal of an assignment and the withdrawal or replacement of an assigned counsel [Dive, 2001, p. 282]. Nevertheless, Regulation 78 (Withdrawal of defence counsel) establishes that: “Prior to withdrawal from a case, defence counsel shall seek the leave of the Chamber”. In turn, the Regulations of the Court flesh out the scheme of legal assistance paid by the ICC, namely, Regulations 83 (General scope of legal assistance paid by the Court), 84 (Determination of means), and 85 (Decisions on payment of legal assistance). Under Regulation 84(2) of the Regulations of the Court, the Registry cannot take into account the assets of family members of the defendant in order to determine his/her indigence unless “direct or indirect enjoyment or power to freely dispose” of these assets or property has been transferred to the family member by the accused.
Concerning the substantive allocation of legal aid, the ICC Registry has adopted a lump system that, under Regulation 84(2) of the Regulations of the Court, includes “all costs which are reasonably necessary as determined by the Registrar for an effective and efficient defence”.  

Cross-references:
ICC Statute, Articles 43, 55, 67(1)(d) and 71; Rules of Procedure and Evidence, Rules 20, 171; Regulations of the Court, Regulations 75, 78, 83-85, 130-136.

Doctrine: 
1. Kai Ambos, Treatise on International Criminal Law, Volume III: International Criminal Procedure, Oxford University Press, Oxford, 2016, p. 144.
2. Gerard Dive, “The Registry” in Roy S. Lee (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, pp. 262-284.
3. Till Gut et al., “Defence Issues”, in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 1203-1297. 

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[34] 1. A counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings. A counsel for the defence shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court. Counsel for the defence may be assisted by other persons, including professors of law, with relevant expertise.
Rule 22(1) provides for admission requirements for the defence counsel, which reflects the fact that the accused’s right to choose a counsel is not absolute. The requirements laid down under Rule 22(1) are compulsory for all those who plan to appear as defence counsel before the ICC. Additionally, under Regulation 69(2)(b) candidates need to produce a certificate from a national bar association attesting professional qualifications, right to practice, and disciplinary standing. This regulation clarifies a Rule 22(1) implied requirement under which a defence counsel needs to be a current member of a national bar. Under Regulation 67(1)-(2), the Registrar with the Presidency’s review holds the power to admit candidates to the list of counsel in accordance with the said requirements.  
   Concerning the criteria for appointing counsel and duty counsel laid out in Rule 22(1) and Regulations 67 and 73 of the Regulations of the Court, the following is examined. First, concerning competence, the inclusion of a person on the list of counsel means his/her fitness to represent in the ICC proceedings as a counsel for the defence or for victims. A sound knowledge of international criminal law is expected [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, paras. 33-34 and 53]. Second, regarding languages spoken, it is expected that the (duty) counsel possesses an excellent command of the working language to be used (primarily) in the proceedings or, at least, to be able to communicate in such working language and, ideally, the ability to work in other working language used in the respective proceedings [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, paras. 35-36 and 53]. Third, as for availability and geographical proximity, the fact that a person appointed as duty counsel appears in cases before other courts would not necessarily hinder his/her ability to appear as duty counsel at the ICC proceedings. Actually, the duty counsel is expected to have other commitments. Factors to assess the availability of the duty counsel consist in: i) the mandate of the person to be appointed; ii) applicable deadlines; and iii) the nature of the position or tasks that the person discharges in his/her or ordinary capacity. Concerning physical presence in The Hague, it would be expected for a person receiving legal assistance to see his/her counsel in person [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, paras. 37-38 and 53].
   With regard to competence, languages spoken, availability and geographical proximity, the duty counsel is responsible to ensure that any information provided to the Registry is correct. Indeed, under Article 13 of the Code of Professional Conduct for Counsel, the duty counsel holds the duty to refuse to represent a person at the ICC when: i) there is a conflict of interest; ii) the counsel is incapable of dealing with the matter diligently; and iii) the counsel considers that (s)he lacks the required expertise. Unless the duty counsel knew or ought to have known of the existence of discrepancies or irregularities, the Registrar is not expected to verify all information provided by each person who applies for his/her inclusion on the list of counsel and/or who accepts an appointment as duty counsel or an assignment as counsel [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, para. 39].
   The appointment of one or more defence counsel, whether duty or not, is not inconsistent with the ICC’s legal framework and, actually, may be called for in specific circumstances in the interests of justice. The existence of relevant and sufficient grounds, e.g. pressing deadlines, to appoint two duty counsels needs to be considered [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, para. 41]. Depending on the circumstances of the case, these grounds may have existed even if the applicant had expressed preference for only one duty counsel [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, para. 42].           
   With regard to the appointment process, it is preferable that the Registrar responds the applicant’s request for assistance by providing him/her with the names of those persons identified by the Registry as fulfilling the duty counsel requirements. The principle of neutrality is not affected by the provision of such assistance as the process of establishing a roster of duty counsel (the Registrar is required to do so) involves a selection process from the list of counsel. Nevertheless, depending on the circumstances of the case, the fact that the Registrar does not provide the applicant with the names of counsel previously identified to act as duty counsel does not necessarily affect the fulfilment of the requirement under regulation 73 [Prosecutor v. Lubanga, ICC Presidency, Decision on the “Demande urgente en vertu de la Règle 21-3 du Règlement de procédure et de preuves” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Thomas Lubanga Dyilo before the Presidency on 7 May 2007 and 10 May 2007, respectively, ICC-01/04-01/06-931-Conf-Exp, 29 June 2007, para. 44].     
   Concerning Rule 22(1), the meaning of “established competence in international or criminal law and procedure” can be literally interpreted as expertise in national criminal law and procedure suffices regardless of the level of knowledge of international criminal law. Nevertheless, whether expertise is available in the national jurisdictions of “situations” before the ICC may be put into question. Setting a high threshold would probably exclude local defence counsels contradicting the ICC’s intention to be more inclusive of local expertise [Sarvarian, 2013, p. 200]. However, to guarantee the legal professional competence and skills of the defence counsel is pivotal to ensure that the ICC can work in an efficient manner and that the accused’s rights are properly represented [Sarvarian, 2013, p. 200].               
   The appointment of defence counsels who have been former staff member at the Office of the Prosecutor (OTP) led to some issues concerning whether the Code of Professional Conduct for Counsel or OTP internal provisions needed an amendment. The appointment of former OTP staff members, Ibrahim Yillah to the defence team in Abdallah Banda and Saleh Jerbo, and Essa Faal to Francis Kirimi Muthaura and Uhuru Muigai Kenyatta (Kenya 2) caused the said problematic situation.
   There is no prohibition of appointment of a former staff member of the OTP as a defence counsel and the OTP in its employment contracts has not introduced clauses barring staff from seeking employment with the defence upon termination of OTP contracts [Prosecutor v Francis Kirimi Muthaura et al, ICC PT. Ch. II, Decision with Respect to the Question of Invalidating the Appointment of Counsel to the Defence, ICC-01/09-02/11-185, 20 July 2011, para. 27]. Nevertheless, Article 16(1) of the Code of Professional Conduct for Counsel demands counsel to warrant the no presence of conflict of interest and makes the counsel responsible for refusing an appointment to the defence team if, among others, the appointment constitutes a conflict of interest. Counsel is also barred from representing a client if he/she was “involved or [was] privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear”. Furthermore, counsel is expected to ensure both that the defence team and his/her work complies with the Code and that measures adopted by the defence are not prejudicial to the proceedings [International Bar Association, 2012, p. 20].  
   In the two aforementioned cases, the Trial Chambers applied the de minimis threshold that demands evidence that the attorney “became aware of more than the minimal information relevant to the case under consideration” [Prosecutor v Francis Kirimi Muthaura et al, ICC PT. Ch. II, Decision with Respect to the Question of Invalidating the Appointment of Counsel to the Defence, ICC-01/09-02/11-185, 20 July 2011, paras. 17, 20-24; Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC T. Ch. IV, Decision on the Prosecution’s Request to Invalidate the Counsel to the Defence, ICC-02/05-03/09-168, 30 June 2011, paras. 14-16. See also Prosecutor v Jean-Pierre Bemba Gombo, ICC T. Ch. III, Decision on the Prosecution’s Request to Invalidate the Appointment of Legal Consultant to the Defence Team, ICC-01/05-01/08-769-Conf, 7 May 2010, para. 42]. In turn, the Appeals Chamber concluded that for an impediment to representation to arise under the fact that counsel was “privy to confidential information” as an ICC staff member within the meaning of Article 12(1)(b) of the Code of Professional Conduct for Counsel, counsel need to have had knowledge of confidential information concerning the case in which he/she seeks to appear [Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, ICC A. Ch., Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber IV of 30 June 2011 Entitled ‘Decision on the Prosecution’s Request to Invalidate the Appointment of Counsel to the Defence’, ICC-02/05-03/09-252, 11 November 2011, paras 6–7; and Prosecutor v Francis Kirimi Muthaura et al, ICC A. Ch., Judgment on the Appeal of the Prosecutor Against the Decision of Pre-Trial Chamber II Dated 20 July 2011 Entitled Decision with Respect to the Question of Invalidating the Appointment of Counsel to the Defence, ICC-01/09-02/11 OA 3, 10 November 2011, para. 11].
   Whether the Code would need to be amended, for further clarification, remains open to debate. In any event, although the Appeals Chamber has interpreted the said provisions, it has not been prescriptive as for what may constitute an appropriate number of years before prosecuting counsel should be authorized to be part of a defence team after leaving the OTP. The OTP should hence adopt internal guidelines to address these matters [International Bar Association, 2012, p. 21].
   In accordance with Regulation 68 of the Regulations of the Court, persons assisting counsel as mentioned in Rule 22(1) may “include persons who can assist in the presentation of the case before a Chamber”, i.e., the typical counsel, and that the Regulations of the Registry shall determine “the criteria to be met by these persons”. In turn, Regulation 124 of the Regulations of the Registry establishes that: “Persons assisting counsel in the presentation of the case or specific competence in international criminal law and procedure”. Therefore, these persons are not required to be admitted to practice law to appear before the ICC and no explicit requirement of practical experience as opposed to academic expertise is laid down [Gut et al., 2013, p. 1236].  

Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[35] 2. Counsel for the defence engaged by a person exercising his or her right under the Statute to retain legal counsel of his or her choosing shall file a power of attorney with the Registrar at the earliest opportunity.
3. In the performance of their duties, Counsel for the defence shall be subject to the Statute, the Rules, the Regulations, the Code of Professional Conduct for Counsel adopted in accordance with rule 8 and any other document adopted by the Court that may be relevant to the performance of their duties.
Rules 22(2) and 22(3) are fundamentally technical and address the official registration of the counsel by the Registrar as well as the general obligation of the defence counsel to respect relevant rules on performance of his/her duties [Dive, in Roy S. Lee (Ed.), 2001, p. 284]. 

Cross-references:
Rome Statute, article 55, Regulations of the Court, Regulations 67, 68, 69(2)(b); Regulations of the Registry, Regulation 124; Code of Professional Conduct for Counsel, Articles 12(1)(b), 13 and 16(1).

Doctrine: 
1.Gerard Dive, “The Registry” in Roy S. Lee (Ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, pp. 262-284.
2. Till Gut et al., “Defence Issues”, in Göran Sluiter et al. (Eds.), International Criminal Procedure: Principles and Rules, Oxford University Press, Oxford, 2013, pp. 1203-1297. 
3. International Bar Association, Counsel Matters at the International Criminal Court: A Review of Key Developments Impacting Lawyers Practising before the ICC, November 2012.
4. Arman Sarvarian, Professional Ethics at the International Bar, Oxford University Press, Oxford, 2013.
 
Author:
Juan Pablo Pérez-León-Acevedo

Updated:
3 March 2017

[36] A judge, the Prosecutor, a Deputy Prosecutor, the Registrar and a Deputy Registrar shall be removed from office or shall be subject to disciplinary measures in such cases and with such guarantees as are established in the Statute and the Rules.
Rule 23 sets out the general principle for the sub-section on removal from office and disciplinary measures, a sub-section is underpinned by articles 41, 46 and 47. It merely states that removal from office  and disciplinary measures shall be done in accordance with the Statute and the Rules of Procedure and Evidence. Many delegations argued that the rule is repetitive and therefore superfluous. It was agreed that while the rule was stating the obvious, it was harmless and should be included (Steains, 2001, p. 285)

Cross-references:
Articles 41, 46 and 47

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 138.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, p. 285.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 165.
4. Magda Karagiannikis, "Article 46", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1301.

Author:
Mark Klamberg

Updated:
10 August 2017

[37] 1. For the purposes of article 46, paragraph 1 (a), “serious misconduct” shall be constituted by conduct that:

(a) If it occurs in the course of official duties, is incompatible with official functions, and causes or is likely to cause serious harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as:

(i) Disclosing facts or information that he or she has acquired in the course of his or her duties or on a matter which is sub judice, where such disclosure is seriously prejudicial to the judicial proceedings or to any person;

(ii) Concealing information or circumstances of a nature sufficiently serious to have precluded him or her from holding office;

(iii) Abuse of judicial office in order to obtain unwarranted favourable treatment from any authorities, officials or professionals; or

(b) If it occurs outside the course of official duties, is of a grave nature that causes or is likely to cause serious harm to the standing of the Court.

2. For the purposes of article 46, paragraph 1 (a), a “serious breach of duty” occurs where a person has been grossly negligent in the performance of his or her duties or has knowingly acted in contravention of those duties. This may include, inter alia, situations where the person:

(a) Fails to comply with the duty to request to be excused, knowing that there are grounds for doing so;

(b) Repeatedly causes unwarranted delay in the initiation, prosecution or trial of cases, or in the exercise of judicial Powers.
Rule 24 supplements article 46(1) which provides that 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 the Statute. The rule defines  “serious misconduct” and “serious breach of duty”.
    Sub-rule 1 distinguishes between "serious misconduct” in the course of official duties and outside the course of official duties. The sub-rule lists three examples of  "serious misconduct” in the course of official duties not for acts outside the course of official duties: 1) disclosing confidential facts, where such disclosure is seriously prejudicial to the judicial proceedings or to any person; 2) concealing information that would have precluded him or her from holding office, and 3) abuse of office in order to obtain unwarranted favourable treatment.  During the negotiations, the delegations perceived that it would be virtually impossible to formulate examples that would encapsulate clearly the type of conduct to be covered outside the course of official duties (Steains, 2001, pp. 288-289).
   Sub-rule 2 defines “serious breach of duty” with two examples: 1) the failure to request to be excused, where there are grounds for doing so and 2) repeatedly causing unwarranted delay in the initiation, prosecution or trial of cases. Since the sanction for “serious breach of duty” is removal from office, the threshold is intended to be high.
   Rule 26 and Regulation 119 provides that all complaints against a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar concerning conduct defined under rule 24 shall be submitted directly to the Presidency, which shall notify the person against whom the complaint has been directed of that complaint.

Cross-references:
Article 46(1), rule 26, regulation 119

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 110.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 285-289.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 165-166.
4. Magda Karagiannikis, "Article 46", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1301-1303.

Author:
Mark Klamberg

Updated:
10 August

[38] 1. For the purposes of article 47, “misconduct of a less serious nature” shall be constituted by conduct that:

(a) If it occurs in the course of official duties, causes or is likely to cause harm to the proper administration of justice before the Court or the proper internal functioning of the Court, such as:

(i) Interfering in the exercise of the functions of a person referred to in article 47;

(ii) Repeatedly failing to comply with or ignoring requests made by the Presiding Judge or by the Presidency in the exercise of their lawful authority;

(iii) Failing to enforce the disciplinary measures to which the Registrar or a Deputy Registrar and other officers of the Court are subject when a judge knows or should know of a serious breach of duty on their part; or

(b) If it occurs outside the course of official duties, causes or is likely to cause harm to the standing of the Court.

2. Nothing in this rule precludes the possibility of the conduct set out in sub-rule 1 (a) constituting “serious misconduct” or “serious breach of duty” for the purposes of article 46, paragraph 1 (a).
Rule 25 follows the same model as the previous rule as it supplements article 47 which provides that 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.
   Rule 25 follows the previous rule in distinguishing between two sorts of conduct, here misconduct of a less serious nature in the course of official duties and outside the course of official duties. Three examples of  misconduct of a less serious nature in the course of official duties are given: 1)  interfering in the exercise of the functions of a judge, Prosecutor, Registrar, or Deputy Prosecutor or Registrar; 2) failing to comply with request made by the Presiding Judge or the Presidency in the exercise of their lawful duty; or 3) (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.
   During the negotiations it was agreed that the examples given in rule 25 could under certain circumstances constitute serious misconduct rather than misconduct of a less serious nature. For that purpose, sub-rule 2 was added in order to clarify that the examples in rule 25 could, in certain circumstances, constitute “serious misconduct” or “serious breach of duty”.
   Rule 26 and Regulation 119 provides that all complaints against a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar concerning conduct defined under rule 25 shall be submitted directly to the Presidency, which shall notify the person against whom the complaint has been directed of that complaint.

Cross-references:
Article 47, rule 26, regulation 119.

Doctrine:
1. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 290-292.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 166-167.
3. Magda Karagiannikis, "Article 47", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1307-1308.

Author:
Mark Klamberg

Updated:
10 August

[39] 1. For the purposes of article 46, paragraph 1, and article 47, any complaint concerning any conduct defined under rules 24 and 25 shall include the grounds on which it is based, the identity of the complainant and, if available, any relevant evidence. The complaint shall remain confidential.

2. All complaints shall be transmitted to the Presidency, which may also initiate proceedings on its own motion, and which shall, pursuant to the Regulations, set aside anonymous or manifestly unfounded complaints and transmit the other complaints to the competent organ. The Presidency shall be assisted in this task by one or more judges, appointed on the basis of automatic rotation, in accordance with the Regulations.
Rule 26 provides that all complaints shall be transmitted to the Presidency. The Presidency may also initiate proceedings on its own motion.
   Pursuant to sub-rule 2 and regulation 120, the Presidency shall be assisted by three judges, appointed on the basis of automatic rotation following the English alphabet of the surnames of all judges not comprising the Presidency or the judge being complained against, in order to determine whether a complaint is anonymous or manifestly unfounded. The judges appointed in accordance with sub-regulation 1 shall, where necessary, seek additional comments from either the person being complained against or the complainant and shall make a recommendation to the Presidency on whether such complaint is admissible or should be set aside in accordance with rule 26, sub-rule 2.
   The Presidency shall, according to sub-rule 2, set aside anonymous or manifestly unfounded complaints and transmit the other complaints to the competent organ. In case the Presidency decides that a complaint against a judge, the Registrar or Deputy Registrar is not anonymous or manifestly unfounded, it shall pursuant to regulation 121 transmit the complaint to a plenary session, unless the Presidency determines that the conduct complained of falls manifestly outside the scope of rule 24, in which case the matter shall be considered by the Presidency in accordance with article 47,  rule 30, sub-rule 1 and regulation 122. The purpose of this sub-rule is to prevent harassment of top officials.  In the case concerning allegations that the former Chief Prosecutor Luis Moreno Ocampo, had committed sexual assault against a journalist, the panel of Judges found that the complaint was "manifestly unfounded", although not malicious. The Prosecutor subsequently dismissed Palme, an ICC Media Relations Officer, who made the allegations. Ocampo claimed that Palme had made the allegations with "obvious malicious intent". ILO Administrative Tribunal did not find  that the complainant acted with malicious intent (ILO Administrative Tribunal, Palme v ICC, Judgment No 2757, 9 July 2008, paras. 5, 14 and 16, Mégret, pp. 458-459, 480, Turner, p. 395). 
   There was some controvery during the negotiations on the rule to what extent the Presidency should be involved with complaints against the Prosecutor and Deputy Prosecutor. Sub-rule 2 is restricted to receipt of complaints by the Preisdeny and the transmission of the complaint to the relevant organ (Steains, p. 292).  A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall pursuant to article 46(2) be made by the Assembly of States Parties. Rule 30 provides that in the case of a judge, the Registrar or a Deputy Registrar, any decision to impose a disciplinary measure shall be taken by the Presidency. In the case of the Prosecutor, any decision concerning disciplinary measure shall be taken by an absolute majority of the Bureau of the Assembly of States Parties.

Cross-references:
Articles 46, rule 30

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 110.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 292.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 167.
4. Magda Karagiannikis, "Article 46", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1303-1305.
5. Frédéric Mégret, "Accountability and Ethics", in Luc Reydams, Jan Wouters, Cedric Ryngaert (eds.) International Prosecutors, 2012, Oxford University Press, Oxford, pp. 458, 459 and 480.
6. Jenia Iontcheva Turner, "Accountability of International Prosecutors", in Cartsen Stahn (ed.) The Law and Practice of the International Criminal Court, p. 395.

Author:
Mark Klamberg

Updated:
10 August 2017

[40] 1. In any case in which removal from office under article 46 or disciplinary measures under article 47 is under consideration, the person concerned shall be so informed in a written statement.

2. The person concerned shall be afforded full opportunity to present and receive evidence, to make written submissions and to supply answers to any questions put to him or her.

3. The person may be represented by counsel during the process established under this rule.
Rule 27 flows from article 46(4) which provides that 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.
   Sub-rule 1 provides that the person concerned shall be informed in a written statement whenever removal from office under article 46 or disciplinary measures under article 47 is under consideration. The purpose of this sub-rule is to ensure that that the persons against whom the allegations has been made us given due notice of the allegations.
   There was considerable debate during the negotiations on sub-rule 2 and the questions of submissions, whether the person concerned  could defend himself or herself by way of both written and oral submissions. In the end the delegations favouring that the person concerned should only be able to make written submissions (Steains, 2001, p. 293).

Cross-references:
Article 46(4)

Doctrine:
1. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 293-294.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 167.

Author:
Mark Klamberg

Updated:
10 August 2017

[41] Where an allegation against a person who is the subject of a complaint is of a sufficiently serious nature, the person may be suspended from duty pending the final decision of the competent organ.
Rule 28 acknowledges that in certain situations the gravity of the complaint might demand, in the interests of correctness, the Court's reputation and efficiency of the proceedings, might require the suspension form duty of the person concerned. The rule applies to situations of serious misconduct/serioues breach of duty as wells as to situationbs involving misconduct of a less serious nature which reflects the difficulties to draw an absoilute distinction between the two categories of misconduct. There was different views during the negotiations whether the person concerned loss remuneration during the suspension. In the end there is no reference to remuneration in the text of rule 28 (Steains, p. 294).

Cross-references:
Articles 46 and 47

Doctrine:
1. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 293-294.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 167.

Author:
Mark Klamberg

Updated:
10 August 2017

[42] 1. In the case of a judge, the Registrar or a Deputy Registrar, the question of removal from office shall be put to a vote at a plenary session.

2. The Presidency shall advise the President of the Bureau of the Assembly of States Parties in writing of any recommendation adopted in the case of a judge, and any decision adopted in the case of the Registrar or a Deputy Registrar.

3. The Prosecutor shall advise the President of the Bureau of the Assembly of States Parties in writing of any recommendation he or she makes in the case of a Deputy Prosecutor.

4. Where the conduct is found not to amount to serious misconduct or a serious breach of duty, it may be decided in accordance with article 47 that the person concerned has engaged in misconduct of a less serious nature and a disciplinary measure imposed.    
Rules 29 and 30 supplements articles 46 and 47, together they contain a detailed system of competences advising and deciding on the procedure in the event of request or removal from office of for discplinary measures. This system entails a two-stage procedure whereby the removal of a judge requires the support of two-thirds majority of the judges as well as Assembly of States Parties. This is a double safeguard to protect a judge from being subject to potential removal for political reasons by States Parties (Karagiannakis, 2016, p. 1304).
   For the purpose of removal from office, article 46 establishes the Assembly of States Parties as the ultimate arbiter and the basic procedure for such proceedings. While article 46(2)(a) and (3) already establishes that a two-thirds majority of the judges are needed to adopt a recommendation for removal of a judge and an absolute majority of the judges are needed for in respect of the removal from office of the Registrar or Deputy Registrar shall be made by, sub-rule 1 adds that the question of removal from office shall be put to a vote at a plenary session. Sub-rules 2 and 3 concern notification. Sub-rule 4 provides a fall-back when the relevant organ finds that the peron concerned has engaged in engaged in misconduct of a less serious nature and a disciplinary measure imposed.

Cross-references:
Article 46

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 110.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 295-296.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 167-168.
4. Magda Karagiannikis, "Article 46", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1304.

Author:
Mark Klamberg

Updated:
10 August 2017 

[43] 1. In the case of a judge, the Registrar or a Deputy Registrar, any decision to impose a disciplinary measure shall be taken by the Presidency.

2. In the case of the Prosecutor, any decision to impose a disciplinary measure shall be taken by an absolute majority of the Bureau of the Assembly of States Parties.

3. In the case of a Deputy Prosecutor:

(a) Any decision to give a reprimand shall be taken by the Prosecutor;

(b) Any decision to impose a pecuniary sanction shall be taken by an absolute majority of the Bureau of the Assembly of States Parties upon the recommendation of the Prosecutor.

4. Reprimands shall be recorded in writing and shall be transmitted to the President of the Bureau of the Assembly of States Parties. 
Rule 30 supplements article 47, which provides that a judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy Registrar who has committed misconduct of a less serious nature  shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence.
   During the negotiations of the Rome Statute there was diasgreement what the reference to rules of procedure and evidence meant, did it only mean that procedural rules should be developed or did it also entails elaboration on substantive provisions? In the end, two rules were created, rule 30 concerning procedure and rule 32 specifying the available disciplinary measures (Steains, 2001, pp. 296-297).
   Sub-rule 1 provides that any decision to impose a disciplinary measure in respect of a judge, the Registrar or a Deputy Registrar shall be taken by the Presidency. In order to safeguard the independence of the Prosecutor, sub-rule 2 provides that any decision to impose a disciplinary measure shall be taken by an absolute majority of the Bureau of the Assembly of States Parties. Sub-rule 3 confers on the prosecutor to issue reprimands on the Deputy Prosecutor, while any decision to impose a pecuniary sanction for the Deputy Prosecutor shall be taken by an absolute majority of the Bureau of the Assembly of States Parties upon the recommendation of the Prosecutor. Sub-rule 4 assures that there is a written record of reprimands when these have been issued as disciplinary measures.

Cross-references:
Article 47, rule 32

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 138 and 546.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 296-298.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 167-168.
4. Magda Karagiannikis, "Article 47", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1309.

Author:
Mark Klamberg

Updated:
10 August 2017 

[44] Once removal from office has been pronounced, it shall take effect immediately. The person concerned shall cease to form part of the Court, including for unfinished cases in which he or she was taking part.
Rule 31 ensures that the person concerned is removed from office with immediate effect. The principle of having the same judges hearing a specific case is thus subject to an exception in the event of removal of that judge. Article 46 and rule 31 concerns a different situation compared to article 36(10), the later provision concerns the normal end of a judge's term.

Cross-references:
Article 46

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, p. 110.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 296-298.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 167-168.

Author:
Mark Klamberg

Updated:
10 August 2017

[45] The disciplinary measures that may be imposed are:

(a) A reprimand; or

(b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned. 
Rule 32 provides that the disciplinary measures that may be imposed are a reprimand or a pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned. 
   During the negotiations the reference in sub-rule (a) to reprimand was uncontroversial. There was more debate oin whether there should a record of the reprimands (Steains, 2001, p. 299). That issue is resolved in rule 30(4) which provides that reprimands, when issued as a disciplinary measure, shall be recorded in writing and shall be transmitted to the President of the Bureau of the Assembly of States Parties.
   Sub-rule (b) caused greater contriversy during the negotiations. Some delegations argued that pecuniary sanction up to six months of the salary was excessive but in the end this was retained (Steains, 2001, p. 299).

Cross-references:
Article 47, rule 30(4)

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 110 and 546.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, p. 299.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 168.
4. Magda Karagiannikis, "Article 47", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1308.

Author:
Mark Klamberg

Updated:
10 August 2017

[46] 1. A judge, the Prosecutor or a Deputy Prosecutor seeking to be excused from his or her functions shall make a request in writing to the Presidency, setting out the grounds upon which he or she should be excused.

2. The Presidency shall treat the request as confidential and shall not make public the reasons for its decision without the consent of the person concerned.
Rule 33 flows from articles 41(1) and 42(6), the rule concern the procedure in cases of excuse covering three categories of individuals (judges, Prosecutor, Deputy prosecutors). The concept of "excuse" should not be confused with that of "disqualification". Excuse only applies when a judge, the Prosecutor or Deputy prosecutor himself or herself initiates the proceeding by requesting to be excused. Disqualification on the other hand concerns the situation when a complaint is brought by a third party on the grounds for the impartiality of the person in question (Steains, 2001, p. 300). Disqualification is dealt with in articles 41(2) and 42(7)-(8).
    One example of excusal may be found in Katanga and Chui, Decision replacing judges in the Appeals Chamber, 03 July 2009, the Appeals Chamber noted "the request for excusal filed before the Presidency on 24 June 2009 by Judges Akua Kuenyehia and Anita Usacka ("judges"), pursuant to article 41(1) of the Statute and rule 33 of the Rules of Procedure and Evidence ("Rules"), wherein the judges requested to be excused from sitting on the appeal on the basis of their previous involvement in the pretrial phase of the case against Mr Germain Katanga (hereinafter "case"), in the course of which the judges inter alia issued a warrant of arrest for Mr Germain Katanga and confirmed the charges against him". As a result the Appeals Chamber decided to temporarily attach Judge Ekaterina Trendafilova, currently assigned to the Pre-Trial Division, and Judge Joyce Aluoch, currently assigned to the Trial Division, to the Appeals Chamber for the purpose of the appeal.
   Sub-rule 2 provides for confidentiality in situations of "excuse"

Crossreference:
Articles 41(1) and 42(6)

Doctrine:
1. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 300-301.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 168.
3. John R.W.D. Jones, "Duties of Officials" in Antonio Cassese/Paola Gaeta/John R.W.D. Jones (eds.). The Rome Statute of the International Criminal Court, Oxford University Press, Oxford, 2002, p. 248.
4. Hirad Abtahi and Rebecca Young, "Article 41", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1258-1260.
5. Morten Bergsmo, Frederik Harhoff and Dan Zhu, "Article 42", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1274.

Author:
Mark Klamberg

Updated:
10 August 2017

[47] 1. In addition to the grounds set out in article 41, paragraph 2, and article 42, paragraph 7, the grounds for disqualification of a judge, the Prosecutor or a Deputy Prosecutor shall include, inter alia, the following:
The present rule provides a non-exhaustive list containing examples of concrete grounds for disqualification, namely:
(a) Personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties;
(b) Involvement, in his or her private capacity, in any legal proceedings initiated prior to his or her involvement in the case, or initiated by him or her subsequently, in which the person being investigated or prosecuted was or is an opposing party;
(c) 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, on the parties or on their legal representatives that, objectively, could adversely affect the required impartiality of the person concerned;
(d) Expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned.
   During the the negotiations of the Preparatory commission the following grounds for disqualification were excluded: i) membership of an organisation or an institution, and ii) nationality (Steains, 2001, pp. 306-307).

Author:
Mark Klamberg

Updated:
10 August 2017

[48] (a) Personal interest in the case, including a spousal, parental or other close family, personal or professional relationship, or a subordinate relationship, with any of the parties;
Sub-rule 1(2) concerns personal interest in the case. The inclusion of the "close" before "family, personal or professional relationship" was during the negotiations of the Preparatory commission considered important in order to establish an appropriate threshold for making such relationships a ground for disqualification.

Author:
Mark Klamberg

Updated:
10 August 2017 

[49] (b) Involvement, in his or her private capacity, in any legal proceedings initiated prior to his or her involvement in the case, or initiated by him or her subsequently, in which the person being investigated or prosecuted was or is an opposing party;
This sub-rule cover both legal proceedings instituted prior to the involvement of the judge, Prosecutor or Deputy Prosecutor and situations where the judge, Prosecutor or Deputy Prosecutor initiates legal proceedings subsequent to their involvement in the case. The use of the word "prior" is intentional in order to avoid enabling the accused to deliberately (and indefinitely) delay investigation or prosecution by initiating separate legal proceedings against one or more of the persones governed by this rule in order to trigger disqualifications proceedings (Steains, 2001, p. 304).

Author:
Mark Klamberg

Updated:
10 August 2017

[50] (c) 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, on the parties or on their legal representatives that, objectively, could adversely affect the required impartiality of the person concerned;
During the negotiations of the Preparatory commission there was a concern that the intitial draft of the rule was to vague. Therefore, some key amendments were included in order to provide a more objective standard, including a limitation to functions performed prior to taking office, thus exluding functions performed by the judge, Prosecutor or Deputy Prosecutor pursuant to their duties under the Statute (Steains, 2001, p. 305).

Author:
Mark Klamberg

Updated:
10 August 2017

[51] (d) Expression of opinions, through the communications media, in writing or in public actions, that, objectively, could adversely affect the required impartiality of the person concerned.
The words "objectively", "adversely affect" and "required impartiality" were amendments to the original draft of the sub-rule in order to raise the threshold when this sub-rule would be applicable.
   Sub-rule 34(1(d) has attracted attention in the Court's practice.
   In Gaddafi, the Appeals Chamber extended the notion of impartiality beyond actual bias. The Chamber stated that "it is not necessary to establish an actual lack of impartiality on the part of the Prosecutor. Rather, the question before the Appeals Chamber is whether it reasonably appears that the Prosecutor lacks impartiality. In determining whether there is such an appearance of partiality, the Appeals Chamber considers that this determination should be based on the perspective of a reasonable observer, properly informed." In the end, the Judges did not disqualify the Prosecutor, stating stat "A reasonable observer ... would have understood that the Prosecutor's statements were based on the evidence available to him and that the judges would ultimately take the relevant decisions on the evidence."  (Prosecutor v. Gaddafi, ICC A. Ch., Decision on the Request for Disqualification of the Prosecutor, ICC-01/11-01/11-175, 12 June 2012, paras. 20 and 34; Bergsmo, Harhoff and Zhu, 2016, pp. 1275-1276)
   In Lubanga the defence requested the disqualification of Judge Sang-Hyun Song as a judge of the Appeals Chamber on two factual grounds: 1) the existence of public statements by Judge Sang-Hyun Song expressing approval of the impugned decisions having regard to the existence of the crimes charged, the individual criminal responsibility of the Appellant and the sentence handed down to him; 2) Judge Sang-Hyun Song’s activities in UNICEF, an organisation accepted as Amicus Curiae in the case at bar, which has made representations before the Trial Chamber contradicting the Appellant in respect of matters pending before the Appeals Chamber (Lubanga, ICC Presidency, Defence application for the disqualification of Judge Sang-Hyun Song, ICC-01/04-01/06-2981-tENG-Corr, 20 February 2012, para. 3). The issue was resolved on 22 February 2013 when Judge Song requested to be excused from exercising any functions of the Presidency in respect of the Defence application (Lubanga, ICC Presidency, Notification concerning the "Corrigendum to Defence application for the disqualification of Judge Sang-Hyun Song" dated 20 February 2013, ICC-01/04-01/06-2996, 11 March 2013)  

Author:
Mark Klamberg

Updated:
10 August 2017

[52] 2. Subject to the provisions set out in article 41, paragraph 2, and article 42, paragraph 8, a request for disqualification shall be made in writing as soon as there is knowledge of the grounds on which it is based. The request shall state the grounds and attach any relevant evidence, and shall be transmitted to the person concerned, who shall be entitled to present written submissions.
The present sub-rule expands upon the procedure set out in articles 41(2) and 42(8) in cases of disqualification. The reference to the request for disqualification needing be made as soon as there is knowledge of the relevant grounds was inserted in order to facilitate the effecient resolution of such issues. The right of the person concerned "to present written submissions" reflects the procedure set out in article 46(4).

Author:
Mark Klamberg

Updated:
10 August 2017

[53] 3. Any question relating to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by a majority of the judges of the Appeals Chamber.
The only additional detail added by the present sub-rule to article 42(8) is that any question relating to the disqualification of the Prosecutor or a Deputy Prosecutor shall be decided by "a majority of the judges" of the Appeals Chamber. 
   This is not necessary in relation to the disqualification of a judge since article 41(2) provides that disqualification of a judge shall be decided by an absolute majority of the judges.

Cross-references:
Article 41(2) and 42(7)-(8) 

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 109-110 and 138
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 301-308.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 168.
4. Hirad Abtahi and Rebecca Young, "Article 41", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1260-1266.
5. Morten Bergsmo, Frederik Harhoff and Dan Zhu, "Article 42", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1274-1277.
6. Richard May and Marieke Wierda, International Criminal Evidence, Transnational Publishers, Ardsley, 2002, p. 31.

Author:
Mark Klamberg

Updated:
10 August 2017

[54] Where a judge, the Prosecutor or a Deputy Prosecutor has reason to believe that a ground for disqualification exists in relation to him or her, he or she shall make a request to be excused and shall not wait for a request for disqualification to be made in accordance with article 41, paragraph 2, or article 42, paragraph 7, and rule 34. The request shall be made and the Presidency shall deal with it in accordance with rule 33.
The purpose of this rule is to avoid unnecessary interruption of the Court's proceedings. It also underpins rule 24(2)(a) which provides that it is a “serious breach of duty” where the person concerned fails to comply with the duty to request to be excused, knowing that there are grounds for doing so. The words "reasons to believe" indicates that it is a subjective matter to make a request to be excused.

Doctrine:
1. Kai Ambos, Treatise on International Criminal Law, Oxford University Press, Oxford, 2016, pp. 138-139.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 308-309.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 169.
4. Richard May and Marieke Wierda, International Criminal Evidence, Transnational Publishers, Ardsley, 2002, p. 31.

Author:
Mark Klamberg

Updated:
10 August 2017 

[55] The Presidency shall inform, in writing, the President of the Bureau of the Assembly of States Parties of the death of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar.
This rule deals with the procedure in the event of the death of the a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar. The Presidencey is responsible for the notifying the Bureau of the Assembly of States Parties in such event.

Cross-references
Article 37

Doctrine:
1. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, p. 309.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 169.
3. Odo Annette Ogwuma, "Article 37", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1229.

Author:
Mark Klamberg

Updated:
10 August 2017

[56] 1. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar shall communicate to the Presidency, in writing, his or her decision to resign. The Presidency shall inform, in writing, the President of the Bureau of the Assembly of States Parties.

2. A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar shall endeavour to give notice of the date on which his or her resignation will take effect at least six months in advance. Before the resignation of a judge takes effect, he or she shall make every effort to discharge his or her outstanding responsibilities.
Rule 37 concerns the reisgnation of a judge, the Prosecutor, a Deputy Prosecutor, the Registrar or a Deputy Registrar. The rule involves the potential conflict between the interest to have minimal disruption to the functioning of the Court and the due interest of an official to resign on a short notice because if Changes in his or her personal circumstances. The official concerned is encouraged, not required to give notice at least six months in advance.

Cross-references
Article 37

Doctrine:
1. Kai Ambos, "Treatise on International Criminal Law", Oxford University Press, Oxford, 2016, p. 138.
2. Cate Steains, "Situations That May Affect the Functioning of the Court" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 309-310.
3. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 169.
4. Odo Annette Ogwuma, "Article 37", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1229.

Author:
Mark Klamberg

Updated:
10 August 2017 

[57] 1. A judge may be replaced for objective and justified reasons, inter alia:
(a) Resignation;
(b) Accepted excuse;
(c) Disqualification;
(d) Removal from office;
(e) Death.
2. Replacement shall take place in accordance with the pre-established procedure in the Statute, the Rules and the Regulations.
In the Kenya cases, the Presidency considered as well-founded in the sense of Rule 38 a request citing, among others, the ‘unprecedented and unusually high workload’ (Ruto and Sang and Kenyatta, Decision replacing a judge in Trial Chamber V, Presidency, ICC-01/09-01/11-706, 26 April 2013, p. 3 and Annex II, Decision on the request to be excused from the exercise of judicial functions in Trial Chamber V, pursuant to article 41 of the Rome Statute, ICC-01/09-01/11-706-AnxII, 26 April 2013, p. 2). Subsequently in the Kenyatta case, the Presidency acceded to a judge’s request for excusal after having denied it twice before. In reconsidering its previous decision, the Presidency gave weight to the fact that the judge in question was a presiding judge in the Ruto and Sang case, which it agreed was complex, and to the impending start of another trial in which the same judge would be engaged. The decisive circumstance, however, was the election of a new judge who could serve as a replacement (Kenyatta, Decision replacing a judge in Trial Chamber V(b), Presidency, ICC-01/09-02/11-890, 30 January 2014 and Annex I, Decision on the Renewed Request for withdrawal from the case of The Prosecutor v Uhuru Muigai Kenyatta, Presidency, ICC-01/09-02/11-890-AnxI, 30 January 2014, pp. 4-5).
   Where an alternate judge has been assigned to the Trial Chamber, Rule 39 requires him or her to ‘sit throughout all the proceedings and deliberations of the case’ without taking part therein and without exercising functions of a regular member of the Chamber ‘unless and until he or she is required to replace’ a judge who is unable to continue attending. The ICC’s legal framework does not provide for the exact procedure to be followed in the designation of alternate judges, in particular on who is competent to initiate this process. According to Rule 39, ‘[a]lternate judges shall be designated in accordance with a procedure ‘pre-established’ by the Court’, but the Court is yet to develop the relevant protocol. Further, Regulation 16 merely provides that alternate judges may be designated by the Presidency, on a case-by-case basis, first taking into account the availability of judges from the Trial Division that thereafter from the Pre-Trial Division.

Doctrine:
1. Socorro Flores Liera, "Single Judge, Replacements, and Alternate Judges" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 312-313.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 170.

Author:
Sergey Vasiliev

Updated: 10 August 2017

[58] Where an alternate judge has been assigned by the Presidency to a Trial Chamber pursuant to article 74, paragraph 1, he or she shall sit through all proceedings and deliberations of the case, but may not take any part therein and shall not exercise any of the functions of the members of the Trial Chamber hearing the case, unless and until he or she is required to replace a member of the Trial Chamber if that member is unable to continue attending. Alternate judges shall be designated in accordance with a procedure pre-established by the Court.
Where an alternate judge has been assigned to the Trial Chamber, Rule 39 requires him or her to ‘sit throughout all the proceedings and deliberations of the case’ without taking part therein and without exercising functions of a regular member of the Chamber ‘unless and until he or she is required to replace’ a judge who is unable to continue attending. The ICC’s legal framework does not provide for the exact procedure to be followed in the designation of alternate judges, in particular on who is competent to initiate this process. According to Rule 39, ‘[a]lternate judges shall be designated in accordance with a procedure ‘pre-established’ by the Court’, but the Court is yet to develop the relevant protocol. Further, Regulation 16 merely provides that alternate judges may be designated by the Presidency, on a case-by-case basis, first taking into account the availability of judges from the Trial Division that thereafter from the Pre-Trial Division.

Crossreference:
Article 74, Rule 39, and Regulation 16

Doctrine:
1. Socorro Flores Liera, "Single Judge, Replacements, and Alternate Judges" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence,  Transnational Publishers, Ardsley, 2001, pp. 310-312.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 170.
3. Otto Triffterer and Alejandro Kiss, "Article 74", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1832 and 1834.

Author:
Sergey Vasiliev

Updated:
10 August 2017

[59] 1. For the purposes of article 50, paragraph 1, the following decisions shall be considered as resolving fundamental issues:

(a) All decisions of the Appeals Division;

(b) All decisions of the Court on its jurisdiction or on the admissibility of a case pursuant to articles 17, 18, 19 and 20;

(c) All decisions of a Trial Chamber on guilt or innocence, sentencing and reparations to victims pursuant to articles 74, 75 and 76;

(d) All decisions of a Pre-Trial Chamber pursuant to article 57, paragraph 3 (d).

2. Decisions on confirmation of charges under article 61, paragraph 7, and on offences against the administration of justice under article 70, paragraph 3, shall be published in all the official languages of the Court when the Presidency determines that they resolve fundamental issues.

3. The Presidency may decide to publish other decisions in all the official languages when such decisions concern major issues relating to the interpretation or the implementation of the Statute or concern a major issue of general interest.
Rules 40-43 concerns publications, languages and translation. They are a compromise between states that during the negotiations that wanted to enhance the role of official languages other than the working languages of the Rome Statute (English and French according to article 50(2)) and States that wanted to avoid overburdening and curb spending of the Court (Jarasch,2004, p. 170).
   The rule sets out three different categories: decisions listed in sub-rule 1 shall allways be published in all  official languages (Arabic, Chinese, English, French, Russian and Spanish). Sub-rules 2 and 3 provides that the other other decisions may be published in all  official languages at the discretion of the Presidency. In practice there is not much difference between the second and third category because both depend on the discretion of the President, although the States by the inclusion of the the second category appear TO HAVE attached a particular degree of importance (Liera, 2001, p. 315).
   Since article 50(1) provides that he judgements of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages, there is a need to define "decisions resolving fundamental issues". Sub-rule 1 makes an attempt to give guidance by listing four kinds of decisions that shall be considered as resolving fundamental issues: (a) All decisions of the Appeals Division; (b) All decisions of the Court on its jurisdiction or on the admissibility of a case pursuant to articles 17, 18, 19 and 20; (c) All decisions of a Trial Chamber on guilt or innocence, sentencing and reparations to victims pursuant to articles 74, 75 and 76; (d) All decisions of a Pre-Trial Chamber pursuant to article 57, paragraph 3 (d).
   Sub-rule 2 provides that other issues such as decisions on confirmation of charges under article 61, paragraph 7, and on offences against the administration of justice under article 70, paragraph 3, shall be published in all the official languages of the Court when the Presidency determines that they resolve fundamental issues. Sub-rule 3 concerns other decisions which are also decided by then Presidency.

Crossreference:
Article 50

Doctrine:
1. Socorro Flores Liera, "Publications, languages, and translation" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 314-316.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 170-171.
3. Magda Karaiannakis, "Article 50", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1326-1327.

Author:
Mark Klamberg

Updated:
10 August 2017

[60] 1. For the purposes of article 50, paragraph 2, the Presidency shall authorize the use of an official language of the Court as a working language when:

(a) That language is understood and spoken by the majority of those involved in a case before the Court and any of the participants in the proceedings so requests; or

(b) The Prosecutor and the defence so request.

2. The Presidency may authorize the use of an official language of the Court as a working language if it considers that it would facilitate the efficiency of the proceedings.
The working languages of the Court is English and French. Article 50(2) provides that the the Rules of Procedure and Evidence shall determine the cases in which other official languages (than English and French) may be used as working languages. This question may have significant financial implications, impact on the efficiency of the proceedings and be of great interest for the accussed as well as for the victims.
   Rule 41 lists the following cases: (a) the language is understood and spoken by the majority of those involved in a case before the Court and any of the participants in the proceedings so requests; (b) The Prosecutor and the defence so request. Even though a case meets the criteria in sub-rule 1(a) and (b), it is not mandatory for the Court to use a working language other than  English or French in those cases. From the chapeau of the rule it follows that it still has to be authorized by the Presidency.
   Sub-rule adds flexibility, even in the absence of a request by any of the participants or a party, the Presidency may authorize the use of an official language of the Court as a working language if it considers that it would facilitate the efficiency of the proceedings.

Crossreference:
Article 50(2)

Doctrine:
1. Socorro Flores Liera, "Publications, languages, and translation" in Roy S. Lee (Ed.) The International Criminal Court: Elements of Crime and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 316-319.
2. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, pp. 170-171.
3. Magda Karaiannakis, "Article 50", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, pp. 1327-1328.

Author:
Mark Klamberg

Updated:
10 August 2017

[61] The Court shall arrange for the translation and interpretation services necessary to ensure the implementation of its obligations under the Statute and the Rules.
Rule 42 provides that the Court shall arrange for the necessary translation and interpretation services but does not add any specific obligation to the existing provisions. It follows that the Court must be provided with and then allocate adequate resources to meet its obligations under article 50 and rules 40-43.

Cross-references:
Article 50

Doctrine:
1. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 172.
2. Magda Karaiannakis, "Article 50", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1331.

Author:
Mark Klamberg

Updated:
10 August 2017

Cross-references
Article 50

Doctrine
1. Frank Jarasch, "The Rules of Procedure and Evidence Concerning the Composition and Administration of the International Criminal Court", in Horst Fischer et al. (Eds.) International and National Prosecution of Crimes Under International Law, Berliner Wissenschafts-Verlag, Second Edition, 2004, p. 172.
2. Socorro Flores Liera, "Publication, Languages and Translation", in Lee Roy S. et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, Ardsley, 2001, pp. 314-320.
3. Magda Karaiannakis, "Article 50", in Otto Triffterer and Kai Ambos (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article, Third Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2016, p. 1331.

Author
Enrique Carnero Rojo

Updated
30 May 2017