[310] 1. Before deciding whether to exercise jurisdiction, the Court may consult with States Parties that may have jurisdiction over the offence.
A. General remarks 
This provision seeks to regulate the exercise of jurisdiction by the Court over the offences against the administration of justice set out in Article 70 of the Statute and derogates from the general procedure for exercising jurisdiction set out in Part II of the Statute (Articles 5-21 of the Statute) as provided  by Rule 163(2). The considerations listed herein are not exhaustive and are all discretionary. Paragraphs 3 and 4 of this Rule also seek to regulate situations where States wish to exercise jurisdiction in lieu of the Court and also where the Court declines to exercise jurisdiction.  
   In both of the Decisions of Pre-Trial Chamber II issuing warrants of arrest for alleged offences under Article 70, consultation with States Parties under this provision has not been undertaken due to the possibility of inadvertent leaking or disclosure of information which would diminish the chance of arrest (Prosecutor v Barasa, ICC PT. Ch.II, Warrant of arrest for Walter Osapiri Barasa, ICC-01/09-01/13-1-Red2, 2 August 2013, para. 2; Prosecutor v. Bemba et al., ICC PT. Ch. II. Warrant of arrest for Jean-Pierre Bemba Gombo, Aime Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidele Babala Wandu and Narcisse Arido, ICC-01/05-01/13-1-Red2-tENG, 20 November 2013, para. 7).

Author:
Geoff Roberts

Updated:
18 September 2017

[311] 2. In making a decision whether or not to exercise jurisdiction, the Court may consider, in particular:
(a) The availability and effectiveness of prosecution in a State Party;
(b) The seriousness of an offence;
(c) The possible joinder of charges under article 70 with charges under articles 5 to 8;
(d) The need to expedite proceedings;
(e) Links with an ongoing investigation or a trial before the Court; and
(f) Evidentiary considerations.
Further factors allegedly justifying the refusal to consult with the States Parties relate to the exercise of jurisdiction and are addressed  in relation to Rule 162(2).  Pre-Trial Chamber II referred also to the factors that it may consider when deciding whether to exercise jurisdiction set out in  Rule 162(2) but appeared to mix these with considerations relating to whether or not to consult with States Parties under Rule 162(1) before deciding whether to exercise jurisdiction (see Prosecutor v Barasa, ICC PT. Ch.II, Warrant of arrest for Walter Osapiri Barasa, ICC-01/09-01/13-1-Red2, 2 August 2013, para. 3; Prosecutor v. Bemba et al., ICC PT. Ch. II. Warrant of arrest for Jean-Pierre Bemba Gombo, Aime Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidele Babala Wandu and Narcisse Arido, ICC-01/05-01/13-1-Red2-tENG, 20 November 2013, para. 8). However, set out more clearly in Bemba, Pre-Trial Chamber II did consider that the reasons which required the Court’s prompt exercise of jurisdiction included “the clear urgency of the issue and the ensuing need to act forthwith [...], the close and manifest connections between the investigation which gave rise to the Prosecutor’s Application and the trial in the Case before the Court, as well as the gravity of the Prosecutor’s allegations”. The Pre-Trial Chamber also proceeded to recall that it had been following the Prosecutor’s investigation into the Article 70 allegations and the impact on the evidence in the main Bemba trial as further reasons why both consultation with States Parties was not required and why the Court should exercise jurisdiction. Although not specifying exactly which factors were relevant in this case, Pre-Trial Chamber II therefore did appear to refer therefore to the factors set out in Rule 162(2)(b), (d), (e) and (f). In addition, the familiarity of the Pre-Trial Chamber with the Prosecutor’s investigation and its resulting ability to issue a prompt order on the merits of the request for an arrest warrant in that case was also held to be a relevant factor.

Author:
Geoff Roberts

Updated:
18 September 2017

[312] 3. The Court shall give favourable consideration to a request from the host State for a waiver of the power of the Court to exercise jurisdiction in cases where the host State considers such a waiver to be of particular importance.
Rule 162(3) appears to establish a mini admissibility procedure for Offences against the Administration of Justice as Article 17 (which regulates whether cases for one of the substantive crimes under the Court’s jurisdiction as set out in Articles 5-8 of the Statute) does not apply to such offences by virtue of Rule 162(3). This mini admissibility procedure further explains what is meant by the phrase “[u]pon request by the Court, whenever it deems it proper, the State Party shall submit the case to its competent authorities for the purpose of prosecution” (emphasis added).   The terms in Rule 162(3) are somewhat vague and the phrase “favourable consideration” therein does not appear anywhere else in the Statute or Rules which would aid interpretation. However, it would appear to create a presumption in favour of the State exercising jurisdiction over such offences (and the Court therefore waiving such jurisdiction) where the State considers that it is very important for the State to do so. This presumption is rebuttable and the Court may still exercise jurisdiction, notwithstanding any request by a State, presumably when the other factors in Rule 162(2) are assessed against the State’s request or if the Court did not consider the State’s claim to the importance of  the waiver to be justified. However, others consider that “any such request appears, by the text of this provision, to be binding on the Court (Pikis, 2010, p. 235).  If such a request for a waiver pursuant to this Rule is granted by the Court, there is no mechanism for monitoring whether or not this resulted in a fair, through and impartial investigation and possible future prosecution.

Author:
Geoff Roberts

Updated:
18 September 2017

[313] 4. If the Court decides not to exercise its jurisdiction, it may request a State Party to exercise jurisdiction pursuant to article 70, paragraph 4.
When the Court declines to exercise jurisdiction over Article 70 offences, Rule 162(4) provides that it may request a State Party to exercise jurisdiction pursuant to Article 70(4) of the Statute. This appears to cover a situation distinct from a request for waiver submitted by a State Party under Rule 162(3) and instead must be directed at situations where the Court considers that the offence should not be prosecuted before it, for example if the State Party is able to effectively  prosecute such an offence or if the alleged offence is not of sufficient gravity (Rules 162(2)(a) and (b)). This is a logical division of responsibilities between the Court and the relevant national authorities given the resources necessary to investigate and prosecute such cases at the international level, as well as  the detailed and sophisticated  mechanisms which may well be in place in national systems for such enforcement.    It is slightly unclear from the Statute and Rules when challenes to the exercise of jurisdiction or the admissibility before  the Court of the Article 70 proceedings by a Suspect would take place in light of the different procedure to be followed in these proceedings from that followed for core crimes under Rule 163 (addressed below) which specifically excludes Articles 17-19 from these proceedings. When deciding whether to confirm charges under Article 61 against a Suspect in an Article 70 proceeding, Rule 122(3) provides that if a ”question or challenge concerning jurisdiction or admissibility arises, rule 58 applies”. Rule 58 in turn is titled ”Proceedings under Article 19” which, as addressed below, does  not apply. However, it would appear logical that the principles applicable to Article 19 proceedings, such as the obligation to challenge admissibility or  jurisdiction before the commencement of trial under Article 19(4), as well as the the power of the relevant Chamber  to ” decide on the procedure to be followed and [...] take appropriate measures for the proper conduct of the proceedings”  under Rule 58, together with the Court’s jurisprudence interpreting these provisions, would equally be applied to such challenges in Article 70 proceedings.
   When jurisdiction of the Court was challenged in favour of a State Party, Pre-Trial Chamber II sollicited the views of that State which informed the Chamber that it saw no reason to prosecute the concerned accused under its domestic jurisdiction, thus causing the Chamber not to defer the case to that State because of lack of an available and effective prosecution in a state Party under Rule 162(2)(a) (Prosecutor v Barasa, ICC PT. Ch.II, Decision on the "Requête à la Cour de n e pas exercer sa compétence, en application de l'art. 70.4(b) d u Statut de Rome et de la règle 162.a, 'Demande en dessaisissement"' submitted by the Defence for Mr Mangenda, ICC-01/05-01/13-263, 17 March 2014).

C. Cross-references:
Articles 17-19 and 70

D. Doctrine:
Pikis, Georghios M., The Rome Statute for the International Criminal Court, Analysis of the Statute, the Rules of Procedure and Evidence, the Regulations of the Court and Supplementary Instruments, 2010, Brill Nijhoff, pp. 235

Author:
Geoff Roberts

Updated:
18 September 2017

[314] 1. Unless otherwise provided in sub-rules 2 and 3, rule 162 and rules 164 to 169, the Statute and the Rules shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in article 70.
A. General remarks 
Rule 163 establishes that except where expressly excluded by the Statute or Rules, Article 70 proceedings follow the same procedures as those applicable to the core crimes in Articles 5 to 8. The two exceptions to this procedure included within this provision relate to “Jurisdiction, admissibility and applicable law” in Part II of the Statute and “Enforcement” covered by Part 10 thereof. It is important to note however, that Rule 165 and Rule 166 also exempt certain other provisions of the Statute and Rules from application to Article 70 proceedings and are addressed below. 

Author:
Geoff Roberts

Updated:
18 September 2017

[315] 2. The provisions of Part 2, and any rules thereunder, shall not apply, with the exception of article 21.
Rule 163(2) exempts from Article 70 proceedings Articles 5 to 20 of the Statute, but maintains the applicability of Article 21 relating to the Applicable law. The majority of these exceptions are entirely logical and either seek to streamline the applicable procedures for Article 70 proceedings or are simply irrelevant to them. Therefore for Article 70 proceedings the following provisions are excluded: the crimes within the jurisdiction of the court and their elements in Articles 5 to 9; the protection against anything in the Statute limiting or prejudicing rules of international law in Article 10; the exercise of jurisdiction and deferral of investigation or prosecution in Articles 13 and 16 respectively; the referral of a situation by a State Party under Article 14; the role and obligations of the Prosecutor in Article 15; the complex and convoluted procedure for challenging the admissibility and jurisdiction of a case in Articles 17 to 19 of the Statute; and, in Article 20, the general provision on ne bis in idem which is replaced by a specific Article 70 provision in Rule 169.   
However, two provisions that are excluded demonstrate that the Court may exercise jurisdiction over a greater array of persons than for the core crimes under the Court’s jurisdiction. Article 11 provides that the Court only has jurisdiction with respect to crimes committed after the entry into force of this Statute. Article 12(2) provides that the Court may exercise its jurisdiction if one or more of the following States are Parties to the ICC Statute or have accepted the jurisdiction of the Court under Article 12(3): (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national.” By virtue of Rule 163, neither is applicable to cases brought by the Prosecutor under Article 70. Jurisdiction may therefore be exercised against nationals of a non-State Party to the Statute or against members of  State Party for offences committed before that State Party became a member of the Court. The only jurisdictional limitation appears to be that the offence is committed against the Court’s administration of justice. This appears logical, due to the types of offences covered by Article 70 which may be directed towards invididuals who interact with the court, such as members of the Office of the Prosecutor, Victims’ or Defence Counsel and yet who are not members of a State Party as no requirement to be so exists.  However, other jurisdiction limitations that appear elsewhere in the Statute are still applicable, such as Article 25(1) which limits the Court’s jurisdiction to ”natural persons” rather than including ”legal persons”.   
Article 21 of the Statute still applies to proceedings under Article 70, which delineates how the Statute and Rules are interpreted. Already this has proved slightly controversial as under Article 21(2), the Court is permitted to apply principles and rules of law as interpreted in its previous decisions and yet these previous decisions, at least in the area of interim release under Articles 58(1) and 60(2) of the Statute, have dealt with interim release in the context of core crimes. The Appeals Chamber has been criticised for relying on these decisions “without any critical analysis”, specifically when assessing whether continued detention for suspects charged with Article 70 offences is necessary under Article 58(1)(b) and “did not give sufficient consideration to the fact that offences against the administration of justice are in no way comparable to core crimes, and that this necessarily impacts on the analysis as to whether continued detention is justified (Prosecutor v Bemba et al., ICC PT. AC, Judgment on the appeal of Mr Jean-Jacques Mangenda Kabongo against the decision of Pre-Trial Chamber IT of 17 March 2014 entitled "Decision on the 'Requete de mise en Iiberte' submitted by the Defence for Jean-Jacques Mangenda", ICC-01/05-01/13-560, 11 July 2014, Dissenting Opinion of Judge Anita Usacka, para. 21).

Author:
Geoff Roberts

Updated:
18 September 2017

[316] 3. The provisions of Part 10, and any rules thereunder, shall not apply, with the exception of articles 103, 107, 109 and 111.
Rule 163 exempts Part X of the Statute, comprising Articles 103-112 and the applicable rules from application to Article 70 proceedings, except for articles 103 relating to the Role of States in enforcement of sentences of imprisonment, Article 107 relating to the transfer of the person upon completion of sentence, Article 109 relating to the enforcement of fines and forfeiture measures and 111 relating to escape which remain applicable. Articles 104-106, 108 and 110 are replaced by sanctions specifically included within Rule 166 and addressed therein. The different sanctions reflect the difference between the nature of core crimes under the Statute and Article 70 offences and that ”offences under Article 70 of the Statute, while certainly serious in nature, are by no means considered to be as grave as the core crimes under article 5 of the Statute, being genocide, crimes against humanity, war crimes, and the crime of aggression, which are described in that provision to be ”the most serious crimes of concern to the international community as a whole”” (Prosecutor v Bemba et al., ICC PT. AC, Judgment on the appeal of Mr Jean-Jacques Mangenda Kabongo against the decision of Pre-Trial Chamber IT of 17 March 2014 entitled "Decision on the 'Requete de mise en Iiberte' submitted by the Defence for Jean-Jacques Mangenda", ICC-01/05-01/13-560, 11 July 2014, para. 1)  

Cross-references:
Article 13, Part II of the Statute; Article 25(1); Part 10 of the Statute

Doctrine:
N/A

Author:
Geoff Roberts

Updated:
18 September 2017

[317] 1. If the Court exercises jurisdiction in accordance with rule 162, it shall apply the periods of limitation set forth in this rule.
A. General remarks
The introduction of an effective statute of limitations for Article 70 offences in Rule 164 highlights the distinction between such offences and the core crimes under Article 5 to 8 of the Statute for which, under Article 29, there shall not be subject to any statute of limitations. In addition, Rule 164(3) sets out limitations on enforcement of sanctions imposed for such offences in accordance with Rule 166. 

Author:
Geoff Roberts

Updated:
18 September 2017

[318] 2. Offences defined in article 70 shall be subject to a period of limitation of five years from the date on which the offence was committed, provided that during this period no investigation or prosecution has been initiated. The period of limitation shall be interrupted if an investigation or prosecution has been initiated during this period, either before the Court or by a State Party with jurisdiction over the case pursuant to article 70, paragraph 4 (a).
Rule 164(2) sets out a limitation of 5 years from the date on which the offence was committed within which some investigative action must take place. This is a relatively strict statute of limitations and requires the Court or other States Parties with jurisdiction over the offence, to take rapid action. It may however cause injustice or ambiguity in its application due to the continuing nature of certain offences such as presenting evidence that the person knows to be false under Article 70(1)(b) which could still be relied upon by the person involved and subsequently by the Chambers of the court many years after it was tendered into court. It is unclear at what point the offence was committed in this context. This is accentuated by the fact that jurisdiction over Article 70 offences is for a period of 5 years from the commission of the offence, rather than from the existence of the offence becoming known. In the context of Article 70 offences, where the very rationale of the offence is for it to remain secret, offences may not be discovered until significantly later.  
   It is possible that examples of offences barred under this statute of limitation provision may be relatively rare under the relatively generous exception to this provision which tolls the limitation as soon as “an investigation or prosecution has been initiated during this period, either before the Court or by a State Party with jurisdiction over the case pursuant to Article 70, paragraph 4(a).” Rule 164(2) is silent on what constitutes ”an investigation or prosecution” and what criteria either the ICC Prosecutor or domestic prosecution or investigative authoritties would have to fulfil to show the existence of a genuine investigation. Presumably some guidance may be sought from the Court’s interpretation of what amounts to a ”case” being investigated by national authorities under Article 17, but applying the same standard to national investigations under Rule 164(2) for the purposes of applying a statute of limitations would be too strict. Presumably some investigative steps, directed at the offence if not the specific alleged offender, would be sufficient to toll the limitation. What may be difficult to determine is if investigative steps are being taken by different States Parties with jurisdiction over the offences, simultaneously with steps being taken by the ICC Prosecutor. 

Author:
Geoff Roberts

Updated:
18 September 2017

[319] 3. Enforcement of sanctions imposed with respect to offences defined in article 70 shall be subject to a period of limitation of 10 years from the date on which the sanction has become final. The period of limitation shall be interrupted with the detention of the convicted person or while the person concerned is outside the territory of the States Parties.
The limitations on enforcement set out in Rule 164(3) reflect the limited sanctions available in case of Article 70 offences in comparison to core crimes where no limitation of enforcement exists under the Statute or Rules. However, the limitation of 10 years applicable to enforcement rather than 5 years for actually investigating the offence demonstrates the desire of the Court to see the effective implementation of its sanctions for these offences when prosecuted.  There are two possible interruptions to this limitation period which protect different values. The interruption when a person is detained presumably means that if an accused is subject to a fine as well as incarceration, his obligation to pay the fine still extends for 10 years after release. Conversely, the tolling of the enforcement provision when the convicted person is on the territory of a non-State Party recognises the increased jurisdiction over citizens of such states and the likelihood that they would not be handed over to the court.

C. Cross-references:
Articles 17 and 29

D. Doctrine:
N/A

Author:
Geoff Roberts

Updated:
18 September 2017

[320] 1. The Prosecutor may initiate and conduct investigations with respect to the offences defined in article 70 on his or her own initiative, on the basis of information communicated by a Chamber or any reliable source.
A. General remarks
Rule 165 additional specific rules applicable to the investigation and prosecution of Article 70 offences, but always subject to the general provision in Rule 163(1), that unless specifically otherwise stated,  “the Statute and the Rules shall apply mutatis mutandis to the Court’s investigation, prosecution and punishment of offences defined in Article 70. ”Therefore, unless either the Statute or Rules specifically exempt a provision from application to Article 70 offences, it will apply. Rule 165 sets out an expedited investigation procedure under the exclusive jurisdiction of the Prosecutor. It also exempts provisions relating to interim release in the custodial state and amends and seeks to streamline the procedure for confirming charges under Article 61, as well as somewhat superfluously allowing for the joinder of Article 70 charges with those for core crimes.   

Author:
Geoff Roberts

Updated:
18 September 2017

[321] 2. Articles 53 and 59, and any rules thereunder, shall not apply.
i. Expedited investigation procedure
Rule 165 exempts Article 53, the complex procedure applied to the Prosecutor’s decision to initiate an investigation for core crimes, from applying to the investigation of Article 70 offences. This removes any judicial control over the Prosecution’s decisions, especially where the decision not to investigate or prosecute is based on the Prosecutor’s interpretation of the interests of justice (for state referrals or referrals by the Security Council) when the Prosecution must inform the Pre-Trial Chamber in advance of his decision and the decision shall be effective only if confirmed by the Pre-Trial Chamber. All the Prosecutor needs to initiate an investigation is information communicated by a Chamber or any reliable source. There is no requirement that the information itself be reliable but this may be presumed. As no formal authorisation needs to be given to the Prosecutor to initiate the investigation, the reliability of any source providing information to the Prosecutor will not be assessed as instead the case produced by the Prosecutor will be assessed against the standard of ”reaonsable grounds to believ in the confirmation of charges procedure under Article 61. However, Pre-Trial Chamber II has ordered the disclosure of the information provided by an anonymous informant which allegedly initiated the Prosecutor’s investigation (Prosecutor v Barasa, ICC PT. Ch.II, Second Decision on the "Defence request for disclosure" submitted by the Defence for Jean-Pierre Bemba on 20 February 2014 and related filings, ICC-01/05-01/13-298, 27 March 2014).  

ii. Exclusive jurisdiction of the Prosecutor to conduct investigations
The exclusive jurisdiction under Rule 165(1) of the Prosecutor to initiate investigations under Article 70 has been confirmed by the Appeals Chamber which held that “the decision whether to initiate or conduct investigations on alleged offenses as provided by article 70 of the Statute lies within the purview of the Prosecutor (Prosecutor v. Lubanga, Decision on the request of the Defence in relation to investigations conducted pursuant to article 70 of the Statute, ICC-01/04-01/06-3114, 17 June 2014, para. 19;  See also Prosecutor v. Katanga, Trial Chamber II’s Oral Decision on 22 September 2010, ICC-01/04-01/07-T-190-Red-ENG, page 3, lines 14 to 22; Trial Chamber 11, "Decision on the Prosecution's renunciation of the testimony of witness P-159", 24 February 2011, ICC-01/04-01/07-2731, para. 18; Prosecutor v. Lubanga, Trial Chamber I's Oral Decision on 14 April 2011, ICC-01/04-0l/06-T-350-Red-ENG CT3, page 16, lines 13 to page 17 line 1). The problematic nature of this exclusive jurisdiction has been noted by Trial Chamber III, when, in relation to a Defence request for the Prosecutor to initiate Article 70 proceedings against a Prosecution witness, held that the Prosecutor’s exclusive jurisdiction over such investigations “may give rise to conflicts of interest in situations where a prosecution witness appears to have committed an offence under Article 70 of the Statute. In a situation where a prosecution witness is alleged to have provided false testimony, the prosecution may decline to initiate an investigation of its own witness.”  However, the solution proposed by the Chamber was, pursuant to Articles 64(2) and 64(6)(f) of the Statute, to remind the prosecution of the authority that it has under Rule 165(1) of the Rules, communicate to the prosecution any information the Chamber may have in relation to a possible Article 70 offence. It also recalled that the Court was able to "request a State Party to exercise jurisdiction pursuant to Article 70(4) of the Statute" and Rule 162 of the Rules (Prosecutor v. Bembas, Public redacted version of "Decision on the 'Defence application concerning Witness CAR-OTP-WWWW-0042's evidence'" of 10 October 2013, ICC-01/05-01/08-2830-Red, 16 October 2013, para. 14). The clear inadequacy of these solutions, and the structural imbalance created by the Statute in granting the Prosecutor exclusive jurisdiction to initiate investigations under Article 70 is a fundamental flaw. As recognised by the Pre-Trial Chamber, there is simply no control over the decisions of the Prosecutor in this regard, in marked contrast with Article 53 addressed above. Nor is this simply a conceptual problem. In that very case, the Chamber rejected the Defence’s request regarding the Prosecution witness’ false testimony, although it would have been powerless to order the Prosecution to investigate it in any event, and yet simultaneously the Prosecution was involved in ex parte status conferences with the Single Judge of Pre-Trial Chamber II in preparation of the arrest warrant issued on 20 November 2013 (Prosecutor v. Bemba et al., ICC PT. Ch. II. Warrant of arrest for Jean-Pierre Bemba Gombo, Aime Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidele Babala Wandu and Narcisse Arido, ICC-01/05-01/13-1-Red2-tENG, 20 November 2013, para. 4). This lack of authority by the ICC Pre-Trial Chamber over the investigation of offences by the Prosecutor against the administration of justice contrasts with the situation at the ICTY, ICTR and STL where a Chamber that believes that a person may be in contempt of the Tribunal may “direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings, where the where the Prosecutor, in the view of the Chamber, has a conflict of interest with respect to the relevant conduct.” (ICTY RPE, Rule 77(C)(ii); STL RPE, Rule 60bis(E)(ii)).

iii. Interim release in the custodial state
Rule 165 exempts Article 59 of the Statute from applying to Article 70 proceedings which relates to implementing warrants of arrest and applying for interim release in the custodial State. It is unclear from the provisions of Article 59 why it was exempted from Article 70 proceedings as other provisions relating to arrest warrants for those charged under Article 70, such as Article 58, are applicable (Prosecutor v. Bemba et al., ICC PT. Ch. II.Warrant of arrest for Jean-Pierre Bemba Gombo, Aime Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidele Babala Wandu and Narcisse Arido, ICC-01/05-01/13-1-Red2-tENG, 20 November 2013). However, as addressed below, it appears that as an arrest warrant issued by the Court would amount to a request, it would fall under Article 70(2) of the Statute and in accordance with Rule 167(2) would be governed by the laws of the custodial State.  

Author:
Geoff Roberts

Updated:
18 September 2017

[322] 3. For purposes of article 61, the Pre-Trial Chamber may make any of the determinations set forth in that article on the basis of written submissions, without a hearing, unless the interests of justice otherwise require.
Rule 165(3) establishes a presumption of a written procedure for Article 70 confirmation of charges procedures under Article 61 rather than oral proceedings and the first ICC Article 70 proceeding complied with that presumption (Prosecutor v. Bemba et al., ICC PT. Ch. II Decision amending the calendar for the confirmation of the charges, ICC-01/05-01/13-443, 28 May 2014)

Author:
Geoff Roberts

Updated:
18 September 2017

[323] 4. A Trial Chamber may, as appropriate and taking into account the rights of the defence, direct that there be joinder of charges under article 70 with charges under articles 5 to 8.
Rule 165(4) allows for a Trial Chamber to order the joinder of charges under Article 70, with those under Articles 5 to 8. It also establishes that in taking such a decision, the Chamber must take into account the rights of the defence. This is a curious provision whose utility appears limited. Article 64(5) already allows as one of its functions “the Trial Chamber may, as appropriate, direct that there be joinder or severance in respect of charges against more than one accused.” Furthermore, the rights of the defence should be respected in every decision in accordance with Article 67(1). As such, it is unclear why this provision was necessary and what precise purpose it serves.  

C. Cross-references:
Articles 5 to 8, 59, 61, 64(5) and 67(1)

Author:
Geoff Roberts

Updated:
18 September 2017

[324] 1. If the Court imposes sanctions with respect to article 70, this rule shall apply.
A. General remarks 
The provisions in Rule 166 demonstrate the relative seriousness of Article 70 offences in comparison with core crimes under Articles 5 to 8 of the Statute. They derogate from the set of penalties available under Article 77 (except the imposition of forfeiture orders) and establish the procedure for enforcement of fines and forfeiture orders.

Author:
Geoff Roberts

Updated:
18 September 2017

[325] 2. Article 77, and any rules thereunder, shall not apply, with the exception of an order of forfeiture under article 77, paragraph 2 (b), which may be ordered in addition to imprisonment or a fine or both.
Rule 166(2) excludes the imposition of Article 77 to offences against the administration of justice under Article 70 except for Article 77(2)(b) which relates to forfeiture orders. As such, the permissible sanctions that can be imposed in relation to offences against the administration of justice are a sentence of imprisonment not exceeding 5 years under Article 70(3); a fine; or a forfeiture order.

Author:
Geoff Roberts

Updated:
18 September 2017

[326] 3. Each offence may be separately fined and those fines may be cumulative. Under no circumstances may the total amount exceed 50 per cent of the value of the convicted person’s identifiable assets, liquid or realizable, and property, after deduction of an appropriate amount that would satisfy the financial needs of the convicted person and his or her dependants.
The maximum level of all fines combined is set at 50% of the “of the value of the convicted person’s identifiable assets” after deduction of the living costs of the convicted person anhd his or her family. This contrasts with permissible fines for core crimes up to 75% of the convicted persons identifiable assets under Rule 146(2). 

Author:
Geoff Roberts

Updated:
18 September 2017

[327] 4. In imposing a fine the Court shall allow the convicted person a reasonable period in which to pay the fine. The Court may provide for payment of a lump sum or by way of instalments during that period.
Payment of fines may be by lump sum or by way of instalments under Rule 166(4).

Author:
Geoff Roberts

Updated:
18 September 2017

[328] 5. If the convicted person does not pay a fine imposed in accordance with the conditions set forth in sub-rule 4, appropriate measures may be taken by the Court pursuant to rules 217 to 222 and in accordance with article 109. Where, in cases of continued wilful non-payment, the Court, on its own motion or at the request of the Prosecutor, is satisfied that all available enforcement measures have been exhausted, it may as a last resort impose a term of imprisonment in accordance with article 70, paragraph 3. In the determination of such term of imprisonment, the Court shall take into account the amount of fine paid.
Rule 166(5) allows for imprisonment as a last resort in order to enforce payment of fines when they have wilfully been ignored by a convicted person under Article 70. This measure may only be taken when “all available enforcement measures have been exhausted” and the sentence of imprisonment must be in accordance with Article 70(3) which establishes 5 years as the maximum sentence that can be imposed. It is unclear whether an accused that was convicted to a sentence of 5 years and a fine in accordance with Rule 166(2), could be subject to any further imprisonment if he served his sentence but never paid the fine imposed due to the overall maximum of 5 years in Article 70(3).

C. Cross-references:
Article 77; Rule 146

Author:
Geoff Roberts

Updated:
18 September 2017

[329] 1. With regard to offences under article 70, the Court may request a State to provide any form of international cooperation or judicial assistance corresponding to those forms set forth in Part 9. In any such request, the Court shall indicate that the basis for the request is an investigation or prosecution of offences under article 70.
A. General remarks 
Rule 167(1) simply establishes that the Court may request international cooperation or judicial assistance from States for Article 70 offences corresponding to those set forth in Part 9 of the Statute and that when doing so the Court shall inform the State concerned that the requested cooperation of assistance is for the investigation or prosecution of Article 70 offences. Rule 167(2) confirms that when requesting such assistance or cooperation, the conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State under Article 70(2) of the Statute and addressed therein.

i. Type of judicial assistance and international cooperation
Rule 167(1) provides that the Court may seek international cooperation or judicial assistance corresponding to those forms set forth in Part 9 of the Statute. However, this provision does not automatically apply those provisions otherwise there would be no requirement to include the word “corresponding”. It would appear that the drafters of this provision wished to recognise and include within the Court’s power for Article 70 offences, those types of judicial assistance and international cooperation which are set out in Part 9, without making all the provisions therein directly applicable. This is not clear however as Rule 163, which exempts from application some provisions of the Statute and Rules, does not refer to Part 9. As such, it appears that Part 9 does apply directly in addition to Rule 167(1). 

ii.  Scope of assistance or cooperation
Noticeably, Rule 167(1) provision does not limit assistance and cooperation to the Prosecution but simply to the Court. Consequently, the Defence has the right and obligation to seek material which it believes may assist the Defence in accordance with this provision. In addition, according to the text of the provision, the assistance or cooperation under Rule 167(1) may be sought not only from States Parties but from any State. However, in the absence of a binding resolution by the Security Council under Chapter VII of the UN Charter, there is no obligation upon non-States Parties to cooperate with the Court.
 
iii. Obligations when seeking assistance or cooperation
Under Rule 167(1), the Court must inform the State from whom cooperation or assistance is sought, that the basis for the request is the investigation or prosecution of Article 70 offences. This procedural step is necessary as the type of offence may determine the level of assistance that is appropriate. 

Author:
Geoff Roberts

Updated:
18 September 2017

[330] 2. The conditions for providing international cooperation or judicial assistance to the Court with respect to offences under article 70 shall be those set forth in article 70, paragraph 2.
Type of judicial assistance and international cooperation
Article 70(2) of the Statute refers to international cooperation with the court for the investigation and prosecution of Article 70 offences. In implementing Article 70(2), Rule 167 adds the phrase “judicial assistance” to that of “international cooperation”. Although Part 9 of the Statute and Chapter 11 of the Rules use these terms, neither is further defined. Both are therefore deliberately left relatively vague to encompass all possible forms of assistance or cooperation for the Court.

Obligations when seeking assistance or cooperation Rule 167(2) also confirms that when requesting such assistance or cooperation, the conditions for providing international cooperation to the Court with respect to its proceedings under this article shall be governed by the domestic laws of the requested State under Article 70(2). Therefore, even requests directed towards States Parties under Article 70(2) may not be immediately self-executing but will presumably require compliance with national laws and procedures before being implemented. For some, this would provide greater scope for a State to deny cooperation than provided in the provisions of Part 9 [...] thus a State Party in which extradition of nationals is otherwise prohibited would not be obliged to surrender a national to the Court for an Article 70 offence (Trifterrer, 1999, p.1343). This appears to contrast with the general obligation under Article 86 that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”. Indeed, Article 86 may also not even apply as it refers simply to ”crimes within the jurisdiction of the Court” which, given its textual narrow meaning, could be limited to the core crimes set out in Articles 5 to 8 of the Statute. Furthermore, although Article 88 provides that “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part” is is unclear whether this would apply to judicial assistance and international cooperation for Article 70 offences.

Cross-references:
Article 86; Part 9 of the Statute

Doctrine:
Piragoff, Donald K., "Article 70: Offences against the administration of justice", in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Baden-Baden: Nomos 1999, p. 1339

Author:
Geoff Roberts

Updated:
18 September 2017

[331] In respect of offences under article 70, no person shall be tried before the Court with respect to conduct which formed the basis of an offence for which the person has already been convicted or acquitted by the Court or another court.
General remarks
This ne bis in idem provision is superficially similar to the general provision applicable to prosecution and investigation of core crimes in Article 20, which is however excluded from application to Article 70 offences by Rule 163(2). However, Rule 168 provides less protection for Article 70 offences in that it only prohibits prosecution by the Court for conduct which formed the basis of the Article 70 offence and for which the person has already been acquitted or convicted and not protection against subsequent prosecution before domestic courts.
 
Analysis of provisions and sub-provisions
i. Prohibition of prosecution before the Court
Rule 168 provides the standard prohibition from repeated prosecution before the Court if a person has been previously prosecuted before the Court or before another court. This is a simplified version of the system established in relation to core crimes by Article 20. By contrast however, Article 20 also prohibits prosecution of core crimes before the Court when they have previously been prosecuted before a domestic court unless “the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.” These exceptions do not exist in Rule 168 and so as long as a person has been convicted or acquitted before another court, the Court is prohibited from prosecuting them for the same conduct even if the previous prosecution was to shield the person concerned from criminal resposibility or were not conducted independently and impartially and were inconsistent with an intent to bring the person concerned to justice. 

ii. Permissibility of prosecutions before domestic courts
Rule 168 does not prohibit subsequent prosecutions before a domestic court, or any other type of court for conduct for which a person has already been prosecuted under Article 70. This directly contrasts with the system for core crimes where Article 20(2) explicitly provides that “[n]o person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.” This difference is marked and is unclear why the Court has not elected to prohibit subsequent prosecutions at the national level. Two reasons may exist for this approach. Firstly, before any subsequent Court the person would be presumed to be able to invoke their domestic ne bis in idem provision to prevent prosecution. Secondly, as this ne bis in idem protection derives from the Rules rather than the Statute, it may be unclear the extent to which it could be relied upon as a legal justification to prevent prosecution before a domestic court in any event. This is all the more relevant since, as explained in relation to Rule 163, prosecutions under Article 70 do not have the same jurisdictional limitations as prosecutions before core crimes and can be directed towards nationals of non States Parties. Prohibiting subsequent prosecutions before national courts of non States Parties may have therefore been considered an example of international legislative overreach. 

Cross-references:
Article 20

Author:
Geoff Roberts

Updated:
18 September 2017

[332] In the case of an alleged offence under article 70 committed in the presence of a Chamber, the Prosecutor may orally request that Chamber to order the immediate arrest of the person concerned.A. General remarks & analysis
This exceptional provision appears to relate to instances of false testimony or presenting false evidence under Articles 70(1)(a) or (b) although neither would be easy to prove to the requisite standard unless investigations had been carried out by the Prosecutor in advance of testimony or if the witness was being recalled to court to give further evidence. The other possible offences under Article 70 would be more difficult to commit inside at courtroom. Immediate arrest would allow the Chamber to use its own security staff to secure and arrest the person involved rather than the person leaving the seat of the Court and then the Court remaining dependent on states to enforce the arrest warrant.

Author:
Geoff Roberts

Updated:
18 September 2017

[333] General remarks
Rules 170-172 implement the explicit referral to the Rules of Procedure and Evidence in Article 71 that deals with sanctions for misconduct before the Court. Despite this explicit referral, Rules 170-172 remain partly vague and only contain few concrete regulations, thus, filling some of the regulatory gaps that were left open in Article 71 and supposedly dealt with in the Rules of Procedure and Evidence [Triffterer/Burchard, 2016, p. 1760-1774, para. 1, 9 and 32].
   General requirements that Rules 170-172 set out are a warning prior to the sanctioning of misconduct, the different powers of sanctioning of the Presiding Judge and the Presidency as well as the right of the sanctioned person to be heard before a sanction is imposed [Triffterer/Burchard, 2016, p. 1760-1774, para. 32].
   Until now, the ICC has issued one decision on the subject: Prosecutor v. Lubanga, A. Ch., ICC-01/04-01/06, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I of 8 July 2010, 8 October 2010.

Preparatory works
Earlier drafts of the rules concerning Article 71 ICC-Statute included definitions of what exactly should constitute misconduct. But as the concept of contempt of court had been rejected as a whole from the ICC-Statute, defining misconduct caused reluctance to raise this issue again [Friman, 2001, p. 605-622, 620.].

Analysis
While the wording of Article 71 of the Statute suggests that there could be various kinds of misconduct, Rules 170-172 cover only two types: the disruption of proceedings (Rule 170) and the refusal to comply with a direction by the Court (Rule 171). Therefore, the Court is limited to these types of misconduct and cannot sanction other actions as long as the Assembly of States does not decide to extend the Rules of Evidence and Procedure in this regard. However, the Court may indirectly transform every action into a sanctionable one by giving a certain court direction concerning the matter in question [Triffterer/Burchard, 2016, p. 1760-1774, para. 23].
   While the wording of Article 71 of the Statute suggests that the Court – despite ordering the temporary or permanent removal and impose a fine – has a non-exhausting catalogue of ‘similar measures’ at its disposal to sanction misconduct before the Court, the Rules of Procedure and Evidence only provide the possibility to ban the persons explicitly listed in Rule 171(2) from exercising their functions before the Court for a period not exceeding 30 days Triffterer/Burchard, 2016, p. 1760-1774, para. 29.
   All the rules address the “Chamber dealing with the matter” and do not only refer to the Trial Chamber, although Article 71 is located in the part of the ICC-Statute dealing with the Trial Chamber: Hence, Article 71 ICC-Statute and Rules 170-172 are applicable for the Trial Chamber, as well as the Appeals Chamber and the Pre-Trial Chamber [Triffterer/Burchard, 2016, p. 1760-1774, para. 16].
   Generally, every person can commit misconduct regulated by Rules 170-172 as Rule 170 speaks of “any person”; hence, also persons belonging to organs of the Court – except judges who constitute the Court – are covered by those provisions [Triffterer/Burchard, 2016, p. 1760-1774, para. 11]. The only exception is Rule 171(2).

General remarks concerning Rule 170
The possible sanction for a person disrupting the proceeding is the physical exclusion from the courtroom (a) or the complete interdiction of attending the proceedings in case of repeated misconduct (b). The wording “removal from the courtroom” and “attending the proceedings” suggests, that the sanctioned person actually has to be in the courtroom, when disrupting the proceedings.
   Because the sanction for disrupting the proceedings is the removal of the disrupting person from the courtroom, it follows, that the disruption itself is of a kind, that it can be stopped through the removal. A wider interpretation of disruption of proceedings, that would not only include factual interruption but also obstructions, as delaying the procedure of the court, can thus not be included in Rule 170 [Triffterer/Burchard, 2016, p. 1760-1774, para. 21].
   Additionally, Rule 170 requires a warning prior to a sanction and hence, the misconducting person has to be aware of its disruptive behaviour [Triffterer/Burchard, 2016, p. 1760-1774, para. 25].

Cross-reference:
Articles 63(2), 70 and 71
Rule 171

Author:
Wenke Brückner, Julia Dornbusch

Updated: 
13 March 2017

[334] Having regard to article 63, paragraph 2, the Presiding Judge of the Chamber dealing with the matter may, after giving a warning:

(a) Order a person disrupting the proceedings of the Court to leave or be removed from the courtroom; or,

(b) In case of repeated misconduct, order the interdiction of that person from attending the proceedings.
Generally, every person can commit misconduct, as Rule 170 does not require a specific person. However, if the misconduct in question consists in the disruption of the proceedings by the accused, the removal from the courtroom or interdiction from attending the proceeding must be in conformity with article 63, paragraph 2 of the Statute, which reflects the general prohibition of trials in absentia. According to this provision an accused that has been removed must be enabled to follow the proceeding from outside the courtroom. Due to these special guarantees protecting the accused, it is open to question, whether the margin of appreciation of the Presiding Judge deciding on the removal is narrower when the accused is the person sanctioned.
   While, Rule 170 requires a repeated disruption only for an interdiction and not for a removal, Article 63(2) of the Statute provides the possibility to order the removal of the accused (only) in case of continuing disruption. Furthermore, Article 63(2) stipulates that the removal of the accused is a measure of last resort. The Presiding Judge must take the human rights implication in account when deciding on the removal of the accused see Elberling, 2012, p. 127. Therefore, the discretionary powers seem narrower when the accused is concerned than in case of removal of other persons disrupting the proceedings.
   Article 63(2) ICC-Statute deals only with the removal of the accused when the misconduct in question consists in the disruption of the proceedings. It remains unclear whether the special guarantees of the accused must be taken into account when the interdiction from attending the proceedings follows from a deliberate refusal to comply with an oral or written direction of the Court. Rule 171 dealing with sanctions for this form of misconduct makes no reference to Article 63(2) of the Statute. It therefore, seems that the interdiction from attending the proceeding under Rule 171 is an exception from the general prohibition to be tried in absentia.
   Such an exception might be justified as Rule 171 is only applicable to misconduct of a more serious nature and a hearing must be conducted before the sanction can be imposed. Furthermore, the compliance with court orders is essential to guarantee the effective administration of justice.

Cross-reference:
Articles 63
Rule 171

Doctrine:
1. Elberling, Björn, The defendant in international criminal proceedings: between law and historiography, Hart Publishing, Oxford/Portland/Orè 2012, p. 127-130.
2. Håkan Friman, “Offences and Misconduct against the Court”, in Roy S. Lee (Ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, New York, 2001, p. 605-622.
3. Otto Triffterer/Christoph Burchard, “Article 71 Sanctions for misconduct before the Court” in Otto Triffterer/Kai Ambos (Eds.), Rome Statute of the International Criminal Court, A Commentary, Beck, München 2016, 3rd edition, p. 1760-1774, para. 1-33.
 
Author:
Wenke Brückner, Julia Dornbusch

Updated: 
13 March 2017

[335] General remarks
The Court may give oral and written directions, which have to be concrete. Together with the direction it has to give a warning, that a refusal might be sanctioned [Triffterer/Burchard, 2016, p. 1760-1774, para. 22].
  The literal interpretation of Article 71 of the Statute (“persons before it”) according to which the misconduct must take place in the courtroom is somehow at odds with Rule 171, which does not contain such a requirement. Indeed, the scope of application could be rather narrow if the conduct ordered by the Court would only be one that takes place in the courtroom. Hence, a broader interpretation of Article 71 ICC-Statute seems reasonable in situations of refusals to comply with a direction by the Court: Although, the order of the Court necessarily takes place in the courtroom and is linked to the proceedings in question, the disobeying misconduct to that order might happen elsewhere, if the ordered conduct itself was actually not limited to actions in the courtroom.

Cross-reference:
Article 71

Author:
Wenke Brückner, Julia Dornbusch

Updated: 
13 March 2017

[336] 1. When the misconduct consists of deliberate refusal to comply with an oral or written direction by the Court, not covered by rule 170, and that direction is accompanied by a warning of sanctions in case of breach, the Presiding Judge of the Chamber dealing with the matter may order the interdiction of that person from the proceedings for a period not exceeding 30 days or, if the misconduct is of a more serious nature, impose a fine.
The imposition of a fine in Rule 171(1) is only possible if the misconduct is of a more serious nature and cannot be dealt with by a simple exclusion from the court room [Triffterer/Burchard, 2016, p. 1760-1774, para. 28]. The interdiction of attending the proceedings is hence the less serious measure, although imposing a fine is in the power of the Presiding Judge who does not have to seek the advice of the Presidency.

Author:
Wenke Brückner, Julia Dornbusch

Updated: 
13 March 2017

[337] 2. If the person committing misconduct as described in sub-rule 1 is an official of the Court, or a defence counsel, or a legal representative of victims, the Presiding Judge of the Chamber dealing with the matter may also order the interdiction of that person from exercising his or her functions before the Court for a period not exceeding 30 Days.
While the wording of Article 71 of the Statute suggests that the Court – despite ordering the temporary or permanent removal and impose a fine – has a non-exhaustive catalogue of ‘similar measures’ at its disposal to sanction misconduct before the Court, the Rules of Procedure and Evidence only provide for the possibility to ban an official of the Court, a defence counsel, or a legal representative of victims from exercising their functions before the Court in Rule 171(2). This paragraph only applies to the persons explicitly mentioned, hence not to the accused, witnesses or the audience.

Cross-reference:
Article 71

Author:
Wenke Brückner, Julia Dornbusch

Updated: 
13 March 2017

[338] 3. If the Presiding Judge in cases under sub-rules 1 and 2 considers that a longer period of interdiction is appropriate, the Presiding Judge shall refer the matter to the Presidency, which may hold a hearing to determine whether to order a longer or permanent period of interdiction.
In case of ordering the interdiction of attending the proceedings for a period longer than 30 days, the matter has to be decided by the Presidency and not only the Presiding Judge.

Author:
Wenke Brückner, Julia Dornbusch

Updated: 
13 March 2017

[339] 5. The person concerned shall be given an opportunity to be heard before a sanction for misconduct, as described in this rule, is imposed.
In contrast to sanctions under Rule 170, sanctions for refusing to comply with a court order under Rule 171 can only be imposed after the person concerned had been heard. While certain scholars suggest that the person sanctioned always shall be given opportunity to be heard irrespectively of the form of misconduct Triffterer/Burchard, 2016, p. 1760-1774, para. 32, a literal interpretation of Rule 170 and 171 suggests otherwise.

Cross-reference:
Article 70 and 71

Doctrine:
Otto Triffterer/Christoph Burchard, “Article 71 Sanctions for misconduct before the Court” in Otto Triffterer/Kai Ambos (Eds.), Rome Statute of the International Criminal Court, A Commentary, Beck, München 2016, 3rd edition, p. 1760-1774, para. 1-33

Author:
Wenke Brückner, Julia Dornbusch

Updated: 
13 March 2017

[340] If conduct covered by article 71 also constitutes one of the offences defined in article 70, the Court shall proceed in accordance with article 70 and rules 162 to 169.
Rule 172 emphasizes the Statutes differentiation between the criminal measures to sanction certain misconduct, which constitutes an offence under Article 70 of the Statute and non-criminal or regulatory measures to sanction the disruption of proceedings or the non-compliance with court orders according to Article 71 and Rule 170-171. If the misconduct constitutes an offence a separate criminal proceeding has to be conducted in accordance with Rules 162-169.

Cross-reference:
Article 70 and 71
Rules 162-169

Author:
Wenke Brückner, Julia Dornbusch

Updated: 
13 March 2017