ICC - Manual of Ratification and Implementation

International
Criminal Court
Manual for the Ratification

and Implementation of the
Rome Statute
Second Edition
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Vancouver, March 2003

Notes on the Contributors
NOTES ON THE CONTRIBUTORS

The International Centre for Criminal Law Reform and Criminal Justice Policy (ICCLR)
is based in Vancouver, Canada and was founded in 1991. ICCLR conducts research and policy analysis,
undertakes the development and delivery of technical assistance programs and provides public
information and consultation services relating to the fields of international criminal law, criminal justice
policy and crime prevention. In its role as an affiliated institute of the United Nations, the Centre
participates in the annual meetings of the United Nations Commission on Crime Prevention and
Criminal Justice, and the meeting of the institutes comprising the United Nations Crime Prevention and
Criminal Justice Programme network. The Centre has also established numerous cooperative working
relationships with other international bodies, institutes and associations.
ICCLR has been, and continues to be, committed to supporting the establishment of a permanent,
effective and just International Criminal Court. ICCLR began its work on international criminal court
issues within a short time of its inception. By 1993, it had assisted the UN Security Council and UN
Legal Affairs Office by holding a large meeting of experts in Vancouver and made many recommenda-
tions that ended up in the ad hoc Tribunal for the Former Yugoslavia’s statute, as noted in the May 1993
Secretary General’s Report. Renewed efforts to establish a permanent ICC coincided with the creation
of this ad hoc tribunal and the Rwanda Tribunal. In the ensuing years, ICCLR continued to expand its
research and program activities dealing with international criminal court issues, and has since written
numerous research papers on the topic, participated in many conferences, including the Diplomatic
Conference in Rome and subsequent Preparatory Commission Meetings, Assembly of States Parties
meetings, hosted prominent guest lecturers who spoke on the topic, and provided public lectures.
Among the numerous ICC-related reports and guides developed by ICCLR, which includes this
Manual (the first edition is available in Arabic, Chinese, French, Portuguese, Russian, Spanish, and
part-translated into Georgian), is a Checklist of Implementation Considerations and Examples under
the Rome Statute (also available in Russian); the Rules of Procedure and Evidence – Implementation
Considerations; the Agreement on Privileges and Immunities of the International Criminal Court –
Implementation Considerations; and the Guide for National Criminal Justice Personnel to Cooperating
with Investigations and Prosecutions Involving the International Criminal Court. Since August 2000,
ICCLR has been involved in organising workshops to promote the expeditious establishment of the ICC
and to assist countries in the development of legislation and administrative procedures to support the
ICC. ICCLR provided five regional workshops with support from the Canadian International
Development Agency (CIDA), the Department of Justice, and the Department of Foreign Affairs and
International Trade and most recently provided country-specific ICC technical assistance to numerous
countries with funding from the Department of Foreign Affairs and International Trade.
Rights & Democracy (International Centre for Human Rights and Democratic Devel-
opment) is a non-partisan organization with an international mandate. It was created by Canada’s
Parliament in 1988 to encourage and support the universal values of human rights and the promotion
of democratic institutions and practices around the world. Rights & Democracy works with individu-
als, organizations and governments in Canada and abroad to promote the human and democratic
rights defined in the United Nations’ International Bill of Human Rights. It enjoys partnerships with
human rights, indigenous peoples’ and women’s rights groups, as well as democratic movements and
governments around the world and is therefore uniquely placed to facilitate dialogue between
government officials and non-governmental organizations in Canada and abroad. It initiates and
supports projects that advocate the protection of human rights and the strengthening of democratic
development, principally in developing countries, and facilitates the capacity of its partners to do the
same.
Page v
Notes on the Contributors
Rights & Democracy has been at the forefront of the international movement for the creation of a strong
and effective International Criminal Court. The creation of an effective ICC is an integral part of Rights
& Democracy’s strategy to combat impunity. This effort is part of a continuum which began in the
early 1990’s with the Vienna World Conference on Human Rights (1993), the organization of an
International Popular Tribunal on Haïti (September 1993) and an international conference in Ouaga-
dougou, Burkina Faso (March 1996). Rights & Democracy’s campaign against impunity emphasized
the importance of knowing the truth about the past, the necessity of fair trials and effective prosecution
and redress for victims of atrocious crimes, and the prerequisite of strengthening the Rule of Law for
the sake of punishment and deterrence of serious large-scale violations of human rights. Having
encouraged resolutions in favour of the ICC at the Francophonie’s Hanoï (1997) and Moncton (1999)
summits and the Commonwealth Heads of Government meeting in Edinburgh (1997), Rights &
Democracy also sought to encourage an active partnership between human rights NGOs and those
“like-minded” governments that were favourable to a strong, independent and effective ICC. It hosted,
in March 1998, a meeting of experts to devise pertinent lobbying strategies in support of the creation of
the ICC.
Moreover, Rights & Democracy contributed to the debate on the structure and mandate of the ICC,
participating in all six Preparatory Committees since 1996 and in the 1998 Rome Diplomatic Conference
as well as facilitating the participation of some Southern partners including, women’s rights activists in
the Preparatory Committees. It has also been engaged in Canadian non-governmental public
awareness initiatives through its participation in the Canadian NGO Coalition for an ICC and the NGO
Coalition for an International Criminal Court (CICC). It is an active member of the Steering Committee
of the CICC. Rights & Democracy was active during all 10 ICC Preparatory Commission sessions and
during the first meeting of the ICC Assembly of States Parties. Rights & Democracy has also closely
followed the work of the International Criminal Tribunals for Rwanda and the former-Yugoslavia, with
a focus on the witness protection programme and preparation of amicus curiae briefs. Lastly, it worked
with the ICCLR in the organisation of five regional workshops on ratification and implementation of
the Rome Statute.
Page vi
Acknowledgements
ACKNOWLEDGEMENTS
This second edition of the Manual builds on the original Manual of May 2000. The following team of
researchers worked on the updated second edition:
Joanne Lee, Research Associate at ICCLR,

Eileen Skinnider, Project Manager of the ICC Project at ICCLR,
Daniel Préfontaine, Senior Consultant at ICCLR,
Nancy-Louise Hustins, Researcher, ICCLR
Monique Trépanier, Researcher and Project Coordinator, ICCLR
Valerie Oosterveld, Legal Officer, Department of Foreign Affairs and International Trade, Canada
Mike Perry, Legal Officer, Department of Foreign Affairs and International Trade, Canada
Darryl Robinson, Legal Officer, Department of Foreign Affairs and International Trade, Canada
Antonio Jose Almeida, Senior Programme Assistant, Rights & Democracy
The first edition of the Manual was written by a team of researchers and writers at the International Centre
for Criminal Law Reform and Criminal Justice Policy (ICCLR) in Vancouver, and Rights and Democracy
(new short version of the International Centre for Human Rights and Democratic Development (ICHRDD))
in Montreal. The contributors to the original manual, in particular, were Daniel Préfontaine, then Executive
Director of ICCLR, Warren Allmand, then President of Rights & Democracy, Joanne Lee, Associate at ICCLR,
Alexandre Morin, Researcher at Rights & Democracy, and Monique Trépanier, Program Co-ordinator at
ICCLR. Valuable contributions were also made by Valerie Oosterveld of the Department of Foreign Affairs
and International Trade Canada (DFAIT), Christian Champigny, Research Assistant at Rights & Democracy
and Bill Hartzog, independent consultant. The International Criminal Defence Attorneys Association
(ICDAA) provided input on the assistance of defence counsel.
ICCLR wishes to express its appreciation to the Department of Foreign Affairs and International Trade,
Government of Canada for its financial support of the work in updating the second edition of the Manual.
Original funding for the first edition was generously provided by the Canadian government through the
Department of Foreign Affairs and International Trade and Department of Justice Canada.
In developing the first edition of this Manual, the contributors took into account the views expressed and the
information provided by the following experts who participated in teleconference meetings, provided
feedback and/or attended the ICC Manual Review Meeting held in New York during the recent March 2000
Preparatory Committee Meetings for an International Criminal Court:
Ms. Barbara Bedont, Women’s Caucus for Gender Justice

Mr. Bruce Broomhall, Senior Co-ordinator, Lawyers Committee for Human Rights
Prof. Peter Burns, Faculty of Law, The University of British Columbia
Mr. David Donat-Cattin, Programme Officer, Parliamentarians for Global Action
Col. Kim Carter, Director Military Prosecutions, Dept. of National Defence Canada
Ms. Mariacarmen Colitti, Legal Advisor, No Peace Without Justice
Ms. Patricia Dunberry, Dept. of Justice Canada, Criminal Law Policy Section
Mr. Justice Håkan Friman, Associate Judge of Appeal, Ministry of Justice Sweden
Ms. Élise Groulx, International Criminal Defence Attorneys Association
Mr. Christopher Hall, Amnesty International
Mr. Scott Johnson, International Criminal Defence Attorneys Association
Mr. Alan Kessel, Foreign Affairs and International Trade Canada
Prof. Flavia Lattanzi, Universita degli Studi di Teramo, Italy
Mr. Sivu Maqungo, Principal State Law Advisor, Min. of Foreign Affairs, South Africa
Prof. Daniel D. Ntanda Nsereko, University of Botswana, Gaborone, Botswana
Mr. Donald K Piragoff, General Counsel, Dept. of Justice Canada
Ms. Kimberley Prost, Senior Counsel, Dept. of Justice Canada
Page vii
Acknowledgements
Ms. Gaile Ann Ramoutar, Permanent Mission of Trinidad and Tobago to the UN
Mr. Darryl Robinson, Foreign Affairs and International Trade Canada
Ms. Indira Rosenthal, Human Rights Watch
Mr. Yvan Roy, Dept. of Justice Canada
Prof. William A. Schabas, National University of Ireland, Galway
Ms. Jennifer Schense, Legal Adviser, Coalition for the International Criminal Court
Mr. Lars van Troost, Amnesty International
Mr. Victor Tchatchouwo, Permanent Mission of the Rep. of Cameroon to the UN
Mr. Steffen Wirth, Ph.D. Candidate, Germany
Mr. Pierre Roger Zemele, International Club for Peace Research
The analysis and recommendations in this Manual do not necessarily reflect the views of any of these
individuals or their organisations.
Page viii
Foreword
FOREWORD TO THE SECOND EDITION

Since the publication of the first edition of this Manual in May 2000, a momentous event took
place with the coming into force of the Rome Statute of the International Criminal Court on
1 July 2002. With 139 States signing the Rome Statute and more than 80 States ratifying to
date, the international community has affirmed its intolerance of those who commit with
impunity the most serious crimes of concern to the international community as a whole. The
enthusiasm and momentum for the effective functioning of the International Criminal Court
must continue to grow.
The first edition of the Manual has been a huge success, widely disseminated and strongly in
demand by government and nongovernmental actors. We are pleased to report that it has
been translated into every UN language as well as Portuguese and Georgian.
The development of strong national implementing legislation is fundamental for the Court to
realise its full potential. Since the first edition of the manual, a number of States have drafted
and/or enacted implementation legislation dealing with complementarity and cooperation
issues. This second edition to the Manual seeks to provide fuller details on how States have
implemented their obligations under the Rome Statute in their domestic systems.
I would like to acknowledge the valuable contribution of Rights and Democracy (Montreal) to
the preparation of the first edition of the Manual and also their assistance with the revision to
this second edition.
We trust that publication of the second edition of this Manual continues to contribute to the
momentum of ratifications as well as to promote the development of effective ICC implement-
ing legislation in States that have ratified and signed the Rome Statute.
Frances Gordon
The International Centre for Criminal
Law Reform and
Criminal Justice Policy
Page ix
Table of Contents
TABLE OF CONTENTS
NOTES ON THE CONTRIBUTORS..................................................................................................V
ACKNOWLEDGEMENTS ............................................................................................................... VII
FOREWORD TO THE SECOND EDITION................................................................................... IX
TABLE OF CONTENTS...................................................................................................................... XI
GUIDE TO ABBREVIATIONS ........................................................................................................ XV
EXECUTIVE SUMMARY .................................................................................................................XIX
1. INTRODUCTION...........................................................................................................................1
1.1 Overview of the International Criminal Court...................................................................1
The place of the ICC in the international legal system ......................................................2
How the ICC will function ................................................................................................3
The personnel of the Court.................................................................................................3
Triggering an investigation ...............................................................................................4
General principles of criminal law.....................................................................................5
How a case is brought to trial ............................................................................................6
The right to a fair trial .......................................................................................................7
Other important features of the Court...............................................................................8
1.2 Purpose and Use of Manual ..................................................................................................9
2. GENERAL ISSUES OF IMPLEMENTATION.........................................................................10
Possible approaches to implementation............................................................................11
2.1 Ratification First Versus Implementation First.................................................................11
2.2 Approaches to Implementation ..........................................................................................12
A single piece of legislation..............................................................................................13
Amending all relevant pieces of legislation separately ....................................................15
Hybrid approach ..............................................................................................................15
Dissemination of the requirements of the Statute............................................................16
2.3 Introduction of New Procedures ........................................................................................16
2.4 Federal Issues ........................................................................................................................17
2.5 Compatibility With Different Legal Systems....................................................................17
3. SPECIFIC ISSUES OF IMPLEMENTATION ..........................................................................18
3.1 Privileges and Immunities of ICC Personnel....................................................................19
3.2 Offences Against the Administration of Justice of the ICC ............................................21
3.3 Procedures Where the ICC Wishes to Investigate the Same Matter as a State
Party........................................................................................................................................27
3.4 Important Provisions in the Statute Relating to State Co-operation .............................30
Requests for co-operation and assistance .........................................................................33
Postponement of execution of requests ............................................................................36
Costs of executing requests ..............................................................................................38
Designation of an appropriate channel for receiving requests.........................................38
Ensuring the confidentiality of requests ..........................................................................40
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Table of Contents
3.5 Possible Constitutional Issues Relating to Co-operation with the ICC.........................41

Absence of immunity for Heads of State..........................................................................44
No statute of limitations ..................................................................................................48
The surrender by a State of its own nationals .................................................................49
The sentence of life imprisonment....................................................................................51
The right to trial by jury..................................................................................................53
Powers of investigation of the Prosecutor on the territory of a State Party ....................54
Complementary jurisdiction of the ICC...........................................................................55
Ne bis in idem ..................................................................................................................56
3.6 Responding to a Request From the ICC to Arrest a Person............................................57
Overview of arrest procedures .........................................................................................57
Issue and execution of warrants of arrest ........................................................................58
Rights of the person .........................................................................................................62
Hearing before a competent judicial authority ................................................................65
Interim release..................................................................................................................67
Issuing of a summons ......................................................................................................69
3.7 Surrendering a Person to the ICC.......................................................................................70
“Distinct nature” of the ICC ...........................................................................................70
Postponement of requests for surrender and ne bis in idem ............................................73
Competing requests..........................................................................................................76
Conflicts with other international obligations.................................................................78
3.8 Allowing Suspects to be Transported Across State Territory En Route to the
ICC 81
3.9 Collecting and Preserving Evidence ..................................................................................82
Admissibility of evidence before the ICC .........................................................................82
Requests for assistance with evidence..............................................................................85
Testimonial evidence and other evidence concerning specific persons ............................87
Items of evidence ..............................................................................................................95
3.10 Protection of National Security Information.....................................................................98
3.11 Protection of Third-Party Information...............................................................................99
3.12 Enforcement of Fines, Forfeiture Orders, and Reparations Orders.............................100
3.13 Enforcement of Sentences of Imprisonment ...................................................................103
Accepting sentenced persons .........................................................................................104
Sentences of Imprisonment ............................................................................................105
Review by the Court for reduction of sentences.............................................................106
4. THE COMPLEMENTARY JURISDICTION OF THE ICC .................................................109
4.1 The “Principle of Complementarity” of the ICC............................................................109
Exceptions to the principle.............................................................................................109
Ne bis in idem ................................................................................................................110
4.2 The Jurisdiction of the ICC ................................................................................................112
4.3 Crimes listed under the Statute ........................................................................................114
Genocide, Crimes Against Humanity and War Crimes ................................................115
4.4 Grounds for Excluding Criminal Responsibility............................................................123
The defence of superior orders........................................................................................125
4.5 Individual Criminal Responsibility and Inchoate Offences Provided Under the
Statute ...................................................................................................................................126
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Table of Contents
4.6 Responsibility of Commanders and Other Superiors....................................................128

4.7 Rules of Evidence and National Criminal Justice Proceedings....................................130
4.8 Military Tribunals ...............................................................................................................131
The Special Character of Military Proceedings .............................................................131
Military Justice and Practice .........................................................................................132
5. RELATIONSHIP BETWEEN THE ICC AND STATES .......................................................133
5.1 Broader State Obligations and Rights of States Parties .................................................133
Treaty Requirements......................................................................................................133
Financing of the Court...................................................................................................135
Allowing the ICC to sit in a State’s territory ................................................................136
Nominating judges and providing other personnel to the Court ..................................138
Other rights of States Parties ........................................................................................140
5.2 Developments since Rome.................................................................................................141
Entry-into-Force ............................................................................................................141
Assembly of States Parties .............................................................................................141
Elements of Crimes ........................................................................................................143
Rules of Procedure and Evidence...................................................................................143
Other Documents ..........................................................................................................144
Crime of Aggression ......................................................................................................144
Defence Counsel.............................................................................................................146
Review of the Statute .....................................................................................................147
6. SELECT RESOURCES................................................................................................................151
6.1 Select resources on the ICC ...............................................................................................151
6.2 International Criminal Court Implementing Legislation..............................................151
6.3 Select Resources on ICC Implementation .......................................................................154
APPENDIX I: CHECKLIST OF IMPLEMENTATION CONSIDERATIONS AND
EXAMPLES RELATING TO THE ROME STATUTE AND THE RULES
OF PROCEDURE & EVIDENCE ............................................................................155
Page xiii
Guide to Abbreviations
GUIDE TO ABBREVIATIONS
AR - Proyecto de Ley Sobre Crímenes de la Corte Penal Internacional (Two drafts have
been made available to date), 2002, Argentina
AU – International Criminal Court Act 2002, Act No. 41, 2002, 27 June 2002, Austra-
lia (addresses co-operation issues)
AU(C) - International Criminal Court (Consequential Amendments) Act 2001, Act No. 42,
2002, 27 June 2002, Australia (addresses complementarity issues)
AZ - Criminal Code of the Republic of Azerbaijan, adopted 30 December 1999, entered

into force 1 September 2000 (unofficial translation)
AZ(E) - Law of the Republic of Azerbaijan on Extradition of Criminals, adopted 15 May

2001, entered into force 19 June 2001 (unofficial translation)
AZ(L) - Law of the Republic of Azerbaijan on Legal Assistance in Criminal Matters,

adopted June 2001 (unofficial translation)
BE - Belgian Provisional Draft Law on Co-operation with the ICC and the International
Criminal Tribunals (French only)
BR - Draft Bill on the International Criminal Court, available in English and Portu-
guese (at http://mj.gov.br/sal/tpi/ ), Brazil
CA - Crimes Against Humanity and War Crimes Act, S.C. 2000, c. C-24, assented to
29 June 2000, entered into force 23 October 2000, Canada
CA(E) - Extradition Act, S.C. 1999, c. C-18, assented to 17 June 1999, amendments con-
cerning the International Criminal Court entered into force 23 October 2000,
Canada
CA(L) - Mutual Legal Assistance in Criminal Matters Act, R.S. 1985, c. 30 (4th Supp.),
1988, c. 37 assented to 28 July 1988, amendments concerning the Interna-
tional Criminal Court entered into force 23 October 2000, Canada
DC - Implementation of the Statute of the International Criminal Court (Draft), Democ-

ratic Republic of the Congo (available in French and English)
ES - Rome Statute of the International Criminal Court Ratification Act (Draft), Estonia
(unofficial translation)
ES(P) - Amendment Act to the Code of Criminal Procedure (Draft), Estonia (unofficial
translation)
ES(C) - Special Part, Penal Code, Estonia (unofficial translation)
Page xv
FI - Act on the implementation of the provisions of a legislative nature of the Rome Stat-
ute of the International Criminal Court and on the application of the Statute, No.
1284/2000, issued in Helsinki 28 December 2000, Finland (unofficial transla-
tion)
FI(C) - The Penal Code of Finland, No. 39/1889 (unofficial translation)
FI(A) - Act on the amendment of the Penal Code, No. 1285/2000, issued in Helsinki 28
December 2000, Finland (unofficial translation)
FI(D) - Decree on the application of Chapter 1, section 7 of the Penal Code (No. 627/1996
as amended by Decrees 353/1997, 118/1999, 537/2000 and 370/2001), 11
September 2001, Finland (unofficial translation)
FI(L) - International Legal Assistance in Criminal Matters Act, No. 4/1994, 5 January
1994, Finland (unofficial translation)
GE - Act on the Rome Statute of the International Criminal Court of 17 July 1998 (ICC
Statute Act), entered into force 4 December 2000, Germany (unofficial transla-
tion)
GE(C) Act to Introduce the Code of Crimes against International Criminal Law, adopted
26 June 2002, Germany
GE(E) - An Act to Amend the Basic Law (Article 16), entered into force 29 November
2000, Germany (unofficial translation)
NZ - International Crimes and International Criminal Court Act 2000, No. 26/2000,
assented to 6 September 2000, most sections entered into force 1 October
2000, New Zealand
NO - Act No. 65 of 15 June 2001 relating to the implementation of the Statute of the In-
ternational Criminal Court of 17 July 1998 (the Rome Statute) in Norwegian Law
PO - Penal Code of 6 June 1997, Poland (nb. further amendments are being consid-
ered) (unofficial translation)
SA - Implementation of the Rome Statute of the International Criminal Court Act, 2002,
No. 27 of 2002, adopted 18 July 2002, South Africa
SW - Federal Law on Cooperation with the International Criminal Court (CICCL) of 22

June 2001, Switzerland (unofficial translation)
UK - International Criminal Court Act 2001, Chapter 17, enacted 11 May 2001,
United Kingdom (note also the availability of Explanatory Notes for this Act)
Page xvi
UK(S) - International Criminal Court (Scotland) Bill, introduced April 2001, United
Kingdom, Scottish Parliament
UK(F) - The International Criminal Court Act 2001 (Enforcement of Fines, Forfeiture and
Reparation Orders) Regulations 2001, No. 2379/2001, entered into force 1 Au-
gust 2001, United Kingdom
UK(M) - The Magistrates’ Courts (International Criminal Court) (Forms) Rules 2001, No.
2600/2001 (L. 27), entered into force 1 September 2001, United Kingdom
UK(R) - The International Criminal Court Act 2001 (Elements of Crimes) Regulations 2001,
No. 2505/2001, entered into force 1 September 2001, United Kingdom
Page xvii
Executive Summary
EXECUTIVE SUMMARY
1. INTRODUCTION
1.1 Overview of the International Criminal Court
This section of the Manual provides an introduction to the main features of the Interna-
tional Criminal Court (ICC). It describes how the Statute for this Court was finalised in
Rome in July 1998 (Rome Statute), representing the culmination of 50 years of work to
create a permanent institution for trying those accused of the most serious crimes of
concern to the international community as a whole. The Statute came into force on July
1, 2002.
The Overview explains that the ICC will be complementary to national jurisdictions
and that it has the potential to deter and punish genocide, crimes against humanity,
war crimes, and aggression. However, the ICC will only exercise it jurisdiction over
genocide, crimes against humanity and war crimes committed subsequent to July 1,
2002, and the Court will only have jurisdiction over the crime of aggression when an
acceptable definition has been finalised by States Parties.
The Court is managed by an Assembly of States Parties, representing all States Parties
that have signed the Rome Statute. States that have signed the Final Act of the Rome
Conference will have observer status in the Assembly.
The Assembly of States Parties has elected the judges, will nominate the Prosecutor,
and the Deputy Prosecutors, and will be responsible for their removal if serious mis-
conduct or breach of duty is established. The selection process for judges and other
ICC personnel will ensure that the principal legal systems of the world, as well as all
the major geographical regions of the world, are equitably represented. The Court has
a fair representation of male and female judges, and reflects the need for persons with
relevant expertise.
The Overview then describes how an investigation by the Prosecutor is initiated, and
how a matter proceeds to trial. It highlights some of the special features of the Court,
such as the potential for prosecution of sexual and gender-based violence, and the spe-
cial provisions for protection of victims. The Court will also safeguard the rights of
accused persons, in accordance with international standards of due process. It will
hold fair and public trials, honouring widely-accepted procedural guarantees such as
the right to an appeal and the right not to be tried twice for the same crime.
1.2 Purpose of the Manual

The Manual has been developed to assist interested States with the ratification and im-
plementation of the Rome Statute. The ICC will rely on the cooperation and assistance
of States Parties, in order to realise its potential, so States Parties need to ensure that
they are able to provide this assistance. The various sections of the Manual highlight
the obligations of States Parties to the Statute, and the features of the Statute that may
Page xix
Executive Summary
affect the approach taken by States to ratification and implementation. It is recognized

that the views and the statements in the Manual are not intended to be the last word on
all requirements of the Rome Statute for implementation by States.
2. GENERAL ISSUES OF IMPLEMENTATION

This section discusses the following points:
why it may be necessary to adopt national legislative and procedural measures;

if it is possible to ratify before changing national laws;
the difference between monist and dualist States and their approaches to ratification
and implementation of the Statute;
whether it is more appropriate to create only one implementing law or to create
several;
federal issues;
compatibility with different legal systems; and
how to deal with a potential constitutional problem
3. SPECIFIC ISSUES OF IMPLEMENTATION

This section presents in detail the obligations of States Parties under the Rome Statute
with respect to ICC criminal investigations and prosecutions. It also suggests practical
measures for implementing these obligations and for assisting the Court in other ways.
The main obligations to be implemented are described in:
3.1 Protecting the privileges and immunities of the personnel of the Court;
3.2 Creating offences against the administration of justice of the ICC;
3.6 & 3.7 Executing requests for arrest and surrender of persons to the ICC;
3.9 Collecting and preserving evidence for the ICC;
3.12 Enforcing fines, forfeiture and reparations orders;
Section 3.10 describes how States may protect their national security information when
assisting the Court, in accordance with article 72 of the Statute.
The following issues are also discussed in this section of the Manual:
3.3 Procedures where the ICC wishes to investigate the same matter as a State Party;
3.4 Important provisions in the Statute relating to State co-operation, such as:
the obligation to “co-operate fully”;
postponement of execution of requests;
costs of executing requests;
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Executive Summary
designation of an “appropriate channel” for receiving requests; and

ensuring the confidentiality of requests.
3.5 Possible constitutional issues relating to surrender of a person to the ICC, such as:
the absence of immunity for Heads of State,
the non-applicability of a statute of limitations to the crimes listed under the Statute,
surrendering nationals to the ICC,
life imprisonment, and
the right to trial by jury;
3.8 Allowing suspects to be transported across State territory en route to the ICC;
3.11 Protection of third party information; and
3.13 The option for States to enforce sentences of imprisonment, including review by
the Court for reduction of sentences and other issues pertaining to the acceptance of
sentenced persons.
4. COMPLEMENTARITY OF THE JURISDICTION OF THE ICC

This section addresses the practical implications of the complementarity principle pro-
vided for in the Statute, which gives States priority over the ICC to prosecute crimes
that are within the jurisdiction of the Court. It describes the Statute’s carefully crafted
provisions on ne bis in idem, which ensure that a person will not be prosecuted by the
ICC for any conduct which formed the basis of crimes for which the person has already
been convicted or acquitted by the Court, or by another court. The only exception to
this is provided in article 20, where the proceedings in another court “were for the pur-
pose of shielding the person concerned from criminal responsibility for crimes within
the jurisdiction of the Court”, or “otherwise were not conducted independently or im-
partially 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”.
This section then discusses how States may need to review the following, to ensure that
they can effectively prosecute crimes within the jurisdiction of the Court should they
wish to: definitions of crimes, grounds of defence, individual criminal responsibility
and inchoate offences, command responsibility, and the rules of procedure and evi-
dence in national criminal justice proceedings.
5. RELATIONSHIP BETWEEN THE COURT AND STATES

5.1 Broader State Obligations and Rights of States Parties
This section provides guidance on:
treaty requirements of the Rome Statute;
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Executive Summary
financing of the Court;

allowing the ICC to sit in a State’s territory;
nomination of personnel such as judges for the Court; and
some of the other rights of States Parties, such as referring situations to the Court
for investigations;
5.2 Developments since Rome

The last section of the Manual deals with:
the Assembly of States Parties;

the Rules of Procedure and Evidence, the Elements of Crimes and other documents;
the possibility of amendments to the Statute;
the crime of aggression (which is not yet defined by the Statute); and
assistance of defence counsel.
Page xxii
Chapter 1: Introduction
1. INTRODUCTION
1.1 Overview of the International Criminal Court
The attainment, in July 1998, of a Statute for a permanent International Criminal Court
(ICC) with the power to investigate and prosecute those who commit genocide, crimes
against humanity and war crimes, represents a significant achievement for the world
community. Of the 160 or so States that assembled in Rome for the United Nations
conference that finalised and adopted the Statute for the ICC (Rome Statute), 120 voted
in support of the Statute’s final text. Subsequently, 139 States signed the Statute, and
more than 80 States have become Parties to the Statute, from every region and legal sys-
tem of the world. The creation of the Court therefore represents the realisation of a
strong consensus among States – a remarkable feat, considering the various interests
and legal systems that contributed to the process, as well as the fact that the General
Assembly had first addressed this question some 50 years ago. The ICC will not only
be a principal means of combating impunity, but will also contribute to the preserva-
tion, restoration and maintenance of international peace and security.
On 1 July 2002, the Rome Statute of the ICC entered into force, having achieved the 60
ratifications or accessions required under the Statute (article 126). This allowed for the
immediate establishment of the Court’s facilities at The Hague in The Netherlands, the
appointment of a team of experts to start setting up the administrative functions of the
Court, and the commencement of the Court’s criminal jurisdiction. On 11 March 2003,
the first 18 judges of the Court were sworn in, and the remaining key personnel are ex-
pected to be appointed soon thereafter, to enable the ICC to commence its first
investigations in the latter half of 2003. The number of States Parties to the Rome Stat-
ute continues to grow steadily, which means that war criminals and the like will soon
have nowhere to hide from international justice.
The Assembly of States Parties for the ICC met for the first time from 3-10 September
2002 and adopted a range of legal documents that were prepared by the Preparatory
Commission for the Establishment of an ICC, established in Rome in 1998. These
documents are intended to supplement the provisions of the Rome Statute, and in-
clude:
Rules of Procedure and Evidence;

Elements of Crimes;
Financial Regulations and Rules;
The Rules of Procedure of the Assembly of States Parties; and
An Agreement on the Privileges and Immunities of the International Criminal
Court.
More information on the ICC and the work of the Assembly of States Parties can be ob-
tained from the website of the ICC: http://www.icc-cpi.int/index.php and also at the
website of the Rome statute at http://un.org/lawicc/index.html.
Page 1
The place of the ICC in the international legal system

The ICC will fill a significant void in the current international legal system. It will have
jurisdiction over individuals, unlike the International Court of Justice which is con-
cerned with issues of State Responsibility. Furthermore, unlike tribunals that have
been established by the Security Council on an ad hoc basis, such as the International
Criminal Tribunals for the former Yugoslavia and for Rwanda (ICTY/R), the ICC will
be a permanent body, with a much broader mandate. Its jurisdiction will not be re-
stricted to dealing with crimes committed only in one specific conflict or by one specific
regime during one specific time period, and the Court should be able to act more
quickly after an atrocity has been committed anywhere in the world. However, the ICC
will only have jurisdiction over crimes committed after the Rome Statute entered into
force (article 11).
As a treaty-based institution, the ICC will have a unique relationship with the United
Nations system. Unlike the ICTY/R, the ICC is not a creation of the Security Council,
nor will it be managed by the UN General Assembly. Yet it will be based in the Hague
and will receive some financial support from the UN, particularly when the Security
Council refers matters to it for investigation (article 3, article 13, paragraph (b), and ar-
ticle 115, paragraph (b)). The proposed relationship between the ICC and the UN has
been detailed in a draft agreement that has been approved by the ICC Assembly of
States Parties, and is currently awaiting approval by the UN General Assembly (see
Draft Relationship Agreement between the Court and the United Nations).
The ICC Assembly of States Parties, comprising representatives from each State Party,
will be responsible for making decisions on such matters as the administration and
budget of the Court, as well as on future amendments to the Statute (article 112). The
expenses of the Court and of the Assembly of States Parties will be paid from the funds
of the Court, which will be provided by States Parties on an agreed scale of assessment,
as well as by the UN and any voluntary contributors (articles 114-117; see also ICC-
ASP/1/Res. 14: Scales of assessments for the apportionment of the expenses of the
International Criminal Court and ICC-ASP/1/Res.1 1: Relevant criteria for volun-
tary contributions to the International Criminal Court). Thus, States Parties to the
Rome Statute will have a significant role to play in the management of the ICC. If the
Court is to realise its potential, it must be aided by States to enforce the existing rules,
laws and norms that prohibit serious crimes of concern to the international community
as a whole.
However, the ICC is intended to complement, not be a substitute for national criminal
justice systems. This “principle of complementarity” ensures that the Court will only
intervene in cases where national courts are unable or unwilling to initiate or conduct
their own proceedings (these circumstances are carefully defined in the Statute, article
17, paragraph (1)). The Court will not therefore encroach on an individual State’s juris-
diction over crimes covered by the Statute.
Page 2
How the ICC will function

Article 5 lists the crimes that will be within the jurisdiction of the Court: genocide,
crimes against humanity, war crimes, and the crime of aggression. Article 6 provides
that the crime of genocide will be defined in the same way for the purposes of ICC
prosecutions as it is currently under article 2 of the Genocide Convention 1948. Both
crimes against humanity (article 7) and war crimes (article 8) have been carefully de-
fined in the Statute to incorporate crimes from different treaty and customary sources,
which 120 States at the Rome Conference agreed were “the most serious crimes of con-
cern to the international community as a whole” (article 5). The Court has jurisdiction
over all the crimes except aggression, now that the Statute has entered into force. With
respect to the crime of aggression, article 5, paragraph (2), article 121, and article 123
together provide that the Court will have jurisdiction over the crime of aggression
when a suitable definition is accepted by a two-thirds majority of all ICC States Parties,
at a Review Conference to be held seven years after the entry into force of the Statute.
The provision on the crime of aggression must also set out the conditions under which
the Court may exercise jurisdiction over this crime, which must be consistent with the
Charter of the United Nations.
The procedural provisions of the Rome Statute have been drafted to create an optimal
balance between the following priorities: (i) the need for an independent, apolitical,
representative international Court, which can function efficiently and effectively to
bring to justice those responsible for the most serious crimes of concern to the interna-
tional community as a whole; (ii) the right of States to take primary responsibility for
prosecuting such crimes if they are genuinely willing and able; (iii) the need to give vic-
tims of such crimes adequate redress and compensation; (iv) the need to protect the
rights of accused persons; and (v) the role of the Security Council in maintaining inter-
national peace and security, in accordance with its powers under Chapter VII of the
Charter of the United Nations. These considerations are all reflected in the functions
and powers of the Court, and its relationship with other entities, as set out under the
Statute.
The personnel of the Court

The ICC will be comprised of the following organs: the Presidency, the Pre-Trial Divi-
sion, the Trial Division, the Appeals Division, the Office of the Prosecutor, and the
Registry (article 34). The Assembly of States Parties elects all judges, by a two-thirds
majority of the States Parties present and voting, based upon nominations made by
States Parties (article 36, paragraph (6)). Every judge must be a national of a State Party,
and no two judges may be nationals of the same State (article 36, paragraph (4), sub-
paragraph (b) and article 36, paragraph (7)). The criteria for nominating judges is:
(i) high moral character, impartiality and integrity; (ii) possession of the qualifications
required in their respective States for appointment to the highest judicial offices; (iii) es-
tablished competence in criminal law and procedure, and the necessary relevant
experience, whether as judge, prosecutor, advocate or in other similar capacity, in
criminal proceedings, or established competence in relevant areas of international law
such as international humanitarian law and the law of human rights, and extensive ex-
Page 3
perience in a professional capacity which is of relevance to the judicial work of the

Court; and (iv) excellent knowledge of and fluency in at least one of the working lan-
guages of the Court, which are English and French (article 36, paragraph (3), and article
50, paragraph (2)). The selection process outlined in the Statute requires the Assembly
to take into account the need for judges who (i) represent the principal legal systems of
the world; (ii) represent an equitable geographical representation; (iii) comprise a fair
representation of female and male judges; and (iv) have legal expertise on specific is-
sues, such as violence against women and children (article 36, paragraph (8)).
Therefore the highest standards of competence and representativeness will be ensured
in the selection of the judges.
At the first resumed session of the first Assembly of States Parties meeting, held from
3-7 February 2003, the Assembly elected eighteen judges, based upon nominations
made by 43 States Parties. This first bench includes seven women, eleven men, and a
balanced number of elected candidates by region and legal system. After the election,
ballots were drawn to determine which of the elected judges will serve on the Court for
3 years, 6 years, or a maximum of nine years (article 36, paragraph (9)). The President
and First and Second Vice-Presidents of the Court were elected on 11 March 2003 by an
absolute majority of the judges and will have limited terms of appointment to these po-
sitions (article 38).
The Assembly of States Parties will also elect the Prosecutor and Deputy Prosecutors,
based on similar criteria to that for judges (article 42). The judges will elect the Registrar
(article 43, paragraph (4)), who will be responsible for establishing a special Victims
and Witnesses Unit within the Registry, which will employ staff with expertise in
trauma (article 43, paragraph (6)). The Registrar will also have responsibilities relating
to the rights of the defence (article 43, paragraph (1), rules 20 and 21, Rules of Proce-
dure and Evidence.)
The ICC judges, Prosecutor, Deputy Prosecutors and the Registrar will be independent
in the performance of their functions and the Statute provides that they should be ac-
corded the same privileges and immunities as heads of diplomatic missions when they
are engaged on or with respect to the business of the Court (article 48). However, they
may be removed from office for serious misconduct or a serious breach of any of their
duties under the Statute (article 46). The same sanctions apply to the Deputy Registrar,
although the Assembly of States Parties is responsible for the removal of judges and
prosecutorial staff, while an absolute majority of the judges will decide whether the
Registrar or Deputy Registrar should be removed (article 46, paragraph (2) and para-
graph (3)).
Triggering an investigation
There are three ways by which an ICC investigation may be initiated:
(i) a State Party may refer a “situation” to the Prosecutor, where it appears that one or
more crimes within the jurisdiction of the Court have been committed (article 13,
paragraph (a), and article 14);
Page 4
(ii) the Security Council may refer a “situation” to the Prosecutor, when acting under
Chapter VII of the Charter of the United Nations, where it appears that one or more
crimes within the jurisdiction of the Court have been committed (article 13, para-
graph (b)); or
(iii) the Prosecutor may initiate investigations proprio motu, on the basis of information
received from any reliable source as to the commission of crimes within the jurisdic-
tion of the Court (article 13, paragraph (c) and article 15).
The Prosecutor will be responsible for determining which individuals should be inves-
tigated and for which particular crimes, when a “situation” is referred by either a State
Party or the Security Council. However, there are rigourous procedures set out in the
Statute to ensure that the Prosecutor’s decision to proceed with an investigation is re-
viewed by the Pre-Trial Chamber, that all States Parties are informed of any ICC
investigations that have been initiated on the basis of State Party referrals or proprio
motu by the Prosecutor, and that States have a chance to challenge certain decisions of
the Pre-Trial Chamber in this regard (articles 15-19). The Security Council may also re-
quest the Court to defer any investigation or prosecution for 12 months, by means of a
resolution to that effect adopted under Chapter VII of the UN Charter (article 16).
The Court can only assume jurisdiction where the alleged crime was committed after
the entry into force of the Rome Statute (article 11, paragraph (a)); and, in most cases,
where:
(i) the alleged crime was committed on the territory of a State Party; or
(ii) the crime was allegedly committed by a national of a State Party (article 12).
However, non-States Parties may accept the jurisdiction of the Court over particular
crimes committed on their territory or by their nationals, by means of a declaration
lodged with the Registrar (article 12, paragraph (3)). If a State becomes a Party after en-
try into force of the Statute, the Court may only exercise its jurisdiction with respect to
crimes committed after entry into force of the Statute for that State, unless the State has
already made a declaration under article 12, paragraph (3) as a non-State Party with re-
spect to the crime in question (article 11, paragraph (b); see also article 126, paragraph
(2)). In addition, when the Security Council refers a situation to the Court, the Prosecu-
tor may investigate and prosecute crimes that were committed on the territory, or by
the nationals, of non-States Parties, and the Court will have jurisdiction over such mat-
ters (articles 12 & 13).
General principles of criminal law

The Statute incorporates existing international standards and principles for the prose-
cution of crimes. For example, no person will be prosecuted or punished by the ICC for
any conduct that did not constitute a crime, or did not carry such a punishment, at the
time the conduct was performed (articles 22 & 23). In addition, no person will be
prosecuted by the ICC for any conduct which formed the basis of crimes for which the
person has already been convicted or acquitted by the Court, or by another court, un-
Page 5
less the proceedings in another court were for the purpose of shielding that person
from criminal responsibility, or were not conducted independently or impartially in ac-
cordance with the norms of due process recognized by international law, and were
conducted in a manner that was inconsistent with an intent to bring the person to jus-
tice (article 20). Article 26 also provides that no person will be prosecuted who was
under the age of 18 at the time of the alleged crime.
The Statute provides for individual criminal responsibility, including responsibility as

an accessory or accomplice to a crime, or other similar involvement in the commission
or attempted commission of a crime (article 25). However, under article 25, paragraph
(1), the Court only has jurisdiction over natural persons. The Court therefore does not
have jurisdiction over corporations per se (as might be the case in national law, when
such law lists corporations as legal persons). The result of this is that corporations can-
not be indicted nor tried by the ICC. However, this is not to be confused with
corporate officers and employees, who can be held individually criminally responsible
for genocide, crimes against humanity and war crimes, or responsible as “command-
ers” or “superiors” under article 28. That article specifically provides for the
responsibility of commanders and other superiors for the actions of their subordinates,
in certain circumstances.
At the same time, the Statute recognises certain grounds for excluding criminal respon-
sibility, such as self-defence, mental incapacity, and mistake of fact (articles 31 & 32).
Note however that a person cannot claim as a defence that they were acting pursuant to
the order of a Government or a superior, unless (i) the person was under a legal obliga-
tion to obey orders of the Government or the superior in question; (ii) the person did
not know that the order was unlawful; and (iii) the order was not manifestly unlawful.
The Statute further provides that an order requiring a person to commit genocide or
crimes against humanity is a manifestly unlawful order (article 33). Note also Article
30, which stipulates that an intent to commit the crime and knowledge of the crime be
proven, in accordance with the relevant definitions in the Statute.
How a case is brought to trial

Upon the application of the Prosecutor, the Pre-Trial Chamber decides whether or not
to issue a warrant for the arrest and surrender of a person suspected of committing an
ICC crime. The Statute sets out a number of factors that the Chamber must take into
account, before issuing such a warrant, including reasonable grounds to believe that
the person committed the crime that is under investigation (article 58). States Parties
are required to assist the Court in executing requests to arrest and surrender persons to
the ICC (articles 59 & 89). Once the person is brought before the Court, either voluntar-
ily or by means of a warrant, the Pre-Trial Chamber must hold a confirmation hearing,
to ensure that the Prosecutor has sufficient evidence to support each charge (article 61,
paragraph (5)). The person is entitled to apply for interim release at several stages in
the pre-trial phase (article 59, paragraph (3), article 60, paragraph (2)). There are also
several opportunities for the accused, the Prosecutor and States to ask the Pre-Trial
Chamber to review various decisions of the Prosecutor and to appeal certain decisions
Page 6
of the Pre-Trial Chamber prior to the commencement of a trial (for example, see articles
19 & 53).
The right to a fair trial

The right to a fair trial is guaranteed in the Statute. For example, the accused must be
present during the trial (article 63); the accused is entitled to be presumed innocent un-
til proven guilty before the Court in accordance with the applicable law (article 66,
paragraph (1)); the Prosecutor has the onus to prove the guilt of the accused, and must
persuade the Court of the guilt of the accused beyond a reasonable doubt (article 66,
paragraphs (2) and (3)). Article 67 sets out the rights of the accused to a fair and public
hearing, which will be conducted in accordance with standards that are derived from
the International Covenant on Civil and Political Rights and other widely accepted in-
ternational instruments. Vulnerable witnesses and victims will also be protected
during any proceedings, and the Court will decide which evidence is admissible or not
(articles 68 & 69). In addition, victims may make representations to the Court at vari-
ous stages of the proceedings, either in person or represented by counsel (article 15,
paragraph (3), and article 68, paragraph (3)). The Court will be able to prosecute per-
sons who attempt to interfere with the administration of justice, for example by giving
false testimony or by bribing or threatening judges or witnesses (article 70).
Article 74 provides that all the judges of the Trial Chamber must be present at each
stage of the trial and throughout their deliberations, and must attempt to reach a
unanimous verdict. Their decisions must be handed down in writing and contain rea-
sons (article 74, paragraph (5)). Article 76, paragraph (4) provides that any sentence
imposed must be pronounced in public and, wherever possible, in the presence of the
accused. The Statute also allows for appeals against various decisions of the Trial
Chamber, such as a decision to convict or to impose a particular sentence on a person
(articles 81-84). All such appeals will be heard by the Appeals Chamber, which will be
composed of the President and four other judges, in every instance (article 39). The
Court may impose the following penalties on a convicted person: (i) imprisonment for
a maximum of 30 years; or (ii) a term of life imprisonment when justified by the ex-
treme gravity of the crime and the individual circumstances of the convicted person;
and/or (iii) a fine; and/or (iv) forfeiture of the proceeds of that crime (article 77). In
addition, the Court may order the convicted person to pay reparations to victims, in the
form of restitution, compensation or rehabilitation (article 75, paragraph (2)).
The Statute provides that the Court will have its own Rules of Procedure and Evidence,
which have been adopted by the Assembly of States Parties (article 51). These provide
greater detail on the provisions in the Statute pertaining to the conduct of all ICC pro-
ceedings. For example, the Rules stipulate such practical matters as the factors that the
Court must take into account when imposing a fine, the procedure for determining
what reparations may be appropriate, and the time period for lodging an appeal.
The Court will rely on States to provide co-operation and assistance throughout the in-
vestigation, prosecution, and punishment process, as necessary (articles 86-103). States
Parties are required to respond to requests for assistance from the Court, unless genu-
Page 7
ine national security interests would be threatened (article 72), and in certain other very
limited circumstances. States Parties may also be required to help enforce fines and for-
feiture orders or reparations orders (articles 75, paragraph (5) & 109). In addition, any
State may volunteer to accept and supervise sentenced persons (articles 103-107).
However, such States may not modify the sentence of the person, nor release the per-
son before expiry of the sentence pronounced by the Court (articles 105 & 110).
Other important features of the Court

The Statute embodies a traditional concept of justice that provides for the prosecution
and punishment of the guilty and obliges the Court to establish principles relating to
reparation to, or in respect of, victims, including restitution, compensation and rehabili-
tation (article 75). Furthermore, article 79 provides that a Trust Fund will be
established by decision of the Assembly of States Parties. The Fund will be managed
according to criteria to be determined by the Assembly (article 79, paragraph (3); see
also ICC-ASP/1/Res. 6: Establishment of a fund for the benefit of victims of crimes
within the jurisdiction of the Court, and of the families of such victims and ICC-
ASP/1/Res. 7: Procedure for the nomination and election of members of the Board of
Directors of the Trust Fund for the benefit of victims). The Court can decide whether to
compensate victims through this Fund and it may order that money or other property
collected through fines and forfeiture be transferred to the Fund (article 75, paragraph
(2) and article 79, paragraph (2)).
The Statute goes beyond this and gives victims a voice – to testify, to participate at all
stages of the Court proceedings and to protect their safety, interests, identity and pri-
vacy. Such inclusive participation reflects the principles of the 1985 UN Declaration of
Basic Principles of Justice for Victims of Crime and Abuse of Power, to be implemented
by national judicial systems. The provisions of the Statute require the Court to provide
these protections and rights in its proceedings (eg. article 68). The inclusion of these
provisions in the Statute demonstrates the importance of victims in the whole process
and it is hoped that the Court will provide an effective forum for addressing grave in-
justices to victims the world over.
The participants in the Rome Conference were particularly sensitive to the need to ad-
dress gender issues in all aspects of the Court’s functions, and the Rome Statute
provides that no adverse distinction may be made by the Court if founded on grounds
such as gender (article 21, paragraph (3)). The Statute also includes important provi-
sions with respect to the prosecution of crimes of sexual and gender-based violence.
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or
any other form of sexual violence are defined as crimes against humanity and war
crimes. The Court will be staffed with people knowledgeable in issues relating to vio-
lence against women, and there will be a fair representation of both female and male
judges on the Court.
Page 8
1.2 Purpose and Use of Manual

The Manual for the Ratification and Implementation of the Rome Statute (hereafter referred
to as the Manual) has been developed to assist all interested States with the ratification
and implementation of the Statute. Many States are currently preparing to ratify and
implement the Statute, but may face legal and constitutional obstacles that prevent
them from doing so quickly. Where States already have in place legislation relating to
international legal assistance, the process of implementing the Rome Statute will
probably be relatively simple. For other States, it may be more involved, and so this
Manual attempts to address a range of different contexts for implementation.
The sections outlined herein highlight the obligations of States Parties to the Statute,
and the features of the Statute that may affect approaches taken by States to ratify and
implement the treaty. It has also been designed to provide guidance as to how States
with different legal systems might implement their obligations into their national legal
systems. Policymakers, government administrators and various criminal justice profes-
sionals may find this document particularly useful in assessing the Statute’s overall and
specific impacts on their respective jurisdictions. People working in the military con-
text should also find this document helpful.
The Manual focuses on the following key areas: General Issues of Implementation; Spe-
cific Issues of Implementation; Complementarity; Broader State Obligations and Rights
of States Parties; and Developments Since the Rome Conference. This second edition of
the Manual has updated the general information about the ICC and its current status,
as well as updated the implementation sections. These now take into account the nu-
merous implementation laws, be they in draft form or enacted, as well as previously
unforeseen obstacles to implementation, that have emerged across the globe since the
first edition of this Manual was produced. It is recognised that the views and the
statements in the Manual are not intended to be the last word on all requirements of the
Rome Statute for implementation by States.
Recent history has shown that genocide, crimes against humanity, and war crimes con-
tinue to occur in all regions of the world. It is hoped that this Manual will contribute to
the work already being undertaken by numerous organisations and individuals to con-
tribute to the establishment of an effective ICC that will bring to justice and hold
accountable those responsible for the most serious crimes known to the international
community as a whole.
Page 9
Chapter 2: General Issues of Implementation
2. GENERAL ISSUES OF IMPLEMENTATION

The purpose of this section of the Manual is to highlight the particular features of the
Rome Statute that may affect the overall approach taken by States to ratify and imple-
ment the Statute, and to provide some examples of approaches taken by States Parties
over the past few years. However, this section does not attempt a thorough analysis of
the many approaches that are possible under the various legal systems of the world. It
merely outlines the main considerations for all States.
Some States generally ratify treaties first, and then the self-executing provisions of the
treaty automatically become a part of national law upon ratification and publication in
an official journal (monist system). Thus, the constitutions of most continental Euro-
pean States, and many of their former colonies, include a provision for the international
obligations of the State and customary international laws to form part of the domestic
law without explicit domestic legislation being implemented. Other States, especially
those in the Commonwealth, are obliged by their constitutional systems to prepare
comprehensive implementing legislation before ratifying or acceding to any interna-
tional treaties (dualist system). There are also numerous variations within each of these
overarching systems.
As with any international treaty, all States need to consider whether becoming a Party
to the Rome Statute will require changes to be made to their national laws or adminis-
trative procedures, to enable them to meet all of their obligations under the treaty. The
experience of almost all States Parties to the Rome Statute, no matter what system they
come from, is that the Statute will require some form of domestic implementing legisla-
tion, even if this is not the normal practice for the State. Not all of the key provisions in
the Rome Statute are considered self-executing in all jurisdictions, and the detail re-
quired for the effective fulfillment of some of the self-executing provisions is simply not
provided for under the Statute itself.
In general, when drafting legislation to implement the Rome Statute, it is necessary to

bear in mind that the ICC is no ordinary international regulatory or institutional body.
It has the unique potential to deter and punish “the most serious crimes of concern to
the international community as a whole” (article 5, paragraph (1)) and thereby to con-
tribute significantly to international peace and security. However, this potential will
only be realised through the full co-operation of States Parties, since there is no interna-
tional “police force” to do the work of assisting the Court with its investigations and
enforcing its orders. Therefore, special attention will need to be given to support the
Court, and in particular to ensure that States Parties are able, in actuality, to meet their
obligations under the Rome Statute. This will most likely require specific legislation
that empowers all relevant authorities to do what is required under the Statute. At the
same time, the incidence of such crimes is much less than for “ordinary” crimes that are
prosecuted regularly in States. So, as a general rule, many of the forms of co-operation
listed in the Statute will be part of the usual work of national criminal justice systems
and foreign affairs ministries, and so will not generally require additional resources.
Page 10
Possible approaches to implementation

The process of implementing international treaty obligations varies significantly from
State to State, according to the political and constitutional requirements of each State.
Every State Party to the Rome Statute is free to choose how it will implement its treaty
obligations, as long as it proceeds in good faith and the result is an ability to meet all of
the obligations under the Statute.
Each particular system, monist or dualist, has its own advantages and disadvantages in
terms of ratification and implementation processes. For example, in some States the
Executive branch of government may need the consent of the Legislature to ratify, or to
consult with Constitutional Courts before ratifying. Such processes inevitably slow
down the ratification and implementation process, but also provide an opportunity for
more widespread consideration of the impact of certain treaties on that State.
Several States have revised their approach to ratification of international treaties in re-
cent years, in order to increase the amount of consultation involving government
members or with civil society, in light of an increased awareness of the significant im-
pact that many of today’s treaties have in the domestic sphere (see for example,
Zimbabwe’s revised Cabinet procedures between 1993-1997 and Australia’s treatymak-
ing reforms in 1996). This consultation process may lengthen the process of ratification
and implementation, yet it ensures that more people are better informed about the par-
ticular treaty once it is ratified, and therefore better able to assist the Court with its
important work. In addition to the Ministries of Justice, Constitutional Affairs, Foreign
Affairs, and/or Defence, it may be useful to involve a range of other actors in the con-
sultation and legislative drafting process. The involvement and cooperation of the
executive, legislative, and judicial branch, the creation of inter-ministerial committees
involving a wide range of ministries potentially affected by the ICC’s work, and the in-
volvement of a range of civil society actors, such as bar associations, law professors,
victims’ support groups, and non-governmental organisations working on human
rights issues, provide opportunities for broad national dialogue on the ICC in a State’s
territory.
2.1 Ratification First Versus Implementation First

The Rome Statute entered into force on 1 July 2002 for those sixty-six States who rati-
fied or acceded to the Statute prior to 1 May 2002. For States who ratified or acceded
after 1 May 2002, the Rome Statute will enter into force for them on the first day of the
month after the sixtieth day following the deposit by such State of its instrument of rati-
fication or accession (article 126, paragraph (2)). Most States Parties chose to leave their
implementing legislation until after they ratified, since it initially seemed unlikely that
the Court would be fully operational in the near future. Also, since the Rome Statute
required 60 ratifications to enter into force, domestic processes for ratification were of-
ten expedited, in order to bring the ICC into being more quickly, and implementing
laws were not made a prerequisite where they normally would be.
Now that the Rome Statute has entered into force, and the Court is already being set up
in The Hague, there are new time-frames within which States need to prepare their im-
Page 11
plementing legislation, and most States Parties are in the process of, or have now
adopted implementing legislation. There is a new urgency for all States Parties to enact
comprehensive implementing laws that take effect from the date of entry into force of
the Rome Statute for them, either 1 July 2002, or at a later date for those who ratified af-
ter 1 May 2002. Because these laws involve criminal matters, it is important that they
be adopted and disseminated widely as soon as possible, in order to ensure that every-
one has a fair opportunity to become aware of the new laws. Even if the ICC is not in a
position currently to investigate the crimes within its jurisdiction, because it is still be-
ing set up, in future it may decide to investigate and prosecute any crimes committed
from the date of entry into force of the Statute (within the jurisdictional limits set out
under articles 12-13). In the same way, a State that has already ratified the Statute has
already accepted the criminal prohibition on the acts that constitute the crimes within
the Statute. Therefore, these laws can be introduced retroactively, since the acts were
considered crimes at the date of entry into force of the Statute.
For non-States Parties intending to ratify in the future, the complementary jurisdiction
of the ICC will come into force approximately two months after deposit of the instru-
ment of ratification or accession. Therefore, criminal and procedural laws need to be
enacted and enter into force within two months of ratification or accession. This sug-
gests that work on implementation needs to begin well before ratification, for those
States yet to become Parties to the Rome Statute.
Numerous examples of ICC implementation bills and the like have already been
drafted by many States and can be used as a guide for others. These include examples
from States that have already ratified, as well as States that are still in the process of
preparing for ratification. Members of the Southern African Development Community
have also prepared an ICC Ratification Kit, which includes a Model Enabling Act. A
complete list of implementing legislation available online in English at the time of
printing is included in Chapter 6 “Select Resources” of this Manual.
2.2 Approaches to Implementation

The bases of implementing the Rome Statute at the national level are the principles of
co-operation and complementarity. The primary obligation of States Parties to the
Rome Statute is to render cooperation and judicial assistance to the ICC when re-
quested (discussed in detail in Chapter 3 of this Manual). With respect to
complementarity, this principle encourages States Parties to implement ICC crimes into
their national laws, and recognises the primary responsibility of all States to investigate
and prosecute international crimes (Preamble and article 1). States may also choose to
bring their criminal procedures for prosecution of the crimes in line with the Rome
Statute, perhaps amending applicable defences and penalties to correspond with the
Rome Statute. The “principle of complementarity” is discussed in detail in Chapter 4 of
this Manual.
As with implementation of any treaty, States may create a single piece of legislation
that covers every aspect of implementation, or amend all relevant pieces of their exist-
ing legislation separately, or combine these approaches, in order to comply with the
Page 12
Statute. However, there are some special considerations worth taking into account
when approaching the implementation of the Rome Statute.
States Parties will have a special relationship with the ICC, particularly in terms of pro-
viding judicial assistance. As such, there are some particular features of the ICC that
may not lend themselves to being incorporated as amendments to existing arrange-
ments for State-to-State co-operation. Many States do not currently have laws allowing
them to co-operate with international institutions such as the ICC, and so will need new
laws for this kind of judicial co-operation. Also, there are some unique co-operation
requirements under the Rome Statute that need unique laws. For example, there will
be no grounds for refusal when a State is asked to surrender a person to the Court (arti-
cle 89). This is clearly different from the usual extradition arrangements between
States. Therefore, States may wish to draft new ICC-specific “surrender” legislation,
instead of trying to adapt existing laws on extradition.
Most jurisdictions will be familiar with the process of preparing the appropriate legisla-
tion, regulations, decrees, executive orders, or declarations, in order to implement
international treaties. The exact form of the implementing law can be decided by each
State, in accordance with its own hierarchy of laws. The most important thing is to en-
sure that all relevant authorities are able to do whatever is required of them in
accordance with the State’s obligations under the Rome Statute, and to take advantage
of the complementary jurisdiction of the ICC. In monist jurisdictions, the most impor-
tant requirement is that the legislation implements all the elements of the Statute that
are not self-executing, and ensures that obligations under self-executing provisions can
be fulfilled completely, if necessary with some further elaboration in the implementing
laws.
While generally in monist systems implementing legislation is not necessary due to the
State’s particular constitutional system, in some monist States it has been held that the
special nature of criminal law reflected in a treaty may not be self-executing (for exam-
ple, see the case against Hissène Habré, which was dismissed by the highest courts of
Senegal in 2001). Comprehensive implementation of the Rome Statute into national
law by monist States will ensure that the ICC crimes can be prosecuted in national
courts. In order to ensure that the relevant authorities in monist systems are also able
to co-operate fully with the Court, it is likely that the implementation of the Statute will
involve some modifications to existing national laws. For example, every State must
create technical mechanisms with which to co-operate with the Court and determine
which State institutions or agencies will be competent to ensure co-operation with the
Court. On the other hand, much of the substance of the Statute is a reflection of exist-
ing international law standards. If States have already implemented such standards,
this may help to minimise the amount of implementing legislation required.
A single piece of legislation

Where a State chooses to introduce a single piece of legislation, or to annex the entire
Rome Statute to a single piece of implementing legislation, it may be necessary to spec-
ify that such pieces of legislation take precedence over existing legislation, should there
Page 13
be a conflict between the ICC legislation and any existing legislation. This will help to
avoid potential breaches of a State Party’s obligations. At the same time, although the
adoption of a unique law covering every aspect of the Statute is possible, some modifi-
cations or incorporations by reference will probably need to be made to some national
laws, such as the Code of Criminal Law and Procedure, mutual legal assistance legisla-
tion, extradition laws, and human rights legislation, in order to recognise the special
status of the Court. If there is only one ICC law, which is intended to take precedence
over any existing laws with which it may conflict, but those laws are not specifically re-
ferred to in the ICC law, this may cause confusion for those relying on the old laws and
not aware of potential conflicts with the new ICC law.
Many States have now implemented comprehensive implementing legislation, which

includes provisions regarding incorporating the ICC crimes as well as cooperation ob-
ligations. Some have taken the approach of separating implementing legislation into
two parts – one for the introduction of the crimes and one for the cooperation require-
ments, reflecting the usual separation between the Code of Criminal Procedure and the
Code of Crimes, in relation to domestic crimes. This is the case in many civil law coun-
tries.
States also need to consider whether they will take this opportunity to go beyond the
requirements of the Rome Statute, which are considered the absolute minimum stan-
dards in international law. For example, Germany has taken the opportunity to revise
all international crimes within its jurisdiction, to bring them up to date in a comprehen-
sive new Code.
For smaller jurisdictions, with fewer resources, there are some good examples available
of a “simple” approach taken to implementation by two small jurisdictions. New Zea-
land chose to follow the structure and content of the Rome Statute closely, when
drafting its implementing laws, thereby saving considerable time reorganising all the
relevant provisions at the legislative drafting stage. South Africa, on the other hand,
chose to draft its law in a style that was already familiar to national criminal justice per-
sonnel, and to assign existing mechanisms in its criminal justice system for the
purposes of ICC co-operation, with very little modification, in order to reduce the need
for training large numbers of people in new procedures.
There are some advantages and disadvantages to both approaches. In New Zealand,
national authorities who would probably be unfamiliar with the Rome Statute will
most likely need considerable training at some stage, in order to understand their exact
duties under the legislation, if a co-operation request from the Court is received. How-
ever, New Zealand is a small island a long way from most conflicts, therefore it is
unlikely to receive a significant number of such requests, at least in the foreseeable fu-
ture. In South Africa, the preparation of the implementing law took several years, in
order to harmonise the Rome Statute effectively with national procedures and thereby
reduce the need for training. An Inter-Ministerial Committee was involved in prepar-
ing the ICC legislation, and a Bill was circulated in draft form for consultation
purposes, in order to familiarise all relevant levels of government and civil society with
Page 14
the requirements of the Rome Statute, and to harmonise these with national laws and
procedures. Despite taking such a long time, all South African authorities who are re-
quired to assist the ICC with a request for cooperation are now familiar with the ICC,
and in a better position to provide that cooperation, and the general public is also
aware of the existence of the ICC.
Amending all relevant pieces of legislation separately

If a State chooses to amend all the relevant pieces of its legislation one at a time, it
needs to recognise and highlight the distinct nature of the Court in some way, in order
to give everyone in the State an accurate overview of the Court’s role and purpose. For
example, in many common law jurisdictions, most of the proposed legislation intro-
duced into legislative assemblies may be viewed and commented upon by citizens
either in writing or at special hearings. These special hearings could be organised in
such a way that all the amendments related to the ICC are discussed at one time, if they
are not all contained in the same amending bill.
At this time, there do not seem to be any examples of States taking this approach to im-
plementation.
Hybrid approach
Some States may be able to create a single piece of legislation that also effectively
amends most of the relevant pieces of legislation already in force, and then make other
amendments to existing legislation if required. This is the approach taken by many
governments, including the Canadian Government in its Crimes Against Humanity
and War Crimes Act. This Act implements most of Canada’s obligations under the
Rome Statute, as well as taking advantage of the ICC’s “complementarity principle”.
The Act is a mixture of completely new provisions and amendments to existing provi-
sions in a wide range of Acts. Before preparing the Crimes Against Humanity Act,
Canada also amended its Extradition Law, in such a way that it made it easier to har-
monise it with the Rome Statute at a later stage, since the Extradition Law needed
updating and revising before work on the ICC legislation was completed.
Note, however, that the Crimes Against Humanity Act goes well beyond the minimum
requirements under the Statute. It has been drafted to address a number of concerns of
a constitutional nature that will likely not arise in most other States. At the same time,
the list of Canadian Acts that will be amended by the Crimes Against Humanity Act
provides a useful checklist for other States, of the types of national legislation that may
need to be reviewed in order to implement the Rome Statute (this list is under the head-
ing “Consequential Amendments” in the Bill): Citizenship Act, Corrections and
Conditional Release Act, Criminal Code, Extradition Act, Foreign Missions and Interna-
tional Organizations Act, Immigration Act, Mutual Legal Assistance in Criminal
Matters Act, State Immunity Act, and Witness Protection Program Act.
A lawyer assisting the Namibian Government in drafting its ICC laws, Ms. Wema Isa,
recommended that Namibia have one bill implementing the Rome Statute instead of
amending all laws individually. This one bill would implement the obligations of the
Page 15
Rome Statute into domestic law and also amend or modify all the laws to be affected.
She recommended this approach as it would be both cost effective and less time con-
suming for all concerned, since there would be no need to have a number of bills tabled
before and passed by Parliament in order for the Rome Statute to be given full force
and effect. She identified the following Namibian laws as potentially requiring
amendment: Criminal Procedure Act, Prescriptions Act, Extradition Act, Expropriation
Ordinance 13 of 1978, Police Act, Prisons Act, and Constitution of Namibia.
A number of States already have some legislation to allow national authorities to coop-
erate with other States and international tribunals, and such laws contain many of the
same principles and values as those required under the Rome Statute. However, sev-
eral provisions in the Rome Statute require States Parties to introduce laws and
procedures that take into account the “distinct nature” of the ICC, in order to avoid
similarly cumbersome arrangements as State-to-State cooperation often involves, given
the seriousness of crimes being prosecuted by the ICC.
Dissemination of the requirements of the Statute

From a practical point of view, whether States introduce ICC-specific legislation,
amend existing pieces of legislation separately, or use a hybrid approach, the changes
to the law of the State will need to be disseminated widely once they come into force.
This will ensure that all relevant personnel are aware of the changes that the new legis-
lation may introduce into the law in their particular area of work. For example, the ICC
may have different standards from those of national organisations for the collection of
its evidence. If persons who normally assist with the collection of evidence for national
prosecutions are asked to assist the ICC with one of its investigations, they will need to
know about the different standards, in order to ensure that the evidence they collect is
admissible and the way it has been collected does not reduce the chances of a successful
prosecution (article 69, paragraph (7)). Nationals cannot be expected to know about the
ICC requirements unless there is an effective publicity and information campaign con-
nected with the new ICC legislation. In order to avoid a possible breach of a State’s
obligations, citizens need to be sufficiently well informed by State agencies.
2.3 Introduction of New Procedures

Many States may also need to introduce new administrative procedures in certain ar-
eas, in order to ensure that they can meet all their obligations under the Statute and to
assist the Court as much as possible (article 88). Article 99, paragraph (1) provides that
requests for assistance from the ICC can be executed in accordance with the relevant
procedure under the law of the requested State. However, article 99, paragraph (1) also
specifies that requests must be executed in the manner specified in the request, unless
this is prohibited by the laws of the State. Given the important nature of the ICC’s
work, it would greatly assist the Court and thereby the international community, if
States ensure that their laws and procedures are generally compatible with the Rome
Statute, so that all requests for assistance can be executed in the manner specified in the
request.
Page 16
The Statute covers a broad range of areas of administration, such as criminal procedure,
proceeds of crime, witness and victim protection, mutual legal assistance, national se-
curity, dissemination of the rules of engagement in military law, and financial
assistance to the Court. It will be necessary that a State do more than merely append
the Rome Statute to a piece of legislation that makes it the law in the State. Every State
needs some kind of new procedure for dealing with ICC requests, and perhaps training
of a small group of national criminal justice personnel in the requirements of the Rome
Statute, so that a request from the Court can be responded to in a timely fashion. This
will involve co-ordination between government departments and between the various
branches of government as well as the military forces and bar associations.
2.4 Federal Issues

The process of implementing ICC obligations may be more complicated for federations,
as regional, state, and/or provincial laws may need to be changed by the appropriate
authorities as well. It would be helpful to undertake consultations with all relevant au-
thorities at an early stage, to ensure the widest possible support for effective
implementation of ICC obligations. For example, many States could take advantage of
existing inter-governmental and inter-departmental meeting schedules to discuss ICC
issues.
In Australia, which has a federal system where each Australian state has its own crimi-
nal laws and procedures, the Federal Government used its external affairs power under
the Constitution to introduce ICC implementation legislation. The legislation addresses
nearly every conceivable principle that could be applied in any State court, to make
sure that all such principles were over-ruled specifically by the ICC implementing leg-
islation. Therefore in Australia, the two pieces of ICC legislation are more like a Code
than most pieces of crime-related legislation in a common law system. In this way,
Australia ensured that State authorities could not inadvertently cause Australia to
breach its obligations under the Rome Statute.
2.5 Compatibility With Different Legal Systems

The ICC will conduct its proceedings according to a new international legal system,
which draws upon a variety of well-established national criminal procedures. As such,
it is a truly international criminal court, representing the traditions and values of a
wide spectrum of participants. Even so, it is unlikely that any State will have to radi-
cally change its own criminal justice system in order to be able to assist the Court.
Many of the standards for investigations and trial fairness required under the Rome
Statute are adopted wholesale from international human rights instruments that have
already been implemented in most countries, such as the International Covenant on
Civil and Political Rights.
The most important thing is that whatever procedures are established under national
laws to assist the ICC with its investigations and prosecutions, those procedures must
respect the judicial guarantees of independence, impartiality and equality.
Page 17
Chapter 3: Specific Issues of Implementation
3. SPECIFIC ISSUES OF IMPLEMENTATION

This section of the Manual is intended to highlight the various forms of State co-operation
that are detailed in the Rome Statute, and to suggest ways that a State Party can ensure its
ability to provide such assistance, as required. Each of the various types of co-operation
outlined here may require a different approach to implementation, depending on the par-
ticular State’s criminal procedures and existing mechanisms for international judicial
assistance. Each section identifies various options for implementation that States may be
able to use, according to their particular needs and requirements. It assumes that readers
will be able to discern which issues are particularly relevant to their situation. For exam-
ple, those States with mutual legal assistance legislation already in place will probably only
need to make minor modifications to this legislation in order to be able to co-operate with
the ICC in many respects.
Readers should not be daunted by the large amount of material in this section of the Man-
ual. It does not mean that implementation of the Rome Statute will necessarily be a large
undertaking. The Manual provides guidance on the precise obligations of States under the
Statute, but it also makes suggestions as to how States may wish to go beyond the re-
quirements under the Statute, in order to make the ICC even more effective. This
distinction is made clear throughout the Manual, as every requirement is listed under the
heading “Obligations” in every section. Therefore States that wish not to expend unneces-
sary resources when implementing the Rome Statute can clearly see what the exact
standard is in each area of implementation. They will find that it will be very easy for
them to comply with the requirements under the Statute, in most instances.
Parts 9 and 10 of the Rome Statute set out the general types of co-operation that may be re-
quested by the Court and the obligations of States Parties in this respect. Further details on
some of the requirements for co-operation and how requests are made are also found in
other parts of the Statute. For example, the various chambers of the ICC and the ICC
Prosecutor may make certain requests of States at different stages of a criminal proceeding,
and the functions and requirements of these entities are set out in Part 5 – Investigation
and Prosecution; Part 6 – The Trial; and Part 8 – Appeal and Revision. Therefore, the rest
of this section of the Manual draws together, in different sub-sections, the various forms of
assistance that are detailed throughout the Statute, in roughly the order that a criminal in-
vestigation occurs.
From the date of the first edition of the Manual, a large number of States Parties have since
prepared and adopted domestic implementing legislation. In this second edition, exam-
ples of how certain States have implemented their obligations under the ICC Statute are
provided to highlight the different approaches that may be available to States Parties who
are in the process of drafting or adopting their implementing legislation. These examples
are drawn only from legislation that is available in English and accessible on the world
wide web, and are in no way meant to provide a comprehensive review of all the examples
and methodologies available. A complete list of ICC implementing legislation currently
available online is included in Chapter 6 “Select Resources”, together with the abbrevia-
tions used for each example throughout the following section. In addition, a list of other
Page 18
resources on implementation is included in Chapter 6. These resources are updated regu-

larly, and should be reviewed for any new legislative models that become available after
this document was prepared.
3.1 Privileges and Immunities of ICC Personnel

Description
The ICC is a treaty based international organisation, and not an organ of the United Na-
tions. Therefore, States cannot assume that ICC personnel will automatically be covered
by existing State laws on the protection of UN personnel.
Article 48 of the Rome Statute governs privileges and immunities for the Court. This is
very similar to article 105 of the UN Charter regarding judges of the International Court of
Justice. The judges, Prosecutor, Deputy Prosecutors and Registrar of the ICC will enjoy the
same immunities as are accorded to heads of diplomatic missions and will, after the expiry
of their terms of office, continue to be accorded immunity from legal process of every kind
“in respect of words spoken or written and acts performed by them in their official capac-
ity”. This will help to prevent any politically motivated allegations against such personnel
or any reprisals after they retire from the Court.
Under article 48(3), the Deputy Registrar, the staff of the Office of the Prosecutor and the
staff of the Registry, will be accorded “privileges and immunities and facilities necessary
for the performance of their functions”. Article 48, paragraph (4) provides that counsel,
experts, witnesses and “any other person required to be present at the seat of the Court”
are to enjoy such privileges and immunities as are necessary “for the proper functioning of
the Court”. These provisions also contemplate a separate agreement, to elaborate the de-
tails of such privileges and immunities of the Court, its personnel and officials and those
participating in proceedings of the ICC.
The ICC Preparatory Commission was mandated to prepare this stand-alone treaty on
privileges and immunities, which was adopted by the Assembly of States Parties in Sep-
tember 2002, and is entitled an “Agreement on the Privileges and Immunities of the
International Criminal Court” (APIC). The APIC contains some additional definitions and
places some additional obligations on States, above those that are set out in article 48,
Rome Statute. Therefore, the APIC must be ratified and implemented in addition to the
Rome Statute, and may also be ratified by States that have not ratified the Rome Statute.
The APIC was opened for signature by all States as from 10 September 2002 at United Na-
tions Headquarters in New York and will remain open for signature until 30 June 2004. It
will enter into force 30 days after the date of deposit of the tenth instrument of ratification
or accession (article 34, APIC). At the date of writing, APIC is not yet in force.
Article 48, paragraph (5), Rome Statute, sets out who can waive the privileges and immuni-
ties of judges, the Prosecutor, the Registrar, the Deputy Prosecutors, staff of the Office of
the Prosecutor, the Deputy Registrar and the staff of the Registry. For example, the privi-
leges and immunities of judges and the Prosecutor can only be waived by an absolute
majority of the judges. APIC elaborates further on who can waive the privileges and im-
Page 19
munities for counsel, experts, witnesses and any other person required to be present at the
seat of the Court.
Obligations
a) States must recognise the privileges and immunities of the judges, Prosecutor, Deputy
Prosecutors and Registrar, and accord them the same immunities as are accorded heads
of diplomatic missions, including immunity, after the expiry of their terms of office,
from legal process of every kind in respect of words spoken or written and acts per-
formed by them in their official capacity (article 48, paragraph (2)).
b) States must also provide the privileges and immunities and facilities necessary for the
Deputy Registrar, the staff of the Office of the Prosecutor, and the staff of the Registry
to perform their functions, in accordance with the APIC (article 48, paragraph (3)).
c) States must accord appropriate treatment to counsel, experts, witnesses and “any other
person required to be present at the seat of the Court”, as is necessary for the proper
functioning of the Court, in accordance with the APIC (article 48, paragraph (4)).
Implementation
States should recognise the privileges and immunities of officials, personnel and others
participating in the proceedings of the ICC in their implementing legislation. Most of this
should not be difficult, considering that most States will already have in place general
privileges and immunities legislation or regulations dealing with diplomatic relations, for-
eign missions or international organisations.
An example of amending existing legislation is that of the Canadian ICC legislation which
amends the Canadian Foreign Missions and International Organisations Act, by adding a ref-
erence to the privileges and immunities of ICC personnel (CA s 54). South Africa’s ICC
Act refers to the procedure established in their Diplomatic Immunities and Privileges Act to
elaborate details of the privileges and immunities for certain ICC officials and personnel by
proclamation (SA s. 6). Other States, particularly of the monist approach, may not have to
implement article 48 into domestic legislation as these provisions may be considered to be
self-executing and thus applicable without the authorisation of domestic law.
To enable the ICC and all its personnel to operate effectively, States Parties will need to rat-
ify and implement not only the Rome Statute but also APIC. For assistance in the
implementation of APIC, please refer to the guide prepared by ICCLR, “Agreement on
Privileges and Immunities of the International Criminal Court: Implementation Considera-
tions”.
For those States yet to finalise their legislation to implement the Rome Statute, it would be
most efficient to implement their APIC obligations at the same time, since they both deal
with privileges and immunities of persons involved in the work of the ICC. The relevant
pieces of existing legislation could be reviewed for appropriate amendments, or States may
Page 20
enact a single piece of legislation that covers every aspect of article 48 of the Rome Statute
and the APIC.
A number of States Parties to the Rome Statute drafted implementing legislation prior to
the adoption of APIC. Certain implementing legislation had this in mind when providing
for executive regulations, such as Orders in Council, to be made to give effect in domestic
law to APIC (such as UK Sch.1 s. 1(2) and CA s. 54). The South African ICC legislation
provides for the Cabinet member responsible for foreign affairs, after consultation with the
Cabinet member responsible for the administration of justice, to confer immunities and
privileges on any other persons performing functions for the purposes of this Act (SA s.6).
3.2 Offences Against the Administration of Justice of the ICC

Description
Article 70, paragraph (1) of the Rome Statute creates certain offences against the admini-
stration of justice of the ICC. These are as follows:
“Intentionally:
(a) Giving false testimony when under an obligation pursuant to article 69, paragraph (1),
to tell the truth;
(b) Presenting evidence that the party knows is false or forged;
(c) Corruptly influencing a witness, obstructing or interfering with the attendance or tes-
timony of a witness, retaliating against a witness for giving testimony or destroying,
tampering with or interfering with the collection of evidence;
(d) Impeding, intimidating or corruptly influencing an official of the Court for the purpose
of forcing or persuading the official not to perform, or to perform improperly, his or her
duties;
(e) Retaliating against an official of the Court on account of duties performed by that or
another official;
(f) Soliciting or accepting a bribe as an official of the Court in connection with his or her
official duties.”
Under article 70, paragraph (3), the maximum penalty for committing one of these offences
is five years imprisonment, and/or a fine.
Article 70, paragraph (4), subparagraph (a) requires all States Parties to extend their crimi-
nal laws penalizing such offences, to include article 70, paragraph (1) offences where these
are committed by their nationals or on their territory. Article 70, paragraph (4), subpara-
graph (b) further provides that the Court may request a State Party to submit a particular
case to the relevant national authority for the purpose of prosecution. States Parties are re-
quired to respond to such requests and to “treat such cases with diligence and devote
Page 21
sufficient resources to enable them to be conducted effectively”. Thus, States Parties are
expected to assist the Court in the prosecution of these offences, when requested.
Article 70, paragraph (2) provides that the principles and procedures governing the Court’s
exercise of jurisdiction over offences under this article shall be those provided for in the
Rules of Procedure and Evidence (RPE). These were adopted by consensus by the Assem-
bly of States Parties in September 2002, and provide further details on all the procedural
issues relating to article 70 (rules 162-172). For example, they provide details for the con-
siderations relevant to imposition of sanctions, including the possibility that the Court may
request a State Party to enforce a fine in accordance with article 109 (rules 163 and 166).
Unlike the Statute’s detailed provisions on the admissibility of cases involving “crimes”
within the jurisdiction of the Court (articles 1 & 17-20), article 70 does not attempt to estab-
lish how and when the ICC will exercise jurisdiction over these “offences” where a State
Party may also wish to exercise jurisdiction over the same matter and has the authority to
do so. The RPE elaborates the procedures and considerations for the ICC to take into ac-
count when deciding whether to prosecute a case or request a State Party to prosecute.
Unlike the complementarity jurisdiction of the Court over ICC crimes, rule 162 clarifies
that the Court will ultimately determine the appropriate forum in each particular case re-
lating to offences against the administration of justice of the ICC. This allows the ICC to
ensure that it will not get over-burdened with minor prosecutions that States could man-
age.
Article 70, paragraph (2) also provides that the ICC may request international cooperation
and judicial assistance from States in relation to offences under this article. States need
only provide such cooperation in accordance with their existing law. Rule 167 clarifies that
the ICC may request a State to provide any form of international cooperation or judicial as-
sistance corresponding to those forms set out in Part 9 of the Rome Statute, and requires
the Court to indicate that an offence under article 70 is the basis for the request. In addi-
tion, rule 166 sets out the role of States Parties in enforcing any orders of forfeiture or other
penalties imposed on a person convicted of one of these offences. For further details and
analysis of these rules and their potential impact upon national authorities when cooperat-
ing with the ICC, please see the ICCLR guide “International Criminal Court Rules of
Procedure and Evidence: Implementation Considerations”.
Obligations
a) Article 70, paragraph (4), subparagraph (a) requires every State Party to “extend its
criminal laws penalizing offences against the integrity of its own investigative or judi-
cial process to offences against the administration of justice referred to in this article,
committed on its territory, or by one of its nationals”.
b) States Parties must empower the appropriate authorities in their territory to prosecute
these offences, whenever requested to do so by the ICC. Under article 70, paragraph
(4), subparagraph (b), those authorities are required to “treat such cases with diligence
and devote sufficient resources to enable them to be conducted effectively.”
Page 22
c) States Parties should also provide full co-operation to the Court in the investigation and
prosecution of these offences, in accordance with article 70, paragraph (2) and article 86,
and the domestic laws of the requested State.
Implementation
a) Options for penalising offences
(i) Extend existing national legislation to include offences against the administration of
ICC justice
Most, if not all, States Parties will already have legislation in place that creates offences
against the administration of justice within their own legal systems. For example, such ac-
tivities may be proscribed under the Criminal Code. Article 70, paragraph (4),
subparagraph (a) suggests that such legislation should merely be extended to include per-
sons involved in ICC proceedings, in order to comply with the Rome Statute. Such persons
would be (as both the subject and object of these crimes): accused persons appearing before
the ICC, witnesses appearing before the ICC, and officials of the ICC. In addition, national
offences involving interference with evidence should be extended to include evidence that
is required for an ICC matter.
States Parties should ensure that their national legislation includes all of the offences listed
under article 70, paragraph (1). The easiest way to do this is to reproduce the offences as
they are expressed in the Rome Statute. The legislation must have both territorial and ex-
tra-territorial application, so that States Parties can prosecute such offences when they are
committed by both nationals and non-nationals on the State’s territory, and so that nation-
als can be prosecuted in the State for acts they commit while at the Court, or elsewhere
outside the State. Under article 70, paragraph (4), States Parties must criminalise these of-
fences on their territory and where they are committed by a national, no matter where that
national has committed the offence.
The Statute is silent as to the maximum or minimum penalty that a State can impose when
it is prosecuting such offences. However, these offences strike at the very heart of any jus-
tice system, by potentially undermining its legitimacy and credibility. Therefore, a
maximum penalty of no less than 5 years for all of those offences is a good guide, as per ar-
ticle 70, paragraph (3). States may also wish to provide for different penalties for different
types of offences, depending upon their seriousness. Various States Parties have assigned
different penalties for different article 70 offences in their implementing legislation. The
minimum and maximum penalties range from 1-15 years imprisonment.
States may also wish to go beyond the requirements of article 70, by providing for further
variations of the offences listed in that article, and by assigning different penalties to dif-
ferent offences, sometimes greater than 5 years imprisonment. This has the benefit of
deterring a greater variety of potential attacks on the integrity of the ICC justice system.
Norway follows the approach where the implementing legislation essentially provides that
certain sections of the domestic penal code correspond to the offences listed under article
Page 23
70 (NO s.12). Germany also has a bill before Parliament, at the time of writing, that would
extend the scope of application of certain sections of the German Criminal Code to cover
false testimony before the ICC (Progress Report by Germany). In Australia, Finland and
Switzerland, their implementing legislation shows examples of where an Act amending
and clarifying certain provisions of the national penal code was enacted. For example, in
Finland, the Act on the Amendment of the Penal Code clarified the term “court of law” as
meaning the ICC and the term “criminal investigation” as meaning an investigation re-
ferred to in the Rome Statute (FI(A) s. 12(a)). In Australia, the ICC (Consequential
Amendments) Act amends the existing Criminal Code Act by adding a section on crimes
against the administration of justice of the ICC (AU(C) Subdiv J). At the time of writing,
Argentina and the Netherlands have pending draft legislation that will amend their na-
tional penal codes in order to extend existing offences against the administration of justice
to the ICC context.
(ii) Extend existing legislation relating to offences against the administration of justice of
the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY/R),
to include the ICC
Some States Parties may have already created offences against the administration of justice
for these two Tribunals, in accordance with their respective Rules of Procedure and Evi-
dence. For example, Rules 77 & 91 of the Rules of Procedure and Evidence for the ICTY are
“Contempt of the Tribunal” and “False Testimony under Solemn Declaration”, respec-
tively. Note that there are several differences between those Rules and Article 70 of the
Rome Statute, most notably the maximum penalty for offences. For example, the ICTY
Rules differentiate between various types of offences, and provide that some offences only
have a maximum penalty of 12 months imprisonment (Rule 77, paragraph (h), subpara-
graph (i)), while other offences have a maximum penalty of 7 years imprisonment (Rule 77,
paragraph (h), subparagraph (ii)). In implementing article 70 offences, States can set
higher maximum penalties if they wish.
If States wish to amend existing laws relating to offences against the administration of jus-
tice of the ICTY/R, they should ensure that they have provided for all of the offences listed
under article 70, paragraph (1), not just those in the ICTY/R Rules, because those Rules do
not provide for certain article 70 offences, such as retaliating against officials of the tribunal
(article 70, paragraph (1), subparagraph (e)).
At the time of writing, there are no examples of this approach being taken by States.
(iii) Create a new piece of legislation
Alternatively, States could create article 70 offences either by a specific piece of legislation
on offences against the administration of justice, or by including such offences within a
broader ICC-specific piece of legislation, or by simply reproducing article 70 offences in the
implementing legislation. In Canada, the ICC legislation creates new offences in Canada
and for Canadian citizens in accordance with the obligations under article 70 (CA ss.16-26).
Basically, Canada has taken certain provisions from its criminal code and updated, re-
worded and applied these provisions to the ICC context, thereby complementing
Page 24
substantive domestic criminal law in order to harmonise it with the Rome Statute. Canada
went beyond its obligations under article 70 by stating that other existing Canadian legisla-
tion governing the offences against the administration of justice would also govern any
proceedings under the ICC legislation, since these proceedings would be conducted pur-
suant to the Canadian rules of evidence and procedure governing criminal trials. For
example, the Canadian government criminalised additional offences against the admini-
stration of justice, relating to proceeds of crime provisions, including possession of
property obtained by certain offences, laundering proceeds of certain offences and enter-
prise crime offences. These sections were taken from the Canadian criminal code and
reworded for the special circumstances of the ICC. In New Zealand, South Africa and the
United Kingdom, the implementing legislation essentially reproduces the obligations listed
under article 70 (NZ ss.14-23, SA s.36 and UK s 54).
b) Giving national courts jurisdiction over article 70 offences
States Parties must also enable their own courts to prosecute these offences (article 70,
paragraph (4), subparagraph (b)). This can be done by adding “offences against the ad-
ministration of ICC justice”, or similar terminology, to the list of offences over which the
relevant courts are to have jurisdiction. All personnel involved in criminal investigations
need to be granted the jurisdiction to investigate and prosecute such crimes as well. Note
that the ICC will have to grant a waiver of immunity if State courts wish to prosecute ICC
personnel.
Some States Parties have included in their implementing legislation a provision giving the
national court jurisdiction over an article 70 offence in two situations: (1) when the offence
against the administration of justice is committed in the domestic territory or (2) when the
offence is committed abroad by a citizen of the domestic country. For example, the New
Zealand legislation states that New Zealand courts are given jurisdiction to try offences
under article 70 if the relevant act or omission occurred in New Zealand or if the person
charged is a New Zealand citizen (NZ s.14). Other examples include legislation from Ar-
gentina, Norway, South Africa and United Kingdom (AG s. 23, NO s.12, SA s. 37(1), UK s.
54(4)).
c) Providing sufficient resources to enable national prosecutions to be treated diligently

and conducted effectively
Article 70, paragraph (4), subparagraph (b) specifically provides that a State Party “shall
submit” any cases under this article to its competent authorities, once requested by the
Court to do so. It also provides that “those authorities shall treat such cases with diligence
and devote sufficient resources to enable them to be conducted effectively.” Clearly the
drafters of the Statute envisaged that these types of offences should be taken seriously by
States Parties. After all, any kind of impropriety on the part of those participating in ICC
proceedings could bring the whole Court into disrepute, and reduce its potential deterrent
effect.
States Parties should therefore ensure that sufficient financial and human resources would
be available to the various sectors of their criminal justice system that would be involved in
Page 25
investigating and prosecuting such crimes, and supervising those convicted of such of-
fences. However, it is unlikely that prosecution of these crimes will require many
resources, as such crimes will rarely be committed in most States. States may wish to un-
dertake an information campaign, to ensure that all relevant persons know of the new
offences and the maximum penalty, and give them due consideration. This would help to
reduce the incidence of such crimes.
d) Enforcement of sentences
States Parties should also consider making provisions for enforcing the sentences of per-
sons convicted of these offences by the ICC. This is not mentioned in the Statute, however,
rule 163 now provides that States may volunteer to enforce sentences of imprisonment in
relation to offences under article 70. The Court will have limited detention facilities and
will rely on States to accept and supervise all sentenced persons. Note that most of the
provisions under Part 10 of the Rome Statute do not apply to offences under article 70,
such as the Court’s primary role in supervising and reviewing the sentence of the person.
Nevertheless, a State may choose to enforce a sentence of imprisonment under this provi-
sion in accordance with the principles set out in Part 10 of the Statute.
Under Rule 166, the ICC can impose an order of forfeiture in addition to imprisonment or a
fine or both. The ICC may therefore request a State Party to enforce a fine in accordance
with that State Party’s domestic laws (see article 109). States should also note the ten year
limitation period for enforcement of all sanctions imposed by the ICC under article 70 (rule
164).
e) Co-operation measures
States should have legislation and procedures in place to enable them to provide co-
operation to the ICC for article 70 offences. Such co-operation may include surrendering
nationals to the Court, and providing evidence to support and/or rebut the claim that the
alleged crime has taken place. The conditions for providing such co-operation can be gov-
erned by the national laws of the requested State (article 70, paragraph (2)), while still
enabling the State to “co-operate fully”, in accordance with article 86. The legislation and
procedures could be much the same as for other criminal investigations and prosecutions
by the ICC.
Some States Parties have comprehensively implemented the obligation to cooperate with
the ICC without specific mention to article 70 offences. This may be sufficient in many ju-
risdictions. Other States, like New Zealand, have incorporated a specific provision
clarifying that if the ICC makes a request for assistance in an investigation or proceeding
involving an article 70 offence, the request must be dealt with in the same manner pro-
vided for under Part 9 of the Rome Statute (NZ s. 23). The United Kingdom has
incorporated a provision ensuring the national courts take into account any relevant
judgements or decisions of the ICC and also permits the national courts to take account of
any other relevant international jurisprudence (UK s. 54(2)).
Page 26
3.3 Procedures Where the ICC Wishes to Investigate the Same Matter as a
State Party
Description
Because the ICC is intended to be complementary to national criminal jurisdictions, the

general rule is that the ICC cannot assume jurisdiction and thus will not investigate or
prosecute if a State Party is already investigating or prosecuting the same case. However,
not all States may be able to carry out a full investigation, particularly if they are involved
in an armed conflict at the time, which has caused their judicial system to collapse. The
drafters of the Statute were also concerned about the possibility that some States may hold
“sham” trials, which would not satisfy the interests of international justice. Therefore, the
Statute sets out some procedures that allow the Court to seek information from States on
some of their investigations and prosecutions, to ensure that the Court is not duplicating
the genuine efforts of States to prosecute crimes within the jurisdiction of the Court, and to
allow the Court to monitor any investigations or prosecutions about which it has concerns.
The conditions under which the Court will assume jurisdiction are set out in article 17,
which is discussed in detail in Chapter 4 on “Complementarity”.
Relevant procedures under the Statute
Once a situation requiring the ICC’s attention has been referred to the Court, or the ICC
Prosecutor has identified the apparent commission of an ICC crime, the ICC Prosecutor
needs to determine that there would be a reasonable basis to commence an investigation
(articles 13-15). The Prosecutor must request the ICC Pre-Trial Chamber to authorise any
investigation that is initiated by the Prosecutor proprio motu (article 15, paragraph (3)). At
that stage, or once the Prosecutor has initiated an investigation based on a referral by a
State Party, all States Parties must be notified (article 18, paragraph (1)). The Prosecutor
must also notify any other States that would normally exercise jurisdiction over the crimes
concerned. Note that the Prosecutor can provide this notification on a confidential basis,
and limit the scope of the information provided to States, if it is necessary to protect certain
persons, prevent the destruction of evidence, or prevent certain persons from absconding.
Keeping the ICC informed
Under article 18(2), States have only one month from such notification in which to inform
the Court that they are investigating or have investigated the same matter, and to request
the Prosecutor to defer to the State’s investigation. This short time period is to ensure that
the Court is not subject to unnecessary delays in carrying out its functions. Article 18(2)
provides that “a State may inform the Court of its own investigations” (not “shall”). Al-
though States are not actually obliged to notify the Court of their own investigations, it
would be sensible for a State to advise the ICC of its own proceedings, to help avoid an
unnecessary duplication of efforts and to ensure that the ICC defers to the State’s investiga-
tion.
Once a State has requested the deferral of an ICC investigation, the Prosecutor is obliged to
cease investigating the matter. However, the Prosecutor can then ask those States to pro-
Page 27
vide periodic reports on the progress of their investigations and any subsequent prosecu-
tions (article 18, paragraph (5)). States Parties are required to “respond to such requests
without undue delay.”
Even if a State does not request the Prosecutor to defer to the State investigation, the Prose-
cutor can decide to postpone the ICC investigation. The Prosecutor can then request the
relevant State to make available information on any proceedings in the same matter (article
19, paragraph (11)). Note that States can request the Prosecutor to keep this information
confidential.
Responsibilities of the ICC
If the ICC Prosecutor or Pre-Trial Chamber have concerns over the conduct of the State in-
vestigation or prosecution, the Pre-Trial Chamber can authorise the Prosecutor to proceed
with the investigation, either at first instance, or after a certain period of time has elapsed,
or where there has been a significant change of circumstances in the State (article 18, para-
graphs (2) and (3)). Note that States are able to appeal such preliminary rulings on
admissibility to the ICC Appeals Chamber, under article 18, paragraph (4). Where the
Prosecutor made the decision to defer investigation in the absence of notification from the
State, the relevant State must be notified if the Prosecutor resumes the investigation (article
19, paragraph (11)). In certain circumstances, States can then challenge the admissibility of
the case under article 19 and then appeal any decision made under that provision, if neces-
sary. In other words, States will be given every opportunity to ensure that the Court has
all the information it requires to reassure itself that the State authorities are acting in good
faith. A majority of judges of the Pre-Trial Chamber must concur in the decision to author-
ise the Prosecutor to proceed, and a majority of the five judges of the Appeals Chamber
must concur in any decision made on appeal (articles 39, 57 and 83).
Protection of evidence
While all of these procedures are being followed, there may be periods of time where it is
unclear as to which authority – State or ICC – will eventually take charge of the investiga-
tion or prosecution. In order to protect the interests of all those involved, States should
ensure that all relevant evidence within their possession is preserved in the meantime, in
accordance with article 93, paragraph (1), subparagraph (j). States should also note that the
Court might authorise the ICC Prosecutor to collect and preserve evidence during these
periods, under article 18, paragraph (6) and article 19, paragraph (8). Even if a State is
challenging the admissibility of a case in the ICC, all orders or warrants issued by the
Court prior to the making of the challenge remain in effect (article 19, paragraph (9)).
Therefore, States may need to co-operate with the ICC Prosecutor until it is clear that the
State will be taking responsibility for the investigation and prosecution of the matter (see
also article 19, paragraph (8)). While this arrangement may be difficult for both practical
and political reasons, it remains a treaty obligation of the State to cooperate with the Court
in all of its investigations and prosecutions.
Page 28
Obligations
a) Under article 18, paragraph (5), where the ICC Prosecutor has deferred an investigation
at the request of a State Party, that State Party must respond in a timely fashion to any
requests from the Prosecutor for information concerning the progress of its investiga-
tions and any subsequent prosecutions, in accordance with article 86.
b) While any conflicts over which authority will take responsibility for an investigation
are being resolved, States must continue to meet all of their obligations under article 93,
including the preservation of evidence within their possession and co-operation with
the ICC Prosecutor.
Implementation
Most of the matters and obligations outlined above will not require implementing legisla-
tion. They are procedural matters, designed to ensure efficient communications between
the ICC and national authorities. Nevertheless, it would be highly desirable for the rele-
vant authority to establish efficient administrative procedures for dealing with all of these
matters, in the event that such a sequence of events unfolds. This authority could be the
Ministry of Foreign Affairs, as the procedures will largely entail communication between
national authorities and the Court.
a) Notification and co-ordination
Most importantly, administrative procedures are needed to enable States that are already
investigating a matter to notify the ICC within one month of receiving notice from the ICC
that it wishes to investigate the same matter. This will require several things:
(i) a procedure whereby national investigators and prosecutors must notify the relevant
authority whenever they commence an investigation or prosecution of a crime that is
also within the jurisdiction of the ICC; and/or
(ii) designation of a person within the relevant authority to keep track of all national in-
vestigations and/or prosecutions for crimes that are also within the jurisdiction of the
ICC, or who is able to obtain information about particular cases of that kind promptly;
and
(iii) an expedited procedure for bringing to the attention of the appropriate person the no-
tification from the ICC and for responding to the ICC’s notification within one month.
The Swiss Government has created a Central Office for Cooperation with the ICC of the
Federal Bureau of Justice. This Office would likely coordinate all of the procedures and
communications required, should Switzerland find itself in the situation of wishing to in-
vestigate and prosecute the same matter as the ICC.
Page 29
b) Periodic updates
If the ICC decides not to investigate the same matter, administrative procedures are
needed to enable the State to respond to any requests for periodic updates made by the
ICC Prosecutor under article 18, paragraph (5). This will probably require effective and
timely communication between investigators, prosecutors, and the relevant government
department, in order for the State to be able to furnish the Court with the information it re-
quires.
c) Information on proceedings
Where the State Party has not requested the ICC Prosecutor to defer the investigation, but
the Prosecutor defers anyway, States should also be prepared to provide any information
on their proceedings that the Prosecutor requests, in accordance with article 19, paragraph
(11). This provision is not couched in obligatory terms. But it should also be interpreted in
light of article 86, which requires all States Parties to “co-operate fully with the Court in its
investigation and prosecution of crimes”. In addition, article 93, paragraph (1), subpara-
graph (i) stipulates that States must provide to the Court any records and documents that
the Court requests. Responding to requests by the Prosecutor for information on proceed-
ings under article 19, paragraph (11) will require the same kinds of procedures as for
providing periodic updates to the ICC Prosecutor in accordance with article 18, paragraph
(5). Note that information provided in accordance with article 19, paragraph (11) may be
provided to the ICC on a confidential basis.
d) Protection of evidence
Procedural and evidentiary laws and procedures are needed to ensure that the appropriate
people are empowered and enabled to preserve evidence and to co-operate with the Prose-
cutor’s investigations, in accordance with article 93, even when there is a possibility that
the State may take final responsibility for the matter. See Section 3.9 “Collecting and Pre-
serving Evidence” for more details on implementation requirements and examples for
these obligations.
3.4 Important Provisions in the Statute Relating to State Co-operation

Description
Part 9 of the Statute focuses on International Co-operation and Judicial Assistance. There
are two main types of co-operation envisaged between States Parties and the ICC under
this Part:
(i) arrest and surrender of persons at the request of the Court; and
(ii) other practical assistance with the Court’s investigations and prosecutions, e.g. collect-
ing evidence.
In addition, Part 10 on Enforcement outlines where the Court may need the assistance of
States Parties in enforcing its orders.
Page 30
“Co-operate fully with the Court”
Article 86 in Part 9 requires that all States Parties “co-operate fully with the Court in its in-
vestigation and prosecution of crimes within the jurisdiction of the Court”. The words “co-
operate fully” were chosen carefully by the drafters of the Statute, to emphasise the impor-
tant role that States must play in the effective and efficient functioning of the Court.
Article 86 also provides that States Parties must co-operate fully “in accordance with the
provisions of this Statute.” Thus, every provision of the Statute requiring State participa-
tion should be interpreted as requiring full co-operation, unless otherwise specified.
Article 88 stipulates that States Parties must “ensure that there are procedures available
under their national law for all of the forms of co-operation which are specified under this
Part.” In other words, it is envisaged that States will use their national laws to establish all
the procedures necessary to be able to assist the Court. All such procedures should allow
the State organs to respond as rapidly as possible to requests from the Court.
States Parties should also note that if they fail to comply with a request to co-operate by the
Court, contrary to the provisions of the Statute, thereby preventing the Court from exercis-
ing its functions and powers under the Statute, the Court may make a finding to that effect
and refer the matter to the Assembly of States Parties or, where the Security Council re-
ferred the matter to the Court, to the Security Council (article 87, paragraph (7)). The
Statute does not provide specifically for any sanctions. However, a State Party that does
not comply with requests from the Court will effectively be in breach of its treaty obliga-
tions in most instances, and this may have undesirable political consequences for that
State.
Jurisdiction of the ICC
Under article 12, paragraph (1), a State, once it becomes a Party to the Statute, thereby ac-
cepts the jurisdiction of the Court with respect to the crimes set out in article 5 (genocide,
crimes against humanity and war crimes, and aggression once a suitable definition has
been found). What this means is that once a State becomes a State Party, that State auto-
matically accepts the Court’s jurisdiction over genocide, crimes against humanity and war
crimes, from the date of entry into force of the Statute (article 11).
Note that non-States Parties may also accept the exercise of jurisdiction by the Court with
respect to a particular crime, by way of a declaration lodged in accordance with article 12,
paragraph (3). Non-States Parties are expected to co-operate fully once they agree to assist
the Court with a particular investigation (article 87, paragraph (5), subparagraph (a)). If
they breach the agreement or arrangement that they have made with the Court, it may in-
form the Assembly of States Parties or the Security Council, as appropriate (article 87,
paragraph (5), subparagraph (b)).
Page 31
Obligations
a) Under article 86, States Parties must be able to “co-operate fully with the Court in its
investigation and prosecution of crimes within the jurisdiction of the Court”, in accor-
dance with the provisions of the Statute.
b) Under article 88, States Parties must ensure that they have procedures available under
their national laws “for all of the forms of co-operation” specified in Part 9 of the Stat-
ute.
c) Under article 87, paragraph (5), subparagraph (a), non-States Parties must comply with
any agreements or arrangements for providing co-operation that they enter into with
the ICC.
Implementation
A State that becomes a Party to the Statute is thereby accepting that the Court has jurisdic-
tion over the crimes listed in article 5, from the date of entry into force of the Statute, and
that the Court may take jurisdiction over its nationals or other persons on its territory, in
certain well-defined circumstances. Therefore States Parties should ensure that there are
no obstacles to co-operation with the Court. A non-State Party that accepts the jurisdiction
of the Court over a particular crime should also ensure that there are no obstacles to co-
operation in accordance with whatever agreement or arrangement it enters into with the
Court. For example, States should ensure that all of the relevant State authorities are em-
powered to assume jurisdiction as necessary, in relation to ICC investigations and
prosecutions.
States will most likely have to enact implementing legislation, and implement appropriate
procedures, to enable them to meet all of their obligations under the Rome Statute. How-
ever, those States that already have arrangements for State-to-State co-operation may only
need to modify these arrangements slightly, to enable them to co-operate with the ICC as
well.
There are at least four approaches that States Parties have used in order to incorporate the
general obligation to cooperate under article 86: (1) including a general provision in the
implementing legislation to cover overall procedures of cooperation or (2) adding a provi-
sion in existing domestic legislation to apply the general procedures of existing regimes for
cooperation or (3) a hybrid approach adding a provision in the implementing legislation
that extends an already existing obligation to give judicial assistance and cooperation un-
der domestic legislation or (4) implement by practice without specific legislative
provisions.
Australia and Switzerland follow the first approach (AU s.3, SW art 3). Estonia has fol-
lowed the second approach by adding an article incorporating the obligation to cooperate
fully with the Court to its Code of Criminal Procedure (ES(P) art 415). Canada also follows
the second approach by providing that its domestic legislation on mutual assistance and
extradition legislation applies to ICC (CA ss.47-53 and 56-69). New Zealand and Finland
Page 32
have followed the third approach (NZ s.3, FI s. 4). For example, New Zealand bases its
provisions on cooperation on comparable provisions in the International War Crimes Tri-
bunal Act 1995; Finland bases its cooperation provisions with comparable provisions in the
Act of International Legal Assistance with Criminal Matters, 1994. The United Kingdom
takes the fourth approach of implementing by practice.
Requests for co-operation and assistance

Description
Article 87 enables the Court to make requests to States Parties for co-operation. Requests
from the Court will generally be in writing (article 91, paragraph (1), and article 96, para-
graph (1)) and transmitted through the diplomatic channel, unless the State specifies
otherwise (article 87, paragraph (1)). In some urgent cases, requests may be made by any
medium capable of delivering a written record, such as facsimiles or email, as long as the
request is subsequently confirmed through the appropriate channel (article 91, paragraph
(1), and article 96, paragraph (1)). Requests from the ICC and any supporting documenta-
tion will either be in, or accompanied by a translation into, an official language of the
requested State or one of the working languages of the Court (article 87, paragraph (2)).
The working languages of the Court are English and French (article 50, paragraph (2)).
Article 96 outlines the required contents of most requests for co-operation. The Court must
provide the following: a statement of the purpose and legal basis of the request and the as-
sistance sought; a statement of the factual situation underlying the request; information
concerning the possible location of persons or items that are the subject of the request; de-
tails of any special procedures or requirements that must be observed and the reason for
them; and any additional information that the State needs in order to execute the request
(article 96, paragraph (2)). States must advise the Court of any special requirements for
executing requests under their national laws (article 96, paragraph (3)).
Article 99, paragraph (1) provides that requests for assistance must be executed in accor-
dance with the relevant procedure under the law of the requested State. However, as long
as it is not prohibited under State law, the Court can specify the manner of execution of the
request, certain procedures that are to be followed, and certain persons who are to be pre-
sent or who are to assist with the execution process. Where the Court makes an urgent
request for documents or evidence, States must send such items urgently (article 99, para-
graph (2)).
Exceptions to the duty to comply with requests
Article 93 lists some of the main forms of assistance with ICC investigations that States are
required to provide, such as witness protection, search and seizure, and collection of evi-
dence. Note that this article requires States to “comply” with any requests by the Court for
the kinds of assistance listed in this article. There are only two narrow grounds for deny-
ing such a request. The first is where the request concerns the production of documents or
disclosure of evidence which relates to the requested State’s national security (article 93(4)).
Article 72 provides further detail on the procedures to be followed when a State has na-
tional security concerns.
Page 33
The second ground for denying requests is provided for in the combined language of arti-
cle 93, paragraph (1), subparagraph (l) and article 93, paragraph (5). Article 93, paragraph
(1), subparagraph (l) provides that any type of assistance which is not listed in paragraphs
(a)-(k) of article 93, paragraph (1) is only compulsory where it is not prohibited by the law
of the requested State. Article 93, paragraph (5) states: “Before denying a request for assis-
tance under paragraph 1(l), the requested State shall consider whether the assistance can be
provided subject to specified conditions, or whether the assistance can be provided at a
later date or in an alternative manner, provided that if the Court or the Prosecutor accepts
the assistance subject to conditions, the Court or the Prosecutor shall abide by them.”
Thus, if the type of assistance being requested is not listed in article 93, paragraph (1) and it
is prohibited by the law of the requested State and the State has considered whether the as-
sistance can be provided subject to conditions and so forth as per article 93, paragraph (5),
it would seem that under these articles a State may then deny that request for assistance.
Duty to consult
By contrast, where execution of a particular measure is prohibited in the requested State

“on the basis of an existing fundamental legal principle of general application”, article 93,
paragraph (3) does not explicitly state that the requested State can refuse to comply with
the request. Instead, this provision requires a State to consult with the Court and further
suggests that during the consultations, consideration be given as to whether the assistance
can be rendered in another manner or subject to conditions. However, the provision re-
quires the Court to “modify the request as necessary”, if the matter cannot be resolved by
consultation. Therefore it would seem to imply that a requested State may refuse to com-
ply with such a request until the Court has modified the request so that it would not be
prohibited in the State on the basis of an existing fundamental legal principle of general
application. Thereafter the State must comply with the modified request.
Article 97 gives some examples of the type of problems that may impede or prevent execu-
tion of requests: insufficient information to execute the request, inability to locate the
requested person or item after every attempt has been made to do so, and requests trans-
mitted in a form that appears to require the State to breach a pre-existing treaty obligation
to another State. In every case, the State must consult with the Court without delay in or-
der to find a solution to the problem. The State cannot refuse to execute the request, or it
will be in breach of its obligations under the Statute.
Obligations
a) States Parties must comply with all requests made by the Court in accordance with arti-
cle 93, except where they have national security concerns (article 72 and article 93,
paragraph (4)), or if the type of assistance being requested is not listed in article 93,
paragraph (1) and it is prohibited by the law of the requested State (article 93, para-
graph (1), subparagraph (l)) and the State has considered whether the assistance can be
provided subject to conditions and so forth as per article 93, paragraph (5).
b) Under article 93, paragraph (3), where execution of a particular measure of assistance is
prohibited in the requested State “on the basis of an existing fundamental legal princi-
Page 34
ple of general application”, the State must consult with the Court promptly to resolve
the matter, and should consider whether the assistance can be rendered in another
manner or subject to conditions, before denying the request.
c) Under article 96, paragraph (3), States Parties must consult with the Court when re-
quested, regarding any requirements under their national law for executing requests
from the Court. During such consultations, they must advise the Court of the specific
requirements under their law.
d) Article 97, which relates to other perceived problems with executing requests, requires
the State to consult with the Court “without delay in order to resolve the matter”.
e) States Parties must comply with any specifications that the Court makes under article
99, paragraph (1) in relation to the execution of a request for assistance, unless the
specified manner of execution is prohibited by the law of the requested State.
f) Under article 99, paragraph (2), where the Court makes an urgent request for docu-
ments or evidence, the requested State Party must send the requested items urgently, if
the Court requests this.
Implementation
In general terms, States Parties need to have laws and procedures in place to enable them
to comply with all requests for assistance from the ICC. These laws and procedures need
to be flexible enough to allow States Parties to comply with any specifications that accom-
pany the request, such as the manner of executing a particular request, or the procedure to
be followed. This may include requirements as to confidentiality or other forms of protec-
tion of information, as well as the urgency of the request.
All States should establish an effective method of communicating with the Court to resolve
any problems that may arise in relation to requests from the Court for assistance. For ex-
ample, someone working in the State’s Embassy at The Hague should be designated to
keep in regular contact with the ICC Registry, so that any potential difficulties in meeting
requests can be identified at an early stage. At the very least, a contact person should be
designated to keep up-to-date records on all communications with the Court and its vari-
ous organs.
Where States Parties have particular requirements concerning the execution of requests
from the ICC, they should make these known to the Court as soon as possible after ratifica-
tion. If they do not, then they must be prepared to do so whenever the Court requests such
information.
States Parties may also need to have laws that allow persons specified by the Court to be
present at and assist in the execution process, after the State Party has been consulted (arti-
cle 99, paragraph (4), subparagraph (b)). These persons are likely to include ICC
personnel, such as the Prosecutor or Deputy Prosecutors. They may also include Defence
counsel for a person being investigated by the ICC, where they have obtained an order or a
Page 35
request for co-operation from the Pre-Trial Chamber in accordance with article 57, para-
graph (3), subparagraph (b).
Some States Parties have comprehensively implemented the general provisions relating to
requests for assistance under Part 9 of the Rome Statute. In the Australian and New Zea-
land legislation, the person responsible for consulting with the ICC in the event that
execution of a request raises difficulties is the Attorney General (AU Part 2 and NZ Part 3).
These laws provide that the request must be made in accordance with the relevant proce-
dure under the respective domestic law. They also outline the restrictions on the provision
of assistance and the circumstances when the Attorney General is obligated or has the dis-
cretion to refuse a request for co-operation and/or to postpone the execution of a request
for cooperation. These provisions follow the wording of the Rome Statute closely, in order
to respect the obligations of States Parties under the Rome Statute.
In the Swiss legislation, the Federal Office of Justice administers a Central Authority for
cooperation with the ICC (SW art 3). The Central Authority can then appoint official coun-
sel, federal authorities or the canton responsible for the execution of a request. Under this
legislation, the Central Authority must consult with the ICC when (1) the execution of a
request would conflict with existing fundamental legal principle of the Rome Statute
(2) would prejudice national security interests (3) would interfere with ongoing investiga-
tion or prosecution of a difference case and (4) could violate States or diplomatic
immunity.
Postponement of execution of requests

Description
Articles 94 and 95 allow States to postpone the execution of requests, in certain situations.
Article 94 addresses the instance where execution of the request in the State would inter-
fere with an ongoing investigation or prosecution of a different matter. In such a situation,
the requested State is able to consult with the Court and to agree upon a period of time for
postponement of execution. This period must not be longer than is necessary to complete
the relevant investigation or prosecution in the requested State. The requested State may
also provide the assistance subject to certain conditions, if the State decides to provide the
assistance immediately.
Article 95 addresses the case of a request for assistance that is made when an admissibility
ruling is still pending. The ICC has the competence to decide all jurisdictional matters per-
taining to itself. However, the requested State may postpone the execution of a request
pending a determination by the Court, unless the Court has specifically ordered that the
Prosecutor may collect evidence before the Court has ruled on the admissibility issue. In
other words, it may be unclear at that stage as to whether a State authority or the ICC will
eventually prosecute the matter. So States are entitled to wait and see if the ICC will defi-
nitely be assuming jurisdiction before being required to execute requests made under Part
9, unless the Court orders otherwise.
Page 36
Obligations
a) If a State postpones the execution of a request for a period of time agreed upon with the
Court, in the case of potential interference with an ongoing investigation or prosecution
by the State of a different matter, the postponement must be no longer than is necessary
to complete the relevant investigation or prosecution in the requested State (article 94,
paragraph (1)).
b) Where the Court has specifically ordered that the ICC Prosecutor may pursue the col-
lection of evidence pursuant to article 18 or 19 on challenges to the admissibility of a
case before the ICC, and pending a determination of such a challenge, the requested
State must not postpone the execution of any requests from the Court. However, States
may postpone the execution of requests pending the determination of the matter, if
there is no such order from the Court (article 95).
Implementation
When a State receives a request for assistance from the ICC, it needs a mechanism whereby
it can check whether execution of the request would interfere with any ongoing investiga-
tions or prosecutions it is undertaking. This would probably involve a procedure for
consultations between all the relevant State authorities, to be undertaken within a reasona-
bly short period of time or on a regular basis. Such authorities need to be identified first
and would likely include law enforcement officers, prosecutors, defence counsel, court reg-
istry staff, and possibly military tribunal staff as well.
Once the relevant State authorities have been consulted, and it has been determined that
execution of the request would interfere with the State proceedings, the State must consult
with the Court to agree upon the appropriate time period for postponement of execution of
the request. The body that consults with the Court should know at what stage the State
proceedings are, in order to negotiate with the Court a suitable time period for the post-
ponement. In the alternative, the State should consider whether the assistance requested
could be provided immediately, subject to certain conditions. Any conditions should be
negotiated with the Court.
Where a State has postponed execution of a request in accordance with article 94, those in-
volved in the State’s investigation or prosecution will need to keep in contact with the
relevant authorities, so that the State can notify the ICC when it has completed its investi-
gations or prosecutions.
States should ensure that they keep themselves informed as to preliminary proceedings in
the ICC, such as admissibility challenges. If they decide to postpone execution of a request
pending the resolution of an admissibility issue, they should notify the Court of this deci-
sion. However, where the Prosecutor has permission from the Court to collect evidence on
the requested State’s territory, the State must have laws and procedures in place to be able
to provide any assistance to the Prosecutor that the Court has requested.
Page 37
The New Zealand legislation provides a provision, which sets out circumstances where the
Attorney General may postpone execution of assistance, one of which is the postponement
where there is an ongoing investigation or prosecution (NZ s.56).
Costs of executing requests

Description
Under article 100, paragraph (1), States must be prepared to bear the “ordinary costs for
execution of requests in their territory”, with quite a few exceptions. These exceptions are:
(a) Costs associated with the travel and security of witnesses and experts or the transfer un-
der article 93 of persons in custody;
(b) Costs of translation, interpretation and transcription;
(c) Travel and subsistence costs of the judges, the Prosecutor, the Deputy Prosecutors, the
Registrar, the Deputy Registrar and staff of any organ of the Court;
(d) Costs of any expert opinion or report requested by the Court;
(e) Costs associated with the transport of a person being surrendered to the Court by a cus-
todial State; and
(f) Following consultations, any extraordinary costs that may result from the execution of
the request.
Obligations
States must cover the costs of the execution of all requests for assistance in their territory
(article 100), except those listed in article 100, paragraph (1).
Implementation
States Parties need to ensure that they have sufficient funds to cover the cost of certain re-
quests from the Court. However, minimal additional costs are likely to be incurred, since
many of the forms of State co-operation required under the Statute will simply entail an ex-
tension to the usual work of various personnel already within the national criminal justice
system and Ministry of Foreign Affairs.
The Australian legislation specifically addresses the issue of costs in executing requests
(AU s. 174). It states that Australia is liable to pay any costs incurred in connection with
dealing with a request for cooperation other than the costs borne by the ICC.
Designation of an appropriate channel for receiving requests

Description
Under article 87, requests from the Court “shall be transmitted through the diplomatic
channel or any other appropriate channel as may be designated by each State Party upon
ratification, acceptance, approval or accession.” In addition, a State must indicate its pre-
Page 38
ferred language of correspondence at the time of ratification, acceptance, approval or ac-

cession. Subsequent changes to the designation of the appropriate channel, and the
language of correspondence may be made, in accordance with the Rules of Procedure and
Evidence (rule 176).
Under article 87, paragraph (1), subparagraph (b), requests from the Court may also be
transmitted through the International Criminal Police Organisation or any appropriate re-
gional organisation.
Obligations
Article 87 requires each State, upon ratification, acceptance, approval or accession, to des-
ignate:
(a) its preferred channel for communication, whether it be diplomatic or otherwise; and
(b) its preferred language of correspondence, either an official language of the State or a
working language of the Court (English or French).
Implementation
With respect to the diplomatic or other appropriate channel, a State may prefer to follow
the practice already established by that State for the ICTY. For example, many States re-
ceive communications from the ICTY through their embassies based in The Hague. In
cases where a State has no established ICTY practice, the State might want to designate that
communication be directed through a particular section/department of its Ministry of For-
eign Affairs or Ministry of Justice. Numerous States Parties made specific declarations as
to the designated channel when they deposited their instrument of ratification or accession
with the UN Secretary General. These declarations can all be accessed via the UN Treaty
database (http://untreaty.un.org), or the UN website on the ICC (http://www.un.org/
law/icc). They range from the more general declarations of “through diplomatic chan-
nels” to more specifically identifying the authority competent to receive requests.
Competent authorities have included Ministry of Justice, Public Prosecutor’s Office or
Procurator’s Office and Attorney General. Declarations could also specify a new govern-
ment office set up to deal with ICC requests, such as in Switzerland’s declaration which
refers to the Central Office for Cooperation with the ICC of the Federal Bureau of Justice.
In addition to identifying the diplomatic route, some declarations, such as Finland’s decla-
ration, have expressly stated that the Court can enter into direct contact with other
competent authorities in the State.
With respect to choosing a language of communication with the ICC, the State can desig-
nate either an official language of the State or a working language of the Court. Again,
States may wish to follow their practice established for communicating with the ICTY. Of
course, a State must take into account any legislation it has on its official languages. A
number of States, such as Norway, made the declaration choosing English as the working
language as regards to requests for cooperation from the Court, taking into consideration
Page 39
the Court’s translation charges and the resources available in the future, as well as the wish
to contribute to the quickest possible processing of the said request.
Note that requests may be transmitted from the Court to the International Criminal Police
Organisation (Interpol) or any appropriate regional organisation. With respect to States, it
is likely that the Court will only transmit requests to regional organisations when it is re-
questing assistance from every State in that organisation or is requesting assistance from
the regional organisation’s structure itself. The regional organisation must have a structure
in place to transmit such requests to its member States. States should ensure that they are
able to receive and execute requests made through regional organisations and Interpol.
Ensuring the confidentiality of requests

Description
The Rome Statute contains many references to the protection of confidential information.
The Court has a general duty to ensure the confidentiality of documents and information
within its possession except as required for the purpose of requests for State co-operation
(article 93, paragraph (8), subparagraph (a)). Article 87, paragraph (3) provides that the
“requested State shall keep confidential a request for co-operation and any documents
supporting the request, except to the extent that the disclosure is necessary for the execu-
tion of the request.” Thus, States must keep all requests from the ICC for co-operation
confidential, and only reveal to the appropriate authorities (for example, police in order to
execute a warrant of arrest) the amount of information they need in order to carry out the
request. The reason for these clauses is that the Prosecutor or the Court will need, as much
as possible, to keep confidential ICC investigations, indictments and requests for assistance
in order to prevent accused persons from fleeing, witnesses from being threatened or
killed, and evidence from disappearing or being destroyed. Therefore, a State’s role in
keeping such requests confidential will directly influence the effectiveness of the Court.
Under article 87, paragraph (4), a State Party may also be required to protect certain infor-
mation in its possession or control, where measures are necessary to ensure the safety or
physical or psychological well-being of victims, potential witnesses, and their families.
These measures will apply to the way that the State provides and handles the information,
and may also involve keeping certain information confidential. Under article 68, para-
graph (6), a State may make an application to the Court for it to take measures for the
protection of confidential or sensitive information, and the protection of State servants or
agents.
Under article 93, paragraph (8), subparagraph (b), a State receiving a request for co-
operation may transmit documents and information to the Prosecutor on a confidential ba-
sis, and the Prosecutor may use that information solely for the purpose of generating new
evidence. Subparagraph (c) provides that the State may subsequently consent to the dis-
closure of the documents.
Page 40
Obligations
(a) States are obliged to keep confidential requests for co-operation, and any documents
supporting these requests.
(b) If the Court makes a request pursuant to article 87, paragraph (4) for certain handling
of information, a State must comply, in order to protect victims, witnesses, and their
families.
Implementation
States must adopt procedures for keeping requests for co-operation, and all supporting
documents, confidential. This obligation of confidentiality might be designated in legisla-
tion, or might be left to be delineated by the executive. Whether this obligation is
implemented by legislation or by a decision of the executive, the State must ensure that the
channel chosen for receiving requests allows for confidentiality.
In addition, States need to implement procedures and possibly laws to enable them to pro-
vide and handle information in a manner that protects the safety and well-being of victims,
witnesses, and their families. These procedures are most likely to be regulated through the
executive and not through legislation. They could be implemented so as to apply to both
requests from the Court to protect information, and requests to the Court by the State to
protect information and certain individuals. However, a State must take into account its
national privacy legislation when establishing these procedures, and will need to deter-
mine if amendments are required.
Australia and New Zealand have similar provisions ensuring confidentiality and the pro-
tection of victims, witnesses and their families when executing a request for co-operation
(AU s. 13 and NZ s. 29). The requests must be kept confidential except to the extent disclo-
sure is necessary for the purpose of executing the request.
3.5 Possible Constitutional Issues Relating to Co-operation with the ICC

Since the first edition of this Manual was produced, many more States have encountered
difficulties with a range of issues, mostly relating to co-operation with the ICC, that appear
to conflict with their national constitutions. Most monist jurisdictions provide that no in-
ternational treaty may be entered into if it conflicts with the Constitution, since the
Constitution is the supreme law of the land. Therefore, implementation issues relating to
constitutional provisions were at the forefront of many government’s minds once the deci-
sion had been made at the national level to ratify the Statute. In many monist jurisdictions,
a special Constitutional Court or other similar body has reviewed the Rome Statute for any
inconsistencies with the national Constitution prior to ratification. In some States the deci-
sions of such a review body are binding while in other States this body provides
recommendations that are not binding. In any case, the decisions of constitutional bodies
from across the globe now provide a wealth of interpretive experience for other States to
draw upon, should they find apparent inconsistencies between the Rome Statute and their
Constitution.
Page 41
Numerous other organisations and authors have now produced comprehensive materials
addressing ICC constitutional issues, and some of these materials are listed in Chapter 6
“Select Resources”. This section of the Manual will not attempt a comprehensive discus-
sion of all the issues and approaches taken to such concerns. It will simply highlight the
main issues faced by most States to date, and provide examples of some of the approaches
taken to reconcile the State’s Constitution with the Rome Statute.
The following are the main provisions under the Rome Statute that have raised constitu-
tional questions for various States Parties when they are preparing to ratify and implement
the Rome Statute, and which will be discussed below:
the absence of immunity for Heads of State (article 27);

crimes listed under the Statute are not subject to a statute of limitations (article 29);
the obligation of a State to surrender its nationals at the ICC’s request (articles 59 & 89);
the ICC’s power to impose a sentence of life imprisonment (article 77, paragraph (1),
subparagraph (b));
persons appearing before the ICC will be judged by a three-judge chamber rather than
by a jury (article 39, paragraph (2), subparagraph (b), sub-subparagraph (ii));
the powers of investigation of the Prosecutor on the territory of a State Party (article 99,
paragraph (4);
complementary jurisdiction of the ICC (Preamble, articles 1, 17 and 19); and
“ne bis in idem” not absolute (article 20).
When assessing the potential impact of the Rome Statute on a State’s Constitution, it is im-
portant to keep in mind the values that the ICC seeks to uphold, namely, justice, the rule of
law, protection of human rights, and an end to impunity for those who wield their power
destructively and wantonly. It would be hard to find a Constitution in the world that does
not also aspire to these values. When States consider the interests that are intended to be
protected in each case, they are sure to find ample common ground. This should point the
way for reconciling any apparent inconsistencies between constitutional provisions and
Statute requirements.
The process of amending a Constitution is often a difficult and time-consuming procedure

in many countries. If possible, it would be more desirable to find another way to meet the
particular ICC obligation, in order to ensure that the State does not spend years preparing
for ratification and implementation, and thereby missing the opportunity to assist the
Court in its early days of operation. Nevertheless, each State must decide what will work
best in its jurisdiction, given its unique culture and constitutional arrangements.
In general terms, States have tended to follow one of the following approaches to resolving
constitutional issues:
Page 42
1) Amending the constitution.
2) The interpretative approach.
3) Leave the issue for the future, where it is considered highly unlikely to have any real
application due to the particular constitutional arrangement of that State.
1) Amendment
Only a small number of countries felt it was necessary to amend their Constitution, in or-
der to ensure full compliance with their obligations under the Rome Statute. If a State
needs to amend its Constitution, it may be possible to accomplish this with a simple
amendment that addresses a number of different issues at the same time. For example, the
Constitutional Council of France identified three potential areas of conflict between the
Rome Statute and the French Constitution. The French Government decided to adopt the
following constitutional provision, which addressed all three areas of conflict: “The Repub-
lic may recognise the jurisdiction of the International Criminal Court as provided by the
treaty signed on 18 July 1998” (article 53-2, Constitutional Law No. 99-568). The advantage
of this type of constitutional reform is that it implicitly amended the constitutional provi-
sions in question, without opening an extensive public debate on the merits of the
provisions themselves.
2) Interpretive approach
Most States have preferred the interpretative approach, which involves a decision or a rec-
ommendation by the relevant national authority that a particular interpretation of the
Constitution would avoid the necessity of amending the Constitution, despite what the
wording of the Constitution would seem to mean at face value. Sometimes the decision or
recommendation has been made by a Constitutional Court, sometimes by a parliamentary
body, where the legislature is involved in making the decision whether or not to ratify.
In general terms, the fundamental principles underlying the Rome Statute are consistent
with those of most Constitutions of the world. This is partly why so many States have be-
come Parties to the Statute in such a short period. For example, the Ecuadorian
Constitutional Tribunal’s Opinion on the Compatibility of the Rome Statute with its Na-
tional Constitution concluded: “The object and purpose of the Rome Statute is the
protection of human rights, as the codification of the serious crimes under its jurisdiction
and the Court’s mandate to bring those responsible to justice seeks to safeguard the rights
of all people; That the ICC has been created to uphold peace and security in the interna-
tional community at large and that the crimes under its jurisdiction are regarded as the
most egregious under international law and also under the national law of the State; That
the rights of the alleged perpetrators are fully guaranteed by the procedural norms of the
Court, whose Statute includes universal principles of criminal procedure; These objectives
– conveyed in principles, values, and norms – are also found in the Constitution and in the
judicial order of Ecuador.” (unofficial translation prepared by Human Rights Watch, Feb-
ruary 2001).
Page 43
The interpretive approach to resolving constitutional issues suggests that if someone takes
action contrary to these shared, fundamental principles, thereby breaching the State’s
Rome Statute obligations, the national Constitution should not protect or apply to that per-
son. For example, several European States have found it unnecessary to amend
constitutional provisions on the immunity of their Head of State. One of the reasons cited
was that any Head of State who commits one of the crimes within the ICC’s jurisdiction
would place themselves outside of the Constitution (Norway was the first State to take this
approach).
4) Leave the constitutional issue for the future
This is the least desirable option, as it does not guarantee that the State will be in a position
to assist the Court when requested. Nevertheless, a small number of States have decided
that this is their only option, in order to become a Party to the Rome Statute. In some
States, due to their particular constitutional arrangements, an amendment to the Constitu-
tion would be an extraordinarily lengthy and complex process, with no guarantee of
success. In Australia, for example, constitutional amendment requires a national referen-
dum to be held, and a positive vote by a majority of voters in a majority of States – even
with broad political support for the amendment, and a positive campaign over several
years by all political parties, it is highly unusual for such referenda in Australia to be suc-
cessful. Most of the States in this category also have no mechanism that would allow them
to take the interpretive approach to resolving the constitutional issue in question.
In general terms, the decision of these States not to amend their Constitution was also
based upon the following considerations: (i) the constitutional issue in question was highly
theoretical, requiring a number of highly unlikely events to take place, before it could pos-
sibly become a real issue in practice; (ii) if the State were to find itself in that highly
unlikely situation, there would have been already a complete collapse of the constitutional
order, such that the Constitution would no longer applies, anyway.
Absence of immunity for Heads of State

Description
Under many Constitutions, Heads of State enjoy immunity from criminal prosecution, in
order to avoid politically motivated attempts to destabilise the State. At the same time,
some modern Heads of State, especially constitutional monarchs, do not have any effective
authority, especially over the armed forces, but serve a symbolic function only. Sometimes
Head of State immunity comes with exceptions, such as only protecting the Heads of State
while holding office. Some constitutions also protect members of government and gov-
ernment officials. Under article 27, Rome Statute, a Head of State or other official who
commits a crime within the jurisdiction of the ICC will lose his or her immunity and can be
prosecuted by the ICC. The provisions of the Statute are applicable to everyone regardless
of any distinction based on official capacity. The International Court of Justice explicitly
recognised the legitimacy of article 27, in the Yerodia case (Democratic Republic of Congo
vs. Belgium), when distinguishing the ICC from national courts asserting universal juris-
diction.
Page 44
The idea of an absence of immunity for Heads of State accused of international crimes is
not new. The existence of this rule was recognised following the First World War in the
Treaty of Versailles, after the Second World War in the Charter of the Nuremberg Tribunal,
in the Genocide Convention, by the International Law Commission, and in the Statutes of
ICTY/R.
Article 27 confirms the rule that individuals cannot absolve themselves of criminal respon-
sibility by alleging that an international crime was committed by a State or in the name of a
State, because in conferring this mandate upon themselves, they are exceeding the powers
recognised by international law. With respect to immunity for former Heads of State for
crimes committed while they were in power, the United Kingdom’s House of Lords ruled
that Senator Augusto Pinochet was not entitled to immunity in any form for the acts of tor-
ture committed under his orders when he was Chile’s Head of State. The House indicated
that because the alleged acts of torture could not be considered as constituting part of the
functions of a Head of State, these acts were not protected by any immunity (R. v. Ex p Pi-
nochet Ugarte (No 3) [1999] 2 All.E.R. 97).
States Parties to the Rome Statute need not eliminate all existing forms of immunity for
their representatives. The Statute simply obliges them to provide an exception to the gen-
eral rule, if they have not already done so.
Obligations
When the ICC requests that a State Party surrender its Head of State or other official be-
cause he or she is accused of one of the crimes listed under the Statute, the State in question
will not be able to invoke any immunities under national law as a reason for refusal to de-
liver that person. The State must surrender the person to the ICC, in accordance with
articles 59 & 89.
Implementation
Some States have introduced an amendment in their general ICC implementing law that
disallows any immunity as grounds for refusing to surrender someone to the ICC (for ex-
ample, see the Canadian and New Zealand ICC legislation (CA(E) s 6.1, NZ s.31)).
However, where there is concern about inconsistencies between the Rome Statute and na-
tional constitutions, States have taken a number of approaches. In general terms, they have
followed one of the three main approaches listed above:
1) Amending the constitution (for example, see Frances, Ireland, Portugal, and a number
of Latin American countries).
2) The interpretative approach (for example, see a number of European States, Cambodia).
3) Leave the issue for the future, where it is considered highly unlikely to have any real
application (for example, see the United Kingdom, Greece, and Australia).
Page 45
a) Amendments to the constitution
Where Constitutions provide for absolute immunity for any State official, article 27 may
necessitate constitutional or legislative amendments for States Parties. They may need to
establish an exception to this absolute immunity, for their Heads of State and any other of-
ficials that would otherwise be immune from criminal prosecution. This amendment could
be minor, and may simply consist of the addition of a provision making an exception to the
principle of immunity for the Head of State or other officials, should they commit one of
the crimes listed under the Statute.
Approaches taken in amending the constitution can range from the straightforward to a
more limited amendment. To ensure that States could prosecute domestically as well as
cooperate with the Court, an effective amendment would specify that immunity does not
apply to the crimes enumerated in the Rome Statute. A more limited constitutional
amendment covers cooperation with the ICC. The French approach is an example of the
limited amendment version. Following the French Constitutional Council’s conclusion
that ratification of the Rome Statute required a revision of the Constitution, the Constitu-
tion was subsequently amended by inserting a new article which provides that “the
Republic may recognise the jurisdiction of the ICC as provided in the treaty signed on 18
July 1998”. This would appear to allow France to cooperate with the Court but does not
indicate that immunity is revoked with respect to domestic prosecutions of ICC crimes.
In Belgium, the Opinion of the Council of State concluded that the Constitution was incon-
sistent with the Rome Statute and suggested adding a new provision stating “the State
adheres to the Statute of the International Criminal Court, done in Rome on the 17 July
1998”. In Luxembourg, a new provision was added to the Constitution providing that “the
provisions of the Constitution do not hinder the approval of the Statute and the perform-
ance of the obligations arising from the Statute according to the conditions provided
therein”. These amendments were sufficient to address any inconsistencies between article
27 and the Constitution.
b) The interpretative approach
Several European States, amongst others, have decided that they do not need to amend
their constitutions, in order to provide for an exception to immunities under national law.
They believe it is already implicit in their constitutions. If the unlikely situation arises
where the ICC requests the surrender of an official, such as their Head of State, a purposive
interpretation of the relevant constitutional provision would allow for that official to be
surrendered, given that the purpose of the ICC is to combat impunity for “the most serious
crimes of concern to the international community as a whole”. If a State official commits
such a crime, this would probably violate the underlying principles of any Constitution.
Therefore, other States may be able to surrender State officials to the ICC, notwithstanding
the protection that their Constitutions may appear to offer to the official under normal cir-
cumstances.
Immunities that are subject to waiver or impeachment proceedings in the Constitutions can
be interpreted to comply with the Rome Statute. The reason for this is that the Constitu-
Page 46
tion provides a mechanism necessary to cooperate fully with the Court, provided the Con-
stitutional device of waiver or impeachment is used when the ICC requests cooperation.
Immunities for Heads of State not subject to waiver or impeachment but restricted to acts
committed in the exercise of their duties, allows for easy interpretation, since committing
an ICC crime is clearly not the “duty” of anyone. The more difficult scenario is when
Heads of State have absolute immunity. Below are some examples of interpretations that
address this kind of immunity.
In Cambodia, the Constitution provides the King absolute immunity from prosecution,
even though he has some real powers should Cambodia be invaded and have to defend it-
self militarily. The “interpretative approach” of the parliamentary Commissions on
Legislation effectively concluded that if the King commits one of the ICC crimes, he would
be acting against international law, not national laws. Since the Constitution is a national
law, operating in a separate sphere from international law, then the King can only be
prosecuted by the ICC, therefore there was no need to remove his immunity under the
Constitution. Now that Cambodia is in the process of implementing the ICC crimes into
national law, this interpretation may need to be adjusted.
The Spanish Council of State’s opinion on the King’s inviolability was that if the King was
relieved of responsibility, then all public acts done by him had to be countersigned. It
would be the countersigning official who would bear individual penal responsibility. In
Ukraine, the Opinion of the Constitutional Court concluded that the Rome Statute was not
contrary to the immunities granted by the Constitution since the crimes subject to the ju-
risdiction of the ICC were crimes under international law recognised by customary
international law or by other international treaties binding on Ukraine. The immunities
granted by the Constitution were only applicable before national jurisdictions and did not
constitute obstacles to the jurisdiction of the ICC. Regarding the Norwegian King’s immu-
nity, the government of Norway determined that the Rome Statute does not create an
obligation to prosecute the King before domestic courts. However, where the King may be
subject to the jurisdiction of the ICC, the opinion of the government is that it is highly
unlikely that the King would be accused of such crimes as he has very limited constitu-
tional powers. It further concludes that the Constitution must be interpreted in the light of
the ideas and opinions prevalent in society, which includes the developments of interna-
tional humanitarian law since the origin of the Constitution in 1814.
As one can see from the examples above, there are various bases for using the interpreta-
tive approach. One view is to see a Constitution as a living document that reflects the
evolving times and interprets the language in a broad and liberal manner. Another view is
to interpret the Constitution looking at the object and purpose of the document, which are
often based on human rights principles. This view recognises the consistency between the
values and objectives of the Rome Statute with those in national Constitutions. Another
view is to see that interpretations of Constitutions are consistent with international law ob-
ligations, which would now include the Rome Statute. A State could also make provisions
to ensure that its own courts can prosecute the Head of State for the commission of crimes
within the jurisdiction of the ICC. The advantage of this approach is that, as a result of the
Page 47
principle of complementarity running through the Statute, the State would likely exercise
jurisdiction in this matter.
c) Leave the issue for the future
In States where the possibility of a conflict between the Rome Statute and the national Con-
stitution is considered quite remote, the State may be of the opinion to put the issue aside
and live with the potential incompatibility for the purposes of ratification and implementa-
tion. And if such an issue would materialise in the future, to deal with it then. Several of
the Constitutions in question contain symbolic references to previous power-sharing ar-
rangements that remain an important part of the nation’s history and culture, even after
enactment of the Constitution, such as the constitutional monarch as the Head of State. In
actuality, constitutional monarchs generally have no real, effective authority, unlike other
Heads of State, despite the wording of the Constitution.
Whatever solution is adopted, immunity should no longer be absolute and should not pre-
vent the ICC from prosecuting the perpetrators of the international crimes listed under the
Statute.
No statute of limitations
Description
The ICC may not investigate and try crimes that are committed before the Statute enters
into force. However, with respect to conduct occurring after the Statute enters into force,
perpetrators of crimes covered by the Statute can still be prosecuted and punished by the
ICC regardless of the number of years that have elapsed between the crime’s commission
and the indictment (article 29). In other words, the crimes within the jurisdiction of the
ICC will not be subject to any statute of limitations.
The non-applicability of statutory limitations to ICC crimes should not normally pose con-
stitutional problems, because constitutions usually do not contain such provisions.
However, even in the absence of such a provision, there is a possibility of constitutional is-
sues arising. For example, the French Constitutional Council found that the Rome Statute
conflicted with the French Constitution by encroaching on the exercise of national sover-
eignty, by depriving France of its power to decide against prosecuting individuals under
its authority who had committed an international crime thirty years earlier. Thus, France
had to amend its Constitution, to ensure that it could meet its obligation to surrender in
every case.
Obligations
States must ensure that persons may be surrendered to the ICC, even when statutory limi-
tations would normally apply under national legislation to the crime for which they are
being charged.
Page 48
Implementation
States may wish to follow the example of France, by making a general amendment to their
constitution that allows them to co-operate with the ICC in all situations. Or they may
wish to introduce a more specific amendment, providing that their statute of limitations or
other similar restrictions, do not apply to prevent the surrender of persons to the ICC.
Alternatively, these States can decide to amend their laws, specifying that no international
crimes should be subject to a statute of limitations. This is the best solution if the State
Party itself intends to prosecute all cases of international crimes involving perpetrators un-
der their authority. It is also in conformity with the spirit of the International Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,
which was adopted by the General Assembly in 1968.
In all situations, legislation to implement the Statute must include the possibility of sur-
rendering an accused person to the ICC, even if the crime of which they are accused is
subject to a statute of limitations under national law.
The surrender by a State of its own nationals

Description
The ICC will sometimes request that a State Party surrender one of its nationals, where that
person is suspected of having committed a crime within the jurisdiction of the Court.
However, this may pose difficulties for States where their constitution expressly prohibits
them from extraditing their nationals, and it may require creative solutions. Such States
should take into account the “distinct nature of the Court” (article 91, paragraph (2), sub-
paragraph (c)) when deciding how best to ensure that the nationality of the requested
person does not affect surrender to the ICC.
The Rome Statute is careful to distinguish “surrender” from “extradition”. Article 102 de-
fines surrender to mean the delivering up of a person by a State to the Court, while
extradition means the delivering up of a person by one State to another as provided by
treaty, convention or national legislation. While constitutional provisions against extradi-
tion of a State’s own national vary, a common underlying assumption for such a provision
is that a fairer trial will be found in domestic rather than foreign courts. Also, domestic
courts are considered a more appropriate forum due to the accused’s cultural background,
local deterrence objectives and State’s responsibility to prosecute its own criminals. How-
ever, the ICC is not a “foreign” court, in the usual sense. Its jurisdiction and procedures
have been negotiated by representatives from almost every nation, and most States Parties
to the Rome Statute were actively involved in negotiating the Statute. Therefore, it repre-
sents their national concerns, as well as the concerns of the international community as a
whole, and should not be viewed as a “foreign” tribunal.
Obligations
A State Party to the Statute cannot invoke any grounds for refusal to surrender based on
the nationality of the accused, or a constitutional provision that prohibits them from extra-
Page 49
diting nationals. When, in conformity with the Statute’s provisions, and observing the
principle of complementarity, the ICC requests that a State surrenders one of its nationals,
every State Party is obliged to comply with this request.
Implementation
For many States, the possibility of surrendering nationals to the ICC does not necessitate
adoption of any particular legislative measure other than one that would provide for the
surrender of any person to the ICC. However, some States have a Constitution that ex-
pressly prohibits extradition of nationals. These States have a choice between two options:
a) Amend the constitution
The amendment could be minor, aimed only at including an exception to the principle, to
ensure that the Constitution would not be breached by the surrender of a national to the
ICC. The advantage of a constitutional amendment with a specific reference to the ICC is
that it erases any possibility of normative conflict at the national level. It constitutes an as-
surance that national courts will render judgments in conformity with legal obligations
issuing from the Rome Statute, despite possible hesitation in surrendering a citizen to an-
other judicial system.
In Germany, a proposed amendment to its Constitution relating to extradition of nationals

is “ a regulation in derogation of this may be made by statute for extradition to a member
State of the EU or an international criminal court”. This sort of approach is generally taken
where States have relatively straightforward procedures for amending their Constitutions.
b) Interpretative approach
One view of interpreting the constitutional prohibition against extradition of a State’s own
national is that such provisions should be read in conformity with international law. In-
ternational law includes the Rome Statute that distinguishes surrender from extradition.
Some States have already followed this approach in their cooperation legislation with the
ICTY and ICTR. The Rome Statute also enshrines international human rights standards,
such as the right to a fair trial to the accused. Also the Court, being negotiating and finan-
cially supported by the States Parties, is not the same as another State. Another view is to
see the ICC not as a foreign court or foreign jurisdiction but as an extension of domestic ju-
risdiction.
Some examples of the interpretative approach include Costa Rica. Their Constitutional
Court was of the opinion that the guarantee under its Constitution that no Costa Rican
may be compelled to abandon the national territory was not absolute. In the spirit of the
Constitution, the recognition of this guarantee should be compatible with the development
of international humanitarian law, which includes the Rome Statute. In Ecuador, the Con-
stitutional Court was of the opinion that the Constitution’s prohibition of extradition of
nationals is not inconsistent with the Rome Statute. The Court reasoned that the main ob-
jective of that provision was the protection of the accused and since the ICC is an
international tribunal that represents the international community and is established with
the consent of Ecuador, protection of the accused is ensured. The Ukraine Constitutional
Page 50
Court’s opinion that there is no inconsistency between its Constitution and the Rome Stat-
ute bases this on the distinction between “surrender” and “extradition”.
This interpretative approach can be reconfirmed in establishing clearly, in the act imple-
menting the Statute, the distinction between extraditing a person to another State and
surrendering a person to the ICC, which would allow them to surrender nationals to the
ICC even though there is a restriction on “extraditing” nationals to tribunals outside the
State. This would allow them to maintain the prohibition on extraditing a person to a for-
eign tribunal, while not interfering with their ability to co-operate fully with the ICC. The
advantage of this approach is that it avoids the need for constitutional reform and, in con-
formity with the Statute, it establishes simplified procedures with respect to the surrender
of an accused person to the ICC. It also recognises the distinct nature of the ICC’s jurisdic-
tion, which cannot be considered as a foreign jurisdiction, and provides more efficient
procedures for co-operation.
The sentence of life imprisonment

Description
Article 77, paragraph (1), subparagraph (b) empowers the ICC to impose a sentence of life
imprisonment, but only when justified by the extreme gravity of the crime and the indi-
vidual circumstances of the convicted person. Otherwise the maximum penalty for
offences under the Rome Statute is 30 years imprisonment. Some constitutions may pro-
hibit life imprisonment, or 30 year terms of imprisonment, on the grounds that they do not
provide any opportunity for rehabilitation, or that they are disproportionate to the nature
of the crime. It would be hard to argue that lengthy periods of imprisonment are dispro-
portionate to most of the crimes within the jurisdiction of the ICC, particularly when a life
sentence must be justified by “the extreme gravity of the crime”. Such a sentence will only
be imposed upon those holding the highest degree of responsibility in the commission of
the most serious crimes, such as genocide.
Provision for rehabilitation under the Rome Statute
Furthermore, the Rome Statute does in fact provide for the possibility of rehabilitation.
Under article 110, paragraph (3), the Court must review all sentences of imprisonment after
the person has served two thirds of the sentence, or 25 years in the case of a life sentence, to
determine whether the person’s sentence should be reduced. At that stage, the Court will
consider such matters as whether the person has assisted the Court in locating any assets
that are subject to fine, forfeiture or reparation orders, which can be used for the benefit of
victims (article 110, paragraph (4), subparagraph (b)). The Court may also consider any
“other factors establishing a clear and significant change of circumstances sufficient to jus-
tify the reduction of sentence” (article 110, paragraph (4), subparagraph (c)). Therefore, a
life sentence may be reduced to 25 years in some cases. If the Court decides not to reduce
the person’s sentence after the first review, the Statute requires the Court to continue to re-
view the question of reduction of sentence in accordance with provisions in the Rules of
Procedure and Evidence which incorporates the principle of rehabilitation in the criteria
Page 51
the Court shall apply in reviewing a sentence (article 110, paragraph (5) and Rules 223 and
224).
During negotiations on the penalties for the ICC, many States were in favour of applying
the death penalty in the most extreme cases. The number of States with the death penalty
is only slightly fewer than those that do not have a death penalty. There is no opportunity
for rehabilitation whatsoever where the death penalty is imposed. Thus a life sentence
with a possibility of reduction to 25 years is a reasonable compromise between the death
penalty and a maximum prison sentence of 30 years. States should also remember that ar-
ticle 80 specifically states that the Statute does not affect the application by States of
penalties prescribed by their national law, nor does it affect the law of States which do not
provide for penalties prescribed in the Statute. States Parties do not have to adopt the
same penalties for similar offences in their jurisdiction, nor will they be required to enforce
any sentences of imprisonment unless they volunteer to do so. At that stage, they may also
specify conditions on the acceptance of sentenced persons, including a condition that they
do not have to enforce a sentence of life imprisonment (article 106, paragraph (2)). There-
fore, States Parties with constitutional provisions prohibiting the imposition of a life
sentence may only need to make an exception allowing them to surrender persons to the
ICC, despite the fact that such persons may be sentenced to life imprisonment.
Obligations
States Parties to the Statute are required to surrender an accused to the ICC when re-
quested, even if this person may be sentenced to life imprisonment.
In keeping with article 80 and the principle of complementarity, however, when States Par-
ties are themselves prosecuting the perpetrator of a crime listed under the Statute, they are
not obliged to impose a life sentence.
Implementation
For many States, the power of the ICC to impose a life sentence will not necessitate the
adoption of any particular legislative measures. However, some States have a Constitution
that explicitly prohibits the extradition of a person to a State where this sentence is im-
posed, or that declares that a life sentence constitutes cruel punishment. These States have
the choice between two options:
a) Amend the constitution
The amendment could be minor, aiming only to include an exception to the constitutional
principle. It could specify that a life sentence imposed by the ICC in conformity with the
Rome Statute for one of the crimes listed under the Statute is not in violation of the Consti-
tution. It should also mention that the State can surrender an accused person to the ICC
despite the possibility of the life sentence being imposed. The constitutional amendment
could also make mention of the fact that the ICC may reduce the sentence after 25 years, so
there is a possibility for rehabilitation.
Page 52
The advantage of a constitutional amendment that refers specifically to the ICC is that it
erases any possibility of normative conflict. It ensures that national courts will make rul-
ings in conformity with the legal obligations issuing from the Rome Statute.
b) Interpretive approach: Establish clearly, in the Act implementing the Statute, the dis-
tinction between extraditing a person to another State and surrendering a person to the
ICC.
Some States may be able to make a distinction in their laws between extraditing a person to
another State and surrendering a person to the ICC, which would allow them to surrender
persons to the ICC even though there is a restriction on “extraditing” persons to tribunals
that impose sentences of life imprisonment. This would allow them to maintain the prohi-
bition on extraditing a person to some foreign tribunals, while not interfering with their
ability to co-operate fully with the ICC.
A number of opinions by Constitutional Courts in various States, including Spain, Costa

Rica, Ecuador and Ukraine, have interpreted the provision which prohibits life sentences
or state that the main objective of the penal system are education and training to be consis-
tent with the Rome Statute. The mean reason is that this would not preclude the
application of the penalties prescribed by national law to domestic prosecutions of ICC
crimes. Also, since the Statute allows for an automatic review of sentences, the sentence
imposed would not be, in practice, life or indefinite sentences. The Rome Statute is also to
consider treaties, principles and norms of applicable international law and interpret the
Statute accordingly. The International Covenant on Civil and Political Rights establishes
the principle that the main objective of a penitentiary system is the rehabilitation of con-
victed persons.
The right to trial by jury

Description
Some constitutions provide for the right to trial by jury. Under article 39, paragraph (2),
subparagraph (b), persons appearing before the ICC will be tried by a three-judge Trial
Chamber. The ICTY/R function in the same way. Constitutional problems should not re-
sult, however, because generally speaking this right does not apply with respect to
extradition to a foreign jurisdiction. For example, in Reid v. Covert (354 U.S. 1, 6 1957), the
United States Supreme Court found that the right to trial by jury should not be interpreted
in such a way as to prevent the extradition of an American citizen to face trial in another
jurisdiction. An individual may have the right to be judged by a jury before judicial au-
thorities of their own State, but may not necessarily enjoy this right in other jurisdictions.
This rule should be applied in the case of the ICC, because it does not constitute a foreign
jurisdiction, but is rather an international jurisdiction that the States Parties have decided
to vest with specific powers. Moreover, the guarantees of judicial independence and com-
petency provided by the Rome Statute are sufficient to guarantee an accused person a fair
trial despite the absence of a jury.
Page 53
Obligations
States Parties to the Statute must be able to surrender a person to the ICC when requested,
in conformity with the provisions of the Statute, even though the person may have a con-
stitutional right to a trial by jury.
Implementation
States Parties may need to review their constitutions and existing jurisprudence on the
right to trial by jury, to ensure that this would not create a barrier to surrender to the ICC.
For example, they may find that the right only applies when nationals are being tried by
State courts. If an amendment to the constitution is required, this could simply provide
that surrender to the ICC is an exception to the usual principle that every citizen of that
State must be tried by a jury.
Powers of investigation of the Prosecutor on the territory of a State Party

Description
Article 54, paragraph (2) opens the possibility that the Prosecutor might conduct investiga-
tions in the territory of any State Party. This provision and others in the Rome Statute
mean that certain powers are ceded to international actors and to international procedures.
Certain of these powers of investigation of the Prosecutor on the territory of States Parties
may raise some issues of concern for States in relation to their Constitutions. Article 57,
paragraph (3) allows the Prosecutor to take investigative steps within the territory of a
State Party when, in the opinion of the Pre-trial Chamber, the State is clearly unable to exe-
cute a request for cooperation. Article 99, paragraph (4) allows the ICC Prosecutor to go on
State’s Parties territories in order to conduct site investigations and gather depositions
from witnesses, after consulting with the State in question and subject to any conditions
the State may impose, in most cases. It also allows the Prosecutor to carry out an investiga-
tion without the presence of the authorities of the requested State Party, in certain limited
circumstances. Note that the provisions regarding restrictions on disclosure of confidential
information connected with national security apply to the execution of requests for assis-
tance under article 99 of the Rome Statute.
Article 99 has caused constitutional difficulties for some States Parties. For example, in
France, the Constitutional Council expressed concern that article 99 allows the ICC Prose-
cutor to affect the conditions for the exercise of national sovereignty. This power
contradicted the rule giving French judicial authorities sole responsibility to perform ac-
tions requested in the name of legal cooperation by a foreign authority. In order to
surmount this obstacle, the French government added a provision to its Constitution ad-
dressing the issue of unconstitutionality and thereby allowing implicit constitutional
reform on the concern raised in the context of article 99.
Page 54
Obligations
States Parties to the Statute must allow the Prosecutor the power of investigation on their
territories, in accordance with the procedures under the Rome Statute (article 54, para-
graph (2), article 57, paragraph (3) and article 99, paragraph (4)).
Implementation
A number of States have reviewed their Constitutions to determine inconsistencies with

the Rome Statute. For example, the French Constitutional Council is of the opinion that
when the ICC Prosecutor is on a State’s territory following a determination by the Pre-trial
Chamber that the State is unable to execute a request for cooperation, this does not infringe
the exercise of national sovereignty. In the same opinion, the Council concluded that the
powers of investigation for Prosecutors under article 99, paragraph (4) were incompatible
with the exercise of national sovereignty to the extent that the investigations may be car-
ried out without the presence of French judicial authorities, even in the absence of
circumstances justifying such steps. In this matter, the French Constitution was amended.
However, the Luxembourg Council of States had a different opinion. They found that
given the Prosecutor’s power to investigate was based on consultations with the State con-
cerned and concerned particular interviews of persons on a voluntary basis, there was no
incompatibility between Luxembourg’s Constitution and the Rome Statute. In Spain, the
interpretative approach considered that the powers of the Prosecutor were of the compe-
tence of national judicial authorities and therefore the transfer of those powers to an
international court is permitted under it’s Constitution. The opinion of the Ecuadorian
Court is that while the powers of investigation of the Prosecutor may be seen to encroach
on the powers of the Public Minister, they considered the Prosecutor’s investigation pow-
ers as a form of international judicial cooperation.
Complementary jurisdiction of the ICC

Description
The “complementary” jurisdiction of the ICC is established by article 1, Rome Statute, and
is also referred to specifically in Preambular paragraph 10, as one of the guiding principles
of the Statute. Under the “principle of complementarity”, the ICC will generally defer to
national criminal jurisdictions that may wish to investigate and prosecute cases also within
the jurisdiction of the ICC. This principle recognises the primary responsibility and duty
of every State “to exercise its jurisdiction over those responsible for international crimes”
(Preambular paragraph 6). At the same time, the ICC may also admit cases where the State
is “unwilling or unable genuinely to carry out the investigation or prosecution” (articles 17
and 19). The circumstances where this situation may arise include the collapse of the State,
or where a State is deliberately shielding a person from criminal responsibility for ICC
crimes. They may also arise where there is an agreement to “share” prosecutions between
the ICC and national courts, to make the workload on the ICC less, as happened in
Rwanda. All of these issues are discussed in further detail in Chapter 4 “The Complemen-
tary Jurisdiction of the ICC”.
Page 55
Implementation
Some States, such as France and Spain, examined the complementarity provisions of the
Rome Statute and whether such provisions are consistent with its Constitution. France
considered that the restriction on the principle of complementarity, in the case where a
State deliberately evaded its obligation, was derived from the rule pacta sunt servanda (a
treaty is binding on the parties and must be executed in good faith) and was clear and well
defined. Therefore such limitations did not infringe on national sovereignty. The Spanish
Council of States was of the opinion that the Constitution implicitly recognises the exis-
tence of a jurisdiction superior to that of Spanish jurisdictional organs. Other States, such
as the Ukraine considered that the provision in its Constitution regarding the exclusive
competence of the courts and judges could not be delegated to a jurisdiction supplemen-
tary to the national system and would therefore have to be amended.
Ne bis in idem
Description
Article 20, paragraph (3) of the Rome Statute permits in certain circumstances that a person
tried before a national court be re-tried before the ICC. These circumstances include when
the previous proceeding was for the purpose of shielding the person concerned from
criminal responsibility for crimes within the jurisdiction of the Court or otherwise were not
conducted independently or impartially in accordance with the norms of due process rec-
ognised by international law and were conducted in a manner which, in circumstances,
were inconsistent with an intent to bring the person concerned to justice. This provides a
very limited exception to the principle of “ne bis in idem”, which is protected, either ex-
pressly or implicitly, under a number of States’ Constitutions.
Article 108, paragraph (1) also provides that a person sentenced by the ICC, who is in the
custody of the State of enforcement, shall not be subject to prosecution or punishment or to
extradition to a third State for any conduct engaged in prior to that person’s delivery to the
State of enforcement, unless such prosecution, punishment or extradition has been ap-
proved by the Court at the request of the State of enforcement. Some States have
interpreted this provision to mean that the Court is effectively removing the right of the
State to investigate and prosecute that person, even though the State may be trying to vio-
late the principle of “ne bis in idem” in some ways.
Obligations
States Parties to the Statute must be able to surrender a person to the ICC when requested,
in conformity with the provisions of the Statute, even though the person may have been
tried before a national court (articles 59 and 89).
Implementation
Ecuador considered that the Rome Statute respects the principle of “ne bis in idem” along
with the goal of avoiding impunity. Since an accused who has been tried according to the
rules of due process will only be tried a second time by the ICC in exceptional cases, as
Page 56
provided for in article 20, the Ecuadorian Constitutional Court concluded that this did not
contradict the constitutional principle of “ne bis in idem”. The situations in which the
Court could retry a case will be rare because the exceptions would not arise in any democ-
ratic State that upholds the rule of law with an independent and impartial judicial system
that applies the basic guarantees of due process.
Belgian’s opinion is that article 108 was to be construed as subjecting the prosecution and
conviction of persons already convicted by the ICC for offences committed before their
trial to the approval of the ICC. That provision would be contrary to the principle of inde-
pendence of justice under article 14 of the International Covenant of Civil and Political
Rights and with the Belgian Constitution. In the Spanish Constitution, the right to effective
judicial protection for the exercise of their rights and legitimate interests is considered not
only limited to the protection given by Spanish courts but also extends to international
ones that are recognised by Spain. However, the Spanish Council’s opinion is that the
transfer of judicial competence to the ICC enables the ICC to modify the decisions of Span-
ish courts without infringing the constitutional right to judicial protection.
3.6 Responding to a Request From the ICC to Arrest a Person

Overview of arrest procedures
There are three means by which the ICC can seek to have a person suspected of commit-
ting a crime brought before the Court:
1. Issuing an arrest warrant in accordance with articles 58, 89, & 91;
2. Issuing a provisional arrest warrant in accordance with article 58, paragraph (5) and ar-
ticle 92, in urgent cases where the required supporting documentation is not yet
available; and
3. Issuing a summons in accordance with article 58, paragraph (7), where the Pre-Trial
Chamber is satisfied that a summons is sufficient to ensure the person’s appearance.
States are required to respond promptly to all requests to execute such warrants and to
serve such summons in their territory (article 59, paragraph (1), and article 89).
The contents of requests for arrest and surrender are outlined in article 91. These include
information describing the person sought and their probable whereabouts, plus a copy of
the warrant of arrest. In addition, States can specify other documents and information that
they require for their national laws, as long as these requirements are not more burden-
some than the State’s requirements for meeting a request for extradition from another State
(article 91, paragraph (2)).
Once a person has been arrested by the State, they must be brought before a competent ju-
dicial authority and provided the opportunity to apply for interim release pending
surrender (article 59, paragraphs (2)-(6)). The judicial authority will then order the person
to be surrendered to the ICC, in most cases (article 59, paragraph (7)). See the section “Sur-
rendering a person to the ICC” for details and exceptions.
Page 57
Persons who are the subject of an ICC warrant have various rights, which must be re-
spected by the relevant State authorities (article 55). In some circumstances, once a warrant
has been issued by the ICC, States may be required to take protective measures for the
purpose of forfeiture (article 57, paragraph (3), subparagraph (e)). This may include identi-
fying, tracing, freezing, or seizing proceeds, property, assets, and instrumentalities of
crime.
If the Pre-Trial Chamber decides to issue a summons instead of a warrant, it may attach
certain conditions to that summons, if provided for by national law (article 58, paragraph
(7)).
Issue and execution of warrants of arrest

Description
The Pre-Trial Chamber of the ICC can issue warrants for arrest, at the request of the ICC
Prosecutor (articles 57, paragraph (3), subparagraph (a) and article 58). The details of the
preconditions and content of such warrants are set out in article 58, paragraphs (1)-(3). All
such warrants of arrest remain in effect until otherwise ordered by the Court (article 58,
paragraph (4)).
Once the warrant has been issued by the Pre-Trial Chamber, the Court may then request
the State to execute the warrant in accordance with the relevant provisions of Part 9 (article
58, paragraph (5)). In most cases, all requests for arrest and surrender must be in writing
and supported by certain information, documents, and statements, as set out in article 91.
Such information will include the probable location of the person (article 91, paragraph (2),
subparagraph (a)). In urgent cases, the Court can make requests via any medium capable
of delivering a written record, such as by facsimile, as long as the request is also confirmed
via the usual channel for requests (article 91, paragraph (2), subparagraph (a)).
The Court can also request States to provide it with information as to the requirements un-
der national law for supporting documentation and States are required to consult with the
Court if such a request is made (article 91, paragraph (4)). Note that the requirements un-
der national law should, if possible, be less burdensome than those applicable to requests
for extradition, given the distinct nature and purpose of the ICC (article 91, paragraph (2),
subparagraph (c)). This latter point is discussed in more detail in the section “Surrender-
ing a person to the ICC”.
The requested State must “immediately take steps to arrest the person in question in ac-
cordance with its laws and the provisions of Part 9” (article 59, paragraph (1)). Note that
article 66 requires that the person be presumed innocent until proved guilty before the
Court in accordance with the applicable law.
Provisional arrest
When the Court has already issued a warrant of arrest in accordance with article 58 but
does not have the required documentation available to support a request to a State for ar-
rest and surrender, article 58, paragraph (5) and article 92 allow the Court to request a State
Page 58
to provisionally arrest the person who is the subject of the warrant. Such a request for
provisional arrest is only to be used in urgent cases (article 92, paragraph (1)). This request
need not be in writing, but can be communicated by any medium capable of delivering a
written record, such as email (article 92, paragraph (2)). The requirements of the request
are outlined in article 91, paragraph (2), subparagraphs (a)-(d). States are then required to
execute the request immediately (article 59, paragraph (1)).
If the required documentation to support the request for arrest and surrender does not
reach the State within 60 days from the date of the provisional arrest, then the person may
be released from custody (article 92, paragraph (3) and rule 188). However, once the
documents do arrive, States must immediately re-arrest the person (article 92, paragraph
(4)). Note that the person can voluntarily consent to being surrendered to the Court even if
the State has not received the required supporting documentation, if this is permitted by
the law of the requested State. In that case, the requested State must surrender the person
to the Court as soon as possible (article 92, paragraph (3)).
Note also that a State Party may be requested to help the Prosecutor to prevent certain per-
sons from absconding, pending a decision on the admissibility of a case under article 19,
where a warrant of arrest has already been issued (article 19, paragraph (8), subparagraph
(c)).
Obligations
(a) States Parties must take immediate steps to respond to requests from the ICC for the
execution of arrest warrants, including provisional arrest warrants (article 59). This ob-
ligation also applies to warrants that are issued subsequently for a person who was
released from custody under article 92, paragraph (3) because the required documenta-
tion was not received within sufficient time of a provisional arrest (article 92, paragraph
(4)).
(b) If the Court requests it, States Parties must inform the Court of any special require-
ments under their national laws for the contents of a request for arrest and surrender
(c) All State officials and other authorities who come into contact with the person to be ar-
rested, must presume that the person is innocent until proved guilty before the Court in
accordance with the applicable law (article 66).
(d) If: (i) a person has been provisionally arrested and the time limit for receipt of the sup-
porting documents has not yet expired; and (ii) the person who is the subject of the
provisional arrest warrant voluntarily consents to be surrendered to the Court; and (iii)
this is permitted by the law of the requested State; then (iv) the State must proceed to
surrender the person to the Court as soon as possible (article 92, paragraph (3)).
(e) When requested, States must assist the ICC Prosecutor in preventing certain persons
from absconding, pending a decision on the admissibility of a case under article 19,
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where a warrant of arrest has already been issued (article 19, paragraph (8), subpara-
graph (c)).
(f) States must take protective measures for the purpose of forfeiture when requested, after
a warrant of arrest or a summons has been issued (articles 57, paragraph (3), subpara-
graph (e) and article 93, paragraph (1), subparagraph (k)).
Implementation
(a) Verification of requests
States Parties need a procedure for verifying the contents of requests for arrest and surren-
der from the ICC (in accordance with the requirements in article 91), and then passing the
request on in obligatory form to the relevant authority. For example, States may wish to
have a judicial officer verify the ICC request, and then issue their own warrant under State
laws. This could help to minimise the number of amendments to national legislation on
the execution of arrest warrants. However, States should ensure that any procedures do
not unnecessarily delay the execution of the request from the ICC.
(b) National requirements
Any special requirements for requests under national law should be communicated to the
Court as soon as possible after ratification of the Statute, to avoid any unnecessary delays
at a later stage. These requirements are discussed in detail in the section “Surrendering a
person to the ICC”.
(c) Apprehension of suspects
Criminal laws and procedures are needed that allow the relevant people to apprehend, de-
tain, arrest, and/or provisionally arrest both nationals and non-nationals for all crimes
within the jurisdiction of the ICC. The Statute also refers to the need for observance of na-
tional laws, if these exist. In other words, States could grant this jurisdiction to their
regular law enforcement officers, who would already be familiar with national laws.
Any such laws and procedures should allow for persons who are provisionally arrested (in
accordance with article 92) to be released from custody, if the appropriate documents are
not received from the ICC within a certain time limit (article 92, paragraph (3)), and then to
arrest that person subsequently, once the documents arrive (article 92, paragraph (4)).
These laws and procedures should also state that the person who is to be arrested must be
presumed innocent until proved guilty by the ICC, if the relevant legislation in the State
does not already provide for this. The person should therefore be treated with considera-
tion and respect, and not treated like a person who has already been convicted.
It is left to individual States Parties to determine which mechanisms will be used under
domestic law to fulfil the obligations for arrest and provisional arrest of persons pursuant
to articles 89 and 92. There are a variety of options for States as illustrated by approaches
already taken by some States. One is to amend existing extradition legislation to allow for
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arrest, provisionally and otherwise, on the basis of ICC requests. For example, the Cana-
dian ICC legislation provides that the procedure for arrest under the Canadian Extradition
Act applies to ICC requests (CA ss. 47-53).
A number of States have created a separate scheme for surrender to the ICC which in-
cludes specific powers and procedures for arrest, provisionally and otherwise. Under the
New Zealand scheme, for a straight arrest, the Minister approves and sends request and
documents to a judge who then can issue a warrant (sets out two criteria) (NZ Part 4). For
provisional arrests, the request goes directly to the judge and a notice goes to the Minister.
In the United Kingdom, the ICC request is received by the Secretary of State who then
transmits the request and accompanying documents to the appropriate judicial officer (UK
Part 2). The judicial officers, when satisfied of the authenticity of the ICC request, are to
endorse ICC warrants for execution in the United Kingdom. In cases of provisional war-
rants, the Secretary of State transmits the request to a constable or other official and directs
them to apply to court for a warrant for the arrest of the person.
The Swiss law reflects a centralised model, which creates a Central Authority, adminis-
tered through the Federal Office of Justice, to which all ICC requests for cooperation go
through, including requests for arrests The content and documentation required by Swiss
authorities for the execution of requests for arrest, provisional or otherwise, from the ICC
are set out in detail in the implementing legislation (SW Chap 3).
(d) Voluntary surrender
If a State wishes to, and adequate national laws do not already exist, the State may need to
draft new laws to allow for persons who are provisionally arrested to be voluntarily sur-
rendered to the Court as soon as possible. Article 92, paragraph (3) allows for this to occur
if the time period has not expired for delivery to the State of supporting documentation for
a regular arrest warrant. However, the State need not impose such a restriction. In South
Africa, the implementing legislation provides that where an inquiry is taking place to de-
termine whether the warrant applies to the person in question, whether his or her rights
have been respected or whether the person has been arrested in accordance with the pro-
cedures laid down by domestic law, such inquiry could be dispensed with if the person
concerned agrees in writing to his or her surrender to the Court (SA s. 10).
(e) Time in custody
States should also keep a record of any time that the person spends in custody, in order to
be able to assist the Court with any future sentencing decisions if the person is convicted
subsequently (article 78, paragraph (2) and article 86).
(f) Preventing persons from absconding
States need laws and procedures to prevent persons who are the subject of a warrant from
absconding. For example, the legislation could provide that where the Prosecutor makes
such a request, the appropriate national authorities have the right to take the person’s
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passport away, or something similar. The laws and procedures should also allow the rele-
vant law enforcement personnel to apprehend and detain the person, if necessary.
(g) Forfeiture
States that already have Proceeds of Crime legislation or its equivalent may only need to
make minor amendments to this legislation, to allow the relevant authorities to identify,
trace and freeze or seize the proceeds, property and assets and instrumentalities of crimes
within the ICC’s jurisdiction that are alleged to have been committed. This type of forfei-
ture must be without prejudice to the rights of bona fide third parties and it is ultimately
for the benefit of victims of crimes within the jurisdiction of the ICC. Those States that do
not have Proceeds of Crime legislation may need to make substantial revisions to their
laws on criminal procedure, to allow the relevant authorities to have access to an accused
person’s property before conviction, on the basis of a warrant of arrest or a summons is-
sued under article 58. There are other provisions in the Statute concerning forfeiture at
later stages in the proceedings. So, States without the relevant legislation at present will
also need to ensure that they have comprehensive laws and procedures that allow them to
meet this obligation at all stages of an ICC proceeding. Note that the ICC will only seek
the co-operation of States in this respect prior to conviction, “having due regard to the
strength of the evidence and the rights of the parties concerned” (article 57, paragraph (3),
subparagraphs (e)).
Rights of the person

Description
As mentioned previously, article 66 provides that everyone shall be presumed innocent un-
til proved guilty before the Court in accordance with the applicable law. Article 67 further
provides that the accused is entitled to a fair hearing conducted impartially, in accordance
with the guarantees set out in that article. In order that these procedural guarantees to the
accused are respected and to ensure that the proceedings are not compromised, States
should respect the following rights of the person they are arresting, in accordance with ar-
ticle 55, paragraph (2):
(a) To be informed, prior to being questioned on any matter including as to the person’s
identity, that there are grounds to believe that he or she has committed a crime within
the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of
guilt or innocence;
(c) To have legal assistance of the person’s choosing, or, if the person does not have legal
assistance, to have legal assistance assigned to him or her, in any case where the inter-
ests of justice so require, and without payment by the person in any such case if the
person does not have sufficient means to pay for it;
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or
her right to counsel.
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These are the minimum rights under the Statute and States may of course provide more ex-
tensive rights to such persons. In addition, States Parties should take note of the following
rights that are set out in article 55, paragraph (1) and apply to everyone involved in an ICC
investigation:
“In respect of an investigation under the Statute:
(a) A person shall not be compelled to incriminate himself or herself or to confess guilt;
(b) A person shall not be subjected to any form of coercion, duress or threat, to torture or to
any other form of cruel, inhuman or degrading treatment or punishment;
(c) A person shall, if questioned in a language other than a language the person fully un-
derstands and speaks, have, free of any cost, the assistance of a competent interpreter
and such translations as are necessary to meet the requirements of fairness; and
(d) A person shall not be subjected to arbitrary arrest or detention, and shall not be de-
prived of his or her liberty except on such grounds and in accordance with such
procedures as are established in the Rome Statute.
In accordance with article 10 of the International Covenant on Civil and Political Rights
(ICCPR), it would also be advisable to ensure that, if the person is to be detained prior to
being brought before the competent judicial authority, the person be segregated from con-
victed persons and subject to separate treatment appropriate to their status as unconvicted
persons, save in exceptional circumstances and where the person was already subject to
detention as a convicted person. This is a right that is guaranteed to all persons under the
ICCPR, which has received broad international support. Note also article 85, paragraph
(1), which provides: “Anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation.” This refers to a right to compensation by the
ICC, but States may wish to make provision for such compensation at the national level as
well.
Obligations
a) The rights in Article 55, paragraph (2) must be observed by States where there are
grounds to believe that a person has committed a crime within the jurisdiction of the
Court and that person is about to be questioned either by the Prosecutor, or by national
authorities pursuant to a request made under Part 9. These rights must be communi-
cated to the person prior to being questioned and they include: being informed that
there are grounds to believe the person has committed an ICC crime; remaining silent
without any inferences being drawn as to guilt or innocence; having legal assistance
which must be free if the person cannot afford to pay for it; and having counsel present
when being questioned.
b) At present there are differing views within the international community as to whether
or not the rights set out in article 55, paragraph (1) create obligations for States. These
rights are couched in obligatory terms, because the word “shall” is included. However,
Page 63
it is not clear from the Statute as to who has the obligation to protect the rights. The ar-
ticle provides, “In respect of an investigation under this Statute, a person shall not be
compelled to incriminate himself or herself or to confess guilt”, and so forth. It does
not provide that “a State shall ensure that a person is not compelled to incriminate him-
self...”
Implementation
a) Recognition of rights
Practically speaking, it would be extremely prudent for States Parties to ensure that all of
the rights under article 55, paragraphs (1) and (2) are accorded to persons who are to be ar-
rested on behalf of the ICC, as well as any other rights that are usually accorded to persons
who are arrested by national authorities. A “fair hearing conducted impartially” begins
when the person is arrested. If they are compelled to incriminate themselves, either by
force or otherwise, or they are asked questions in a language they do not understand, then
any evidence that is gathered in such a manner and subsequently relied upon to convict
the accused, would bring into question the fairness of any such trial.
These rights are all contained in the ICCPR as well, and many States believe that they rep-
resent the minimum required standards under international law for a fair trial. In
addition, the ICC is intended to bring about justice, and the ill treatment of persons who
may be innocent is not just.
States should also review existing legislation to ensure that it prevents anyone from inflict-
ing torture or cruel, inhuman or degrading treatment or punishment on a person under
investigation, in accordance with the ICCPR and the Convention Against Torture, which
has also received broad support in the international community.
States may implement the obligation to ensure the rights of the accused person in a num-
ber of ways. Implementation can take place through using existing procedures, if the State
is satisfied that practice is consistent with the rights enumerated in the Rome Statute. An-
other approach can be specific incorporation into the ICC legislative scheme. For example,
the New Zealand ICC legislation provides that the issue of rights determined and dealt
with as part of the test before the judge (NZ s. 43). In the United Kingdom, there is a
mechanism to allow the violation of rights to be reported to the ICC (UK s. 5). In South Af-
rica, the implementing legislation provides for the judicial authority power to hold an
inquiry in order to establish whether the rights of the person, as contemplated in the South
African Constitution, have been respected (SA s. 10).
b) Training and provision of relevant personnel
States Parties should train their law enforcement officials to observe these basic minimum
standards, if they have not already. States also need to provide resources to pay for legal
counsel, in case the person being questioned does not have sufficient means to pay for it.
Note however that article 100, paragraph (1), subparagraph (b) provides that States may
Page 64
not have to pay for interpreting and translation services when executing a request from the
Court.
c) Segregated prison accommodation and compensation
Optimally speaking, it would also be useful if States Parties could provide segregated
prison accommodation for accused persons, unless the person is already in custody for an-
other matter. Also optimally speaking, a scheme for compensating persons who are
wrongfully detained or arrested by State authorities should be established by States Par-
ties.
Hearing before a competent judicial authority

Description
Under article 59, paragraph (2), once a person is arrested, they must be brought promptly
before the competent judicial authority in the custodial State. That authority will then de-
termine the following, in accordance with the law of that State:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person’s rights have been respected.
If the judicial authority believes that the warrant does not apply to that person, that the
proper process was not followed, or that the person’s rights were not respected, then it
should consult with the ICC without delay (article 97).
If the person who is the subject of the arrest is already being investigated for the same of-
fence by the State, then the State should notify the Court, in accordance with the
procedures outlined above in the section “Procedures where the ICC wishes to investigate
the same matter as a State”. If the person who is the subject of the arrest is already being
investigated, or serving a term of imprisonment, for a different offence, then the requested
State is still obliged to grant the request for surrender, but must consult with the Court af-
ter making its decision to grant the request, in order to determine the most appropriate
course of action (article 89, paragraph (4)).
Where the person has already been prosecuted for the same offence, or conduct that relates
to that offence, then the procedures outlined in the section “Surrendering a person to the
ICC” should be followed, in particular the component on ne bis in idem claims (article 20).
Obligations
a) Once a person is arrested, they must be brought promptly before the competent judicial
authority in the custodial State to determine that the arrest was carried out in accor-
dance with certain requirements and that the warrant applies to the person (article 59,
paragraph (2)). However, the State authority cannot consider whether the ICC warrant
Page 65
was properly issued (article 59, paragraph (4)). The person can only make such a chal-
lenge before the ICC.
b) If the competent judicial authority perceives any difficulties or conflicts in meeting the
request for surrender, it must consult with the Court (article 97).
c) If the arrested person is already being investigated by the requested State for the same
offence, then the State should bring an admissibility challenge under articles 18 & 19,
and seek to postpone execution of the request in accordance with article 95.
d) If the arrested person is already being investigated, or serving a term of imprisonment,

for a different offence, then the requested State must consult with the Court, after
granting the request for surrender (article 89, paragraph (4)).
Implementation
a) Time in custody
Many jurisdictions already require that a person may only be kept in custody for twenty
four hours, and certainly no more than a few days, before they must be brought before a
judicial authority to determine whether detention is still warranted. States Parties should
ensure that persons are not kept in custody for lengthy periods awaiting a judicial hearing
on the validity of the arrest.
b) Competent judicial authority
States Parties need to designate the appropriate level of judicial authority for assuming ju-
risdiction over such matters and grant that authority the relevant jurisdiction to order the
surrender of the person. The authority must then be required to make the determinations
under article 59, paragraph (2), in accordance with article 59, paragraph (4).
In implementing this obligation to bring the accused person before the appropriate level of
judicial authority, States have either chosen to implement through existing procedures and
practice or by specifically incorporated into legislative scheme. Both the New Zealand and
Australian legislation designate the appropriate judicial officer to deal with requests relat-
ing to arrest and surrender as the District Court or a magistrate in the State or Territory in
which the arrest took place (NZ s. 43 and UK s. 5). The United Kingdom implementing
legislation defines “competent court” as a court consisting of an appropriate judicial offi-
cer.
c) Duty to consult
Laws or procedures may be needed to enable or require the relevant authority to consult
with the ICC wherever there are any concerns, problems, or conflicts in meeting the re-
quest for surrender. If the person is already a suspect or a prisoner, laws or procedures are
needed to require the relevant authority to consult with the ICC. Any procedure must en-
able such consultations to take place on an expedited basis.
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Interim release
Description
At the initial hearing before the State judicial authority, the arrested person is entitled to
apply for interim release pending surrender (article 59, paragraph (3)). The ICC Pre-Trial
Chamber must be notified of any requests for interim release and must make recommenda-
tions to the State authority, to which that authority must give “full consideration” before
rendering its decision (article 59, paragraph (5)). Article 59, paragraph (4) sets out the
other factors that the State authority must take into account when considering whether to
grant interim release. It must consider the gravity of the alleged crimes, and whether
“there are urgent and exceptional circumstances to justify interim release” and “necessary
safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person
to the Court”.
If the person is granted interim release, the Pre-Trial Chamber should be notified. It can
then request periodic reports on the status of the interim release, which the custodial State
must provide (article 59, paragraph (6) and article 86).
A record of the time spent in custody in the State should be created and maintained for the
person at least until they are acquitted or convicted by the ICC. This will ensure that the
ICC is able to take such a period of time into account for sentencing purposes, if the person
is subsequently convicted by the ICC (article 78, paragraph (2)).
Obligations
a) Persons arrested subject to a warrant from the ICC must have the opportunity to exer-
cise their right to request interim release pending surrender (article 59(3)). In some
jurisdictions, this application would not be necessary, where the relevant authority is
already obliged to determine whether the person should be detained or not, even if no
application for release is made.
b) The competent authority in the requested State must consider whether, given the grav-
ity of the alleged crimes, there are urgent and exceptional circumstances to justify
interim release and whether necessary safeguards exist to ensure that the custodial
State can fulfil its duty to surrender the person to the Court. However, it is not open to
the competent authority of the requested State to consider whether the warrant of ar-
rest was properly issued in accordance with the Rome Statute (article 59, paragraph
(4)).
c) States must notify the ICC Pre-Trial Chamber of any requests for interim release and
provide that the competent State authority gives full consideration to any recommenda-
tions of the Pre-Trial Chamber before rendering its decision (article 59, paragraph (5)).
d) If the person is granted interim release, States must respond to any requests made by
the Pre-Trial Chamber for periodic reports on the status of the interim release (article
59, paragraph (6)).
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Implementation
a) Interim release
Laws and procedures are needed to provide for the interim release of suspects, such as
laws allowing for “bail” or sureties, or other measures restricting liberty. Laws are also
needed to make sure that the State authority making the decision on whether to detain the
person or not is required to take into account the matters outlined in article 59, paragraph
(4) and any recommendations that the Pre-Trial Chamber makes on the issue, in accor-
dance with article 59, paragraph (5).
The Rome Statute provides that the ICC can make recommendations for interim release,
which must be considered by the national authorities. The effect of this is that there is an
onus on the accused person to demonstrate why interim release should be allowed, which
for many States may constitute a reversal of the normal position they have for interim re-
lease hearings. States have taken a number of approaches to ensure that they meet this
obligation. Canada’s approach is an example of amending the State’s existing scheme for
interim release to incorporate the reverse onus as well as providing a procedure for domes-
tic courts to receive the ICC recommendations for their consideration (CA s. 50). In
Canada, applications for judicial interim release must be adjourned at the request of the
Attorney General of Canada in the event that recommendations from the ICC are pending.
If recommendations are not received within 6 days of the adjournment, judges may pro-
ceed with the application.
Other States, such as New Zealand and United Kingdom, have incorporated provisions as
part of a separate scheme (NZ s. 39-40 and UK s. 18). When establishing separate interim
release regime, States need to address such issues as whether to set out a procedure or in-
corporate by reference to the Rome Statute, the powers of the court and conditions for
interim release. In the United Kingdom, the Secretary of State must consult with the ICC
on interim release applications and the domestic courts cannot grant interim release with-
out the full consideration of any recommendations by the Court.
Swiss Law is an example of the centralised model, where the Central Authority makes de-
terminations as to whether arrested persons remain in detention pending surrender or if
interim release is justified (SW Chap 3). The decisions of the Central Authority for war-
rants for detention pending surrender may be appealed to the Federal Supreme Court
within 10 days of the date the ruling is issued in writing.
b) Periodic reports on interim release
A procedure is needed to keep the Pre-Trial Chamber informed periodically on the status
of the interim release, in accordance with article 59, paragraph (6). In other words, who-
ever grants interim release must communicate this to the relevant authority to pass on to
the Pre-Trial Chamber, and then should set up a mechanism for periodic review of the in-
terim release, or of the status of interim release, in order then to communicate this
periodically to the Pre-Trial Chamber.
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c) Records of time spent in custody
Persons in charge of detention facilities should be required to keep a special record of any
persons who are detained in accordance with a warrant from the ICC, and to forward a
copy of that record to the ICC when the person is surrendered to the ICC. This will assist
the ICC in determining an appropriate sentence, should the person be convicted subse-
quently.
Issuing of a summons
Description
Article 58, paragraph (7) allows the Pre-Trial Chamber to issue a summons as an alterna-
tive to a warrant of arrest. Such a summons may be issued with or without conditions
restricting liberty, other than detention, as long as these conditions are provided for by the
law of the custodial State. For example, State laws may allow for the confiscation of the
person’s passport in such circumstances.
Subparagraphs (a)-(d) of article 58, paragraph (7) set out the required contents of the sum-
mons:
(a) The name of the person and any other relevant identifying information;
(b) The specified date on which the person is to appear;
(c) A specific reference to the crimes within the jurisdiction of the ICC which the per-
son is alleged to have committed; and
(d) A concise statement of the facts which are alleged to constitute the crime.
States are required to serve such summons on the person.
Obligations
States must take responsibility for the service of a summons on the relevant person, when
requested by the Court to do so (article 58, paragraph (7)).
Implementation
a) The ICC needs to know what “conditions restricting liberty (other than detention)” are
allowable under a State’s national law, when a person on the State’s territory is sum-
monsed to appear before the Court in a criminal matter.
b) Legislation and procedures may be needed to ensure service and execution of process
within States Parties’ jurisdictions, with respect to such summons.
c) Legislation and procedures may be needed to enable the relevant people to enforce the
conditions that the ICC determines shall apply after it has consulted with the State,
such as confiscation of the person’s passport.
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In the United Kingdom, when the Secretary of State receives from the ICC a summons to
be served on a person in the State, he or she directs the chief officer of police for the area to
have the document personally served (UK s. 31). The chief of police must keep record and
inform when and how service was done or if not done and why. In Australia, the provi-
sions relating to service of summons also includes other documents requested by the ICC
to be served (AU Pt 4 Div 7). The documents must be served in accordance with any pro-
cedure specified in the request or if that procedure would be unlawful or inappropriate in
Australia, or no procedure is specified, then it should be served in accordance with Austra-
lian law. In South African, the implementing legislation differentiates between the service
of process or documents with a summons issued for attendance of any person in any pro-
ceeding before the Court (SA ss. 19-21). A summons is to be endorsed by a magistrate and
therefore is then served as if it were a summons issued by the domestic courts. In Finland,
the legislation provides that the Finnish authorities must take the necessary measures in
order to facilitate the possibility of a witness, on whom a summons has been served, to
comply with the summons (FI s. 5). In South Africa, the legislation expressly provides that
non-compliance with a summons is an offence.
3.7 Surrendering a Person to the ICC

“Distinct nature” of the ICC
Description
Article 91, paragraph (2), subparagraph (c) requests States Parties to take into account “the
distinct nature of the Court”, when determining their requirements for the surrender proc-
ess in their State. It further provides that “those requirements should not be more
burdensome than those applicable to requests for extradition pursuant to treaties or ar-
rangements between the requested State and other States and should, if possible, be less
burdensome”. This wording was chosen to encourage States, if possible, to introduce a
more streamlined process for surrendering persons to the ICC than their current process
for State-to-State extradition.
The idea behind this is that there are often lengthy delays involved in current procedures
for extradition of nationals from one State to another. This is understandable where there
are differences in the criminal procedures and jurisprudence and standards of trial fairness
between different jurisdictions, and States may need to protect their nationals from poten-
tial injustices. However, the ICC regime has been established by States Parties themselves.
During the surrender of persons to the ICC, considerations relative to the impact of na-
tional values on the exercise of criminal law in different States need not be taken into
account. These concerns do not arise in the same way with the ICC because it is not a for-
eign jurisdiction, as is the court of another State, and because most States participated in
drafting the surrender provisions of the Rome Statute and the Rules of Procedure and Evi-
dence. Thus every national will be treated according to the standards agreed to
multilaterally in the drafting of these two documents.
The Statute defines “surrender” in article 102, paragraph (a) as “the delivering up of a per-
son by a State to the Court, pursuant to this Statute” and contrasts it with the definition of
Page 70
“extradition” in article 102, paragraph (b), described as “the delivering up of a person by

one State to another as provided by treaty, convention or national legislation”.
Preconditions to an order for surrender
The Statute also creates a considerable number of procedural hurdles for the ICC Prosecu-
tor to overcome, before a request for surrender can be issued by the Court (articles 53, 54 &
58). Therefore, by the time a State receives a request for surrender from the ICC, it can ex-
pect that the ICC has been satisfied that: a crime within the jurisdiction of the Court has
been or is being committed (article 53, paragraph (1), subparagraph (a)); there is a suffi-
cient legal or factual basis to seek a warrant (article 53, paragraph (2), subparagraph (a));
the prosecution is in the interests of justice, taking into account all the circumstances, in-
cluding the gravity of the crime, the interests of victims and the age or infirmity of the
alleged perpetrator, and his or her role in the alleged crime (article 53, paragraph (2), sub-
paragraph (c)); in order to establish the truth, the Prosecutor has or will extend the
investigation to cover all facts and evidence relevant to an assessment of whether there is
criminal responsibility under the Statute, including incriminating and exonerating circum-
stances equally (article 54, paragraph (1), subparagraph (a)); the arrest of the person
appears necessary to the Pre-Trial Chamber in order to ensure the person’s appearance at
trial, to ensure that the person does not obstruct or endanger the investigation or the court
proceedings, or to prevent the person from continuing with the commission of the crime
(article 58, paragraph (1)); and the Pre-Trial Chamber is satisfied that there are reasonable
grounds to believe that the person committed the crimes stated in the warrant (article 58,
paragraph (1), subparagraph (a)).
No grounds for refusal
All States have a vested interest in eliminating the crimes over which the ICC has jurisdic-
tion, as these are the most serious crimes of concern to the international community as a
whole. The Statute provides many assurances that these crimes will be tried according to
the highest standards of international law, and contains procedural safeguards that ensure
the utmost protection, submitted to an extremely rigourous regime of eligibility which
gives States the initial responsibility to prosecute and punish these crimes.
Therefore the Statute provides no grounds for refusal to surrender a person to the ICC and
requires States Parties to comply with all requests for arrest and surrender (article 89,
paragraph (1)). Once the State has ordered the surrender of the person, in accordance with
its procedures under the ICC regime, the person must be delivered to the Court as soon as
possible (article 59, paragraph (7)). In this way, States will assist the Court with dispensing
justice in a timely fashion. Note that States are not required to pay for the cost of trans-
porting the person to the Court, under article 100, paragraph (1), subparagraph (e).
Obligations
a) States Parties must implement a procedure for surrendering a person to the ICC when
requested (article 59, paragraph (7), and article 89, paragraph (1)). This procedure must
not allow for any grounds for refusal to surrender.
Page 71
b) The procedure should not have any more burdensome requirements than the State’s
normal extradition procedures, and should, if possible be less burdensome, taking into
account the distinct nature of the Court (article 91, paragraph (2), subparagraph (c)).
c) States must ensure that the person is delivered to the Court as soon as possible after
making an order for the surrender of the person (article 59, paragraph (7)).
Implementation
a) Streamlined approaches
States may wish to take a streamlined approach to executing requests for surrender from
the ICC, in order to ensure that the Court is not delayed unnecessarily in carrying out its
valuable work for the international community. If possible, they should establish a special
procedure for surrender to the ICC, which eliminates some of the usual hurdles involved
in extradition proceedings. For example, they may wish to reduce the number of appeals
that a person can make, or dispense with the right of appeal altogether, in order to speed
up the process of bringing the person before the ICC. Under article 14, paragraph (5) of the
International Covenant on Civil and Political Rights, which sets out the basic minimum
standards under international law, a person only has a right of appeal against a conviction
or a sentence, not an order for extradition or surrender. The Rome Statute is silent on the
issue of appeals against orders for surrender at the national level.
Most States Parties have chosen to establish a separate procedure for surrendering persons
to the ICC, in order to avoid making a wide range of legislative amendments to existing
legislation on extradition.
b) At the very least, States Parties should ensure that they have an expedited procedure
for transporting persons to the ICC, once an order for surrender has been made by the
State. Under article 100, paragraph (1), subparagraph (e), the Court will cover the ordi-
nary costs associated with the transport of a surrendered person.
c) Nationals and non-nationals
States must ensure that they have laws and procedures in place that allow them to surren-
der both nationals and non-nationals who are on their territory.
d) Prosecutors’ discretions.
States should note that the Rome Statute does not allow for national Prosecutors to exercise
any discretion with respect to granting immunity from surrender to persons in return for
their assistance with other investigations or prosecutions. This is understandable because
of the serious nature of the crimes within the ICC’s jurisdiction. Article 65(5) provides that
the ICC Prosecutor is unable to enter into enforceable “plea bargains” with defence coun-
sel. Only the Court itself can decide whether a person’s willingness to co-operate should
be taken into account in any way. For example, it may be considered as a mitigating factor
during the sentencing process, under article 78, paragraph (1) (“the individual circum-
Page 72
stances of the convicted person” must be taken into account by the Court when determin-
ing the sentence).
e) Sufficiency of evidence
Article 91, paragraph (2), subparagraph (c) allows States to determine their own require-
ments for the surrender process in their State. One requirement to consider is the
sufficiency of evidence that will be required in order to allow the State to order the surren-
der. This requirement should be as minimal as possible, bearing in mind the need for
States to avoid creating burdensome requirements for the Court. Article 58, paragraph (3)
provides that all warrants for arrest from the ICC will contain the following: “(a) the name
of the person and any other relevant identifying information; (b) a specific reference to the
crimes within the jurisdiction of the Court for which the person’s arrest is sought; and (c) a
concise statement of the facts which are alleged to constitute these crimes.” These compo-
nents should provide sufficient evidence upon which to make an order for surrender,
given the procedural safeguards in the Statute. Therefore the most straightforward
method of ensuring the sufficiency of evidence for meeting ICC requests is to make the re-
quired contents of an ICC arrest warrant plus proof that the person named is the person
before the court the minimum requirement.
f) Use of normal extradition procedures
If the State decides to use its normal extradition procedures in order to surrender persons
to the ICC, the State will need to amend certain of its existing laws and procedures.
The obligation to surrender contains no exception for lack of dual/double criminality.

Therefore, a State has two options: it can remove the double criminality requirement from
its existing extradition procedures when implementing new procedures for surrender to
the ICC, or it can keep the requirements for double criminality, but must also incorporate
the ICC’s crimes into domestic law. The State could also make these crimes into extradit-
able offences at the same time. Both of these approaches would have the further advantage
of enabling the State to cooperate more easily with other States in prosecuting the crimes
within the jurisdiction of the ICC, because there would be no issue as to double criminality
or extraditable offences in State-to-State extraditions. States may not use a failure to estab-
lish double criminality as grounds for refusing to surrender a person to the ICC.
Postponement of requests for surrender and ne bis in idem

Description
The competent judicial authority in the custodial State must make several determinations
when the arrested person is first brought before it, namely that the warrant applies to the
person, the person has been arrested in accordance with the proper process, and the per-
son’s rights have been respected (article 59, paragraph (2), subparagraphs (a)-(c)).
However, none of these provide grounds for refusal to surrender. Article 97, paragraph (b)
requires States to consult with the Court “without delay in order to resolve the matter” if,
for example, the investigation conducted has determined that the person in the requested
State is clearly not the person named in the warrant. States Parties can decide what they
Page 73
wish to do at the national level where the proper process was not followed, or the person’s
rights were not respected. But States Parties cannot refuse to surrender the person because
of such matters, nor does the Statute make any provision for them to postpone execution of
the request for surrender in these circumstances. Where the person cannot be located at
all, despite the best efforts of the requested State, the State must also “consult with the
Court without delay in order to resolve the matter” (article 97, paragraph (b)).
Ne bis in idem
There is, however, one instance where States may be able to postpone the execution of the
request for surrender. In accordance with article 20, paragraph (3) and article 89, para-
graph (2), the person sought for surrender may bring a challenge before a national court on
the basis of the principle of ne bis in idem. Under article 20, paragraph (3), this principle
means: if the person has already been tried before for conduct that would constitute geno-
cide, a crime against humanity, or a war crime, as defined by the Statute, the ICC will not
try the person with respect to the same conduct. The only exception to this principle is dis-
cussed below in the section “Complementarity”.
If the person makes such a challenge, the requested State is required to “consult immedi-
ately with the Court to determine if there has been a relevant ruling on admissibility”
(article 89, paragraph (2)). Such a ruling may come about in the following manner. Under
article 19, paragraph (1), the ICC must satisfy itself that it has jurisdiction in any case
brought before it, and one of the considerations is the admissibility of the case. Under arti-
cle 17, paragraph (1), subparagraph (c), the Court is required to determine that a case is
inadmissible where the person concerned has already been tried for conduct that is the
subject of the complaint. The Prosecutor may still request the Pre-Trial Chamber to author-
ise an investigation where there is some uncertainty over the State’s unwillingness or
inability to pursue the prosecution genuinely itself (article 18, paragraph (2)). The State
concerned or the Prosecutor can appeal to the Appeals Chamber on this issue (article 18,
paragraph (4)). Thus there are several opportunities for rulings on admissibility.
If the Court has already determined that the case is admissible, then the requested State
must proceed with the surrender (article 89, paragraph (2)). If, however, an admissibility
ruling is pending, then the requested State may postpone execution of the request until the
Court makes its determination on admissibility (article 89, paragraph (2)).
Obligations
a) States Parties must consult with the Court without delay in order to resolve any matters
that arise in relation to problems with the execution of a request for surrender, includ-
ing the fact that the person in the requested State is clearly not the person named in the
warrant of arrest (article 97, paragraph (b)). They may not simply refuse to execute the
request for surrender.
b) States Parties should allow a person sought for surrender to bring a challenge before a
national court or other competent authority, if the ICC is seeking the person in connec-
tion with conduct that has already formed the basis of a prosecution for genocide,
Page 74
crimes against humanity, or war crimes (article 20, paragraph (3), and article 89, para-
graph (2)). However, the national court or authority may not determine the issue of
whether the case is admissible before the ICC. Only the ICC can make that determina-
tion.
c) If a person sought for surrender brings a challenge before a national court or other au-
thority on the basis of the principle of ne bis in idem, the requested State must consult
immediately with the Court to determine if there has been a relevant ruling on admis-
sibility (article 89, paragraph (2)).
d) The requested State must proceed to execute the request for surrender, if the Court has
ruled already that the case is admissible (article 89, paragraph (2)).
e) If an admissibility ruling is pending, the requested State may postpone the execution of
the request until the Court makes a determination on admissibility (article 89, para-
graph (2)).
Implementation
a) States Parties should ensure that they have procedures in place to allow rapid and effi-
cient communication with the Court, in the event that there is a problem in executing a
request for surrender, including inability to locate the requested person (article 97,
paragraph (b)).
b) Under article 59, paragraph (2), subparagraphs (b) and (c), States Parties should also es-
tablish procedures and introduce legislation to ensure that the national judicial
authority will determine if the person has been arrested in accordance with the proper
process or if the person’s rights have been violated. Note, however, that remedies for a
violation of rights or the use of improper process are to be left to the ICC. One way to
present this issue in domestic law is to emphasize that any determination that rights
have been violated will be referred to the ICC to take into account.
c) A procedure should be established for situations where a person sought for surrender
makes a challenge before a national court or other competent authority on the basis of
“ne bis in idem” (article 89, paragraph (2)). The introduction of such a procedure will
necessitate diligent keeping of records of previous trials, and possibly access to the re-
cords of other States, so that the national court may check whether there is any basis for
the person’s claim, before referring the matter to the ICC.
d) A procedure should also be established for bringing all such claims to the attention of
the ICC and for consulting with the ICC as to any rulings it has made on the issue (arti-
cle 89, paragraph (2)).
e) Once it is apparent that the ICC has already ruled the case admissible, the State must
organise to surrender the person as quickly as possible (article 59, paragraph (7)).
f) If there is an admissibility ruling pending, States need to consider whether they wish to
continue with the surrender or not. They may if they wish, in which case, once the de-
Page 75
cision is made to surrender, the person should be brought before the Court as soon as
possible (article 59, paragraph (7)). If States decide to postpone the surrender, it would
be extremely prudent for them to have legislation and procedures that allow the rele-
vant authorities to keep the person in temporary custody, or to restrict their liberty in
some other way, until the Court rules on the admissibility issue. Otherwise the person
may take flight.
Competing requests
Description
Article 90 outlines the procedure to be followed where a State Party receives requests from
both the ICC and another State for the surrender of the same person for the same conduct.
In general terms, States Parties are required to notify the various parties and give priority
to requests from the ICC, where the Court has made a determination that the case is ad-
missible and the requesting State is a State Party (article 90, paragraph (2)). If the Court is
still considering the issue of admissibility, then it must expedite its determination (article
90, paragraph (3)). If the State has existing international obligations to non-States Parties,
then it can usually decide whether it wants to surrender the person to the Court or extra-
dite the person to the requesting non-State Party. However, article 90, paragraph (6), and
article (7) , paragraph (a) require the requested State to take into account such matters as
the respective dates of the requests, the nationality of the perpetrator and the victims, and
the possibility of subsequent surrender between the Court and the requesting State.
Obligations
a) If a State Party receives requests from both the ICC and another State for the surrender
of a person under article 89, where the same person is being requested in relation to the
same conduct, then the State Party must notify the Court and the requesting State of
that fact (article 90, paragraph (1)).
b) Where (i) the requesting State is also a State Party; and (ii) the Court has already made
a determination as to admissibility, taking into account the investigation or prosecution
being conducted by the requesting State; then (iii) the requested State must give prior-
ity to the request from the Court. If the Court is still considering the admissibility
issue, the State must not extradite the person to the State until the Court has deter-
mined whether the case is admissible before it. However, the requested State may
proceed to deal with the request for extradition in all other respects (article 90, para-
graph (2)).
c) Where (i) the requesting State is not a State Party; and (ii) the requested State is not un-
der an international obligation to extradite the person to the requesting State; and (iii)
the Court has determined that the case is admissible; then (iv) the requested State must
give priority to the request from the Court (article 90, paragraph (4)). If the Court has
not determined that the case is admissible, the requested State may proceed to deal
with the request for extradition from the requesting State, at its discretion, but shall not
Page 76
extradite the person in question to the requesting State (article 90, paragraphs (3) and
(5)).
d) Where (i) the requesting State is not a State Party; and (ii) the requested State is under
an international obligation to extradite the person to the requesting State; and (iii) the
Court has determined already that the case is admissible; then (iv) the requested State
must determine whether to surrender the person to the Court or extradite the person to
the requesting State. In making its decision, the requested State must take into account
at least the following factors: (a) The respective dates of the request; (b) The interests of
the requesting State, such as whether the crime was committed in its territory or against
one of its nationals; and (c) The possibility of subsequent surrender between the Court
and the requesting State (article 90, paragraph (6)).
e) Where (i) the requesting State is either a Party or a non-Party; and (ii) the Court has de-
termined the case to be inadmissible, upon notification of the receipt of competing
requests and subsequent expedited consideration of the issue of admissibility; and (iii)
the requested State subsequently refuses to extradite the person to the requesting State;
then (iv) the requested State must notify the Court of this decision, in case the Court’s
determination on admissibility was based on the requesting State’s ability to prosecute
the case (article 90, paragraph (8)).
f) Where (i) the conduct constituting the alleged crime of the same person is different in
the ICC request and the State’s request; and (ii) the requesting State is either a Party or
a non-Party; and (iii) the requested State is not under an existing international obliga-
tion to extradite the person to the requesting State; then (iv) the requested State must
give priority to the request from the Court (article 90, paragraph (7), subparagraph (a)).
Where all of these factors are the same, except that the requested State is under an exist-
ing international obligation to extradite the person to the requesting State, then the
requested State must determine which request to fulfil. When making this decision, the
State must take into account all the factors listed in article 90, paragraph (6), as well as
giving special consideration to the relative nature and gravity of the conduct in ques-
tion (article 90, paragraph (7), subparagraph (b)).
Implementation
National authorities must follow article 90 when faced with competing requests. If a State
decides to adopt a specific law or written procedure on competing requests, incorporation
by reference is the safest approach, given that article 90 sets out a detailed code. The Aus-
tralian legislation provides an example of a comprehensive approach to the implementa-
tion of article 90 (AU(C) ss. 37-40, 56-62).
States Parties also need to ensure that they maintain communications with the Court
throughout the whole process, in order to allow the Court to make an informed decision
about admissibility issues, and to keep up-to-date with the progress of the Court’s rulings
on admissibility.
Page 77
Conflicts with other international obligations

Description
International law bestows Heads of State and diplomatic officials with immunity from
criminal prosecution by foreign States (Vienna Convention on Diplomatic Relations, article 31,
paragraph (1)). However, international law is rapidly evolving with respect to immunities
for the most serious international crimes.
The ICC will determine whether any immunities exist when a matter is referred to it.At the
same time, article 98 places certain restrictions on the Court, when it is making requests for
surrender or other types of assistance from States. Article 98, paragraph (1) deals with the
situation where surrendering a person would conflict with a State’s obligations under in-
ternational law with respect to the State or diplomatic immunity of a non-national or their
property. The wording of this provision places the onus on the ICC to ensure that it does
not request a State to act inconsistently with its international obligations. The “obligations
under international law” applicable to States Parties would include their obligations under
the Rome Statute. By agreeing to articles 27 and 86 of the Statute, States Parties arguably
have waived any immunities they may have had against the ICC. Therefore, where a na-
tional of a State Party is the subject of a request from the Court, that national may not be
able to claim the normal immunities that may exist with respect to criminal prosecution by
foreign States and the requested State may not be in breach of its international obligations
if it surrendered that person to the ICC.
However, where the ICC has determined that an immunity does exist, it can proceed with
a request to surrender only if it first obtains the co-operation of the accused’s State of na-
tionality. Then the requested State can proceed with the surrender, without breaching its
international obligation with respect to the Vienna Convention on Diplomatic Relations.
Article 98, paragraph (2) provides that the Court may not proceed with a request for sur-
render which would require the requested State to act inconsistently with its obligations
under international agreements which require the consent of a sending State to surrender a
person of that State to the Court. “Sending State” refers to a sending State under a Status
of Forces Agreement (SOFA). This situation may therefore arise where, under a SOFA,
members of the armed forces of a third State are present on the territory of a requested
State. Where the sending State is a Party to the Rome Statute, it should not place any re-
strictions on the ability of other States to surrender its nationals to the ICC, since every
State Party accepts the jurisdiction of the Court over its nationals and there are no grounds
for refusing to surrender a person to the Court. However, where a person being sought for
surrender makes a ne bis in idem claim and the relevant admissibility ruling by the ICC is
still pending, the requested State should consult with both the sending State and the Court,
in accordance with article 89, paragraph (2), to see if execution of the request should be
postponed. Otherwise, the requested State should never need to obtain the consent of a
sending State Party, in order to surrender the State Party’s national to the ICC. The other
exception is where the Court is able to obtain the consent of the sending State. The Court
must obtain the co-operation of the sending State, if it is not a State Party, before the Court
can make the request for surrender.
Page 78
Article 98 is relevant only where the requested State can demonstrate that the action
sought by the Court would place it in violation of an obligation under international law. A
State cannot invoke a provision under its national laws which grants a person immunity
from surrender.
Obligations
a) A State Party has the obligation to surrender a person enjoying diplomatic immunity,
when the Court requests this surrender after it obtained the co-operation of the third
State for the waiver of the immunity (article 98, paragraph (1)). The requested State
Party may also be required to surrender the person where the third State is a State
Party.
b) When the Court requests the surrender of a person, but the requested State Party usu-
ally could not surrender that person without breaching an international agreement
with a third State, the requested State Party has the obligation to surrender if the Court
has obtained the consent of the third State for the surrender of the person (article 98,
paragraph (2)). The requested State Party may also be required to surrender the person
where the third State is a State Party.
Implementation
States Parties should provide in their national legislation for the possibility of surrendering
a person to the ICC who would normally enjoy State or diplomatic immunity, when the
State that this person is from agrees to the waiver of his or her immunity. Because the ICC
has the authority to determine whether or not immunities exist, States would be wise to
specify simply that immunities will not bar co-operation with the ICC. This ensures that
the State Party will be able to meet its obligation to surrender. For example, Canada
amended its State Immunity Act, to ensure that it would not apply where it conflicted with
the Canadian Extradition Act (which provides for surrender to the ICC), the Visiting Forces
Act, or the Foreign Missions and International Organizations Act, to the extent of the conflict
(CA s.70).
States Parties should also ensure that their nationals can be surrendered to the ICC by
other States, where appropriate, and that there are no bilateral or multilateral agreements
hindering this process. States Parties should be prepared to disclose to the Court any rele-
vant international obligations and agreements that may conflict with a request for
surrender that the Court is preparing, if the Court needs this information.
Some States have interpreted article 98, paragraph (2) as authorising them to enter into
new bilateral agreements with other States, in order to create a new “international obliga-
tion” between the two States not to surrender their nationals to the ICC. These agreements
would appear to be directly contrary to the Rome Statute, as they would provide impunity
for a certain group or groups of nationals from the jurisdiction of the ICC, even when
members of those groups have committed the most serious crimes of concern to the inter-
national community as a whole. They would also appear to prevent States Parties who
enter these agreements, from fulfilling their primary obligation under the Rome Statute,
Page 79
namely to “co-operate fully with the Court in its investigation and prosecution of crimes
within the jurisdiction of the Court.”
The European Commission’s legal service was asked to analyse a draft agreement being
proposed by the United States of America to all the European Union Member States on a
bilateral basis, which would prevent a State from surrendering any US citizens to the ICC
if the agreement was adopted. In August 2002, the EC legal service concluded that any
State Party to the Rome Statute who entered such an agreement would be acting against
the object and purpose of the Rome Statute, and thereby would be violating its general ob-
ligation to perform its obligations in good faith. In addition, the legal experts said that a
State Party’s obligation to the other States Parties and to the Court, to surrender a person to
the Court upon request, cannot be modified by concluding an agreement of the kind pro-
posed by the US. In addition, the legal advice pointed out that any State agreeing to
protect Americans from the jurisdiction of the ICC would become safe havens for suspects
in ICC crimes.
The European Union General Affairs Council took a slightly different stance, given the political
considerations it was required to take into account as well. The General Affairs Council pre-
pared the following “Guiding Principles concerning Arrangements between a State Party to the
Rome Statute of the International Criminal Court and the United States Regarding the Condi-
tions to Surrender of Persons to the Court”, which are annexed to the EU General Affairs
Council Conclusions on the International Criminal Court of 30 September 2002: “(1) Existing
agreements: Existing international agreements, in particular between an ICC State Party and
the United States, should be taken into account, such as Status of Forces Agreements and
agreements on legal co-operation on criminal matters, including extradition; (2) The US pro-
posed agreements: Entering into US agreements – as presently drafted – would be inconsistent
with ICC States Parties’ obligations with regard to the ICC Statute and may be inconsistent
with other international agreements to which ICC States Parties are Parties (3) No impunity:
any solution should include appropriate operative provisions ensuring that persons who have
committed crimes falling within the jurisdiction of the Court do not enjoy impunity. Such pro-
visions should ensure appropriate investigation and – where there is sufficient evidence -
prosecution by national jurisdictions concerning persons requested by the ICC; (4) Nationality
of persons not to be surrendered: any solution should only cover persons who are not nationals
of an ICC State Party; (5) Scope of persons: (i) Any solution should take into account that some
persons enjoy State or diplomatic immunity under international law, cf. Article 98, paragraph 1
of the Rome Statute. (ii) Any solution should cover only persons present on the territory of a
requested State because they have been sent by a sending State, cf. Article 98, paragraph 2 of
the Rome Statute. (iii) Surrender as referred to in Article 98 of the Rome Statute cannot be
deemed to include transit as referred to in Article 89, paragraph 3 of the Rome Statute. (6) Sun-
set clause: The arrangement could contain a termination or revision clause limiting the period
in which the arrangement is in force. (7) Ratification: The approval of any new agreement or of
an amendment of any existing agreement would have to be given in accordance with the con-
stitutional procedures of each individual state.”
Page 80
3.8 Allowing Suspects to be Transported Across State Territory En Route to

the ICC
Description
Under article 89, paragraph (3), subparagraph (a), a State Party must authorise, in accor-
dance with its national procedural law, transportation through its territory of a person
being surrendered to the Court by another State, except where transit through that State
would impede or delay the surrender. Article 89, paragraph (3), subparagraph (b) sets out
the required contents of a request by the Court for transit.
Article 89, paragraph (3), subparagraph (c) states that the person being transported must
be detained in custody during the period of transit. Article 89, paragraph (3), subpara-
graph (d) stipulates that no authorisation is required if the person is transported by air and
no landing is scheduled on the territory of the transit State. However, under article 89,
paragraph (3), subparagraph (e), if an unscheduled landing occurs on the territory of the
transit State, that State may require a request for transit from the Court. The transit State
must detain the person being transported until the request for transit is received and the
transit is effected, provided that detention is not more than 96 hours from the unscheduled
landing unless the request is received during that time. Although this is not mentioned in
the Statute. States Parties should also allow for convicted persons to be transported
through their territory, en route to the State where they will be serving their sentence.
Obligations
a) A State must ensure that its laws provides for transportation through its territory of a
person being surrendered to the Court by another State.
b) These laws must not require authorisation if the person is transported by air and no
landing is scheduled on the territory of the transit State.
c) If an unscheduled landing does occur, the transit State must detain the person being
transported, for up to 96 hours unless a request for transit is received during that time.
d) If a request for transit is received, the detention may be for longer.
Implementation
Where States already have legislation on mutual legal assistance, they may only need to
make minor amendments to such legislation, to allow them to meet their obligations under
these provisions. Other States should adopt laws and procedures to provide for transpor-
tation through their territory of a person being surrendered by another State. States Parties
laws and procedures must provide that no authorisation is required if the person is trans-
ported by air and no landing is scheduled on the territory of the transit State. However,
the law should provide for cases where an unscheduled landing does occur. Ideally, the
transit State would allow the continuation of the transit very quickly after the reason for
the unscheduled landing is dealt with. The transit State should ensure that the laws pro-
vide for keeping the surrendered person in transit in custody for up to 96 hours while in
Page 81
the country for the unscheduled landing. Note that under article 100, paragraph (1), sub-
paragraph (e), States may not have to pay the costs “associated with the transport of a
person being surrendered to the Court by a custodial State”. States should also consider
applying the same provisions to the transit of convicted persons through their territory.
Since many States will not have legislation permitting the detention of a person being
transported through their territory to the ICC, they will need to ensure that there is a basis
in law for such detention. There are at least two approaches seen in existing implementa-
tion legislation. First approach is to amend existing domestic legislation. A second
method of implementation is to include a separate regime in implementing legislation. An
example of the first approach is the Canadian legislation that amends the domestic legisla-
tion on citizenship to ensure compliance with article 89 (CA(E) s. 76).
The second approach could include mirroring the obligations provided for in article 89.
This approach has been effectively the approach taken by New Zealand, Australia, the
United Kingdom and Switzerland (NZ ss. 136-138, AU Pt 9, UK ss. 21-22, SW art 13). In
New Zealand, Part 7 of its implementing legislation deals with persons in transit to ICC or
serving sentences imposed by the ICC. These provisions mirror the obligations set out in
article 89 and include self-contained procedures in dealing with ICC requests regarding
persons in transit. The legislation expressly covers three situations: (1) persons being sur-
rendered to the ICC by another State under article 89; (2) persons who are being
temporarily transferred to the ICC by another State pursuant to article 93; and (3) persons
sentenced to imprisonment by the ICC and who are being transferred to or from the ICC,
or between States, in connection with that sentence. The Australian legislation also covers
persons in transit for reasons of surrender as well as sentencing. The UK implementing
legislation mirrors the obligations set out in article 89, identifying the Secretary of State as
the national authority to receive and agree to requests for transit. The requests are to be
treated as if it were an ordinary ICC request for arrest and surrender but, in view of the
different circumstances, there will be an expedited process for transferring the person in
question to the ICC. It equates the process to the domestic regime of arrest under an en-
dorsed warrant. The Swiss legislation identifies the Central Authority as the focal point for
request and communications with the ICC on these matters. The South African legislation
provides for a reference to entry and passage of persons in custody through their territory;
any warrant or order lawfully issued by the ICC will be deemed to be lawful in their terri-
tory.
3.9 Collecting and Preserving Evidence

Admissibility of evidence before the ICC
Description
The Court has the power to decide whether certain evidence should be admitted or not,
taking into account the need for a fair trial (article 64, paragraph (9), and article 69, para-
graph (4)). Article 69, paragraph (7) provides that evidence shall not be admissible where
it has been obtained by means of a violation of the Rome Statute or internationally recog-
nised human rights, if (a) the violation casts substantial doubt on the reliability of the
Page 82
evidence; or (b) the admission of the evidence would be antithetical to and would seriously
damage the integrity of the proceedings. This means that the Court will not be allowed to
take into account any such evidence, when making its decisions. Therefore, States need to
be familiar with the relevant provisions of the Rome Statute and internationally recognised
human rights standards, to ensure that any evidence collected by the State on behalf of the
Court is going to be acceptable to the Court and that the State’s efforts have not been
wasted.
The relevant provisions of the Statute includes article 66, which states that accused persons
will be presumed innocent until proven guilty before the Court, with the onus on the
Prosecutor to prove to the Court the guilt of the accused beyond a reasonable doubt, if the
Court is to convict the person. At the same time, the Court must ensure that every trial is a
fair trial, conducted impartially (article 67, paragraph (1)).
With this in mind, the Prosecution must disclose any evidence in its possession to the de-
fence, where such evidence shows the accused may be innocent, or suggests that the
Prosecution evidence may be less than credible (article 67, paragraph (2)). The defence is
entitled to challenge the evidence that the Prosecutor presents, and the manner in which it
was collected, in the interests of due process. The defence must also have the opportunity
to present as much evidence as it believes is necessary to ensure that the Court has all the
relevant facts before it, prior to passing judgement on the accused (articles 67, paragraph
(1), subparagraph (e) and article 69, paragraph (3)). In addition, the Court itself has the au-
thority to request the submission or production of any evidence that it considers necessary
for the determination of the truth (article 64, paragraph (6), subparagraph (d) and article
69, paragraph (3)).
In all cases, the quality and quantity of the evidence that both the Prosecutor and the de-
fence are able to present to the Court will have a major impact on the number of successful
and just convictions. For this reason, States Parties must be prepared to assist the Court in
every way with the collection and preservation of evidence, in accordance with their duties
under the various parts of the Statute, in order to facilitate the work of the Court. Under
article 69, paragraph (8), the Court is allowed to consider national laws that may apply to
the relevance or admissibility of evidence collected by a State. However, the Court may
not rule on the application of the State’s law. Therefore, representatives of the State who
are collecting evidence for ICC proceedings need to be familiar with the requirements of
the ICC as well as their national requirements. Whether they have complied with national
laws or not is irrelevant for ICC purposes, unless these laws reflect international standards.
Internationally recognised human rights
The procedural provisions of the Rome Statute are based to a large extent on existing inter-
national human rights standards in the area of criminal procedure. In assessing
“internationally recognised human rights” for the purposes of determining the admissibil-
ity of evidence, it is likely that the Court will also rely on the following standards adopted
or approved by the UN General Assembly: the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights, the UN Standard Minimum Rules for
the Treatment of Prisoners, the UN Body of Principles for the Protection of All Persons un-
Page 83
der Any Form of Detention or Imprisonment, the UN Declaration on the Independence of

the Judiciary, the UN Guidelines on the Role of Prosecutors, and the UN Basic Principles
on the Role of Lawyers. In addition, the Court may look to the humanitarian law stan-
dards set out in the Four Geneva Conventions and their Additional Protocols, since they
have also received widespread support within the international community.
As their name suggests, the Rules of Procedure and Evidence elaborate further on the
Court’s requirements in this regard, but these Rules are consistent with the relevant provi-
sions of the Statute discussed below. For more information, refer to ICCLR’s Guide on
the Rules of Procedure and Evidence.
Privileges on confidentiality
Article 69, paragraph (5) recognises that certain conversations and written communications
should be kept confidential and not exposed to scrutiny of any kind, even by the Court.
For example, whatever a lawyer says to their client is generally considered a “privileged”
communication in many countries, to which courts cannot demand access. Similarly,
health professionals and humanitarian workers need to be able to keep confidential certain
information that has been provided by people they have treated or assisted, so that poten-
tial patients are not afraid to reveal important information required for diagnosis and
treatment. Journalists working in war zones and reporting on issues relating to the conflict
may also be accorded privilege. A December 2002 ruling by the International Criminal
Tribunal for the former Yugoslavia held that war correspondents could only be subpoe-
naed to give evidence where the latter is of “direct and important value in determining a
core issue in the case” and “cannot reasonably be obtained elsewhere”. This ruling may set
an important legal precedent for the ICC. Rule 73 of the Rules of Procedure and Evidence
elaborates the principles for the Court to follow when determining the status of a particu-
lar communication in a given case. States should bear these privileges in mind whenever
they are collecting evidence for the ICC, so as not to prejudice the trial before the ICC.
Obligations
Whenever States are requested to assist the Court with the collection and preservation of
evidence, they should ensure that they observe all relevant standards under the Statute, in
addition to their requirements under national laws, as well as the relevant international
human rights standards, in order to ensure that the evidence will be admissible before the
Court.
Implementation
When States are implementing legislation and procedures to allow the relevant personnel
to collect and preserve evidence for the ICC, as detailed below, that legislation and those
procedures should respect the relevant standards for evidence, as described above. For
example, Australia and New Zealand have included provisions within their respective leg-
islation detailing the procedures to be followed in relation to the application for, and
execution of search warrants. These procedures reflect the fact that both countries have al-
ready implemented relevant international standards such as the right to a fair trial, the
Page 84
presumption of innocence until proven guilty, etc. If States have not previously imple-
mented the relevant international human rights standards, then persons collecting and
preserving evidence for the ICC will probably need to be trained in any new procedures
that are introduced. In particular, the rights of all persons being questioned must be re-
spected, in order to ensure a fair trial for all.
In order to assist the Court, States should attempt to ensure that privileged communica-
tions are not required to be disclosed by anyone. The best way to ensure this is to make
sure that none of their laws require the disclosure of such communications, particularly as
part of an ICC investigation. New Zealand implemented this obligation by specifying un-
der Part 5 s. 85(4) of its ICC legislation, that “a person who is required to give evidence, or
to produce documents or other articles, is not required to give any evidence, or to produce
any document or article, that the person could not be compelled to give or produce in the
investigation being conducted by the Prosecutor or the proceeding before the ICC”. States
should also ensure that the relevant persons are entitled to bring a claim before a judicial
authority, if someone is about to disclose one of these communications, or refuses to return
a copy of it that they have obtained without the person’s permission. In the same way, the
ICC will not accept secretly recorded evidence of such communications, unless the relevant
person waives their privilege.
To ensure the admissibility of evidence and the respect of international standards in gath-
ering evidence, States may thus take a number of approaches: 1) using established
practices, 2) applying existing legislation or 3) incorporating the obligation specifically into
legislation, such as that done by New Zealand in the example above (NZ Part 5).
Requests for assistance with evidence

Description
States may be requested to assist with the provision of information and the collection and
preservation of evidence at several stages of ICC proceedings.
Investigations
Prior to the commencement of an investigation, the Prosecutor can request more informa-
tion from a State when analysing the seriousness of information already received
concerning an alleged crime (article 15, paragraph (2)). Once the investigation has com-
menced, the Prosecutor can seek the co-operation of any State and enter into arrangements
with States in order to facilitate co-operation throughout the investigation (article 54, para-
graph (3), subparagraphs (c) and (d)). The Prosecutor can request the Pre-Trial Chamber to
issue any orders or warrants required to carry out the investigation (article 57, paragraph
(3), subparagraph (a)). Note that the Pre-Trial Chamber also has the power to issue orders
and seek State co-operation with respect to the preparation of the defence case, at the re-
quest of the accused person (article 57, paragraph (3), subparagraph (b)).
The Prosecutor may also execute requests on State territory in certain limited circum-
stances. Under article 57, paragraph (3), subparagraph (d), the Pre-Trial Chamber may
authorise the Prosecutor to take specific investigative steps within the territory of a State
Page 85
Party without having secured the co-operation of the State Party, if the Chamber has de-
termined that the State’s judicial system and other forms of authority are clearly unable to
meet any request for co-operation due to the unavailability of such systems of authority,
such as during situations of armed conflict. The Pre-Trial Chamber is encouraged to con-
sult with the State Party if possible, before authorising the Prosecutor. Under Article 99,
paragraph (4), the Prosecutor may execute requests that do not require compulsory meas-
ures, such as taking evidence on a voluntary basis. Where the ICC has not yet determined
whether the case is admissible, the Prosecutor needs to consult with the State Party first
and observe any reasonable conditions or concerns raised by that State Party.
Hearings
The Pre-Trial Chamber can order the disclosure of information to the defence prior to the
confirmation hearing, which may include some of the evidence on which the Prosecutor in-
tends to rely at the hearing (article 61, paragraph (3)). So the Prosecutor may need to ask
States to assist with such disclosure, if the relevant evidence is still in their custody. Simi-
larly, once a case has been assigned to the Trial Chamber, that Chamber may provide for
disclosure of documents or information not previously disclosed, “sufficiently in advance
of the commencement of the trial to enable adequate preparation for trial” (article 64, para-
graph (3), subparagraph (c)).
Finally, States may also be requested to assist the Trial Chamber with the “attendance and
testimony of witnesses and production of documents and other evidence” prior to and
during the trial (article 64, paragraph (6), and article 69, paragraph (3)).
Requests made at all of these stages of the process require a prompt response from States,
if the Court is going to function efficiently and effectively. Note that the Court can also
make an urgent request for the production of documents or evidence and these must be
sent urgently (article 99, paragraph (2)). In addition, under article 99, paragraph (1), the
Court may request that certain persons be present when a request for evidence is being
executed.
Obligations
a) States Parties must comply with all requests for assistance in providing evidence and
information, whether these requests are made by the Prosecutor, the Pre-Trial Cham-
ber, or other chambers of the Court (article 93). However, States may not have to
comply where national security concerns are involved (article 72, article 93, paragraph
(4), and article 99, paragraph (5), or where execution of the request is prohibited in the
requested State on the basis of an existing fundamental legal principle of general appli-
cation (article 93, paragraph (3)).
b) If the Court makes an urgent request and requires an urgent response, States Parties
must respond with urgency (article 99, paragraph (2)).
c) Requests for assistance must be executed in accordance with the relevant procedure
under the law of the requested State and, unless prohibited by such law, in the manner
Page 86
specified in the request. This may include following any procedure outlined in the re-
quest, or permitting persons specified in the request to be present at and to assist in the
execution process (article 99, paragraph (1)).
Implementation
a) State laws need to recognise the right of the Prosecutor, the Pre-Trial Chamber, and the
Trial Chamber to make requests for assistance with various types of evidence and the
provision of information, including evidence for the defence.
b) States need to have a procedure in place to ensure that all requests for such assistance
are directed to the appropriate authority as soon as possible after they are received, so
that the assistance can be provided expeditiously at all stages of investigations and
Court proceedings.
Canada chose to implement this obligation by adding the ICC to the list of entities from
which it can entertain requests for assistance. Provisions in its new ICC legislation amend
its existing Mutual Legal Assistance in Criminal Matters Act and allow Canada to respond
expeditiously to such requests from the Court. In Canada, the Minister of Justice has the
authority to approve requests for assistance from the ICC and to authorise state authorities
to apply for and execute search warrants according to existing legal procedures (s. 11 (1),
(2) MLA Act.). The United Kingdom and Switzerland similarly enacted legislation in this
regard, specifically allowing them to entertain requests for assistance from the ICC and
specifying to whom such a request should be addressed. As in the Canadian example, the
designated official in receipt of the request in both States, is empowered to then authorise
national officials to facilitate the investigation process. The UK legislation, like the Cana-
dian legislation, applies existing procedural laws to the collection of evidence. The Swiss
legislation provides for cooperation in such matters that includes “any procedural acts not
prohibited by Swiss law…” (art 30 SW). The Swiss legislation also specifies, as per art. 99
(4) of the Rome Statute, that in some circumstances, requests from the ICC may be exe-
cuted directly and in the absence of national authorities once approval is given by the
Swiss Central Authority. New Zealand has dealt with this issue by adding to its imple-
menting legislation an express provision relating to the execution of requests for assistance
under article 99 (NZ s. 123). This allows the Attorney General of New Zealand to consult
with the ICC in the event of difficulties arising with the execution of a request under article
99.
Testimonial evidence and other evidence concerning specific persons

Description
Most witnesses who agree to give evidence during ICC proceedings are required to give it
in person, unless the Court orders otherwise. However, the Court may allow the presenta-
tion of the recorded testimony of a witness, either by video or audio technology (article 69,
paragraph (2)). Before testifying, each witness must give an undertaking as to the truth-
fulness of the evidence they are about to give (article 69, paragraph (1)).
Page 87
The ICC does not have the power to order witnesses to testify. This was one of the com-
promises made in Rome when the Statute was finalised. But the Rome Statute tries to
compensate for this by providing for extensive protections for witnesses who do agree to
testify, particularly victims. For example, the Court will have a special Victims & Wit-
nesses Unit, to deal with the concerns of all witnesses (article 43, paragraph (6)). Article 93,
paragraph (2) also provides that witnesses and experts appearing before the Court will not
be prosecuted, detained, or subjected to any restriction of personal freedom by the Court
for anything they may have done prior to their departure from the requested State. In ad-
dition, the Court can request States to “facilitate the voluntary appearance of persons as
witnesses or experts before the Court”, so that witnesses are actively encouraged to attend
the Court (article 93, paragraph (1), subparagraph (e)). However, article 100, paragraph
(1), subparagraph (a) provides that the Court will bear the costs associated with the travel
and security of witnesses and experts.
At the same time, both the Pre-Trial Chamber and the Trial Chamber can provide for the
protection of accused persons (article 57, paragraph (3), subparagraph (c), and article 64,
paragraph (6), subparagraph (e)). The Court may request States to assist with this protec-
tion, in order to ensure that the person is brought to trial unharmed.
Article 93, paragraph (1), subparagraphs (a)-(f), (h) & (j) set out the main types of assistance
that States Parties are most likely to be requested to provide in relation to testimonial evi-
dence. Where a State consents, the Court can also request the State to transfer a person
who is already in custody for another offence, for the purpose of testifying, or for identify-
ing someone present at the Court (article 93, paragraph (1), subparagraphs (f) & (7)). The
person must also give their informed consent to the transfer and will remain in custody
while being transferred (article 93, paragraph (7), subparagraph (a), sub-subparagraphs (i)
& (b)).
Obligations
In general terms, States will need to assist with the following, where requested by the
Court:
a) Identifying and locating persons (article 93, paragraph (1), subparagraph (a)).
b) Obtaining expert opinions and reports (article 93, paragraph (1), subparagraph (b)).
c) Questioning victims and witnesses, including taking sworn statements from them (arti-
cle 93, paragraph (1), subparagraph (b)).
d) Questioning accused persons (article 93, paragraph (1), subparagraph (c)).
e) Serving documents, such as requests to testify before the Court (article 93, paragraph
(1), subparagraph (d)).
f) Assisting witnesses and experts to attend the relevant proceedings (article 93, para-
graph (1), subparagraph (e)).
Page 88
g) Conducting searches of persons (article 93, paragraph (1), subparagraph (h)).
h) Preserving evidence such as audio, video, or written copies of interviews, statements

and reports (article 93, paragraph (1), subparagraph (j)).
i) Protecting victims and witnesses (article 93, paragraph (1), subparagraph (j)).
j) [optional] Transferring persons in custody to the Court (article 93, paragraph (7)).
k) Ensuring the protection of the rights of all persons taking part in investigations in any
capacity, in accordance with Article 55.
l) Providing adequate physical protection for accused persons (article 57, paragraph (3),
subparagraph (c) and article 64, paragraph (6), subparagraph (e)).
m) Providing any other type of assistance which is not prohibited by the law of the re-
quested State, with a view to facilitating the investigation and prosecution of crimes
within the jurisdiction of the Court (article 93, paragraph (1), subparagraph (l)).
Implementation
a) Identification and location of persons within a State’s territory
Administrative procedures may be needed to enable States to identify and locate nationals
of their own State if the ICC requests this. For example, States could make use of their ac-
cess to government records such as electoral rolls and motor vehicle registrations.
Different procedures may be needed to enable States to identify and locate nationals of
other States whom the ICC wishes them to find. In either case, States must have proce-
dures in place to locate those who are present upon as well as those who are about to enter,
or leave, their territory. For example, States may wish to consider amending existing pro-
cedures or laws in relation to immigration and customs, to make it easier for them to know
with certainty who is transiting their borders.
States may already have such procedures in place, and could thus opt to implement this
obligation by including a provision that simply refers to or recognises generally those pro-
cedures not prohibited by domestic law (see Switzerland and South Africa (SW, art. 30 a.
and SA, s.14 a)). Another approach would be that taken by Australia and New Zealand
whereby the obligation is incorporated into the legislation and specifies the procedures to
be undertaken. In Australia, such procedures involve the Attorney General executing the
request by authorising in writing, the making of inquiries to locate and/or identify a per-
son or thing (AU, Part 4, Div. 4, s. 63). In New Zealand, the Attorney General is authorised
to forward the request to the appropriate domestic agency which is asked to “use its best
endeavours to locate or, as the case may be, identify and locate the person or thing to
which the request relates” (NZ Part 5 s. 81 (4)).
Page 89
b) Obtaining expert opinions and reports
It would also be desirable for States to create and keep a register of different types of ex-
perts who reside in the State, who may be asked to prepare reports, such as medical
experts, weapons experts, military strategy experts, and experts on gender issues. Article
100, paragraph (1), subparagraph (d) provides that the Court will pay the costs of any ex-
pert opinion or report requested by the Court. States may similarly implement this
obligation by adopting either of the two approaches noted in the above obligation to assist
in the identification and location of people or things.
c) Questioning victims and witnesses, including taking sworn statements from them
A record of some kind will need to be made of all statements made by persons questioned
in connection with an ICC investigation. At the very least, this will need to be a written re-
cord. However, it would be desirable to have as complete a record as possible, such as a
video recording, in case the person is not able to attend the Court for some reason. Then
their statement will be much more helpful to the Court, if the Court agrees to admit it into
evidence. Australia’s legislation, for example, specifically allows for evidence to be taken
by means of video or audio technology providing that such evidence is accompanied by a
written transcript or in any other form that the magistrate considers appropriate (AU s.65).
Note that the Court will pay the costs of translation, interpretation and transcription, under
article 100, paragraph (1), subparagraph (b) (Note also Article 55, paragraph (1) which ap-
plies to all persons involved in investigations under the Rome Statute). All persons being
questioned, including victims and potential witnesses, should be granted the rights in this
paragraph. They shall not be compelled to incriminate themselves, or to confess guilt, nor
shall they be subjected to any form of coercion, duress or threat, to torture or to any other
form of cruel, inhuman or degrading treatment or punishment, nor shall they be subjected
to arbitrary arrest or detention. States that have implemented the International Covenant
on Civil and Political Rights or the Convention Against Torture will already be in compli-
ance with these provisions, as long as the laws in their present state can also apply to
people involved in ICC investigations. Other States may need to revise their laws and pro-
cedures on the treatment of persons being questioned. Canada’s approach in this regard,
was to utilise its existing legislation on mutual legal assistance. S. 18 (7) of its MLA, re-
quires that persons named in an order for examination be subjected to the rules of
procedure and evidence of the State or entity that made the request. Such individuals,
however, may refuse to answer questions or to produce records if the information is pro-
tected under Canadian laws of non-disclosure or privilege.
States should also provide competent interpreters and translations for persons being ques-
tioned who do not fully understand or speak the language of the person asking the
questions, or the language of documents they are being questioned about. Switzerland, for
example, specifically provides that a competent interpreter shall be provided as well as
“such translations as are necessary to meet the requirements of fairness” in such a situation
(SW Sec. 2, Art. 34. 1). Article 55, paragraph (1), subparagraph (c) of the Rome Statute
stipulates that the person should not have to pay for this. Therefore, States may need to
create and retain a list of interpreters and translators who are available at short notice, to
Page 90
assist in such matters, and organise for the Court to pay for these, in accordance with arti-
cle 100, paragraph (1), subparagraph (b).
States should also review existing international standards for investigations, to ensure that
their laws do not contradict these.
The Rules of Procedure and Evidence elaborate in considerable detail the rights and pro-
tections to be provided to victims and witnesses who are questioned in relation to a
proceeding before the ICC. For more information, refer to the Guide on the Rules of Pro-
cedure and Evidence and Rules 74 and 75 in particular.
d) Questioning any person being investigated or prosecuted
Even before the ICC has issued an arrest warrant, the Court may request a State to ques-
tion a person who is believed to have committed a crime within the jurisdiction of the
Court. States will need laws and procedures to allow them to question the person, includ-
ing the possibility of detention if appropriate, while ensuring that the person’s rights under
Article 55, paragraph (2) are respected and observed. These rights include the right to be
informed of the charge that the person is likely to face, the right to legal counsel of their
choosing, the right to remain silent, and the right to be questioned in the presence of coun-
sel. Subject to constitutional safeguards, States may wish to have laws in place to allow
them to detain the person until the ICC has been advised of the information that the person
has provided, as long as this is not an unreasonably lengthy period of time, such as more
than a day.
States may implement this obligation by extending their existing legal practices (such as
Canada’s approach) or by incorporating the obligation into legislation, such as that done
by New Zealand (NZ ss. 89, 90) and the United Kingdom (UK s. 28).
States need to make sure that at the very least, a written record of the questioning must be
produced in every case.
State laws should also provide for the Prosecutor and defence counsel to interview accused
nationals or other persons within their territory, after the Court has consulted with the
State, in accordance with article 99, paragraph (4), subparagraph (b). Note that article 100,
paragraph (1), subparagraph (c) stipulates that the Court will pay the travel and subsis-
tence costs of relevant ICC personnel.
e) Serving documents, such as requests to testify before the Court
Because the ICC cannot demand that victims and witnesses provide information or testi-
mony, States are not required to subpoena such persons to provide statements or to attend
the Court. However, it would assist the Court considerably if States decided to make use
of subpoenas or summons’, to ensure that vital evidence is collected in a timely but fair
fashion. Persons within the requested State and nationals of that State could be subpoe-
naed by the State authorities to provide statements for the Court, as long as the appropriate
protections are also provided. This may require some revision to the State’s laws on ser-
Page 91
vice of documents, to include such subpoenas. On the other hand, States may choose
merely to deliver requests to give evidence before the ICC, without any provision for en-
forcement of a response to such a request. Delivering requests may also need laws that
require a person to ensure that the right person receives the request, and that the delivery
of the request is kept confidential.
Some States, such as New Zealand and the United Kingdom, have incorporated this obli-
gation into their legislation (see NZ s. 91, and UK s. 31). Others have chosen to include a
general cooperation provision in their legislation that allows for procedures such as those
involving the service of documents, as long as they are not prohibited by domestic law (see
Switzerland, SW, art. 30 d).
f) Assisting witnesses and experts to attend the relevant proceedings
Article 100, paragraph (1), subparagraph (a) provides that the Court will pay the costs as-
sociated with the travel and security of witnesses and experts. However, States are
required to “facilitate the voluntary appearance of persons as witnesses or experts before
the Court” (article 93, paragraph (1), subparagraph (l). In other words, they should do eve-
rything possible to make it easy for witnesses and experts from their State to travel to the
Court, of their own volition. This may include making the travel arrangements, arranging
extra counselling, or anything else that the State thinks will assist such persons. In Finland,
for example, authorities are required to take the necessary measures to facilitate a witness’s
compliance with a summons. The obligation is thus incorporated in its statute (see FI s. 5).
Finland’s legislation also provides that such witnesses are to be compensated in advance of
appearing before the ICC in accordance with Finland’s State Compensation for Witnesses
Act (see FI s. 6). New Zealand similarly incorporated this obligation into its legislation, re-
quiring that the Attorney General facilitate a witness’s appearance if a number of
conditions are met (see NZ ss. 92-94).
g) Conducting searches of persons
State laws will need to provide for the issuing of warrants to allow the relevant personnel
to search persons, if the ICC requires this. They may also need to allow representatives of
the Prosecutor and the defence counsel to be present during such searches, if requested by
the Court to do so, after consultations with the State concerned. Some States have incorpo-
rated this obligation into their legislation while also referring to domestic powers. New
Zealand’s legislation, for example, authorizes police to search individuals once a warrant
has been properly obtained, but also provides that nothing in the relevant provision limits
or affects the rights of a constable to search a person or exercise any power under its Police
Act (see NZ s. 77). Other States such as Canada, have amended their mutual assistance
scheme to include the ICC. According to Canada’s MLA Act, searches are conducted in ac-
cordance with Canada’s Criminal Code (see CA(L), s. 10, 12 (4)). State authorities should
note that there are different types of searches, from “frisking” a person’s body outside of
their clothes, to a full body cavity search. The invasiveness of the search is usually deter-
mined by the amount of probability that the person is carrying something particularly
harmful or something that carries a high penalty if found in one’s possession, such as cer-
tain banned drugs. States need to ensure that they do not carry out searches that are any
Page 92
more invasive than they need to be, given all the circumstances. Otherwise the person can
claim that their rights have been violated, such as their right not to be subjected to cruel,
inhuman, or degrading treatment (article 55, paragraph (1), subparagraph (b)). Then
whatever evidence is found on them may not be admissible, in accordance with Article 69,
paragraph (7).
h) Preserving evidence such as audio, video, or written copies of interviews, statements

and reports
States need to designate a secure storage facility for such materials, until they are required
at trial, and limit the number of persons who can have access to them. This will help to re-
duce any possible tampering with such evidence.
i) Protecting victims and witnesses
States may need to have protection programs, or similar measures in place for all persons
who may be involved in ICC investigations and proceedings. The needs of victims will be
different from the needs of witnesses for the defence, so there should be separate measures
for each. However, the basic idea of each will be the same: these persons may need protec-
tion from physical harm, or any kind of intimidation, prior to, during, and sometimes after
ICC proceedings. The actual protective measures requested by the Court will vary. They
may involve providing a safe temporary residence for victims, witnesses, and their fami-
lies, moving them to a different location within the State or to another State if necessary,
perhaps even changing their identity for them. States Parties may also be required to re-
ceive foreign victims and witnesses, if their safety is compromised within their own State.
Therefore, immigration authorities should grant preferential treatment to these people.
Examples of different legislative approaches to this obligation include amending existing

legislation (see Canada’s amendment to its Witness Protection Act, and the United King-
dom’s extension of its Criminal Evidence Order’s provisions for the protection of
witnesses, to its ICC legislation), or incorporating the obligation into the State’s ICC legisla-
tion (see New Zealand, NZ s. 110).
The appropriate type of protection for each situation should be taken into account. For ex-
ample, witness protection programs in North America are successful largely because of the
size of the continent and the varied ethnic and racial background of the population. Both
of these factors make it easier for strangers to blend into a new community, than if they all
came from a relatively small, homogeneous country. Sometimes the use of restraining or-
ders will be sufficient.
Police forces or other relevant authorities within the State should be organised to assist
with the execution of requests to protect victims. In many States, a special unit with a
mandate to protect victims and witnesses already exists at the national level. This could
simply be expanded to include the victims of ICC crimes and witnesses who will be ap-
pearing before the ICC.
Page 93
Some States Parties are relying on the general obligation to cooperate with requests of the
ICC included in their implementing legislation in order to meet their obligations under ar-
ticle 93, paragraph (1), subparagraph (j) of the Rome Statute. For example, the Netherlands
relies on the general obligation to cooperate with requests of the ICC in order to cover trust
fund interests. Other States have implemented in detail the procedure to be adopted if the
ICC requests assistance in protecting victims and witness or preserving evidence under ar-
ticle 93, paragraph (1), subparagraph (j). For example, in the Australian and New Zealand
legislation, the Attorney General is the person responsible for authorising the request to
proceed if he or she is satisfied that the request relates to an investigation or proceeding be-
fore the ICC and if the assistance sought is not prohibited by domestic law (AU s.80 and
NZ s.110). The Attorney General then forwards the request to the designated agency who,
in turn, produces a report for the Attorney General on its efforts to give effect to the re-
quest.
Some States Parties have either created new legislation or extended separate existing legis-
lation in order to provide for the protection and compensation of witnesses and victims.
For example, in Canada, the legislation provides for the establishment of the Crimes
Against Humanity Fund and a Witness Protection Program Act (CA ss. 30-32). Certain
States, such as Estonia, Finland and Norway already have existing legislation schemes that
provide for protection and compensation of victims of crime and this could include victims
of ICC crime (Estonia Code of Criminal Procedure s. 791, Finland State Compensation for
Witnesses Act, Norway Penal Code and the Police Code). The Swiss legislation on the co-
operation with the ICC includes specific provisions on the protection of victims and
witnesses and the preservation of evidence (SW s. 30-32). Under the legislation, the Swiss
courts may take preventative measures to maintain existing conditions, protect threatened
legal interests or preserve endangered evidence. Other preventative measures may be
taken to ensure the safety or physical or psychological well being of victims, witnesses or
their families. The United Kingdom legislation extends the protection afforded to victims
and witnesses of sexual offence under pre-existing domestic legislation to victims and wit-
nesses in proceedings brought in the context of the ICC (UK s. 57).
j) Transferring persons in custody to the Court
If a State is likely to allow a person in its custody to be transferred to the Court, the State
should have laws that allow it to perform such transfers. It should also have a procedure
for obtaining the free and informed consent of the person in custody beforehand. Note
that States can agree with the Court on conditions for the transfer, such as placing the per-
son in a cell away from other persons in custody at the seat of the Court.
Many States may already have mutual legal assistance legislation, which allows them to
transfer prisoners from one State to another, for the purpose of giving evidence or some-
thing similar. This legislation should only require minor modification to allow those States
to transfer prisoners to the Court. Canada, for example, amended its existing mutual assis-
tance scheme to comply with this obligation. New Zealand, on the other hand, fulfilled its
obligation by creating specific provisions in its ICC legislation on the temporary transfer of
prisoners to the Court (see NZ s. 95-99).
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Article 100, paragraph (1), subparagraph (a) provides that the Court will pay for the costs
associated with transferring a person in custody to the Court.
k) Respecting the rights of all persons being questioned
The rights set out in Article 55, paragraph (2) apply specifically to a person who is about to
be questioned, and where there are grounds to believe that the person has committed an
ICC crime. It is important that States enact laws or adopt procedures that require the rele-
vant authorities to observe these fundamental rights. Otherwise, if the person’s rights are
violated significantly, that person may be acquitted on the grounds that the investigation
was unfair.
l) Protecting accused persons
Accused persons may also need to be shielded from harm, so that they can have a fair trial
and not be executed summarily by a person seeking instant revenge, for example. If they
are being held in detention, States may need to give them a cell in a private area, so that
other inmates cannot approach them.
m) Other types of assistance
The Court may also request a State to provide “any other type of assistance which is not
prohibited by the law of the requested State, with a view to facilitating the investigation
and prosecution of crimes within the jurisdiction of the Court” (article 93, paragraph (1),
subparagraph (l)). Such assistance will need to be negotiated with States, in accordance
with article 93, paragraph (5).
Items of evidence
Description
There are an infinite number of different types of items that may be required as evidence in
a criminal proceeding. Article 93, paragraph (1) refers to some of them, including the con-
tents of exhumed grave sites (paragraph (g)), official records and documents (paragraph
(i)), and possible proceeds of crimes (paragraph (k)). Other paragraphs in Article 93 sug-
gest that States will have to co-operate with respect to: the location of items for the Court
(paragraph (a)), the production of all kinds of evidence (paragraph (b)), the examination of
places or sites, including the exhumation and examination of grave sites (paragraph (g)),
the execution of searches and seizure (paragraph (h)), and the preservation of all kinds of
evidence (paragraph (j)).
States need to ensure that they have no limits on the kinds of materials and objects that
they can obtain control over, for provision to the Court. They also need to have laws that,
in accordance with the Statute, allow the Prosecutor and the defence counsel to obtain
items on their territory, or in the possession of their nationals. However, these laws should
all protect the rights of bona fide third parties, if their property is required as evidence be-
fore the Court (article 93, paragraph (1), subparagraph (k)). Confidentiality and national
Page 95
security concerns may also be relevant to items of evidence – see the sections on third-
party confidentiality and protection of national security information, below.
Obligations
In general terms, States will need to assist with the following, where requested by the
Court:
a) Identification and whereabouts of items (article 93, paragraph (1), subparagraph (a)).
b) Service of documents (article 93, paragraph (1), subparagraph (d)).
c) Examination of places or sites, including grave sites (article 93, paragraph (1), subpara-
graph (g)).
d) Search and seizure of items (article 93, paragraph (1), subparagraph (h)).
e) Provision of records and documents, including official documents (article 93, para-
graph (1), subparagraph (i)).
f) Preservation of evidence (article 93, paragraph (1), subparagraph (j)).
g) Identifying, tracing and freezing evidence of proceeds of crime (article 93, paragraph
(1), subparagraph (k)).
Implementation
a) Identification and whereabouts of items
This will probably be more of an issue of allocating resources than of legislation. In short,
people will be needed to locate items of evidence for the ICC, such as weapons. In addi-
tion, States may need laws to allow the Prosecutor and defence counsel to look for items of
evidence on State territory, after consulting with the State in accordance with article 99,
paragraph (4), subparagraph (b). The defence will usually need an order from the Court to
collect evidence, unless the State consents to their presence on its territory (article 57, para-
graph (3), subparagraph (b)).
b) Service of documents, including judicial documents
States need to ensure that their laws on service of documents will apply to ICC documents,
so that these can be served within the State’s territory, as required.
c) Examination of sites
States may need to review any laws which prohibit persons from visiting or examining or
disturbing particular locations in the State’s territory. The Statute makes specific mention
of the examination of grave sites, which may raise cultural or religious concerns in some
States. However, recent experience with the two International Criminal Tribunals has
shown that issues such as these can be negotiated, where the gravity of the crime is such
Page 96
that the need for adequate prosecution overrides the need to meticulously observe particu-
lar practices.
By adding the ICC to the list of entities in its mutual assistance legislation from which it
can entertain requests for assistance, Canada was able to apply existing procedures for ob-
taining approvals of requests to examine places or sites in Canada regarding an offence (s.
23 (1) MLA Act).
d) Search and seizure
State laws will need to provide for the issuing of search warrants to allow the relevant au-
thorities to search for property and seize items of evidence, on behalf of the ICC. In
addition, these laws and procedures could allow representatives of the Prosecution and the
defence counsel to conduct such searches and seize such items after the State has been con-
sulted on the issue. As with body searches, there are different types of searches of
property, ranging from a superficial inspection to complete deconstruction of objects into
their various components. States need to ensure that they do not carry out searches that
are any more invasive or destructive than is necessary, given all the circumstances. Oth-
erwise the evidence that is found may not be admissible, in accordance with article 69,
paragraph (7).
e) Provision of official documents
States may need laws to allow them to provide official documents to the ICC and defence
counsel. For example, data from police files is mentioned specifically in the Security Coun-
cil Guidelines for National Implementing Legislation prepared for the International
Tribunal for Yugoslavia. It is likely that the ICC will also request access to such informa-
tion, where it concerns crimes within its jurisdiction.
f) Preservation of evidence
States may need laws to restrict the types of people who have access to evidence that is re-
quired for the ICC, in order to reduce the risk of anyone tampering with it. States may also
need to allocate some extra resources to allow for the preservation of certain types of
physical evidence. For example, security officers may be required to protect the scene of a
crime until ICC Prosecutor can inspect it. Extra storage facilities may need to be provided
to refrigerate bodily samples.
g) Proceeds of crime
States may need special laws to enable the relevant authorities to identify, trace, and freeze
the proceeds, property and assets and instrumentalities of crimes for the purpose of even-
tual forfeiture, without prejudice to the rights of bona fide third parties. The difference
between such laws and some other search and seizure laws is in the fact that the property
will not be returned to the person afterwards, if it is connected to the crimes that the per-
son is found to have committed. In other words, court orders that effectively require the
potentially permanent confiscation of property need to be issued before it is proved that
Page 97
the person has actually committed the offence under investigation. Of course, these orders
should provide that the property be returned where appropriate. They also need to protect
the rights of bona fide third parties.
Where the proceeds of crime are in monetary form, States may need to introduce proce-
dures that allow them to track the movement of large sums of money within the private
banking sector. For example, in some jurisdictions, banks are required to notify the appro-
priate authority of all transactions of $10,000 or more.
Canada chose to implement this obligation through a series of amendments. First, its ICC
legislation amended its pre-existing MLA Act to adopt and include the definition of the
ICC, then new provisions were added to the MLA Act allowing Canada to provide specific
assistance to enforce ICC orders and judgements for forfeiture and collection of ICC fines
(see Canada’s ICC legislation s. 57, and Canada’s MLA Act ss. 9.1 and 9.2). Under the
Swiss ICC legislation, the Central Authority executes such a request by the Court by
authorising officials to enforce orders for freezing proceeds of crime. This is done in a
similar way to its execution of other requests for cooperation from the Court (SW art. 30(j)).
3.10 Protection of National Security Information

Description
Article 93, paragraph (4) provides that a State Party may deny a request for assistance, in
whole or in part, if the request concerns the production of any documents or disclosure of
any evidence which relates to its national security. Article 72 sets out the procedure for
dealing with issues of protection of national security information requested by the Court or
a party. It provides that “in any case where the disclosure of the information or documents
of a State would, in the opinion of that State, prejudice its national security interests”, all
reasonable steps will be taken by the State, acting in conjunction with the Prosecutor, the
defence or the Pre-Trial Chamber or Trial Chamber as the case may be, to seek to resolve
the matter by co-operative means. These steps may include modifying or clarifying the re-
quest, having the Court determine the relevance of the information or evidence sought,
obtaining the information from another source, or agreeing on the use of summaries or re-
dactions. Once all reasonable steps have been taken to resolve this matter co-operatively,
then the Court may take steps set out in article 72, paragraph (7), such as requesting further
consultations with the State or ordering disclosure.
Article 72 also applies to persons who have been requested to give information or evi-
dence, when that person has claimed that disclosure of the information or evidence would
prejudice the national security interests of a State and that State agreed with the claim.
Obligations
States have an obligation to co-operate with the Court. Article 72 provides specific guid-
ance in cases where the disclosure of certain information requested by the Court or a party
is deemed by a State to be prejudicial to that State’s national security interests. States must
work co-operatively to resolve the matter. Article 72, paragraph (5) gives some examples
Page 98
of how the issue might be resolved co-operatively – for example, agreement could be
reached on providing summaries or redactions or other protective measures. If, however,
the State and the Prosecutor or Court cannot come to an agreement co-operatively, under
article 72, paragraph (6) the State has an obligation to notify the Prosecutor or Court of the
specific reasons for the decision – unless providing specific reasons would prejudice the
State’s national security interests.
Article 72 cannot be used to protect information that is not prejudicial to a State’s national
security interests. States must act in good faith when invoking protection on the basis of
national security.
Implementation
The obligations under article 72 do not necessarily need to be reflected in legislation. The
determination of “national security interests” will likely be a decision of the executive. In
addition, the designation of appropriate procedures for communication on national secu-
rity claims will likely be a matter for the executive. However, each State should review its
process for designating specific procedures to determine if legislation is required to specify
the communications procedures.
When a State is deciding whether to withhold certain information from the ICC, because of
national security concerns, it may be helpful to consider these comments made by the Ap-
peals Chamber of the ICTY, with reference to documents being withheld by a State
asserting national security claims: “those documents might prove crucial for deciding
whether the accused is innocent or guilty. The very raison d’être of the International Tribu-
nal would then be undermined” (Prosecutor v. Tihomir Blaskic, Judgment on Request of
Republic of Croatia for Review of Decision of Trial Chamber II, October 29, 1997, para. 65).
However note that the ICTY Statute does oblige States to disclose national security infor-
mation, unlike the Rome Statute.
3.11 Protection of Third-Party Information

Description
Article 73 provides for protection of third-party information or documents. According to

this article, if a State Party is requested by the Court to provide a document or information
in its custody, possession or control that was disclosed to it in confidence by a third party
(State, intergovernmental organisation or international organisation), the State must seek
the consent of the originator before disclosing the document or information. If the origina-
tor is a State Party, then it shall either consent or undertake to resolve the issues subject to
article 73. If the originator refuses and is not a State Party, then the State shall inform the
Court that it is unable to provide the document or information because of a pre-existing
obligation of confidentiality to the originator.
Obligations
States must follow the procedure described in article 73 prior to the disclosure of third-
party information.
Page 99
Implementation
The procedures to deal with third-party information, and provision of information to the
Court, are likely to be regulated by the executive and not through legislation. However, a
State must take into account its national privacy legislation when establishing these proce-
dures, and will need to determine if amendments are required. Some States Parties have
implemented in detail the procedures set out in article 73 in their implementing legislation,
such as New Zealand (NZ ss. 164-165) and Australia (AU Pt 7). In both these examples, the
Attorney General is the authority identified who must seek the consent of the originator of
the information or document and follow the procedures required. Both of these pieces of
legislation also provide for the situation where their State is in the position of the origina-
tor of information or documents and another State is seeking consent from them to disclose
information to the ICC.
3.12 Enforcement of Fines, Forfeiture Orders, and Reparations Orders

Description
Once a person has been convicted by the ICC, the Court may make a request to a State
Party for identification, tracing and freezing or seizing of the relevant proceeds, property
and assets and instrumentalities of the crime, for the purpose of eventual forfeiture, if this
appears necessary (article 75, paragraph (4) and article 93, paragraph (1), subparagraph
(k)). State Parties must comply with such requests, in accordance with their obligations
under Part 9 of the Statute.
Article 77 allows the Court to impose fines and forfeiture orders on convicted persons, by
way of a penalty. In addition, under article 75, paragraph (2), the Court may order a con-
victed person to provide reparations to, or in respect of, victims, including restitution,
compensation and rehabilitation. Article 109 provides that States Parties must participate
in the application and execution of all penalties that are in addition to incarceration. This
includes fines and orders for the forfeiture of proceeds of crime, which must be enforced in
accordance with the procedures of the national law. Note that this general obligation on
States Parties is to be carried out without prejudicing the rights of “bona fide third parties”.
Article 75, paragraph (5) provides that States Parties must also give effect to reparations
orders in accordance with the provisions of article 109. Note that orders for reparations
may be appealed, by the legal representative of the victims, the convicted person, or a bona
fide owner of property adversely affected by such an order (article 82, paragraph (4)). A
convicted person or the ICC Prosecutor can also appeal decisions on penalties (article 81,
paragraph (2), subparagraph (a)). Therefore, States may have to respond to a subsequent
request not to enforce the particular fine or forfeiture order, if an appeal is lodged.
Article 79 provides for a Trust Fund to be established by the Assembly of States Parties, for
the benefit of victims of crimes within the jurisdiction of the Court, and their families. The
Court can order fines and other property collected through forfeiture orders to be trans-
ferred to the Trust Fund (article 79, paragraph (2)). Where appropriate, the Court can
order that payment of reparations be made through the Trust Fund (article 75, paragraph
(2)).
Page 100
Obligations
a) Under article 75, paragraph (4) and article 93, paragraph (1), subparagraph (k), once a
person has been convicted, States Parties must respond to requests from the Court to
identify, trace and freeze or seize certain proceeds, property and assets and instrumen-
talities of crimes, for the purpose of eventual forfeiture.
b) Under article 109, paragraph (1), States Parties must give effect to penalties that are im-
posed on a convicted person in the form of fines or forfeiture orders by the Court,
without prejudice to the rights of bona fide third parties, and in accordance with the
procedure of their national law.
c) Under article 109, paragraph (2), if States Parties are unable to give effect to an order for
forfeiture, they must take measures to recover the value of the proceeds, property or
assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide
third parties.
d) Under article 109, paragraph (3), States Parties must transfer to the Court any property,
or the proceeds of the sale of real property or, where appropriate, the sale of other
property, which is obtained by the State Party as a result of its enforcement of a judg-
ment of the Court.
e) Under article 75(5), States Parties must give effect to orders by the Court for repara-
tions, in accordance with the provisions in article 109.
Implementation
a) Proceeds of crime
Article 75, paragraph (4) is one of several provisions in the Statute that allows the Court to
request or order the tracing, seizure or freezing of proceeds and instrumentalities of
crimes. Article 57, paragraph (3), subparagraph (e) allows the Pre-Trial Chamber to seek
the co-operation of States in taking protective measures for the purpose of forfeiture, after
an arrest warrant or summons has been issued under article 58. Article 93, paragraph (1),
subparagraph (k) requires States to comply with orders for tracing, seizing or freezing pro-
ceeds and instrumentalities of crimes at any stage of an ICC investigation or prosecution.
Thus, States Parties should ensure that they have laws and procedures in place that enables
them to undertake all of these activities, such as Proceeds of Crime legislation and proce-
dures.
With respect to implementing obligations regarding tracing, freezing, seizing (restraining)

and forfeiture of the proceeds of crime, States Parties have taken a number of approaches,
of which four will be highlighted here. One approach combines extending existing domes-
tic restraint and forfeiture provisions to the proceeds of ICC crimes as well as providing for
direct enforcement of such ICC orders. Another approach is to create a separate regime for
restraint and forfeiture and the enforcement of forfeiture orders. A third approach is a hy-
brid of the first two, which implements only a domestic power for restraint and freezing
Page 101
and provides for direct enforcement to cover obligations regarding forfeiture. A fourth
approach identifies a central national authority to address all ICC requests for cooperation.
An example of the first approach is the Canadian legislation which amends pre-existing
mutual legal assistance legislation to adopt and include the definition of the ICC and add it
to the other organisations covered by the Act, including the International Criminal Tribu-
nals for Rwanda and the Former Yugoslavia (CA ss. 56-69). The Canadian legislation
further provides that ICC orders for restraint and seizure of proceeds of crime are enforced
as if they were special search warrants or restraining orders. The implementing legislation
establishes a streamlined process, wherein the Minister of Justice may authorises the At-
torney General to make arrangements for enforcement, who can then file the ICC order
giving it status of its domestic equivalent. An example of the second approach is the New
Zealand implementing legislation (NZ Pt 6). This Act establishes a scheme that applies
domestic law for restraint, using existing proceeds of crime legislation and establishes a
separate domestic forfeiture regime. An example of the hybrid and third approach is that
of the United Kingdom legislation (UK ss.37-38 and 49). This Act separately deals with
ICC requests to freeze property liable to forfeiture from the national legislation process for
the enforcement of ICC sentences. The UK legislation essentially converts ICC requests re-
garding property into orders issued by national courts. However, rather than amending
existing legislation, the UK Act includes self-contained procedural regime for executing re-
quests. The Secretary of State designates a person to act on behalf of the ICC and directs
that person to apply for an order. Providing an example for the forth approach, in the
Swiss legislation, all decisions on whether to proceed or not to execute requests for the ICC
lies with a Central Authority (SW arts. 3 and 41). The South African legislation also estab-
lishes a Central Authority that receives and authorises all requests from the ICC, including
requests for entry, search and seizure as well as restraint orders and confiscation orders
(SA ss. 25-29). The legislation sets out in detail the procedural regime that the Central Au-
thority is to follow for each request.
b) Enforcement of fines, forfeiture orders and reparations orders
Article 109, paragraph (1) provides that States Parties must give effect to these types of or-
ders “in accordance with the procedure of their national law.” Thus States Parties need to
ensure that they have laws and procedures in place that allow them to enforce all of these
orders. They can determine for themselves what the appropriate laws and procedures
should be, as long as these are consistent with the other provisions in article 109 and with
the Statute. Those States with mutual legal assistance legislation will probably only need
to make minor modifications to this legislation and to the relevant administrative proce-
dures, to enable them to enforce these types of orders from the ICC. However, States
should ensure that the rights of bona fide third parties are protected in all cases. They
should also ensure that the relevant authorities can respond in a timely fashion to any or-
ders for a stay of execution of such orders, for example where an appeal is lodged
subsequent to the order being made.
Legislative examples of implementing obligations relating to the enforcement of fines and

reparation orders show at least three approaches: (1) providing for a general power to en-
Page 102
force all orders directly or (2) separate powers for both fines and reparation orders or (3)
general power for enforcement but leaves out procedural details. Canada, Australia and
the United Kingdom follow the first approach where the implementing legislation essen-
tially converts these ICC orders into orders issued by its national courts (CA ss. 56-69, AU
Pt 10 and 11, UK s. 49). However, the Canadian legislation amends existing domestic legis-
lation to allow Canada to provide specific assistance to enforce ICC reparation orders and
collection of ICC fines, while the UK and Australian legislations includes self-contained
procedural regime for executing such orders. The second approach is followed by New
Zealand, which has separate provisions dealing with enforcement of fines and reparation
orders (NZ Pt 6). Examples of the third approach are found in the Norwegian and Finnish
implementing legislations (FI s. 9, NO s. 11). In Norway, the implementing legislation
provides general authority for the enforcement of fines and reparation orders and refers to
the use of existing legislation, such as criminal procedure act applying where appropriate.
In Finland, the legislation provides for the enforcement of fines and reparations as re-
quested by the Court.
c) Transferring property or the proceeds of the sale of property to the Court
States Parties must transfer to the Court the tangible results of their enforcement of judg-
ments of the Court. The Court may order that money and other property be transferred to
the Trust Fund. States Parties therefore need legislation and administrative procedures to
allow them to transfer money and property to the Court or to the Trust Fund, in accor-
dance with the relevant order of the Court. Their mutual legal assistance legislation
should contain similar provisions, which will probably only require minor amendment.
Some implementing legislation simply ensures that money or property recovered as a re-
sult of the enforcement of such orders must be transferred to the ICC, without specifying
the procedure to do so. For an example, see New Zealand legislation. While other imple-
menting legislation have created national funds, for example the Canadian Crimes Against
Humanity Fund in which to deposit moneys collected through enforcement of ICC orders
and identifies the national authority, such as the Attorney General, who has discretion to
make payments to the ICC Trust Fund or to victims themselves.
3.13 Enforcement of Sentences of Imprisonment

The Statute provides that States Parties are not required to accept sentenced persons, in or-
der to enforce sentences imposed by the Court. This is a voluntary commitment (article
103). When States are considering whether to volunteer for such a role, they should how-
ever take into account the positive effect that this would have on the efficient functioning
of the Court. The Court will have only very limited detention facilities at The Hague, so it
will be relying almost entirely on States to enforce its sentences of imprisonment in na-
tional detention facilities. If there is a shortage of suitable facilities, this may create
administrative difficulties for the Court and may lead to challenges by convicted persons
to the conditions of their detention, if the facility at The Hague becomes overcrowded.
Such challenges would take up the time of the Court and thus may interfere with the carry-
ing out of its investigations and prosecutions. States may wish to ensure that their
nationals, at least, are imprisoned in facilities that the State has jurisdiction over, to ensure
Page 103
that their conditions of imprisonment are in accordance with the person’s rights under na-
tional laws. Thus, there are a number of good reasons for States Parties to volunteer to
accept sentences persons from the Court.
Accepting sentenced persons

Description
States Parties will need to determine if they are prepared to be a willing party to accept
sentenced persons. In the process of doing so, they will need to determine what conditions
they may wish to attach to acceptance, which are to be agreed upon by the Court (article
103, paragraph (1), subparagraph (b)). Such conditions may include further prosecution,
punishment or extradition to a third State at the conclusion of the person’s sentence (arti-
cles 103, paragraph (1), subparagraphs (b) and 108). A number of States have made formal
declarations when signing the Rome Statute indicating their willingness to accept sen-
tenced persons. Some of the conditions made in these declarations include: only accepting
its own nationals as prisoners; only prepared to receive persons sentenced not to more than
30 years imprisonment; or only when the sentenced imposed by the Court was enforced in
accordance with national legislation on the maximum duration of sentence. Consideration
to agreements between the Court and States Parties may be appropriate to govern the rela-
tionship under this part.
Obligations
States are not obliged to accept sentenced persons by the ICC. However, if they indicate a
willingness to do so, States can attach conditions on this willingness, which are subject to
agreement by the Court and to compatibility with Part 10 of the Rome Statute.
States Parties must assist the Court, as far as possible, in transferring the person to another
State, where necessary (articles 104 and 107).
Implementation
One of the first policy questions for States to consider is whether it will agree to accept ICC
prisoners. Factors for States to consider include: the capacity and resources of the State;
constitutional issues with respect to pardons; and the ability to revise domestic law to re-
flect the enforcement scheme of the Rome Statute. ICC cases have the potential to be high
profile and politically contentious at the national and international level and therefore
could impose much greater demands upon the correctional services than other cases. Such
cases may require special detention arrangements, such as increased security to protect
them from politically-motivated assaults, greater access to them by diplomatic officials
from their country of origin, and arrangements to transfer them out of the State for appeal
and sentence review hearings before the ICC, as well as at the end of their sentence. A re-
vision of national legislation may be needed, with particular attention being paid to such
matters as privacy of communication by sentenced persons with the Court and transfer of
sentenced persons.
Page 104
Once a State agrees to act as State of enforcement, it should review on what conditions it
would be willing to accept such prisoners. Domestic legislation may provide for consulta-
tions with the appropriate national authorities to takes place before setting out such
conditions. For example, the New Zealand legislation provides that the Minister of Justice
must consult with the Police; the Department of Corrections and the Department of Labour
(NZ ss. 139-156). Legislation may also allow that these conditions can be altered from time
to time. Certain legislation, such as New Zealand’s, provides that the State is not obliged
to accept every prisoner. Each case would be considered as it arises. A number of States
have provided details in their legislation as to what those conditions may be whereas other
States’ legislation provides for a general ability by the national authority to make of condi-
tions. Conditions may include requiring the written consent of the prisoner to serving the
sentence in the State; requiring ministerial consent; requiring at least 6 months of the sen-
tence remains to be served (AU Pt 12); requiring the convicted person to be a citizen or
permanent resident of the enforcing State (SW Chp 5). States may legislate that it can
withdraw its agreement to act as a State of enforcement. For examples of this see the New
Zealand and Australian ICC implementing legislation (NZ ss. 139-156, AU Pt 12).
Sentences of Imprisonment
Description
Article 103 provides for a sentence of imprisonment imposed by the Court to be served in a
designated State which the Court has selected from a list of States willing to accept the sen-
tenced person. When a State is designated by the Court in a particular case, article 103,
paragraph (1), subparagraph (c) requires the State to inform the Court promptly whether it
accepts the Court’s designation. A State that has indicated its willingness to accept sen-
tences to be served in their system may attach conditions agreed upon by the Court.
However, a State of enforcement must notify the Court if these conditions or any other cir-
cumstances could materially affect the terms or extent of the imprisonment (article 103(2)).
Article 103(3) recognizes that the process of selection and designation by the Court is based
on several governing principles. This includes “the principle that States Parties should
share the responsibility for enforcing sentences of imprisonment, in accordance with the
principle of equitable distribution, as provided in the Rules of Procedure and Evidence”.
Other principles include the application of widely accepted international treaty standards,
the views and nationality of the sentenced person and such other factors appropriate to the
enforcement of the sentence by the receiving State that will administer the sentence.
The sentence of imprisonment is binding
After acceptance by the State designated to enforce the Court’s sentence, article 105 pro-
vides that the sentence of imprisonment is binding. Subject to certain conditions
previously specified in article 103, a State cannot modify the sentence on its own initiative.
However, in the event of new circumstances arising which did not exist at the time of ac-
ceptance and which substantially affect the terms or length of imprisonment, the State
must notify the Court to review the situation and if necessary, transfer the sentenced per-
son to another State (article 103, paragraph (2)). Article 104 also makes it possible for the
Page 105
Court to transfer the sentenced person to another State at any time it considers it necessary
to do so. The Court may also make a new designation in response to a request from the
prisoner (article 104, paragraph (2)).
In summary, it can be stated that the imprisonment part of the sentence is binding on the
State Party that accepts the sentenced person and is subject to modification only by the
Court, or in consultation with the Court in accordance with article 103, paragraph (2), sub-
paragraph (a).
The supervision of enforcement of sentences and the conditions of imprisonment
With respect to the supervision of enforcement of sentences and the conditions of impris-
onment, article 106 makes it clear that the Court has primacy and is the body with the
authority to make any significant decisions that have to be made in the execution of the
sentence. Article 106, paragraph (2) also provides that the conditions of imprisonment
shall be governed by the law of the State of enforcement and “shall be consistent with
widely accepted international treaty standards governing treatment of prisoners”. Fur-
thermore, the conditions may be neither more nor less favourable than national prisoners.
Article 106, paragraph (3) reconfirms that the Court is in charge of supervising the terms of
imprisonment by declaring unequivocally that “communications between a sentenced per-
son and the Court shall be unimpeded and confidential”. The State must facilitate
communication between the prisoner and the Court to ensure implementation of this obli-
gation.
After completion of the sentence
Article 107 provides what is to be done after completion of the sentence and must be read
with article 108 on the limitations involved on the prosecution or punishment of other of-
fences. Article 107 provides for the transfer of the person who is not a national of the State
of enforcement, extradition or surrender to a requesting State.
Article 108 can be viewed as a kind of specific description of the rule of specialty. It pro-
vides for an individual right to protect a person who is under sentence or who has served
their sentence, from prosecution or extradition unless the Court approves the request from
the State of enforcement. However, article 108, paragraph (2) states that the Court can only
rule on the request of the State of enforcement “after having heard the views of the sen-
tenced person”.
Review by the Court for reduction of sentences

Article 110 makes it clear that the Court alone has the right to reduce the sentence after
having heard from the sentenced person. A review of the sentence by the Court shall take
place when the person has served two thirds of the sentence, or 25 years in the case of life
imprisonment. The Court may reduce the sentence based on the factors enumerated in Ar-
ticle 110, paragraph (4).
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Obligations
If a State chooses to accept sentenced persons, appropriate procedures will need to be put
in place to respect the letter and spirit of this requirement. In particular, States of enforce-
ment must comply with articles 103, paragraph (1), subparagraph (c) and paragraph 2,
subparagraph (a), articles 105, 106 & 108 as follows:
inform the Court promptly whether it accepts a particular designation in a particular

case;
once the State has accepted the sentenced person, notify the Court at least 45 days in
advance of any known foreseeable circumstances which could materially affect the
terms or extent of the imprisonment and ensure that the national authorities do not
take any prejudicial action during that 45 day period;
assist the Court as far as possible in transferring the person to another custodial State,
either during or after the term of imprisonment;
ensure that any sentence imposed by the Court cannot be modified or reduced by na-
tional authorities, including releasing the person before the expiry of the sentence
imposed by the Court;
ensure that the sentenced person is not subject to prosecution or punishment or extradi-
tion to a third State for any conduct engaged in prior to that person’s delivery to the
designated State, unless such prosecution, punishment or extradition has not been ap-
proved by the ICC at the request of the designated State;
ensure that all communications between the prisoner and the ICC are unimpeded and
confidential and in particular that the person is not impeded from making applications
to the ICC for appeal and revision;
ensure that the conditions of imprisonment for the sentenced person are consistent with
widely accepted international treaty standards governing treatment of prisoners and
that they are not more or less favourable than those available to prisoners convicted of
similar offences in the designated State;
be prepared to assist the Court with obtaining certain information from the prisoner,
for example information regarding the proceeds of the crime; and
be prepared to cover the ordinary costs for the enforcement of the sentence person,
travel and subsistence costs of ICC personnel, or costs of any expert opinion requested
by the Court.
Implementation
This may necessitate both legislative and administrative changes on the part of the accept-
ing State. Various States have taken a number of approaches in implementing the
obligations to enforce ICC sentences upon accepting the Court’s designation. A simple ap-
proach is stating that enforcement will be in accordance with Part 10 of the Rome Statute
(NO s. 10). Another relatively simple approach is extending the pre-existing domestic en-
forcement scheme to ICC sentences (FI s. 7). A variation of the last approach is in addition
to using the domestic enforcement scheme, providing provisions dealing with the unique-
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ness of the ICC sentences, such as communication of requests by the ICC as well as from
the prisoner to the ICC through the State’s central authority (see Switzerland and South
Africa). A more comprehensive approach is providing in the legislation a detailed self-
contained enforcement scheme that covers transportation, enforcement through warrants
or orders, sentences/detention, review, communication, etc (see AU Pt 12, NZ ss. 139-156,
UK Pt 4). In the UK and New Zealand, once a warrant is issued, the prisoner is treated for
all purposes as if he or she was subject to a sentence of imprisonment imposed by the do-
mestic courts. In Australia, the ICC legislation specifies the form of the warrant as well as
consequences. A number of States have legislation that specifically deals with the issue of
costs. For example, in the Swiss law it sets out which costs will be covered by the ICC and
which costs will be covered by the State. In the New Zealand legislation the State can ask
the ICC to give assurances regarding transportation costs or to have the ICC arrange for
transportation before and after sentences.
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Chapter 4: The Complementary Jurisdiction of the ICC
4. THE COMPLEMENTARY JURISDICTION OF THE ICC

4.1 The “Principle of Complementarity” of the ICC
The Rome Statute encourages States to exercise their jurisdiction over the ICC crimes.
Its Preamble states that the effective prosecution of the ICC crimes must be ensured by
taking measures at the national level and by enhancing international cooperation. In
addition, it is the duty of every State to exercise its criminal jurisdiction over those re-
sponsible for international crimes. Nevertheless, there is nothing explicit in the Statute
imposing an obligation to prosecute the ICC crimes. This obligation can be found in
other treaties, for some of the crimes listed in the Statute, but not for all of them. Under
the four Geneva Conventions of 1949, States Parties undertake to enact any legislation
necessary to provide effective penal sanctions for persons committing grave breaches of
the Conventions. Under article 5 of the Genocide Convention, States Parties undertake
to enact the necessary legislation to give effect to the provisions of the Convention and
to provide effective penalties for persons guilty of genocide. The history of the second
half of the 20th century shows us that this obligation was only minimally respected.
Nevertheless, the Statute does not deprive States of the power to prosecute the perpe-
trators of international crimes. Further, the ICC’s jurisdiction defers to that of States
Parties. While the Statute does not relieve States of the power to prosecute perpetrators
of crimes within its jurisdiction, it institutes a Court that will do so in the event that
States Parties neglect to prosecute these criminals or do not possess the means to do so.
Under the principle of complementarity, the ICC only exercises its jurisdiction when
States Parties fail to investigate or undertake judicial procedures in good faith, after a
crime covered under the Statute has been committed. The ICC cannot hear a case when
a State has decided to act in good faith.
Exceptions to the principle

However, it is essential that procedures initiated by the State in question be undertaken
in good faith, that is, respecting international law. There are therefore several excep-
tions under which the ICC can hear a case that has already been referred to a State.
These are provided in article 17:
when the State in question is unwilling genuinely to investigate or prosecute;

when the State in question is unable genuinely to investigate or prosecute;
when, after investigation, the decision of a State not to prosecute a person is moti-
vated by the desire to shield the person from being brought to justice;
when, after investigation, the decision of a State not to prosecute a person is moti-
vated by its inability to conduct judicial proceedings.
The ICC becomes involved when there is a lack of either willingness or ability on the
part of a State. Under article 17, paragraph (2), “Unwilling” means:
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the proceedings were undertaken with the aim of shielding the person in question
from criminal responsibility for the crime;
the decision not to pursue the matter was made by the State in order to shield the
person in question from criminal responsibility;
the proceedings were subjected to unjustified delay which in the circumstances, is
inconsistent with an intent to bring the person concerned to justice;
the proceedings are not or were not conducted independently and impartially, and
they were or are being conducted in a manner inconsistent with an intention to
bring the person concerned to justice
Under article 17, paragraph (3), “Unable” means:
1. the State’s national judicial system has substantially or totally collapsed;
2. the State’s national judicial system is unable to obtain the accused or the necessary
evidence or otherwise unable to carry out its proceedings
Although it was imperative that priority be given to States to prosecute and punish
perpetrators of international crimes, it was equally necessary to have a mechanism
ready in the event that a State would conduct sham proceedings or would not possess
the technical means required for a proper investigation and trial. Without this mecha-
nism, it would be too easy to defeat justice. A State who was unwilling to prosecute the
perpetrator of a crime could manipulate the procedures to ensure a not-guilty verdict
by engineering a stay of proceedings, buying off the jury, deliberately violating the
fundamental rights of the defendant, or by creating unreasonable delays. More simply
still, a State could deliberately omit to present critical evidence to the hearing. These
crimes are not to be subject to any statute of limitations, either (article 29). Therefore, if
the national jurisdiction continues to have statutes of limitations for these crimes, the
ICC may find them unable to prosecute them and the complementarity principle ap-
plies. This could create an unnecessary burden for the Court.
At the same time, the Statute and the Rules of Procedure and Evidence together pro-
vide that a State Party will have numerous opportunities to present information to the
Court, so that the Court will make a fair assessment of the genuineness of a State’s pro-
ceedings. States can challenge the admissibility of cases at a number of stages of the
proceedings, and decisions on admissibility may be appealed to the Appeals Chamber.
With the 18 ICC judges representing every region and principal legal system of the
world, the ICC will be able to take into account legitimate cultural differences and ap-
proaches to investigations and prosecutions.
Ne bis in idem
The jurisdiction of the ICC to try an individual who has been the object of sham pro-
ceedings in a national court is technically an exception to the principle of criminal law
in which a person may not be prosecuted twice for the same crime (ne bis in idem). Arti-
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cle 20 allows the ICC to prosecute a person for a crime referred to in the Statute, even
after being tried for the same act in a national court if:
a) the proceedings were aimed at shielding the person from criminal responsibility; or
b) the procedure was not independent or impartial in accordance with the norms of
due process recognized by international law, and was conducted in a manner
which, in the circumstances, was inconsistent with an intent to bring the person
concerned to justice.
Criminal justice has been rendered then, only when it has been rendered in accordance
with due process and other international standards. The first example concerns a situa-
tion such as a State charging a perpetrator of genocide with assault. Such a trial,
although respecting all the safeguards concerning impartiality, would be aimed at
shielding the person from responsibility for an extremely serious crime. The second ex-
ample covers a larger spectrum of situations. It does not mean, however, that the ICC
will have the power to intervene in every case where it judges that a procedural safe-
guard was violated in a trial conducted by a national authority. In order for the ICC to
begin a new trial, the violation of procedural safeguards must have been committed
with the aim of preventing the person concerned from being brought to justice.
The principle of ne bis in idem can be found in most national criminal codes, in some
constitutions and in article 14 of the International Covenant on Civil and Political
Rights. It would be preferable if the national law implementing the ICC Statute made
mention of the exception to this principle provided by the Statute. The ICC Statute and
the general scheme for complementarity require that issues of ne bis in idem are to be
decided by the ICC. In ensuring this principle, States may need to review and amend
existing regimes if domestic courts have such a power or States may choose to specify
this in legislation, such as the case of New Zealand (NZ ss. 8-13).
Ordinary offences versus ICC crimes
Article 22 states that a State may not prosecute someone for a crime listed under the
Statute for which he or she has already been sentenced or acquitted by the ICC.
Under article 20, paragraph (1), if the judicial authorities of a State have properly
prosecuted a person for an act under the ICC’s jurisdiction, the ICC may not try that
person again. Whether the person was genuinely prosecuted for a sufficiently serious
crime under national law (for example, for the commission of multiple murder rather
than genocide) or for an international crime, will determine whether the ICC can exer-
cise its jurisdiction.
Sentences
When a national court prosecutes and sentences the perpetrator of an offence referred
to in the Statute, it has the power to impose the sentence it considers appropriate. Arti-
cle 80 does not affect application of sentences provided by the domestic law of States
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Parties. Nor may subsequent rulings concerning pardon, parole or suspension of sen-
tence result in the case being referred to the ICC.
Amnesties and pardons
Many constitutions allow the Head of State a discretion to make amnesties or grant
pardons.
i) A Head of State may grant pardons or amnesties in relation to any national prose-
cution or sentence. If the person was granted a pardon after being convicted at the
national level, the ICC would not try that person again unless the proceedings were
aimed at shielding the person from criminal responsibility.
ii) However, the Head of a State Party cannot use this power where a person has been
convicted by the ICC. Article 110, paragraph (2) provides that the Court alone has
the right to reduce a sentence it has imposed.
The issue of amnesties and truth commissions and the like is not specifically mentioned
within the Statute, even in the provisions on complementarity. This reflects mixed
views within the international community as to the effectiveness of such measures in
bringing about lasting peace and reconciliation. There are also varying approaches to
the granting of amnesties across different jurisdictions, some of which are more expedi-
ent than others. When the Court is considering issues of admissibility, it will consider
how genuine the efforts of States have been and will no doubt take into account how
closely any “truth commission” resembles a genuine investigation process. It will also
consider the basis upon which a decision not to prosecute was made, to determine
whether the Court should interfere with a genuine process of reconciliation.
4.2 The Jurisdiction of the ICC

Description
Under article 1, the Court shall have the power to exercise its jurisdiction over persons
“for the most serious crimes of international concern”. Article 1 also states: “The juris-
diction and functioning of the Court shall be governed by the provisions of this
Statute”. Note that the ICC only has jurisdiction over persons who were 18 or over at
the time of the alleged offence (article 26).
Non retroactive jurisdiction
Article 11 states that the Court has jurisdiction only with respect to crimes committed
after entry into force of the Statute. The Statute entered into force July 1, 2002. No one
shall be criminally responsible under the Statute for conduct prior to July 1, 2002. For
States Parties that ratified prior to May 1, 2002, the Court may exercise jurisdiction over
ICC crimes committed after July 1, 2002. If a State becomes a Party after May 1, 2002,
then the Court may exercise its jurisdiction only with respect to crimes committed after
the entry into force of this Statute for that State, except where it has made a declaration
under article 12, paragraph (3) accepting the jurisdiction of the Court as a non-State
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Party. Note also, if the Statute is amended prior to final judgement in a particular case,
the law more favourable to the person being investigated, prosecuted or convicted shall
apply.
Complementarity Requirements
If a State Party wishes to prosecute ICC crimes, at a minimum, it should enact legisla-
tion allowing it to exercise territorial jurisdiction over such crimes and extra-territorial
jurisdiction over its nationals who commit crimes abroad. States should also consider
the following:
ensure that there are laws and procedures in place to carry out such investigations
and prosecutions in accordance with the relevant provisions of the ICC Statute to
ensure that the ICC will defer to the State’s jurisdiction;
grant “universal” or other appropriate jurisdiction to all relevant national authori-

ties, in order to facilitate prosecution of ICC crimes at the national level, wherever
and whenever they have been committed; and
implement procedures to enable relevant authorities to take full advantage of the

Court’s “complementary” jurisdiction, in accordance with articles 17-19.
Implementation
States that wish to prosecute ICC crimes should ensure that they have national legisla-
tion in place that allows them to exercise jurisdiction over people committing crimes in
their territory, and nationals who commit crimes abroad. This may simply require an
amendment to the criminal code. When a State is implementing the ICC crimes into na-
tional law, the State is not obliged to follow these time constraints that are placed on
the ICC. The State need only observe the relevant domestic principles that may apply
to its introduction of new crimes. States may consider whether to exert jurisdiction on
a prospective or retrospective basis. The New Zealand and Canadian legislation pro-
vide examples of applying retrospective jurisdiction (NZ s. 8, CA s. 8).
States have various implementing options relating to jurisdiction. A State could paral-
lel the jurisdiction of the ICC, as seen by the UK example wherein jurisdiction covers
crimes committed on its territory or on its registered vessels and aircraft or by an ac-
cused who is a national (UK ss. 54 and 67). Alternatively, States may choose to provide
for a broader jurisdiction, including universal jurisdiction, as set out in the 1949 Geneva
Conventions and their 1977 Additional Protocols in relation to “grave breaches”. Note
that different concepts of “universal jurisdiction” exist: some interpret this term to
mean that a State can exercise jurisdiction over anyone found in its territory, while oth-
ers interpret it to mean that a State can arrest anyone, wherever that person may be in
the world and regardless of any linkage to the State in question. The International
Court of Justice recently expressed concern over the issuance of international arrest
warrants by national courts for foreign government officials, where there was no juris-
dictional link between the State issuing the warrant and the State of nationality of the
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accused (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
International Court of Justice, General List, No. 121, 14 February 2002 (Yerodia case)).
Most States have incorporated a traditional definition that provides for the exercise of
universal jurisdiction where the person is present in the jurisdiction (for example, see
Canada and France). In some States, such as Argentina, universal jurisdiction is as-
serted on the basis on binding international agreements, which would include the
Statute. Other States have opted for a broader definition which provides for jurisdic-
tion over all offences whether or not the person is or was ever present in the
jurisdiction (for example see New Zealand and Belgium). Other grounds States may
wish to consider include jurisdiction based on the victim’s status (see Canada’s legisla-
tion). Other implementing options relating to jurisdiction include incorporating
traditional bases of jurisdiction applicable to armed conflict (see Canadian legislation).
As an example, the Canadian Crimes Against Humanity and War Crimes Act states that
persons alleged to have committed, outside of Canada, offences of genocide, crimes
against humanity, war crimes or breach of a commander’s responsibility may be prose-
cuted for these offences if: (a) at the time the offence is alleged to be committed, (i) the
person was a Canadian citizen or was employed by Canada in a civilian or military ca-
pacity, (ii) the person was a citizen of a State that was engaged in an armed conflict
against Canada, or was employed in a civilian or military capacity by such a State, (iii)
the victim of the alleged offence was a Canadian citizen, or (iv) the victim of the alleged
offence was a citizen of a State that was allied with Canada in an armed conflict; or
(b) at the time the offence is alleged to have been committed, Canada could, in confor-
mity with international law, exercise jurisdiction over the person with respect to the
offence on the basis of the person’s presence in Canada and, after that time, the person
is present in Canada.”
4.3 Crimes listed under the Statute

It is prudent for a State Party to ensure that its national law incorporates definitions of
the crimes that reflect the Statute’s provisions in their entirety because the Statute has
refined international criminal law with respect to the definitions of the offences in some
instances. These definitions were adopted by 120 States participating in the Rome Con-
ference. Therefore, they represent the views of the majority of States, in terms of the
current state of international criminal law. They are based on existing treaty and cus-
tomary law proscriptions, and take into account the jurisprudence of the ICTY/R.
Therefore, all States that incorporate these definitions into their national laws are indi-
cating their strong support for international norms and standards.
Pursuant to article 9 of the Rome Statute, the ICC Preparatory Commission prepared
the draft “Elements of Crimes” which has been adopted by the Assembly of States Par-
ties at its first meeting 3-10 September 2002. The Elements of Crimes are to assist,
rather than bind, the ICC in the interpretation and application of the crimes under the
Court’s jurisdiction. The Elements are meant to be used by the Court’s judges as simple
guidelines in reaching determinations as to individual criminal responsibility, and in
the event of a conflict between the State and the elements, the Statute should always
prevail. The Elements of Crimes provide a description of the various material (conduct,
Page 114
consequences and circumstances) and mental elements constituting each ICC offence.
The Elements of Crimes will have an impact on domestic courts as they will be a refer-
ence point in dealing with the ICC crimes at the national level. Therefore, States may
wish to implement these elements into their national laws as well.
Genocide, Crimes Against Humanity and War Crimes

Description
The definitions of crimes over which the ICC has jurisdiction reflect widely-accepted
international norms, based on existing treaties on international humanitarian law and
customary international law. Many legal experts believe that all the ICC crimes reflect
customary international law as it currently stands. The Canadian Crimes Against Hu-
manity and War Crimes Act provides: “For greater certainty, crimes described in Articles
6 and 7 and paragraph 2 of Article 8 of the Rome Statute are, as of 1 July 1998, crimes
according to customary international law. This does not limit or prejudice in any way
the application of existing or developing rules of international law” (CA s.4(4)).
For States who have decided to implement the ICC crimes into domestic law, it must be
recalled that fifty years have passed since the adoption of the four Geneva Conven-
tions. International humanitarian law has evolved and the definition of war crimes and
crimes against humanity has developed. It should be noted that in some cases, the
definitions of crimes in the Rome Statute reflect a conservative interpretation of the law
established by treaty and customary international law. In other cases, the definitions
reflect a more expansive interpretation of customary international law. Therefore for
those States who have implemented the Geneva Conventions and other treaties domes-
tically, there is likely to be some changes. In order to ensure that States Parties are clear
of their obligations under the ICC Statute, each of the ICC crimes will be reviewed
along with an analysis of the definition source as well as comparisons made.
Genocide
The Rome Statute has adopted word for word the definition of genocide established by
the 1948 Convention for the Prevention and Repression of the Crime of Genocide. The
definition of this crime is based on three components:
1) commission of one or more of the five following acts:

murder;
causing serious physical or mental harm;
deliberately inflicting conditions of life calculated to bring about physical destruc-
tion in whole or in part;
imposing measures intended to prevent births;
forcibly transferring children of the group to another group.
2) targeting a national, ethnic, racial or religious group, as such.
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3) intent to destroy the group, in whole or in part. The requirement of guilty intent is
very high. The person must be shown to have acted with the intent to destroy a
group. Where this specific intent is not present, the acts may still, in appropriate cir-
cumstances, amount to crimes against humanity or war crimes. Genocide cannot be
committed by negligence. The term “in whole or in part” signifies that an isolated
act of racist violence does not constitute genocide. There must be an intent to elimi-
nate large numbers of the group, although not necessarily to completely destroy the
group.
Crimes Against Humanity
Under article 7, the expression “crimes against humanity” is employed to designate

multiple acts of inhumanity committed as part of a widespread or systematic attack di-
rected against a civilian population, in peacetime or wartime. The Rome Statute
definition of crimes against humanity contains six components, some of which may dif-
fer from previous definitions of this crime. It should be noted that the second
paragraph of article 7 of the Statute contains definitions for all of the important terms
contained in the first paragraph:
a) Widespread or systematic attack. “Widespread” signifies a high number of victims

and “systematic” refers to a high degree of organization, pursuant to a plan or pol-
icy. The presence of the word “or” means that those are not cumulative conditions.
The murder of a single civilian can constitute a crime against humanity if it were
committed in the course of a systematic attack.
b) Directed against a civilian population. National or other ties between the perpetra-
tor and victim are of no import.
c) Commission of inhumane acts. The Statute lists eleven acts that could constitute
crimes against humanity in the context of such an attack (1. murder; 2. extermina-
tion; 3. enslavement; 4. deportation or forcible transfer of a population; 5.
imprisonment or other severe deprivation of physical liberty in violation of funda-
mental rules of international law; 6. torture; 7. rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity; 8. persecution against any identifiable group or col-
lectivity on political, racial, national, ethnic, cultural, religious, gender or other
universally recognized grounds; 9. enforced disappearance of persons; 10. apart-
heid; and 11. other inhumane acts of a similar character intentionally causing great
suffering or serious injury to body or to mental or physical health).
d) Knowledge of the attack against a civilian population.
e) For acts of persecution only, political, racial, national, ethnic, cultural, religious,
gender, or other universally recognized grounds must be shown.
f) Context. A crime against humanity may be committed in peacetime or in wartime.

It is not necessarily committed in connection with another crime. An exception is
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the persecution of any identifiable group or collectivity; persecution must be linked

to another act enumerated in article 7, paragraph (1), or any crime within the ICC’s
jurisdiction.
The reason for the inclusion of a context element in crimes against humanity is to dis-
tinguish ordinary crimes under national law from international crimes which are of
international concern. Crimes against humanity comprise only the most severe viola-
tions of human rights.
The definition of crimes against humanity in the Rome Statute borrowed from many
sources of international law, including the Nuremberg Charter, Statutes of the ICTY/R,
and various human rights treaties, such as the Convention Against Torture. There are
some differences between the Rome Statute definition and these sources, as most States
participating in the Rome Conference felt that international law had developed since
those documents were drafted. These minor differences are discussed below:
Rome Statute definition does not require that the perpetrators have a discriminatory
intent when committing a crime against humanity. This means that the attack
against civilians need not be committed against a particular group sharing certain
characteristics such as nationality.
The definition of torture in the Rome Statute, whether as a crime against humanity
or war crime, differs from the definition under the Convention of Torture in that it
does not require that the act of torture be committed for a purpose such as obtain-
ing a confession or as a punishment nor does it require that the torture be
committed by or at the instigation of or with the consent or acquiescence of a public
official or a person acting in an official capacity.
The definition of enslavement in the Rome Statute adds an explicit reference to traf-
ficking in women and children which is not present in the Slavery Convention
definition.
The Rome Statute expands the list of grounds for persecution from that listed in the
Nuremberg Charter to include national, ethnic, cultural, gender or any other
grounds universally recognised as impermissible under international law. It also
expands the connection element to include not only connection with any ICC crime
but also connection with any act referred to in article 7, paragraph (1).
In the Rome Statute, the definition of enforced disappearance provides that in addi-
tion to States, political organisations may also be responsible for such a crime. It
also adds the concept of detention for a prolonged period of time to distinguish en-
forced disappearance from other unlawful deprivations of liberty.
War crimes
War crimes have traditionally been defined as a violation of the most fundamental laws
and customs of war. Article 8 of the Rome Statute defines four categories of war
crimes:
Page 117
1. Grave breaches under the 1949 Geneva Conventions which apply to international
armed conflict.
2. Other serious violations of the laws and customs applicable to international armed
conflict.
3. Serious violations of article 3 common to the Geneva Conventions, which applies to

non-international armed conflict.
4. Other serious violations of the laws and customs applicable in non-international

armed conflict.
The negotiating process that culminated in the Rome Statute was characterized by both
compromise and the development of international law. Below, each category will dis-
cuss the source of law and reflect on the differences to the traditional definitions. The
Statute definition of war crimes is narrower in some respects than the traditional defini-
tions of war crimes. At the same time, it is broader than the traditional definition in
other respects, because it covers acts that had never before been codified. The major
innovation of the Statute is that it enshrines the recent evolution of international juris-
prudence criminalizing war crimes committed during non-international armed conflict.
The differences discussed below highlight the fact that if States have not fully imple-
mented international humanitarian law treaties, they may not be in a position to benefit
from the complementarity principle under the Rome Statute. The reason for this is that
there are certain war crimes within the ICC’s jurisdiction which are not covered by the
Geneva Conventions or the Additional Protocols. Also note that if States adopt legisla-
tion to criminalise war crimes as defined by the Rome Statute, this would not be
enough to satisfy their obligations under international humanitarian law.
Grave breaches of the Geneva Conventions of 1949 that apply to international armed conflict
(article 8, paragraph (2), subparagraph (a))
Under this category, the Rome Statute essentially repeats all of the acts defined as
“grave breaches” in the four Geneva Conventions. In other words the Statute criminal-
ises the following acts committed against wounded, sick or shipwrecked members of
armed forces, prisoners of war or civilians:
Willful killing;
Torture or inhuman treatment, including biological experiments;
Willfully causing great suffering, or serious injury to body or health;
Extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
Compelling a prisoner of war or other protected person to serve in the forces of
a hostile power;
Willfully depriving a prisoner of war or other protected person of the right to a
fair and regular trial;
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Unlawful deportation or transfer or unlawful confinement;

Taking of hostages.
The Rome Statute establishes a threshold for jurisdiction in respect of war crimes,
which is not existing in international humanitarian law. The acts listed in article 8 must
be committed as part of a plan or policy or as part of a large-scale commission of such
crimes.
Other serious violations of the laws and customs applicable to international armed conflict
(article 8, paragraph (2), subparagraph (b))
These crimes are derived from various sources and reproduce to a large extent rules
from the 1907 Hague Regulations concerning the Laws and Customs of War on Land,
the 1977 Additional Protocol I to the Geneva Conventions, the 1899 Hague Declaration
IV concerning Expanding Bullets and the 1925 Geneva Gas Protocol as well as various
conventions banning certain weapons. The criminal acts include:
Intentionally directing attacks against the civilian population not taking direct
part in hostilities;
Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or wide-
spread, long-term and severe damage to the natural environment which would
be clearly excessive in relation to the concrete and direct overall military advan-
tage anticipated;
Intentionally launching an attack against personnel or installations involved in
humanitarian assistance or a peacekeeping mission in accordance with the Char-
ter of the United Nations;
The transfer by an occupying power of parts of its own civilian population into
the territory it occupies, or the deportation or transfer of all or parts of the popu-
lation of the occupied territory within or outside this territory;
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced steriliza-
tion or any other form of sexual violence constituting a serous breach of the
Geneva Conventions;
Utilizing the presence of a civilian or other protected person to render certain
points, areas or military forces immune from military operations;
Conscripting or enlisting children under the age of fifteen years into the national
armed forces or using them to participate actively in hostilities.
In most respects, the definitions of war crimes committed in international armed

conflict in the Rome Statute are consistent with the existing international law. The
differences between the Rome Statute to traditional international humanitarian law
include advancement in the Rome Statute such as recognition of specific sexual and
gender based offences, recognition as a war crime conscription or enlistment of
children under fifteen years; and criminalisation of attacks against humanitarian
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personnel. However, not all serious violations of international humanitarian law

have been included in the Rome Statute. For example the provisions relating to the
use of certain weapons are not as extensive as other treaties. There are no provi-
sions on the unjustifiable delay in the repatriation of prisoners of war or of civilians.
The reference to the widespread, long-term and severe damage to the natural envi-
ronment is not found in the Geneva Conventions not the Additional Protocols. The
threshold in the Rome Statute is that such damage must be “clearly excessive” in re-
lation to the overall military advantage anticipated. The Rome Statute’s definition
of transferring civilian populations by an occupying power refers to both direct and
indirect transfer and includes the transfer of its own civilian population into terri-
tory it occupies as well as the deportation or transfer of all or parts of the civilian
population of the occupied territory. The Rome Statute expands the definition of
this crime found in the fourth Geneva Convention to cover transfers of the occupy-
ing power’s own civilian population into the territory it occupies. In the Rome
Statute, there are three crimes regarding intentionally directing attacks against civil-
ian objects, intentionally launching an attack, and attacking and or bombarding
which are found in Additional Protocol I. The difference between the Rome Statute
and Additional Protocol I is that the Rome Statute does not explicitly require
“death, serious injury to body or health” in connection with these three crimes.
Serious violations of article 3 common to the Geneva Conventions that apply to non-
international armed conflict (article 8, paragraph (2), subparagraph (c))
This definition borrows directly from Common article 3 of the Geneva Convention. The
following list of war crimes would apply in non-international armed conflicts when
committed against individuals not directly participating in the hostilities, including
members of armed forces who have laid down their arms or been placed hors de com-
bat due to illness, injury, detention, or any other cause:
Violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
Committing outrages upon personal dignity, in particular humiliating and degrad-
ing treatment;
Taking of hostages;
The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all judicial guar-
antees that are generally recognized as indispensable.
It should be notes that article 8, paragraph (2), subparagraphs (d) and (f) limit the scope
of the ICC’s jurisdiction over acts committed in non-international armed conflicts. They
exclude internal disturbances and tensions, riots, isolated and sporadic acts of violence
and other acts of a similar nature.
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Other serious violations of the laws and customs applicable in non-international armed
conflict (article 8, paragraph (2), subparagraphs (e))
This category is derived from various sources including Additional Protocol II and
various treaties on the laws of warfare and customary international law. However, un-
der paragraph (f), these crimes can occur only when there is a protracted armed conflict
on a State’s territory between State forces and organized armed groups, or between or-
ganized armed groups. States should be aware that the threshold of paragraph (e) of
the Statute is lower than the threshold of Protocol II: neither responsible commanders,
nor control on a part of the territory is required. The existence of a protracted armed
conflict is sufficient. The crimes listed in paragraph (c) could also apply during such a
conflict. The criminal acts listed under article 8, paragraph (2), subparagraphs (e) in-
clude:
Intentionally directing attacks against the civilian population not taking direct part
in hostilities;
Intentionally launching attacks against personnel or equipment of a humanitarian
or peacekeeping mission, according to the Charter of the United Nations;
Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, and any other form of sexual violence also constituting a serious viola-
tion of the four Geneva Conventions;
Conscripting or enlisting children under the age of fifteen years into armed forces
or groups or using them to participate actively in hostilities;
Ordering the displacement of the civilian population for reasons related to the con-
flict, unless the security of the civilians involved or imperative military reasons so
demand.
The Rome Statute is considered to advance the development of international humani-

tarian law by including in the definition of war crimes serious violations of
international humanitarian law committed during non-international armed conflicts.
The definition includes specific sexual and gender-based offences; conscription and en-
listment of children under fifteen and attacks against humanitarian personnel as war
crimes. Not all serious violations of international humanitarian law committed during
non-international conflict are considered as war crimes under the Rome Statute. This
includes the intentional starvation of civilians. It should be noted that approximately
half of the war crimes defined for international armed conflicts are not included in the
section on non-international armed conflict.
The ICC Statute does not obligate States to create a domestic regime for prosecution of
the crimes under the jurisdiction of the ICC. Each State must decide whether to enact
domestic law incorporating ICC crimes. Factors to consider include whether States are
prepared to have the ICC make a finding that they are unable to prosecute. Also States
may want to ensure they have the power to prosecute domestically particular situa-
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tions, such as cases of internal conflict or invasion. A State may need to consider that
domestic prosecution of these cases may be costly, however it must also consider the
likelihood of never being faced with a prosecution. Each State that intends to incorpo-
rate these crimes into its domestic system should consider how to define the crimes and
what penalties should be prescribed. They should also consider, what use, if any,
should be made of the Elements of Crimes.
Implementation
Almost every State Party to the Rome Statute has implemented the ICC crimes into na-
tional law, or is in the process of doing this. Once States have decided to incorporate
the crimes into domestic law, there are various methods that can be used. There are
two main options available for States. The first is to incorporate the crimes in their en-
tirety into national laws. This option can be approach in at least three ways –
incorporating by reference; creating of a separate piece of legislation to cover ICC
crimes; or amending existing domestic legislation where there is already domestic leg-
islation implementing the Geneva Conventions, the Additional Protocols and the
Genocide Convention to add additional offences not addressed in those conventions. A
second option would be to rely on existing national laws, criminalizing violations that
are similar in nature, if not identical to those in the Rome Statute. Another considera-
tion for States would be whether to adopt the ICC crimes only, or to go further and
cover additional matters that were not included in the ICC Statute, such as the use of
nuclear or biological weapons.
If the decision were made to restrict the scope of domestic law to the ICC Statute
crimes, then a simple method would be to incorporate the crimes by reference, as has
been done in New Zealand and the United Kingdom (NZ ss. 8-11, UK ss. 51-52). While
this method may seem the obvious method, a concern may be that this would not nec-
essarily be the best way of ensuring that domestic courts and practitioners would apply
these provisions.
Where a separate scheme is adopted, States will want to consider any conflicts that may
arise as a result of the existence of legislation implementing the Geneva Conventions,
its Additional Protocols and the Genocide Convention. The New Zealand legislation
addresses this question by maintaining both scheme but providing that the new legisla-
tion does not limit the application of existing legislation. This approach allows States to
use a more familiar framework of law when incorporating ICC crimes.
Where there is existing legislation incorporating international humanitarian law, States

may need to create newly domestic offences where they did not exist before as well as
amending existing offences to ensure that they wholly succeed in giving full effect to
the Rome Statute.
Another approach is to not only incorporate in domestic law the ability to prosecute
ICC crimes, but also the ability to prosecute other crimes under International Humani-
tarian Law, whether conventional or customary international law. This is the approach
followed in Canada (CA ss. 4-8). This has the advantage of automatically incorporating
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new developments in conventional and customary international law without having to

amend the legislation in the future.
States may decide to use existing law offences to prosecute ICC crimes using offences
sufficiently serious to describe the crime perpetrated. States must understand, how-
ever, that if there are significant discrepancies between national law and the Rome
Statute, it may not be sufficient for the exercise of complementarity to rely on existing
laws. This would not only mean if the definitions of the crimes were not sufficient but
also the grounds for excluding criminal responsibility and the penalties attached. Us-
ing domestic analogues may diminish the gravity of the offence. For example, to equate
pillage with the domestic offence of theft does not reflect the severity of the offence.
The Elements of Crimes, as previously mentioned, are guidelines for the ICC judges
and prosecutors. There is no specific obligation to incorporate these elements in do-
mestic laws. However, some States, such as the United Kingdom, have provided a
requirement in the ICC legislation that domestic courts take account of the Elements of
Crimes and any relevant ICC case law in interpreting the new relevant international ju-
risprudence. In New Zealand, its implementing legislation gives the Elements of
Crimes status in a domestic prosecution.
4.4 Grounds for Excluding Criminal Responsibility

Description
Part 3 of the Rome Statute, which includes articles 22-33, outlines the principles of
criminal law that will guide the work of the ICC. The Court is intended to have univer-
sal application, and therefore those who drafted the Rome Statute wanted to ensure
that it reflected universal values in every respect. This includes the principles of crimi-
nal law by which the Court will abide. National jurisdictions observe a range of
different principles in the area of criminal law. Part 3 of the Rome Statute is an attempt
to incorporate and harmonise the principles and values of all the different legal systems
of the world in this area. As such, some provisions in Part 3 may be more familiar to
national legislators than other parts, depending upon which legal tradition they come
from.
The provisions of Part 3 address three different issues:
(i) when someone can be found criminally responsible by the ICC;
(ii) who can be found criminally responsible by the ICC; and
(iii)in what situations criminal responsibility can be excluded.
In the case of (iii), lawyers from the common law tradition may be more familiar with
the concept of “defences” to crimes, which have essentially the same effect as “exclu-
sion of criminal responsibility”, which is the terminology of the Rome Statute.
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The first two issues are discussed in Section 4.2 Jurisdiction of the ICC and Section 4.5
on Individual Criminal Responsibility and Inchoate Offences Provided Under the Stat-
ute. This Section will focus on the third issue only. Articles 31-33 set out certain
grounds for excluding criminal responsibility in the context of ICC prosecutions. The
Statute provides for the exclusion of responsibility based on the capacity or ability to
control and assess one’s own conduct such as:
mental disease or defect; involuntary intoxicated; proportional self-defence; duress;

and other grounds derived from the applicable law (article 31);
mistake of fact or mistake of law (article 32);
superior orders (article 33).
States that decide to try persons charged with one of the crimes mentioned in the Stat-
ute in their national courts are not obliged to allow an accused person to use the
grounds of defence provided under the Statute, or the other means of defence accepted
by international criminal law. However, States Parties may need to revise defences al-
lowed under their national criminal justice system in order to ensure that these
defences do not shield the person from criminal responsibility for acts that constitute
ICC crimes. A trial where a person is acquitted of an ICC crime by a national court be-
cause of a means of defence too easy to raise could be considered a sham trial.
Implementation
Many of the grounds for excluding criminal responsibility under the Statute are already
recognized in most jurisdictions, as well as under international criminal law. In com-
mon law jurisdictions, they are more frequently described as defences. The principle of
complementarity does not require that States Parties establish a national judicial system
that is governed by the same rules as those governing the ICC.
Nevertheless, States may wish to adapt existing provisions to bring them into confor-
mity with the provisions of the Statute. These new grounds of defence would be
admissible for the prosecution of international crimes. The advantage of this solution is
that it brings uniformity to the proceedings. A person who is charged whether before a
national court or the ICC can use the same grounds for excluding criminal responsibil-
ity. Incorporation of grounds for excluding criminal responsibility into domestic
legislation can be done by reference to the Rome Statute. New Zealand is an example
of using this approach. In addition, the New Zealand legislation allows for the accused
to use other defences that are available under domestic law and international law, al-
though if any conduct arises with the defence that is inconsistent with the Rome
Statute, then the Statute would prevail. Rather than referring to the Rome Statute,
States may provide for the use of defences available under domestic law and interna-
tional law, which would include the Rome Statute.
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The defence of superior orders

Description
Article 33 of the Statute indicates that the fact that a crime under the ICC’s jurisdiction
was committed under orders of a superior—whether military or civilian—does not ab-
solve the perpetrator of criminal responsibility. There is an exception however, where:
1. the accused person was under a legal obligation to obey orders of the government
or of the superior in question;
2. the accused person did not know that the order was unlawful; and
3. the order was not manifestly unlawful.
These three conditions are cumulative, and the Statute specifies that any order to com-
mit genocide or a crime against humanity is manifestly unlawful at all times. This
ground of defence is thus probably only applicable to persons who were ordered to
commit war crimes or, when it will be defined, a crime of aggression. Otherwise, the
defence of superior orders can only be used as an attenuating circumstance, for exam-
ple, to reduce the penalty.
This means of defence has always been controversial. The Charters of the Nuremberg
and the Tokyo Tribunals, as well as the Statutes of the ICTY and the ICTR state that the
defence of superior orders is not admissible in any situation. It was believed that as the
order to commit a crime was in itself unlawful, it could not be used as a justification for
the behaviour of a subordinate.
Yet national law in many States has adopted the opposite point of view with regard to
the defence of superior orders, and so is in overall conformity with article 33. This
means that in most States this ground of defence exists as such and a subordinate can-
not be found guilty of the crime unless he or she knew that the order was unlawful or if
the order given by the superior was manifestly unlawful. This rule is contained in the
codes of military discipline of Germany, the United States, Italy and Switzerland, and
the notion of conditional responsibility has been enshrined by the jurisprudence of na-
tional tribunals on war crimes. Only a handful of States prohibits the defence of
superior orders in their national legislation. Other States take a two-pronged approach:
they permit use of the superior orders defence when one of their nationals has been
charged, but prohibit it when the accused person was in combat against an enemy or
bases their plea on the law of a foreign country.
It would be prudent for States Parties to make some changes to their national law if this
is required to ensure that any such defence is no broader than article 33. If a national
judicial system were to acquit an individual because it had a significantly lower thresh-
old for superior orders, this could be seen as a means of shielding the person from the
appropriate criminal responsibility. For example, the defence of superior orders may
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not be used in cases where there was an order to commit a crime against humanity or
genocide.
Implementation
States Parties to the Statute do not have to change their national legislation if it does not
provide this ground of defence to an accused person. In States where the national law
provides this ground of defence, an amendment may need to be made making it inad-
missible when the order in question concerned the commission of a crime against
humanity or genocide.
Still, States Parties desiring to harmonize criminal procedures could adapt their na-
tional law to the Statute’s provisions. In this case, the following adjustments may need
to be made:
declare the defence of superior orders generally inadmissible;

declare it admissible only when the accused person could show that his or her case
conformed to these three cumulative conditions:
1. the legal obligation to obey the order;
2. he or she did not know the order was unlawful;
3. the order was not manifestly unlawful;
declare the defence of superior orders as inadmissible when the accused person re-
ceived an order to commit a crime against humanity or genocide;
declare that the defence of superior orders should be subject to the same rules,
whether the order in question was given by a military or a civilian authority.
4.5 Individual Criminal Responsibility and Inchoate Offences Provided

Under the Statute
Description
The crimes within the jurisdiction of the Statute are most often offences committed by a
number of persons. Crimes against humanity and genocide are offences that are gener-
ally committed by many individuals operating as part of an extensive criminal
organization. Those holding the highest degree of criminal responsibility for these
crimes are most often individuals in positions of authority who had no direct contact
with the victims. They either issued the orders, incited others to commit the crimes, or
furnished the means with which to commit these crimes.
This is why the Statute does not restrict criminal responsibility for these crimes to indi-
viduals who are directly involved in their commission, but extends it to those who
were indirectly involved as well. Under article 25, a person is criminally responsible if
he or she:
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commits such a crime, whether as an individual, jointly with another or through

another person, regardless of whether that other person is criminally responsible;
orders, solicits or induces the commission of such a crime which in fact occurs or is
attempted;
aids, abets or otherwise assists in its commission or its attempted commission, in-
cluding providing the means for its commission;
contributes to the commission or attempted commission of such a crime by a group
of persons acting with a common purpose. Such contribution shall be intentional
and shall either be made with the aim of furthering the criminal activity or criminal
purpose of the group, or be made in the knowledge of the intention of the group to
commit the crime;
in respect of the crime of genocide, directly and publicly incites others to commit
genocide;
attempts to commit such a crime.
However, a person who abandons the effort to commit the crime or otherwise prevents
the completion of the crime shall not be liable for punishment under the Statute for the
attempt to commit that crime if that person completely and voluntarily gave up the
criminal purpose (article 25, paragraph (3), subparagraph (f)).
States Parties to the Statute desiring to prosecute criminals in their national courts un-
der the principle of complementarity should ensure that their implementation
legislation includes all the forms of individual criminal responsibility and inchoate of-
fences provided by the Statute. Otherwise, they may not be able to prosecute in
national courts the majority of individuals responsible for the commission of the crimes
described in the Statute.
Implementation
Most national criminal legislation already describes individual criminal responsibility

in these terms; there would be no need therefore to adopt any particular legislative
amendments. States should however ensure that this responsibility applies to all the
crimes within the ICC’s jurisdiction. Some of the approaches States have taken to im-
plement the principles of criminal responsibility in national legislation for ICC crimes
include incorporating the provision by reference to the Rome Statute. An example of
this approach is found in the New Zealand legislation. Other States have included the
provision in amended form. Whereas other States have created separate offences. For
example, the Brazil legislation creates the offence of “formation of an association to
commit genocide” as well as “inciting to commit genocide”. In the United Kingdom
legislation, there is a provision which criminalises conduct in England and Wales (or
that of a UK national, UK resident or person subject to UK Service jurisdiction abroad)
that is ancillary to an act, which if committed in England and Wales, would constitute
an offence of genocide, crimes against humanity and war crimes as defined in the legis-
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lation or under this section but which being committed, or intended to be committed
outside of England and Wales does not constitute such an offence.
4.6 Responsibility of Commanders and Other Superiors

Description
International law requires that all persons in positions of authority have the obligation
to prevent those under their orders from violating the rules of international humanitar-
ian law. Article 86, paragraph (2) and article 87 of the First Additional Protocol to the
Geneva Conventions codified this principle. As stated by the ICTY in the Delalic case,
military commanders of each State Party to the Statute should correctly instruct their
soldiers concerning the rules of international humanitarian law, ensure that these rules
are observed when making decisions on military operations, and set up a communica-
tions network so that commanders can be quickly informed of each breach of the laws
of war committed by their soldiers. They should also apply corrective measures for
every violation of international humanitarian law.
Article 28 of the Statute covers the responsibility of commanders and other superiors,
and is divided in two sections. Paragraph (a) deals with the responsibility of military
commanders. Paragraph (b) details the responsibility of commanders of civilian au-
thorities.
Military commanders
Military commanders may be held responsible for crimes committed by their soldiers if
the commanders knew or should have known that the crimes had been committed, and
if they neglected to take the necessary measures for preventing or repressing the com-
mission of these crimes. The responsibility of military commanders involves three
essential elements:
effective command and control over the persons committing the crimes;
the commander knew of or should have known that a crime was about to be com-
mitted or had already been committed;
the commander did not take all necessary and reasonable measures within his or
her power to prevent the crime or punish the perpetrator.
Non-military superiors
Non-military superiors may be held responsible for crimes committed by their subor-
dinates when they had knowledge of, or consciously disregarded information which
clearly indicated that the subordinates were committing or about to commit ICC
crimes; when the crimes were connected to activities under the control of the superior;
and when the superior neglected to take the necessary measures for preventing or re-
pressing the crimes or to inform civilian authorities with competency to investigate and
initiate appropriate judicial proceedings. The elements of the offence are the same for
non-military commanders, with the exception of the element concerning knowledge of
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commission of crimes. Article 28, paragraph (b) of the Statute indicates that in the case
of a civilian commander, the level of proof required in order to convict is higher than
that required for military superiors. Either knowledge of the crime’s commission or a
conscious disregard of pertinent information must be demonstrated. In other words, to
establish the guilty intent of a non-military superior, it is necessary to show that infor-
mation indicating the significant possibility that subordinates had committed or were
about to commit a crime was available, that the superior was in possession of this in-
formation, and he or she decided not to act on it. The civilians targeted by these
provisions are political leaders, business people and high officials. Military command-
ers are held to a stricter standard under international humanitarian law because
military structure and the need to maintain military discipline make this necessary and
appropriate.
Subordinates
The presence of a hierarchy of power is a necessary condition to the determination of

responsibility of a superior. However, power does not derive solely from the official
title of the accused person. The determining factor is the effective exercise of authority
and control over the actions of subordinates. Control can be officially conferred or
simply exercised. Also, the legal power to lead subordinates does not constitute an ab-
solute condition for establishing responsibility of the commander, who may in some
cases be part of an indirect line of command. For example, military leaders can be held
responsible for acts committed by individuals who are not officially under their control
in the chain of command, but on whom they could have exercised in fact power to pre-
vent or repress the commission of a crime.
Omission to take necessary measures
A superior can only be held responsible for omitting to take measures that were within
his or her capacity to take. Therefore, even if a superior did not officially have the
power to take measures concerning offences that had been committed, he or she can be
held responsible if it is demonstrated that in the circumstances, he or she could have
acted.
States Parties to the Statute desiring to prosecute criminals in their national courts un-
der the principle of complementarity should incorporate the concept of responsibility
of commanders and superiors into their national law, as defined in article 28.
Implementation
Few national criminal codes deal with the concept of the responsibility of commanders.
It would be prudent for an implementing law to introduce this concept into national
law. Generally speaking, the notion of the responsibility of commanders does not exist
for general law offences. For example, a deputy minister cannot be held criminally re-
sponsible for fraud committed by an employee in his or her department, nor can a
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captain be held responsible for the murder of a soldier by another soldier. International
crimes are treated differently; high-ranking military and civilian authorities are fre-
quently found to have criminal responsibility. Since it is often extremely difficult to
establish responsibility, due among other reasons to the complexity of the chain of
command, the concept of the responsibility of commanders and superiors is an essen-
tial tool for the prosecution.
Alternative approaches to cover this issue include incorporating the provision by refer-
ence from the Rome Statute, including it in amended form or creating a separate
offence. The Canadian ICC legislation introduces a number of new crimes to Canada
one of which is “breach of command responsibility”. This covers both military and ci-
vilian commanders. The Argentina draft law expressly extends criminal responsibility
to commanders and other superiors. The Swiss law states that a superior can be held
criminally responsible for crimes committed by his subordinates according to applica-
ble principles of Swiss criminal law. The United Kingdom ICC Act creates a new basis
in their domestic laws of criminal responsibility and goes beyond the existing forms of
liability in English law to include indirect command responsibility in order to reflect
the doctrine of command responsibility set out in the Rome Statute.
The Brazilian draft bill contains a detailed provision regarding command responsibil-
ity. Criminal liability includes – whoever, on account of office, position or function,
whether official or not, should and could prevent the crimes being committed and is
deliberately negligent when he or she was in a position to prevent them or to cause
them to cease in time to prevent threats or injury; military commander or any person
acting as one, for those under his command and control, or his effective authority and
control for having failed to exercise proper control over those persons when he knew or
because of the circumstance, ought to have known, or he has not taken all necessary
and reasonable steps within the scope of his range of competence to prevent or curb
their being committed or to draw the case to the attention of the competent authorities
for investigation and follow-up. Whereas the Brazilian provision refers to both military
and civilian commanders, the United Kingdom legislation distinguishes the circum-
stances where military and civilian commanders will be held criminally liable.
4.7 Rules of Evidence and National Criminal Justice Proceedings

Description
The principles in the Statute on which the Court’s procedures are based, are derived
from existing international human rights standards. The Statute does not explicitly re-
quire States Parties to modify judicial procedures in criminal matters. Yet, rules of
evidence and rules of proceedings in criminal matters should not unnecessarily restrict
proceedings initiated concerning crimes defined by the Statute. There are some eviden-
tiary rules that almost systematically result in acquittal. For example, some criminal
jurisdictions require the testimony of several men in order to establish proof that a
woman was raped, even if only one man was involved in the rape.
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Under the principle of complementarity, States Parties should ensure that when crimes
listed in the Statute are committed, they can be effectively investigated and prosecuted.
They should also make sure that their rules of proceedings in criminal matters do not
prevent victims from laying charges, or prevent the establishment of evidence of
crimes.
Implementation
Not all States Parties may wish to adjust their rules of proceedings in criminal matters.
Also, the adjustment will probably only affect a few rules. However, every act that is
likely to constitute one of the crimes listed in the Rome Statute should be considered in
terms of the rules of evidence and proceedings in order to determine if any rules could
pose a major obstacle to the proper functioning of an investigation or trial, and to en-
sure that persons are not shielded from criminal responsibility. The rules of evidence
and proceedings concerning sexual offences are those that are most likely to present a
problem of this kind in many jurisdictions.
4.8 Military Tribunals

Military tribunals, just like ordinary courts, can be used to prosecute the authors of ICC
crimes. The Statute does not make any distinction between these two types of systems
and States Parties are free to choose which domestic court will have jurisdiction over
ICC crimes. A State Party can decide that the procedures related to the Statute will be
taken in charge by its ordinary courts, by its martial courts or by both, depending on
the general organization of its judicial system. Nevertheless, military tribunals gener-
ally have a restricted competence. They can only prosecute military personnel and
usually do not have jurisdiction over civilians. ICC crimes, however, can be committed
in times of peace by both members of armed forces and civilians. For example, police
forces or non-State armed groups can commit crimes against humanity, as a civilian can
participate in the recruiting of children, thereby committing a war crime. Therefore,
States Parties willing to prosecute authors of ICC crimes should, most of the time, use
their common law jurisdictions, except if their military tribunals have a sufficiently
broad jurisdiction to cover crimes committed in times of peace and crimes committed
by civilians.
The Special Character of Military Proceedings

In many States, proceedings before military tribunals are different than those before
ordinary courts. Proceedings are sometimes more expeditious in military tribunals,
and in some jurisdictions due process may not be guaranteed to the same extent as in
ordinary criminal proceedings. Nevertheless, the ICC can not find admissible a case
prosecuted by national jurisdictions unless the proceedings at the national level were
undertaken with the aim of shielding the person from criminal responsibility or are be-
ing conducted in a manner inconsistent with an intention to bring the person concerned
to justice. Thus, any military proceeding undertaken in good faith is highly unlikely to
result in the ICC subsequently assuming jurisdiction over the same matter, just because
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the proceedings were expeditious. Military tribunals should be able to determine the
criminal responsibility of an individual that is described by the Statute, taking into ac-
count as much as possible the definitions of the crimes, the means of defence, and the
general principles of criminal law described by the Statute.
Military Justice and Practice

The Statute does not state explicit obligations for States Parties with respect to the con-
duct of their armies. Nevertheless, one of the aims of the Statute is to ensure a greater
respect for the laws of armed conflicts and many ICC crimes are related to military
practice. Thus, every prohibition resulting from the definitions of genocide, crimes
against humanity and war crimes should be applicable to the members of the armed
forces of the States Parties. Furthermore, the general principles of criminal law, and the
defences established by the Statute should be incorporated in States’ military codes. As
prevention measures, States Parties should include in their military manual and adapt
the training and the instruction of their troops, if necessary, in order to respect the pro-
hibition of the use of certain arms stated by the Statute. The same should be done
concerning the questions related to the superior orders defence.
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Chapter 5: Relationship Between the ICC and States
5. RELATIONSHIP BETWEEN THE ICC AND STATES

5.1 Broader State Obligations and Rights of States Parties
Treaty Requirements
Description
The Rome Statute stipulates in article 126 that the International Criminal Court will
come into existence on the 1st day of the month that follows the period of 60 days after
the deposit of the 60th instrument of “ratification, acceptance, approval or accession”.
The 60th ratification of the Rome Statute was obtained on April 11, 2002 and the Rome
Statute entered into force on July 1, 2002.
In order to become a Party, a State must either ratify, accept, approve or accede to the
Treaty. The term “accession” means adhering to the treaty after its entry into force and
requires a specific process for a given State to establish at the international level that it
consents to be bound.
For a State ratifying, accepting, approving or acceding to the Statute after April 11,
2002, (the date of the deposit of the 60th instrument), the entry into force of the Statute
for such a State shall be the 1st day of the month following 60 days after its action of
ratifying, accepting, approving or acceding to the Statute (article 126, paragraph (2)).
Reservations and declarations under the Statute
Under article 120, States can not make any reservations to the Statute. States Parties
must accept the Statute as adopted by the Rome Conference.
However, article 124 of the Statute provides that a State may declare that upon becom-
ing a party to the Statute, “for a period of seven years after the entry into force of this
Statute for the State concerned, it does not accept the jurisdiction of the Court with re-
spect to the category of crimes referred to in article 8 when a crime is alleged to have
been committed by its nationals or on its territory.” This provision is intended to allow
States Parties sufficient time to train all their military personnel in the requirements of
the Statute with respect to war crimes, as some of the provisions in the Statute may dif-
fer from existing international obligations.
Withdrawal from the Statute
Article 127 provides that a State Party may withdraw by giving a written notification to
the Secretary General of the United Nations that it intends to withdraw from the
Statute, taking effect one year from the date of the notification or at a later date if the
State so declares. It should be noted that article 127, paragraph (2) outlines the obliga-
tions and duties of the State, which persist notwithstanding the notice of withdrawal
and the actual withdrawal itself.
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Settlement of disputes
Under Article 119, disputes which arise between Parties relating to the interpretation or
application of the Statute should initially be settled through negotiations, if possible. If
it cannot be settled in this manner within three months, the matter will be referred to
the Assembly of States Parties, which may seek to settle the dispute itself, or make rec-
ommendations on further means of settlement of the dispute. The Statute gives the
Assembly of States Parties the power to refer the dispute to the International Court of
Justice “in conformity with the Statute of that Court” (article 119, paragraph (2)).
Obligations
a) States may ratify, accept, approve or accede to the Rome Statute, as appropriate (ar-
ticle 125).
b) States may not make any reservations to the Statute (article 120), but they may make
a declaration under article 124, which defers acceptance of the jurisdiction of the
Court over war crimes within its jurisdiction, for seven years after entry into force
of the Statute for the State concerned, when a war crime is alleged to have been
committed by the State’s nationals or on its territory.
c) States Parties wishing to withdraw from the Statute must follow the procedure, and
continue to observe the relevant obligations and duties, as outlined in article 127.
Implementation
States will probably already have in place procedures to address all of these issues. The
only provision that may differ significantly from other standard treaty provisions is ar-
ticle 124 on the special case of war crimes within the jurisdiction of the ICC. States
should note that the basic principles underlying the war crimes provisions of the Stat-
ute do not deviate markedly from existing humanitarian treaty and customary law
obligations. The main difference is that breaches other than “grave breaches” of the
Geneva Convention are also criminalised under the Statute.
However, States should already have legislation proscribing such conduct as breaches
of the laws of war, if they are parties to the Geneva Conventions, and military person-
nel should already be aware of these provisions. Therefore, most States are unlikely to
require seven years to educate the relevant personnel on the requirements of the war
crimes provisions of the Statute. It would be unfortunate if a State Party decides to
make a declaration under article 124, and is subsequently invaded by a hostile force
that commits numerous war crimes, yet the State cannot find any redress because it
does not accept the jurisdiction of the ICC over such crimes and may not have the re-
sources to carry out such a prosecution itself. Therefore, States should consider
carefully whether to make a declaration under article 124, when ratifying the Statute, as
it could have unwelcome consequences.
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Financing of the Court

Description
Article 114 states that the expenses of the Court and the Assembly of States Parties, in-
cluding its Bureau and subsidiary bodies, shall be paid from the funds of the Court.
The funds of the Court are provided by States Parties and any voluntary contributions,
rather than from the general budget of the United Nations. However, there are provi-
sions that the United Nations may contribute to the Court, subject to approval by the
General Assembly and that the United Nations contribution will, in particular, relate to
operations referred to the Court by the Security Council (article 115, paragraph (b)).
The financial obligations to the Court of States Parties have been established following
the assessment parameters provided in article 117 of the Statute, notably an agreed
scale of assessed contributions. The scale is based on that used by the United Nations
to assess the contributions of its member States.
Article 117 further states that the scale of assessment shall be adjusted in accordance
with the principles on which the scale is based. This refers to the general principle of
the regular budget of the United Nations which limits the minimum and maximum
contributions that a State may be required to make: no less than 0.001% and no more
than 25% of the total budget.
An important feature of the financial arrangements for the Court is that the budget of
the Court is set annually by the Assembly of States Parties.
The Budget
The budget for the first financial period of the Court was adopted by the Assembly of
States Parties based on the proposed draft submitted by the Preparatory Commission.
The budget of the Court is set on a year to year basis as reflected in the annual audit
clause in article 118. Thus, although the volume of the Court’s activity and the activi-
ties of the Prosecutor and the Registrar will vary, the requirement for annual budgets
allows the Court to adapt to changing circumstances. The annual budgets of the Court
provide, inter alia, for all operating and human resource expenses of the Presidency, the
Prosecutor and the Registrar, as well as the Common Services Division.
The Financial Regulations and Rules of the Court were also adopted at the first meeting
of the Assembly of Statute Parties. The Financial Regulations and Rules govern all the
financial administration of the Court, except as otherwise provided by the Assembly of
States Parties or if specifically exempted by the Registrar. The Registrar is responsible
for ensuring that all organs of the Court administer the Rules in a coherent manner. Of-
ficials of the Court shall be guided by the principles of effective financial administration
and the exercise of economy in the application of the Financial Regulations and Rules
of the Court. The Financial Regulations and Rules of the Court are available at:
http://www.dfait-maeci.gc.ca/foreign_policy/icc/documents-en.asp.
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Note that States Parties’ voting rights in the Assembly of States Parties and in its Bu-
reau may be affected in certain circumstances as stipulated in article 112(8) where a
State’s arrears equal or exceed the contributions required for the preceding two years.
The same paragraph provides for the suspension of this sanction where the Assembly
of States Parties is satisfied that the failure to pay is due to conditions beyond the con-
trol of the State Party.
Voluntary contributions to the Court are permitted under article 116 where it is stated
that they must be considered as additional funds. Thus they may not be sought or util-
ised in any manner to replace or fulfil the regular budget expenses.
Obligations
States Parties must provide the Court with specified financial contributions, which are
assessed in accordance with an agreed scale of assessment, based on the scale adopted
by the United Nations for its regular budget and adjusted in accordance with the prin-
ciples on which that scale is based (article 115, paragraph (a), and article 117).
States Parties that are in arrears may lose their right to vote in the Assembly of States
Parties and in the Bureau, if the amount of their arrears equals or exceeds the amount
of the contributions due from them for the preceding two full years. However, the As-
sembly may permit a State Party to vote where it is satisfied that the failure to pay is
due to conditions beyond the control of the State Party (article 112, paragraph (8)).
Implementation
Member States of the United Nations will already be familiar with the method of pro-
viding contributions to an international body in accordance with an agreed scale of
assessed contributions. All States Parties must ensure that the funds are available to
pay their annual assessed contributions to the ICC.
Allowing the ICC to sit in a State’s territory

Description
Article 3(1) provides that the seat of Court will be in The Hague.
Article (3) of the Statute also permits the Court to sit outside of its headquarters for a
specific trial or series of trials regarding a situation referred to the Court. Thus, States
Parties may provide for the Court to sit in their territory where this is necessary or de-
sirable.
Rule 100 of the Rules of Procedure and Evidence of the Court elaborates that the Court
may decide to sit in a State other than the host State when in the interests of justice.
The State must agree that the Court can sit in that State.
Should the Court decide to sit on the territory of a State Party other than the host State,
all of the individuals involved in the proceeding may be required to be in the State dur-
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ing the course of the proceedings. Article 48 of the Statute provides that the Court shall
enjoy in the territory of each State Party such privileges and immunities necessary to
fulfil its purposes.
The Agreement of the Privileges and Immunities of the International Criminal Court
was negotiated by States Parties and adopted by the Assembly of State Parties. This
Agreement provides varying levels of immunity to individuals involved in proceedings
of the Court when it sits in another State. The Agreement provides immunities to the
Court itself, as well as to representatives of States Parties, officials of the Court (such as
Judges, the Prosecutor and Registrar), counsel, the Court’s personnel, victims, wit-
nesses, experts and other persons required to be in attendance by the Court.
The Agreement of the Privileges and Immunities of the Court has the status of an inter-
national agreement and therefore must be signed, ratified and/or acceded to by States
Parties. The Agreement of the Privileges and Immunities of the Court is available at:
http://www.un.org/law/icc/asp/1stsession/report/english/part_ii_e_e.pdf.
Obligations
None of these provisions create obligations for States, however States have a general
obligation to cooperate fully with the Court in its investigation and prosecution of
crimes, pursuant to Article 89 of the Statute.
Implementation
Many States may already have legislation and administrative procedures to allow for
the ICTY/R to sit in their territory. This legislation and procedures would only require
minor amendment, to allow the ICC to sit in their territory as well. In allowing the
Court to sit on their territory, some States have enacted legislation that provides for
their Head of State to declare any place in the country to be the seat of the Court, sub-
ject to specified procedures. For example, see Section 6 of South Africa’s Implementation
of the Rome Statute of the International Criminal Court Act, 2002.
Given that the Agreement on the Privileges and Immunities of the International Crimi-
nal Court has the status of an international agreement, States may undertake the
national processes required for its ratification or accession and implement its provi-
sions into their national laws. Most States have privileges and immunities legislation
or regulations in place dealing with diplomatic relations, foreign missions, or interna-
tional organisations. The relevant pieces of national legislation could be reviewed for
amendment or States may enact a single piece of legislation that covers every aspect of
implementation in order to comply with the Agreement on Privileges and Immunities.
States could also use a hybrid approach.
When requested by the Court to sit in a territory outside the Netherlands, States Parties
may need to negotiate an arrangement allowing the Court to sit and exercise the func-
tions of the Court on their territory (see Articles 3 and 12 of the Agreement). These
Agreements should also guarantee the inviolability of the Court’s premises. Most
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States have experience in granting inviolability to the premises of embassies of other

States and international organisations as well as their property, funds, assets, archives
and documents.
The Agreement on Privileges and Immunities also provides that the Court will be ex-
empt from taxation. Many States have implemented international treaties containing
privileges and immunities which exempt United Nations agencies or international or-
ganisations from taxes, customs duties and import or export restrictions. States Parties
may have to review national laws and regulations regarding taxation, international
trade (import and export), and currency exchange in order to ensure compliance with
the taxation provisions of the Agreement on Privileges and Immunities.
As for the representatives of States under the Agreement on Privileges and Immunities,
such representatives generally travel with diplomatic privileges and immunities ac-
cording to the Vienna Convention on Diplomatic Relations. Intergovernmental organisa-
tions are also often covered by agreements such as the Convention on the Privileges and
Immunities of the United Nations. Accordingly, it should not be difficult for States Parties
to implement their obligations toward State representatives on their territory for ICC
proceedings, as most States already have general privileges and immunities legislation
or regulations in place. Legislative amendments could be made to specifically recog-
nise the representative of States or intergovernmental organisations with regard to the
ICC.
As noted, the Agreement on Privileges and Immunities also affords various levels of
immunity to officials of the Court (such as Judges, the Prosecutor, Registrar), counsel,
the Court’s personnel, victims, witnesses, experts and other persons required by the
Court. States Parties can implement each specific privilege and immunity by either in-
corporating them into existing legislation or drafting new legislation.
A guide has been prepared by ICCLR, “Agreement on Privileges and Immunities of

the International Criminal Court: Implementation Considerations.”
Nominating judges and providing other personnel to the Court

Description
The nomination of judges to the ICC is a right of States Parties, therefore States may
wish to implement procedures for nominating candidates. Article 36(4) sets out the
procedures that a State Party may use to make nominations:
i) the procedure for the nomination of candidates for appointment to the highest judi-
cial offices in the State in question; or
ii) the procedure provided for the nomination of candidates to the International Court
of Justice in the Statute of that Court.
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Note that States Parties may nominate only one candidate for any given election. Can-
didates need not be nationals of the nominating State Party, but they must be nationals
of one of the States Parties (article 36(4), paragraph (b)).
Election of the judges will be by secret ballot at a meeting of the Assembly of States Par-
ties held for that purpose (article 36, paragraph (6)). Judicial candidates must be chosen
from among persons of high moral character, impartiality and integrity and who pos-
sess the qualifications required in their respective States for appointment to the highest
judicial offices (article 36, paragraph (3), subparagraph (a)). In addition, judicial candi-
dates must have established competence in domestic criminal law and procedure or
international law and must have an excellent knowledge of and be fluent in English or
French (article 36, paragraph (3), subparagraphs (b) and (c)).
A resolution governing the procedure for the nomination and election of judges, the
Prosecutor and Deputy Prosecutors of the ICC was adopted at the first meeting of the
Assembly of States Parties (ICC-ASP/1/Res. 2). It specifies that judicial nominations
should be accompanied by a statement indicating, inter alia, how the candidate fulfils
the various requirements set out in article 36.
Ensuring the impartiality of judges and other ICC personnel
Under article 41, paragraph (2), a judge will be disqualified from hearing a case where
that judge has previously been involved in any capacity in that case before the Court or
in a related criminal case at the national level involving the person being investigated.
The Rules of Procedure and Evidence provide further examples of situations in which a
judge may be disqualified, such as “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 ad-
versely affect the required impartiality of the person concerned” (Rule 34, paragraph
(1), subparagraph (c)). States Parties should keep accurate records of the criminal trials
that their judges are involved in, if they envisage nominating their judges to the ICC at
some stage.
States Parties may nominate a candidate for Prosecutor. If they do so, they must follow
the procedure set out in the Assembly’s resolution governing the procedure for the
nomination and election of judges, the Prosecutor and Deputy Prosecutors of the Inter-
national Criminal Court. The resolution states that nominations for the post of
Prosecutor should preferably be made with the support of multiple States Parties. The
resolution also states that every effort shall be made to elect the Prosecutor by consen-
sus, and in the absence of consensus, the Prosecutor shall be elected by secret ballot by
an absolute majority of the members of the Assembly of States Parties (as set out in ar-
ticle 42, paragraph (4)). The Prosecutor nominates three candidates for the position of
Deputy Prosecutor and States Parties elect the Deputy Prosecutor from that list.
Article 42(7) provides that Prosecutors and Deputy Prosecutors will be disqualified
from a case if they have previously been involved in any capacity in that case before the
Court or in a related case at the national level involving the person being investigated
Page 139
or prosecuted. The grounds for disqualification are further elaborated in the Rules of
procedure and Evidence (Rule 34). States Parties that envisage providing any person-
nel to the Court should ensure that they keep accurate records of all persons involved
in criminal cases at the national level, to avoid the possibility of any of these persons
giving the appearance of partiality and thereby undermining the legitimacy of the
Court.
Obligations
If a State Party decides to nominate a candidate for election as a judge of the ICC, it
must observe the requirements under article 36 as to the type of qualities that the can-
didate must possess and must follow the procedure set out in article 36, paragraph (4)
and the terms of the resolution governing the procedure for the nomination and elec-
tion of judges, the Prosecutor and Deputy Prosecutors of the International Criminal
Court adopted by the Assembly of States Parties.
Implementation
States Parties that wish to take advantage of these provisions should implement appro-
priate procedures for selecting and nominating such persons. They may wish to create
a list of persons who would be suitable candidates for various positions within the
Court. They should also establish procedures, if they have not already, for keeping ac-
curate records of all persons involved in criminal investigations and prosecutions in the
State, to ensure that the ICC may have all the relevant information on which to base a
decision to disqualify a person from involvement in an ICC case, if this is required.
Other rights of States Parties

The following situations are other instances in the Statute where rights of States Parties
arise and States may wish to implement national procedures to facilitate the exercise of
these rights:
Under article 13, paragraph (a), and article 14, States Parties may refer a “situation”
to the Prosecutor, which gives jurisdiction to the Court to investigate the matter.
They have a right to be informed where the Prosecutor concludes that information
given by the State Party on a situation does not form a reasonable basis for an inves-
tigation (article 15, paragraph (6)). States Parties also have a right to be informed of
all investigations that are initiated by the Prosecutor, either proprio motu or on the
basis of a State Party referring a situation (article 18, paragraph (1)). Where the
State Party referred a particular situation to the Prosecutor, it may submit observa-
tions where the Prosecutor seeks a ruling from the Court regarding a question of
jurisdiction or admissibility (article 19, paragraph (3)). The State Party may also re-
quest the Pre-trial Chamber to review a decision of the Prosecutor to initiate or not
an investigation (article 53, paragraph (3), subparagraph (a)).
If a State becomes a party to proceedings in the ICC, it has the right to present evi-
dence (article 69, paragraph (3)). Where a State Party is allowed to intervene in a
Page 140
case, it can request the use of a language other than English or French in which to
address the Court (article 50, paragraph (3)).
States Parties have the right to receive the Regulations of the Court and any
amendments adopted by the judges of the Court. States Parties may make com-
ments and objections (article 52, paragraph (3)).
States Parties also have the right to receive co-operation and assistance from the
Court where they are conducting an investigation or prosecution either in regard to
situations where a crime is within the jurisdiction of the Court, or which is a serious
crime under the national law of the requesting State Party (article 93, paragraph (10)
and article 96, paragraph (4)).
5.2 Developments since Rome

Entry-into-Force
When the Rome Statute was adopted by 120 countries at the Diplomatic Conference in
1998, some commentators speculated that the Rome Statute would never receive the 60
ratifications required to enter into force or that, optimistically, it might happen within
the following decade. Less than four years later, on April 11, 2002, the Rome Statute of
the International Criminal Court received its 60th ratification at a special ceremony at
the United Nations Headquarters in New York. Accordingly, pursuant to article 126,
the Rome Statute entered into force on July 1, 2002, thereby establishing the Court and
becoming binding international law.
An Advance Team of international experts was dispatched to The Hague to undertake

the preliminary logistical tasks for the opening of the Court. The Advance Team was
later replaced by the Office of Common Services which continued to administer prepa-
rations.
Following entry-into-force, the Preparatory Commission convened in New York, July 1-

12, 2002 and concluded its work on the Court’s subsidiary documents. The Assembly
of States Parties held its historic first meeting September 3-10, 2002 in New York, at
which it adopted the documents prepared by the Preparatory Commission, including
the Court’s Rules of Procedure and Evidence and Elements of Crimes. At its second
session, February 3-7, 2003, the Assembly of States Parties elected the Court’s 18 judges.
The official opening of the ICC was held March 11, 2002 in The Hague, during which
the Court’s first judges were sworn-in. The ICC’s permanent seat is The Hague, where
it continues to fulfill its mandate under the Rome Statute: to investigate and prosecute
the world’s worst crimes.
Assembly of States Parties

The Assembly of States Parties provides management oversight on matters regarding
the administration of the Court, similar to how the General Assembly manages the UN.
It is comprised of representatives of all States Parties, who meet on a regular basis to
ensure the efficient functioning of the Court.
Page 141
The Procedure of the Assembly of States Parties
Article 112 of the Statute makes reference to the procedures of the Assembly of States
Parties. The Assembly has since adopted its own rules, which provide further guid-
ance and detail with regard to the procedures it must follow. The Rules of Procedure of
the Assembly of States Parties are available at: http://www.un.org/law/icc/asp/
1stsession/ report/english/part_ii_c_e.pdf.
The Rules of Procedure of the Assembly of States Parties provide that non-States Par-
ties that have signed the Final Act of the Rome Conference and / or the Rome Statute
are entitled to participate as “observers” in the Assembly, but are not entitled to vote
(Rule 1). Each State Party shall have one representative in the Assembly of States Par-
ties, however States may also bring their advisers and other personnel with them to
meetings of the Assembly (Rule 23). Each State Party has one vote (Rule 60). Any deci-
sions on matters of substance must be approved by a two-thirds majority of those
present (Rule 63) and matters of procedure are to be decided by simple majority vote
(Rule 64). However, the Assembly is mandated to try to reach consensus in its deci-
sions in the first instance (Rule 61).
Article 112, paragraph (8) of the Statute stipulates that any State Party in arrears in the
payment of its financial contributions towards the cost of the Court for the previous
two years shall lose its right to vote, unless the Assembly is satisfied that the failure to
pay is due to conditions beyond the control of the State Party.
The Structure and Powers of the Assembly of States Parties
Article 112 of the Statute also sets out some of the broad functions of the Assembly, in-
cluding deciding the budget for the Court. Paragraph 3 describes the management
structure of the Assembly, comprising a Bureau consisting of a President, two Vice-
Presidents, and 18 members elected by the Assembly for three-year terms, taking into
account equitable geographical distribution and the adequate representation of the
principal legal systems of the world. This structure, and the general powers of the
President and Vice-President, are further defined in Rules 29-33 of the Rules of Proce-
dure of the Assembly of States Parties.
Article 112, paragraph (4) of the Statute, complemented by Rule 83, grants additional
powers to the Assembly, such as the power to create subsidiary bodies as necessary,
such as the Committee on Budget and Finance (see ICC-ASP/1/Res. 4). Article 112,
paragraph (5) and corresponding Rule 35 provides that the President of the Court, the
Prosecutor and the Registrar may participate in meetings of the Assembly and of the
Bureau. Article 112, paragraph (6) sets out the timetable and preferred venue of meet-
ings for the Assembly. Rules 3-9 complement these prescriptions. There are numerous
additional references throughout the Statute and Rules to the details of the Assembly’s
role and responsibilities.
A key role of the Assembly is the election of the Court’s judges and Prosecutor and se-
lection of other personnel for the Court. Most of the relevant provisions are in Part 4 of
Page 142
the Statute. The Assembly of States Parties has adopted resolutions on the procedure of
the nomination and election of judges, the Prosecutor and Deputy Prosecutor of the
Court (see ICC-ASP/1/Res. 2 and Res. 3) as well as on the selection of the Court’s staff
(ICC-ASP/1/Res. 10). The Assembly may also discipline and remove judges and
prosecutors, if necessary, and decide the salaries of all senior ICC personnel (article 46,
paragraph (2) and article 49, Rules 81, 82 and 87).
The Assembly may also serve a dispute resolution role vital to the effective-functioning
of the ICC . Under article 87, paragraph (7), if the Court concludes that a State is acting
inconsistently with its obligations under the Statute, it can refer the matter to the As-
sembly. There is no mention, however, in the Statute of the Assembly’s obligations
once a question of non-cooperation has been referred for consideration (article 119,
paragraph (2), subparagraph (f). Reference to the Assembly ensures that the matter
will be considered by the States Parties in the conducting of business by the Assembly
pursuant to Rules 44-59.
Also, the Assembly is to establish and administer a Trust Fund “for the benefit of vic-
tims of crimes within the jurisdiction of the Court, and of the families of such victims”
(article 79, paragraph (1)). The Assembly is responsible for the criteria for managing
the Fund (article 79, paragraph (3)).
In addition to the powers specifically enumerated in the Statute, the Assembly is man-
dated to perform any other function consistent with the Statute or the Rules of
Procedure and Evidence (article 112, paragraph (2), subparagraph (g)).
Elements of Crimes
The Elements of crimes document was adopted at the first meeting of the Assembly of
States Parties, September 1-12, 2002 in New York, pursuant to article 119, paragraph (2),
subparagraph (a) of the Statute.
The Elements of Crimes document specifies the type of facts, mental awareness, and
circumstances that the ICC Prosecutor will have to prove in order to convict a person of
crimes within the jurisdiction of the Court. It is intended to provide guidance to the
judges of the Court. The ICC’s Elements of Crimes are available at: http://www.un.org
/law/iss/asp/1stsession/report/english/part_ii_b_e.pdf.
Rules of Procedure and Evidence

The Rules of Procedure and Evidence were adopted at the first meeting of the Assem-
bly of States Parties, September 1-12, 2002 in New York, pursuant to article 119,
paragraph (2), subparagraph (a) of the Statute.
The purpose of the Rules is to clarify and elaborate upon the procedural matters cov-
ered in general terms in the Statute. As their title suggests, the Rules elaborate on
procedures and evidentiary requirements for the Court’s proceedings. The Statute
takes precedent over all Rules of Procedure and Evidence in the event of any conflict
Page 143
States Parties may need to change some of their national procedures to reflect the re-
quirements of the Rules of Procedure and Evidence in order to ensure that they can
continue to co-operate fully with the Court, in accordance with articles 86 & 88 of the
Statute.
The ICC Rules of Procedure and Evidence are available at: http://www.un.org/
law/icc/ asp/1stsession/report/english/part_ii_a_e.pdf.
A guide on implementing any obligation arising under the Rules of Procedure and Evi-
dence is available.
Other Documents
In addition to the Rules of Procedure and Evidence and the Elements of Crimes, the As-
sembly of States Parties has adopted other important documents for official use by the
Court. These include:
The Agreement on the Privileges and Immunities of the International Criminal

Court (available at: http://www.un.org/law/icc/asp/1stsession/report/english/
part_ii_ e_e.pdf);
The basic principles governing a headquarters agreement to be negotiated between
the Court and the Host Country (available at: http://www.un.org/law/icc/asp/
1stsession/ report/ english/ part_ii_f_e.pdf); and
The Draft Relationship Agreement between the Court and the United Nations
(available at: http://www.un.org/law/icc/asp/1stsession/report/english/part_
ii_g _e.pdf)
At its first meeting, the Assembly also adopted the budget for the first financial pe-
riod of the Court (available at: http://www.un.org/law/icc/asp/1stsession/report/
english/part_iii_e.pdf)
Crime of Aggression
Article 5, paragraph (2) provides that the Court shall exercise jurisdiction over the
crime of aggression once an acceptable provision is adopted.
Article 5, paragraph (2) requires that the definition of the crime of aggression be added
as an amendment at a Review Conference, no earlier than seven years from the entry
into force of the Statute (July 1, 2002). Any provision on the crimes of aggression must
set out both the definition of the crime and the conditions under which the Court shall
exercise jurisdiction and be consistent with the “relevant provisions” of the UN Char-
ter.
A Working Group on the Crime of Aggression was established at the third session of
the Preparatory Commission in November 1999, representing delegates from over 100
States. The negotiations on the crime of aggression were not concluded by the final
session of the Preparatory Commission, therefore the Assembly of States Parties passed
a resolution on the continuity of work in respect of the crime of aggression at its first
Page 144
meeting (ICC-ASP/1/Res. 1). This resolution acknowledged the work of the Prepara-
tory Commission and established a Special Working Group on the crime of aggression
open to all member States of the United Nations and members of specialised agencies.
The purpose of the Special Working Group is to elaborate proposals for a provision on
aggression in accordance with article 5, paragraph (2) of the Statute. The Special Work-
ing Group is to submit proposals to the Assembly for consideration at a Review
Conference.
Background to the crime of aggression
The crime of aggression has always proved controversial. Proscriptions against “ag-
gressive wars” were set out in the 1899 and 1907 Hague Conventions for the Pacific
Settlement of International Disputes, and the 1928 Pact of Paris (Kellog-Briand Pact).
But none of these declared aggression an international crime. Needless to say, most of
these agreements were made amongst the Western nations only, and did not even at-
tempt to encompass the views of the rest of the world, unlike the Rome Statute.
After the Second World War, the UN War Crimes Commission Draft Convention for the
Establishment of a United Nations War Crimes Court provided that such a Court would
only prosecute persons “acting under the authority of, or claim or colour of authority
of, or in concert with a State or political entity engaged in war or armed hostilities with
any of the High Contracting Parties, or in hostile occupation of territory of any of the
High Contracting Parties.” In other words, Allied personnel could not be prosecuted
by such a court, no matter how atrociously they behaved themselves. The judges at the
Nuremberg Tribunal, in finding that “crimes against peace” and “war crimes” had
been committed, relied mostly on peace and war crimes treaties to which Germany was
a party.
In 1974, the General Assembly adopted a Resolution on the Definition of Aggression,

which provided that “a war of aggression is a crime against international peace” (article
5, paragraph (2)). However the Resolution did not deal with individual criminal re-
sponsibility for acts of aggression, and so it is questionable whether the definition of
aggression in that Resolution is applicable to individual criminal acts.
The ICC Working Group on the Crime of Aggression has a challenging task ahead of it,
if it is to reach consensus on this issue. There is also considerable controversy over the
exact meaning of the phrase in article 5, paragraph (2) of the Statute, which provides
that any provision on the crime of aggression “shall be consistent with the relevant
provisions of the Charter of the United Nations.” Many States are of the view that this
means the Security Council has to make a determination that an act of aggression has
occurred, in accordance with its powers under Chapter 7 of the UN Charter, before the
ICC can assume jurisdiction over a crime of aggression. However, other States do not
support such an interpretation. They say that the Security Council has “primary” re-
sponsibility, not “exclusive” responsibility under the UN Charter, for determining that
acts of aggression have occurred. All States involved in the negotiations to date are
committed to finding an acceptable compromise for all concerned States.
Page 145
Defence Counsel
Rights of the Accused
The rights of the accused during investigations and trials are contained in articles 55
and 67 of the Statute. The rights of the accused before the Court reflect the Universal
Declaration of Human Rights, and those guaranteed by the International Covenant on
Civil and Political Rights which is binding on the majority of member States of the
United Nations. As these rights affect the proceedings within the jurisdiction of the ar-
resting and detaining State, States Parties may need to adapt certain aspects of their
criminal justice systems in order to ensure that national investigation and arrest proce-
dures do not compromise the work of the Court.
The Accused and the Court
Guaranteeing the rights of the accused is fundamental to the administration of justice.

Accordingly, the success of the Court depends on ensuring a fair trial for all accused
persons. The Statute, and its subsidiary documents, consider the rights of the accused,
and facilitate a fair trial, in a variety of ways.
For example, in addition to the legal rights contained in article 67 of the Statute, the
Rules of Procedure and Evidence require the Registrar to provide support to the de-
fence. Under article 68, paragraph (5), the Prosecutor may not withhold evidence in a
manner which is prejudicial to, or inconsistent with, the rights of the accused and the
provision of a fair and impartial trial. The Rules of Procedure and Evidence mandate
that the Registry of the Court shall organize its staff in a manner that promotes the
rights of the defence (Rule 20). Also, defence attorneys are covered by the Agreement
on Privileges and Immunities of the International Criminal Court so that the lawyers of
each accused may be present without interference when the Court sits outside of The
Hague.
States Parties should ensure that all persons involved in the work of the Court are
treated appropriately, by ratifying and implementing the Agreement on Privileges and
Immunities.
Defence Counsel and the Court
While the Office of the Prosecutor is obviously fundamental to the operation of the
Court, no specific provision is made in the Statute to institutionalise the role of the de-
fence. The appearance before the Court of organized, knowledgeable and accountable
defence counsel are essential to its effective functioning and efficient administration of
justice.
The Court’s Rules of Procedure and Evidence contemplate the consultation of any in-
dependent representative body of counsel or legal associations, in such matters as the
legal aid and the development of a Code of Professional Conduct. To this end, the In-
ternational Criminal Bar (ICB) has been organized. The ICB’s website is available at:
http://www.bpi-icb.org/.
Page 146
Review of the Statute

Article 123 provides that the Secretary-General of the United Nations is to convene a
Review Conference seven years after the entry into force of the Statute. At that Confer-
ence, the Assembly will consider any amendments to the Statute that have been
proposed by States Parties, in accordance with article 121. The Assembly and the Secre-
tary-General may then convene further review conferences, as required.
The Final Act of the Rome Conference recommended that the crimes of terrorism and
international trafficking of illicit drugs should be considered for inclusion on the list of
crimes within the jurisdiction of the Court. In addition, the definition and jurisdictional
issues concerning the crime of aggression may be discussed at the first Review Confer-
ence.
Amendments to the Statute
As amendments may change the relationship with the Court established in the Statute,
States Parties must follow detailed procedures for proposing amendments, as well as
for agreeing to consider them for adoption by the Assembly of States Parties, and for
giving them effect. Therefore States Parties may wish to implement appropriate proce-
dures in order to facilitate the exercise of their rights to propose amendments to the
Statute.
Amendments to the Statute can only be proposed seven years after the entry into force
of the Statute (article 121, paragraph (1)). Amendments may only be proposed by a
State Party, must be circulated by the Secretary General of the United Nations to the
States Parties, may only be considered after a period of at least three months from the
date of notification to the Secretary General and may not be considered for adoption
unless a majority of the States Parties which are present and voting at the Assembly of
States Parties decide to consider the amendment. If the required majority agrees to
consider an amendment the Assembly of States Parties may deal with the amendments
directly or submitted to a Review Conference if the issue involved so warrants (article
121, paragraph (2)).
Adoption of an amendment to the Statute requires a two-thirds majority of States Par-

ties (article 121, paragraph (3)). Note that this article repeats the Assembly’s mandate
to attempt to adopt measures first by consensus (see article 112, paragraph (7)) and
provides for the adoption of amendments by a two-thirds majority of all members only
where consensus cannot be reached.
The next step to amend the Statute is a ratification or acceptance process outlined in
paragraph 4 of article 121, which entails the approval of seven-eighths of the States Par-
ties, upon which amendments enter into effect for all States Parties.
Amendments to the Statute have the potential to effect State Party’s relationship with
the Court. Thus, any State Party not in agreement with an amendment has the right to
withdraw, with immediate effect, from the Statute (article 121, paragraph (6)).
Page 147
Amendments to crimes within the Court’s jurisdiction
An exception to the general rule regarding amendments is when an amendment con-

cerns the crimes within the jurisdiction of the Court (article 121, paragraph (5)). In the
case of such amendments the same requirement of adoption by a majority of two-thirds
of States Parties is required. However, the amendments are effective only for States
that ratify or accept them.
Amendments of an exclusively institutional nature
State Parties are able to propose certain amendments to the Statute at any time. Enu-
merated in article 122, these amendments concern matters which are exclusively
institutional in nature.
Amendments considered to be of an exclusively institutional nature are the following:

the service of judges; some of the provisions concerning the qualifications, nomination
and election of judges; judicial vacancies; the presidency; the organisation of chambers;
some of the provisions concerning the Office of the Prosecutor, the registry, the staff of
the Prosecutor and Registrar’s Offices; removal of judges, the Prosecutor, a Deputy
Prosecutor, the Registrar or the Deputy Registrar from office; disciplinary measures;
and salaries, allowances and expenses (article 122).
There is no change to the majority of States Parties required to adopt an institutional

amendment, but the date for entry into force of such amendments is six months after
adoption by the required majority of States Parties rather than one year after ratifica-
tion or acceptance as is the case for the general amendments anticipated in article 121.
Amendments to these articles apply to all States Parties. There is no need for post-
adoption ratification by a State Party for institutional-type amendments.
Amendments to the Rules of Procedure and Evidence and to the Elements of Crimes
Amendments to the Rules of Procedure and Evidence and amendments to the Elements
of Crimes may be proposed by other entities as well as by States Parties, and need only
be adopted by a two-thirds majority of States Parties (article 9, paragraph (2) and article
51, paragraph (2)). They are similar in that respect to amendments of an exclusively in-
stitutional nature. Further, States Parties may suggest amendments to the Rules at any
time after their initial adoption by the Assembly of States Parties (article 9, paragraph
(2), subparagraph (a) and article 51, paragraph (2), subparagraph (a)). The rights of
States Parties that these amendments generate are similar to those amendments of an
institutional nature, despite the different time period in which they enter into effect.
Effect of amendments to the Statute on States Parties’ rights to withdraw from the Statute
Any amendment to the Statute will give rise to the right of immediate withdrawal by
States Parties from the Statute, except where the amendment is of an exclusively insti-
tutional nature or amends the list of crimes within the jurisdiction of the Court (article
121, paragraph (6)).
Page 148
The option of withdrawal with an immediate effect can be exercised when an amend-
ment has been accepted by seven-eighths of the States Parties. Every State that did not
accept the amendment can, during a period of one year after its entry into force, with-
draw immediately from the Statute.
Page 149
Select Resources
6. SELECT RESOURCES
6.1 Select resources on the ICC
Bassiouni, M. C., ed., The Statute of the International Criminal Court: A Documentary His-
tory, (New York: Transnational Publishers, 1998).
Cassese, A., Gaeta, P., & Jones, J.R.W.D., The Rome Statute of the International Criminal
Court: A Commentary (3 volumes), (New York: Oxford University Press, 2002).
Dixon, R., Khan, K.A.A., & May, R., (eds.), Archbold International Criminal Courts: Prac-
tice, Procedure & Evidence, (London: Sweet & Maxwell, 2003).
Duffy, H. and Suhr, B. “The Debate on Constitutional Compatibility with the ICC”
(Human Rights Watch).
Lattanzi, F. & W. A. Schabas, eds., Essays on the Rome Statute of the ICC, (Teramo, Italy: il
Sirente, 1999).
Lee, Roy S., ed., The International Criminal Court - Elements of Crimes and Rules of Proce-
dure and Evidence, (New York: Transnational Publishers, 2001).
Lee, Roy S., ed., The International Criminal Court. The Making of the Rome Statute. Issues-
Negotiations-Results, (The Hague/London/Boston: Kluwer Law International, 1999).
Sadat, L. N., The International Court and the Transformation of International Law: Justice for
the New Millenium, (New York: Transnational Publishers, 2002).
Triffterer, Otto, ed., Commentary on the Rome Statute of the International Criminal Court:
Observers’ Notes, Article by Article, (Baden-Baden: Nomos Verlagsgesellschaft, 1999).
For more general information on the ICC, including articles and other publications,
please see a 50 page bibliography compiled by Lyonette Louis-Jacques (last updated 15
August 2002) “International Criminal Court: Resources in Print and Electronic Format”
(http://www.lib.uchicago.edu/~llou/icc.html).
6.2 International Criminal Court Implementing Legislation

Note that this is not a comprehensive list of all models available. Most of the ICC laws
listed here, as well as several other laws and new laws as they become available, are
available online via the NGO Coalition for the ICC’s (CICC’s) online “Ratification and
Implementation Toolkit”: http://www.iccnow.org/resourcestools/ratimptoolkit.html
or the Council of Europe’s website on the International Criminal Court:
http://www.legal.coe.int/criminal/icc:
AR - Proyecto de Ley Sobre Crímenes de la Corte Penal Internacional (Two drafts have
been made available to date), 2002, Argentina
Page 151
Select Resources
AU – International Criminal Court Act 2002, Act No. 41, 2002, 27 June 2002, Austra-
lia (addresses co-operation issues)
AU(C) - International Criminal Court (Consequential Amendments) Act 2001, Act No. 42,
2002, 27 June 2002, Australia (addresses complementarity issues)
AZ - Criminal Code of the Republic of Azerbaijan, adopted 30 December 1999, entered

into force 1 September 2000 (unofficial translation)
AZ(E) - Law of the Republic of Azerbaijan on Extradition of Criminals, adopted 15 May

2001, entered into force 19 June 2001 (unofficial translation)
AZ(L) - Law of the Republic of Azerbaijan on Legal Assistance in Criminal Matters,

adopted June 2001 (unofficial translation)
BE - Belgian Provisional Draft Law on Co-operation with the ICC and the International
Criminal Tribunals (French only)
BR - Draft Bill on the International Criminal Court, available in English and Portu-
guese (at http://mj.gov.br/sal/tpi/ ), Brazil
CA - Crimes Against Humanity and War Crimes Act, S.C. 2000, c. C-24, assented to
29 June 2000, entered into force 23 October 2000, Canada
CA(E) - Extradition Act, S.C. 1999, c. C-18, assented to 17 June 1999, amendments con-
cerning the International Criminal Court entered into force 23 October 2000,
Canada
CA(L) - Mutual Legal Assistance in Criminal Matters Act, R.S. 1985, c. 30 (4th Supp.),
1988, c. 37 assented to 28 July 1988, amendments concerning the Interna-
tional Criminal Court entered into force 23 October 2000, Canada
DC - Implementation of the Statute of the International Criminal Court (Draft), Democ-

ratic Republic of the Congo (available in French and English)
ES - Rome Statute of the International Criminal Court Ratification Act (Draft), Estonia
ES(P) - Amendment Act to the Code of Criminal Procedure (Draft), Estonia (unofficial
translation)
ES(C) - Special Part, Penal Code, Estonia (unofficial translation)
FI - Act on the implementation of the provisions of a legislative nature of the Rome Stat-
ute of the International Criminal Court and on the application of the Statute, No.
1284/2000, issued in Helsinki 28 December 2000, Finland (unofficial transla-
tion)
Page 152
Select Resources
FI(C) - The Penal Code of Finland, No. 39/1889 (unofficial translation)
FI(A) - Act on the amendment of the Penal Code, No. 1285/2000, issued in Helsinki 28
December 2000, Finland (unofficial translation)
FI(D) - Decree on the application of Chapter 1, section 7 of the Penal Code (No. 627/1996
as amended by Decrees 353/1997, 118/1999, 537/2000 and 370/2001), 11
September 2001, Finland (unofficial translation)
FI(L) - International Legal Assistance in Criminal Matters Act, No. 4/1994, 5 January
1994, Finland (unofficial translation)
GE - Act on the Rome Statute of the International Criminal Court of 17 July 1998 (ICC
Statute Act), entered into force 4 December 2000, Germany (unofficial transla-
tion)
GE(C) Act to Introduce the Code of Crimes against International Criminal Law, adopted
26 June 2002, Germany
GE(E) - An Act to Amend the Basic Law (Article 16), entered into force 29 November
2000, Germany (unofficial translation)
NZ - International Crimes and International Criminal Court Act 2000, No. 26/2000,
assented to 6 September 2000, most sections entered into force 1 October
2000, New Zealand
NO - Act No. 65 of 15 June 2001 relating to the implementation of the Statute of the In-
ternational Criminal Court of 17 July 1998 (the Rome Statute) in Norwegian Law
PO - Penal Code of 6 June 1997, Poland (nb. further amendments are being consid-
ered) (unofficial translation)
SA - Implementation of the Rome Statute of the International Criminal Court Act, 2002,
No. 27 of 2002, adopted 18 July 2002, South Africa
SW - Federal Law on Cooperation with the International Criminal Court (CICCL) of 22

June 2001, Switzerland (unofficial translation)
UK - International Criminal Court Act 2001, Chapter 17, enacted 11 May 2001,
United Kingdom (note also the availability of Explanatory Notes for this Act)
UK(S) - International Criminal Court (Scotland) Bill, introduced April 2001, United
Kingdom, Scottish Parliament
UK(F) - The International Criminal Court Act 2001 (Enforcement of Fines, Forfeiture and
Reparation Orders) Regulations 2001, No. 2379/2001, entered into force 1 Au-
gust 2001, United Kingdom
Page 153
Select Resources
UK(M) - The Magistrates’ Courts (International Criminal Court) (Forms) Rules 2001, No.
2600/2001 (L. 27), entered into force 1 September 2001, United Kingdom
UK(R) - The International Criminal Court Act 2001 (Elements of Crimes) Regulations 2001,
No. 2505/2001, entered into force 1 September 2001, United Kingdom
6.3 Select Resources on ICC Implementation

Amnesty International, Checklist on Implementation of the Rome Statute
Broomhall, B. “The International Criminal Court: A Checklist for National Implementa-

tion”, in M. C. Bassiouni, ed., ICC Ratification and National Implementing Legislation,
(France: érès, 1999).
Broomhall, B. “The International Criminal Court: Overview and Co-operation”, in M.

C. Bassiouni, ed., ICC Ratification and National Implementing Legislation, (France:
érès, 1999).
Canadian Government website on ICC implementation: http://www.icc.gc.ca
CICC Ratification and Implementation Toolkit at http://www.icc.now.org/resourcestools/

ratimptoolkit.html. This website contains the following information: (1) ICC implemen-
tation checklists in all published languages, including a country by country list
detailing the status and content of implementation (2) existing ICC legislation (3) draft
ICC legislation (4) NGO analyses of ICC legislation and (5) articles on ICC ratification
and implementation.
Council of Europe website on the International Criminal Court: http://www.legal.coe.int/

criminal/icc
Dipartimento di Scienze Giuridiche Pubblicistiche, Universitá degli Studi de Teramo,

Italy, Report on the Round Table Meeting on The Implementation of the International
Criminal Court Statute in Domestic Legal Systems, 12th – 13th November, 1999 (1999).
Human Rights Watch, Comparative Tables: How Various Countries are Implementing
the Rome Statute, (two drafts have been circulated, the second in July 2002)
No Peace Without Justice, International “Ratification Now! Campaign for the estab-
lishment of the International Criminal Court by year 2000: A Manual for Legislators”,
(Roma: No Peace Without Justice, 1999).
SADC (Southern African Development Community) Workshop on Ratification of the

Rome Statute of the International Criminal Court, Pretoria, 5-9 July 1999, ICC Ratifica-
tion Kit – MODEL Enabling Act.
Page 154
Appendix I – Checklist of Implementation Considerations and Examples Relating to the Rome Statute and the Rules of Procedure & Evidence
APPENDIX I:
CHECKLIST OF IMPLEMENTATION CONSIDERATIONS AND EXAMPLES RELATING TO THE
ROME STATUTE AND THE RULES OF PROCEDURE & EVIDENCE
IMPLEMENTATION Ref. in RS Example
TYPE OF IMPLEMENTING REQUIREMENTS AND CONSIDERATIONS
ISSUE & RPE
THE “COMPLEMENTARY” JURISDICTION OF THE COURT
Taking full advantage of Pre-amble • [optional but desirable for the effective functioning of the Court] determine whether the AU(C) - all
the Court’s “comple- State wishes to investigate and prosecute ICC crimes itself, in which case ensure that
mentary” jurisdiction Arts. 1 there are laws and procedures in place to carry out such investigations and prosecu- AZ - Art. 100-
5-8 tions in accordance with the relevant provisions of the Rome Statute to ensure that the 119
9 ICC will defer to the State’s jurisdiction (article 1, 5-8, 17, 19-20, 25, 27-33) CA - ss. 4-14
11 • ensure that no person may be tried by national authorities concerning a crime for which
17 that person has already been convicted or acquitted by the ICC (article 20, paragraph ES(C) - Chap. 8
19-20 (2))
FI(C) - Chap. 1,
22-33 • [optional but desirable for the effective functioning of the Court] implement into
11-12
national legislation the crimes within the jurisdiction of the ICC (see articles 5-8)
• [optional but desirable for the effective functioning of the Court] implement into FI(D) - all
Rules national legislation the elements of crimes (see article 9 and the Elements of Crimes,
51-62 adopted by the Preparatory Commission for the ICC, 30 June 2000 GE(C) - all
133 144 • [optional but desirable for the effective functioning of the Court] implement into NZ - ss. 8-13
national legislation the general principles of criminal law under the Rome Statute (see
articles 22-33) PO - Art. 114,
• [optional but desirable for the effective functioning of the Court] grant “universal” or Chap. XVI
other appropriate jurisdiction to all relevant national authorities, in order to facilitate
SA - s. 4
prosecution of ICC crimes at the national level, wherever and whenever they have been
committed UK - Pt 5
• [optional] implement procedures to enable relevant authorities to take full advantage of
the Court’s “complementary” jurisdiction, in accordance with articles 17-19 and rules UK (R) - all
51-62, 133, 144)
UK(S) - Part 1
UK (S) - Pt 1
Page 155

ISSUE & RPE
INTERNATIONAL COOPERATION UNDER PART 9
Recognising the Pre-amble • recognise the complementary jurisdiction of the ICC to investigate and prosecute all AU - s. 3, Pt 5
jurisdiction of the ICC crimes listed in the Rome Statute, from the date of entry into force of the Statute,
Arts. including jurisdiction over natural persons committing crimes on State Party territory ES - Art. 1
1 and State Party nationals, but not over persons who were under 18 years old at the time NZ - s. 3, Pt 9
12 of the commission of the crime (article 1, article 12, paragraph (1), and article 13, and
13 see article 126 re entry into force of the Statute) SA - ss. 3, 5, 6
126 • accept the jurisdiction and authority of the Court to exercise its functions and powers
SW - Art. 27
on the State Party’s territory, as provided under the Rome Statute (article 4, paragraph
(2))
• grant jurisdiction to all relevant national authorities over all persons and objects that
may be involved in ICC proceedings
Full cooperation with Arts. • ensure that there are no limits on cooperation with the ICC, apart from those listed in ES(P) - Art. 415
the Court 86 the Statute (article 86 and article 87, paragraph (7))
87(7) FI - s. 4
• ensure that there are procedures available under national law for all of the forms of
88 cooperation specified in Part 9 of the Statute (article 88)
Responding to requests Arts. • ensure that there are procedures and/or laws in place to recognise the validity of all AU - Pt 2
for assistance (generally) 50(2) requests for assistance from the ICC that comply with the requirements of the Rome
87 Statute (article 50, paragraph (2), article 87, paragraph (2), article 91, and article 96) NZ - Pt 3
91 • advise the ICC of any special requirements under national law for executing requests NO - s. 3
96 (article 96, paragraph (3))
99 • ensure that requests can be executed in accordance with any specifications that SW - Arts. 3, 42
accompany the request, as long as these are not prohibited under national law (article
Rules 99, paragraph (1))
3 • provide for an urgent response to any urgent requests for assistance from the Court
15 (article 99, paragraph (2))
40-43 • ensure that all replies by the State are transmitted to the Court in their original
117 language and form (article 99, paragraph (3))
176-180 ensure that there are procedures and/or laws in place to facilitate prompt and effective
187 execution of all requests from the ICC for cooperation, except as provided for under
194 the Rome Statute (see article 72, article 73, article 93, paragraph (1), subparagraph (l),
article 93, paragraph (3), article 93, paragraph (4), and article 93, paragraph (5) -
discussed below)
Page 156

ISSUE & RPE
Consulting with the Arts. • ensure that the relevant authorities consult with the Court where execution of a AU - s. 12
Court where there may 93 (1)(l) particular measure would normally be prohibited in the State on the basis of an existing
be difficulties in fundamental legal principle of general application (article 93, paragraph (3)), or where NZ - s. 30
93(3)
executing requests the State has identified problems which may impede or prevent the execution of the SW - Art. 4
93(5)
request (article 97)
97
• ensure that there are procedures in place to allow the relevant national authorities to
Rule consider whether certain types of assistance can be provided subject to conditions, at a
81 later date, or in an alternative manner, where the type of assistance requested would
normally be prohibited by the law of the requested State (article 93, paragraph (1),
subparagraph (l), article 93, paragraph (3), and article 93, paragraph (5))
Postponement of the Arts. • ensure that there is a procedure in place for checking whether the execution of a AU - ss 15, 51, 53
execution of requests 94 request from the ICC would interfere with an ongoing State investigation or prosecu-
for assistance 95 tion, once a request is received (article 94)
• ensure that there are procedures in place for consulting with the Court, and possibly
postponing execution of a request, where execution of a particular request would
interfere with an ongoing State investigation or prosecution of a different matter (in
accordance with article 94) or of the same matter (in accordance with article 95)
Cost of executing Art. • ensure that sufficient funds are available to cover the cost of executing certain requests AU - s. 173
requests 100 from the Court (only those not listed in article 100, paragraph (1))
Rule
208
Designation of an Arts. • [optional] upon ratification, designate a preferred channel for communication with the AU - ss. 9, 10
“appropriate channel” 50 Court (article 87, paragraph (1))
for receiving requests 87 ES(P) - Art. 398
• [optional] upon ratification, designate a preferred language of correspondence, either
an official language of the State or a working language of the Court (English or French) FI - s. 2
Rules
(articles 50, paragraph (2) and article 87, paragraph (2))
176-180
• ensure that there are appropriate procedures and institutions available under national NZ - s. 25
law for receiving requests for cooperation and communicating with the Court, and
SW - Arts. 3, 10
changing the channels and language of communication if need be, in accordance with
rules 176-180
• ensure that the State is also able to receive requests transmitted through appropriate
regional organisations or through Interpol (article 87, paragraph, (1), subparagraph (b))
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ISSUE & RPE
Protecting victims, Art • be prepared to provide and handle certain information in a manner that protects the NZ - s. 29 (2)
witnesses and their 87(4) safety and well-being of victims, witnesses, and their families, as the Court directs
families when executing (article 87, paragraph (4))
requests
Provision for future Arts. • [optional but desirable] make provision for possible future amendments to national
amendments 51 laws and procedures for cooperating with the ICC, where this is necessary once the
121 Rules of Procedure & Evidence have been adopted by the Assembly of States Parties
(articles 51 & 121)
Rules
1-3
ARREST AND SURRENDER
Arresting a person in Arts. • ensure that there is a procedure and/or laws in place to verify the contents of all AU - Pt 3
accordance with a 59 requests for arrest and surrender received from the ICC, that comply with Article 91
warrant issued by the 89 CA (E) - Pt 2
• provide all relevant personnel with the authority to arrest both nationals and non-
ICC 91 nationals, in relation to any crime within the jurisdiction of the ICC, in accordance with FI - s. 3
97 a request for arrest and surrender and in accordance with the relevant procedures
under national law (articles 59 & 89) NZ - Pt 4
Rules • require all relevant authorities to take immediate steps to respond to all requests for
SA - Pt 3
117 arrest and surrender from the Court (article 59) and require the relevant authority to
consult with the ICC if it identifies any problems which may impede or prevent SW - Chap. 3
181-184 execution of the request (article 97)
• ensure that the relevant authorities consult with the Court, if requested, regarding any UK - Pt 2
187-189 requirements under national law that may apply to the surrender process in the
requested State (article 91, paragraph (4))
• take into account the distinct nature of the Court to ensure that any requirements
under national law are no more burdensome than those applicable to extradition
requests from other States (article 91, paragraph (2), subparagraph (c))
• keep accurate records of any time that the person spends in custody, so that the ICC
can take this into account when determining any sentences of imprisonment (see article
78)
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ISSUE & RPE
Arresting a person in Arts. • ensure that there is a procedure and/or laws in place to verify the contents of all AU - Pt 3
accordance with a 58 (5) requests for provisional arrest received from the ICC, that comply with article 92,
provisional warrant 59 (1) paragraph (2) CA(E) - Pt 2
issued by the ICC 92 • provide all relevant personnel with the authority to provisionally arrest both nationals FI - s. 3
97 and non-nationals, in relation to any crime within the jurisdiction of the ICC, in
accordance with a request for provisional arrest and in accordance with the relevant NZ - Pt 4
Rules procedures under national law (article 58, paragraph (5), article 59, paragraph (1) and
SA - Pt 3
117-120 article 92)
• require all relevant authorities to take immediate steps to respond to all requests for SW - Chap. 3
123 provisional arrest from the Court (article 59, paragraph (1))
• require the relevant authority to consult with the ICC if it identifies any problems UK - Pt 2
181-184 which may impede or prevent execution of the request (article 97)
• ensure that there is a procedure and/or laws in place to allow a provisionally arrested
188 person to be released from custody, if the required documentation for an arrest does
189 not arrive within a certain time to be stipulated in the Rules of Procedure and Evidence
(article 92, paragraph (3) – the Finalized draft text of the Rules of Procedure and
Evidence provides for a time limit of 60 days from the date of provisional arrest (rule
188)
• require all relevant authorities to immediately re-arrest the person if the documentation
arrives subsequently (article 92, paragraph (4))
• [optional but desirable for the effective functioning of the Court]if national laws allow
it, make provision for the voluntary surrender of a provisionally arrested person
(article 92, paragraph (3))
• keep accurate records of any time that the person spends in custody, so that the ICC
can take this into account when determining any sentences of imprisonment (see article
78)
Preventing certain Art. • ensure that there are laws and/or procedures in place to prevent persons who are the
persons from 19 (8)(c) subject of a warrant from absconding, pending a decision on the admissibility of a case
absconding under article 19 (article 19, paragraph (8), subparagraph (c))
Rules
57
61
Page 159

ISSUE & RPE
Taking protective Arts. • require the relevant authorities to identify, trace and freeze or seize the proceeds, AU - Pt 4 Div 14
measures for the 57 (3)(e) property and assets and instrumentalities of crimes within the ICC’s jurisdiction, for
purpose of forfeiture, the purpose of eventual forfeiture, without prejudice to the rights of bona fide third CA - ss. 27-32
where a warrant or 93 (1)(k) parties, pursuant to CA(L) - s. 9.1, 9.2
summons has been • a request from the ICC, where a warrant or summons has been issued (article 57,
issued Rule paragraph (3), subparagraph (e) and article 93, paragraph (1), subparagraph (k)) FI - s. 8
99
NZ - ss. 111, 112,
126-135
SA - ss. 22-29
SW - Art. 41, 58
UK - ss. 37, 38,

Sch. 5, 6
UK(S) - ss. 19, 20
Protecting the rights of Art. • ensure that the person being arrested is presumed to be innocent until proven guilty SA - s. 10
persons being arrested 55 before the ICC in accordance with the applicable law (article 66)
66 • require all relevant authorities to observe the right of all persons to a fair trial, starting
67(1) from the moment the person is arrested, in accordance with the minimum guarantees
and set out in article 67 and the rights set out under article 55, paragraph (1)
Int’l • require all relevant authorities to observe the rights of persons being questioned in
Covenant relation to any ICC proceeding, in accordance with article 55, paragraph (2)
on Civil & • ensure that free legal assistance is available to arrested persons who do not have
Political sufficient means to pay for such assistance (article 55, paragraph (2), subparagraph (c))
Rights • [optional but desirable] if possible, segregate accused persons from convicted persons
in any detention facility and ensure that they are accorded the treatment that is appro-
Rules priate to their status as unconvicted persons (article 10, International Covenant on Civil &
20-22 Political Rights)
• [optional but desirable] if possible, ensure that there are sufficient funds to compensate
111-113 persons who are wrongfully detained or arrested by State authorities
117
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Hearing before a Arts. • require all arrested persons to be brought before the competent judicial authority as AU - s. 23
competent judicial 59(2) soon as possible after being arrested (article 59, paragraph (2))
authority 89(4) NZ - s. 39
• require the competent judicial authority to determine that the warrant applies to the
97 person, that the person has been arrested in accordance with the proper process under UK - ss. 4, 5
national law, and that the person’s rights under national law have been respected
Rules (article 59, paragraph (2)) SA - s. 10
117 • [optional but desirable] if possible, provide redress at the national level where the
183 person was not arrested in accordance with the proper process under national law
184 and/or the person’s rights under national law were not respected, as long as such
redress does not interfere with the surrender of the person
• require the relevant authority to consult with the ICC if it identifies any problems
which may impede or prevent the subsequent surrender of the person (article 97), or if
the arrested person is already being investigated or serving a term of imprisonment for
a different offence (article 89, paragraph (4))
Serving a summons to Art. • ensure that there is a procedure and/or laws in place to verify the contents of a AU - Pt 4 Div 7
appear before the ICC 58(7) summons for a person to appear before the ICC, that complies with article 58, para-
graph (7) FI - s. 5
Rules • ensure that there are laws and/or procedures in place to allow for the service of such a SA - ss. 19, 21
112 summons within the territory of the State and, if possible, on its nationals wherever
117 they may be (article 58, paragraph (7)) UK - s. 31
119 • inform the ICC as to what conditions restricting liberty (other than detention) are
UK(S) - s. 15
123 allowable under national law, in relation to a summons to appear before the ICC
• ensure that any allowable conditions attaching to a summons are enforced by the
relevant authority
Surrendering a person Arts. • grant the relevant authority the power to order any person to be surrendered to the AU - Pt 3 Div 4
to the ICC 59(7) ICC, pursuant to a request from the ICC (article 89, paragraph (1))
89(1) CA(E) - Pt 2
• ensure that there are no grounds available for refusing to surrender any person to the
89(4) ICC when requested, including both nationals and non-nationals (article 89, paragraph ES - Art. 3
(1))
Rules • ensure that there are procedures and/or laws in place to require a person to be NO - s.2
117 transported and surrendered to the ICC as soon as possible after the relevant national
NZ - ss. 33-35, 43-
183 authority makes the order for surrender (article 59, paragraph (7))
76
184
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• require the relevant authority to consult with the ICC if the person being sought for SA - s. 10
surrender is being proceeded against or is serving a sentence in the requested State for
a crime other than the one for which surrender is sought (article 89, paragraph (4)) SW - Chap. 3
UK - Pt 2
UK(M) - all
Requirements for Art. • take into account the distinct nature of the ICC when determining national require- CA(E) - Pt 2
surrender in the 91 (2)(c) ments for the surrender process – these requirements should not be more burdensome
requested State than those applicable to requests for extradition between States and should, if possible, UK - Pt 2, Sch. 2
Rules be less burdensome (article 91, paragraph (2), subparagraph (c))
117 • [optional but desirable for the effective functioning of the Court] if possible, introduce a
187 streamlined approach for surrendering persons to the ICC quickly, such as removing
any right of appeal to a national authority
• if adapting extradition procedures to enable surrender to the ICC, ensure that there are
no grounds for refusing to surrender a person to the ICC and in particular that all ICC
crimes are extraditable offences if dual criminality is a requirement
Postponement of Arts. • require the relevant authority to consult immediately with the ICC if a person being AU - s. 32
requests for surrender 20 89(2) sought for surrender makes a challenge on the basis of ne bis in idem (ie. where the
(ne bis in idem ICC is seeking the person’s NZ - s. 57
challenges) Rule • surrender in relation to a crime for which the person claims to have already been
181 convicted or acquitted) (article 89, paragraph (2))
• require the relevant authority to surrender the person, if the ICC has already
determined that the case is admissible in accordance with article 20 (article 89, para-
graph (2))
• ensure that there are procedures and/or laws in place for determining whether to
postpone execution of the request for surrender, if the ICC has yet to make a determi-
nation on the admissibility of the case (article 89, paragraph (2))
Competing requests to Art. • ensure that there are procedures and/or laws in place to enable and require the AU - ss. 36-39
surrender a person 90 appropriate authority to deal with competing requests for surrender in accordance with
the provisions of article 90 NZ - ss. 61-64
Rule SW - Art. 14
186
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Conflicts with other Art. • ensure that non-nationals who would normally enjoy diplomatic or other immunity AU - s. 13
international obligations 98 may be surrendered when requested by the ICC, where the consent of the State of
nationality of the requested person has been obtained or is not required (article 98, NZ - s. 66
Rule paragraph (1)) UK - s. 23
195 • ensure that all requested persons who are also the subject of international agreements
may be surrendered to the ICC, where the consent of the State of nationality of the
requested person has been obtained or is not required (article 98, paragraph (2))
• [optional but desirable for the effective functioning of the Court] if possible, ensure that
no restrictions are placed, by means of international agreements, on the ability of other
States to surrender State Party nationals to the ICC when requested (article 98, para-
graph (2))
• [optional but desirable for the effective functioning of the Court] if possible, be
prepared to disclose to the ICC any international obligations or agreements that may
conflict with a request for surrender, if the Court requires this information
Absence of immunity Art. • ensure that no immunities under national laws will prevent a person from being AZ(E) - Art. 1.3
for Heads of State 27 surrendered to the ICC when requested (article 27 and article 89, paragraph (1))
CA(E) - s. 6.1
NZ - s. 31
UK - s. 23
No limitations period Art. • ensure that no limitations periods under national laws will prevent a person from being
29 surrendered to the ICC when requested (article 29 and article 89, paragraph (1))
Surrendering persons Art. • ensure that all persons who would normally be exempt under national laws from
who may face life 89(1) imposition of any of the penalties set out in article 77, may be surrendered to the ICC
imprisonment when requested (article 77 and article 89, paragraph (1))
No trial by jury Art. • ensure that all persons who would normally have a right to trial by jury may be
39 (2)(b) surrendered to the ICC when requested, even though they will be tried by a three-
judge chamber of the ICC and not by a jury of their peers (article 39, paragraph (2),
subparagraph (b) and article 89, paragraph (1))
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Allowing suspects to be Art. • authorise transportation through State territory of any person being surrendered to the AU - Pt 9
transported across State 89(3) ICC by another State, except where transit through the State would impede or delay the
territory en route to the surrender (article 89, paragraph (3), subparagraph (a)) CA(E) - s. 76
ICC Rule • [optional but desirable for the effective functioning of the Court] if possible and where NZ - ss. 136-138
117 necessary, authorise transportation through State territory of any convicted person
being sent from the ICC to another State to serve a term of imprisonment SA - s. 12
• ensure that no authorisation is required if the person is transported by air and no
SW - Art. 13
landing is scheduled on the territory of the transit State (article 89, paragraph (3),
subparagraph (d)) UK - ss. 21, 22
• ensure that there are laws and/or procedures in place to detain a person until they can
resume their journey, when an unscheduled landing occurs on the territory of the
transit State, as long as the detention does not exceed 96 hours from the time of the
unscheduled landing, unless a request for transit is received within that time (article 89,
paragraph (3), subparagraph (e))
• if there is an unscheduled landing and a transit request is required by the transit State,
ensure that there are laws and/or procedures to detain the person until the request for
transit is received and transit is effected, as long as the detention does not exceed 96
hours from the time of the unscheduled landing, unless the request is received within
that time (article 89, paragraph (3), subparagraph (e))
• keep accurate records of any time that the person spends in custody, and arrange for
these to be transmitted to the Court for its purposes, so that the ICC can take this into
account when determining any sentences of imprisonment (see article 78)
EVIDENCE
Collecting and Arts. • when collecting and preserving evidence for ICC proceedings, States should try to AU - Pt 4 Div 11,
preserving evidence for 64(9) ensure that all relevant standards under national laws, internationally recognised Pt 6
the ICC 66 human rights, and the relevant provisions of the Rome Statute are respected, in order to
67(1) ensure the admissibility of that evidence before the ICC (article 64, paragraph (9), NZ - Pt 5
69 article 66, article 67, paragraph (1), and article 69)
Rules
63
69
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Allowing the ICC Art. • ensure that there are procedures in place to consult with the ICC if necessary, to NZ - s. 123
Prosecutor to execute 99(4) negotiate reasonable conditions or address any concerns on the part of the State, when
requests the ICC Prosecutor wishes to execute requests directly on the State’s territory, in
directly accordance with article 99, paragraph (4), subparagraphs (a) or (b)
Identifying and locating Art. • empower the relevant authorities to obtain necessary information as to the identity and AU - Pt 4 Div 4
persons 93 (1)(a) location of persons, when the ICC requests this information (article 93, paragraph (1),
subparagraph (a)) NZ - s. 81
• ensure that nationals and non-nationals can be identified and located when they are SA - s. 14
present upon, or about to leave or enter State territory (article 93, paragraph (1),
subparagraph (a))
Obtaining expert Art. • ensure that there are laws and/or procedures in place to assist the ICC in obtaining NZ - s. 82
reports and opinions 93 (1)(b) reports and opinions from experts as required (article 93, paragraph (1), subparagraph
(b))
Rule
81
Questioning victims Arts. • provide all relevant personnel with the authority to question victims and witnesses in AU - ss. 63, 64
and witnesses 55(1) relation to ICC proceedings, when requested (article 93, paragraph (1), subparagraph
(b) NZ - ss. 82, 83
93 (1)(b) SA - ss. 15, 16
• as far as possible, ensure that an adequate record is created and maintained by the
100 (1)(b) State, of any statements taken from victims or witnesses in connection with an ICC SW - Art. 34
investigation
UK - ss. 29, 30
Rule • as far as possible, ensure that all relevant personnel respect the rights of all persons
111 involved in ICC investigations, as set out under article 55, paragraph (1) UK(S) - ss. 13, 14
• ensure that competent translators and interpreters are available free of charge to the
victim or witness, if required (article 55, paragraph (1), subparagraph (c)) [nb. the ICC
will usually pay for these (article 100, paragraph (1), subparagraph (b)) ]
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Questioning accused Art. • provide all relevant personnel with the authority to question a person being AU - Pt 4 Div 6
persons 55(2) investigated or prosecuted by the ICC, when requested (article 93, paragraph (1),
subparagraph (c)) NZ - ss. 89, 90
93 (1)(c) • as far as possible, ensure that an adequate record is created and maintained by the SW - Art. 35
State, of any statements taken from a person being investigated or prosecuted by the
Rules ICC UK - s. 28, Sch 3
20 • require all relevant authorities to observe the rights of persons being questioned in
UK(S) - s. 12
111 relation to an ICC proceeding, in accordance with article 55, paragraph (2)
112
113
Serving documents, Art. • ensure that there are laws and/or procedures in place to allow for the effective service AU - Pt 4 Div 7
such as requests to 93 (1)(d) of documents from the ICC on all State Party nationals and all persons who are on the
testify before the ICC State’s territory (article 93, paragraph (1), subparagraph (d)) FI - s. 5
NZ - s. 91
SA - ss. 19, 21
UK - s. 31
UK(S) - s. 15
Assisting witnesses and Arts. • provide assistance to witnesses and experts in order to facilitate the voluntary AU - Pt 4 Div 8
experts to attend ICC 93 (1)(e) appearance of such persons before the ICC (article 93, paragraph (1), subparagraph (e))
proceedings [nb. the ICC will usually pay for the costs associated with the travel and security of FI - ss. 5, 6
100 (1)(a) witnesses and experts (article 100, paragraph (1), subparagraph (a)) ] NZ - ss. 92-94
Conducting searches of Art. • empower the relevant authorities to conduct searches of persons for the purposes of AU - Pt 6 Div 4,
persons 93 (1)(h) ICC investigations, in accordance with internationally recognised human rights (article Div 5
93, paragraph (1), subparagraph (h))
NZ - s. 77
SA - s. 30
Preserving testimonial Art. • ensure that there are laws and/or procedures in place to preserve and protect all
evidence 93 (1)(j) testimonial evidence collected for the purposes of ICC investigations (article 93,
paragraph (1), subparagraph (j))
Rule
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81
Protecting victims and Art. • ensure that there are laws and/or procedures in place to provide adequate protection AU - Pt 4 Div 13
witnesses 93 (1)(j) for victims, witnesses, and their families who are involved in ICC proceedings, includ-
ing both nationals and non-nationals (article 93, paragraph (1), subparagraph (j)) CA - ss. 71-75
Rules NZ - ss. 85, 87,
81 110
85-99
NO - ss. 6, 8
SA - s. 17
SW - Art. 32
Providing protection Arts. • ensure that there are laws and/or procedures in place to provide adequate protection NO - s. 5
for accused persons 57 (3)(c) for accused persons who are involved in ICC proceedings, including both nationals and
non-nationals (article 57, paragraph (3), subparagraph (c) and article 64, paragraph (6),
64 (6)(e) subparagraph (e))
Rules
76
77
81
115
116
Transferring persons in Arts. • [optional but desirable for the effective functioning of the Court] if possible, ensure that AU - Pt 4 Div 9
custody 93 (1)(f) there are laws and/or procedures in place to allow for the temporary transfer to the
ICC of persons in custody in the State, for purposes of identification or for obtaining NZ - ss. 95-99
93(7) testimony or other assistance, as long as such persons freely give their informed SA - s. 20
consent to such transfers, and in accordance with any conditions agreed between the
Rules State and the ICC (article 93, paragraph (1), subparagraph (f) and article 93, paragraph SW - Art. 26, 39
192 (7))
UK - s. 32
193
Providing other types of Arts. • [optional but desirable for the effective functioning of the Court] if possible, be NZ - s. 113
assistance 93 (1)(l) prepared to provide any other type of assistance which is not prohibited by the law of
the requested State, with a view to facilitating the work of the ICC, and subject to any
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93(5) conditions that may be negotiated with the Court (article 93, paragraph (1), subpara- SW - Chap. 4
graph (l) and article 93, paragraph (5))
Identification and Arts. • empower the relevant authorities to obtain necessary information as to the where- NZ - s. 81
whereabouts of items of 57 (3)(b) abouts of any items of evidence requested by the Court (article 93, paragraph (1),
evidence subparagraph (a))
93 (1)(a)
• ensure that there are no limits on the types of evidence which can be identified and
99 (4)(b) located by the relevant authorities (article 93, paragraph (1), subparagraph (a))
Rules • ensure that there are laws and/or procedures in place to monitor and/or restrict the
76 movement of items of evidence across State borders, particularly if any neighbouring
77 States are non-States Parties
81 • wherever possible, allow the ICC Prosecutor and relevant defence counsel to look for
115 items of evidence on State territory, after consulting with the State in accordance with
116 article 57, paragraph (3), subparagraph (b) and article 99, paragraph (4), subparagraph
(b) (article 93, paragraph (1), subparagraph (a))
Service of documents Art. • ensure that there are laws and/or procedures in place to allow for the effective service NZ - s. 91
93 (1)(d) of documents from the ICC concerning items of evidence (article 93, paragraph 1),
subparagraph (d)) UK(S) - s. 15
Examination of places or Art. • ensure that there are appropriate laws and/or procedures in place to allow the relevant AU - Pt 4 Div 10
sites, including grave 93 (1)(g) authorities to examine places or sites within State territory, including the exhumation
sites and examination of grave sites, as far as possible in accordance with respect for any NZ - s. 100
traditions and beliefs that may pertain to the places or sites or their contents (article 93, UK - ss. 33, 35
paragraph (1), subparagraph (g))
Search and seizure of Art. • empower the relevant authorities to conduct searches for and to seize items of evidence AU - Pt 4 Div 11,
items of evidence 93 requested by the ICC, in accordance with internationally recognised human rights and Pt 6
(1)(h) as far as possible in accordance with respect for any traditions and beliefs that may
pertain to the items (article 93, paragraph (1), subparagraph (h)) CA(L) - ss. 10-16
Rules
77 NZ - ss. 77, 78,
78 101-108
84
SA - s. 30
UK - s. 33
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Provision of records Art. 93 • ensure that there are laws and/or procedures in place to require the relevant AU - Pt 4 Div 12
and documents, (1)(i) authorities to provide official and other documents to the ICC when requested (article
including official 93, paragraph (1), subparagraph (i)) CA(L) - s. 18
documents Rules NZ - ss. 82, 84,
77 86, 88, 109
78
84 UK - s. 36
UK(S) - s. 18
Preserving items of Art. • ensure that there are laws and/or procedures in place to restrict and control which AU - Pt 4 Div 13
evidence 93 (1)(j) persons have access to evidence once it has been collected, in order to ensure its
preservation (article 93, paragraph (1), subparagraph (j)) NZ - s. 110
• ensure that any item of evidence likely to deteriorate is stored under appropriate
conditions that minimise the likelihood of such deterioration (article 93, paragraph (1),
subparagraph (j))
Identifying, tracing and Art. • enable the relevant authorities, before or after conviction, to identify, trace, and freeze AU - Pt 4 Div 14
freezing evidence of 93 (1)(k) or seize the proceeds, property and assets and instrumentalities of crimes, for the
proceeds, etc. of crime purposes of eventual forfeiture, without prejudice to the rights of bona fide third CA - ss. 27-32
parties (article 93, paragraph (1), subparagraph (k)) CA(L) - s. 9.1, 9.2
FI - s. 8
NZ - ss. 111, 112,

126-135
SA - ss. 22-29
SW - Art. 41, 58
UK - ss. 37, 38,

Sch. 5, 6
UK(S) - ss. 19, 20
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Protection of national Arts. • ensure that there are procedures in place to ascertain whether a request for cooperation AU - Pt 8
security information 72 from the ICC concerns the production of any documents or disclosure of any informa-
93(4) tion which relates to the State’s national security, in which case the State Party may NZ - Pt 8
deny such a request for assistance, in whole or in part, in accordance with article 72 NO - s. 7
Rule (article 93, paragraph (4))
81 • ensure that there are procedures in place to allow the State to intervene in an ICC SW - Art. 44
proceeding if the State learns that information or documents of the State are being, or
UK - s. 39
are likely to be, disclosed at any stage of the proceedings, and the State is of the opinion
that disclosure would prejudice its national security interests (article 72, paragraph (4))
• ensure that the relevant national authorities will take all reasonable steps to seek to
resolve by cooperative means any concerns over potential prejudice to the State’s
national security interests, acting in conjunction with the ICC Prosecutor, the defence,
the Pre-trial Chamber or the Trial Chamber, as the case may be (article 72, paragraph
(5))
• require the relevant authority to notify the Prosecutor or the Court of specific reasons
for any decision not to provide or disclose the information or documents, unless a
specific description of the reasons would itself necessarily result in such prejudice to
the State’s national security interests, once all reasonable steps have been taken to
resolve the matter through cooperative means, and if the State considers that there are
no means or conditions under which the information or documents could be provided
or disclosed without prejudice to its national security interests (article 72, paragraph
(6))
• be prepared to undertake further consultations with the Court, including in camera and
ex parte hearings for the purpose of enabling the Court to consider the State’s represen-
tations, if the Court determines that the evidence is relevant and necessary for the
establishment of the guilt or innocence of the accused (article 72, paragraph (7),
subparagraph, (a), sub-subparagraph (i))
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Protection of third party Art. • require the relevant national authority to seek the consent of the originator of any AU - Pt 7
information 73 document or information in the custody, possession or control of the State, which was
disclosed to it in confidence by a State, intergovernmental organization or international NZ - ss. 164-165
organization, and which is requested by the Court (article 73)
• require the relevant national authority to inform the Court if the State is unable to
provide the document or information because of a pre-existing obligation of confidenti-
ality to the originator and the originator does not consent to disclosure
• ensure that there are procedures in place where the State Party is the originator of
documents that have been requested from another State, and those documents or
information were disclosed to the other State in confidence by the originator, in order
to allow the originator of those documents or information in the custody, possession or
control of the other State, to consent to disclosure of the information or document to the
ICC, or to undertake to resolve the issue of disclosure with the Court in accordance
with the provisions of article 72 where necessary (article 73)
ENFORCEMENT
Enforcement of fines Arts. • require the relevant authorities, after conviction, to identify, trace, and freeze or seize AU - Pt 10, 11
and forfeiture and 75(4) the proceeds, property and assets and instrumentalities of crimes, for the purposes of
reparations orders (pp. 75(5) eventual forfeiture, without prejudice to the rights of bona fide third parties, when FI - s. 9
78-80) requested by the ICC (article 75, paragraph (4) and article 93, paragraph (1), subpara- NZ - Pt 6
93 (1)(k) graph (k))
• ensure that there are laws and/or procedures in place to give effect to any reparations NO - s. 11
109 orders made by the ICC, in accordance with the provisions of article 109 (article 75,
SA - ss. 25-29
paragraph (5))
Rules • ensure that there are laws and/or procedures in place to give effect to penalties that are UK - s. 49
99 imposed by the ICC on a convicted person in the form of fines or forfeiture orders,
217-222 without prejudice to the rights of bona fide third parties, and in accordance with the UK(F) - all
procedure of national law (article 109, paragraph (1)) UK(S) - s. 25
• ensure that there are laws and/or procedures in place to recover the value of any
proceeds, property or assets ordered by the ICC to be forfeited, without prejudice to the
rights of bona fide third parties, where the State is unable to give effect to an order for
forfeiture (article 109, paragraph (2))
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• require the relevant authority to transfer to the ICC any property, or the proceeds of the
sale of real property or, where appropriate, the sale of other property, which is ob-
tained by the State as a result of its enforcement of a judgement of the Court (article
109, paragraph (3))
Enforcement of Arts. [all optional but desirable for the effective functioning of the Court] AU - Pt 12
sentences of imprison- 103 - 108 • determine whether or not to accept persons sentenced by the ICC to a term of
ment [optional but imprisonment (article 103, paragraph (1), subparagraph (a)) CA - ss. 15, 34-40
desirable for the 110 – 111 • determine any conditions that the State may wish to attach to the acceptance of FI - s. 7
effective functioning of sentenced persons, which are to be agreed upon with the Court, and may include
the Court] Rules further prosecution, punishment or extradition to a third State at the conclusion of the NZ - ss. 139-156
198-216 person’s sentence (article 103, paragraph (1), subparagraph (b) and article 108)
NO - s. 10
• require the relevant authority to inform the Court promptly if the State chooses to
223-225 accept a particular designation by the Court (article 103, paragraph (1), subparagraph SA - s. 31
(c))
• require the relevant authority to notify the Court at least 45 days in advance of any SW - Chap. 5
known or foreseeable circumstances, including the exercise of conditions, which could UK - Pt 4
materially affect the terms or extent of the imprisonment, once the State has accepted
the sentenced person, and ensure that the relevant authorities do not take any prejudi- UK(S) - ss. 23, 24
cial action during that 45 day period (article 103, paragraph (2), subparagraph (a))
• assist the Court as far as possible in transferring the person to another State, where
necessary (article 104 and article 107)
• ensure that any sentence imposed by the ICC cannot be modified or reduced by
national authorities, including releasing the person before expiry of the sentence
imposed by the Court, subject to any conditions which the State may have specified
when it accepted the sentenced person (article 105, paragraph (1) and article 110)
• ensure that all communications between the prisoner and the ICC are unimpeded and
confidential and in particular that the person is not impeded from making applications
to the ICC for appeal and revision (article 105, paragraph (2) and article 106, paragraph
(3))
• ensure that the conditions of imprisonment for the sentenced person are consistent
with widely accepted international treaty standards governing treatment of prisoners
and that they are not more or less favourable than those available to prisoners con-
victed of similar offences in the State of enforcement (article 106, paragraph (2))
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MISCELLANEOUS OBLIGATIONS
Protecting the privileges Art. • enable the Court to enjoy in the territory of the State Party such privileges and CA - s. 54
and immunities of ICC 48 immunities as are necessary for the fulfilment of the Court’s purposes (article 48,
personnel paragraph (1)) ES(P) - Art. 415
• recognise and protect the privileges and immunities of the ICC judges, Prosecutor, SA - s. 6
Deputy Prosecutors and Registrar, as set out in article 48, paragraph (2)
• recognise and protect the privileges and immunities necessary for the performance by UK - Sch. 1
the Deputy Registrar, the staff of the Office of the Prosecutor, and the staff of the
Registry, of their respective functions, in accordance with the agreement on the
privileges and immunities of the Court (article 48, paragraph (3)) – see Draft Agree-
ment on the Privileges and Immunities of the International Criminal Court, adopted by the
Preparatory Commission for the ICC, 5 October 2001
• recognise and protect the rights of counsel, experts, witnesses, and any other person
required to be present at the seat of the Court, to be accorded such treatment as is
necessary for the proper functioning of the Court, in accordance with the agreement
on the privileges and immunities of the Court (article 48, paragraph (4)) – see Draft
Agreement on the Privileges and Immunities of the International Criminal Court, adopted
by the Preparatory Commission for the ICC, 5 October 2001
Creating offences Art. • extend existing domestic criminal laws penalizing offences against the integrity of the CA - ss. 16-26
against the administra- 70 State’s own investigative or judicial process to offences against the administration of
tion of justice of the ICC justice of the ICC, where committed on the State Party’s territory or by its nationals FI(A) - ss. 12a,
Rules 162- (article 70, paragraph (4), subparagraph (a)) 19a, 20
172 • ensure that all relevant national authorities have the jurisdiction and authority to NZ - ss. 14-23
investigate and prosecute these offences
217 • provide sufficient resources to enable national prosecutions to be treated diligently NO - s. 12
and conducted effectively (article 70, paragraph (4), subparagraph (b))
SA - s. 36
220-221 • ensure that all relevant authorities can provide full co-operation to the ICC, in
accordance with the domestic laws of the requested State, while the Court is deter-
mining whether to investigate or prosecute one of these offences, or to request the
host State to take jurisdiction over the matter (article 70, paragraph (2) and rule 162)
• ensure that all relevant authorities can provide full co-operation to the ICC, in
accordance with the domestic laws of the requested State, if the Court decides to
investigate and prosecute one of these offences (article 70, paragraph (2) and rule 167)
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• ensure that there are laws and/or procedures in place to require national authorities
to enforce fines and forfeiture orders imposed by the ICC for offences against the
administration of justice of the ICC, without modification by national authorities,
without prejudice to the rights of bona fide third parties and in accordance with the
procedure of national law (article 70, paragraph (3) and article 109, paragraph (2), and
rule 166, paragraph (5), rule 217, rule 220 and rule 221)
• [optional but desirable for the effective functioning of the Court] make provision for
the enforcement of sentences of imprisonment of persons convicted of these offences
by the ICC, in accordance with Part 10, Rome Statute, except articles 104-6, 108 & 110
(see rule 163, paragraph (3))
Provision of certain Arts. • ensure that there is a procedure in place to enable the State that is already investigat- NZ - ss. 110, 114-
information where the 13-15 ing a matter to notify the ICC within one month of receiving notice from the ICC that 120
ICC wishes to 18-19, 56 the Court wishes to investigate the same matter (article 18, paragraph (2)), taking into
investigate the same 93 (1)(j) account the right of a State to request additional information from the Prosecutor
matter as a State Party (rule 52(2))
Rules 52-56 • ensure that there is a procedure in place for the State to request the Prosecutor to
61 defer an investigation in accordance with article 18, paragraph (2) and rule 53
81 • ensure that there is a procedure in place for the State to submit observations to the
112(5)114 Pre-Trial Chamber where the Prosecutor has nevertheless requested the authorisation
of the investigation in accordance with article 18, paragraph (2) (rule 55)
• ensure that there is a procedure in place for responding to any requests for periodic
updates made by the ICC Prosecutor, where the Prosecutor has deferred an investiga-
tion at the request of a State Party (article 18, paragraph (5) and rule 56, paragraph
(2))
• ensure that there is a procedure in place for providing the relevant information on
national proceedings, where the ICC Prosecutor has deferred an investigation with-
out a request from a State Party, but requests the State Party to provide that
information (article 19, paragraph (11)) [nb. this information can be provided on a
confidential basis and may not be subject to disclosure – see rule 81]
• ensure that all relevant evidence in the possession of the State will be preserved and
protected, until it is clear whether the State or the ICC will eventually take charge of
the investigation or prosecution (article 93, paragraph (1), subparagraph (j))
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ISSUE & RPE
• [optional but desirable for the effective functioning of the Court] if possible, provide
that all relevant authorities are in a position to co-operate with the ICC Prosecutor
and any other relevant personnel, if the Prosecutor has been authorised by the Pre-
trial Chamber to pursue necessary investigative steps for the purpose of preserving
evidence, where there is a unique opportunity to obtain important evidence or there
is a significant risk that such evidence may not be subsequently available, in accor-
dance with article 18, paragraph (6), article 19, paragraph (8), and article 56, and rule
57, rule 61, rule 112, paragraph (5), and rule 114
RELATIONSHIP BETWEEN THE ICC AND STATES PARTIES
Entry into force of the Art. 126 • States Parties must ensure that the relevant implementing laws and procedures are in
Rome Statute place by the time the Statute enters into force in accordance with article 126
Signing and ratifying or Arts. • ensure that no reservations are made to the Statute by States Parties (article 120)
acceding to the Statute 112(1) • if possible, ensure that signatory States ratify, accept or approve the Statute as soon as
without any reserva- 120 possible, so that the number of Parties to the Statute reaches 60 as soon as possible,
tions 125 thereby enabling the Court to come into operation (article 125, paragraph (2), and
article 126)
• if possible, ensure that non-signatory States accede to the Statute as soon as possible
Withdrawing from the Art. 127 • ensure that States Parties follow the procedure and observe the relevant obligations
Statute and duties set out in article 127, if they wish to withdraw from the Statute
Settlement of disputes Art. 119 • any disputes concerning the judicial functions of the Court should be referred to the
Court for settlement (article 119, paragraph (1))
• ensure that any disputes between two or more States Parties relating to the
interpretation or application of the Statute are settled in accordance with article 119,
paragraph (2)
Declaration on war Art. 124 • [optional but undesirable] States may declare at the time they become a Party to the
crimes Statute that they do not accept the jurisdiction of the ICC over war crimes committed
by their nationals or on their territory, for a period of 7 years after the entry into force
of the Statute for the State concerned (article 124)
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ISSUE & RPE
Financing of the Court Arts. • provide the Court, in a timely manner, with the required financial contributions,
112(8) which will be assessed in accordance with an agreed scale of assessment, based on the
115 scale adopted by the United Nations for its regular budget and adjusted in accordance
117 with the principles on which that scale is based, and ensure that the State Party does
not fall into arrears equal to or exceeding 2 years’ worth of contributions, or the State
Party will lose its right to vote in the Assembly of States Parties, unless failure to pay
is due to conditions beyond the control of the State Party (article 112, paragraph (8),
article 115, paragraph (a) and article 117)
Allowing the Court to Arts. • [optional but desirable for the effective functioning of the Court] ensure that there are AU - Pt 5
sit in the State’s territory 3(3) laws and procedures in place to allow the ICC to sit in the State’s territory, in accor-
62 dance with the relevant provisions of the Statute and the Rules of Procedure and NZ - Pt 9
Evidence (article 3, paragraph (3) and article 62) SA - ss. 5, 6
Rule
100
Nomination of judges Arts. • [optional but desirable for the effective functioning of the Court] nominate judges and
and provision of other 36 provide other personnel to the Court in accordance with the relevant provisions of the
personnel to the Court 41(2) Statute and ensure the impartiality of all such persons (article 36, article 41, paragraph
42(7) (2), article 42, paragraph (7), article 44, paragraph (4))
44(4)
Rights of States Parties Many • [optional but desirable for the effective functioning of the Court] ensure that there are
appropriate procedures and/or laws in place in order to effectively exercise all the
rights of States Parties provided for under the Statute (eg. article 13, paragraph (a),
article 14, article 15, paragraph (6), article 18, paragraph (1), article 19, paragraph (3),
article 50, paragraph (3), article 52, paragraph (3), article 53, paragraph (3), subpara-
graph (a), article 69, paragraph (3), article 93, paragraph (10), article 96, paragraph (4),
article 112, paragraph (9), article 112, article 113)
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ISSUE & RPE
Looking to the Future Arts. • once the Court is operational, ensure that laws and/or procedures are in place to
5 ensure the efficient functioning of the Court in relation to the Assembly of States
9 Parties (article 112), elements of crimes (article 9), rules of procedure and evidence
48(4) (article 51), review of the Statute (articles 121-123), the Crime of Aggression (article 5),
51 and assistance of defence counsel (articles 48(4), 54, 55, 65(5), 67 & 68(5))
54 - 55
65(5)
67
68(5)
112
121 – 123
Page 177

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International

Manual for the Ratification

Vancouver, March 2003

NOTES ON THE CONTRIBUTORS

Joanne Lee, Research Associate at ICCLR,

Ms. Barbara Bedont, Women’s Caucus for Gender Justice

FOREWORD TO THE SECOND EDITION

3.5 Possible Constitutional Issues Relating to Co-operation with the ICC.........................41

4.6 Responsibility of Commanders and Other Superiors....................................................128

AZ - Criminal Code of the Republic of Azerbaijan, adopted 30 December 1999, entered

AZ(E) - Law of the Republic of Azerbaijan on Extradition of Criminals, adopted 15 May

AZ(L) - Law of the Republic of Azerbaijan on Legal Assistance in Criminal Matters,

DC - Implementation of the Statute of the International Criminal Court (Draft), Democ-

ES(C) - Special Part, Penal Code, Estonia (unofficial translation)

FI(C) - The Penal Code of Finland, No. 39/1889 (unofficial translation)

SW - Federal Law on Cooperation with the International Criminal Court (CICCL) of 22

1.2 Purpose of the Manual

affect the approach taken by States to ratification and implementation. It is recognized

2. GENERAL ISSUES OF IMPLEMENTATION

why it may be necessary to adopt national legislative and procedural measures;

3. SPECIFIC ISSUES OF IMPLEMENTATION

The main obligations to be implemented are described in:

designation of an “appropriate channel” for receiving requests; and

4. COMPLEMENTARITY OF THE JURISDICTION OF THE ICC

5. RELATIONSHIP BETWEEN THE COURT AND STATES

treaty requirements of the Rome Statute;

financing of the Court;

5.2 Developments since Rome

the Assembly of States Parties;

Rules of Procedure and Evidence;

The place of the ICC in the international legal system

How the ICC will function

The personnel of the Court

perience in a professional capacity which is of relevance to the judicial work of the

General principles of criminal law

The Statute provides for individual criminal responsibility, including responsibility as

How a case is brought to trial

The right to a fair trial

Other important features of the Court

1.2 Purpose and Use of Manual

2. GENERAL ISSUES OF IMPLEMENTATION

In general, when drafting legislation to implement the Rome Statute, it is necessary to

Possible approaches to implementation

2.1 Ratification First Versus Implementation First

2.2 Approaches to Implementation

A single piece of legislation

Many States have now implemented comprehensive implementing legislation, which

Amending all relevant pieces of legislation separately

Dissemination of the requirements of the Statute

2.3 Introduction of New Procedures

2.4 Federal Issues

2.5 Compatibility With Different Legal Systems

3. SPECIFIC ISSUES OF IMPLEMENTATION

resources on implementation is included in Chapter 6. These resources are updated regu-

3.1 Privileges and Immunities of ICC Personnel

3.2 Offences Against the Administration of Justice of the ICC

(b) Presenting evidence that the party knows is false or forged;

a) Options for penalising offences