By Benjamin Duerr*
The ICC Dictionary is a guide for everyone interested in the proceedings in The Hague. It contains almost 200 of the most important terms and concepts with short explanations in alphabetical order. Justice Hub is presenting a selection of some of the terms highlighted by the Dictionary.
Challenge to the admissibility of a case
Not every case can be brought before the ICC. An accused or a person who has had an arrest warrant issued against him/her can challenge the admissibility of a case. Also a state which normally would investigate the case can challenge the jurisdiction of the ICC. Details are set out in Article 19 of the Rome Statute.
A closed session, also described by the Latin term “in camera”, refers to hearings that take place without the presence of the public or the media. Closed session behind closed doors are mostly used to protect witnesses or to discuss sensitive or personal issues like the health or financial situation of a person.
Command or superior responsibility is a form to hold military commanders, officials or leaders of other organized groups criminally liable. The commander is not held responsible for acts of his subordinates, but for his own omission to act. He is responsible in cases where he “knew or had reason to know” that his subordinates commit crimes, and where he failed to prevent or punish the crimes. Three elements have to be proved to establish command responsibility:
To hold persons liable under the concept of co-perpetration, the prosecutor must prove that a common plan existed between at least two people. According to the ICC jurisprudence, this plan can be legal – in this case its execution must result in a crime; or the plan can be illegal in itself. An example for a common plan would be the decision of rebel commanders to recruit children under 15, or to take control of a village.
Judges can grant financial compensation to victims of genocide, crimes against humanity or war crimes. Persons that are recognised as victims receive reparations according to the damage, loss or injury that has been caused. The ICC has the possibility to award collective reparations – for instance a certain amount of money for a whole community. Due to the limited amount of funds and the high number of victims, collective reparations are sometimes the only possibility to involve as many victims as possible. The Trust Fund for Victims puts into practice and coordinates the compensation programme. Article 75 of the Rome Statute explains the procedures and rights.
The ICC is a court of last resort and gives primacy to proceedings at the national level – thus, it is seen as complementary to national courts. The ICC only intervenes if the state that would prosecute crimes is unable or unwilling to act. The principle of complementarity can be invoked by states to challenge the admissibility of a case before the ICC.
Confirmation of charges
The Confirmation of charges is a process that takes place before the commencement of every trial. After a person has been transferred or surrendered to the ICC, the Pre-Trial Chamber holds hearings which usually last between two days and a few weeks. At the hearing, the prosecution presents its evidence; the defence has time to respond. After the hearings the judges decide whether there is sufficient evidence to start a trial. They can confirm the charges, can confirm some charges while rejecting others; they can ask for more evidence from the prosecution; or they can reject the charges entirely. The Confirmation of charges process is unique to the ICC and is intended to filter cases that would not meet the high threshold for a trial.
Co-perpetration is a method to hold a person criminally liable and the same concept as Joint Criminal Enterprise at the Yugoslavia tribunal. Co-perpetration describes a person who commits a crime “jointly with another person” (Article 25(3)(a) of the Rome Statute). The prosecutor must prove that
Crimes against humanity
Crimes against humanity is a category of offenses codified in Article 7 of the Rome Statute. The prosecution has to proof two elements: the offenses must be part of a “widespread and systematic” attack on civilians. The following offenses are punishable as crimes against humanity:
Cumulative charging means to charge a person with several different charges for the same particular act. For instance, an accused could be charged with rape as a war crime and rape as a crime against humanity. Cumulative charging is not prohibited at the ICC. However, in the case against Jean-Pierre Bemba, the Pre-Trial Chamber in the Confirmation of Charges decision dismissed the concept by confirming only certain charges. It hold that acts of rape may have been committed. However, the Pre-Trial Chamber dismissed the charge of torture since it was based on the same particular acts of rape. The judges ruled that, as a matter of fairness to the defence, each crime charged must contain an independent element that is not present in the other crime charged.
Benjamin Duerr is a correspondent and foreign reporter covering the International Criminal Court and the war crimes tribunals in The Hague.