I. The International Criminal Court at a glance 4. How many countries have ratified the Rome Statute?

As of June, 2010, 111 countries are States Parties to the Rome Statute. Of these, 30 are from
1. What is the International Criminal Court? Africa, 15 from Asia, 17 from Eastern Europe, 24 from Latin America and the Caribbean
The International Criminal Court (“the ICC” or “the Court”) is a permanent international and 25 from Western European and North America.
court established to investigate, prosecute and try individuals accused of committing the
most serious crimes of concern to the international community as a whole, namely the 5. Where is the seat of the Court?
crime of genocide, crimes against humanity and war crimes. The seat of the Court is in The Hague in the Netherlands. The Rome Statute provides that
the Court may sit elsewhere whenever the judges consider it desirable. The Court has also
2. Why was the ICC established? set up offices in the areas where it is conducting investigations.
Some of the most heinous crimes were committed during the conflicts which marked
the twentieth century. Unfortunately, many of these violations of international law have 6. How is the Court funded?
remained unpunished. The Nuremberg and Tokyo tribunals were established in the wake The Court is funded by contributions from the States Parties and by voluntary contributions
of the Second World War. In 1948, when the Convention on the Prevention and Punishment from Governments, international organisations, individuals, corporations and other
of the Crime of Genocide was adopted, the United Nations General Assembly recognised entities.
the need for a permanent international court to deal with the kinds of atrocities which had
just been perpetrated. 7. How does the ICC differ from other courts?
The ICC is a permanent autonomous court, whereas the ad hoc tribunals for the former
The idea of a system of international criminal justice re-emerged after the end of the Cold Yugoslavia and Rwanda, as well as other similar courts established within the framework
War. However, while negotiations on the ICC Statute were underway at the United Nations, of the United Nations to deal with specific situations only have a limited mandate and
the world was witnessing the commission of heinous crimes in the territory of the former jurisdiction. The ICC, which tries individuals, is also different from the International Court
Yugoslavia and in Rwanda. In response to these atrocities, the United Nations Security of Justice, which is the principal judicial organ of the United Nations for the settlement of
Council established an ad hoc tribunal for each of these situations. disputes between States. The ad hoc tribunal for the former Yugoslavia and the International
Court of Justice also have their seats in The Hague.
These events undoubtedly had a most significant impact on the decision to convene the
conference which established the ICC in Rome in the summer of 1998. 8. Is the ICC an office or agency of the United Nations?
No. The ICC is an independent body whose mission is to try individuals for crimes within
3. What is the Rome Statute? its jurisdiction without the need for a special mandate from the United Nations. On
On 17 July, 1998, a conference of 160 States established the first treaty-based permanent 4 October, 2004, the ICC and the United Nations signed an agreement governing their
international criminal court. The treaty adopted during that conference is known as the institutional relationship.
Rome Statute of the International Criminal Court. Among other things, it sets out the
crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms 9. Is the ICC meant to replace national courts?
for States to co operate with the ICC. The countries which have accepted these rules are No. The ICC does not replace national criminal justice systems; rather, it complements
known as States Parties and are represented in the Assembly of States Parties. them. It can investigate and, where warranted, prosecute and try individuals only if the
State concerned does not, cannot or is unwilling genuinely to do so. This might occur
The Assembly of States Parties, which meets at least once a year, sets the general policies where proceedings are unduly delayed or are intended to shield individuals from their
for the administration of the Court and reviews its activities. During those meetings, the criminal responsibility. This is known as the principle of complementarity, under which
States Parties review the activities of the working groups established by the States and any priority is given to national systems. States retain primary responsibility for trying the
other issues relevant to the ICC, discuss new projects and adopt the ICC’s annual budget. perpetrators of the most serious of crimes.

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Understanding the International Criminal Court
10. Under what conditions does the ICC exercise its jurisdiction? II. Structure of the ICC
When a State becomes a party to the Rome Statute, it agrees to submit itself to the
jurisdiction of the ICC with respect to the crimes enumerated in the Statute. The Court The ICC is composed of four organs: the Presidency, the Chambers, the Office of the
may exercise its jurisdiction in situations where the alleged perpetrator is a national of a Prosecutor and the Registry. Each of these organs has a specific role and mandate.
State Party or where the crime was committed in the territory of a State Party. Also, a State
not party to the Statute may decide to accept the jurisdiction of the ICC. These conditions 14. What does the Presidency do?
do not apply when the Security Council, acting under Chapter VII of the United Nations The Presidency consists of three judges (the President and two Vice-Presidents) elected by
Charter, refers a situation to the Prosecutor. an absolute majority of the 18 judges of the Court for a maximum of two, three-year terms.

11. Is the ICC’s jurisdiction time bound? The Presidency is responsible for the administration of the Court, with the exception of the
The ICC has jurisdiction only with respect to events which occurred after the entry into Office of the Prosecutor. It represents the Court to the outside world and helps with the
force of its Statute on 1 July, 2002. If a State becomes a party to the Statute after its entry into organisation of the work of the judges. The Presidency is also responsible for carrying out
force, the Court may exercise its jurisdiction only with respect to crimes committed after other tasks, such as ensuring the enforcement of sentences imposed by the Court.
the entry into force of the Statute for that State, unless that State has made a declaration
accepting the jurisdiction of the ICC retroactively. However, the Court cannot exercise 15. What do the Chambers do?
jurisdiction with respect to events which occurred before 1 July, 2002. For a new State The 18 judges, including the three judges of the Presidency, are assigned to the Court’s
Party, the Statute enters into force on the first day of the month after the 60th day following three judicial divisions: the Pre-Trial Division (composed of seven judges), the Trial
the date of the deposit of its instrument of ratification, acceptance, approval or accession. Division, (composed of six judges), and the Appeals Division (composed of five judges).
They are assigned to the following Chambers: the Pre-Trial Chambers (each composed of
12. Who can be prosecuted before the ICC? one or three judges), the Trial Chambers (each composed of three judges) and the Appeals
The ICC prosecutes individuals, not groups or States. Any individual who is alleged to Chamber (composed of the five judges of the Appeals Division).
have committed crimes within the jurisdiction of the ICC may be brought before the ICC.
In fact, the Prosecutor’s prosecutorial policy is to focus on those who, having regard to the 16. How are the judges elected?
evidence gathered, bear the greatest responsibility for the crimes, and does not take into The judges are elected by the Assembly of States Parties on the basis of their established
account any official position that may be held by the alleged perpetrators. competence in criminal law and procedure and in relevant areas of international law such
as international humanitarian law and the law of human rights. They have extensive
13. If those who bear the greatest responsibility hold high political or military expertise on specific issues, such as violence against women or children.
office, are they not exempt from prosecution? Can they not be granted immunity
or amnesty?
The election of the judges takes into account the need for the representation of the
No one is exempt from prosecution because of his or her current functions or because of the
principal legal systems of the world, a fair representation of men and women, and equitable
position he or she held at the time the crimes concerned were committed. (…)
geographical distribution.

Acting as a Head of State or Government, minister or parliamentarian does not exempt

The judges are persons of high moral character, impartiality and integrity who possess the
anyone from criminal responsibility before the ICC.
qualifications required in their respective States for appointment to the highest judicial
offices. All have extensive experience relevant to the Court’s judicial activity.
In some circumstances, a person in a position of authority may even be held responsible for
crimes committed by those acting under his or her command or orders.
The judges ensure the fairness of proceedings and the proper administration of justice.

Likewise, amnesty cannot be used as a defence before the ICC. As such, it cannot bar the
17. What is the role of the Pre-Trial Chambers?
Court from exercising its jurisdiction.
The Pre-Trial Chambers, each of which is composed of either one or three judges, resolve all

Understanding the International Criminal Court 5 Understanding the International Criminal Court 7
issues which arise before the trial phase begins. Their role is essentially to supervise how In order to fulfil its mandate, the Office of the Prosecutor is composed of three divisions: (i)
the Prosecutor carries out his or her investigatory and prosecutorial activities, to guarantee the Investigation Division, which is responsible for the conduct of investigations (including
the rights of suspects, victims and witnesses during the investigatory phase, and to ensure gathering and examining evidence, questioning persons under investigation as well
the integrity of the proceedings. The Pre-Trial Chambers then decide whether or not to as victims and witnesses). In this respect, for the purpose of establishing the truth, the
issue warrants of arrest or summons to appear at the Prosecutor’s request and whether or Statute requires the Office of the Prosecutor to investigate incriminating and exonerating
not to confirm the charges against a person suspected of a crime. They may also decide on circumstances equally. (ii) The Prosecution Division, which has a role in the investigative
the admissibility of situations and cases and on the participation of victims at the pre-trial process, but whose principal responsibility is the litigation of cases before the various
stage. Chambers of the Court. (iii) The Jurisdiction, Complementarity and Cooperation Division,
which, with the support of the Investigation Division, assesses information received
18. What is the role of the Trial Chambers? and situations referred to the Court, analyses situations and cases to determine their
Once an arrest warrant is issued, the alleged perpetrator arrested and the charges admissibility and helps secure the cooperation required by the Office of the Prosecutor in
confirmed by a Pre-Trial Chamber, the Presidency constitutes a Trial Chamber composed order to fulfil its mandate.
of three judges to try the case.
21. What does the Registry do?
A Trial Chamber’s primary function is to ensure that trials are fair and expeditious and are The Registry helps the Court to conduct fair, impartial and public trials. The core function
conducted with full respect for the rights of the accused and due regard for the protection of of the Registry is to provide administrative and operational support to the Chambers and
the victims and the witnesses. It also rules on the participation of victims at the trial stage. the Office of the Prosecutor. It also supports the Registrar’s activities in relation to defence,
victims, communication and security matters. It ensures that the Court is properly serviced
The Trial Chamber determines whether an accused is innocent or guilty of the charges and develops effective mechanisms for assisting victims, witnesses and the defence in order
and, if he or she is found guilty, may impose a sentence of imprisonment for a specified to safeguard their rights under the Rome Statute and the Rules of Procedure and Evidence.
number of years not exceeding a maximum of thirty years or life imprisonment. Financial
penalties may also be imposed. A Trial Chamber may thus order a convicted person to As the Court’s official channel of communication, the Registry also has primary
make reparations for the harm suffered by the victims, including compensation, restitution responsibility for the ICC’s public information and outreach activities.
or rehabilitation.

19. What are the main functions of the Appeals Chamber?

The Appeals Chamber is composed of the President of the Court and four other judges. All
parties to the trial may appeal or seek leave to appeal decisions of the Pre-Trial and Trial
Chambers. The Appeals Chamber may uphold, reverse or amend the decision appealed
from, including judgments and sentencing decisions, and may even order a new trial before
a different Trial Chamber.

It may also revise a final judgment of conviction or sentence.

20. What does the Office of the Prosecutor do?

The Office of the Prosecutor is an independent organ of the Court. Its mandate is to receive
and analyse information on situations or alleged crimes within the jurisdiction of the ICC,
to analyse situations referred to it in order to determine whether there is a reasonable
basis to initiate an investigation into a crime of genocide, crimes against humanity or war
crimes, and to bring the perpetrators of these crimes before the Court.

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Understanding the International Criminal Court
III. Crimes within the jurisdiction of the ICC 25. What are war crimes?
“War crimes” include grave breaches of the Geneva Conventions and other serious
22. Which crimes fall within the jurisdiction of the ICC? violations of the laws and customs applicable in international armed conflict and in conflicts
The mandate of the Court is to try individuals rather than States, and to hold such persons “not of an international character” listed in the Rome Statute, when they are committed as
accountable for the most serious crimes of concern to the international community as a part of a plan or policy or on a large scale. These prohibited acts include:
whole, namely the crime of genocide, war crimes, crimes against humanity, and, eventually, • murder;
the crime of aggression. • mutilation, cruel treatment and torture;
• taking of hostages;
23. What is genocide? • intentionally directing attacks against the civilian population;
According to the Rome Statute, “genocide” means any of the following acts committed • intentionally directing attacks against buildings dedicated to religion, education, art,
with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group: science or charitable purposes, historical monuments or hospitals;
• killing members of the group; • pillaging;
• causing serious bodily or mental harm to members of the group; • rape, sexual slavery, forced pregnancy or any other form of sexual violence;
• deliberately inflicting on the group conditions of life calculated to bring about its • conscripting or enlisting children under the age of 15 years into armed forces or
physical destruction in whole or in part; groups or using them to participate actively in hostilities. (…)
• imposing measures intended to prevent births within the group;
• forcibly transferring children of the group to another group. 26. What about the crime of aggression?
The “crime of aggression” is one of the crimes within the jurisdiction of the ICC under the
24. What are crimes against humanity? Rome Statute, although the States Parties must still adopt a provision defining the crime
“Crimes against humanity” include any of the following acts committed as part of a and setting out the conditions under which the Court shall exercise its jurisdiction with
widespread or systematic attack directed against any civilian population, with knowledge respect thereto.
of the attack:
• murder;
• extermination;
• enslavement;
• deportation or forcible transfer of population;
• imprisonment;
• torture;
• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form of sexual violence of comparable gravity;
• persecution against an identifiable group on political, racial, national, ethnic, cultural,
religious or gender grounds;
• enforced disappearance of persons;
• the crime of apartheid;
• other inhumane acts of a similar character intentionally causing great suffering or
serious bodily or mental injury.

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Understanding the International Criminal Court
IV. How does the ICC operate? States Parties and other States which may have jurisdiction of his intention to initiate an
investigation.
A. Referrals, analyses and investigations
31. There are allegations that ICC is only targeting African countries. Is that
true?
27. How do cases come before the Court?
No. The International Criminal Court is an independent judicial institution that it is not
Any State Party to the Rome Statute can request the Prosecutor to carry out an investigation.
subject to political control. As an independent court its decisions are based on legal criteria
A State not party to the Statute can also accept the jurisdiction of the ICC with respect to
and rendered by impartial judges in accordance with the provisions of its founding treaty,
crimes committed in its territory or by one of its nationals, and request the Prosecutor to
the Rome Statute and other legal texts governing the work of the Court.
carry out an investigation. The United Nations Security Council may also refer a situation
to the Court.
The ICC is concerned with countries that have accepted the Court’s jurisdiction and
these are in all continents, including Africa. Three of the five situations currently under
28. Can the Prosecutor decide on his own to initiate an investigation?
investigation were referred by African states themselves. Between 2003 and 2005 the
Yes, if the Office of the Prosecutor receives reliable information about crimes involving
Democratic Republic of the Congo, Uganda, and the Central African Republic referred
nationals of a State Party or of a State which has accepted the jurisdiction of the ICC,
situations on their own territory to the ICC. The fourth situation, Darfur, was referred by
or about crimes committed in the territory of such a State, and concludes that there is a
the United Nations Security Council by resolution under Chapter VII of the UN Charter, as
reasonable basis to proceed with an investigation. Such information can be provided by
provided for by article 13 of the Rome Statute.
individuals, intergovernmental or non-governmental organisations, or any other reliable
sources. The Prosecutor must, however, obtain the permission of the judges of the Pre-Trial
African countries made great contributions to the establishment of the Court and influenced
Chamber before initiating an investigation under such circumstances. On 26 November,
the decision to have an independent Office of the Prosecutor. In 1997, the Southern African
2009, the Prosecution sought authorisation to open an investigation with regard to the
Development Community (SADC) was very active in supporting the proposed Court
post–election violence in Kenya. Pre-Chamber II granted the Prosecutor’s request on 31
and its declaration on the matter was endorsed in February 1998, by the participants
March, 2010.
of the African Conference meeting in Dakar, Senegal, through the ‘Declaration on the
29. Has any State or the Security Council requested that the Prosecutor carry out Establishment of the International Criminal Court’. At the Rome Conference itself the most
an investigation? meaningful declarations about the Court were made by Africans. Without African support
To date, four situations have been referred to the Prosecutor. Three States Parties have the Rome Statute might never have been adopted. In fact 43 African countries are currently
requested the Prosecutor to conduct an investigation: the Democratic Republic of the signatories of the Rome Statute, of which 30 are parties to the Statute, making Africa the
Congo, Uganda, and the Central African Republic. The Security Council, acting under most heavily represented region in the Court’s membership. The trust and support comes
Chapter VII of the United Nations Charter, has also requested the Prosecutor to investigate not only from the governments, but also from civil society organisations.
the situation in Darfur, Sudan. The Republic of Côte d’Ivoire and Palestine declared
accepting the jurisdiction of the Court. The Court has also benefited from the professional experience of Africans. Five of the
Court’s current judges are African: Ms Fatoumata Dembele Diarra (Mali), Ms Akua
30. What happens when a situation is referred to the ICC for investigation? Kuenyehia (Ghana), Mr Daniel David Ntanda Nsereko (Uganda), Ms Joyce Aluoch (Kenya),
The Prosecutor determines whether, in his opinion, the Court has jurisdiction with and Ms Sanji Mmasenono Monageng (Botswana). One former judge, Ms Navanethem
respect to the alleged crimes. Following a thorough analysis of the available information, Pillay (South Africa), is now the UN High Commissioner for Human Rights.
he decides whether there is a reasonable basis to proceed with an investigation. Thus, he
must establish whether the crime of genocide, crimes against humanity or war crimes A number of Africans occupy high positions at the Court, including the Deputy Prosecutor
may have been committed and, if so, whether they were committed after 1 July, 2002. The Fatou Bensouda (The Gambia) and Deputy Registrar Didier Preira (Senegal).
Prosecutor must also ascertain whether any national authorities are conducting a genuine
investigation or trial of the alleged perpetrators of the crimes. Lastly, he must notify the Lastly, situations in six countries on four continents are under analysis by the Office of the

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Understanding the International Criminal Court
Prosecutor: Afghanistan, Colombia, Côte d’Ivoire, Georgia, Guinea and Palestine. crimes of concern to the international community. The prosecutorial policy of the Office of
the Prosecutor is to focus its investigations and prosecutions on those who, having regard
32. What implications does the issuing of the arrest warrant against Omar Al to the evidence gathered, bear the greatest responsibility for such crimes.
Bashir, a sitting head of state, mean for the already fragile peace process in
Sudan? 36. Can other courts try the perpetrators that the ICC does not prosecute?
The Court is aware of developments in the peace process, but is not a party to that Under the principle of complementarity, national judicial systems retain their responsibility
process. The ICC is a judicial institution with a judicial mandate. Peace and justice are not for trying perpetrators of crimes.
antithetical.
37. Can the ICC try children?
In fact, the situation in Darfur was referred to the Court by resolution 1593 adopted by The Court has no jurisdiction with respect to any person who was under the age of 18 when
the United Nations Security Council under Chapter VII of the UN Charter. The preamble the crimes concerned were committed.
of the resolution states “that the situation in Sudan continues to constitute a threat to
international peace and security.” By adopting this determination the Security Council
re-affirmed not only that justice and peace are compatible, but that justice is an important
factor in restoring peace and security.

It is necessary to make a distinction between a political process and a judicial one. The
ICC does not have a humanitarian mandate and has no jurisdiction with respect to peace
negotiations. Its role in helping to bring peace into Darfur shall be done by holding fair
judicial proceedings.

33. How is an investigation conducted?

The Office of the Prosecutor sends its investigators to collect evidence in areas where
crimes are alleged to have been committed. The investigators must be careful not to create
any risk to the victims and witnesses. The Office of the Prosecutor also requests the co
operation and assistance of States and international organisations. The investigators look
for evidence of a suspect’s guilt or innocence.

34. How many investigations are ongoing and where?

The Office of the Prosecutor is currently conducting investigations in five States: Sudan
(for the situation in Darfur), the Democratic Republic of the Congo, Uganda, the Central
African Republic and Kenya.

In addition, the Office of the Prosecutor is currently analysing a number of other situations,
including the situations in Afghanistan, Colombia, Côte d’Ivoire, Georgia, Guinea and
Palestine.

35. Will the ICC prosecute all persons suspected of committing the most serious
crimes?
No. The Court will not be able to bring to justice every person suspected of committing

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Understanding the International Criminal Court
B. Arrests Court’s orders.

38. Who has the power to issue a warrant of arrest or a summons to appear? States Parties to the Rome Statute have a legal obligation to co-operate fully with the ICC.
After the initiation of an investigation, only a Pre-Trial Chamber may, at the request of the When a State Party fails to comply with a request to co-operate, the Court may make a
Prosecutor, issue a warrant of arrest or summons to appear if there are reasonable grounds finding to that effect and refer the matter for further action to the Assembly of States Parties.
to believe that the person concerned has committed a crime within the jurisdiction of the
ICC. When the Court’s jurisdiction is triggered by the Security Council, the duty to co-operate
extends to all UN Member States, regardless of whether or not they are a Party to the
39. What information do the judges need from the Prosecutor before they can Statute. The crimes within the jurisdiction of the Court are the gravest crimes known to
issue a warrant of arrest or a summons to appear? humanity and as provided for by article 29 of the Statute they shall not be subject to any
When the Prosecutor requests the issuance of a warrant of arrest or summons to appear, he statute of limitations. Warrants of arrest are lifetime orders and therefore individuals still
must provide the judges with the following information: at large will sooner or later face the Court.
• the name of the person;
• a description of the crimes the person is believed to have committed; 44. What happens after a person is arrested?
• a concise summary of the facts (the acts alleged to be crimes); An arrested person is brought promptly before the competent judicial authority in the
• a summary of the evidence against the person; custodial State, which determines whether the warrant is indeed for the arrested person,
• the reasons why the Prosecutor believes that it is necessary to arrest the person. whether the person was arrested consistently with due process and whether the person’s
rights have been respected. Once an order for surrender is issued, the person is delivered to
40. What reasons may justify the issuing of a warrant of arrest? the Court, and held at the Detention Centre in The Hague, The Netherlands.
The judges will issue a warrant of arrest if it appears necessary to ensure that the person
will actually appear at trial, that he or she will not obstruct or endanger the investigation 45. What are the conditions of detention at the Detention Centre in The Hague?
or the Court’s proceedings, or to prevent the person from continuing to commit crimes. The ICC Detention Centre operates in conformity with the highest international human
rights standards for the treatment of detainees, such as the United Nations Standard
41. What happens after a warrant of arrest is issued? Minimum Rules. (…) An independent inspecting authority conducts regular and
The Registrar transmits requests for co-operation seeking the arrest and surrender of the unannounced inspections of the Centre in order to examine how detainees are being held
suspect to the relevant State or to other States, depending on the decision of the judges in and treated.
each case.
At the ICC Detention Centre, the daily schedule affords the detainees the opportunity
Once the person is arrested and the Court is so informed, the Court ensures that the person to take walks in the courtyard, to exercise, receive medical care, to take part in manual
receives a copy of the warrant of arrest in a language which he or she fully understands activities and to have access to the facilities at their disposal for the preparation of their
and speaks. defence. Additionally, the centre has multimedia facilities and offers a series of training,
leisure and sports programmes. (…) ICC detainees also have access to computers, TV,
42. Does the ICC have the power to arrest suspects? books and magazines. Those who are indigent have the right to call their Defence Counsel
The Court does not have its own police force. Accordingly, it relies on State co-operation, free of charge during official working hours. Each 10m2 cell is designed to hold one person
which is essential to the arrest and surrender of suspects. only. A standard cell contains a bed, desk, shelving, a cupboard, toilet, hand basin, TV and
an intercom system to contact the guards when the cell is locked.
43. Who has to execute the warrants of arrest?
The responsibility to enforce warrants of arrest in all cases remains with States. In The Court provides three meals per day, but the detainees also have access to a communal
establishing the ICC, the States set up a system based on two pillars. The Court itself is kitchen if they wish to cook. A shopping list is also available to detainees so that they can
the judicial pillar. The operational pillar belongs to States, including the enforcement of procure additional items, to the extent possible.

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Understanding the International Criminal Court
All detainees may be visited by their families several times a year and, in the case of C. The rights of suspects
detainees declared indigent, at the Court’s expense, to the extent possible.
46. Are detainees deemed to have been convicted by virtue of their transfer to
Persons convicted of crimes under the jurisdiction of the ICC do not serve their sentence the Court?
at the ICC Detention Centre in The Hague as the facility is not designed for long-term No. Everyone is presumed innocent until proven guilty before the Court. The Prosecutor
imprisonment. Convicted persons are therefore transferred (…) to a prison outside The must prove the guilt of the suspect and a Trial Chamber will convict someone only if it is
Netherlands, in a State designated by the Court from a list of States which have indicated satisfied that the charges have been proven beyond reasonable doubt.
their willingness to allow convicted persons to serve their sentence there.
47. What rights do suspects have?
Suspects are presumed innocent. They are present in the courtroom during the trial, and
they have a right to a public, fair and impartial hearing of their case. To this end, a series
of guarantees are set out in the Court’s legal documents, including the following rights, to
mention but a few:
• to be defended by the counsel (lawyer) of their choice, present evidence and witnesses
of their own and to use a language which they fully understand and speak;
• to be informed in detail of the charges in a language which they fully understand and
speak;
• to have adequate time and facilities for the preparation of the defence and to
communicate freely and in confidence with counsel;
• to be tried without undue delay;
• not to be compelled to testify or to confess guilt and to remain silent, without such
silence being a consideration in the determination of guilt or innocence;
• to have the Prosecutor disclose to the defence evidence in his possession or control
which he believes shows or tends to show the innocence of the accused, or to mitigate
the guilt of the accused, or which may affect the credibility of prosecution evidence.

48. What happens if a suspect does not have the means to pay for legal assistance?
Suspects have the right to legal assistance in any case where the interests of justice so
require and, if the suspect does not have the means to pay for it, to legal assistance assigned
by the Court.

49. Can detainees obtain interim release pending trial?

All detainees are entitled to apply for interim release pending trial. In the event of rejection,
the decision is periodically reviewed by the competent chamber, at least every 120 days,
and may be reviewed at any time at the request of the detained person or the Prosecutor.

Understanding the International Criminal Court 23 Understanding the International Criminal Court 25
50. What is the role of the Office of Public Counsel for the Defence (OPCD)? D. Confirmation of charges before trial
The OPCD promotes, represents and researches the rights of the defence, raises the profile
of substantive defence issues, and endeavours to achieve equality of arms for the defence at 51. Do suspects appear before the Court as soon as they arrive in The Hague?
all stages of an investigation and trial. Yes. Within a reasonable time after the suspect’s surrender or voluntary appearance before
the Court, a Pre-Trial Chamber holds a hearing to confirm the charges, the date of which
The Office is independent in terms of its substantive functions, but falls within the remit of is set at the suspect’s first appearance hearing, which takes place immediately after his or
the Registry solely for administrative purposes. her arrival in The Hague.

The confirmation hearing is held in the presence of the Prosecutor, the person being
prosecuted, and his or her counsel. As provided by article 61 of the Statute, the suspect can
waive his or her right to be present at this hearing.

At the hearing - which is not a trial - the Prosecutor must present to the judges sufficient
evidence to satisfy them that there are substantial grounds to believe that the person has
committed the crimes for which he or she stands accused. The person may object to the
charges, challenge the Prosecutor’s evidence and also present evidence.

52. What decisions can a Pre-Trial Chamber issue following a confirmation

hearing?
Following a confirmation hearing, a Pre-Trial Chamber may:
• decline to confirm the charges; such a decision does not prevent the Prosecutor from
presenting a subsequent request for confirmation of the charges on the basis of
additional evidence;
• adjourn the hearing and request the Prosecutor to consider providing further evidence
or conducting further investigation, or amending the charges because the available
evidence shows that a different crime was committed;
• confirm the charges and commit the case for trial; upon confirmation, the Presidency
of the Court constitutes a Trial Chamber responsible for the subsequent phase of the
proceedings: the trial.

53. Does the confirmation of charges prejudge the suspect’s guilt?

No. The purpose of the confirmation hearing is to safeguard the rights of suspects by
preventing proceedings with insufficient legal basis from being brought against them.
In the pre-trial phase, the Prosecutor must support each of the charges with sufficient
evidence to establish substantial grounds to believe that the person committed the crimes
charged.

54. What happens after the confirmation of charges?

After the confirmation of charges, the Pre-Trial Chamber commits the case for trial before
a trial chamber, which will conduct the subsequent phase of the proceedings: the trial.

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Understanding the International Criminal Court
Before the commencement of the trial, the judges of the Trial Chamber consider procedural E. The trial
issues that may be submitted to them by the parties and hold hearings to prepare for trial
and to resolve procedural matters in order to facilitate the fair and expeditious conduct of 55. Where does the trial take place?
the proceedings. Unless otherwise decided, the trial takes place at the seat of the Court in The Hague. The
accused must be present at his or her trial, which is held in public, unless the Chamber
determines that certain proceedings be conducted in closed session in order to protect the
safety of victims and witnesses or the confidentiality of sensitive evidentiary material.

56. What happens at the commencement of the trial?

At the commencement of the trial, the Trial Chamber causes the charges against the
accused to be read out to him or her and asks whether he or she understands them. The
Chamber then asks the accused to make an admission of guilt or to plead not guilty.

57. What happens if the accused makes an admission of guilt?

First, the Trial Chamber ensures that the accused understands the nature and consequences
of the admission of guilt, that the admission is voluntarily made by the accused after
sufficient consultation with his or her lawyer and that the admission of guilt is supported
by the facts of the case that are contained in the evidence and charges brought by the
Prosecutor and admitted by the accused. Where the Trial Chamber is satisfied that these
conditions have been met, it may convict the accused of the crime charged. If it is not
satisfied that the conditions have been met, the Chamber shall consider the admission of
guilt as not having been made, in which case it shall order that the trial be continued.

58. How is the trial conducted?

At trial, the Prosecutor and Counsel for the Defence have the opportunity to present their
case. The Prosecutor must present evidence to the Court to prove that the accused person is
guilty beyond all reasonable doubt. This evidence may be in the form of documents, other
tangible objects, or witness statements. The Prosecutor must also disclose to the accused
any evidence which may show that he or she is innocent.

The Prosecutor presents his case first and calls his witnesses to testify. When the Prosecutor
has finished examining each witness, the Counsel for the Defence is given the opportunity
to also examine the witness.

Once the Prosecutor has presented all his evidence, it is the turn of the accused, with the
assistance of his or her counsel, to present his or her defence.

59. Who can present evidence?

All parties to the trial may present evidence relevant to the case. Everyone is presumed
innocent until proven guilty according to law. The Prosecutor has the burden of proving
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that the accused is guilty beyond all reasonable doubt. The accused has the right to examine F. Judgment and sentence
the prosecution witnesses, and to call and examine witnesses on his or her own behalf
under the same conditions as prosecution witnesses. Once the parties have presented their evidence, the Prosecutor and the Defence are invited
to make their closing statements. The Defence always has the opportunity to speak last.
When the personal interests of victims are affected, the Court allows their views and The judges may order reparations to victims, including restitution, compensation and
concerns to be presented and considered at stages of the proceedings determined to be rehabilitation. To this end, they may make an order directly against a convicted person (…)
appropriate by the Court and in a manner which is not prejudicial to or inconsistent with
the rights of the accused and a fair and impartial trial. Their views and concerns may be 60. When is the sentence pronounced by the Court?
presented by their legal representatives. After hearing the victims and the witnesses called to testify by the Prosecutor and the
Defence and considering the evidence, the judges decide whether the accused person is
In a judgment rendered on 11 July, 2008, the Appeals Chamber granted victims the right guilty or not guilty.
to lead evidence pertaining to the guilt or innocence of the accused and to challenge the
admissibility or relevance of evidence, although this right lies primarily with the parties, The sentence is pronounced in public and, wherever possible, in the presence of the accused,
namely the Prosecutor and the Defence. This right is subject to stringent conditions, and victims or their legal representatives, if they have taken part in the proceedings.
namely proving that the victims have a personal interest in doing so, and to the request’s
consistency with the rights of the defence and the requirements of a fair trial. Victims must 61. What penalties may be imposed by the Court?
also comply with disclosure obligations, notify the request to the parties, and comply with The judges may impose a prison sentence, to which may be added a fine or forfeiture of the
the Court’s orders on the protection of certain persons. Lastly, the appropriateness of the proceeds, property and assets derived directly or indirectly from the crime committed. The
victims’ request is subject to the judges’ assessment. Court cannot impose a death sentence. The maximum sentence is 30 years. However, in
extreme cases, the Court may impose a term of life imprisonment.

62. Where are the sentences served?

Convicted persons serve their prison sentences in a State designated by the Court from
a list of States which have indicated to the Court their willingness to accept convicted
persons.

The conditions of imprisonment are governed by the laws of the State of enforcement and
must be consistent with widely accepted international treaty standards governing the
treatment of prisoners. Such conditions may not be more or less favourable than those
available to prisoners convicted of similar offences in the State of enforcement.

G. Appeals and revision

63. When may a decision be appealed?

Any party may appeal the decisions of a Pre-Trial or Trial Chamber. The Prosecutor may
appeal against a conviction or acquittal on any of the following grounds: procedural error,
error of fact or error of law.

The convicted person or the Prosecutor may also appeal on any other ground that affects
the fairness or reliability of the proceedings or the decision, in particular on the ground of
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disproportion between the sentence and the crime. V. Victims and witnesses
The legal representatives of the victims, the convicted person, or a bona fide owner of 67. Who is considered a victim before the ICC?
property adversely affected by an order for reparations to the victims may also appeal Victims are individuals who have suffered harm as a result of the commission of any crime
against such an order. within the jurisdiction of the ICC. Victims may also include organisations or institutions
that have sustained harm to any of their property which is dedicated to religion, education,
The Appeals Chamber may reverse or amend the decision or conviction or order a new trial art, science or charitable purposes.
before a different Trial Chamber.
The judges of the ICC determine the types of harm to be taken into account, such as bodily
64. Does the convicted person remain in custody pending an appeal? harm, psychological harm, that is, where a person’s mind has been affected by what he or
Unless otherwise ordered by the Trial Chamber, a convicted person remains in custody she has experienced or witnessed, or material harm, which consists of loss of or damage to
pending an appeal. However, in general, when a convicted person’s time in custody exceeds goods or property.
the sentence of imprisonment imposed, the person is released. In addition, in the case of an
acquittal, the accused is released immediately unless there are exceptional circumstances. 68. What is the difference between a victim and a witness?
A victim is a person who has suffered harm as a result of the commission of a crime within
65. When can a decision be revised? the jurisdiction of the ICC. A witness is a person who testifies before the Court.
The convicted person or the Prosecutor may apply to the Appeals Chamber to revise a final
judgment of conviction or sentence where: Victims may be witnesses (but have no obligation to testify) and witnesses may also be
• new and important evidence has been discovered; victims.
• it has been newly discovered that decisive evidence, taken into account at trial and
upon which the conviction depends, was false, forged or falsified; 69. What are the rights of victims before the ICC?
• one or more of the judges has committed an act of serious misconduct or serious Victims before the ICC have rights that have never before been granted before an
breach of duty of sufficient gravity to justify the removal of that judge or those judges international criminal court. Victims may be involved in the proceedings before the ICC
from office under the Rome Statute. in various ways:
• victims can send information to the Prosecutor and ask him to initiate an investigation;
66. What happens if someone has been the victim of unlawful arrest or detention? • at a trial, a victim may voluntarily testify before the Court, if called as a witness for the
Anyone who has been the victim of unlawful arrest or detention has an enforceable right Defence or the Prosecution or other victims participating in the proceedings;
to compensation. The Court can award compensation if a grave and manifest miscarriage • victims are also entitled to participate in proceedings; during proceedings, victims
of justice is conclusively shown. may participate by presenting their views and concerns to the judges; such participation
is voluntary and enables victims to express an opinion independently of the Prosecutor
or the Defence and offers them the opportunity to present their own concerns and
interests;
• victims participating in proceedings may also, in some circumstances, lead evidence
pertaining to the guilt or innocence of the accused; they may also challenge the
admissibility or the relevance of evidence presented by the parties;
• lastly, victims can seek reparation for the harm that they have suffered.

70. How can victims participate in the proceedings?

If the Court considers it appropriate, victims may present their point of view directly to the
judges at various stages in the proceedings. Such participation is generally through a legal
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representative (that is, a lawyer) who presents their views and concerns to the Court, since 73. Do victims have to travel to the seat of the Court in The Hague?
criminal proceedings are quite complex. Generally, victims do not have to travel to the seat of the Court if they do not wish to do so.
Their legal representatives present their views and concerns to the Court.
To make it easy for victims to participate, they are required to fill out an application for
participation form. Victims may obtain a copy of the application for participation forms 74. What happens if the victims cannot afford a legal representative?
from the Court’s website or from the Victims Participation and Reparations Section in The Although the Court has limited resources for legal assistance, it may be able to provide
Hague. The forms must be returned to the Victims Participation and Reparations Section some financial assistance. The Office of Public Counsel for Victims can also provide legal
in The Hague by fax, email or post, using the information provided below. assistance to victims without charge.

Victims who wish to be assisted in filling out the form and sending it to the Court may 75. What is the role of the Office of Public Counsel for Victims?
contact that same section. The Office of Public Counsel for Victims provides legal support and assistance to victims
and their legal representatives at all stages of the proceedings, thus ensuring their effective
The Victims Participation and Reparations Section at The Hague may be contacted at: participation and the protection of their rights.

International Criminal Court The OPCV falls within the remit of the Registry solely for administrative purposes, but
Victims Participation and Reparations Section operates as a wholly independent office.
P.O. Box 19519
2500 CM, The Hague 76. Does the Court protect all victims participating in proceedings?
The Netherlands The Victims and Witnesses Unit within the Registry may advise the Prosecutor and the
Fax: +31 (0) 70 515 9100 Court on appropriate protective measures and security arrangements for witnesses, victims
Email: vprsapplications@icc-cpi.int who appear before the Court and others who are at risk on account of testimony given by
witnesses. The Victims and Witnesses Unit implements protective and security measures
71. Can all victims in a situation participate in the proceedings? and arrangements for the above-mentioned persons.
The judges review applications on a case-by-case basis and decide whether or not the
applicant is entitled to participate in proceedings before the ICC and at what stages. In the course of their field work, all of the Court’s organs must adhere to good practices in
order to ensure their security and that of individuals who interact with them. Protective
72. How can victims find a legal representative? measures may, for example, include anonymity for victims participating in proceedings,
Victims may freely choose their legal representative as long as the representative has the the use of pseudonyms, the redaction of documents or the prohibition of disclosure thereof
necessary qualifications: he or she must possess ten years’ experience as judge, prosecutor and the use of audiovisual techniques which can disguise the identity of persons appearing
or lawyer in criminal proceedings and fluency in at least one of the working languages of before the Court.
the Court (English or French). The ICC Registry helps victims to find a legal representative
by providing a list of qualified lawyers. At the Court, there is also an Office of Public The Court also ensures that all these persons are provided with adequate protective and
Counsel for Victims (OPCV) which can represent victims and provide them and their legal security measures through long and short-term protection programmes.
representative with legal assistance.
77. What decisions may the judges take concerning reparations for victims at the
If there are a large number of victims, the judges may ask them to choose one or more end of a trial?
common legal representatives. This is called common legal representation, and its purpose At the end of a trial, the Trial Chamber may order a convicted person to pay compensation
is to ensure the effectiveness of the proceedings. to the victims of the crimes of which the person was found guilty. Reparations may include
monetary compensation, return of property, rehabilitation or symbolic measures such as
apologies or memorials.

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The Court may award reparations on an individual or collective basis, whichever is, in its 81. What criteria does the Office of the Prosecutor use to select witnesses?
opinion, the most appropriate for the victims in the particular case. (…) An advantage The Office of the Prosecutor selects witnesses based on the relevance of their testimony,
of collective reparations is that they provide relief to an entire community and help its their reliability and their credibility.
members to rebuild their lives, such as the building of victim services centres or the taking
of symbolic measures. Furthermore, States Parties to the Rome Statute have established a 82. How are witnesses protected?
Trust Fund for Victims of crimes within the jurisdiction of the ICC and for their families In order to ensure the safety of witnesses who come to testify before the Court, the
in order to raise the funds necessary to comply with an order for reparations made by the Court provides administrative and logistical support and ensures that the experience of
Court if the convicted person does not have sufficient resources to do so. testifying does not result in further harm, suffering or trauma for the witnesses. Protection
is not limited to physical protection of witnesses, but extends to the protection of their
78. What is the role of the Trust Fund for Victims? psychological well-being, dignity and privacy, inasmuch as it is not prejudicial to or
The Rome Statute created two independent institutions: the International Criminal Court inconsistent with the right of the accused to a fair trial.
and the Trust Fund for Victims.
For example, the Court may, on an exceptional basis, choose not to reveal their identity
While it is impossible to fully undo the harm caused by genocide, war crimes, and crimes to the press and public by holding part of the proceedings in closed session or by using
against humanity, it is possible to help survivors, in particular, the most vulnerable among electronic or other special means to conceal the evidence in the courtroom. Special
them, rebuild their lives and regain their dignity and status as fully-functioning members attention is given to the particular needs of children, the elderly, persons with disabilities
of their societies. and victims of sexual or gender violence.

The Trust Fund for Victims advocates for victims and mobilises individuals, institutions Any measure proposed to protect a witness and, often, his or her family, must be
with resources, and the goodwill of those in power for the benefit of victims and their proportional to the risk and the least intrusive with respect to the well-being of the witness.
communities. It funds or sets up innovative projects to meet victims’ physical, material, The protection system, regardless of the measure taken, is based on the principle of limiting
or psychological needs. It may also directly undertake activities as and when requested by the exposure of a witness to threats, providing an appropriate response if required and, as a
the Court. last resort, shielding him or her from the threats. The very foundation of this system relies
on the adherence to established practices by all representatives of the Court who interact
The Trust Fund for Victims can act for the benefit of victims of crimes, regardless of whether with witnesses. These practices are meant to conceal a witness’s contact with the Court from
there is a conviction by the ICC. It co-operates with the Court to avoid any interference his or her family and friends, potential sources of threats and the public. These practices
with ongoing legal proceedings. are enhanced by an initial response system which enables the Court to extract witnesses
who are afraid of being targeted immediately or who have been targeted and take them to
79. Do victims have to first participate in the proceedings before they are entitled a safe location in the field. A protective measure of last resort is placement in the Protection
to reparations? Programme and subsequent relocation of the witness and his or her close relations away
No. A victim who has not participated in the proceedings may make an application for from the source of the threat. With respect to the latter measure, the Registrar has to enter
reparations. The two applications are independent of each other. The Court may even into agreements with States which agree that persons under the Court’s protection may be
decide on its own to make an award for reparations. relocated to their territory.

80. Who can be a witness? 83. Are other persons eligible for protection by the Court?
The Office of the Prosecutor, the Defence or victims participating in the proceedings can The ICC also ensures the security of persons mentioned in testimony and may, for example,
ask experts, victims or any other person who has witnessed crimes to testify before the redact their names from witness statements.
Court. In this regard, the Court provides them with protection, counselling and other
appropriate assistance. While the texts governing the ICC do not impose any legal obligation on the Court to ensure
the protection of intermediaries as such, the Registry takes all possible and reasonable
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Understanding the International Criminal Court
preventive measures to ensure that its interaction with individuals in the field (victims or VI. Further information about the ICC
persons assisting them) does not put them at risk. This is done by implementing “good
practices” in all activities carried out by Court staff in the field and by advising and training 86. Where can I find further information about the ICC?
individuals and intermediary organisations which play an important and crucial role in Further information about the Court can be found on its website at http://www.icc-cpi.int.
helping victims, with regard to protection practices that they themselves can implement to The site contains legal texts, Court rulings, situation and case related decisions, specific
mitigate risks. In the event of risk, Court documents may be redacted in order to keep the information about the functions and mandates of the organs of the Court and about their
intermediaries’ names confidential. activities, hearing schedules, press releases and information for media representatives,
employment opportunities, internships and information about visiting programmes
84. Are witnesses compelled to testify? organised by the Court.
No. The Court does not compel a witness to appear before it to testify without his or her
consent. 87. In what languages is the information available?
In general, the information is available in English and French, which are the working
85. How does the Court know that witnesses are not lying? languages of the Court. Some documents are also available in Arabic, Chinese, Russian
Various measures have been put in place to prevent false testimony. Before testifying, each and Spanish which, together with English and French, are the official languages of the
witness makes an undertaking to tell the truth. The judges have the authority to freely Court.
assess all evidence submitted in order to determine its relevance or admissibility.
88. How can I visit the ICC for a briefing or attend a hearing?
If a witness gives false testimony, the Court may sanction him or her by a term of The International Criminal Court welcomes to its seat in The Hague anyone who is
imprisonment not exceeding five years and/or by imposing a fine. interested in its structure, its operations and the nature of its work.

To attend a briefing about the Court:

Individuals and groups wishing to attend a briefing about the Court are requested to fill out
the appropriate application form, which is available on the Court’s website at www.icc-cpi.
int/Menus/ICC/visits. Applications should be sent by email to visits@icc-cpi.int, or faxed
to +31 (0)70 515 8567, at least three weeks in advance for groups and two weeks in advance
for individual visits.

To attend a hearing:
ICC hearings are generally open to the public, unless the Chamber orders a closed session.
Interested persons are invited to go to the entrance of the Court (there is no need to fill out
a form beforehand). Any person entering the Court building will have to undergo security
checks and present valid identification (passport, identity card or driver’s licence).

In addition, all public hearings are broadcast on the Court’s website with a half-hour delay.
They can be accessed at www.icc-cpi.int/Menus/ICC/schedule.

For further information, please consult the hearing schedule. Also note that in the interests
of public order, minors under the age of sixteen are not allowed in the Court building.

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