Rome Statute of the International Criminal
Court
Adopted by the United Nations Diplomatic Conference
of Plenipotentiaries on the Establishment of an International
Criminal Court on 17 July 1998
Entry into force: 1 July 2002, in accordance with
article 126
Preamble
The States Parties to this Statute ,
Conscious that all peoples are united by common bonds, their
cultures pieced together in a shared heritage, and concerned that
this delicate mosaic may be shattered at any time,
Mindful that during this century millions of children, women and
men have been victims of unimaginable atrocities that deeply shock
the conscience of humanity,
Recognizing that such grave crimes threaten the peace, security
and well-being of the world,
Affirming that the most serious crimes of concern to the
international community as a whole must not go unpunished and that
their effective prosecution must be ensured by taking measures at
the national level and by enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of
these crimes and thus to contribute to the prevention of such
crimes,
Recalling that it is the duty of every State to exercise its
criminal jurisdiction over those responsible for international
crimes,
Reaffirming the Purposes and Principles of the Charter of the
United Nations, and in particular that all States shall refrain from
the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations,
Emphasizing in this connection that nothing in this Statute shall
be taken as authorizing any State Party to intervene in an armed
conflict or in the internal affairs of any State,
Determined to these ends and for the sake of present and future
generations, to establish an independent permanent International
Criminal Court in relationship with the United Nations system, with
jurisdiction over the most serious crimes of concern to the
international community as a whole,
Emphasizing that the International Criminal Court established
under this Statute shall be complementary to national criminal
jurisdictions,
Resolved to guarantee lasting respect for and the enforcement of
international justice,
Have agreed as follows :
Part 1. Establishment of the Court
Article 1
The Court
An International Criminal Court ("the Court") is hereby
established. It shall be a permanent institution and shall have the
power to exercise its jurisdiction over persons for the most serious
crimes of international concern, as referred to in this Statute, and
shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute.
Article 2
Relationship of the Court with the United Nations
The Court shall be brought into relationship with the United
Nations through an agreement to be approved by the Assembly of
States Parties to this Statute and thereafter concluded by the
President of the Court on its behalf.
Article 3
Seat of the Court
1. The seat of the Court shall be established at The Hague
in the Netherlands ("the host State").
2. The Court shall enter into a headquarters agreement with
the host State, to be approved by the Assembly of States Parties and
thereafter concluded by the President of the Court on its behalf.
3. The Court may sit elsewhere, whenever it considers it
desirable, as provided in this Statute.
Article 4
Legal status and powers of the Court
1. The Court shall have international legal personality. It
shall also have such legal capacity as may be necessary for the
exercise of its functions and the fulfilment of its purposes.
2. The Court may exercise its functions and powers, as
provided in this Statute, on the territory of any State Party and,
by special agreement, on the territory of any other State.
Part 2. Jurisdiction, admissibility and
applicable law
Article 5
Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the
most serious crimes of concern to the international community as a
whole. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes:
( a ) The crime of genocide;
( b ) Crimes against humanity;
( c ) War crimes;
( d ) The crime of aggression.
2. The Court shall exercise jurisdiction over the crime of
aggression once a provision is adopted in accordance with articles
121 and 123 defining the crime and setting out the conditions under
which the Court shall exercise jurisdiction with respect to this
crime. Such a provision shall be consistent with the relevant
provisions of the Charter of the United Nations.
Article 6
Genocide
For the purpose of this Statute, "genocide" means any of the
following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such:
( a ) Killing members of the group;
( b ) Causing serious bodily or mental harm to members of
the group;
( c ) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or
in part;
( d ) Imposing measures intended to prevent births within
the group;
( e ) Forcibly transferring children of the group to another
group.
Article 7
Crimes against humanity
1. For the purpose of this Statute, "crime against humanity"
means any of the following acts when committed as part of a
widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
( a ) Murder;
( b ) Extermination;
( c ) Enslavement;
( d ) Deportation or forcible transfer of population;
( e ) Imprisonment or other severe deprivation of physical
liberty in violation of fundamental rules of international law;
( f ) Torture;
( g ) Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity;
( h ) Persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds that
are universally recognized as impermissible under international law,
in connection with any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
( i ) Enforced disappearance of persons;
( j ) The crime of apartheid;
( k ) Other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or
to mental or physical health.
2. For the purpose of paragraph 1:
( a ) "Attack directed against any civilian population"
means a course of conduct involving the multiple commission of acts
referred to in paragraph 1 against any civilian population, pursuant
to or in furtherance of a State or organizational policy to commit
such attack;
( b ) "Extermination" includes the intentional infliction of
conditions of life, inter alia the deprivation of access to food and
medicine, calculated to bring about the destruction of part of a
population;
( c ) "Enslavement" means the exercise of any or all of the
powers attaching to the right of ownership over a person and
includes the exercise of such power in the course of trafficking in
persons, in particular women and children;
( d ) "Deportation or forcible transfer of population" means
forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present,
without grounds permitted under international law;
( e ) "Torture" means the intentional infliction of severe
pain or suffering, whether physical or mental, upon a person in the
custody or under the control of the accused; except that torture
shall not include pain or suffering arising only from, inherent in
or incidental to, lawful sanctions;
( f ) "Forced pregnancy" means the unlawful confinement of a
woman forcibly made pregnant, with the intent of affecting the
ethnic composition of any population or carrying out other grave
violations of international law. This definition shall not in any
way be interpreted as affecting national laws relating to pregnancy;
( g ) "Persecution" means the intentional and severe
deprivation of fundamental rights contrary to international law by
reason of the identity of the group or collectivity;
( h ) "The crime of apartheid" means inhumane acts of a
character similar to those referred to in paragraph 1, committed in
the context of an institutionalized regime of systematic oppression
and domination by one racial group over any other racial group or
groups and committed with the intention of maintaining that regime;
( i ) "Enforced disappearance of persons" means the arrest,
detention or abduction of persons by, or with the authorization,
support or acquiescence of, a State or a political organization,
followed by a refusal to acknowledge that deprivation of freedom or
to give information on the fate or whereabouts of those persons,
with the intention of removing them from the protection of the law
for a prolonged period of time.
3. For the purpose of this Statute, it is understood that
the term "gender" refers to the two sexes, male and female, within
the context of society. The term "gender" does not indicate any
meaning different from the above.
Article 8
War crimes
1. The Court shall have jurisdiction in respect of war
crimes in particular when committed as part of a plan or policy or
as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means:
( a ) Grave breaches of the Geneva Conventions of 12 August
1949, namely, any of the following acts against persons or property
protected under the provisions of the relevant Geneva Convention:
i(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological
experiments;
(iii) Wilfully causing great suffering, or serious injury to body
or health;
(iv) Extensive destruction and appropriation of property, not
justified by military necessity and carried out unlawfully and
wantonly;
(v) Compelling a prisoner of war or other protected person to
serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected
person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
( b ) Other serious violations of the laws and customs
applicable in international armed conflict, within the established
framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian
population as such or against individual civilians not taking direct
part in hostilities;
(ii) Intentionally directing attacks against civilian objects,
that is, objects which are not military objectives;
(iii) Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in accordance with
the Charter of the United Nations, as long as they are entitled to
the protection given to civilians or civilian objects under the
international law of armed conflict;
(iv) 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 widespread, long-term and severe
damage to the natural environment which would be clearly excessive
in relation to the concrete and direct overall military advantage
anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not
military objectives;
(vi) Killing or wounding a combatant who, having laid down his
arms or having no longer means of defence, has surrendered at
discretion;
(vii) Making improper use of a flag of truce, of the flag or of
the military insignia and uniform of the enemy or of the United
Nations, as well as of the distinctive emblems of the Geneva
Conventions, resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the 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
population of the occupied territory within or outside this
territory;
(ix) Intentionally directing attacks against buildings dedicated
to religion, education, art, science or charitable purposes,
historic monuments, hospitals and places where the sick and wounded
are collected, provided they are not military objectives;
(x) Subjecting persons who are in the power of an adverse party
to physical mutilation or to medical or scientific experiments of
any kind which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his or
her interest, and which cause death to or seriously endanger the
health of such person or persons;
(xi) Killing or wounding treacherously individuals belonging to
the hostile nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such
destruction or seizure be imperatively demanded by the necessities
of war;
(xiv) Declaring abolished, suspended or inadmissible in a court
of law the rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take
part in the operations of war directed against their own country,
even if they were in the belligerent's service before the
commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all
analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in the
human body, such as bullets with a hard envelope which does not
entirely cover the core or is pierced with incisions;
(xx) Employing weapons, projectiles and material and methods of
warfare which are of a nature to cause superfluous injury or
unnecessary suffering or which are inherently indiscriminate in
violation of the international law of armed conflict, provided that
such weapons, projectiles and material and methods of warfare are
the subject of a comprehensive prohibition and are included in an
annex to this Statute, by an amendment in accordance with the
relevant provisions set forth in articles 121 and 123;
(xxi) Committing outrages upon personal dignity, in particular
humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution,
forced pregnancy, as defined in article 7, paragraph 2 ( f ),
enforced sterilization, or any other form of sexual violence also
constituting a grave breach of the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other protected
person to render certain points, areas or military forces immune
from military operations;
(xxiv) Intentionally directing attacks against buildings,
material, medical units and transport, and personnel using the
distinctive emblems of the Geneva Conventions in conformity with
international law;
(xxv) Intentionally using starvation of civilians as a
method of warfare by depriving them of objects indispensable to
their survival, including wilfully impeding relief supplies as
provided for under the Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of
fifteen years into the national armed forces or using them to
participate actively in hostilities.
( c ) In the case of an armed conflict not of an
international character, serious violations of article 3 common to
the four Geneva Conventions of 12 August 1949, namely, any of the
following acts committed against persons taking no active part in
the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds,
detention or any other cause:
(i) Violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular
humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions
without previous judgement pronounced by a regularly constituted
court, affording all judicial guarantees which are generally
recognized as indispensable.
( d ) Paragraph 2 ( c ) applies to armed conflicts not of an
international character and thus does not apply to situations of
internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable
in armed conflicts not of an international character, within the
established framework of international law, namely, any of the
following acts:
(i) Intentionally directing attacks against the civilian
population as such or against individual civilians not taking direct
part in hostilities;
(ii) Intentionally directing attacks against buildings, material,
medical units and transport, and personnel using the distinctive
emblems of the Geneva Conventions in conformity with international
law;
(iii) Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in accordance with
the Charter of the United Nations, as long as they are entitled to
the protection given to civilians or civilian objects under the
international law of armed conflict;
(iv) Intentionally directing attacks against buildings dedicated
to religion, education, art, science or charitable purposes,
historic monuments, hospitals and places where the sick and wounded
are collected, provided they are not military objectives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution,
forced pregnancy, as defined in article 7, paragraph 2 ( f ),
enforced sterilization, and any other form of sexual violence also
constituting a serious violation of article 3 common to the four
Geneva Conventions;
(vii) Conscripting or enlisting children under the age of fifteen
years into armed forces or groups or using them to participate
actively in hostilities;
(viii) Ordering the displacement of the civilian population for
reasons related to the conflict, unless the security of the
civilians involved or imperative military reasons so demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to
the conflict to physical mutilation or to medical or scientific
experiments of any kind which are neither justified by the medical,
dental or hospital treatment of the person concerned nor carried out
in his or her interest, and which cause death to or seriously
endanger the health of such person or persons;
(xii) Destroying or seizing the property of an adversary unless
such destruction or seizure be imperatively demanded by the
necessities of the conflict;
( f ) Paragraph 2 ( e ) applies to armed conflicts not of an
international character and thus does not apply to situations of
internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature. It
applies to armed conflicts that take place in the territory of a
State when there is protracted armed conflict between governmental
authorities and organized armed groups or between such groups.
3. Nothing in paragraph 2 ( c ) and ( e ) shall affect the
responsibility of a Government to maintain or re-establish law and
order in the State or to defend the unity and territorial integrity
of the State, by all legitimate means.
Article 9
Elements of Crimes
1. Elements of Crimes shall assist the Court in the
interpretation and application of articles 6, 7 and 8. They shall be
adopted by a two-thirds majority of the members of the Assembly of
States Parties.
2. Amendments to the Elements of Crimes may be proposed by:
( a ) Any State Party;
( b ) The judges acting by an absolute majority;
( c ) The Prosecutor.
Such amendments shall be adopted by a two-thirds majority of the
members of the Assembly of States Parties.
3. The Elements of Crimes and amendments thereto shall be
consistent with this Statute.
Article 10
Nothing in this Part shall be interpreted as limiting or
prejudicing in any way existing or developing rules of international
law for purposes other than this Statute.
Article 11
Jurisdiction ratione temporis
1. The Court has jurisdiction only with respect to crimes
committed after the entry into force of this Statute.
2. If a State becomes a Party to this Statute after its
entry into force, the Court may exercise its jurisdiction only with
respect to crimes committed after the entry into force of this
Statute for that State, unless that State has made a declaration
under article 12, paragraph 3.
Article 12
Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby
accepts the jurisdiction of the Court with respect to the crimes
referred to in article 5.
2. In the case of article 13, paragraph ( a ) or ( c ), the
Court may exercise its jurisdiction if one or more of the following
States are Parties to this Statute or have accepted the jurisdiction
of the Court in accordance with paragraph 3:
( a ) The State on the territory of which the conduct in
question occurred or, if the crime was committed on board a vessel
or aircraft, the State of registration of that vessel or aircraft;
( b ) The State of which the person accused of the crime is
a national.
3. If the acceptance of a State which is not a Party to this
Statute is required under paragraph 2, that State may, by
declaration lodged with the Registrar, accept the exercise of
jurisdiction by the Court with respect to the crime in question. The
accepting State shall cooperate with the Court without any delay or
exception in accordance with Part 9.
Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime
referred to in article 5 in accordance with the provisions of this
Statute if:
( a ) A situation in which one or more of such crimes
appears to have been committed is referred to the Prosecutor by a
State Party in accordance with article 14;
( b ) A situation in which one or more of such crimes
appears to have been committed is referred to the Prosecutor by the
Security Council acting under Chapter VII of the Charter of the
United Nations; or
( c ) The Prosecutor has initiated an investigation in
respect of such a crime in accordance with article 15.
Article 14
Referral of a situation by a State Party
1. A State Party may refer to the Prosecutor a situation in
which one or more crimes within the jurisdiction of the Court appear
to have been committed requesting the Prosecutor to investigate the
situation for the purpose of determining whether one or more
specific persons should be charged with the commission of such
crimes.
2. As far as possible, a referral shall specify the relevant
circumstances and be accompanied by such supporting documentation as
is available to the State referring the situation.
Article 15
Prosecutor
1. The Prosecutor may initiate investigations proprio motu
on the basis of information on crimes within the jurisdiction of the
Court.
2. The Prosecutor shall analyse the seriousness of the
information received. For this purpose, he or she may seek
additional information from States, organs of the United Nations,
intergovernmental or non-governmental organizations, or other
reliable sources that he or she deems appropriate, and may receive
written or oral testimony at the seat of the Court.
3. If the Prosecutor concludes that there is a reasonable
basis to proceed with an investigation, he or she shall submit to
the Pre-Trial Chamber a request for authorization of an
investigation, together with any supporting material collected.
Victims may make representations to the Pre-Trial Chamber, in
accordance with the Rules of Procedure and Evidence.
4. If the Pre-Trial Chamber, upon examination of the request
and the supporting material, considers that there is a reasonable
basis to proceed with an investigation, and that the case appears to
fall within the jurisdiction of the Court, it shall authorize the
commencement of the investigation, without prejudice to subsequent
determinations by the Court with regard to the jurisdiction and
admissibility of a case.
5. The refusal of the Pre-Trial Chamber to authorize the
investigation shall not preclude the presentation of a subsequent
request by the Prosecutor based on new facts or evidence regarding
the same situation.
6. If, after the preliminary examination referred to in
paragraphs 1 and 2, the Prosecutor concludes that the information
provided does not constitute a reasonable basis for an
investigation, he or she shall inform those who provided the
information. This shall not preclude the Prosecutor from considering
further information submitted to him or her regarding the same
situation in the light of new facts or evidence.
Article 16
Deferral of investigation or prosecution
No investigation or prosecution may be commenced or proceeded
with under this Statute for a period of 12 months after the Security
Council, in a resolution adopted under Chapter VII of the Charter of
the United Nations, has requested the Court to that effect; that
request may be renewed by the Council under the same conditions.
Article 17
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article
1, the Court shall determine that a case is inadmissible where:
( a ) The case is being investigated or prosecuted by a
State which has jurisdiction over it, unless the State is unwilling
or unable genuinely to carry out the investigation or prosecution;
( b ) The case has been investigated by a State which has
jurisdiction over it and the State has decided not to prosecute the
person concerned, unless the decision resulted from the
unwillingness or inability of the State genuinely to prosecute;
( c ) The person concerned has already been tried for
conduct which is the subject of the complaint, and a trial by the
Court is not permitted under article 20, paragraph 3;
( d ) The case is not of sufficient gravity to justify
further action by the Court.
2. In order to determine unwillingness in a particular case,
the Court shall consider, having regard to the principles of due
process recognized by international law, whether one or more of the
following exist, as applicable:
( a ) The proceedings were or are being undertaken or the
national decision was made for the purpose of shielding the person
concerned from criminal responsibility for crimes within the
jurisdiction of the Court referred to in article 5;
( b ) There has been an unjustified delay in the proceedings
which in the circumstances is inconsistent with an intent to bring
the person concerned to justice;
( c ) The proceedings were not or are not being conducted
independently or impartially, and they were or are being conducted
in a manner which, in the circumstances, is inconsistent with an
intent to bring the person concerned to justice.
3. In order to determine inability in a particular case, the
Court shall consider whether, due to a total or substantial collapse
or unavailability of its national judicial system, the State is
unable to obtain the accused or the necessary evidence and testimony
or otherwise unable to carry out its proceedings.
Article 18
Preliminary rulings regarding admissibility
1. When a situation has been referred to the Court pursuant
to article 13 ( a ) and the Prosecutor has determined that there
would be a reasonable basis to commence an investigation, or the
Prosecutor initiates an investigation pursuant to articles 13 ( c )
and 15, the Prosecutor shall notify all States Parties and those
States which, taking into account the information available, would
normally exercise jurisdiction over the crimes concerned. The
Prosecutor may notify such States on a confidential basis and, where
the Prosecutor believes it necessary to protect persons, prevent
destruction of evidence or prevent the absconding of persons, may
limit the scope of the information provided to States.
2. Within one month of receipt of that notification, a State
may inform the Court that it is investigating or has investigated
its nationals or others within its jurisdiction with respect to
criminal acts which may constitute crimes referred to in article 5
and which relate to the information provided in the notification to
States. At the request of that State, the Prosecutor shall defer to
the State's investigation of those persons unless the Pre-Trial
Chamber, on the application of the Prosecutor, decides to authorize
the investigation.
3. The Prosecutor's deferral to a State's investigation
shall be open to review by the Prosecutor six months after the date
of deferral or at any time when there has been a significant change
of circumstances based on the State's unwillingness or inability
genuinely to carry out the investigation.
4. The State concerned or the Prosecutor may appeal to the
Appeals Chamber against a ruling of the Pre-Trial Chamber, in
accordance with article 82. The appeal may be heard on an expedited
basis.
5. When the Prosecutor has deferred an investigation in
accordance with paragraph 2, the Prosecutor may request that the
State concerned periodically inform the Prosecutor of the progress
of its investigations and any subsequent prosecutions. States
Parties shall respond to such requests without undue delay.
6. Pending a ruling by the Pre-Trial Chamber, or at any time
when the Prosecutor has deferred an investigation under this
article, the Prosecutor may, on an exceptional basis, seek authority
from 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.
7. A State which has challenged a ruling of the Pre-Trial
Chamber under this article may challenge the admissibility of a case
under article 19 on the grounds of additional significant facts or
significant change of circumstances.
Article 19
Challenges to the jurisdiction of the Court or the admissibility
of a case
1. The Court shall satisfy itself that it has jurisdiction
in any case brought before it. The Court may, on its own motion,
determine the admissibility of a case in accordance with article 17.
2. Challenges to the admissibility of a case on the grounds
referred to in article 17 or challenges to the jurisdiction of the
Court may be made by:
( a ) An accused or a person for whom a warrant of arrest or
a summons to appear has been issued under article 58;
( b ) A State which has jurisdiction over a case, on the
ground that it is investigating or prosecuting the case or has
investigated or prosecuted; or
( c ) A State from which acceptance of jurisdiction is
required under article 12.
3. The Prosecutor may seek a ruling from the Court regarding
a question of jurisdiction or admissibility. In proceedings with
respect to jurisdiction or admissibility, those who have referred
the situation under article 13, as well as victims, may also submit
observations to the Court.
4. The admissibility of a case or the jurisdiction of the
Court may be challenged only once by any person or State referred to
in paragraph 2. The challenge shall take place prior to or at the
commencement of the trial. In exceptional circumstances, the Court
may grant leave for a challenge to be brought more than once or at a
time later than the commencement of the trial. Challenges to the
admissibility of a case, at the commencement of a trial, or
subsequently with the leave of the Court, may be based only on
article 17, paragraph 1 ( c ).
5. A State referred to in paragraph 2 ( b ) and ( c ) shall
make a challenge at the earliest opportunity.
6. Prior to the confirmation of the charges, challenges to
the admissibility of a case or challenges to the jurisdiction of the
Court shall be referred to the Pre-Trial Chamber. After confirmation
of the charges, they shall be referred to the Trial Chamber.
Decisions with respect to jurisdiction or admissibility may be
appealed to the Appeals Chamber in accordance with article 82.
7. If a challenge is made by a State referred to in
paragraph 2 ( b ) or ( c ), the Prosecutor shall suspend the
investigation until such time as the Court makes a determination in
accordance with article 17.
8. Pending a ruling by the Court, the Prosecutor may seek
authority from the Court:
( a ) To pursue necessary investigative steps of the kind
referred to in article 18, paragraph 6;
( b ) To take a statement or testimony from a witness or
complete the collection and examination of evidence which had begun
prior to the making of the challenge; and
( c ) In cooperation with the relevant States, to prevent
the absconding of persons in respect of whom the Prosecutor has
already requested a warrant of arrest under article 58.
9. The making of a challenge shall not affect the validity
of any act performed by the Prosecutor or any order or warrant
issued by the Court prior to the making of the challenge.
10. If the Court has decided that a case is inadmissible
under article 17, the Prosecutor may submit a request for a review
of the decision when he or she is fully satisfied that new facts
have arisen which negate the basis on which the case had previously
been found inadmissible under article 17.
11. If the Prosecutor, having regard to the matters referred
to in article 17, defers an investigation, the Prosecutor may
request that the relevant State make available to the Prosecutor
information on the proceedings. That information shall, at the
request of the State concerned, be confidential. If the Prosecutor
thereafter decides to proceed with an investigation, he or she shall
notify the State to which deferral of the proceedings has taken
place.
Article 20
Ne bis in idem
1. Except as provided in this Statute, no person shall be
tried before the Court with respect to conduct which formed the
basis of crimes for which the person has been convicted or acquitted
by the Court.
2. No person shall be tried by another court for a crime
referred to in article 5 for which that person has already been
convicted or acquitted by the Court.
3. No person who has been tried by another court for conduct
also proscribed under article 6, 7 or 8 shall be tried by the Court
with respect to the same conduct unless the proceedings in the other
court:
( a ) Were for the purpose of shielding the person concerned
from criminal responsibility for crimes within the jurisdiction of
the Court; or
( b ) Otherwise were not conducted independently or
impartially in accordance with the norms of due process recognized
by international law and were conducted in a manner which, in the
circumstances, was inconsistent with an intent to bring the person
concerned to justice.
Article 21
Applicable law
1. The Court shall apply:
( a ) In the first place, this Statute, Elements of Crimes
and its Rules of Procedure and Evidence;
( b ) In the second place, where appropriate, applicable
treaties and the principles and rules of international law,
including the established principles of the international law of
armed conflict;
( c ) Failing that, general principles of law derived by the
Court from national laws of legal systems of the world including, as
appropriate, the national laws of States that would normally
exercise jurisdiction over the crime, provided that those principles
are not inconsistent with this Statute and with international law
and internationally recognized norms and standards.
2. The Court may apply principles and rules of law as
interpreted in its previous decisions.
3. The application and interpretation of law pursuant to
this article must be consistent with internationally recognized
human rights, and be without any adverse distinction founded on
grounds such as gender as defined in article 7, paragraph 3, age,
race, colour, language, religion or belief, political or other
opinion, national, ethnic or social origin, wealth, birth or other
status.
Part 3. General principles of criminal law
Article 22
Nullum crimen sine lege
1. A person shall not be criminally responsible under this
Statute unless the conduct in question constitutes, at the time it
takes place, a crime within the jurisdiction of the Court.
2. The definition of a crime shall be strictly construed and
shall not be extended by analogy. In case of ambiguity, the
definition shall be interpreted in favour of the person being
investigated, prosecuted or convicted.
3. This article shall not affect the characterization of any
conduct as criminal under international law independently of this
Statute.
Article 23
Nulla poena sine lege
A person convicted by the Court may be punished only in
accordance with this Statute.
Article 24
Non-retroactivity ratione personae
1. No person shall be criminally responsible under this
Statute for conduct prior to the entry into force of the Statute.
2. In the event of a change in the law applicable to a given
case prior to a final judgement, the law more favourable to the
person being investigated, prosecuted or convicted shall apply.
Article 25
Individual criminal responsibility
1. The Court shall have jurisdiction over natural persons
pursuant to this Statute.
2. A person who commits a crime within the jurisdiction of
the Court shall be individually responsible and liable for
punishment in accordance with this Statute.
3. In accordance with this Statute, a person shall be
criminally responsible and liable for punishment for a crime within
the jurisdiction of the Court if that person:
( a ) Commits such a crime, whether as an individual,
jointly with another or through another person, regardless of
whether that other person is criminally responsible;
( b ) Orders, solicits or induces the commission of such a
crime which in fact occurs or is attempted;
( c ) For the purpose of facilitating the commission of such
a crime, aids, abets or otherwise assists in its commission or its
attempted commission, including providing the means for its
commission;
( d ) In any other way 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:
(i) Be made with the aim of furthering the criminal activity or
criminal purpose of the group, where such activity or purpose
involves the commission of a crime within the jurisdiction of the
Court; or
(ii) Be made in the knowledge of the intention of the group to
commit the crime;
( e ) In respect of the crime of genocide, directly and
publicly incites others to commit genocide;
( f ) Attempts to commit such a crime by taking action that
commences its execution by means of a substantial step, but the
crime does not occur because of circumstances independent of the
person's intentions. 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 this Statute for the
attempt to commit that crime if that person completely and
voluntarily gave up the criminal purpose.
4. No provision in this Statute relating to individual
criminal responsibility shall affect the responsibility of States
under international law.
Article 26
Exclusion of jurisdiction over persons under eighteen
The Court shall have no jurisdiction over any person who was
under the age of 18 at the time of the alleged commission of a
crime.
Article 27
Irrelevance of official capacity
1. This Statute shall apply equally to all persons without
any distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a Government
or parliament, an elected representative or a government official
shall in no case exempt a person from criminal responsibility under
this Statute, nor shall it, in and of itself, constitute a ground
for reduction of sentence.
2. Immunities or special procedural rules which may attach
to the official capacity of a person, whether under national or
international law, shall not bar the Court from exercising its
jurisdiction over such a person.
Article 28
Responsibility of commanders and other superiors
In addition to other grounds of criminal responsibility under
this Statute for crimes within the jurisdiction of the Court:
( a ) A military commander or person effectively acting as a
military commander shall be criminally responsible for crimes within
the jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control as
the case may be, as a result of his or her failure to exercise
control properly over such forces, where:
(i) That military commander or person either knew or, owing to
the circumstances at the time, should have known that the forces
were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all
necessary and reasonable measures within his or her power to prevent
or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.
( b ) With respect to superior and subordinate
relationships not described in paragraph ( a ), a superior shall be
criminally responsible for crimes within the jurisdiction of the
Court committed by subordinates under his or her effective authority
and control, as a result of his or her failure to exercise control
properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates were
committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the
effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable
measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for
investigation and prosecution.
Article 29
Non-applicability of statute of limitations
The crimes within the jurisdiction of the Court shall not be
subject to any statute of limitations.
Article 30
Mental element
1. Unless otherwise provided, a person shall be criminally
responsible and liable for punishment for a crime within the
jurisdiction of the Court only if the material elements are
committed with intent and knowledge.
2. For the purposes of this article, a person has intent
where:
( a ) In relation to conduct, that person means to engage in
the conduct;
( b ) In relation to a consequence, that person means to
cause that consequence or is aware that it will occur in the
ordinary course of events.
3. For the purposes of this article, "knowledge" means
awareness that a circumstance exists or a consequence will occur in
the ordinary course of events. "Know" and "knowingly" shall be
construed accordingly.
Article 31
Grounds for excluding criminal responsibility
1. In addition to other grounds for excluding criminal
responsibility provided for in this Statute, a person shall not be
criminally responsible if, at the time of that person's conduct:
( a ) The person suffers from a mental disease or defect
that destroys that person's capacity to appreciate the unlawfulness
or nature of his or her conduct, or capacity to control his or her
conduct to conform to the requirements of law;
( b ) The person is in a state of intoxication that destroys
that person's capacity to appreciate the unlawfulness or nature of
his or her conduct, or capacity to control his or her conduct to
conform to the requirements of law, unless the person has become
voluntarily intoxicated under such circumstances that the person
knew, or disregarded the risk, that, as a result of the
intoxication, he or she was likely to engage in conduct constituting
a crime within the jurisdiction of the Court;
( c ) The person acts reasonably to defend himself or
herself or another person or, in the case of war crimes, property
which is essential for the survival of the person or another person
or property which is essential for accomplishing a military mission,
against an imminent and unlawful use of force in a manner
proportionate to the degree of danger to the person or the other
person or property protected. The fact that the person was involved
in a defensive operation conducted by forces shall not in itself
constitute a ground for excluding criminal responsibility under this
subparagraph;
( d ) The conduct which is alleged to constitute a crime
within the jurisdiction of the Court has been caused by duress
resulting from a threat of imminent death or of continuing or
imminent serious bodily harm against that person or another person,
and the person acts necessarily and reasonably to avoid this threat,
provided that the person does not intend to cause a greater harm
than the one sought to be avoided. Such a threat may either be:
(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that person's
control.
2. The Court shall determine the applicability
of the grounds for excluding criminal responsibility provided for in
this Statute to the case before it.
3. At trial, the Court may consider a ground for excluding
criminal responsibility other than those referred to in paragraph 1
where such a ground is derived from applicable law as set forth in
article 21. The procedures relating to the consideration of such a
ground shall be provided for in the Rules of Procedure and Evidence.
Article 32
Mistake of fact or mistake of law
1. A mistake of fact shall be a ground for excluding
criminal responsibility only if it negates the mental element
required by the crime.
2. A mistake of law as to whether a particular type of
conduct is a crime within the jurisdiction of the Court shall not be
a ground for excluding criminal responsibility. A mistake of law
may, however, be a ground for excluding criminal responsibility if
it negates the mental element required by such a crime, or as
provided for in article 33.
Article 33
Superior orders and prescription of law
1. The fact that a crime within the jurisdiction of the
Court has been committed by a person pursuant to an order of a
Government or of a superior, whether military or civilian, shall not
relieve that person of criminal responsibility unless:
( a ) The person was under a legal obligation to obey orders
of the Government or the superior in question;
( b ) The person did not know that the order was unlawful;
and
( c ) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit
genocide or crimes against humanity are manifestly unlawful.
Part 4. Composition and administration of the Court
Article 34
Organs of the Court
The Court shall be composed of the following organs:
( a ) The Presidency;
( b ) An Appeals Division, a Trial Division and a Pre-Trial
Division;
( c ) The Office of the Prosecutor;
( d ) The Registry.
Article 35
Service of judges
1. All judges shall be elected as full-time members of the
Court and shall be available to serve on that basis from the
commencement of their terms of office.
2. The judges composing the Presidency shall serve on a
full-time basis as soon as they are elected.
3. The Presidency may, on the basis of the workload of the
Court and in consultation with its members, decide from time to time
to what extent the remaining judges shall be required to serve on a
full-time basis. Any such arrangement shall be without prejudice to
the provisions of article 40.
4. The financial arrangements for judges not required to
serve on a full-time basis shall be made in accordance with article
49.
Article 36
Qualifications, nomination and election of judges
1. Subject to the provisions of paragraph 2, there shall be
18 judges of the Court.
2. ( a ) The Presidency, acting on behalf of the Court,
may propose an increase in the number of judges specified in
paragraph 1, indicating the reasons why this is considered necessary
and appropriate. The Registrar shall promptly circulate any such
proposal to all States Parties.
( b ) Any such proposal shall then be considered at a
meeting of the Assembly of States Parties to be convened in
accordance with article 112. The proposal shall be considered
adopted if approved at the meeting by a vote of two thirds of the
members of the Assembly of States Parties and shall enter into force
at such time as decided by the Assembly of States Parties.
( c )
(i) Once a proposal for an increase in the number of judges has
been adopted under subparagraph ( b ), the election of the
additional judgesshall take place at the next session of the
Assembly of States Parties in accordance with paragraphs 3 to 8, and
article 37, paragraph 2;
(ii) Once a proposal for an increase in the number of judges has
been adopted and brought into effect under subparagraphs ( b ) and (
c ) (i), it shall be open to the Presidency at any time thereafter,
if the workload of the Court justifies it, to propose a reduction in
the number of judges, provided that the number of judges shall not
be reduced below that specified in paragraph 1. The proposal shall
be dealt with in accordance with the procedure laid down in
subparagraphs ( a ) and ( b ). In the event that the proposal is
adopted, the number of judges shall be progressively decreased as
the terms of office of serving judges expire, until the necessary
number has been reached.
3. ( a ) The judges shall be chosen from
among persons of high moral character, impartiality and integrity
who possess the qualifications required in their respective States
for appointment to the highest judicial offices.
( b ) Every candidate for election to the Court shall:
(i) Have established 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
(ii) Have established competence in relevant areas of
international law such as international humanitarian law and the law
of human rights, and extensive experience in a professional legal
capacity which is of relevance to the judicial work of the Court;
( c ) Every candidate for election to the Court shall have
an excellent knowledge of and be fluent in at least one of the
working languages of the Court.
4. ( a ) Nominations of candidates for election to the
Court may be made by any State Party to this Statute, and shall be
made either:
(i) By the procedure for the nomination of candidates for
appointment to the highest judicial offices in the State in
question; or
(ii) By the procedure provided for the nomination of candidates
for the International Court of Justice in the Statute of that Court.
Nominations shall be accompanied by a statement in the necessary
detail specifying how the candidate fulfils the requirements of
paragraph 3.
( b ) Each State Party may put forward one candidate for any
given election who need not necessarily be a national of that State
Party but shall in any case be a national of a State Party.
( c ) The Assembly of States Parties may decide to
establish, if appropriate, an Advisory Committee on nominations. In
that event, the Committee's composition and mandate shall be
established by the Assembly of States Parties.
5. For the purposes of the election, there shall be two
lists of candidates:
List A containing the names of candidates with the qualifications
specified in paragraph 3 ( b ) (i); and
List B containing the names of candidates with the qualifications
specified in paragraph 3 ( b ) (ii).
A candidate with sufficient qualifications for both lists may
choose on which list to appear. At the first election to the Court,
at least nine judges shall be elected from list A and at least five
judges from list B. Subsequent elections shall be so organized as to
maintain the equivalent proportion on the Court of judges qualified
on the two lists.
6. ( a ) The judges shall be elected by secret ballot
at a meeting of the Assembly of States Parties convened for that
purpose under article 112. Subject to paragraph 7, the persons
elected to the Court shall be the 18 candidates who obtain the
highest number of votes and a two-thirds majority of the States
Parties present and voting.
( b ) In the event that a sufficient number of judges is not
elected on the first ballot, successive ballots shall be held in
accordance with the procedures laid down in subparagraph ( a ) until
the remaining places have been filled.
7. No two judges may be nationals of the same State. A
person who, for the purposes of membership of the Court, could be
regarded as a national of more than one State shall be deemed to be
a national of the State in which that person ordinarily exercises
civil and political rights.
8. ( a ) The States Parties shall, in the selection of
judges, take into account the need, within the membership of the
Court, for:
(i) The representation of the principal legal systems of the
world;
(ii) Equitable geographical representation; and
(iii) A fair representation of female and male judges.
( b ) States Parties shall also take into account the need
to include judges with legal expertise on specific issues,
including, but not limited to, violence against women or children.
9. ( a ) Subject to subparagraph ( b ), judges shall
hold office for a term of nine years and, subject to subparagraph (
c ) and to article 37, paragraph 2, shall not be eligible for
re-election.
( b ) At the first election, one third of the judges elected
shall be selected by lot to serve for a term of three years; one
third of the judges elected shall be selected by lot to serve for a
term of six years; and the remainder shall serve for a term of nine
years.
( c ) A judge who is selected to serve for a term of three
years under subparagraph ( b ) shall be eligible for re-election for
a full term.
10. Notwithstanding paragraph 9, a judge assigned to a Trial
or Appeals Chamber in accordance with article 39 shall continue in
office to complete any trial or appeal the hearing of which has
already commenced before that Chamber.
Article 37
Judicial vacancies
1. In the event of a vacancy, an election shall be held in
accordance with article 36 to fill the vacancy.
2. A judge elected to fill a vacancy shall serve for the
remainder of the predecessor's term and, if that period is three
years or less, shall be eligible for re-election for a full term
under article 36.
Article 38
The Presidency
1. The President and the First and Second Vice-Presidents
shall be elected by an absolute majority of the judges. They shall
each serve for a term of three years or until the end of their
respective terms of office as judges, whichever expires earlier.
They shall be eligible for re-election once.
2. The First Vice-President shall act in place of the
President in the event that the President is unavailable or
disqualified. The Second Vice-President shall act in place of the
President in the event that both the President and the First
Vice-President are unavailable or disqualified.
3. The President, together with the First and Second
Vice-Presidents, shall constitute the Presidency, which shall be
responsible for:
( a ) The proper administration of the Court, with the
exception of the Office of the Prosecutor; and
( b ) The other functions conferred upon it in accordance
with this Statute.
4. In discharging its responsibility under paragraph 3 ( a
), the Presidency shall coordinate with and seek the concurrence of
the Prosecutor on all matters of mutual concern.
Article 39
Chambers
1. As soon as possible after the election of the judges, the
Court shall organize itself into the divisions specified in article
34, paragraph ( b ). The Appeals Division shall be composed of the
President and four other judges, the Trial Division of not less than
six judges and the Pre-Trial Division of not less than six judges.
The assignment of judges to divisions shall be based on the nature
of the functions to be performed by each division and the
qualifications and experience of the judges elected to the Court, in
such a way that each division shall contain an appropriate
combination of expertise in criminal law and procedure and in
international law. The Trial and Pre-Trial Divisions shall be
composed predominantly of judges with criminal trial experience.
2. ( a ) The judicial functions of the Court shall be
carried out in each division by Chambers.
( b )
(i) The Appeals Chamber shall be composed of all the judges of
the Appeals Division;
(ii) The functions of the Trial Chamber shall be carried out by
three judges of the Trial Division;
(iii) The functions of the Pre-Trial Chamber shall be carried out
either by three judges of the Pre-Trial Division or by a single
judge of that division in accordance with this Statute and the Rules
of Procedure and Evidence;
( c ) Nothing in this paragraph shall preclude the
simultaneous constitution of more than one Trial Chamber or
Pre-Trial Chamber when the efficient management of the Court's
workload so requires.
3. ( a ) Judges assigned to the Trial and
Pre-Trial Divisions shall serve in those divisions for a period of
three years, and thereafter until the completion of any case the
hearing of which has already commenced in the division concerned.
( b ) Judges assigned to the Appeals Division shall serve in
that division for their entire term of office.
4. Judges assigned to the Appeals Division
shall serve only in that division. Nothing in this article shall,
however, preclude the temporary attachment of judges from the Trial
Division to the Pre-Trial Division or vice versa, if the Presidency
considers that the efficient management of the Court's workload so
requires, provided that under no circumstances shall a judge who has
participated in the pre-trial phase of a case be eligible to sit on
the Trial Chamber hearing that case.
Article 40
Independence of the judges
1. The judges shall be independent in the performance of
their functions.
2. Judges shall not engage in any activity which is likely
to interfere with their judicial functions or to affect confidence
in their independence.
3. Judges required to serve on a full-time basis at the seat
of the Court shall not engage in any other occupation of a
professional nature.
4. Any question regarding the application of paragraphs 2
and 3 shall be decided by an absolute majority of the judges. Where
any such question concerns an individual judge, that judge shall not
take part in the decision.
Article 41
Excusing and disqualification of judges
1. The Presidency may, at the request of a judge, excuse
that judge from the exercise of a function under this Statute, in
accordance with the Rules of Procedure and Evidence.
2. ( a ) A judge shall not participate in any case in
which his or her impartiality might reasonably be doubted on any
ground. A judge shall be disqualified from a case in accordance with
this paragraph if, inter alia , 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 or prosecuted. A judge shall also be disqualified
on such other grounds as may be provided for in the Rules of
Procedure and Evidence.
( b ) The Prosecutor or the person being investigated or
prosecuted may request the disqualification of a judge under this
paragraph.
( c ) Any question as to the disqualification of a judge
shall be decided by an absolute majority of the judges. The
challenged judge shall be entitled to present his or her comments on
the matter, but shall not take part in the decision.
Article 42
The Office of the Prosecutor
1. The Office of the Prosecutor shall act independently as a
separate organ of the Court. It shall be responsible for receiving
referrals and any substantiated information on crimes within the
jurisdiction of the Court, for examining them and for conducting
investigations and prosecutions before the Court. A member of the
Office shall not seek or act on instructions from any external
source.
2. The Office shall be headed by the Prosecutor. The
Prosecutor shall have full authority over the management and
administration of the Office, including the staff, facilities and
other resources thereof. The Prosecutor shall be assisted by one or
more Deputy Prosecutors, who shall be entitled to carry out any of
the acts required of the Prosecutor under this Statute. The
Prosecutor and the Deputy Prosecutors shall be of different
nationalities. They shall serve on a full-time basis.
3. The Prosecutor and the Deputy Prosecutors shall be
persons of high moral character, be highly competent in and have
extensive practical experience in the prosecution or trial of
criminal cases. They shall have an excellent knowledge of and be
fluent in at least one of the working languages of the Court.
4. The Prosecutor shall be elected by secret ballot by an
absolute majority of the members of the Assembly of States Parties.
The Deputy Prosecutors shall be elected in the same way from a list
of candidates provided by the Prosecutor. The Prosecutor shall
nominate three candidates for each position of Deputy Prosecutor to
be filled. Unless a shorter term is decided upon at the time of
their election, the Prosecutor and the Deputy Prosecutors shall hold
office for a term of nine years and shall not be eligible for
re-election.
5. Neither the Prosecutor nor a Deputy Prosecutor shall
engage in any activity which is likely to interfere with his or her
prosecutorial functions or to affect confidence in his or her
independence. They shall not engage in any other occupation of a
professional nature.
6. The Presidency may excuse the Prosecutor or a Deputy
Prosecutor, at his or her request, from acting in a particular case.
7. Neither the Prosecutor nor a Deputy Prosecutor shall
participate in any matter in which their impartiality might
reasonably be doubted on any ground. They shall be disqualified from
a case in accordance with this paragraph if, inter alia , they have
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 or prosecuted.
8. Any question as to the disqualification of the Prosecutor
or a Deputy Prosecutor shall be decided by the Appeals Chamber.
( a ) The person being investigated or prosecuted may at any
time request the disqualification of the Prosecutor or a Deputy
Prosecutor on the grounds set out in this article;
( b ) The Prosecutor or the Deputy Prosecutor, as
appropriate, shall be entitled to present his or her comments on the
matter;
9. The Prosecutor shall appoint advisers with legal
expertise on specific issues, including, but not limited to, sexual
and gender violence and violence against children.
Article 43
The Registry
1. The Registry shall be responsible for the non-judicial
aspects of the administration and servicing of the Court, without
prejudice to the functions and powers of the Prosecutor in
accordance with article 42.
2. The Registry shall be headed by the Registrar, who shall
be the principal administrative officer of the Court. The Registrar
shall exercise his or her functions under the authority of the
President of the Court.
3. The Registrar and the Deputy Registrar shall be persons
of high moral character, be highly competent and have an excellent
knowledge of and be fluent in at least one of the working languages
of the Court.
4. The judges shall elect the Registrar by an absolute
majority by secret ballot, taking into account any recommendation by
the Assembly of States Parties. If the need arises and upon the
recommendation of the Registrar, the judges shall elect, in the same
manner, a Deputy Registrar.
5. The Registrar shall hold office for a term of five years,
shall be eligible for re-election once and shall serve on a
full-time basis. The Deputy Registrar shall hold office for a term
of five years or such shorter term as may be decided upon by an
absolute majority of the judges, and may be elected on the basis
that the Deputy Registrar shall be called upon to serve as required.
6. The Registrar shall set up a Victims and Witnesses Unit
within the Registry. This Unit shall provide, in consultation with
the Office of the Prosecutor, protective measures and security
arrangements, counselling and other appropriate assistance for
witnesses, victims who appear before the Court, and others who are
at risk on account of testimony given by such witnesses. The Unit
shall include staff with expertise in trauma, including trauma
related to crimes of sexual violence.
Article 44
Staff
1. The Prosecutor and the Registrar shall appoint such
qualified staff as may be required to their respective offices. In
the case of the Prosecutor, this shall include the appointment of
investigators.
2. In the employment of staff, the Prosecutor and the
Registrar shall ensure the highest standards of efficiency,
competency and integrity, and shall have regard, mutatis mutandis ,
to the criteria set forth in article 36, paragraph 8.
3. The Registrar, with the agreement of the Presidency and
the Prosecutor, shall propose Staff Regulations which include the
terms and conditions upon which the staff of the Court shall be
appointed, remunerated and dismissed. The Staff Regulations shall be
approved by the Assembly of States Parties.
4. The Court may, in exceptional circumstances, employ the
expertise of gratis personnel offered by States Parties,
intergovernmental organizations or non-governmental organizations to
assist with the work of any of the organs of the Court. The
Prosecutor may accept any such offer on behalf of the Office of the
Prosecutor. Such gratis personnel shall be employed in accordance
with guidelines to be established by the Assembly of States Parties.
Article 45
Solemn undertaking
Before taking up their respective duties under this Statute, the
judges, the Prosecutor, the Deputy Prosecutors, the Registrar and
the Deputy Registrar shall each make a solemn undertaking in open
court to exercise his or her respective functions impartially and
conscientiously.
Article 46
Removal from office
1. A judge, the Prosecutor, a Deputy Prosecutor, the
Registrar or the Deputy Registrar shall be removed from office if a
decision to this effect is made in accordance with paragraph 2, in
cases where that person:
( a ) Is found to have committed serious misconduct or a
serious breach of his or her duties under this Statute, as provided
for in the Rules of Procedure and Evidence; or
( b ) Is unable to exercise the functions required by this
Statute.
2. A decision as to the removal from office of a judge, the
Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by
the Assembly of States Parties, by secret ballot:
( a ) In the case of a judge, by a two-thirds majority of
the States Parties upon a recommendation adopted by a two-thirds
majority of the other judges;
( b ) In the case of the Prosecutor, by an absolute majority
of the States Parties;
( c ) In the case of a Deputy Prosecutor, by an absolute
majority of the States Parties upon the recommendation of the
Prosecutor.
3. A decision as to the removal from office of the Registrar
or Deputy Registrar shall be made by an absolute majority of the
judges.
4. A judge, Prosecutor, Deputy Prosecutor, Registrar or
Deputy Registrar whose conduct or ability to exercise the functions
of the office as required by this Statute is challenged under this
article shall have full opportunity to present and receive evidence
and to make submissions in accordance with the Rules of Procedure
and Evidence. The person in question shall not otherwise participate
in the consideration of the matter.
Article 47
Disciplinary measures
A judge, Prosecutor, Deputy Prosecutor, Registrar or Deputy
Registrar who has committed misconduct of a less serious nature than
that set out in article 46, paragraph 1, shall be subject to
disciplinary measures, in accordance with the Rules of Procedure and
Evidence.
Article 48
Privileges and immunities
1. The Court shall enjoy in the territory of each State
Party such privileges and immunities as are necessary for the
fulfilment of its purposes.
2. The judges, the Prosecutor, the Deputy Prosecutors and
the Registrar shall, when engaged on or with respect to the business
of the Court, enjoy the same privileges and immunities as are
accorded to heads of diplomatic missions and shall, 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 capacity.
3. The Deputy Registrar, the staff of the Office of the
Prosecutor and the staff of the Registry shall enjoy the privileges
and immunities and facilities necessary for the performance of their
functions, in accordance with the agreement on the privileges and
immunities of the Court.
4. Counsel, experts, witnesses or any other person required
to be present at the seat of the Court shall 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.
5. The privileges and immunities of:
( a ) A judge or the Prosecutor may be waived by an absolute
majority of the judges;
( b ) The Registrar may be waived by the Presidency;
( c ) The Deputy Prosecutors and staff of the Office of the
Prosecutor may be waived by the Prosecutor;
( d ) The Deputy Registrar and staff of the Registry may be
waived by the Registrar.
Article 49
Salaries, allowances and expenses
The judges, the Prosecutor, the Deputy Prosecutors, the Registrar
and the Deputy Registrar shall receive such salaries, allowances and
expenses as may be decided upon by the Assembly of States Parties.
These salaries and allowances shall not be reduced during their
terms of office.
Article 50
Official and working languages
1. The official languages of the Court shall be Arabic,
Chinese, English, French, Russian and Spanish. The judgements of the
Court, as well as other decisions resolving fundamental issues
before the Court, shall be published in the official languages. The
Presidency shall, in accordance with the criteria established by the
Rules of Procedure and Evidence, determine which decisions may be
considered as resolving fundamental issues for the purposes of this
paragraph.
2. The working languages of the Court shall be English and
French. The Rules of Procedure and Evidence shall determine the
cases in which other official languages may be used as working
languages.
3. At the request of any party to a proceeding or a State
allowed to intervene in a proceeding, the Court shall authorize a
language other than English or French to be used by such a party or
State, provided that the Court considers such authorization to be
adequately justified.
Article 51
Rules of Procedure and Evidence
1. The Rules of Procedure and Evidence shall enter into
force upon adoption by a two-thirds majority of the members of the
Assembly of States Parties.
2. Amendments to the Rules of Procedure and Evidence may be
proposed by:
( a ) Any State Party;
( b ) The judges acting by an absolute majority; or
( c ) The Prosecutor.
Such amendments shall enter into force upon adoption by a
two-thirds majority of the members of the Assembly of States
Parties.
3. After the adoption of the Rules of Procedure and
Evidence, in urgent cases where the Rules do not provide for a
specific situation before the Court, the judges may, by a two-thirds
majority, draw up provisional Rules to be applied until adopted,
amended or rejected at the next ordinary or special session of the
Assembly of States Parties.
4. The Rules of Procedure and Evidence, amendments thereto
and any provisional Rule shall be consistent with this Statute.
Amendments to the Rules of Procedure and Evidence as well as
provisional Rules shall not be applied retroactively to the
detriment of the person who is being investigated or prosecuted or
who has been convicted.
5. In the event of conflict between the Statute and the
Rules of Procedure and Evidence, the Statute shall prevail.
Article 52
Regulations of the Court
1. The judges shall, in accordance with this Statute and the
Rules of Procedure and Evidence, adopt, by an absolute majority, the
Regulations of the Court necessary for its routine functioning.
2. The Prosecutor and the Registrar shall be consulted in
the elaboration of the Regulations and any amendments thereto.
3. The Regulations and any amendments thereto shall take
effect upon adoption unless otherwise decided by the judges.
Immediately upon adoption, they shall be circulated to States
Parties for comments. If within six months there are no objections
from a majority of States Parties, they shall remain in force.
Part 5. Investigation and prosecution
Article 53
Initiation of an investigation
1. The Prosecutor shall, having evaluated the information
made available to him or her, initiate an investigation unless he or
she determines that there is no reasonable basis to proceed under
this Statute. In deciding whether to initiate an investigation, the
Prosecutor shall consider whether:
( a ) The information available to the Prosecutor provides a
reasonable basis to believe that a crime within the jurisdiction of
the Court has been or is being committed;
( b ) The case is or would be admissible under article 17;
and
( c ) Taking into account the gravity of the crime and the
interests of victims, there are nonetheless substantial reasons to
believe that an investigation would not serve the interests of
justice.
If the Prosecutor determines that there is no reasonable basis to
proceed and his or her determination is based solely on subparagraph
( c ) above, he or she shall inform the Pre-Trial Chamber.
2. If, upon investigation, the Prosecutor concludes that
there is not a sufficient basis for a prosecution because:
( a ) There is not a sufficient legal or factual basis to
seek a warrant or summons under article 58;
( b ) The case is inadmissible under article 17; or
( c ) A prosecution is not in the interests of justice,
taking into account all the circumstances, including 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;
The Prosecutor shall inform the Pre-Trial Chamber and the State
making a referral under article 14 or the Security Council in a case
under article 13, paragraph ( b ), of his or her conclusion and
the reasons for the conclusion.
3. ( a ) At the request of the State making a referral
under article 14 or the Security Council under article 13, paragraph
( b ), the Pre-Trial Chamber may review a decision of the Prosecutor
under paragraph 1 or 2 not to proceed and may request the Prosecutor
to reconsider that decision.
( b ) In addition, the Pre-Trial Chamber may, on its own
initiative, review a decision of the Prosecutor not to proceed if it
is based solely on paragraph 1 ( c ) or 2 ( c ). In such a case, the
decision of the Prosecutor shall be effective only if confirmed by
the Pre-Trial Chamber.
4. The Prosecutor may, at any time, reconsider a decision
whether to initiate an investigation or prosecution based on new
facts or information.
Article 54
Duties and powers of the Prosecutor with respect to
investigations
1. The Prosecutor shall:
( a ) In order to establish the truth, extend the
investigation to cover all facts and evidence relevant to an
assessment of whether there is criminal responsibility under this
Statute, and, in doing so, investigate incriminating and exonerating
circumstances equally;
( b ) Take appropriate measures to ensure the effective
investigation and prosecution of crimes within the jurisdiction of
the Court, and in doing so, respect the interests and personal
circumstances of victims and witnesses, including age, gender as
defined in article 7, paragraph 3, and health, and take into account
the nature of the crime, in particular where it involves sexual
violence, gender violence or violence against children; and
( c ) Fully respect the rights of persons arising under this
Statute.
2. The Prosecutor may conduct investigations on the
territory of a State:
( a ) In accordance with the provisions of Part 9; or
( b ) As authorized by the Pre-Trial Chamber under article
57, paragraph 3 ( d ).
3. The Prosecutor may:
( a ) Collect and examine evidence;
( b ) Request the presence of and question persons being
investigated, victims and witnesses;
( c ) Seek the cooperation of any State or intergovernmental
organization or arrangement in accordance with its respective
competence and/or mandate;
( d ) Enter into such arrangements or agreements, not
inconsistent with this Statute, as may be necessary to facilitate
the cooperation of a State, intergovernmental organization or
person;
( e ) Agree not to disclose, at any stage of the
proceedings, documents or information that the Prosecutor obtains on
the condition of confidentiality and solely for the purpose of
generating new evidence, unless the provider of the information
consents; and
( f ) Take necessary measures, or request that necessary
measures be taken, to ensure the confidentiality of information, the
protection of any person or the preservation of evidence.
Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a
person:
( a ) Shall not be compelled to incriminate himself or
herself or to confess guilt;
( b ) 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 ) Shall, if questioned in a language other than a
language the person fully understands 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 ) Shall not be subjected to arbitrary arrest or
detention, and shall not be deprived of his or her liberty except on
such grounds and in accordance with such procedures as are
established in this Statute.
2. 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, that
person shall also have the following rights of which he or she shall
be informed prior to being questioned:
( a ) To be informed, prior to being questioned, 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 interests
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; and
( d ) To be questioned in the presence of counsel unless the
person has voluntarily waived his or her right to counsel.
Article 56
Role of the Pre-Trial Chamber in relation to a unique
investigative opportunity
1. ( a ) Where the Prosecutor considers an
investigation to present a unique opportunity to take testimony or a
statement from a witness or to examine, collect or test evidence,
which may not be available subsequently for the purposes of a trial,
the Prosecutor shall so inform the Pre-Trial Chamber.
( b ) In that case, the Pre-Trial Chamber may, upon request
of the Prosecutor, take such measures as may be necessary to ensure
the efficiency and integrity of the proceedings and, in particular,
to protect the rights of the defence.
( c ) Unless the Pre-Trial Chamber orders otherwise, the
Prosecutor shall provide the relevant information to the person who
has been arrested or appeared in response to a summons in connection
with the investigation referred to in subparagraph ( a ), in order
that he or she may be heard on the matter.
2. The measures referred to in paragraph 1 ( b ) may
include:
( a ) Making recommendations or orders regarding procedures
to be followed;
( b ) Directing that a record be made of the proceedings;
( c ) Appointing an expert to assist;
( d ) Authorizing counsel for a person who has been
arrested, or appeared before the Court in response to a summons, to
participate, or where there has not yet been such an arrest or
appearance or counsel has not been designated, appointing another
counsel to attend and represent the interests of the defence;
( e ) Naming one of its members or, if necessary, another
available judge of the Pre-Trial or Trial Division to observe and
make recommendations or orders regarding the collection and
preservation of evidence and the questioning of persons;
( f ) Taking such other action as may be necessary to
collect or preserve evidence.
3. ( a ) Where the Prosecutor has not sought measures
pursuant to this article but the Pre-Trial Chamber considers that
such measures are required to preserve evidence that it deems would
be essential for the defence at trial, it shall consult with the
Prosecutor as to whether there is good reason for the Prosecutor's
failure to request the measures. If upon consultation, the Pre-Trial
Chamber concludes that the Prosecutor's failure to request such
measures is unjustified, the Pre-Trial Chamber may take such
measures on its own initiative.
( b ) A decision of the Pre-Trial Chamber to act on its own
initiative under this paragraph may be appealed by the Prosecutor.
The appeal shall be heard on an expedited basis.
4. The admissibility of evidence preserved or collected for
trial pursuant to this article, or the record thereof, shall be
governed at trial by article 69, and given such weight as determined
by the Trial Chamber.
Article 57
Functions and powers of the Pre-Trial Chamber
1. Unless otherwise provided in this Statute, the Pre-Trial
Chamber shall exercise its functions in accordance with the
provisions of this article.
2. ( a ) Orders or rulings of the Pre-Trial Chamber
issued under articles 15, 18, 19, 54, paragraph 2, 61, paragraph 7,
and 72 must be concurred in by a majority of its judges.
( b ) In all other cases, a single judge of the Pre-Trial
Chamber may exercise the functions provided for in this Statute,
unless otherwise provided for in the Rules of Procedure and Evidence
or by a majority of the Pre-Trial Chamber.
3. In addition to its other functions under this Statute,
the Pre-Trial Chamber may:
( a ) At the request of the Prosecutor, issue such orders
and warrants as may be required for the purposes of an
investigation;
( b ) Upon the request of a person who has been arrested or
has appeared pursuant to a summons under article 58, issue such
orders, including measures such as those described in article 56, or
seek such cooperation pursuant to Part 9 as may be necessary to
assist the person in the preparation of his or her defence;
( c ) Where necessary, provide for the protection and
privacy of victims and witnesses, the preservation of evidence, the
protection of persons who have been arrested or appeared in response
to a summons, and the protection of national security information;
( d ) Authorize the Prosecutor to take specific
investigative steps within the territory of a State Party without
having secured the cooperation of that State under Part 9 if,
whenever possible having regard to the views of the State concerned,
the Pre-Trial Chamber has determined in that case that the State is
clearly unable to execute a request for cooperation due to the
unavailability of any authority or any component of its judicial
system competent to execute the request for cooperation under Part
9.
( e ) Where a warrant of arrest or a summons has been issued
under article 58, and having due regard to the strength of the
evidence and the rights of the parties concerned, as provided for in
this Statute and the Rules of Procedure and Evidence, seek the
cooperation of States pursuant to article 93, paragraph 1 ( k ), to
take protective measures for the purpose of forfeiture, in
particular for the ultimate benefit of victims.
Article 58
Issuance by the Pre-Trial Chamber of a warrant of arrest or a
summons to appear
1. At any time after the initiation of an investigation, the
Pre-Trial Chamber shall, on the application of the Prosecutor, issue
a warrant of arrest of a person if, having examined the application
and the evidence or other information submitted by the Prosecutor,
it is satisfied that:
( a ) There are reasonable grounds to believe that the
person has committed a crime within the jurisdiction of the Court;
and
( b ) The arrest of the person appears necessary:
(i) To ensure the person's appearance at trial,
(ii) To ensure that the person does not obstruct or endanger the
investigation or the court proceedings, or
(iii) Where applicable, to prevent the person from continuing
with the commission of that crime or a related crime which is within
the jurisdiction of the Court and which arises out of the same
circumstances.
2. The application of the Prosecutor shall contain:
( 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 which the person is alleged to have
committed;
( c ) A concise statement of the facts which are alleged to
constitute those crimes;
( d ) A summary of the evidence and any other
information which establish reasonable grounds to believe that the
person committed those crimes; and
( e ) The reason why the Prosecutor believes that the arrest
of the person is necessary.
3. The warrant of arrest shall contain:
( 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 those crimes.
4. The warrant of arrest shall remain in effect until
otherwise ordered by the Court.
5. On the basis of the warrant of arrest, the Court may
request the provisional arrest or the arrest and surrender of the
person under Part 9.
6. The Prosecutor may request the Pre-Trial Chamber to amend
the warrant of arrest by modifying or adding to the crimes specified
therein. The Pre-Trial Chamber shall so amend the warrant if it is
satisfied that there are reasonable grounds to believe that the
person committed the modified or additional crimes.
7. As an alternative to seeking a warrant of arrest, the
Prosecutor may submit an application requesting that the Pre-Trial
Chamber issue a summons for the person to appear. If the Pre-Trial
Chamber is satisfied that there are reasonable grounds to believe
that the person committed the crime alleged and that a summons is
sufficient to ensure the person's appearance, it shall issue the
summons, with or without conditions restricting liberty (other than
detention) if provided for by national law, for the person to
appear. The summons shall contain:
( 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 Court which the person is alleged to have
committed; and
( d ) A concise statement of the facts which are alleged to
constitute the crime.
The summons shall be served on the person.
Article 59
Arrest proceedings in the custodial State
1. A State Party which has received a request for
provisional arrest or for arrest and surrender shall immediately
take steps to arrest the person in question in accordance with its
laws and the provisions of Part 9.
2. A person arrested shall be brought promptly before the
competent judicial authority in the custodial State which shall
determine, in accordance with the law of that State, that:
( 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.
3. The person arrested shall have the right to apply to the
competent authority in the custodial State for interim release
pending surrender.
4. In reaching a decision on any such application, the
competent authority in the custodial State shall consider whether,
given the gravity 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. It shall not
be open to the competent authority of the custodial State to
consider whether the warrant of arrest was properly issued in
accordance with article 58, paragraph 1 ( a ) and ( b ).
5. The Pre-Trial Chamber shall be notified of any request
for interim release and shall make recommendations to the competent
authority in the custodial State. The competent authority in the
custodial State shall give full consideration to such
recommendations, including any recommendations on measures to
prevent the escape of the person, before rendering its decision.
6. If the person is granted interim release, the Pre-Trial
Chamber may request periodic reports on the status of the interim
release.
7. Once ordered to be surrendered by the custodial State,
the person shall be delivered to the Court as soon as possible.
Article 60
Initial proceedings before the Court
1. Upon the surrender of the person to the Court, or the
person's appearance before the Court voluntarily or pursuant to a
summons, the Pre-Trial Chamber shall satisfy itself that the person
has been informed of the crimes which he or she is alleged to have
committed, and of his or her rights under this Statute, including
the right to apply for interim release pending trial.
2. A person subject to a warrant of arrest may apply for
interim release pending trial. If the Pre-Trial Chamber is satisfied
that the conditions set forth in article 58, paragraph 1, are
met, the person shall continue to be detained. If it is not so
satisfied, the Pre-Trial Chamber shall release the person, with or
without conditions.
3. The Pre-Trial Chamber shall periodically review its
ruling on the release or detention of the person, and may do so at
any time on the request of the Prosecutor or the person. Upon such
review, it may modify its ruling as to detention, release or
conditions of release, if it is satisfied that changed circumstances
so require.
4. The Pre-Trial Chamber shall ensure that a person is not
detained for an unreasonable period prior to trial due to
inexcusable delay by the Prosecutor. If such delay occurs, the Court
shall consider releasing the person, with or without conditions.
5. If necessary, the Pre-Trial Chamber may issue a warrant
of arrest to secure the presence of a person who has been released.
Article 61
Confirmation of the charges before trial
1. Subject to the provisions of paragraph 2, within a
reasonable time after the person's surrender or voluntary appearance
before the Court, the Pre-Trial Chamber shall hold a hearing to
confirm the charges on which the Prosecutor intends to seek trial.
The hearing shall be held in the presence of the Prosecutor and the
person charged, as well as his or her counsel.
2. The Pre-Trial Chamber may, upon request of the Prosecutor
or on its own motion, hold a hearing in the absence of the person
charged to confirm the charges on which the Prosecutor intends to
seek trial when the person has:
( a ) Waived his or her right to be present; or
( b ) Fled or cannot be found and all reasonable steps have
been taken to secure his or her appearance before the Court and to
inform the person of the charges and that a hearing to confirm those
charges will be held.
In that case, the person shall be represented by counsel where
the Pre-Trial Chamber determines that it is in the interests of
justice.
3. Within a reasonable time before the hearing, the person
shall:
( a ) Be provided with a copy of the document containing the
charges on which the Prosecutor intends to bring the person to
trial; and
( b ) Be informed of the evidence on which the Prosecutor
intends to rely at the hearing.
The Pre-Trial Chamber may issue orders regarding the disclosure
of information for the purposes of the hearing.
4. Before the hearing, the Prosecutor may continue the
investigation and may amend or withdraw any charges. The person
shall be given reasonable notice before the hearing of any amendment
to or withdrawal of charges. In case of a withdrawal of charges, the
Prosecutor shall notify the Pre-Trial Chamber of the reasons for the
withdrawal.
5. At the hearing, the Prosecutor shall support each charge
with sufficient evidence to establish substantial grounds to believe
that the person committed the crime charged. The Prosecutor may rely
on documentary or summary evidence and need not call the witnesses
expected to testify at the trial.
6. At the hearing, the person may:
( a ) Object to the charges;
( b ) Challenge the evidence presented by the Prosecutor;
and
( c ) Present evidence.
7. The Pre-Trial Chamber shall, on the basis of the hearing,
determine whether there is sufficient evidence to establish
substantial grounds to believe that the person committed each of the
crimes charged. Based on its determination, the Pre-Trial Chamber
shall:
( a ) Confirm those charges in relation to which it has
determined that there is sufficient evidence, and commit the person
to a Trial Chamber for trial on the charges as confirmed;
( b ) Decline to confirm those charges in relation to which
it has determined that there is insufficient evidence;
( c ) Adjourn the hearing and request the Prosecutor to
consider:
(i) Providing further evidence or conducting further
investigation with respect to a particular charge; or
(ii) Amending a charge because the evidence submitted appears to
establish a different crime within the jurisdiction of the Court.
8. Where the Pre-Trial Chamber declines to confirm a charge,
the Prosecutor shall not be precluded from subsequently requesting
its confirmation if the request is supported by additional evidence.
9. After the charges are confirmed and before the trial has
begun, the Prosecutor may, with the permission of the Pre-Trial
Chamber and after notice to the accused, amend the charges. If the
Prosecutor seeks to add additional charges or to substitute more
serious charges, a hearing under this article to confirm those
charges must be held. After commencement of the trial, the
Prosecutor may, with the permission of the Trial Chamber, withdraw
the charges.
10. Any warrant previously issued shall cease to have effect
with respect to any charges which have not been confirmed by the
Pre-Trial Chamber or which have been withdrawn by the Prosecutor.
11. Once the charges have been confirmed in accordance with
this article, the Presidency shall constitute a Trial Chamber which,
subject to paragraph 9 and to article 64, paragraph 4, shall be
responsible for the conduct of subsequent proceedings and may
exercise any function of the Pre-Trial Chamber that is relevant and
capable of application in those proceedings.
Part 6. The trial
Article 62
Place of trial
Unless otherwise decided, the place of the trial shall be the
seat of the Court.
Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues
to disrupt the trial, the Trial Chamber may remove the accused and
shall make provision for him or her to observe the trial and
instruct counsel from outside the courtroom, through the use of
communications technology, if required. Such measures shall be taken
only in exceptional circumstances after other reasonable
alternatives have proved inadequate, and only for such duration as
is strictly required.
Article 64
Functions and powers of the Trial Chamber
1. The functions and powers of the Trial Chamber set out in
this article shall be exercised in accordance with this Statute and
the Rules of Procedure and Evidence.
2. The Trial Chamber shall ensure that a trial is fair and
expeditious and is conducted with full respect for the rights of the
accused and due regard for the protection of victims and witnesses.
3. Upon assignment of a case for trial in accordance with
this Statute, the Trial Chamber assigned to deal with the case
shall:
( a ) Confer with the parties and adopt such procedures as
are necessary to facilitate the fair and expeditious conduct of the
proceedings;
( b ) Determine the language or languages to be used at
trial; and
( c ) Subject to any other relevant provisions of this
Statute, 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.
4. The Trial Chamber may, if necessary for its effective and
fair functioning, refer preliminary issues to the Pre-Trial Chamber
or, if necessary, to another available judge of the Pre-Trial
Division.
5. Upon notice to the parties, the Trial Chamber may, as
appropriate, direct that there be joinder or severance in respect of
charges against more than one accused.
6. In performing its functions prior to trial or during the
course of a trial, the Trial Chamber may, as necessary:
( a ) Exercise any functions of the Pre-Trial Chamber
referred to in article 61, paragraph 11;
( b ) Require the attendance and testimony of witnesses and
production of documents and other evidence by obtaining, if
necessary, the assistance of States as provided in this Statute;
( c ) Provide for the protection of confidential
information;
( d ) Order the production of evidence in addition to that
already collected prior to the trial or presented during the trial
by the parties;
( e ) Provide for the protection of the accused, witnesses
and victims; and
( f ) Rule on any other relevant matters.
7. The trial shall be held in public. The Trial Chamber may,
however, determine that special circumstances require that certain
proceedings be in closed session for the purposes set forth in
article 68, or to protect confidential or sensitive information to
be given in evidence.
8. ( a ) At the commencement of the trial, the Trial
Chamber shall have read to the accused the charges previously
confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy
itself that the accused understands the nature of the charges. It
shall afford him or her the opportunity to make an admission of
guilt in accordance with article 65 or to plead not guilty.
( b ) At the trial, the presiding judge may give directions
for the conduct of proceedings, including to ensure that they are
conducted in a fair and impartial manner. Subject to any directions
of the presiding judge, the parties may submit evidence in
accordance with the provisions of this Statute.
9. The Trial Chamber shall have, inter alia , the power on
application of a party or on its own motion to:
( a ) Rule on the admissibility or relevance of evidence;
and
( b ) Take all necessary steps to maintain order in the
course of a hearing.
10. The Trial Chamber shall ensure that a complete record of
the trial, which accurately reflects the proceedings, is made and
that it is maintained and preserved by the Registrar.
Article 65
Proceedings on an admission of guilt
1. Where the accused makes an admission of guilt pursuant to
article 64, paragraph 8 ( a ), the Trial Chamber shall determine
whether:
( a ) The accused understands the nature and consequences of
the admission of guilt;
( b ) The admission is voluntarily made by the accused after
sufficient consultation with defence counsel; and
( c ) The admission of guilt is supported by the facts of
the case that are contained in:
(i) The charges brought by the Prosecutor and admitted by the
accused;
(ii) Any materials presented by the Prosecutor which supplement
the charges and which the accused accepts; and
(iii) Any other evidence, such as the testimony of witnesses,
presented by the Prosecutor or the accused.
2. Where the Trial Chamber is satisfied that the matters
referred to in paragraph 1 are established, it shall consider the
admission of guilt, together with any additional evidence presented,
as establishing all the essential facts that are required to prove
the crime to which the admission of guilt relates, and may convict
the accused of that crime.
3. Where the Trial Chamber is not satisfied that the matters
referred to in paragraph 1 are established, it shall consider the
admission of guilt as not having been made, in which case it shall
order that the trial be continued under the ordinary trial
procedures provided by this Statute and may remit the case to
another Trial Chamber.
4. Where the Trial Chamber is of the opinion that a more
complete presentation of the facts of the case is required in the
interests of justice, in particular the interests of the victims,
the Trial Chamber may:
( a ) Request the Prosecutor to present additional evidence,
including the testimony of witnesses; or
( b ) Order that the trial be continued under the ordinary
trial procedures provided by this Statute, in which case it shall
consider the admission of guilt as not having been made and may
remit the case to another Trial Chamber.
5. Any discussions between the Prosecutor and the defence
regarding modification of the charges, the admission of guilt or the
penalty to be imposed shall not be binding on the Court.
Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty
before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the
accused.
3. In order to convict the accused, the Court must be
convinced of the guilt of the accused beyond reasonable doubt.
Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be
entitled to a public hearing, having regard to the provisions of
this Statute, to a fair hearing conducted impartially, and to the
following minimum guarantees, in full equality:
( a ) To be informed promptly and in detail of the nature,
cause and content of the charge, in a language which the accused
fully understands and speaks;
( b ) To have adequate time and facilities for the
preparation of the defence and to communicate freely with counsel of
the accused's choosing in confidence;
( c ) To be tried without undue delay;
( d ) Subject to article 63, paragraph 2, to be present at
the trial, to conduct the defence in person or through legal
assistance of the accused's choosing, to be informed, if the accused
does not have legal assistance, of this right and to have legal
assistance assigned by the Court in any case where the interests of
justice so require, and without payment if the accused lacks
sufficient means to pay for it;
( e ) To examine, or have examined, the witnesses against
him or her and to obtain the attendance and examination of witnesses
on his or her behalf under the same conditions as witnesses against
him or her. The accused shall also be entitled to raise defences and
to present other evidence admissible under this Statute;
( f ) To have, free of any cost, the assistance of a
competent interpreter and such translations as are necessary to meet
the requirements of fairness, if any of the proceedings of or
documents presented to the Court are not in a language which the
accused fully understands and speaks;
( g ) 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;
( h ) To make an unsworn oral or written statement in his or
her defence; and
( i ) Not to have imposed on him or her any reversal of the
burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this
Statute, the Prosecutor shall, as soon as practicable, disclose to
the defence evidence in the Prosecutor's possession or control which
he or she 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. In case of doubt as
to the application of this paragraph, the Court shall decide.
Article 68
Protection of the victims and witnesses and their participation
in the proceedings
1. The Court shall take appropriate measures to protect the
safety, physical and psychological well-being, dignity and privacy
of victims and witnesses. In so doing, the Court shall have regard
to all relevant factors, including age, gender as defined in article
7, paragraph 3, and health, and the nature of the crime, in
particular, but not limited to, where the crime involves sexual or
gender violence or violence against children. The Prosecutor shall
take such measures particularly during the investigation and
prosecution of such crimes. These measures shall not be prejudicial
to or inconsistent with the rights of the accused and a fair and
impartial trial.
2. As an exception to the principle of public hearings
provided for in article 67, the Chambers of the Court may, to
protect victims and witnesses or an accused, conduct any part of the
proceedings in camera or allow the presentation of evidence by
electronic or other special means. In particular, such measures
shall be implemented in the case of a victim of sexual violence or a
child who is a victim or a witness, unless otherwise ordered by the
Court, having regard to all the circumstances, particularly the
views of the victim or witness.
3. Where the personal interests of the victims are affected,
the Court shall permit their views and concerns to be presented and
considered at stages of the proceedings determined to be 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. Such views and concerns may be presented by the legal
representatives of the victims where the Court considers it
appropriate, in accordance with the Rules of Procedure and Evidence.
4. The Victims and Witnesses Unit may advise the Prosecutor
and the Court on appropriate protective measures, security
arrangements, counselling and assistance as referred to in article
43, paragraph 6.
5. Where the disclosure of evidence or information pursuant
to this Statute may lead to the grave endangerment of the security
of a witness or his or her family, the Prosecutor may, for the
purposes of any proceedings conducted prior to the commencement of
the trial, withhold such evidence or information and instead submit
a summary thereof. Such measures shall be exercised in a manner
which is not prejudicial to or inconsistent with the rights of the
accused and a fair and impartial trial.
6. A State may make an application for necessary measures to
be taken in respect of the protection of its servants or agents and
the protection of confidential or sensitive information.
Article 69
Evidence
1. Before testifying, each witness shall, in accordance with
the Rules of Procedure and Evidence, give an undertaking as to the
truthfulness of the evidence to be given by that witness.
2. The testimony of a witness at trial shall be given in
person, except to the extent provided by the measures set forth in
article 68 or in the Rules of Procedure and Evidence. The Court may
also permit the giving of viva voce (oral) or recorded testimony of
a witness by means of video or audio technology, as well as the
introduction of documents or written transcripts, subject to this
Statute and in accordance with the Rules of Procedure and Evidence.
These measures shall not be prejudicial to or inconsistent with the
rights of the accused.
3. The parties may submit evidence relevant to the case, in
accordance with article 64. The Court shall have the authority to
request the submission of all evidence that it considers necessary
for the determination of the truth.
4. The Court may rule on the relevance or admissibility of
any evidence, taking into account, inter alia , the probative value
of the evidence and any prejudice that such evidence may cause to a
fair trial or to a fair evaluation of the testimony of a witness, in
accordance with the Rules of Procedure and Evidence.
5. The Court shall respect and observe privileges on
confidentiality as provided for in the Rules of Procedure and
Evidence.
6. The Court shall not require proof of facts of common
knowledge but may take judicial notice of them.
7. Evidence obtained by means of a violation of this Statute
or internationally recognized human rights shall not be admissible
if:
( a ) The violation casts substantial doubt on the
reliability of the evidence; or
( b ) The admission of the evidence would be antithetical to
and would seriously damage the integrity of the proceedings.
8. When deciding on the relevance or admissibility of
evidence collected by a State, the Court shall not rule on the
application of the State's national law.
Article 70
Offences against the administration of justice
1. The Court shall have jurisdiction over the following
offences against its administration of justice when committed
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 testimony 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.
2. 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. The
conditions for providing international cooperation to the Court with
respect to its proceedings under this article shall be governed by
the domestic laws of the requested State.
3. In the event of conviction, the Court may impose a term
of imprisonment not exceeding five years, or a fine in accordance
with the Rules of Procedure and Evidence, or both.
4. ( a ) Each State Party shall extend its criminal
laws penalizing offences against the integrity of its own
investigative or judicial process to offences against the
administration of justice referred to in this article, committed on
its territory, or by one of its nationals;
( b ) Upon request by the Court, whenever it deems it
proper, the State Party shall submit the case to its competent
authorities for the purpose of prosecution. Those authorities shall
treat such cases with diligence and devote sufficient resources to
enable them to be conducted effectively.
Article 71
Sanctions for misconduct before the Court
1. The Court may sanction persons present before it who
commit misconduct, including disruption of its proceedings or
deliberate refusal to comply with its directions, by administrative
measures other than imprisonment, such as temporary or permanent
removal from the courtroom, a fine or other similar measures
provided for in the Rules of Procedure and Evidence.
2. The procedures governing the imposition of the measures
set forth in paragraph 1 shall be those provided for in the Rules of
Procedure and Evidence.
Article 72
Protection of national security information
1. This article applies 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. Such cases
include those falling within the scope of article 56, paragraphs 2
and 3, article 61, paragraph 3, article 64, paragraph 3, article 67,
para-graph 2, article 68, paragraph 6, article 87, paragraph 6
and article 93, as well as cases arising at any other stage of the
proceedings where such disclosure may be at issue.
2. This article shall also apply when a person who has been
requested to give information or evidence has refused to do so or
has referred the matter to the State on the ground that disclosure
would prejudice the national security interests of a State and the
State concerned confirms that it is of the opinion that disclosure
would prejudice its national security interests.
3. Nothing in this article shall prejudice the requirements
of confidentiality applicable under article 54, paragraph 3 ( e )
and ( f ), or the application of article 73.
4. If a State learns that information or documents of the
State are being, or are likely to be, disclosed at any stage of the
proceedings, and it is of the opinion that disclosure would
prejudice its national security interests, that State shall have the
right to intervene in order to obtain resolution of the issue in
accordance with this article.
5. If, in the opinion of a State, disclosure of information
would 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 cooperative
means. Such steps may include:
( a ) Modification or clarification of the request;
( b ) A determination by the Court regarding the relevance
of the information or evidence sought, or a determination as to
whether the evidence, though relevant, could be or has been obtained
from a source other than the requested State;
( c ) Obtaining the information or evidence from a different
source or in a different form; or
( d ) Agreement on conditions under which the assistance
could be provided including, among other things, providing summaries
or redactions, limitations on disclosure, use of in camera or ex
parte proceedings, or other protective measures permissible under
the Statute and the Rules of Procedure and Evidence.
6. 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, it shall so notify the Prosecutor or
the Court of the specific reasons for its decision, unless a
specific description of the reasons would itself necessarily result
in such prejudice to the State's national security interests.
7. Thereafter, if the Court determines that the evidence is
relevant and necessary for the establishment of the guilt or
innocence of the accused, the Court may undertake the following
actions:
( a ) Where disclosure of the information or document is
sought pursuant to a request for cooperation under Part 9 or the
circumstances described in paragraph 2, and the State has invoked
the ground for refusal referred to in article 93, para-graph 4:
(i) The Court may, before making any conclusion referred to in
subpara-graph 7 ( a ) (ii), request further consultations for
the purpose of considering the State's representations, which may
include, as appropriate, hearings in camera and ex parte ;
(ii) If the Court concludes that, by invoking the ground for
refusal under article 93, paragraph 4, in the circumstances of the
case, the requested State is not acting in accordance with its
obligations under this Statute, the Court may refer the matter in
accordance with article 87, paragraph 7, specifying the reasons
for its conclusion; and
(iii) The Court may make such inference in the trial of the
accused as to the existence or non-existence of a fact, as may be
appropriate in the circumstances; or
( b ) In all other circumstances:
(i) Order disclosure; or
(ii) To the extent it does not order disclosure, make such
inference in the trial of the accused as to the existence or
non-existence of a fact, as may be appropriate in the circumstances.
Article 73
Third-party information or documents
If a State Party is requested by the Court to provide a document
or information in its custody, possession or control, which was
disclosed to it in confidence by a State, intergovernmental
organization or international organization, it shall seek the
consent of the originator to disclose that document or information.
If the originator is a State Party, it shall either consent to
disclosure of the information or document or undertake to resolve
the issue of disclosure with the Court, subject to the provisions of
article 72. If the originator is not a State Party and refuses to
consent to disclosure, the requested 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.
Article 74
Requirements for the decision
1. All the judges of the Trial Chamber shall be present at
each stage of the trial and throughout their deliberations. The
Presidency may, on a case-by-case basis, designate, as available,
one or more alternate judges to be present at each stage of the
trial and to replace a member of the Trial Chamber if that member is
unable to continue attending.
2. The Trial Chamber's decision shall be based on its
evaluation of the evidence and the entire proceedings. The decision
shall not exceed the facts and circumstances described in the
charges and any amendments to the charges. The Court may base its
decision only on evidence submitted and discussed before it at the
trial.
3. The judges shall attempt to achieve unanimity in their
decision, failing which the decision shall be taken by a majority of
the judges.
4. The deliberations of the Trial Chamber shall remain
secret.
5. The decision shall be in writing and shall contain a full
and reasoned statement of the Trial Chamber's findings on the
evidence and conclusions. The Trial Chamber shall issue one
decision. When there is no unanimity, the Trial Chamber's decision
shall contain the views of the majority and the minority. The
decision or a summary thereof shall be delivered in open court.
Article 75
Reparations to victims
1. The Court shall establish principles relating to
reparations to, or in respect of, victims, including restitution,
compensation and rehabilitation. On this basis, in its decision the
Court may, either upon request or on its own motion in exceptional
circumstances, determine the scope and extent of any damage, loss
and injury to, or in respect of, victims and will state the
principles on which it is acting.
2. The Court may make an order directly against a convicted
person specifying appropriate reparations to, or in respect of,
victims, including restitution, compensation and rehabilitation.
Where appropriate, the Court may order that the award for
reparations be made through the Trust Fund provided for in article
79.
3. Before making an order under this article, the Court may
invite and shall take account of representations from or on behalf
of the convicted person, victims, other interested persons or
interested States.
4. In exercising its power under this article, the Court
may, after a person is convicted of a crime within the jurisdiction
of the Court, determine whether, in order to give effect to an order
which it may make under this article, it is necessary to seek
measures under article 93, paragraph 1.
5. A State Party shall give effect to a decision under this
article as if the provisions of article 109 were applicable to this
article.
6. Nothing in this article shall be interpreted as
prejudicing the rights of victims under national or international
law.
Article 76
Sentencing
1. In the event of a conviction, the Trial Chamber shall
consider the appropriate sentence to be imposed and shall take into
account the evidence presented and submissions made during the trial
that are relevant to the sentence.
2. Except where article 65 applies and before the completion
of the trial, the Trial Chamber may on its own motion and shall, at
the request of the Prosecutor or the accused, hold a further hearing
to hear any additional evidence or submissions relevant to the
sentence, in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under
article 75 shall be heard during the further hearing referred to in
paragraph 2 and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and, wherever
possible, in the presence of the accused.
Part 7. Penalties
Article 77
Applicable penalties
1. Subject to article 110, the Court may impose one of the
following penalties on a person convicted of a crime referred to in
article 5 of this Statute:
( a ) Imprisonment for a specified number of years, which
may not exceed a maximum of 30 years; or
( b ) A term of life imprisonment when justified by the
extreme gravity of the crime and the individual circumstances of the
convicted person.
2. In addition to imprisonment, the Court may order:
( a ) A fine under the criteria provided for in the Rules of
Procedure and Evidence;
( b ) A forfeiture of proceeds, property and assets derived
directly or indirectly from that crime, without prejudice to the
rights of bona fide third parties.
Article 78
Determination of the sentence
1. In determining the sentence, the Court shall, in
accordance with the Rules of Procedure and Evidence, take into
account such factors as the gravity of the crime and the individual
circumstances of the convicted person.
2. In imposing a sentence of imprisonment, the Court shall
deduct the time, if any, previously spent in detention in accordance
with an order of the Court. The Court may deduct any time otherwise
spent in detention in connection with conduct underlying the crime.
3. When a person has been convicted of more than one crime,
the Court shall pronounce a sentence for each crime and a joint
sentence specifying the total period of imprisonment. This period
shall be no less than the highest individual sentence pronounced and
shall not exceed 30 years imprisonment or a sentence of life
imprisonment in conformity with article 77, paragraph 1 ( b ).
Article 79
Trust Fund
1. A Trust Fund shall be established by decision of the
Assembly of States Parties for the benefit of victims of crimes
within the jurisdiction of the Court, and of the families of such
victims.
2. The Court may order money and other property collected
through fines or forfeiture to be transferred, by order of the
Court, to the Trust Fund.
3. The Trust Fund shall be managed according to criteria to be
determined by the Assembly of States Parties.
Article 80
Non-prejudice to national application of penalties and national
laws
Nothing in this Part affects the application by States of
penalties prescribed by their national law, nor the law of States
which do not provide for penalties prescribed in this Part.
Part 8. Appeal and revision
Article 81
Appeal against decision of acquittal or conviction or against
sentence
1. A decision under article 74 may be appealed in accordance
with the Rules of Procedure and Evidence as follows:
( a ) The Prosecutor may make an appeal on any of the
following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
( b ) The convicted person, or the Prosecutor on that
person's behalf, may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of
the proceedings or decision.
2. ( a ) A sentence may be appealed, in
accordance with the Rules of Procedure and Evidence, by the
Prosecutor or the convicted person on the ground of disproportion
between the crime and the sentence;
( b ) If on an appeal against sentence the Court considers
that there are grounds on which the conviction might be set aside,
wholly or in part, it may invite the Prosecutor and the convicted
person to submit grounds under article 81, paragraph 1 ( a ) or ( b
), and may render a decision on conviction in accordance with
article 83;
( c ) The same procedure applies when the
Court, on an appeal against conviction only, considers that there
are grounds to reduce the sentence under para-graph 2 ( a
).
3. ( a ) Unless the Trial Chamber orders otherwise, a
convicted person shall remain in custody pending an appeal;
( b ) When a convicted person's time in custody exceeds the
sentence of imprisonment imposed, that person shall be released,
except that if the Prosecutor is also appealing, the release may be
subject to the conditions under subparagraph ( c ) below;
( c ) In case of an acquittal, the accused
shall be released immediately, subject to the following:
(i) Under exceptional circumstances, and having regard, inter
alia , to the concrete risk of flight, the seriousness of the
offence charged and the probability of success on appeal, the Trial
Chamber, at the request of the Prosecutor, may maintain the
detention of the person pending appeal;
(ii) A decision by the Trial Chamber under subparagraph ( c ) (i)
may be appealed in accordance with the Rules of Procedure and
Evidence.
4. Subject to the provisions of paragraph 3 ( a ) and ( b ),
execution of the decision or sentence shall be suspended during the
period allowed for appeal and for the duration of the appeal
proceedings.
Article 82
Appeal against other decisions
1. Either party may appeal any of the following decisions in
accordance with the Rules of Procedure and Evidence:
( a ) A decision with respect to jurisdiction or
admissibility;
( b ) A decision granting or denying release of the person
being investigated or prosecuted;
( c ) A decision of the Pre-Trial Chamber to act on its own
initiative under article 56, paragraph 3;
( d ) A decision that involves an issue that would
significantly affect the fair and expeditious conduct of the
proceedings or the outcome of the trial, and for which, in the
opinion of the Pre-Trial or Trial Chamber, an immediate resolution
by the Appeals Chamber may materially advance the proceedings.
2. A decision of the Pre-Trial Chamber under article 57,
paragraph 3 ( d ), may be appealed against by the State concerned or
by the Prosecutor, with the leave of the Pre-Trial Chamber. The
appeal shall be heard on an expedited basis.
3. An appeal shall not of itself have suspensive effect
unless the Appeals Chamber so orders, upon request, in accordance
with the Rules of Procedure and Evidence.
4. A legal representative of the victims, the convicted
person or a bona fide owner of property adversely affected by an
order under article 75 may appeal against the order for reparations,
as provided in the Rules of Procedure and Evidence.
Article 83
Proceedings on appeal
1. For the purposes of proceedings under article 81 and this
article, the Appeals Chamber shall have all the powers of the Trial
Chamber.
2. If the Appeals Chamber finds that the proceedings
appealed from were unfair in a way that affected the reliability of
the decision or sentence, or that the decision or sentence appealed
from was materially affected by error of fact or law or procedural
error, it may:
( a ) Reverse or amend the decision or sentence; or
( b ) Order a new trial before a different Trial Chamber.
For these purposes, the Appeals Chamber may remand a factual
issue to the original Trial Chamber for it to determine the issue
and to report back accordingly, or may itself call evidence to
determine the issue. When the decision or sentence has been appealed
only by the person convicted, or the Prosecutor on that person's
behalf, it cannot be amended to his or her detriment.
3. If in an appeal against sentence the Appeals Chamber
finds that the sentence is disproportionate to the crime, it may
vary the sentence in accordance with Part 7.
4. The judgement of the Appeals Chamber shall be taken by a
majority of the judges and shall be delivered in open court. The
judgement shall state the reasons on which it is based. When there
is no unanimity, the judgement of the Appeals Chamber shall contain
the views of the majority and the minority, but a judge may deliver
a separate or dissenting opinion on a question of law.
5. The Appeals Chamber may deliver its judgement in the
absence of the person acquitted or convicted.
Article 84
Revision of conviction or sentence
1. The convicted person or, after death, spouses, children,
parents or one person alive at the time of the accused's death who
has been given express written instructions from the accused to
bring such a claim, or the Prosecutor on the person's behalf, may
apply to the Appeals Chamber to revise the final judgement of
conviction or sentence on the grounds that:
( a ) New evidence has been discovered that:
(i) Was not available at the time of trial, and such
unavailability was not wholly or partially attributable to the party
making application; and
(ii) Is sufficiently important that had it been proved at trial
it would have been likely to have resulted in a different verdict;
( b ) It has been newly discovered that decisive evidence,
taken into account at trial and upon which the conviction depends,
was false, forged or falsified;
( c ) One or more of the judges who participated in
conviction or confirmation of the charges has committed, in that
case, an act of serious misconduct or serious breach of duty of
sufficient gravity to justify the removal of that judge or those
judges from office under article 46.
2. The Appeals Chamber shall reject the application if it
considers it to be unfounded. If it determines that the application
is meritorious, it may, as appropriate:
( a ) Reconvene the original Trial Chamber;
( b ) Constitute a new Trial Chamber; or
( c ) Retain jurisdiction over the matter,
with a view to, after hearing the parties in the manner set forth
in the Rules of Procedure and Evidence, arriving at a determination
on whether the judgement should be revised.
Article 85
Compensation to an arrested or convicted person
1. Anyone who has been the victim of unlawful arrest or
detention shall have an enforceable right to compensation.
2. When a person has by a final decision been convicted of a
criminal offence, and when subsequently his or her conviction has
been reversed on the ground that a new or newly discovered fact
shows conclusively that there has been a miscarriage of justice, the
person who has suffered punishment as a result of such conviction
shall be compensated according to law, unless it is proved that the
non-disclosure of the unknown fact in time is wholly or partly
attributable to him or her.
3. In exceptional circumstances, where the Court finds
conclusive facts showing that there has been a grave and manifest
miscarriage of justice, it may in its discretion award compensation,
according to the criteria provided in the Rules of Procedure and
Evidence, to a person who has been released from detention following
a final decision of acquittal or a termination of the proceedings
for that reason.
Part 9. International cooperation and judicial assistance
Article 86
General obligation to cooperate
States Parties shall, in accordance with the provisions of this
Statute, cooperate fully with the Court in its investigation and
prosecution of crimes within the jurisdiction of the Court.
Article 87
Requests for cooperation: general provisions
1. ( a ) The Court shall have the authority to make
requests to States Parties for cooperation. The requests 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.
Subsequent changes to the designation shall be made by each State
Party in accordance with the Rules of Procedure and Evidence.
( b ) When appropriate, without prejudice to the provisions
of subpara-graph ( a ), requests may also be transmitted
through the International Criminal Police Organization or any
appropriate regional organization.
2. Requests for cooperation and any documents supporting the
request shall either be in or be accompanied by a translation into
an official language of the requested State or one of the working
languages of the Court, in accordance with the choice made by that
State upon ratification, acceptance, approval or accession.
Subsequent changes to this choice shall be made in accordance
with the Rules of Procedure and Evidence.
3. The requested State shall keep confidential a request for
cooperation and any documents supporting the request, except to the
extent that the disclosure is necessary for execution of the
request.
4. In relation to any request for assistance presented under
this Part, the Court may take such measures, including measures
related to the protection of information, as may be necessary to
ensure the safety or physical or psychological well-being of any
victims, potential witnesses and their families. The Court may
request that any information that is made available under this Part
shall be provided and handled in a manner that protects the safety
and physical or psychological well-being of any victims, potential
witnesses and their families.
5. ( a ) The Court may invite any State not party to
this Statute to provide assistance under this Part on the basis of
an ad hoc arrangement, an agreement with such State or any other
appropriate basis.
( b ) Where a State not party to this Statute, which has
entered into an ad hoc arrangement or an agreement with the Court,
fails to cooperate with requests pursuant to any such arrangement or
agreement, the Court may so inform the Assembly of States Parties
or, where the Security Council referred the matter to the Court, the
Security Council.
6. The Court may ask any intergovernmental organization to
provide information or documents. The Court may also ask for other
forms of cooperation and assistance which may be agreed upon with
such an organization and which are in accordance with its competence
or mandate.
7. Where a State Party fails to comply with a request to
cooperate by the Court contrary to the provisions of this Statute,
thereby preventing the Court from exercising its functions and
powers under this 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 referred the matter to the Court, to the
Security Council.
Article 88
Availability of procedures under national law
States Parties shall ensure that there are procedures available
under their national law for all of the forms of cooperation which
are specified under this Part.
Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and
surrender of a person, together with the material supporting the
request outlined in article 91, to any State on the territory of
which that person may be found and shall request the cooperation of
that State in the arrest and surrender of such a person. States
Parties shall, in accordance with the provisions of this Part and
the procedure under their national law, comply with requests for
arrest and surrender.
2. Where the person sought for surrender brings a challenge
before a national court on the basis of the principle of ne bis in
idem as provided in article 20, the requested State shall
immediately consult with the Court to determine if there has been a
relevant ruling on admissibility. If the case is admissible, the
requested State shall proceed with the execution of the request. If
an admissibility ruling is pending, the requested State may postpone
the execution of the request for surrender of the person until the
Court makes a determination on admissibility.
3. ( a ) A State Party shall authorize, in accordance
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.
( b ) A request by the Court for transit shall be
transmitted in accordance with article 87. The request for transit
shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal
characterization; and
(iii) The warrant for arrest and surrender;
( c ) A person being transported shall be detained in
custody during the period of transit;
( d ) No authorization is required if the person is
transported by air and no landing is scheduled on the territory of
the transit State;
( e ) If an unscheduled landing occurs on the territory of
the transit State, that State may require a request for transit from
the Court as provided for in subparagraph ( b ). The transit State
shall detain the person being transported until the request for
transit is received and the transit is effected, provided that
detention for purposes of this subparagraph may not be extended
beyond 96 hours from the unscheduled landing unless the request is
received within that time.
4. If the person sought is being proceeded against or is
serving a sentence in the requested State for a crime different from
that for which surrender to the Court is sought, the requested
State, after making its decision to grant the request, shall consult
with the Court.
Article 90
Competing requests
1. A State Party which receives a request from the Court for
the surrender of a person under article 89 shall, if it also
receives a request from any other State for the extradition of the
same person for the same conduct which forms the basis of the crime
for which the Court seeks the person's surrender, notify the Court
and the requesting State of that fact.
2. Where the requesting State is a State Party, the
requested State shall give priority to the request from the Court
if:
( a ) The Court has, pursuant to article 18 or 19, made a
determination that the case in respect of which surrender is sought
is admissible and that determination takes into account the
investigation or prosecution conducted by the requesting State in
respect of its request for extradition; or
( b ) The Court makes the determination described in
subparagraph ( a ) pursuant to the requested State's notification
under paragraph 1.
3. Where a determination under paragraph 2 ( a ) has not
been made, the requested State may, at its discretion, pending the
determination of the Court under paragraph 2 ( b ), proceed to deal
with the request for extradition from the requesting State but shall
not extradite the person until the Court has determined that the
case is inadmissible. The Court's determination shall be made on an
expedited basis.
4. If the requesting State is a State not Party to this
Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall
give priority to the request for surrender from the Court, if the
Court has determined that the case is admissible.
5. Where a case under paragraph 4 has not been determined to
be admissible by the Court, the requested State may, at its
discretion, proceed to deal with the request for extradition from
the requesting State.
6. In cases where paragraph 4 applies except that the
requested State is under an existing international obligation to
extradite the person to the requesting State not Party to this
Statute, the requested State shall determine whether to surrender
the person to the Court or extradite the person to the requesting
State. In making its decision, the requested State shall consider
all the relevant factors, including but not limited to:
( a ) The respective dates of the requests;
( b ) The interests of the requesting State including, where
relevant, whether the crime was committed in its territory and the
nationality of the victims and of the person sought; and
( c ) The possibility of subsequent surrender between the
Court and the requesting State.
7. Where a State Party which receives a request from the
Court for the surrender of a person also receives a request from any
State for the extradition of the same person for conduct other than
that which constitutes the crime for which the Court seeks the
person's surrender:
( a ) The requested State shall, if it is not under an
existing international obligation to extradite the person to the
requesting State, give priority to the request from the Court;
( b ) The requested State shall, if it is under an existing
international obligation to extradite the person to the requesting
State, determine whether to surrender the person to the Court or to
extradite the person to the requesting State. In making its
decision, the requested State shall consider all the relevant
factors, including but not limited to those set out in paragraph 6,
but shall give special consideration to the relative nature and
gravity of the conduct in question.
8. Where pursuant to a notification under this article, the
Court has determined a case to be inadmissible, and subsequently
extradition to the requesting State is refused, the requested State
shall notify the Court of this decision.
Article 91
Contents of request for arrest and surrender
1. A request for arrest and surrender shall be made in
writing. In urgent cases, a request may be made by any medium
capable of delivering a written record, provided that the request
shall be confirmed through the channel provided for in article 87,
paragraph 1 ( a ).
2. In the case of a request for the arrest and surrender of
a person for whom a warrant of arrest has been issued by the
Pre-Trial Chamber under article 58, the request shall contain or be
supported by:
( a ) Information describing the person sought, sufficient
to identify the person, and information as to that person's probable
location;
( b ) A copy of the warrant of arrest; and
( c ) Such documents, statements or information as may be
necessary to meet the requirements for the surrender process in the
requested State, except that those requirements should not be more
burdensome than those applicable to requests for extradition
pursuant to treaties or arrangements between the requested State and
other States and should, if possible, be less burdensome, taking
into account the distinct nature of the Court.
3. In the case of a request for the arrest and surrender of
a person already convicted, the request shall contain or be
supported by:
( a ) A copy of any warrant of arrest for that person;
( b ) A copy of the judgement of conviction;
( c ) Information to demonstrate that the person sought is
the one referred to in the judgement of conviction; and
( d ) If the person sought has been sentenced, a copy of the
sentence imposed and, in the case of a sentence for imprisonment, a
statement of any time already served and the time remaining to be
served.
4. Upon the request of the Court, a State Party shall
consult with the Court, either generally or with respect to a
specific matter, regarding any requirements under its national law
that may apply under paragraph 2 ( c ). During the consultations,
the State Party shall advise the Court of the specific requirements
of its national law.
Article 92
Provisional arrest
1. In urgent cases, the Court may request the provisional
arrest of the person sought, pending presentation of the request for
surrender and the documents supporting the request as specified in
article 91.
2. The request for provisional arrest shall be made by any
medium capable of delivering a written record and shall contain:
( a ) Information describing the person sought, sufficient
to identify the person, and information as to that person's probable
location;
( b ) A concise statement of the crimes for which the
person's arrest is sought and of the facts which are alleged to
constitute those crimes, including, where possible, the date and
location of the crime;
( c ) A statement of the existence of a warrant of arrest or
a judgement of conviction against the person sought; and
( d ) A statement that a request for surrender of the person
sought will follow.
3. A person who is provisionally arrested may be released
from custody if the requested State has not received the request for
surrender and the documents supporting the request as specified in
article 91 within the time limits specified in the Rules of
Procedure and Evidence. However, the person may consent to surrender
before the expiration of this period if permitted by the law of the
requested State. In such a case, the requested State shall proceed
to surrender the person to the Court as soon as possible.
4. The fact that the person sought has been released from
custody pursuant to paragraph 3 shall not prejudice the subsequent
arrest and surrender of that person if the request for surrender and
the documents supporting the request are delivered at a later date.
Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions
of this Part and under procedures of national law, comply with
requests by the Court to provide the following assistance in
relation to investigations or prosecutions:
( a ) The identification and whereabouts of persons or the
location of items;
( b ) The taking of evidence, including testimony under
oath, and the production of evidence, including expert opinions and
reports necessary to the Court;
( c ) The questioning of any person being investigated or
prosecuted;
( d ) The service of documents, including judicial
documents;
( e ) Facilitating the voluntary appearance of persons as
witnesses or experts before the Court;
( f ) The temporary transfer of persons as provided in
paragraph 7;
( g ) The examination of places or sites, including the
exhumation and examination of grave sites;
( h ) The execution of searches and seizures;
( i ) The provision of records and documents, including
official records and documents;
( j ) The protection of victims and witnesses and the
preservation of evidence;
( k ) The identification, tracing and freezing or seizure of
proceeds, property and assets and instrumentalities of crimes for
the purpose of eventual forfeiture, without prejudice to the rights
of bona fide third parties; and
( l ) 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.
2. The Court shall have the authority to provide an
assurance to a witness or an expert appearing before the Court that
he or she will not be prosecuted, detained or subjected to any
restriction of personal freedom by the Court in respect of any act
or omission that preceded the departure of that person from the
requested State.
3. Where execution of a particular measure of assistance
detailed in a request presented under paragraph 1, is prohibited in
the requested State on the basis of an existing fundamental legal
principle of general application, the requested State shall promptly
consult with the Court to try to resolve the matter. In the
consultations, consideration should be given to whether the
assistance can be rendered in another manner or subject to
conditions. If after consultations the matter cannot be resolved,
the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a
request for assistance, in whole or in part, only if the request
concerns the production of any documents or disclosure of evidence
which relates to its national security.
5. Before denying a request for assistance 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.
6. If a request for assistance is denied, the requested
State Party shall promptly inform the Court or the Prosecutor of the
reasons for such denial.
7. ( a ) The Court may request the temporary transfer
of a person in custody for purposes of identification or for
obtaining testimony or other assistance. The person may be
transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the
transfer; and
(ii) The requested State agrees to the transfer, subject to such
conditions as that State and the Court may agree.
( b ) The person being transferred shall remain in custody.
When the purposes of the transfer have been fulfilled, the Court
shall return the person without delay to the requested State.
8. ( a ) The Court shall ensure the confidentiality of
documents and information, except as required for the investigation
and proceedings described in the request.
( b ) The requested State may, when necessary, transmit
documents or information to the Prosecutor on a confidential basis.
The Prosecutor may then use them solely for the purpose of
generating new evidence.
( c ) The requested State may, on its own motion or at the
request of the Prosecutor, subsequently consent to the disclosure of
such documents or information. They may then be used as evidence
pursuant to the provisions of Parts 5 and 6 and in accordance with
the Rules of Procedure and Evidence.
9. ( a )
(i) In the event that a State Party receives competing
requests, other than for surrender or extradition, from the Court
and from another State pursuant to an international obligation, the
State Party shall endeavour, in consultation with the Court and the
other State, to meet both requests, if necessary by postponing or
attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in
accordance with the principles established in article 90.
( b ) Where, however, the request from the Court concerns
information, property or persons which are subject to the control of
a third State or an international organization by virtue of an
international agreement, the requested States shall so inform the
Court and the Court shall direct its request to the third State or
international organization.
10. ( a ) The Court may, upon request, cooperate with
and provide assistance to a State Party conducting an investigation
into or trial in respect of conduct which constitutes a crime within
the jurisdiction of the Court or which constitutes a serious crime
under the national law of the requesting State.
( b )
(i) The assistance provided under subparagraph ( a ) shall
include, inter alia :
a. The transmission of statements, documents or other types
of evidence obtained in the course of an investigation or a trial
conducted by the Court; and
b. The questioning of any person detained by
order of the Court;
(ii) In the case of assistance under subparagraph ( b ) (i)
a:
a. If the documents or other types of evidence have been
obtained with the assistance of a State, such transmission shall
require the consent of that State;
b. If the statements, documents or other types of evidence
have been provided by a witness or expert, such transmission shall
be subject to the provisions of article 68.
( c ) The Court may, under the conditions set out in this
paragraph, grant a request for assistance under this paragraph from
a State which is not a Party to this Statute.
Article 94
Postponement of execution of a request in respect of ongoing
investigation
or prosecution
1. If the immediate execution of a request would interfere
with an ongoing investigation or prosecution of a case different
from that to which the request relates, the requested State may
postpone the execution of the request for a period of time agreed
upon with the Court. However, the postponement shall be no longer
than is necessary to complete the relevant investigation or
prosecution in the requested State. Before making a decision to
postpone, the requested State should consider whether the assistance
may be immediately provided subject to certain conditions.
2. If a decision to postpone is taken pursuant to paragraph
1, the Prosecutor may, however, seek measures to preserve evidence,
pursuant to article 93, para-graph 1 ( j ).
Article 95
Postponement of execution of a request in respect of an
admissibility challenge
Where there is an admissibility challenge under consideration by
the Court pursuant to article 18 or 19, the requested State may
postpone the execution of a request under this Part pending a
determination by the Court, unless the Court has specifically
ordered that the Prosecutor may pursue the collection of such
evidence pursuant to article 18 or 19.
Article 96
Contents of request for other forms of assistance under article
93
1. A request for other forms of assistance referred to in
article 93 shall be made in writing. In urgent cases, a request may
be made by any medium capable of delivering a written record,
provided that the request shall be confirmed through the channel
provided for in article 87, paragraph 1 ( a ).
2. The request shall, as applicable, contain or be supported
by the following:
( a ) A concise statement of the purpose of the request and
the assistance sought, including the legal basis and the grounds for
the request;
( b ) As much detailed information as possible about the
location or identification of any person or place that must be found
or identified in order for the assistance sought to be provided;
( c ) A concise statement of the essential facts underlying
the request;
( d ) The reasons for and details of any procedure or
requirement to be followed;
( e ) Such information as may be required under the law of
the requested State in order to execute the request; and
( f ) Any other information relevant in order for the
assistance sought to be provided.
3. Upon the request of the Court, a State Party shall
consult with the Court, either generally or with respect to a
specific matter, regarding any requirements under its national law
that may apply under paragraph 2 ( e ). During the consultations,
the State Party shall advise the Court of the specific requirements
of its national law.
4. The provisions of this article shall, where applicable,
also apply in respect of a request for assistance made to the Court.
Article 97
Consultations
Where a State Party receives a request under this Part in
relation to which it identifies problems which may impede or prevent
the execution of the request, that State shall consult with the
Court without delay in order to resolve the matter. Such problems
may include, inter alia :
( a ) Insufficient information to execute the request;
( b ) In the case of a request for surrender, the fact that
despite best efforts, the person sought cannot be located or that
the investigation conducted has determined that the person in the
requested State is clearly not the person named in the warrant; or
( c ) The fact that execution of the request in its current
form would require the requested State to breach a pre-existing
treaty obligation undertaken with respect to another State.
Article 98
Cooperation with respect to waiver of immunity and consent to
surrender
1. The Court may not proceed with a request for surrender or
assistance which would require the requested State to act
inconsistently with its obligations under international law with
respect to the State or diplomatic immunity of a person or property
of a third State, unless the Court can first obtain the cooperation
of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender
which would require the requested State to act inconsistently with
its obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the
surrender.
Article 99
Execution of requests under articles 93 and 96
1. Requests for assistance shall be executed in accordance
with the relevant procedure under the law of the requested State
and, unless prohibited by such law, in the manner specified in the
request, including following any procedure outlined therein or
permitting persons specified in the request to be present at and
assist in the execution process.
2. In the case of an urgent request, the documents or
evidence produced in response shall, at the request of the Court, be
sent urgently.
3. Replies from the requested State shall be transmitted in
their original language and form.
4. Without prejudice to other articles in this Part, where
it is necessary for the successful execution of a request which can
be executed without any compulsory measures, including specifically
the interview of or taking evidence from a person on a voluntary
basis, including doing so without the presence of the authorities of
the requested State Party if it is essential for the request to be
executed, and the examination without modification of a public site
or other public place, the Prosecutor may execute such request
directly on the territory of a State as follows:
( a ) When the State Party requested is a State on the
territory of which the crime is alleged to have been committed, and
there has been a determination of admissibility pursuant to article
18 or 19, the Prosecutor may directly execute such request following
all possible consultations with the requested State Party;
( b ) In other cases, the Prosecutor may execute such
request following consultations with the requested State Party and
subject to any reasonable conditions or concerns raised by that
State Party. Where the requested State Party identifies problems
with the execution of a request pursuant to this subparagraph it
shall, without delay, consult with the Court to resolve the matter.
5. Provisions allowing a person heard or examined by the
Court under article 72 to invoke restrictions designed to prevent
disclosure of confidential information connected with national
security shall also apply to the execution of requests for
assistance under this article.
Article 100
Costs
1. The ordinary costs for execution of requests in the
territory of the requested State shall be borne by that State,
except for the following, which shall be borne by the Court:
( a ) Costs associated with the travel and security of
witnesses and experts or the transfer under 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 custodial State; and
( f ) Following consultations, any extraordinary costs that
may result from the execution of a request.
2. The provisions of paragraph 1 shall, as appropriate,
apply to requests from States Parties to the Court. In that case,
the Court shall bear the ordinary costs of execution.
Article 101
Rule of speciality
1. A person surrendered to the Court under this Statute
shall not be proceeded against, punished or detained for any conduct
committed prior to surrender, other than the conduct or course of
conduct which forms the basis of the crimes for which that person
has been surrendered.
2. The Court may request a waiver of the requirements of
paragraph 1 from the State which surrendered the person to the Court
and, if necessary, the Court shall provide additional information in
accordance with article 91. States Parties shall have the authority
to provide a waiver to the Court and should endeavour to do so.
Article 102
Use of terms
For the purposes of this Statute:
( a ) "surrender" means the delivering up of a person by a
State to the Court, pursuant to this Statute.
( b ) "extradition" means the delivering up of a person by
one State to another as provided by treaty, convention or national
legislation.
Part 10. Enforcement
Article 103
Role of States in enforcement of sentences of imprisonment
1. ( a ) A sentence of imprisonment shall be served in
a State designated by the Court from a list of States which have
indicated to the Court their willingness to accept sentenced
persons.
( b ) At the time of declaring its willingness to accept
sentenced persons, a State may attach conditions to its acceptance
as agreed by the Court and in accordance with this Part.
( c ) A State designated in a particular case shall promptly
inform the Court whether it accepts the Court's designation.
2. ( a ) The State of enforcement shall notify the
Court of any circumstances, including the exercise of any conditions
agreed under paragraph 1, which could materially affect the terms or
extent of the imprisonment. The Court shall be given at least 45
days' notice of any such known or foreseeable circumstances. During
this period, the State of enforcement shall take no action that
might prejudice its obligations under article 110.
( b ) Where the Court cannot agree to the circumstances
referred to in subparagraph ( a ), it shall notify the State of
enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under
paragraph 1, the Court shall take into account the following:
( a ) The principle that States Parties should share the
responsibility for enforcing sentences of imprisonment, in
accordance with principles of equitable distribution, as provided in
the Rules of Procedure and Evidence;
( b ) The application of widely accepted international
treaty standards governing the treatment of prisoners;
( c ) The views of the sentenced person;
( d ) The nationality of the sentenced person;
( e ) Such other factors regarding the circumstances of the
crime or the person sentenced, or the effective enforcement of the
sentence, as may be appropriate in designating the State of
enforcement.
4. If no State is designated under paragraph 1, the sentence
of imprisonment shall be served in a prison facility made available
by the host State, in accordance with the conditions set out in the
headquarters agreement referred to in article 3, paragraph 2. In
such a case, the costs arising out of the enforcement of a sentence
of imprisonment shall be borne by the Court.
Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a
sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court
to be transferred from the State of enforcement.
Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in
accordance with article 103, paragraph 1 ( b ), the sentence of
imprisonment shall be binding on the States Parties, which shall in
no case modify it.
2. The Court alone shall have the right to decide any
application for appeal and revision. The State of enforcement shall
not impede the making of any such application by a sentenced person.
Article 106
Supervision of enforcement of sentences and conditions of
imprisonment
1. The enforcement of a sentence of imprisonment shall be
subject to the supervision of the Court and shall be consistent with
widely accepted international treaty standards governing treatment
of prisoners.
2. 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; in no case shall such conditions be more or less
favourable than those available to prisoners convicted of similar
offences in the State of enforcement.
3. Communications between a sentenced person and the Court
shall be unimpeded and confidential.
Article 107
Transfer of the person upon completion of sentence
1. Following completion of the sentence, a person who is not
a national of the State of enforcement may, in accordance with the
law of the State of enforcement, be transferred to a State which is
obliged to receive him or her, or to another State which agrees to
receive him or her, taking into account any wishes of the person to
be transferred to that State, unless the State of enforcement
authorizes the person to remain in its territory.
2. If no State bears the costs arising out of transferring
the person to another State pursuant to paragraph 1, such costs
shall be borne by the Court.
3. Subject to the provisions of article 108, the State of
enforcement may also, in accordance with its national law, extradite
or otherwise surrender the person to a State which has requested the
extradition or surrender of the person for purposes of trial or
enforcement of a sentence.
Article 108
Limitation on the prosecution or punishment of other offences
1. A sentenced person 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 approved by the
Court at the request of the State of enforcement.
2. The Court shall decide the matter after having heard the
views of the sentenced person.
3. Paragraph 1 shall cease to apply if the sentenced person
remains voluntarily for more than 30 days in the territory of the
State of enforcement after having served the full sentence imposed
by the Court, or returns to the territory of that State after having
left it.
Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures
ordered by the Court under Part 7, without prejudice to the rights
of bona fide third parties, and in accordance with the procedure of
their national law.
2. If a State Party is unable to give effect to an order for
forfeiture, it shall 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.
3. Property, or the proceeds of the sale of real property
or, where appropriate, the sale of other property, which is obtained
by a State Party as a result of its enforcement of a judgement of
the Court shall be transferred to the Court.
Article 110
Review by the Court concerning reduction of sentence
1. The State of enforcement shall not release the person
before expiry of the sentence pronounced by the Court.
2. The Court alone shall have the right to decide any
reduction of sentence, and shall rule on the matter after having
heard the person.
3. When the person has served two thirds of the sentence, or
25 years in the case of life imprisonment, the Court shall review
the sentence to determine whether it should be reduced. Such a
review shall not be conducted before that time.
4. In its review under paragraph 3, the Court may reduce the
sentence if it finds that one or more of the following factors are
present:
( a ) The early and continuing willingness of the person to
cooperate with the Court in its investigations and prosecutions;
( b ) The voluntary assistance of the person in enabling the
enforcement of the judgements and orders of the Court in other
cases, and in particular providing assistance in locating assets
subject to orders of fine, forfeiture or reparation which may be
used for the benefit of victims; or
( c ) Other factors establishing a clear and significant
change of circumstances sufficient to justify the reduction of
sentence, as provided in the Rules of Procedure and Evidence.
5. If the Court determines in its initial review under
paragraph 3 that it is not appropriate to reduce the sentence, it
shall thereafter review the question of reduction of sentence at
such intervals and applying such criteria as provided for in the
Rules of Procedure and Evidence.
Article 111
Escape
If a convicted person escapes from custody and flees the State of
enforcement, that State may, after consultation with the Court,
request the person's surrender from the State in which the person is
located pursuant to existing bilateral or multilateral arrangements,
or may request that the Court seek the person's surrender, in
accordance with Part 9. It may direct that the person be delivered
to the State in which he or she was serving the sentence or to
another State designated by the Court.
Part 11. Assembly of States Parties
Article 112
Assembly of States Parties
1. An Assembly of States Parties to this Statute is hereby
established. Each State Party shall have one representative in the
Assembly who may be accompanied by alternates and advisers. Other
States which have signed this Statute or the Final Act may be
observers in the Assembly.
2. The Assembly shall:
( a ) Consider and adopt, as appropriate, recommendations of
the Preparatory Commission;
( b ) Provide management oversight to the Presidency, the
Prosecutor and the Registrar regarding the administration of the
Court;
( c ) Consider the reports and activities of the Bureau
established under paragraph 3 and take appropriate action in regard
thereto;
( d ) Consider and decide the budget for the Court;
( e ) Decide whether to alter, in accordance with article
36, the number of judges;
( f ) Consider pursuant to article 87, paragraphs 5 and 7,
any question relating to non-cooperation;
( g ) Perform any other function consistent with this
Statute or the Rules of Procedure and Evidence.
3. ( a ) The Assembly shall have a Bureau consisting of
a President, two Vice-Presidents and 18 members elected by the
Assembly for three-year terms.
( b ) The Bureau shall have a representative character,
taking into account, in particular, equitable geographical
distribution and the adequate representation of the principal legal
systems of the world.
( c ) The Bureau shall meet as often as necessary, but at
least once a year. It shall assist the Assembly in the discharge of
its responsibilities.
4. The Assembly may establish such subsidiary bodies as may
be necessary, including an independent oversight mechanism for
inspection, evaluation and investigation of the Court, in order to
enhance its efficiency and economy.
5. The President of the Court, the Prosecutor and the
Registrar or their representatives may participate, as appropriate,
in meetings of the Assembly and of the Bureau.
6. The Assembly shall meet at the seat of the Court or at
the Headquarters of the United Nations once a year and, when
circumstances so require, hold special sessions. Except as otherwise
specified in this Statute, special sessions shall be convened by the
Bureau on its own initiative or at the request of one third of the
States Parties.
7. Each State Party shall have one vote. Every effort shall
be made to reach decisions by consensus in the Assembly and in the
Bureau. If consensus cannot be reached, except as otherwise provided
in the Statute:
( a ) Decisions on matters of substance must be approved by
a two-thirds majority of those present and voting provided that an
absolute majority of States Parties constitutes the quorum for
voting;
( b ) Decisions on matters of procedure shall be taken by a
simple majority of States Parties present and voting.
8. A State Party which is in arrears in the payment of its
financial contributions towards the costs of the Court shall have no
vote in the Assembly and in the Bureau if the amount of its arrears
equals or exceeds the amount of the contributions due from it for
the preceding two full years. The Assembly may, nevertheless, permit
such a State Party to vote in the Assembly and in the Bureau if it
is satisfied that the failure to pay is due to conditions beyond the
control of the State Party.
9. The Assembly shall adopt its own rules of procedure.
10. The official and working languages of the Assembly shall
be those of the General Assembly of the United Nations.
Part 12. Financing
Article 113
Financial Regulations
Except as otherwise specifically provided, all financial matters
related to the Court and the meetings of the Assembly of States
Parties, including its Bureau and subsidiary bodies, shall be
governed by this Statute and the Financial Regulations and Rules
adopted by the Assembly of States Parties.
Article 114
Payment of expenses
Expenses of the Court and the Assembly of States Parties,
including its Bureau and subsidiary bodies, shall be paid from the
funds of the Court.
Article 115
Funds of the Court and of the Assembly of States Parties
The expenses of the Court and the Assembly of States Parties,
including its Bureau and subsidiary bodies, as provided for in the
budget decided by the Assembly of States Parties, shall be provided
by the following sources:
( a ) Assessed contributions made by States Parties;
( b ) Funds provided by the United Nations, subject to the
approval of the General Assembly, in particular in relation to the
expenses incurred due to referrals by the Security Council.
Article 116
Voluntary contributions
Without prejudice to article 115, the Court may receive and
utilize, as additional funds, voluntary contributions from
Governments, international organizations, individuals, corporations
and other entities, in accordance with relevant criteria adopted by
the Assembly of States Parties.
Article 117
Assessment of contributions
The contributions of States Parties shall be 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 principles on which that scale is based.
Article 118
Annual audit
The records, books and accounts of the Court, including its
annual financial statements, shall be audited annually by an
independent auditor.
Part 13. Final clauses
Article 119
Settlement of disputes
1. Any dispute concerning the judicial functions of the
Court shall be settled by the decision of the Court.
2. Any other dispute between two or more States Parties
relating to the interpretation or application of this Statute which
is not settled through negotiations within three months of their
commencement shall be referred to the Assembly of States Parties.
The Assembly may itself seek to settle the dispute or may make
recommendations on further means of settlement of the dispute,
including referral to the International Court of Justice in
conformity with the Statute of that Court.
Article 120
Reservations
No reservations may be made to this Statute.
Article 121
Amendments
1. After the expiry of seven years from the entry into force
of this Statute, any State Party may propose amendments thereto. The
text of any proposed amendment shall be submitted to the
Secretary-General of the United Nations, who shall promptly
circulate it to all States Parties.
2. No sooner than three months from the date of
notification, the Assembly of States Parties, at its next meeting,
shall, by a majority of those present and voting, decide whether to
take up the proposal. The Assembly may deal with the proposal
directly or convene a Review Conference if the issue involved so
warrants.
3. The adoption of an amendment at a meeting of the Assembly
of States Parties or at a Review Conference on which consensus
cannot be reached shall require a two-thirds majority of States
Parties.
4. Except as provided in paragraph 5, an amendment shall
enter into force for all States Parties one year after instruments
of ratification or acceptance have been deposited with the
Secretary-General of the United Nations by seven-eighths of them.
5. Any amendment to articles 5, 6, 7 and 8 of this Statute
shall enter into force for those States Parties which have accepted
the amendment one year after the deposit of their instruments of
ratification or acceptance. In respect of a State Party which has
not accepted the amendment, the Court shall not exercise its
jurisdiction regarding a crime covered by the amendment when
committed by that State Party's nationals or on its territory.
6. If an amendment has been accepted by seven-eighths of
States Parties in accordance with paragraph 4, any State Party which
has not accepted the amendment may withdraw from this Statute with
immediate effect, notwithstanding article 127, paragraph 1, but
subject to article 127, paragraph 2, by giving notice no later than
one year after the entry into force of such amendment.
7. The Secretary-General of the United Nations shall
circulate to all States Parties any amendment adopted at a meeting
of the Assembly of States Parties or at a Review Conference.
Article 122
Amendments to provisions of an institutional nature
1. Amendments to provisions of this Statute which are of an
exclusively institutional nature, namely, article 35, article 36,
paragraphs 8 and 9, article 37, article 38, article 39, paragraphs 1
(first two sentences), 2 and 4, article 42, paragraphs 4 to 9,
article 43, paragraphs 2 and 3, and articles 44, 46, 47 and 49, may
be proposed at any time, notwithstanding article 121, paragraph 1,
by any State Party. The text of any proposed amendment shall be
submitted to the Secretary-General of the United Nations or such
other person designated by the Assembly of States Parties who shall
promptly circulate it to all States Parties and to others
participating in the Assembly.
2. Amendments under this article on which consensus cannot
be reached shall be adopted by the Assembly of States Parties or by
a Review Conference, by a two-thirds majority of States Parties.
Such amendments shall enter into force for all States Parties six
months after their adoption by the Assembly or, as the case may be,
by the Conference.
Article 123
Review of the Statute
1. Seven years after the entry into force of this Statute
the Secretary-General of the United Nations shall convene a Review
Conference to consider any amendments to this Statute. Such review
may include, but is not limited to, the list of crimes contained in
article 5. The Conference shall be open to those participating in
the Assembly of States Parties and on the same conditions.
2. At any time thereafter, at the request of a State Party
and for the purposes set out in paragraph 1, the Secretary-General
of the United Nations shall, upon approval by a majority of States
Parties, convene a Review Conference.
3. The provisions of article 121, paragraphs 3 to 7, shall
apply to the adoption and entry into force of any amendment to the
Statute considered at a Review Conference.
Article 124
Transitional Provision
Notwithstanding article 12, paragraphs 1 and 2, a State, on
becoming a party to this Statute, may declare that, 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
respect 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. A declaration under this article may be withdrawn at any
time. The provisions of this article shall be reviewed at the Review
Conference convened in accordance with article 123, paragraph 1.
Article 125
Signature, ratification, acceptance, approval or accession
1. This Statute shall be open for signature by all States in
Rome, at the headquarters of the Food and Agriculture Organization
of the United Nations, on 17 July 1998. Thereafter, it shall remain
open for signature in Rome at the Ministry of Foreign Affairs of
Italy until 17 October 1998. After that date, the Statute shall
remain open for signature in New York, at United Nations
Headquarters, until 31 December 2000.
2. This Statute is subject to ratification, acceptance or
approval by signatory States. Instruments of ratification,
acceptance or approval shall be deposited with the Secretary-General
of the United Nations.
3. This Statute shall be open to accession by all States.
Instruments of accession shall be deposited with the
Secretary-General of the United Nations.
Article 126
Entry into force
1. This Statute shall enter into force on the first day of
the month after the 60th day following the date of the deposit of
the 60th instrument of ratification, acceptance, approval or
accession with the Secretary-General of the United Nations.
2. For each State ratifying, accepting, approving or
acceding to this Statute after the deposit of the 60th instrument of
ratification, acceptance, approval or accession, the Statute shall
enter into force on the first day of the month after the 60th day
following the deposit by such State of its instrument of
ratification, acceptance, approval or accession.
Article 127
Withdrawal
1. A State Party may, by written notification addressed to
the Secretary-General of the United Nations, withdraw from this
Statute. The withdrawal shall take effect one year after the date of
receipt of the notification, unless the notification specifies a
later date.
2. A State shall not be discharged, by reason of its
withdrawal, from the obligations arising from this Statute while it
was a Party to the Statute, including any financial obligations
which may have accrued. Its withdrawal shall not affect any
cooperation with the Court in connection with criminal
investigations and proceedings in relation to which the withdrawing
State had a duty to cooperate and which were commenced prior to the
date on which the withdrawal became effective, nor shall it
prejudice in any way the continued consideration of any matter which
was already under consideration by the Court prior to the date on
which the withdrawal became effective.
Article 128
Authentic texts
The original of this Statute, of which the Arabic, Chinese,
English, French, Russian and Spanish texts are equally authentic,
shall be deposited with the Secretary-General of the United Nations,
who shall send certified copies thereof to all States.
In witness whereof, the undersigned, being duly authorized
thereto by their respective Governments, have signed this Statute.
Done at Rome, this 17th day of July 1998.
1
As corrected by the procès-verbaux of 10 November 1998, 12 July
1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16
January 2002.
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