ESSAYS ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT volume I editedby FLAVIA LATTANZI and WILLAM A. SCHABAS II S i r e n t e CONTENTS Abbreviations XK Editors' Note XXV GIOVANNI CONSO SOME REFLECTIONS ON THE INTERNATIONAL CRIMINAL COURT UMBERTO LEANZA THE ROME CONFERENCE ON THE ESTABLISHMENT OF AN INTERNATIONAL CRIMINAL COURT: A FUNDAMENTAL STEP IN THE STRENGTHENING OF INTERNATIONAL CRIMINAL LAW 1. Introduction 7 2. The Legal Reasons for Establishing an International Criminal Court 9 3. The Organizational and Procedural Complexity of the Rome Diplomatie Conference 10 4. The Legal and Political Hurdles of the Diplomatie Conference 12 5. The Italian Delegation's Initiatives during the Conference 14 6. The Results Attained 15 7. Italy and the Ratification and Implementation of the Rome Statute 19 PAOLO BENVENUTI COMPLEMENTARITY OF THE INTERNATIONAL CRIMINAL COURT TO NATIONAL CRIMINAL JURISDICTIONS 1. Complementarity as the Main Feature of the ICC: Introductory Remarks 21 VI CONTENTS Section I Relationship between National Jurisdictions and International Criminal Jurisdictions: a Historical Perspective 2. The Experience of the International Tribunals of Nuremberg and Tokyo 23 3. The Traditional Approach of Customary International Law to States' Jurisdiction over Crimes 25 4. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide 26 5. The Repression of War Crimes in the Geneva Conventions of 1949 28 6. The Convention on the Suppression and Punishment of the Crime of Apartheid 30 7. The Duties of Repression in the 1984 Convention against Torture 31 Section II The Concurrent Jurisdiction of the Ad Hoc International Tribunals for Yugoslavia and Rwanda and National Courts 8. The Primacy of the A dhoc International Criminal Tribunals for Yugoslavia and Rwanda 33 9. Primacy as the Content of a Mandatory Rule Binding States, According to the Traditional Dualist Approach of International Relations 34 10. The Duty of States to Co-operate wherever they Exercise Governmental Jurisdiction 36 11. Primacy and Refusal to Co-operate with the Ad hoc International Criminal Tribunals 37 Section III The Complementary Role of the International Criminal Court 12. The Complementary Role of the ICC Founded on the Consent of States 39 13. Complementarity of the ICC and Referral of a Situation by the Security Council 41 14. "Unwillingness" and "Inability" as Conditions for Declaring the Admissibility of a Case 42 15. The Meaning of "Unwillingness" and "Inability" 43 16. The Pre-Trial Procedure Concerning Admissibility 46 17. The Declaration of Admissibility: a Difficult Challenge for the ICC 49 CONTENTS FLAVIA LATTANZI THE ROME STATUTE AND STATE SOVEREIGNTY. ICC COMPETENCE, JURISDICTIONAL LINKS, TRIGGER MECHANISM 1. Introduction 2. The Responsibility of States' Jurisdictions in the Repression of Crimes of International Concern 3. The State Participation to the Statute as Automatic Acceptance of ICC Jurisdiction 4. The Jurisdictional Links for the Exercise of the ICC Jurisdiction 5. The "Trigger-Mechanism" 6. The Power of the UN Security Council to Refer a Situation to the Court 7. The Power of the UN Security Council to Suspend the Court's Activity PlETRO GARGIULO THE CONTROVERSIAL RELATIONSHIP BETWEEN THE INTERNATIONAL CRIMINAL COURT AND THE SECURITY COUNCIL 1. Introduction Section I The Referral of a Situation by the Security Council 2. Art. 13 (b) and its "Legislative" History a) The Initial Proposal of the ILC b) The Proposais Elaborated by the Preparatory Committee c) The Work of the Diplomatie Conference 3. Evaluation of Art. 13 (b) a) The Referral by the Security Council and the Legal Nature of the ICC b) The Referral by the Security Council and the Principle of Complementarity Section II The Deferral of an Investigation or Prosecution by the Security Council 4. Art. 16 of the Statute 5. The Proposal Elaborated by the ILC VIH CONTENTS 6. The Work of the Preparatory Committee 88 7. The Work of the Diplomatie Conference 89 8. The Evaluation of Art. 16 90 Section III The Problem of Aggression and the Role of the Security Council 9. The Solution Adopted in the Statute on the Crime of Aggression 91 10. The Crime of Aggression in the Draft Code of Crimes against the Peace and Security ofMankind 92 11. The ILC Draft Statute Proposal 95 12. The Work of the Preparatory Committee 96 13. The Work of the Rome Diplomatie Conference 98 14. Some Remarks on the Results Achieved by the Rome Diplomatie Conference 99 Section IV States' Obligations of Co-operation and the Role of the Security Council 15. Non-Compliance of the Obligation to Co-operate by States and the Role of the Security Council 100 Conclusions 102 EMANUELA FRONZA GENOCIDE IN THE ROME STATUTE 1. Introduction 105 2. From Concept to Word 107 3. The Crime of Genocide in International Instruments 109 a) The genocide Convention b) The ILC Draft Code against the Peace and Security ofMankind c) The Statutes of ad hoc Tribunals for the Former Yugoslavia and for Rwanda. 4. Towards and Beyond Art. 6 of the Rome Statute 113 a) The wording of Art. 6 b) The Elements of Crimes 5. The Protected Interest 116 CONTENTS IX 6. The Constituent Elements 119 A. The material element 119 a) Killing members of the group b) Causing serious bodily or mental härm 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 B. The mental element 127 a) To destroy b) The extension of the destruction of the group: in whole or in part 7. The Victim of Acts of Genocide 132 DARRYL ROBINSON CRIMES AGAINST HUMANITY: REFLECTIONS ON STATE SOVEREIGNTY, LEGAL PRECISION AND THE DICTATES OF THE PUBLIC CONSCIENCE 1. Introduction 139 2. Nexus to Armed Conflict 144 a) The authorities b) The Functional Considerations c) The Outcome 3. Discriminatory Grounds 149 a) The authorities b) The functional considerations c) The outcome 4. The Threshold Test 151 A. Disjunctive test: widespread or systematic 152 a) The issue b) The authorities c) The functional considerations d) The outcome B. Attack directed against any civilian population: Multiple acts 155 a) The issue, authorities, and functional considerations b) The outcome X CONTENTS C. Attack directed against any civilian population: policy element 156 a) The issue b) The authorities c) The functional considerations d) The outcome S.MensRea 164 a) The authorities b) The functional considerations and outcome 6. The Enumerated Inhumane Acts 166 7. Assessment 167 GABRIELLA VENTURINI WAR CRIMES 1. The Jurisdiction of the International Criminal Courtin Respect of War Crimes 171 2. War Crimes Committed in International Armed Conflicts 172 3. War Crimes Committed in Armed Conflicts not of an International Character 177 4. The Role of the "Elements of Crimes" 179 5. Crimes Excluded from the Jurisdiction of the International Criminal Court (the Case of Treaty-Crimes) 180 BARBARA BEDONT GENDER-SPECIFIC PROVISIONS IN THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1. Introduction 183 2. What Are the Gender Provisions? 184 3. What Is "Gender"? 186 4. The Evolution of Gender Crimes under International Law: from the Hague toRome 189 5. An Examination of Certain Gender Crimes 195 a) Forced pregnancy b) Sexual slavery, enforced prostitution and enslavement c) Gender-based persecution 6. The Procedural Provisions: Balancing the Rights of the Accused with the Interests of Victims and Witnesses 202 7. The Institutional Framework 207 8. Outstanding Issues 209 9.Conclusion 210 CONTENTS XI IDA CARACCIOLO APPLICABLE LAW 1. Introduction 211 Section I Draftingof Art. 21 2. Foreword 212 3. Art. 2 of the 1951 Draft Statute for an International Criminal Court 213 4. Art. 3 3 of the 1994 Draft Statute for an International Criminal Court 215 5. The Ad Hoc Committee and the Preparatory Committee 217 6. Applicable Law at the Rome Conference 221 Section II An Analytical Interpretation of Art. 21 7. Forward 224 8. The Hierarchy of International Sources 225 9. Reference to National Laws and the Role of the Court's Previous Decisions 227 10. Concluding Considerations on the Function of Art. 21 in the Codification and Progressive Development of International Criminal Law 229 GIUSEPPE NESI THE ORGANS OF THE INTERNATIONAL CRIMINAL COURT AND THEIR FUNCTIONS IN THE ROME STATUTE. THE ASSEMBLY OF STATES PARTIES 1. Introduction 233 2.TheJudges 234 3. The Presidency of the Court 237 4. An Appeals Division, a Trial Division and a Pre-Trial Division 23 8 5. The Office of the Prosecutor 242 6. The Registry 244 7. The Assembly of States Parties in Connection with the Composition and Administration of the Court 246 8. Some Conclusive Remarks 248 XU CONTENTS DAVID DONAT-CATTIN THE ROLE OF VICTIMS IN ICC PROCEEDINGS 1. Introduction 251 2. The Right to Justice for Victims of "International Crimes" 253 a) The Right to Access to Justice b) The Right to Know the Truth c) The Right to Reparations 3. Status of the Definition of Victims under International Law 259 4. Protection of Victims and Witnesses before the ICC in Art. 68 262 5. Participation of Victims and Witnesses in the ICC Proceedings in Art. 68 268 6. Conclusions: the Need to Guarantee Justice for Victims through the ICC 272 Appendix: Rules of Procedure Implementing Victims' Participation 272 HELEN BRADY THE SYSTEM OF EVIDENCE IN THE STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1. Introduction 279 2. Sources of Law for the ICC's Rules of Evidence 281 a) International human rights law b) The practice of international criminal tribunals c) The practice of national criminal justice Systems 3. Summary of Art. 69's Provisions 286 4. The Submission of Evidence before the ICC 287 5.