THE TRIGGERING PROCEDURE OF THE INTERNATIONAL CRIMINAL COURT

1. THE TRIGGERING PROCEDURE OF THE INTERNATIONAL CRIMINAL COURT Prof. Dr. Héctor Olásolo

2. THE VIEWS EXPRESSED IN THIS PRESENTATION ARE THOSE OF THE SPEAKER AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE INTERNATIONAL CRIMINAL COURT

3. The Notion of Dormant Jurisdiction of the ICC and Its Activation with regard to a Given Situation of Crisis • Temporal character of the Ad Hoc Tribunals versus permanent character of the ICC • Limited jurisdiction of the Ad Hoc Tribunals to One Situation of Crisis Defined in their Respective Statutes versus Unlimited situations of crisis over which the ICC could exercise its jurisdictional powers • Safeguard against Politically Motivated Investigations

4. THE THREE DIMENSIONS OF THE JURISDICTIONAL POWERS OF THE ICC • Triggering dimension (initiation of an investigation) • Power to activate the dormant jurisdiction of the Court over a situation of crisis: Definition of the territorial, temporal (and personal) parameters that define the situation of crisis at stake • Penal dimension: • Power to investigate • Power to prosecute • Power to declare individual criminal responsibility • Power to enforce sentences • Civil dimension: • Reparation of the harm derived from the crimes that are the basis of a conviction • Compensation: • Unlawful Arrest or Detention • Miscarriage of Justice

5. The Procedural Framework through which the Three Dimensions of the Jurisdictional Powers of the Court are Exercised Triggering procedure: Aiming at deciding whether to activate the dormant jurisdiction of the Court over a situation (or to initiate an investigation of a situation): Security Council Referral State Party Referral Individual Communications (Prosecutor Proprio Motu) Investigation of a Situation Initiation of a case through the issuance of an arrest warrant or a summons to appear Stages of the case proceedings before the ICC: Investigation Intermediate (confirmation hearing) Trial Appeal Enforcement of Sentence Reparation proceedings / Compensation Proceedings

6. First Approach to the Triggering Procedure of the ICC: Systematic Reading of Arts. 15, 18 and 53(1), (3) and (4)¿ Preliminary Criminal Proceedings or Autonomous Procedure of a Jurisdictional Character?

7. Travaux Preparatoires of Arts. 15, 18 and 53(1), (3) and (4): • Early Discussion of Art. 53 versus Late Proposal of Arts. 15 and 18; • Negotiation in Different Working Groups; • Approval of Arts. 15 and 18 the last day of the Diplomatic Conference; • First Problems of Interpretation at the Preparatory Commission: • Rule 48; • The Rejected Proposed Extension of the Scope of Applicability of Art. 19;

8. DISTINCTIVE ELEMENTS OF THE TRIGGERING PROCEDURE • Object: Activation Request and Oppostion-to-Activation Request with regard to a Situation • Parties: • Requesting Party: Security Council, State Party or OTP • Opposing Party: Concerned States • Proceedings: • Security Council Referral: Art. 53(1),(3) and (4) • State party Referral: Arts. 53(1), (3) and (4) and 18 • Communications+ OTP’s Activation Request : Arts. 15 and 18.

9. OBJECT OF THE ACTIVATION REQUEST AND THE OPPOSITION-TO-ACTIVATION-REQUEST: THE NOTION OF SITUATION VIS-A-VIS THE NOTION OF CASE.

10. Prerequisites for the Activation of the Dormant Jurisdiction of the Court (Initiation of an Investigation) over a Situation: Grounds on which the Activation Request Must Be Based • Personal, temporal and territorial Scope • Subject matter scope (indicia of contextual elements) • Admissibility of the situation • Absence of a Security Council request not to initiate the investigation (Art. 16) • Gravity of the criminal activities occurred in the situation • Interests of justice

11. RELEVANT FACTORS IN DECIDING WHETHER TO INITIATE A CASE • Incidents and suspects must fall within the temporal, territorial and personal scope of: • The situation under investigation; and • The jurisdictional powers of the Court • Subject- matter scope (indicia of commission of crimes and participation of the suspects) • Admissibility of the case • Absence of a Security Council request not to initiate the case • Gravity of the crimes in which the suspects have allegedly participated • Interests of justice

12. INJUSTIFIED LIMITATION OF THE OPPOSITION-TO-ACTIVATION-REQUEST AND THE ATTEMPTED EXTENSION OF THE SCOPE OF APPLICATION OF ARTICLE 19

13. Fast Track Proceedings at the Request of the Security Council • Security Council Referral • Preliminary Examination • Decision to Activate or to Initiate the Investigation • Absence of Opposition-to-Activation Request (or Requests for Deferral): Non-Applicability of Art. 18 • PTC’s Review of the Decision not to Activate or not Investigate at the Request of the Security Council • Non-Binding PTC’s Decision and Reconsideration by the OTP • Ex Officio Review by PTC: Interests of Justice

14. Proceedings at the Request of a State Party • First Part: Same than Proceedings at the Request of the Security Council • Second Part: Art. 18 Proceedings: • OTP’s Notification: Time and Content • Opposition-to-Activation Request by States Concerned (Request for Deferral). Effects • OTP’s Granting Opposition-to-Activation Request (Deferral) • OTP’s Rejection of Opposition-to-Activation Request and OTP’s Request to PTC to Confirm such Rejection and Authorize the Investigation • Appeal • Gathering of Evidence at Risk of Being Lost under Art. 18(6)

15. The Never-Ending Proceedings at the Request of the OTP • First Part: Proceedings under Art. 15: • Individual communications • Preliminary examination • Decision not to make an activation request (not to request authorization to initiate an investigation) • Decision to make an activation request (to request authorization to initiate an investigation) • Proceedings before the PTC • Appeal • Second Part: Art. 18 Proceedings • Likely Need for up two PTC’s and AC’s Decisions before Activation (Initiation of an Investigation): The Sofisma of the Lack of Safeguards against Politically Motivated Investigations

16. PARTICIPATION OF THE VICTIMS OF THE SITUATION IN THE TRIGGERING PROCEDURE • Proceedings at the Request of the OTP: • Communications to OTP (Art. 15(1) • Notification Decision not to make an Activation Request (Art. 15.6) • Representations to PTC on the Merits of the OTP’s Activation Request (Art. 15.3 and Rules 50) • Proceedings at the Request of the Security Council or a State Party: • Nofitication Decision not to Activate (Rule 92(2)) • Representations to PTC in the Review Proceedings at the Request of the Security Council or a State Party (Rules 59 and 107(5)) • PTC’s Power to Request Victim’s Views in Ex Officio Review (Rules 93, 107 and 109)