内容

目次

A. Interpretation and Structural Issues Commentary Jurisprudence I. Applicable Law, Interpretation of the Statute and Other Governing Texts 1. General principles of interpretation 2. Article 21 (1) (c) of the Statute 3. Article 21 (2) of the Statute: binding stare decisis? 4. Article 21 (3) of the Statute 5. Article 24 (2) of the Statute 6. Role of the travaux preparatoires 7. Interpretation of "the established framework of international law" (customary and conventional international law) for article 8 (2) (b) and (2) (e) 8. Role of the jurisprudence of other international criminal tribunals 9. Scope and interpretation of the Regulations of the Court 10. The principle of in dubio pro reo II. Exercise of Judicial Functions 1. Judicial functions in general 2. Adjudication of applications on a case-by-case basis 3. Judicial discretion 4. Obligation to adjudicate within the context of the respective case 5. Judges must make their own factual findings on which the Decision will be based 6. Duty to give a reasoned decision 7. Res judicata 8. Judicial orders 9. Powers and functions of the Trial Chamber under article 64 (2) III. Role of the Registrar and Relationship with Chambers 1. Authority of the Registrar 2. Obligations of the Registrar 3. Review of decisions by the Registrar IV. Authority of the Prosecutor 1. Authority of the Prosecutor to conduct investigations 2. Prosecutor enjoys high margin of discretion under article 53 (decision not to investigate) 3. Duty of the Prosecutor to act impartially 4. Obligation to investigate objectively under article 54 (1) (a) 5. Continuation of investigations after the start of the confirmation hearing 6. Access by the Prosecution to monitored information 7. Grounds for disqualification V. Defence Counsel, Duty Counsel and Other Forms of Representation 1. Defence counsel: role, appointment and conflict of interests 2. The role of the duty counsel 3. The role of ad hoc counsel: to represent the interests of the Defence 4. The role of the OPCD B. Jurisdiction and Admissibility Commentary Jurisprudence I. Jurisdiction of the Court 1. Four facets of jurisdiction of the Court 2. Barriers and challenges to the exercise of the jurisdiction II. The Criteria for Admissibility of a Case 1. The case is being investigated or prosecuted by a State (article 17 (1) (a)) 2. The "same person"/"substantially the same conduct" test 3. "A case is being investigated" if there are investigative steps directed at ascertaining the criminal responsibility of the suspects 4. A State has investigated the case and decided not to prosecute (article 17(1)(b)) 5. The role of unwillingness or inability 6. The case is not of sufficient gravity (article 17(1)(d)) 7. Relationship with the objectives of the Court III. The Procedures for Reviewing or Challenging Admissibility 1. The factual basis for a determination of admissibility 2. Review of admissibility by a Chamber proprio motu 3. Challenges to admissibility by a person or State 4. Participation of victims and the States in admissibility proceedings 5. Domestic proceedings pending the determination of an admissibility challenge C. Cooperation and Judicial Assistance Commentary Jurisprudence I. The Court's General Power to Request the Cooperation of States II. Specific Forms of Cooperation 1. The Court's power to request the freezing and forfeiture of assets 2. Required attendance of witnesses 3. Transfer persons in custody to give testimony III. State Non-compliance and Referrals (Article 87 (7)) 1. Decision to refer non-cooperation is discretionary 2. Discretion in determining what factors are relevant 3. (Non)-Compliance proceedings not to be conflated with proceedings against the accused D. Arrest and Detention Commentary Jurisprudence I. Arrest Warrants and Summons to Appear (Article 58) 1. General principles 2. Requirements for issuing a warrant 3. Additiona