V International Criminal Court (ICC)
| Author | Sergey Vasiliev,Göran Sluiter |
| Published date | 01 June 2007 |
| Date | 01 June 2007 |
| DOI | http://doi.org/10.1177/016934410702500210 |
| Subject Matter | Part B: Human Rights News |
Netherlands Q uarterly of Human R ights, Vol. 25/2 (2007) 329
V INTERNATIONAL CRIMINAL COURT
ICC
G S and S V*
1. INTRODUCTION
is note explores and brie y discusses the most essential developments in the
investigations and prosecutions by the International Criminal Court (ICC) from
late July 2006 up to 1 April 2007.1 e indicated period is marked by the increased
investigative activity with regard to crimes committed in Darfur, culminating in t he
application for the rst summons to appea r, and the con rmation of charges in the
Lubanga Dyilo Case of the Democrat ic Republic of the Congo (DRC) situation leading
to the rst ICC trial. e victim-related themes, such as the scope of t he obligation
resting on the Cour t’s orga ns to protect victims, the appropriate protective mea sures
and victim pa rticipation in the proceedings, underlie the newly built case-law and
thread the advancement of proceed ings in all three situations before the Court.
is testi es to the strength of characterizing the ICC as the rst victim-oriented
international court. e price to be paid for this remark able speci city is not to be
neglected, for the latter may be seen a lready at this early stage as having considerably
inhibited expedit ious handling of cases.
* e authors are respect ively professor and Ph.D. ca ndidate in the law of inter national crim inal
procedure at the A msterdam Center for Internat ional Law (ACIL), University of Amsterda m. is
publication was prepa red within the ACIL research prog ramme entitled ‘Internationa l Criminal
Justice’, as part of t he project ‘International Cri minal Procedure: In Sea rch of General Rules and
Principles’ fu nded by the Dutch Organi sation for Scienti c Research (NWO).
1 General developments, suc h as the proceedi ngs of the Fi h Session of the As sembly of States Part ies
(23 November 2006 – 1 Dec ember 2006, e Hague) and t he Resumed Fi h Session (29 Januar y
2007 – 1 Februa ry 2007, New York) are not covered. It is import ant to note, however, that the
number of States par ties to the Statute in t he period grew to 104, with rat i cations by C omoros (18
August 200 6), Saint Kitts & Nevis (22 Au gust 2006), Montenegro (23 Oc tober 2006); and Chad (1
November 2006).
Human Right s News
330 Intersentia
2. INVESTIGATION OF THE SITUATION IN DARFUR,
SUDAN
e e ective investigation of the crimes comm itted in Darfur encou nters both legal
and practical h indrances. Legal di culties have to do with t he uncertain scope of the
obligation to cooperate incumbent on Suda n, which is not a party to the ICC Statute.
United Nations Security Council Resolution (UNSCR) 1593 (2005) referring the
situation in Darf ur to the ICC prescribes an obligation of ‘the Government of Suda n
and all other pa rties to the con ict in Da rfur (…) to cooperate f ully with and provide
any necessary assistance to the Court and the Prosecutor’ wit hout, however, further
detailing a le gal basis for the modalities of implementation of th is obligation.2
Strictly spea king, Part 9 of the Statute that establishes the regime of cooperation
between the ICC and States pa rties appears d irectly inapplicable to the case of
Sudan. is is not to be interpreted as resu lting in a weak position of the ICC in its
dealings wit h Sudan, given the possibility for the ICC of availing itself of the UNSC
international law enforcement machinery in c ase of non-compliance with the requests
for cooperation.
However, the Prosecutor has indeed stepped on an unexplored ter rain and unste ady
ground in respect of the investigation of crimes committed in Darfur as far as the
speci c moda lities of cooperation with Sudan a re concerned. e existing uncertainty
did not lead to an open confrontation bet ween the ICC and the Sudanese government
until mid-March 2007, when Sudan announced suspension of all cooperation with
the Court in protest a gainst the request for issuance of summonses to appe ar.3
Practical di culties of the investigation of crimes in Darfur relate to the still
ongoing violence that causes conti nued victimisation of civi lians, including potential
witnesses, and dest ruction of material evidence and ma kes self-dependent access
to the spots of crimes by ICC investigators prohibitively per ilous. In the preceding
period and subsequently, the securit y situation in Darfur continued to remain
extremely volatile and to pose a t hreat to international peace and secu rity.4 According
to the Prosecutor, this factor was i mpedimental to the conduct of investigation inside
Darfur, ‘partic ularly in light of the absence of a functioning and sustainable system
2 UNSCR Res. 1593 (2005), 31 March 2005, p ara. 2.
3 See section 2.3 inf ra.
4 See Fourth Repor t of the Prosecutor of the I nternational Cr iminal Cou rt, Mr Luis Moreno Oc ampo,
to the UN Secu rity Counci l Pursuant to t he UNSCR 1593 (2005), 14 December 20 06 (hereina er ‘IV
Report of ICC Prosec utor to UNSC’), at pp. 1 and 5, noting a spil l over e ect of violence i n Darfur
into Chad and Cent ral Africa n Republic. See also U NSC Resolutions on Darf ur in 2006 denot ing a
threat to intern ational peace and se curity: UNS C Res. 1663 (2006) of 24 March 20 06; 1665 (2006) of
29 March 2006; 1672 (20 06) of 25 April 2006; 1679 (200 6) of 16 May 2006; 1706 (2006) of 31 August
2006; 1709 (2006) of 22 S eptember 2006; 1713 (2006) of 29 September 20 06; and 1714 (2006) of 6
October 200 6.
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