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31 results

Page 1 of 2

  • 13 - Providing Evidence to Support Strategic Climate Enforcement and Litigation

  • from Part III - Beyond the Law
  • Edited by César Rodríguez-Garavito, New York University
  • Book:
    Litigating the Climate Emergency
    Published online:
    10 November 2022
    Print publication:
    03 November 2022, pp 255-266
    • Chapter
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  • Summary

    Laws relevant to discrete sources of greenhouse gas (GHG) emissions are underenforced. This applies, for instance, to laws applicable to deforestation and to those regulating some conduct related to the extraction or use of fossil fuels. Accordingly, law enforcement agencies and the judiciary do not contribute their full potential when it comes to addressing the climate crisis. Recent developments in ICT and other related sociological developments enable coordinated action by investigative NGOs, expert organizations, and private citizens to effectively support climate-relevant law enforcement and judicial action. The Center for Climate Crime Analysis (CCCA) is a group of prosecutors aiming to harness the collective potential of investigative NGOs and experts to support judicial climate action. By collecting and analyzing relevant information in collaboration with a broad and diverse network of partners and by strategically sharing that information with the competent law enforcement authorities or advocacy organizations, CCCA aims to trigger and support judicial actions against illegal activities related to climate change. This article illustrates the practical application of the proposed solution through a case study that addresses illegal deforestation through judicial climate action.

  • J - Conduct of Trials

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 309-345

  • Summary

    The conduct of trial proceedings was one of the most controversial issues during the drafting of the Rome Statute and the Rules of Procedure and Evidence. Since it was difficult to reach agreement, many aspects are not regulated in detail by the Rome Statute or the Rules of Procedure and Evidence but are instead left to be determined by the judges, exercising their discretion within the legal framework. In the first 15 years of the International criminal Court’s operation, very few aspects regarding the conduct of trial proceedings have been litigated before the Appeals Chamber. Nevertheless, this chapter explores the emerging jurisprudence of the Appeals Chamber on aspects such as the admission of evidence, modification of the legal characterisation of facts pursuant to regulation 55 of the Regulations of the Court, and trial in the presence of the accused under article 63(1) of the Rome Statute and excusal from trial.

  • N - Substantive Law

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 459-486

  • Summary

    Since the International Criminal Court’s inception to date, most of the litigation before the Appeals Chamber on the various aspects of the Court’s statutory framework has addressed procedural and evidentiary matters. Only a few have been concerned with substantive law. This chapter focuses on the Appeals Chamber’s jurisprudence on the crimes and modes of liability where the Chamber has had an opportunity to pronounce itself on those issues such as the delineation and requirements of articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute on conscripting, enlisting or using children under the age of fifteen years in international and non-international armed conflicts respectively, and modes of criminal responsibility such as co-perpetration under article 25 (3)(a) and common purpose liability under article 25(3)(d). In addition, it addresses how the Appeals Chamber resolves the question of whether war crimes can be committed against members of the same armed force or group under article 8 of the Rome Statute.

  • E - Charges and Confirmation Hearing

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 179-204

  • Summary

    This Chapter illuminates the guidance provided by the Appeals Chamber of the International Criminal Court on charges and the confirmation of charges hearing. The Appeals Chamber has noted that the right of the accused person to be informed of the charges against them is firmly grounded in the Rome Statute and other legal instruments of the Court. However, the regulatory framework of the Court does not provide much detail as to what constitutes the “nature” of the charges. Consequently, there was an emerging need for judicial intervention to clarify the nature of the charges on which a person is brought to trial. This chapter explains that while the Appeals Chamber has held that the Prosecution has a broad discretion to amend the charges prior to the confirmation hearing, any amendments to the charges after they have been confirmed are strictly regulated by article 61(9) of the Rome Statute. This chapter also enquires into the rules and principles that relate to the confirmation of charges hearing as well as discusses the evidentiary rules applicable at the confirmation of charges hearing and the Pre-Trial Chamber’s power to evaluate evidence in this context.

  • D - Arrest and Detention

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 131-178

  • Summary

    This chapter delves into the technical details of arrest and detention, as outlined by the Appeals Chamber of the International Criminal Court. Decisions on arrest (under article 58 of the Rome Statute) and on detention or release (under article 60 of the Rome Statute) are closely related at the Court, typically drawing on the same criteria. Since a decision under article 60 on interim release or detention may be appealed without a grant of leave, appeals on these topics have been fairly common in the early years of the Court. On the other hand, since the Prosecution must seek leave to appeal under article 82(1)(d), only two appeals on arrest warrants have occurred to date. The chapter then goes on to describe the Appeals Chamber jurisprudence on applications for release (article 60(2)), the factors justifying detention, the subsequent review of detention, issues concerning conditional release, protection against unreasonable detention (article 60(4)) and other requests for release.

  • F - Disclosure and Redactions

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 205-242

  • Summary

    The Prosecution’s disclosure and inspection duties are a key pillar in the International Criminal Court’s procedural scheme and are critical to fully respecting the accused’s rights under article 67(1) of the Rome Statute and to ensure the fairness of proceedings. This chapter describes the Appeals Chamber’s jurisprudence at the Court in elucidating the accused’s right to disclosure and inspection under various rules and articles such as the disclosure of witness statements (rule 76 of the Rules of Procedure and Evidence), the disclosure of potentially exonerating information (article 67(2)), the inspection of information material for the preparation of the defence (rule 77) and disclosure in relation to applications for interim release. This chapter also explores redactions protecting victims, witnesses and other persons at risk (rule 81(4)) as well as redactions protecting investigations (rule 81(2)). It then describes the relationship between article 54(3)(e) and disclosure obligations, the Appeals Chamber endorsing the Prosecution’s power to receive information where disclosure obligations are negated due to a condition of confidentiality while considering the need for counter-balancing measures, making sure that any rights owed to the accused by the Prosecution are still protected.

  • P - Miscellaneous Procedural Issues

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 597-639

  • Summary

    The International Criminal Court Appeals Chamber has provided guidance on a number of matters of procedure which have arisen in Pre-Trial or Trial Chamber proceedings under appeal, but more commonly on questions arising from the appeals themselves. This chapter describes the jurisprudence on the participation of the amicus curiae under rule 101 of the Rules of Procedure and Evidence where the Appeals Chamber has protected its discretion. It also discusses the filing of confidential documents where the Appeals Chamber has adopted an increasingly stringent line in regards to formal requirements, while tempering their application in practice where little or no harm has resulted. It also recounts how the Appeals Chamber has taken into account the fairness and efficacy of the process when setting out its requirement for the formatting and content of documents. Finally, it goes into the jurisprudence on applications for extensions, observing that it is important to ground any request in the context and circumstances of the particular case.

  • M - Victim Participation in the Proceedings

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 399-458

  • Summary

    Victim participation is a unique and distinctive feature of the Rome Statute. However, its contours remain unclear at this stage of the International Criminal Court’s existence, and some aspects pertaining to the exercise of victims’ participatory rights under the Rome Statute still require clarification. After exploring the general requirements and procedure for applications to participate in proceedings, this chapter delves further into the Appeals Chamber’s jurisprudence in defining the term “victim” in rule 85 of the Rules of Procedure and Evidence and applying that definition. It then goes into how the Appeals Chamber defined “personal interests” and its consideration of the modalities of participation. Finally, the chapter concludes its analysis by describing the conditions and issues that arise in relation to victim participation at the situation, trial and appeal stages of proceedings as deliberated by the Appeals Chamber.

  • L - Reparations

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 374-398

  • Summary

    Reparations are a key component of administering justice at the International Criminal Court. So far, the Court has issued one trial and one appeal reparation judgment concerning the Lubanga case. The Lubanga Appeals Judgment propounded critical elements underlying reparation orders. Given the limited number of reparation judgments thus far, additional issues are likely to require resolution in future litigation. This chapter examines that pursuant to article 75(1) of the Rome Statute, the Court is required to establish principles relating to the modalities of reparations such as restitution, compensation and rehabilitation, with the Appeals Chamber supporting a holistic application of reparation modalities. This chapter then goes into the mandatory elements of a reparation order as outlined by the Appeals Chamber jurisprudence which include, inter alia, the standard of causation, and burden and standard of proof for showing harm.

  • K - Sentencing

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 346-373

  • Summary

    With one Appeals Chamber and four Trial Chamber sentencing judgments rendered since the International Criminal Court’s inception, it may be early to speak of a settled sentencing pattern at the Court. The Court’s legal regime establishes a single sentencing framework that applies to all crimes referred to in article 5 of the Rome Statute, without specifying a penalty or a scale of penalties for each individual crime or mode of liability. Rather, the regime directs judges to consider a variety of factors in determining a sentence while allowing them a wide margin of discretion. This chapter describes the applicable penalties and assesses how Appeals Chambers judges have construed and applied their sentencing discretion including such considerations as restrictions, the principles of culpability and proportionality, the individualisation of sentences, the aim of safeguarding the appeal, and aggravating and mitigating circumstances. It also discusses how the Appeals Chamber has applied articles 77 and 78 of the Rome Statute and rule 145 of the Rules of Procedure and Evidence. It concludes that the Court’s first sentencing appeal judgment addresses some key issues, deferring a few critical ones.

  • A - Interpretation and Structural Issues

  • Fabricio Guariglia, Ben Batros, Reinhold Gallmetzer, George Mugwanya
  • Book:
    The Appeals Chamber of the International Criminal Court
    Published online:
    19 October 2018
    Print publication:
    01 November 2018, pp 1-66

  • Summary

    This chapter reviews the International Criminal Court Appeals Chamber’s guidance on preliminary issues that affect the functioning of the Court. These issues include the interpretation of the Rome Statute, the weight and emphasis to be given to the sources of law and the role of different actors within the Court. It also notes that the Appeals Chamber has utilised articles 31 and 32 of the Vienna Convention of the Law of Treaties to interpret the Rome Statute, analysed article 21 (1) (a) – (c) of the Rome Statute on the applicable law and interpreted the Regulations of the Court. It also notes that the importance of the travaux preparatoires has been emphasised by the Appeals Chamber but observes that the weight to be given to the jurisprudence of other international criminal tribunals is far more complex. It then goes on to elucidate how the Appeals Chamber has adjudicated on the exercise of judicial functions by the Appeals Chamber, the role of the Registrar and the Registrar’s relationship with Chambers, the authority of the Prosecutor regarding investigations as well as the role played by defence counsel, duty counsel and other forms of representation.

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