Under the authority of the Rome Statute, the Prosecutor determines whether to open an investigation into a situation, investigates and prosecutes individuals for the commission of crimes of genocide, crimes against humanity and war crimes.
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The Prosecutor has jurisdiction only over crimes committed after 1 July 2002, when the Rome Statute entered into force. Equally important, the Office has jurisdiction only over crimes committed on the territory of a State Party to the ICC or by a State Party national unless a situation is referred to the Prosecutor by the United Nations Security Council. Finally, the Prosecutor can intervene only if the relevant national judicial authority is unable or unwilling to genuinely investigate and prosecute the alleged crimes. This is what is meant by the principle of complementarity in the Rome Statute whereby States have primary responsibility for preventing and punishing atrocities committed in their own territories and by their own nationals.
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Before initiating an investigation, the Prosecutor must determine whether “there is a reasonable basis to proceed with an investigation”. This is decided by reference to Article 53 which requires
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a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed or is being committed
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a determination of admissibility (gravity and complementarity)
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consideration of interests of justice.
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Yes, the Rome Statute confers proprio motu powers regarding crimes committed on the territory of a State Party to the Court or by a State Party national with the authorization of the Pre-Trial Chamber.
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No. The ICC is an independent international tribunal established by a multilateral treaty, the Rome Statute, which 108 states have ratified. As a judicial body, the activities of the Court are governed by the Statute.
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Investigations and prosecutions are underway in Northern Uganda; the Democratic Republic of Congo; the Darfur Region of the Sudan and Central African Republic. In addition, the Office is currently analyzing other situations of concern and is monitoring the situation in Colombia, Kenya, Afghanistan, Chad and Georgia. Generally, work in a situation does not become public knowledge until the Office opens an investigation.
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Beyond geographic and temporal jurisdiction as defined under the Rome Statute, the main criterion is gravity. Although any crime within the jurisdiction of the Court is a serious matter, the Statute clearly requires an additional consideration of gravity to determine that a case justifies further action by the Court. In assessing gravity, factors include: the scale of the crimes; their nature; the manner they were committed; and their impact
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The Office has three functional divisions, corresponding to the three major activities of the Office. The Investigation Division is made up of a group of lawyers, investigators and analysts working together in teams for each specific investigation. The Prosecution Division, with trial and appeals lawyers, presents cases before the judges. The Jurisdiction, Complementarity and Cooperation Division (JCCD) includes analysts, international Cooperation Experts and lawyers providing advice to the Prosecutor on issues of jurisdiction and admissibility, which are essential prerequisites for any investigations and prosecutions. Without its own police and other agencies to rely upon, the Office must build networks of international cooperation. JCCD is responsible for ensuring necessary agreements and arrangements are in place to secure full cooperation of states and international organizations and maintaining dialogue with the OTP’s stakeholders, including civil society. These operational areas are supported by the Legal Advisory Section and Public Information Unit and receive technical services from the Language Unit, the Information and Evidence Unit and the Knowledge Base Unit.
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One of the first challenges is how to conduct investigations in situations of on-going violence. To meet the challenges presented by these difficulties, the Office reduced the length and scope of investigations. In Northern Uganda, the warrants of arrest were requested after 10 months of investigation. In the DRC, the first arrest warrant against Thomas Lubanga Dyilo was requested after 18 months and in Darfur, arrest warrants against Ahmad Harun and Ali Kushayb were requested after 20 months of investigation. The Office faced a greater challenge because of the particularly volatile situation in Darfur; how to protect witnesses in Darfur. Consequently, the Office decided to investigate the situation in Darfur without going to Darfur and instead collected statements and evidence during 70 missions in 17 countries.
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The Court has a duty to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. Under Article 68, the Office conducts investigations in a manner that does not jeopardize the safety of anyone who provides evidence.
Care for the safety and well-being of victims and witnesses is a high priority. The Office of the Prosecutor works closely with the Registry, which has primary responsibility for protecting witnesses.
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The Prosecutor investigates in an independent and impartial manner; including all alleged crimes within the jurisdiction of the Court regardless of who is alleged to have committed them.
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When the Court does not deal with an individual, it does not mean that person has been granted impunity – the Court complements national efforts and national measures against other offenders should still be encouraged.
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No, the Prosecutor presents evidence to the judges and requests either a summons to appear or a warrant of arrest for the named individual(s). It is up to the judges to review the evidence and, if appropriate, issue summonses or warrants. In some cases, usually to protect victims and witnesses, the warrants may be “sealed,” which means the public will not be informed.
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No, ICC staff does not have the authority to make an arrest. The Court relies on States and international organizations to arrest people.
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Massive crimes are planned; even monitoring a situation or opening an investigation can deter new crimes. This effect is not limited to the situation under review or investigation; it can send a powerful warning to people potentially engaged in crimes in other countries. For example, following charges against Thomas Lubanga for using child soldiers in active hostilities, armies around the world are adjusting operational standards to the Rome Statute.
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International justice, national justice, the search for the truth, and peace negotiations are not alternative ways to achieve a goal; they can be integrated into one comprehensive solution. It is essential to ensure that any conflict resolution initiative be compatible with the Rome Statute, so that peace and justice work effectively together.
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Preliminary Analysis
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Opening an investigation
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Conducting the investigation
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Presenting evidence to the judges and requesting a summons to appear or arrest warrants.
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Summonses or arrest warrants (judicial action based on the Prosecutor’s evidence)
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Appearance of the named individuals (third party action)
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Confirmation of charges
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Trial
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Possible appeal
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Sentencing
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