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Editors' Note: Inaugural Issue
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This chapter examines the role of the judiciary, the Registry, and defence counsel at the International Criminal Court with a view to assessing whether defendants’ rights are adequately protected at the Court. Part I examines the critical role played by the judges of the Court as those ultimately responsible for safeguarding the fairness of all judicial proceedings. Part II considers the role of the Registry in protecting defendants’ rights. While potentially less apparent to those unfamiliar with the Court, the Registry plays an integral role in this task by, inter alia, facilitating the appointment of legal representation, managing the Court’s legal aid program, and managing the Court’s detention centre. Part III then reviews the structure and provision of defence counsel of the Court, including the guaranteed right to counsel, competency requirements for counsel, ethical obligations of defence counsel, the unique Office of the Public Counsel for Defence, and the Court’s legal aid regime. Finally, section IV assesses whether defendants’ rights are adequately protected. The Rome Statute, Rules of Procedure and Evidence, Regulations of the Court and the Registry, the Chambers Practice Manual, Code of Judicial Ethics, and Code of Professional Conduct for Counsel together define a comprehensive regime for protection of the rights of defendants at the Court. Many have lauded this as an improvement over prior courts and tribunals. Nonetheless, many critiques have been levied regarding insufficient resources for defence counsel and inadequate legal aid funding as well as institutional inequality between the defence and prosecution. Actual, robust implementation of this regime is critical for true equality of arms and full guarantee of defendants’ rights.
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The Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the ‘Malabo Protocol’) does not include a provision defining which defences will be applicable before the African Court of Justice and Human Rights (‘the African Court’). This chapter has the task of examining the existing body of international criminal law to see what guidance the African Court may take with respect to which defences have been recognized and which have been explicitly rejected, how recognized defences have been defined, and what questions have arisen or may arise with respect to these defences.
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International criminal law, like all areas of law, must continue to evolve to reflect contemporary realities. This article demonstrates that the current subject matter jurisdiction of the International Criminal Court under the Rome Statute is very much an artefact of history, and it argues that the historical and reactive line that the statute draws between "core" international crimes and other serious international or transnational crimes is inadequate. In order to ensure that international criminal law continues to evolve in a reasoned and principled manner, states need to better articulate the criteria by which conduct is included within the category of "the most serious crimes of concern to the international community as a whole." Using a primarily inductive approach, the article considers a number of such criteria that have been considered over the years. It concludes that, when assessed in the context of their systematic and organized perpetration, many other serious international and transnational crimes raise some of the same concerns that underpin the current core international crimes, suggesting that it may be time for the international community to consider redrawing the line.
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The Special Court for Sierra Leone has been noted for becoming the first international court to convict accused of the crimes of sexual slavery, the use of child soldiers, 'forced marriage', and intentionally directing attacks against peacekeepers. This article analyzes how prosecutions of some of these supposedly 'new' crimes were found not to be in violation of the principle of legality, nullum crimen sine lege. In particular, this article will focus on the crimes of 'forced marriage', intentionally directing attacks against peacekeepers, and sexual slavery: the judgments in the RUF case (Prosecutor v. Sesay, Kallon and Gbao) and the AFRC case (Prosecutor v. Brima, Kamara and Kanu) together reveal two different processes through which the law has proven able to evolve and adapt to accommodate so-called 'new' crimes without violating the principle of legality.
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