Prentice-Hall.

The Rome Conference was held in Rome, Italy, from 15 June to 17 July 1998, with the participation of representatives from more than 160 States and with hundreds of International and Non-Governmental Organisations (NGOs). The discussions and negotiations lasted until the very last moment of the Conference and concluded satisfactorily, on 17 July 1998, with the adoption of the final treaty, the Statute, with the assent of 120 States.215

Late into the Rome Conference discussions continued concerning the subject matter jurisdiction of the Court216 but a final agreement was eventually reached to limit it to the ‘core crimes’: genocide, crimes against humanity, war crimes,

213 _{Ibid Article 58, 93-94.} 214 _{Ibid Article 61, 96-98.}

215 _{For a comprehensive account of the work towards the creation of the Rome Statute see: Otto}

Triffterer, ‘Preliminary Remarks. The Permanent International Criminal Court - Ideal and Reality’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court (Second edn, C.H. Beck - Hart - Nomos 2008); Antonio Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court’ in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A

Commentary, vol I (Oxford University Press 2002); James Crawford, ‘The Work of the

International Law Commission’ in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds),

The Rome Statute of the International Criminal Court: A Commentary, vol I (Oxford University

Press 2002); Adriaan Bos, ‘From the International Law Commission to the Rome Conference (1994-1998)’ in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds), The Rome Statute of

the International Criminal Court: A Commentary, vol I (Oxford University Press 2002); Philippe

Kirsch and Darryl Robinson, ‘Reaching Agreement at the Rome Conference’ in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal

Court: A Commentary, vol I (Oxford University Press 2002); Roy S. Lee, ‘The Rome Conference

and Its Contributions to International Law’ in Roy S. Lee (ed), The International Criminal Court

The making of the Rome Statute Issues - Negotiations - Results (Kluwer Law International 1999);

Philippe Kirsch, ‘The Development of the Rome Statute’ in Roy S. Lee (ed), The International

Criminal Court The Making of the Rome Statute Issues - Negotiations - Results (Kluwer Law

International 1999); William A. Schabas, An Introduction to the International Criminal Court (Second edn, Cambridge University Press 2004) 13-25; (n 133) Werle 18-25.

216 _{Rome Conference, Committee of the Whole, UN Doc A/CONF.183/C.1/L.53, Discussion Paper,}

Part 2. Jurisdiction, Admissibility and Applicable Law, 6 July 1998 (United Nations Diplomatic

Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 1998); Rome Conference, Committee of the Whole, UN Doc A/CONF.183/C.1/L.59, Bureau Proposal,

Part 2. Jurisdiction, Admissibility and Applicable Law, 10 July 1998 (United Nations Diplomatic

Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 1998); Herman Von-Hebel and Darryl Robinson, ‘Crimes within the Jurisdiction of the Court’ in Roy S. Lee (ed), The International Criminal Court The making of the Rome Statute Issues - Negotiations

- Results (Kluwer Law International 1999); Philippe Kirsch, ‘The work of the Preparatory

Commission’ in Roy S. Lee (ed), The International Criminal Court Elements of Crimes and Rules

and aggression.217 Pursuant to Article 12, the jurisdiction of the Court is restricted to crimes committed in the territory or by a national of a State Party, or of a State that has accepted the jurisdiction of the Court, except in the case of a referral by the UNSC.218 Unlike other international tribunals, the jurisdiction of the ICC is strictly prospective. Pursuant to Article 11, the Court has jurisdiction to prosecute only crimes committed after the entry into force of the Statute, ie 1 July 2002, or the date of entry into force for the relevant State in accordance with Article 126(2).219 As to aggression, pursuant to Articles 15 bis and ter, the Court’s jurisdiction will be activated only once the related amendments enter into force,220 and a decision is taken after 1 January 2017.221 Although the discussions at the Rome Conference endowed the Court with inherent jurisdiction in relation to States Parties,222 _{there remains the need for a}

triggering procedure to operate in order to activate the Court’s jurisdiction. Pursuant to Article 13, the Court may exercise its jurisdiction only if activated

217 _{Articles 6, 7, 8 and 8 bis, specify the conduct qualifying as crimes within the jurisdiction of}

the Court. The definition and the Elements of the Crime of Aggression were only agreed during the review Conference of the Statute held in Kampala during the year 2010. For the discussions on the crime of aggression from before the Rome Conference to the final agreement in the Kampala Review Conference, see Giorgio Gaja, ‘The Long Journey towards Repressing Agression’ in Antonio Cassese, Paola Gaeta and John R.W.D. Jones (eds), The Rome Statute of the

International Criminal Court: A commentary, vol I (Oxford University Press 2002) 427; Stefan

Barriga, Wolfgang Danspeckgruber and Christian Wenaweser, The Princeton Process on the Crime

of Aggression: Materials of the Special Working Group on the Crime of Aggression, 2003–2009

(Lynne Rienner Publishers 2010); Carsten Stahn, ‘The ‘End’, the ‘Beginning of the End’ or the ‘End of the Beginning’? Introducing Debates and Voices on the Definition of ‘Aggression’’ (2010) 23 LJIL 875; Christian Wenaweser, ‘Reaching the Kampala Compromise on Aggression: The Chair's Perspective’ (2010) 23 LJIL 883; Niels Blokker and Claus Kress, ‘A Consensus Agreement on the Crime of Aggression: Impressions from Kampala’ (2010) 23 LJIL 889; David Scheffer, ‘The Complex Crime of Aggression under the Rome Statute’ (2010) 23 LJIL 897; Donald M. Ferencz, ‘The Crime of Aggression: Some Personal Reflections on Kampala’ (2010) 23 LJIL 905.

218 _{Pursuant to Article 12(2)(a), when committed on board a vessel or aircraft, the State of}

registration of that vessel or aircraft has to be a State Party or a State that has accepted the jurisdiction of the Court.

219 _{Pursuant to Article 124, a State Party may opt to defer the jurisdiction of the Court in}

relation to war crimes, for a period up to seven years.

220 _{With the ratification of at least thirty States Parties, for the ratifications see}

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10- b&chapter=18&lang=en [ref. 13 November 2014].

221 _{Which necessitates a two-thirds majority of States Parties. However, pursuant to Article 15}

bis(4), a State Party may declare that it does not accept the Court’s jurisdiction over the crime

of aggression and in such a case the Court will only be able to exercise jurisdiction following a referral by the UNSC.

222 _{The consent of the relevant State is therefore not necessary for the Court to act, see}

Elizabeth Wilmshurst, ‘Jurisdiction of the Court’ in Roy S. Lee (ed), The International Criminal

Court The making of the Rome Statute Issues - Negotiations - Results (Kluwer Law International

by: (i) a referral from the UNSC; (ii) a referral from a State Party; or (iii) proprio motu by the Prosecutor.

One of the most important agreements reached during the Rome Conference ensures that, even once the jurisdiction of the Court has been activated, there remain certain ‘barriers to the exercise of jurisdiction by the Court’.223 These are the issues of admissibility – complementarity, gravity, and double jeopardy or ne bis in idem – and the interests of justice.

As described in Chapter 1 above, Articles 42 and 54 give the Prosecutor independence and discretion to interpret and apply the provisions of the Court’s legal framework. However, in order to ensure the Court’s independence and impartiality, the PTC was included as the Court’s gatekeeper. It is meant to counterbalance the wide discretion given to the Prosecutor and to ensure that his actions are not abusive or the result of improper political pressures.224 Accordingly, Article 34 includes within the Court’s system a Pre-Trial Division, composed of no fewer than six judges predominantly with criminal trial experience, pursuant to Article 39(1). Article 39(2)(iii) stipulates that the functions of a PTC shall be carried out either by three judges or by a single judge, in accordance with the Statute and the Rules.

The PTC’s gatekeeping function is exercised throughout the pre-investigation, investigation and pre-trial stages of the proceedings before the ICC. The different functions assigned to the PTC in the Statute and the procedures through which it exercises them are described below. The concrete application of these proceedings to the situations and cases brought before the Court and the jurisprudence so far developed will be analysed in the Chapters that follow.

223 _{The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-772 Judgment on the Appeal of Mr}

Thomas Lubanga Dyilo against the decision on the defence challenge to the jurisdiction of the Court pursuant to article 19 (2) (a) of the Statue of 3 October 2006 Appeals Chamber, 14 December 2006 para. 23.

2.3 The role of the PTC in determining the jurisdiction of the Court