International Criminal Justice. Cooperation and fighting of male sexual crimes

Index

Part A

1.Introduction

2.Obligation to cooperate

3. The hypothesis of lack of cooperation by states

4. Requests for assistance during inquiries

5. Consultations

6. Confidential information

7. Competing requests

8. Court assistance to states parties participating in the Statute

9. Concluding remarks

Part B

I. Introduction

2.Seeking the definition of rape in international jurisprudence through the elements of objective and subjective offense

3. Definition of rape in Special Court for Sierra Leone

4. Definition of rape in ICC

5. Joint Criminal Operation as a means of punishing the heads and governors of crimes of sexual violence. Judicial developments in the implementation of Joint Criminal Business

6. Criticism in the implementation of JCO as a means of incriminating the supporters of crimes of sexual violence

7. The issue of ineffective investigations and omissions in the prosecution of crimes of sexual violence before the international criminal courts

8.Incompatibility between categories and evidence

9.Difficulties in accessing victims of sexual violence in criminal proceedings

10.Overcoming the taboo of male victims of sexual violence

II. Legal and judicial vacuum in violence against men

12. The new policy document of ICC prosecutor's office: addressing the gaps in international criminal justice

13. Prospects and suggestions

14. Conclusions

Bibliography

Abstract

The first part of the present research work is focused on the legal analysis of the relevant articles of international criminal court's Statute regarding the obligation of cooperation between states for the punishment of serious crimes against humanity and war. Judicial development, starting with the ad hoc tribunals and arriving at causes at various stages of proceedings still ongoing in the International Criminal Court (ICC), opens doctrinal and comparative national debates especially in the case of lacking states cooperation, seeking to elaborate specific topics such as the obligation of states cooperation, requests for assistance during preliminary investigations,during inquires, and confidential information. Court assistance to states parties participating in the Statute, suspending the execution of a request, the role of the prosecutor and the non-assistance of some states impede the development and operation of international criminal justice.

The second part has attempted to analyze sexual crimes and especially the crime of male rape. The jurisprudence of international criminal tribunals and the ICC have tried to qualify rape either as a crime of genocide in the form of serious and physical injuries, even if not necessarily permanent (lett.b) art.6 of the Rome Statute; or as a crime against humanity where there are elements of context and above all material elements that emerge from the defenitions given by the ad hoc tribunals and the elements of crimes; or even as a war crime in case it is implemented to that of sexual violence, according to a geneder specific relationship to speciem. Judges through the jurisprudence have included in this context any conduct of a sexual type of aggression to human dignity that does not consist in an act of penetration and that does not involve physical contract. The contrasts are always open. Due to the lack of dealing with a "particular" crime and difficult to prove it or testify before an international court. The indication on the level of gravity of the crime is necessary for the relevance of sexual violence and rape as crimes against humanity that we will see in the coming years.

Part A

Introduction

Since the International Criminal Court (ICC)¹ does not have direct executive powers, or an apparatus for conducting investigations on its own, investigations and acquisition of evidence usually fall into areas subject to state sovereignty and are based on national law². National legislation, however, is often lacking in punishing certain crimes, particularly as regards the rules on jurisdiction³, since they do not always provide for the power to seek and prosecute those who are responsible for a crime and for damages abroad of a foreign citizen⁴, and therefore with respect to the phenomenon of internationalization of national jurisdiction. This also applies to offenses falling within the jurisdiction of International Criminal Court (ICC)under the constitutional instrument⁵. ICC in order to exercise the necessary coercion for the purposes of justice in states territories, ends up to depend on the procedural mechanism of cooperation⁶.

Specifically, international collaboration seeks to realize: -a harmonization system as effective as possible of all the laws of individual countries, in particular on the general provisions of criminal codes and definitions of the most serious offenses; -the definition of the area of offending crimes of mankind so as to realize through international agreements a solid and effective system of criminal prosecution for serious offenses; -regulation of jurisdictional conflicts with the uniform provision of crimes against humanity that are not always “protected” and provided for in national criminal justice systems⁷.

Currently, we can distinguish between four forms of cooperation: extradition, mutual assistance, transfer of criminal proceedings and enforcement of foreign judgments⁸. The rules governing international cooperation can be found both in international law laying down the rules applicable to inter-ethnic relations and in domestic law defining the measure, conditions and modalities that states intend to cooperate⁹. The results of regulatory processes developed within state and supranational levels differ in the scope and regulatory technique, lacking coherence and specificity¹⁰. These shortcomings therefore indicate the need for integration of judicial cooperation through mutual assistance aimed at a global codification that will enable them to be cumulative and alternative in order to ensure their effectiveness. Legislative approaches by which states adopt various forms of international judicial cooperation are not yet in a position to guarantee effective, solid and coordinated enforcement of judicial cooperation in themselves, since they are relatively slow to be welcomed by governments and paralyze the system. The attempt to use all existing forms of cooperation as well as the development of new ones is still in place only in a few states, while most of them consider extradition and other forms of cooperation a consequence which is affected by their political cooperation relationships. The expression “judicial cooperation” refers to and includes activities that the judicial authority of a state carries out in relation to a criminal case pending or already celebrated in a foreign country. In this sense, the formula also appears to be synonymous with the notion used: judicial assistance¹¹,which concerns the execution of acts to facilitate the pursuit of judicial activity in a third party, as well as the transfer of proceedings and enforcement of foreign penalties¹². ICC jurisdiction is based on the principle of subsidiarity¹³ and/or complementarity¹⁴ in order to adjudicate “the most serious crimes of international scope”¹⁵ according to art.1 of the Statute¹⁶ and the safeguard clause foreseen by art. 10 of the Statute states that “no provision of this part may be construed as limiting or otherwise prejudicing the rules of international law existing or in formation for purposes other than those of this Statute”¹⁷. The possible lack of ad hoc national legislation, which allow for judicial cooperation at international level¹⁸ and especially in the context of international criminal courts, are now debated¹⁹ by both courts case law and by the attempt, rectius requirement not to subtract the perpetrators of crimes²⁰ that offend international public order²¹ upon delivery to international criminal courts. According to Stromseth there are three elements of composition that govern cooperation through ICC and states participating in the judicial cooperation system. These elements are: "(...) 1. Understand the local terrain deeply and fully: "(...) especially whether domestic justice systems enjoy any degree of local legitimacy (or instead are deeply discredited)-and the goals and hopes of the domestic population who endured the atrocities and must now chart a new future-will be enormously significant both in shaping the concrete possibilities for post-conflict criminal justice and in influencing public attitudes and confidence in those efforts (...); 2. Think systematically about tribunal’s demonstration effects analyzing that: "(...) by holding individual perpetrators accountable for their actions, these trials demonstrate that certain conduct is out of bounds.

No matter what your cause or grievance, genocide, crimes against humanity, and war crimes are unacceptable and universally condemned. Second, atrocity trials affirm that impunity for these crimes is being punctured even if accountability is not perfect, and perpetrators cannot presume on impunity. Third, trials for atrocity crimes aim to demonstrate and reassure people that justice can be fair both procedurally in terms of due process and substantively in terms of evenhanded treatment of comparable actions regardless of who committed them (...)". Be proactive about capacity-building and look for synergies (...) that actually refers to national legislation. International and hybrid criminal tribunals typically enjoy a degree of international support that domestic, post-conflict justice systems can only dream of. These international resources understandably are focused on the challenging task of prosecuting perpetrators of atrocities in fair trials that meet international standards of justice²². But there are opportunities for synergies that is, for international and hybrid tribunals to contribute concretely to domestic legal capacity while doing their own important work to advance justice (...)"²³ State assistance is aimed at conducting investigations in the preliminary and deliberative phase²⁴, in the prosecution of criminal proceedings²⁵ and at the stage of celebration of the process that requires the presence of defendants, as the Statutes of various international courts, as art. 20, par. 4, lett. d) of the Statute for the Rwanda Court, art. 21, par. 3, lett. a)²⁶ for the ad hoc Tribunal for Former Yugoslavia, art. 63 of the Statute for ICC²⁷ do not provide for the process in absentia²⁸. Obviously judges, and especially the prosecutor, can provide evidence²⁹, documents, testimonies³⁰, etc., especially during the investigation of merits of the guilt and the related accusations, despite the physical absence of the accused persons³¹. Obviously a number of exceptions to the obligation³² to cooperate that do not appear in the Statutes of the ad hoc tribunals for the Former Yugoslavia³³ and for Rwanda³⁴ and/or Rome³⁵ in the area of delivery, extradition³⁶, evidence collection, rogatory assistance etc. testify the desire to transpose this form of cooperation from a field marked by equal relations³⁷ at a level which best expresses an instrumental and serving role³⁸, of a vertical nature between court of justice and member states³⁹ and of a horizontal nature between member states concerning the delivery, extradition⁴⁰, revocation, arrest warrant⁴¹, especially for the collection of evidence showing a clearly superior jurisdiction⁴².

The effects of this kind of relationship are represented by decisive effects: regulatory compliance obligations by member states of the Statute⁴³ ; obligations for the proper interpretation of domestic law; state responsibility in breach of obligations established by domestic and international law and in lack of active cooperation with an international criminal court. Then, alongside a limited criminal liability (weak link), there is a strong indirect international criminal responsibility linked to the phenomenon of punishment for serious crimes in the broad sense, with the consequence that criminal effects produce result from the combination of international jurisprudence with internal national rules within the transnational character⁴⁴ of the elements on the cases examined and the concreteness of cases examined by ICC where transnational or material elements may concern: the subject, the material object of the offense, the conduct, the event, and the effects of offense. In fact, every interpretive activity meets the intrinsic boundaries inherent in hermeneutic activity in itself, so that in order to be defined it must always consist in attributing to the statutory provision of the Statute of the court of an acceptable meaning with the spirit and the establishment of such kind of court⁴⁵. Let us not forget that state's competence in the repression of crimes has been affirmed by the conventions and that the repressive system is inspired by the principle of international universality and expressed by the aut dedere aut judicare⁴⁶ that imposes on states that are not want to judge the alleged perpetrators of the crime of extradition⁴⁷. To this end, we reiterate that the horizontal element stems from the fact that the Statute is based on a consensual basis and this implies that the contracting parties have the power not to assume any obligations that could affect the rights of third states⁴⁸ (pacta tersiis nec nocent nec prosunt). Other horizontal aspects, of minor importance, are repeated in Part IX of the Statute⁴⁹ which recognize and give value to the prerogatives in national law, prefiguring the possibility for states to interfere both in the inquiry and in court's proceedings⁵⁰. This interference can only be dangerous if there is a non cooperative attitude of states to halt the execution of court's requests.

Equally important is art. 73 of ICC Statute which is in line with the horizontal model of cooperation⁵¹ and demonstrates the prevalence of the obligation arising from an international agreement between a state party and a third state on the obligation to cooperate with the court, in case the court requests a contracting state to produce a document or information disclosed by a third party. If the latter is not a state party “and refuses to consent to the disclosure, the state informs the court that is unable to provide the document or information due to an existing obligation of confidentiality compared to that which it holds”⁵². Art. 29 of the Statute of the International Criminal Tribunal for the Former Yugoslavia⁵³ similar to art. 28⁵⁴ of the International Criminal Tribunal for Rwanda provides for an unconditional obligation to cooperate with the states on requests⁵⁵ ; they must respond without delay referring primarily to violations of humanitarian law⁵⁶ and erga omnes obligations⁵⁷. The obligation arising from the binding nature of the United Nations Resolution n. 827 and its imposition on all states as an erga omnes obligation were clearly defined by the Appeals Chamber of the Tribunal for the Former Yugoslavia in the Blaskic case of 29 October 1997⁵⁸. Moreover, par. 4 of the United Nations Resolution n.827 establishes the obligation to implement the resolution and the Statute⁵⁹. In international cooperation the Statute dedicates a part to itself: Chapter IX consisting of 17 articles⁶⁰ based on interstate judicial assistance and extradition. This statutory body should be supplemented by the provisions contained in the Rules of Procedure and in addition to the applicable rules of international law: art. 21 of the Statute (applicable law)⁶¹. The opening provision (art. 86) lays down the principle of a general obligation on states parties to cooperate with ICC. Obligation and important affirmation for the future and functioning of the court⁶² exists because of the “internationalization” of domestic law in the sense that repressive devices appear as the carrier of national law to supranational interests, rectius instruments for the application of decentralized international and community law, which does not exclude in the near future the full cooperation of ICC with EU institutions⁶³. Art. 87⁶⁴ sets out rules for cooperation requests and art. 88 states that states parties are required to fulfill their obligations, including the introduction of appropriate regulations and the achievement of that objective. Finally, art. 89-92 (delivery of certain persons to the court, competing requests, content of arrest and delivery request), and 101-102 regulate the delivery of persons sought by the court and art. 83-96⁶⁵ (other forms of cooperation, deferral of the making of a request for ongoing inquiries or ongoing proceedings, deferral of a request for a declaration of inadmissibility, content of a request for other forms of cooperation provided for in art. 93) and 99 (followed by requests under art. 93 and 96) govern other forms of cooperation and assistance⁶⁶. Finally, art. 97-98⁶⁷ (consultations, cooperation on waiver of immunity and consent for delivery)⁶⁸ and 100 (expenses)⁶⁹ contain provisions for a general nature⁷⁰.

The Statute of the ad hoc tribunals allows cooperation with member states that are part of the United Nations; instead, ICC Statute (art. 87 (5)) plans the possibility that the court invites non member states to provide assistance on the basis of an ad hoc agreement⁷¹. The inspiration for this permission was also based on the exercise of compulsory and optional universal jurisdiction⁷² for only serious violations, i.e. violations made during armed conflicts such as the tribunal for the Former Yugoslavia with the Tadic case⁷³. Thus, the court may transmit a request for delivery of a wanted person to any state in whose territory an international crime was committed⁷⁴.

We must point out that the lack of a formal nature of the Statute does not exempt not states parties to cooperate with ICC when it comes to crimes arising from the provisions of customary law such as genocidal crimes⁷⁵ provided for by the Geneva Convention of 12 August 1949⁷⁶. The court may also request the assistance of international organizations as it appears in art. 87, par. 6 which attributes to the prosecutor powers similar to those assigned to the court⁷⁷ and by other provision designed to constitute a globally wide ranging cooperation network⁷⁸ including the United Nations Security Council⁷⁹.

In particular, art. 102 of the Statute clarifies that surrender means for a state “to hand over a person to the court under the Statute”⁸⁰ and that extradition means “handing a person to another state under a treaty, a Convention or its national legislation” based on the principle of mutual legal assistance⁸¹.

The delivery system is governed by the rules of the Statute and it is true that if the delivery of a person from sovereign jurisdiction to another is outside the extradition, it is always a co­transfer of a person because it is judged by the jurisdiction ad quem. Delivery rules are interpreted in the light of the novelty represented by the institutionalization of international criminal jurisdiction, but also in accordance with art. 21 of the Statute⁸², the principles which in international law can be derived from the matter of extradition⁸³.

The reference to the specialty rule (art. 101 of the Statute) is the confirmation that the new rules do not intervene on a pure ground even though there is no rule of general international law requiring compliance with the specialty rule in the field of judicial assistance. Examination of this principle refers to conventional practice and internal rules⁸⁴. Equally important we must say is that even in multilateral treaties governing judicial assistance the principle of specialty is generally not directly envisaged. Its operation emerges from reserves to treaties formulated by states. Thanks to international instruments, there is a clear tendency to achieve a progressive restriction on the scope of the principle with the aim of promoting judicial cooperation and repressive action⁸⁵.

This aspect emerges with some evidence only in relation to bilateral agreements, while multilateral instruments do not follow an innovative approach. The provisions of international judicial cooperation shall apply only on condition that they do not prejudice the obligations of other bilateral or multilateral treaties governing or regulating in whole or in part mutual judicial assistance between the contracting states. Conventions and treaties generally provide mutual assistance or specific actions while practice tends to reduce the margin of “unnamed assistance” (sine nomine firmamentum)⁸⁶.

The different nature of cooperation with ICC allows for the support of the forefront case contained in lett. 1 of par. 1 of art. 93 of the Statute, the widest cooperation⁸⁷. Reference is made to those actions called “fishing expeditions” (claims that in the practice of normal court assistance are normally rejected)⁸⁸ ; of the material in order to initiate an internal procedure, but it also seems to extend, broader requests for coordination in investigative activities or those actions which, according to certain jurisdictions, could be attributed to forms of police and not procedural-judicial cooperation.

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² See, ROTHE, MEERNIK, INGADÖTTIR, The realities of international criminal justice, ed. Bruylant, 2013. BENNOUNA, La crèation d'une jurisdiction pènale internationale et le souverainetè des Etats, in Annuaire Français de Droit International, 1990, pp. 300ss. BENNOUNA, Cour pènale internationale, in ASCENSIO, DECAUX, PELLET (eds), Droit international pènal, ed. Pedone, 2000, pp. 736ss. FURUYA, Legal effect of the rules of the international criminal Tribunals and Courts upon individuals emerging international law of direct effect, in Netherlands International Law Review, 2000, pp. 112ss. NEUBACHER, Strafzwecke und Völkerehtststrafrecht, in Neue Juristiche Wochenschrift, 2006, pp. 966ss. SAFFERLING, International criminal procedure, Oxford University Press, 2012. STAHN, SLUITTER, The emerging practice of the International Criminal Court, Martinus Nijhoff Publishers, 2009. VAN DEN HERIK, STAHN, Future perspectives on international criminal justice, T.M.C. Asser press, 2010, pp. 586ss. WERKE, Völkerstrafecht, Mohr Siebeck, Tübingen, 2012. MCGOLDRICK, ROWE, DONNELLY, The permanent International Criminal Court: Legal and policy issues, Hart publishing, 2004, pp. 290ss. BECK, BURCHARD, FATCH, MOGHADAM, Strafrechtsvergleichung als Problem und Lösung, Baden Baden, Nomos, 2011. PIKIS,The Rome Statute, the rules of procedure and evidence, the regulations of the Court and supplementary instruments, Martinus Nijhoff Publishers, 2010. GOSNELL, The changing context of evidential rules, in KHAN, BUISMAN, GOSNELL (eds), Principles of evidence in international criminal justice, Oxford University Press, 2010. RANDAL, Universal jurisdiction under international law, in Texas Law Review, 1988, pp. 786ss. KRZAN, Prosecuting international crimes: A multidisciplinary approach, ed. Brill, 2016. CARTER, ELLIS, CHERNOR, JALLOH, The International Criminal Court justice system, Edward Elgar Publishing, 2016. SHEPPARD, The International Criminal Court and internationally recognized human rights, in International Community Law Review, 2010, pp. 46ss. ZIMMERMANN, The creation of a permanent International Criminal Court, in Max Planck Yearbook of United Nations Law, 1998, pp. 170ss. ARBOUR, BERGSMO, Conspicuous absence of jurisdictional overreach, in VON HEBEL, LAMMERS, SCHUKKING (eds) Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos, T.M.C. Asser Press, 1999, pp. 129–140. ELLIS, The International Criminal Court and its implication for domestic law and national capacity building, in Florida Journal of International Law, 2003, pp. 216ss. LUDWIN KING, Big fish, small ponds: International crimes in National Courts, in Indiana Law Journal, 2015. DAVIDSON, Human rights protection before the International Criminal Court, in International Community Law Review, 2016, pp. 72ss. POLITI, GIOIA, The International Criminal Court and national jurisdictions, ed. Routledge, 2016.

³ See, SANDULLI, Les juridictions de droit international: essai d'identification, in Annuaire Français de Droit International, 2001, pp. 46ss. RANDALL, Universal jurisdiction under international law, in Texas Law Review, 1988, pp. 785ss. JOYNER, Arresting impunity: The case for universal jurisdiction in bringing war criminals to accountability, in Law and Contemporary Problems, 1996, pp. 154ss. TOMUSCHAT, The duty to prosecute international crimes committed by individuals, in CREMER (eds), Tradition und Weltoffenheit des Rechts, ed. Springer, 2002, pp. 315ss. REYDAMS, Universal jurisdiction. International and municipal legal perspectives, Oxford University Press, 2003. WALD, Apprehending war criminals: Does international cooperation work?, in American UniversityInternational Law Review, 2012, pp. 230ss. SANDS, MACKENZIE, SHANY (eds), Manual on international Court and Tribunals, Oxford University Press, 1999. KAIKOBAD, The institutional law of international Tribunals: Salient comparative and hierarchical aspects, in BOHLANDER (eds), International criminal justice: A critical analysis of institutions and procedures, ed. Cameron May ltd, 2007, pp. 238ss. ZAHAR, SLUITER, International criminal law: A critical introduction, Oxford University Press, 2008. pp. 50ss.

⁴ TURAN, Responsibility to prosecute in an age of global governamentality: The International Criminal Court, in Cooperation and Conflict, 2015.

⁵ JO, RADTKE, SIMMONS, Assessing the International Criminal Court, in SQUATRITO, YOUNG, FOLLESDA, ULSTEIN, The performance of international Courts and Tribunals, Cambridge University Press, 2018.

⁶ BEKOU, BIRKETT, Cooperation and the International Criminal Court, ed. Bruylant, 2016. 7GABORIAU, PAULIAT, La Justice pénale internationale, Actes du colloque de Limoges organisé les 22 et 23 Novembre 2001, Limoges, PULIM, coll. Entretiens d’Aguesseau, 2002.

⁷ GABORIAU, PAULIAT, La Justice pénale internationale, Actes du colloque de Limoges organisé les 22 et 23 Novembre 2001, Limoges, PULIM, coll. Entretiens d’Aguesseau, 2002.

⁸ Mutual recognition of judicial decisions does not only imply a further development of the depoliticization movement of judicial cooperation but tends to achieve a genuine Copernican revolution of traditional judicial cooperation for the obvious overcoming of some dogmas of national sovereignty, and especially of the member states that have not agreed to take part in the adoption of binding acts in the criminal field and above all in the Community context. The aim is to create within the scope of the object and for the purposes indicated a hard podium under which mutual recognition would be impossible without the states being free to "maintain or introduce a higher level of protection for people". See about the same argument: VERNIMMEN, VAN TIGGELEN, SURANO, Quel futur pour la reconnaissance mutuelle en matière pénale? Analyse transversale, in VERNIMMEN, VAN TIGGELEN, SURANO, (eds), The future of mutual recognition in criminal matters in the European Union/L’avenir de la reconnaissance mutuelle en matière pénale dans l’Union européenne, Editions de l’Université de Bruxelles, 2009, pp. 550ss. VOGEL, Cooperation in criminal matters in the European Union. Five major tendencies-Five proposals for future action, in ARROYO ZAPATERO, NIETO MARTÍN (eds) European criminal law: An overview. I-European criminal area: Current situation and future perspectives. L’espace judiciaire pénal européen: situation actuelle et perspectives futures, Cuenca, Ediciones de la Universidad de Castilla-La Mancha, 2010, pp. 157ss. AMBOS, Internationales Strafrecht, C.H. Beck, 2006. SUOMINEN, The principle of mutual recognition in cooperation in criminal matters, Intersentia, 2011. KLIP, European Criminal Law. An integrative approach, Second edition, ed. Intersentia, 2012. TOMAŠEK, Human rights as means of europeanization of criminal law, in Czech Yearbook of International Law, 2010, pp. 174ss. JANSSENS, The principle of mutual recognition in EU law, Oxford University Press, 2013. SLUITTER, FRIMAN, LINTON, VASILIEV, ZAPPALÁ, International criminal procedure. Principles and rules, Oxford University Press, 2013. KENNER, WARD, PEERS, HERVEY, The EU Charter of fundamental rights: A commentary, ed. Bloomsbury, 2014. GOMEZ, DIEZ, European federal criminal law, ed. Intersentia, 2015. DANE, KLIP, An additional evaluation mechanism in the field of EU judicial cooperation in criminal matters to strengthen mutual trust, ed. Celsus, 2009. DE KERCHOVE, WEYEMBERGH, La confiance mutuelle dans l’espace pénal européen, ed. Bruylant, 2005. DE SCHUTTER, Mutual recognition and mutual trust in the establishment of the Area of Freedom, Security and Justice, in DE SCHUTTER, MORENO, Human rights in the web of governance: towards a learning-based fundamental rights policy for the European Union, Bruylant, 2010. VERMINNENVAN TIGGELEN, SURANO, WEYEMBERGH, The future of mutual recognition in the European Union, ed. Bruylant, 2009. MATTERA, L’Union européenne assure le respect des identités nationales, régionales et locales, en particulier par l’application et la mise en oeuvre du principe de la reconnaissance mutuelle, in Revue de Droit de l’Union Européenne, 2002, pp. 237ss. VERNIMMENVAN TIGGELEN, SURANO, WEYMBERGH, The future of mutual recognition in criminal matters in the European Union/L’avenir de la reconnaissance mutuelle en matière pénale dans l’Union européenne, ed. Bruylant, 2009. MITSILEGAS, The transformation of criminal law in the Area of freedom, security and justice, in Yearbook of European Law, 2007, pp. 1ss. LAVER, Informationshilfe im Rahmen der polizeilichen und justizielle Zusammenarbeit in Strafsachen, ed. Nomos, BadenBaden, 2018. LADEMBURGER, Police and criminal law in the Treaty of Lisbon, in European Constitutional Law Review, 2008, pp. 20ss. HERLIN-KARNELL, The Lisbon Treaty and the Area of criminal law and justice, in European Policy Analysis, SIEPS April 2008. SANCHEZ, Derecho penal y Tratado de Lisboa, in Revista de Derecho Comunitario Europeo, 2008, pp. 349ss. VAN BALLEGOOIJ, BÁRD, Mutual recognition and individual rights: Did the Court get it right?, in New Journal of European Criminal Law, 2016, pp. 442ss. NIBLOCK, Mutual recognition, mutual trust?: Detention conditions and deferring an EAW, in New Journal of European Criminal Law, 2016, pp. 250ss. VAN BALLÉGOOIJ, BÁRD, Mutual recognition and individual rights: Did the Court get it right?, New Journal of European Criminal Law, 2016, n. 1. VERNIMMEN, Le rapprochement du droit pènal et la reconnaissance mutuelle, in BRUN, Quelle justice pour l'Europe? La Charte europèenne des droits fondamentaux et la convention pour l'avenir de l'Europe, ed. Bruylant, 2004, pp. 138ss. SÁNCHEZ ARSONA, Las garantìas procesales en el espacio europeo de justicia penal, ed. Tirant Editorial, 2014. CANO, ISABEL, Integraciòn europea y justicia penal, ed. Marcial Pons, 2018

⁹ LIAKOPOULOS, Schutz und Grenzen der gefährdeten Menschen im internationalen Recht, in International and European Union Legal Matters, working paper series, 2014

¹⁰ REISINGER-CORACINI, Cooperation from States and other entities, in SLUITER, and others (eds), International criminal procedure: Principles and rules, Oxford University Press, 2013, pp. 112ss.

¹¹ On the distinction between judicial assistance and judicial cooperation see: FREI, WYSS, SCHOUWEY, L’entraide judiciaire internazionale en matière pénale, Basilea, 1981,: "(...) l’entraide judiciaire peut être considerée comme l’activité déployée par les autorités d’un Etat, à la demande d’autorités étrangères, dans l’interêt de l’administration de la justice étrangère (...)". LASZLOCZKY, La cooperazione internazionale negli atti di istruzione penale, Cedam, 1980. WEYEMBERGH, L’avenir des mécanismes decoopération judiciaire pénale entre les Etats membres de l’Union européenne, in DE KERCHOVE, WEYEMBERGH, Vers un espace judiciaire pénal européen, ed. Brill, 2000. SCHOMBURG, Are we on the road to a European law-enforcement area? Internationalcooperation in criminal matters: What place for justice?, in European Journal of Crime, Criminal Law and Criminal Justice, 2000, pp. 51ss. GUIGOU, Unification, harmonisation coopération, subsidiarité, approches politiques. Vers l’unité du droit dans l’espace européen?, in Revue du Marché Commun et de l’Union Européenne, 2000, pp. 293ss. SARKAR, The properlaw of crime in international law, in International Comparative Law Quarterly, 1962, pp. 446ss. MANN, The doctrine of jurisdiction in international law, in Recueil des Cours, 1964-I, pp. 9ss. SCHITTE, La régionalisation du droit pénal international et la protection des droits de l’homme dans les procédures de coopération internazionale en matière pénale, in Revue de Droit International Pénal, 1994, pp. 21ss.

¹² ANDERSON, The rise of international criminal law intended and unintended consequences, in European Journal of International Law, 2009.

¹³ See art. 17 of ICC Statute. STIGEN, The relationship between the International Criminal Court and national jurisdictions. The principle of complementarity, Martinus Nijhoff Publishers, 2008. LUDWIN KING, Big fish, small ponds: International Crimes in National Courts, op. cit. BERGSMO, Complementarity and the exercise of universal jurisdiction for core international crimes, Torkel Opshal Academic EPublisher, 2010.

¹⁴ In the case of cooperation between states some have characterized complementarity as passive, see: The ICC’s Prosecutor, Luis Moreno-Ocampo, stated: "(...) as a consequence of complementarity, the number of cases that reach the court should not be a measure of its efficiency. On the contrary, the absence of trials before this court, as a consequence of the regular functioning of national institutions, would be a major success (…). My duty is to apply the law without political considerations. I will present evidence to judges and they will decide on the merits of such evidence (...) for each situation in which ICC is exercising jurisdiction, we can hear voices challenging judicial decisions, their timing, their timeliness, asking the prosecution to use its discretionary powers to adjust situations on the ground (...)". See, HALL, The powers and role of the Prosecutor of the International Criminal Court in the global fight against impunity, in Leiden Journal of International Law, 2004, pp. 135ss. TURNER, Nationalizing international criminal law, in Stanford Journal of International Law, 2005, pp. 2ss. BURKE-WHITE, Regionalization of international criminal law enforcement: A preliminary exploration, in Texas International Law Journal 2003, pp. 738ss. AKHAVEN, Beyond impunity: Can international criminal justice deter future atrocities?, in American Journal of International Law, 2001, pp. 12ss. In particular the author referred that: "(...) the threat of punishment may persuade potential perpetrators to adjust their behavior (...)". See, BAKAMA BOPE, The International Criminal Court and the fight against impunity in Africa: Current challenges, in VAN DER MERWE, KEMP (eds.), International criminal justice in Africa. Issues, challenges and prospects, Konrad Adenauer Stiftung, 2016. KLABBERS, Just revenge? The deterrence argument in international criminal law, in Finnish Yearbook of International Law, 2001, pp. 251ss. GOODMAN, JINKS, How to influence States: Socialization and international human rights Law, in Duke Law Journal, 2004, pp. 622ss. EL ZEIDY, The principle of complementarity: A new machinery to implement international criminal law, in Michigan Journal of International Law, 2002, pp. 870ss. JURDI, The complementarity regime of the International Criminal Court in practice: Is it truly serving the purpose? Some lessons from Libya, in Leiden Journal of International Law, 2017, pp. 199ss. NEWTON, Comparative complementarity: Domestic jurisdiction consistent with the Rome Statute of the International Criminal Court, in Military Law Review, 2001, pp. 20ss. BURKE-WHITE, Proactive complementarity: The International Criminal Court and National Courts in the Rome system of international justice, in Harvard Journal of International Law, 2008, pp. 54ss. STIGEN, The relationship between the international criminal Court and national jurisdictions. The principle of complementarity, op. cit., WEBB, BERGSMO, International Criminal Courts and Tribunals, complementarity and jurisdiction, in Max Planck Encyclopedia of Public International Law, 2010. CROQUET, The role and extent of a proportionality. An analysis in the judicial assessment of human rights limitations within international criminal proceedings, ed. Bruylant, 2015. HOLMES, The principle of complementarity, in LEE, The International Criminal Court. The making of the Rome Statute. Issues, negotiations, results, Martinus Nijhoff Publishers, 1999. WILLIAMS, Article 17: Issues of admissibility, in TRIFFTERER, Commentary on the Rome Statute of the International Criminal Court, ed. Nomos, 1999, pp. 383ss. BROWN, Primacy or complementarity: Reconciling the jurisdiction of National Courts and International Criminal Tribunal, in The Yale Journal of International Law, 1998. CASSESE, The statute of the international criminal law, some preliminary reflections, in European Journal of International Law, 1999. HOLMES, Complementarity: National Court versus the ICC, in CASSESE, GAETA, JONES (eds) The Rome Statute of the International Criminal Court: A commentary, Oxford University Press, 2002. OLASOLO, The Triggering procedure of the International Criminal Court, Martinus Nijhoff Publishers, 2005, pp. 169ss. EL ZEIDY, The Ugandan government triggers the first test of the complementarity principle: An assessment of first State’s Party referral to the ICC, in International Criminal Law Review, 2005, pp. 100ss. KLEFFNER, Complementarity in the Rome Statute and national criminal jurisdiction, Oxford University Press, 2008. KRESS, The procedural law of the International Criminal Court in outline: Anatomy of a unique compromise, in Journal of International Criminal Justice, 2003. STAHN, EL ZEIDY, The International Criminal Court and complementarity: From theory to practice, Cambridge University Press, 2012. BENZING, The complementarity regime of the International Criminal Court: International criminal justice between State sovereignty and the fight against impunity, in Max Planck Yearbook of United Nations Law, 2003, pp. 592ss. KLEFFNER, The impact of complementarity on national implementation of substantive international criminal law, in Journal of International and Comparative Journal, 2003, pp. 90ss. HALL, Developing and implementing an effective positive complementarity prosecution strategy, in STAHN, SLUITTER (eds) The emerging practice of the International Criminal Court, Martinus Nijhoff Publishers, 2009, pp. 219–228. See for the principle of complementarity the next cases: ICC Pre-Trial Chamber I, Warrant of Arrest for Saif Al-Islam Gaddafi and ICC Appeals Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case; 25 September 2009, par. 78 with decision of 31 May 2013 and ICC Appeals Chamber, Judgment on the appeal of Libya against the decision of the Pre-Trial Chamber I of 31 May 2012, entitled: Decision on the admissibility of the case against Saif Al-Islam Gaddafi of 21 May 2014. In particular the case: Katanga Admissibility Judgment (par. 213) ICC Appeals Chamber, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case of 25 September 2009, para 78, the Chamber held that: "(...) in considering whether a case is inadmissible under article 17 (1) (a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the state having jurisdiction has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability (...) to be considered by the court, the correct avenue would rather be for it to make an application under article 19 (4) of the Statute, in which Pre-Trial Chamber circumstances could decide whether to grant leave to Libya bringing a second challenge to the admissibility of the case (...)". A different opinion was held in the case: Abdullah Al-Senussi of 27 June 2011. ICC Pre-Trial Chamber I, ‘Decision on the admissibility of the case against Abdullah Al-Senussi of 31 May 2013, parr, 210, 229-230, the Chamber hold that: "(...) that admissibility is not an inquiry into the fairness of national proceedings per se does not mean (…) that the court must turn a blind eye to clear and conclusive evidence demonstrating that the national proceedings completely lack fairness (...) at its most extreme, the Appeals Chamber would not envisage proceedings that are, in reality, little more than a predetermined prelude to an execution, and which are therefore contrary to even the most basic understanding of justice, as being sufficient to render a case inadmissible. Other less extreme instances may arise when the violations of rights of the suspect are so egregious that it is clear that the international community would not accept that the accused was being brought to any genuine form of justice. In such circumstances, it is even arguable that a state is not genuinely investigating or prosecuting at all (...)". See also: ICC-Appeals Chamber: The Prosecutor v. Seif Al-Islam Gaddafi, Abdullah Al-Senussi against the decision of pre-Trial Chamber of 31 May 2013, entitled: Decision on the admissibility of the case against Sait Al-Islam Gaddafi, of 21 May 2014 (ICC-01/11-01711 OA4. See in argument: AUGSTÍNYOVÁ, Introductory note to Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi: Decision on the admissibility of the case against Abdullah Al-Senussi, in International Law Material, 2014, pp. 2. The problem of the case Al Senussi and Gheddaffi does not rely so much on the principle of complementarity with the aim of "covering" the impunity of serious crimes to high-risk states by persons in each of these crimes and the minimum of a guarantee of judicial cooperation between Member States; more the restrictive circle of Security Council Resolution no. 1970 for the ratione tempore of the crimes committed in Libya and as a result remains open the question of who will judge the crimes committed during the Gaddafi regime that certainly from a legal point of view the Court has non the competence. See, HELLER, PTC It’s Inconsistent Approach to Complementarity and the Right to Counsel, in Opinio Juris, 2013. TEDESCHINI, Complementarity in practice: The ICC's inconsistent approach in the Gaddafi and AlSenussi admissibility decisions, in Amsterdam law forum, 2015, pp. 78ss. According to the author we've already mentioned: “(...) For ICC to make that goal a reality, a number of requirements and considerations come into play considerations that touch on transitional justice issues and require a broader, proactive approach to complementarity (...)”. AKHAVAN, Complementarity, conundrums. The ICC clock in transitional times, in Journal of International Criminal Justice, 2016, pp. 1043. BO, The situation in Libya and ICC's understanding of complementarity in the context of UNSC referred cases, in Criminal Law Forum, 2014, pp. 508ss. KLOSS, The exercise at the International Criminal Court: Towards a more principled approach, H. V. Verlag, 2017. In the same argument other part of doctrine has a different opinion: “(...) The reference of the “internationally recognized principle of due process” in article 17(2) is perhaps one of the most controversial provisions in the Statute and leaves much room for different interpretations as to the meaning of the reference. The reference to the principle of due process is rather generic; it does not extend to certain principles and guarantees one would expect to pertain to the principle as corollaries, like specific procedural rights as well as the principle in dubio pro reo and its implications (article 16(2) of ICCPR). As pointed out in legal doctrine, “(...) though articles 17 and 20 are meant to govern the actions of the (prosecutor), to some extent. They indicate the existence of limitations on the range of judicial actions that a state may pursue in fulfilling its investigatory and prosecutorial duties under the Statute (...)". See, DE FRANCIA, Due process in International Criminal Courts: Why procedure matters, in Virginia Law Review, 2001, pp. 1381 ss. HELLER, The shadow side of complementarity: The effect of article 17 of the Rome Statute on national due process, in Criminal Law Forum, 2006. HELLER, A sentence-based theory of complementarity, in Harvard International Law Journal, 2012, pp. 85 ss. STAHN, One step forward, two steps back?: Second thoughts on a “sentence-based” theory of complementarity, in Harvard International Law Journal, 2012, pp. 185ss. ROBINSON, Three theories of complementarity: Is it about the charge, the sentence, or the process?, in Harvard International Law Journal, 2012, pp. 165ss. HASSANEIN, Self-referral of situations to the International Criminal Court complementarity in practice-complementarity in crisis, in International Criminal Law Review, 2017, pp. 108ss. ESEED, The International Criminal Court's unjustified jurisdiction claims: Libya as a case study, in ChicagoKent Law Review, 2013, pp. 568ss.

¹⁵ Under artt. 4 and 6 of ICC. See, SIVAKUMARAN, Torture in international human rights and international humanitarian law: The actor and the ad hoc Tribunals, in Leiden Journal of International Law, 2005, pp. 542ss. SLAUGHTER, A global community of Courts, in Harvard International Law Journal, 2003, pp. 192ss. METTRAUX, Crimes against humanity in the jurisprudence of the international criminal Tribunals for the Former Yugoslavia and for Rwanda, in Harvard International Law Journal, 2002, pp. 238ss. VAN SCHAACK, The crime of political genocide: Repairing the genocide Convention's blind spot, in Yale Law Journal, 1997, pp. 260ss. WERLE, Principles of international criminal law, Oxford University Press, 2014. KELLY, This side of silence: Human rights, torture and the recognition of cruelty, University of Pennsylvania Press, 2012, pp. 126ss. DE HERT, SMIS, HOLVOET (eds.), Convergences and divergences between international human rights, international humanitarian and international criminal law, ed. Intersentia, 2018.

¹⁶ KRZAN, Prosecuting international crimes: A multidisciplinary approach, ed. Brill, 2016.

¹⁷ In case: Furundžija the Court of Appeal for the Former Yugoslavia commented art. 10, arguing that: (The ICC Statute) was adopted by an overwhelming majority of the States attending the Rome Diplomatic Conference and was substantially endorsed by the General Assembly’s Sixth Committee on 26 November 1998. In many areas the Statute may be regarded as indicative of the legal views, that is, opinio juris of a great number of states. Notwithstanding Article 10 of the Statute, the purpose of which is to ensure that existing or developing law is not “limited” or “prejudiced” by the Statute’s provisions, resort may be had cum grano salis to these provisions to help elucidate customary international law. Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal views of a great number of states (Prosecutor v. Furundžija, ICTY T. Ch., 10 December 1998, para. 227. See, BAYLIS, Reassessing the role of international criminal law: Rebuilding National Courts through transnational networks, in Boston College Law Review, 2010. BURKE-WHITE, Proactive complementarity: The International Criminal Court and National Courts in the Rome system of justice, in Harvard International Law Journal, 2008, pp. 53ss. TURNER, Transnational networks and international criminal justice, in Michigan Law Review, 2007, pp. 986ss. ADMIRE, The International Criminal Court: Our differences in jurisprudence, in Court Review: The Journal of the American Judges Association, 2011, pp. 362ss. GEGOUT, The International Criminal Court limits, potential and conditions for the promotion of justice and peace, in Third World Quarterly, 2013, pp. 802ss. MANLEY, Referencing patterns at the International Criminal Court, in The European Journal of International Law, 2016, pp. 194ss. KENNY, Prosecuting crimes of international concern: Islamic State at the International Criminal Court?, in Utrecht Journal of International and European Law, 2017, pp. 122ss

¹⁸ REGGIO, Cooperation with the International Criminal Court and national legal systems: An overview of the implementing legislation's enacted so far, in The global Community. Yearbook of International Law Journal and Jurisprudence, 2003, pp. 212ss.

¹⁹ ALLEN, Theater of international justice, in Creighton International and Comparative Law Journal, 2012, pp. 123ss.

²⁰ GROVER, A call to arms: Fundamental dilemmas confronting the interpretation of crimes on the Rome Statute of the International Criminal Court, in European Journal of International Law, 2010. HALL, Challenges to the jurisdiction of the Court or the admissibility of a case, in TRIFFTERER, Commentary on the Rome Statute of the International Criminal Court: Observer's notes, article by article, ed. Beck, 2011, pp. 640ss.

²¹ TRIFFTERER, Perverse effects of the nulla poena principle: National practice and the ad hoc Tribunals, in European Journal of International Law, 2000, pp. 521ss. JØRGENSEN, The responsibility of States for international crimes, Oxford University Press, 2000, pp. 145ss. FRULLI, Are crimes against humanity more serious than war crimes?, in European Journal of International Law, 2001, pp. 330ss. DINSTEIN, International criminal law, in Israel Law Review, 1985, pp. 208ss. HUET, KOERING JOULIN, Droit pènal internationale, ed. Pedone, 1994. VON EBEL, ROBINSON, Crimes within the jurisdiction of the Court Statute, in Leiden Journal of International Law, 2000, pp. 485ss. HIRSCH, Rechtsstaatliches Strafrecht und staatlich gesteuertes Unrecht, ed. Springer, 1996. PEJIC, Acountability for international crimes: From conjecture to reality, in The International Review of Red Cross, 2002, pp. 13ss. WATERLOW, SCHUHMACHER, War crimes trials and investigations. A multi-disciplinary introduction, Oxford University Press, 2018. FISCHER, KREB, LÜDER, International and national prosecution of crimes under international law, ed. Springer, 2001, pp. 818ss. KRZAN, Prosecuting international crimes: A multidisciplinary approach, op. cit.

²² COGAN, International Criminal Courts and fair trials: Difficulties and prospects, in Yale Journal of International Law, 2002, pp. 111, 114. HAFETZ, Punishing atrocities through a fair trial. International criminal law from Nuremberg to the age of global terrorism, Cambridge University Press, Cambridge, 2018. FOLLESDAL, ULFSTEIN, The judicialization of international law: a mixed blessing? Oxford University Press, Oxford, 2018

²³ See, STROMSETH, Justice on the ground: Can International Criminal Courts strengthen domestic rule of law in post-conflict societies?, in Hague Journal on Rule Law, 2009, pp. 87ss.

²⁴ BUISMAN, Delegating investigations: Lessons to be learned from Lubanga Judgment, in Journal of International Human Rights, 2013, pp. 34. NYSTEDT, AXBOE NIELSEN, KLEFFNER, A Handbook on assisting international criminal investigations, in Folk Bernadotte Academy and Swedish National Defence College, Stockholm, 2011, pp. 15.

²⁵ SIKKINK, JOON KIM, The justice cascade The origins and effectiveness of prosecution on human rights violations, in Annual Review of Law and Social Science, 2013, pp. 272ss.

²⁶ SHRAGA, ZACKLIN, The international criminal Tribunal for Rwanda, in European Journal of International Law, 1996, pp. 502ss. SCHWARZ, The legacy of Kenyatta case trials in absentia at the International Criminal Court and their compatibility with human rights, in Africa Human Rights law Journal, 2016. ELIADIS, Lubanga: new direction in reparations liability from the International Criminal Court, in PKI Global Justice journal, 2018.

²⁷ See the relevant article: Prosecutor v. Zdravko Mucic et al. (Case No. IT-96-21), ICTY T. Ch., Transcript of 16 April 1998, p. 11255–56; The Prosecutor v. Théoneste Bagosora, Gratien Kabiligi, Anatole Nsengiyumva and Aloys Ntabakuze (Case No. ICTR-98-41-I), ICTR T. Ch., Minutes of Proceedings of 2 April 2002, para. 1; Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (Case No. SCSL-2004-15), Special Court for Sierra Leone T. Ch., Ruling on the issue of the refusal of the third accused, Augustine Gbao, to attend hearing of the Special Court for Sierra Leone on 7 July 2004 and succeeding days, 12 July 2004, para. 12). Under the Tribunal for Former Yugoslavia in the case: Zdeavko Mucic et al. held that: "(...) there are also national systems which hold that presence at trial is not only a right, but also a duty of the defendant, from which he or she may only be excused under certain limited circumstances (see sect. 230and 236 of the German Code of Criminal Procedure). In the Statute, the possibility of a waiver of the right to presence is also explicitly mentioned in article 61(2) on the confirmation hearing (albeit referring to the confirmation hearing as a whole, not to parts of it), but whether the court will interpret this provision as laying down a general principle also applicable to trial proceedings, or whether it will find the opposite that there may be no such waiver for trial proceedings as it is not explicitly laid down in article 63, remains to be seen (...)". See, AMBOS, LARGE, WIERDA, Building a future on peace and justice: Studies on transitional justice, conflict resolution and development: the Nuremberg Declaration on Peace and Justice, ed. Springer, 2009, pp. 572ss. BAZELAIRE, CRETIN, La justice pènale internationale, Criminalità Internationale, ed. PUF, 2000, pp. 261ss. DECAUX, La responsabilitè des entreprises multinationales en matière des droits de l’homme, ed. Bruylant, 2010. FERNANDEZ, La politique juridique extèrieure des Etats-Unis à l'ègard de la Cour pènale internationale, ed. Pedone, 2010. JURDI, The International Criminal Court and National Courts: A contentious relationship, Ashgate Publishing, 2011. LAGOT, Quel droit international humanitaire pour les conflits armès actuels?, ed. L'Harmattan, 2010. SCHABAS, An Introduction to the International Criminal Court, Cambridge University Press, 2011. KNITTEL, Reading between the lines: Charging instruments at the ICTR and the ICC, in Pace Law Review, 2012, pp. 514ss.

²⁸ In the Statute of the International Criminal Court for the Former Yugoslavia, the trial in absentia was not foreseen. Only art. 21 of the Statute provided for the accused's right to be present at the hearing based on art. 14 of the International Covenant on Civil and Political Rights. The outlook for contempt has been taken into account in rule 61 where it has been established that failure to execute the arrest warrant and as a result the absence of the defendant can be filed at the trial chamber during which the witnesses and their relatives can be escorted evidence previously produced to obtain the confirmation of the indictment and issue the international arrest warrant and transmit it to its respective states. See, TERRIER, The procedure before the trial, in CASSESE, GAETA, JONES (eds), The Rome Statute of the International Criminal Court: A commentary, vol. II, Oxford University Press, 2002. In the Statute of Rome and after a debate on the argument, the par. 63 reports the physical presence of the defendant and the resulting art. 64, par. 8 in paragraph a) speaks: "for the beginning of the debate and the accused understands the nature of the accusations against him" to effectively enforce the guilty plea in the following art. 65.

²⁹ The prosecutor evaluates the evidence that has a non-predetermined probative value in the sense that the investigative findings are subject to court's appreciation and without a mandatory formal constraint. In fact, the compulsory legal examination institute is missing and reference to the testimony test is required to indicate precisely in the request for such a measure the facts on which the head is to be heard and the reasons justifying the hearing. In this sense, the prosecutor resembles a judge of lawfulness where complex facts not explicitly challenged by the parties are not being investigated by the investigation by giving a certain margin of appreciation in the assessment and evaluation of facts for which a survey would appear from scientific and motivational reasons for the most appropriate decision, since the factual controversies found in judgments do not appear to be peacefully attributable to factual notions of common experience (the so-known fact). A Statute does not recognize a decay of the possibility of requesting investigative measures as new evidence in support of their arguments but only on the grounds of delaying the submission of such means. Subsequent inquiries up to the oral procedure may be introduced provided that they relate to facts that the party could not know before that moment and that they are capable of exercising the decisive influence on the outcome of the final sentence. SCHWARZ, The legacy of Kenyatta case trials in absentia at the International Criminal Court and their compatibility with human rights, op. cit.

³⁰ It is not envisaged in the Statute of the court to bear witness to the matter, that is, an apparent testimony that the origin of the knowledge of the fact does not come from a sensory perception, but from another third person who has given it the first without be a witness.

³¹ See, STROH, State cooperation with the international criminal Tribunal for the Former Yugoslavia and for Rwanda, in Max Planck Yearbook of United Nations Law, 2001, pp. 250ss. FURUYA, Legal effects of rules of the international criminal Tribunals and Court upon individuals. Emerging international law of direct effect, in Netherlands International Law Review, 2000, pp. 112ss. QELLERS-FRAHM, Cooperation: The indispensable prerequisite to the efficiency of international criminal Tribunals, in ASIL Proceedings, 1995, pp. 305ss. O'SHEA, Interaction between international criminal Tribunals and national legal systems, in New York Journal of International Law and Politics, 1996, pp. 368ss. MOCHOCHOKO, International cooperation and judicial assistance, in LEE (eds), The International Criminal Court, op. cit., pp. 306ss.

³² Several provisions of the Statute deal with the issue of cooperation exception, such as: Art. 90, reserved for the case of requests for a person's delivery, art. 93, par. 9, for "other forms of cooperation"; partially art. 73 on the transmission of information and documents from third countries, communicated to the requested state; Art. 98, which prevents the formulation of requests that impose on the state required to act in a manner contrary to the obligations of international law on immunity. See in argument: SCHLANCK, Article 98: Cooperation with respect to waiver of immunity and consent to surrender, in TRIFFTERER, Commentary on the Rome Statute of the International Criminal Court, op. cit., pp. 1132ss. VAN SCHAACK, State cooperation and the International Criminal Court: A role for the United States, in Santa Clara Law Digital Commons, 2011. MUNDIS, Improving the operation and functioning of the international criminal Tribunals, in American Journal of International Law, 2000, pp. 760ss. ROBINSON, Fair but expeditious trials, in ABTAHI, BOAS, The dynamics of international criminal justice. Essays in Honour of sir Richard May, Martinus Nijhoff Publishers, 2006, pp. 170ss. BOAS, Developments in the law of procedure and evidence at the international criminal Tribunal for the Former Yugoslavia and the International Criminal Court, in Criminal Law Forum, 2001, pp. 175ss. KAY, The move from oral evidence to written evidence, in Journal of International Criminal Justice, 2004, pp. 496ss 33JANJAC, A guide to international criminal Tribunals and their basic documents, Wolf Legal

³³ Publishers, 2013. TOFAN, ICA international criminal law, Wolf Legal Publishers, 2011. VAN DER WOLF, The ad hoc Tribunals and the International Criminal Court, Wolf Legal Publishers, 2011.

³⁴ See for the creation of tribunals: TIEGER, SHIN, Plea agreements in the ICTY: Purpose, effects and propriety, in Journal of International Criminal Justice, 2005, pp. 672ss. KERR, Peace through justice? In The International Criminal Tribunal for the Former Yugoslavia, in Southeast European and Black Sea Studies, 2007, pp. 374ss. MEERNIK, Justice and peace? How the International Criminal Tribunal affects societal peace in Bosnia, in Journal of Peace Research, 2005, pp. 272ss. SCHOMBURG, The role of International Criminal Tribunals in promoting respect for fair trial rights, in Northwestern Journal of International Human Rights, 2009. APTEL, A propos du Tribunal pènal international pour le Rwanda, in International Review of Red Cross, 1997, pp. 722ss. ALLMETZER, INOMATA, International criminal Tribunal for the Former Yugoslavia. Introductory note, in The GlobaCommunity. Yearbook of International Law Journal and Jurisprudence, 2001, pp. 408ss. MAMOUNDI, Rwanda Tribunal, Wolf Legal Publishers, 2011. METTRAUX, International crimes and the ad hoc Tribunals, Oxford University Press, 2006. ALSHULER, Plea bargaining and its history, in Law and Society Review, 1979. ANTKOWIAK, An emerging mandate for international Courts: Victim-centered remedies and restorative justice, in Stanford Journal of International Law, 2011. CASSESE, ACQUAVIVA, FAN, WHITING, International criminal law: Cases and commentary, Oxford University Press, 2011. CATANI, Victims at the International Criminal Court, in Journal of International Criminal Justice, 2012. BASSIOUNI, The pursuit of international criminal justice: A world study on conflicts, victimization, and post conflict justice, Oxford University Press, 2010. CLARK, Plea bargaining at the ICTY: Guilty pleas and reconciliation, in The European Journal of International Law, 2009. DOAK, The therapeutic dimension of transitional justice: Emotional repair and victim satisfaction in international trials and truth Commissions, in International Criminal Law Review, 2011. FERIOLI, Plea bargaining before the International Criminal Court: Suggestions taken from the experience of the ad hoc Tribunals, in Legal Studies Research Paper, 2013. GARBETT, The truth and the trial: Victim participation, restorative justice, and the International Criminal Court, in Contemporary Justice Review, 2013. GRAHAM, Crimes, widgets and plea bargaining: an analysis of charge content, pleas, and trials, in California Law Review, 2012. HENHAM, DRUMBL, Plea bargaining at international criminal Tribunal for the Former Yugoslavia, in Criminal Law Forum, 2005. KLARIN, The impact of the ICTY on public opinion in the Former Yugoslavia, in Journal of International Criminal Justice, 2009. PENA, CARAYON, Is ICC making the most of victim partecipation?, in The International Journal of Transitional Justice, 2013. RAUXLOH, Plea bargaining: A necessary tool for the International Criminal Court Prosecutor, in Judicature, 2011. RAUXLOH, Plea bargaining in international criminal justice. Can the International Criminal Court afford to avoid trials?, in The Journal of Criminal Justice, 2011. RAUXLOH, Plea bargaining in national and international law: A comparative study, ed. Routledge, 2012. VAN DEN WYNGAERT, Victims before International Criminal Courts: Some views and concerns of an ICC trial judge, in Case Western Reserve Journal of International Law, 2012. VAN SCHAACK, SLYE, International criminal law and its enforcement: Cases and materials, Foundation press, New York, 2010. KIRK MCDONALD, SWAAK-GOLDMAN, Substantive and procedural aspects of international criminal law. The experience of international and national Courts, Kluwer Law International, 2000. MAY, TOLBERT, Essays on ICTY procedure and evidence. In Honour of Gabrielle Kirk McDonald, Kluwer International, 2001. MORRIS, SCHARF, An insider's guide to the international criminal for the Former Yugoslavia, Transnational publishers, 1995. MORRIS, SCHARF, The international criminal Tribunal for Rwanda, Transnational publishers, 1998. LANGBEIN, The origins of adversary criminal trial, Oxford University Press, 2003. MCCLELLAND, A non-adversary approach to international criminal Tribunals, in Suffolk Transnational Review, 2002, pp. 28ss. MAY, TOLBERT ed al., Essays on ICTY procedure and evidence. In Honour of Gabrielle Kirk Mcdonald, Kluwer Law International, 2001, pp. 168ss. BOAS, SCHABAS, International criminal law developments in the case law of the ICTY, Martinus Nijhoff Publishers, 2003. CRETA, The search for justice in the Former Yugoslavia and beyond: Analyzing the rights of the accuses under the Statute and the rule of procedure and evidence of the international criminal Tribunal for the Former Yugoslavia, in Houston Journal of International Law, 1998, pp. 382ss. TOCHILOVSKY, International criminal justice: Strangers in the foreign system, in Criminal Law Forum, 2004, pp. 320ss. WLADIMIROFF, The assignment of defense counsel before the international criminal Tribunal for Rwanda, in Leiden Journal of International Law, 1999, pp. 958ss. DE THAN, SHORTS, International criminal law and human rights, Sweet & Maxwell, 2009

³⁵ Unlike the ad hoc tribunals, it was established through a treaty and, with respect to the field of cooperation, that only the states that are part of it can participate, excluding cooperation from other states or forms of cooperation with governmental or non-governmental organizations. See, ROSCINI, Great expectations. The implementation of the Rome Statute in Italy, in Journal of International Criminal Justice, 2007. BLENGINO, La position juridique de l'individu dans le statut de la Cour pènale internationale, in CHIAVARIO, La justice pènale internationale entre passè et avenir, ed. Giuffrè, 2003. ESCARAMEIA, Preludios de uma nova ordem mundial: O Tribunal penal internacional, in Direito Penal Internacional Para a Protecòao dos Direits Humanos, 2003, pp. 11ss. CARRILLO-SALCEDO, La Cour pènale internationale: l'humanitè trouve une place dans le droit international, in Revue Gènèrale de Droit International Public, 1999, pp. 23ss.

³⁶ SADOFF, Bringing international fugitives to justice. Extradition and its alternatives, Cambridge University Press, 2016, pp. 248ss.

³⁷ "(...) creating a global system of interconnected domestic courts fundamentally requires that individual domestic legal systems be properly equipped with the requisite competence, sophistication, and commitment to justice what ICC and international criminal justice community demand. ICC will thus be required to balance the objective due process standards to which the international community is committed with the subjective, individualized needs of countries in direct need of criminal justice (…). The only way for ICC to satisfy both requirements is for it to actively cooperate with domestic legal systems in investigating and prosecuting cases. The ICC cannot and should not transform itself from a court of international criminal law into a nation-building institution. But ICC should make it a priority to assist states, in some circumstances, bringing the world’s most serious criminals to justice (...)". See, ALMOVIST, Complementarity and human rights: A litmus test for the International Criminal Court, in Loyola of Los Angeles International and Comparative Law Review, 2008, pp. 335.

³⁸ WILMSHURST, Jurisdiction of the Court, in LEE, The International Criminal Court: The making of the Rome Statute. Issues, Negotiations, Results, Martinus Nijhoff Publishers, 1999.

³⁹ AMERASINGHE, Jurisdiction of international Tribunals, Kluwer Law International, 2003. SAAROSHI, The powers of the United Nations international criminal Tribunals, in Max Planck Yearbook of United Nations Law, 1988, pp. 142ss.

⁴⁰ GUPTA, Extradition law and the International Criminal Court, in Berkeley Journal of Criminal Law, 2000.

⁴¹ The Rome Statute makes no distinction between ordinary and international arrest warrants, since no special procedure has been envisaged in the event of a state failing to deliver an individual and not be processed by individuals in absentia before the court International Penal Code to establish a standard in this sense, through its inclusion in the Rules of Procedure. See from the Tribunal for the Former Yugoslavia the following cases: Nikolic case, IT-94-2; Mrkšic and others case, IT-95-13/1; Karadžic and Mladic case, IT- 95-5/18-I; Rajic case, IT-95-12 and from the ICC the first Decision to Unseal the Warant of Arrest Against Mr. Thomas Lubanga Dyilo and Related Documents”, Doc. ICC-01/04- 01/06-37, of 23 March 2006 from the first chamber trial. See, ANOUSHIRVANI, The future of the International Criminal Court: The long road to legitimacy begins with the Trial of Thomas Lubanga Dyilo, in Pace International Law Review, 2010, pp. 213ss. VAN LAAR, The Thomas Lubanga Dyilo case, Wolf Legal Publishers, 2011

⁴² BASSIOUNI, The need for an International Criminal Court in the new international order, in Vanderbilt Journal of International Law, 1992, pp. 152ss. BASSIOUNI, (eds), The legislative history of the International Criminal Court, ed. Brill, 2009. ZIMMERMANN, The creation of a permanent International Criminal Court, in Max Planck Yearbook of United Nations law, 1998, pp. 170ss. BARBOZA, International criminal law, in Recueil des Cours, 1999, pp. 10ss. ESER, GAJA, KIRSCH, PELLET, SWART, International criminal law. A commentary on the Rome Statute for an International Criminal Court, Oxford University Press, 2001. KIRSCH, The International Criminal Court: Current issues and perspectives, in Law and Contemporary Problems, 2001, pp. 3ss. PELLET, Pour la Cour pènale internationale, quand même!-Quelques remarques sur sa compètence et sa saisine, in International Criminal Law Review, 2001, pp. 92ss. ROBERTS, Aspects of the ICTY contribution to the criminal procedure of the ICC, in MAY et al., Essays on ICTY procedure and evidence. In Honour of Gabrielle Kirk McDonald, ed. Brill, 2001, pp. 560ss. KAUL, Developments at the International Criminal Court, in American Journal of International Law, 2005, pp. 370ss. DAVID, La Cour Pènale Internationale, in Recueil des Cours, 2005, pp. 326ss. KAHN, BUISMAN, Sitting on evidence? Systemic failings in the ICC’s disclosure regime-Ttme for reform, in STAHN (ed.) The law and practice of the International Criminal Court, in Oxford University Press, 2015

⁴³ See also the case of non-member states of the court's Statute that required to cooperate with the court through the Security Council Resolution: UN Security Council Resolutions 1593 (2005) and 1970 (2011)/SC Res 1970, 26 February 2011, S/RES/1970 (2011). It was the first Resolution based on art. 13, par. b) for the situation of Darfur in Sudan. In particular the resolution referred that: ‘‘(...) the government of Sudan and all other parties to the conflict in Darfur shall co-operate fully with and provide any necessary assistance to the court and the prosecutor pursuant to this resolution (…)" that means that a non member state may cooperate with ICC. See, WENQI, On co-operation by States not party to the International Criminal Court, in International Review of the Red Cross, 2006, pp. 88ss. See also, The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman, informed the Security Council The Prosecutor v. Omar Hassan Ahmad Al Bashir, where in this case the pre-chamber and not the Prosecutor informed the Security Council about the non-cooperation of Chad and Kenya (Al-Bashir ICC-02/05-01/09-109, Pre-Trial Chamber I, 27 August 2010; Al-Bashir ICC-02/05-01/09-107, Pre-Trial Chamber I, 27 August 2010). See also: Al-Bashir ICC-02/05-01/09- 140, Pre-Trial Chamber I, 13 December 2011, Decision pursuant to article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir; Al-Bashir ICC-02/05- 01/09-129, Pre-Trial Chamber I, 12 May 2011, Decision informing the United Nations Security Council and the Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to Djibouti; Al-Bashir ICC-02/05-01/09-139, Pre-Trial Chamber I, 12 December 2011, Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir. Al Bashir ICC-02/05-01/09-159, Pre-Trial Chamber II, 5 September 2013, Decision on the Cooperation of the Federal Republic of Nigeria Regarding Omar Al Bashir’s Arrest and Surrender to the Court; Al-Bashir ICC-02/05-01/09-195, Pre-Trial Chamber II, 9 April 2014, Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court. See, RUIZ VERDUZCO, The relationship between the ICC and the United Nations Security Council, in STAHN (ed), The law and practice of the International Criminal Court, Oxford University Press, 2014, pp. 42ss. LIAKOPOULOS, International Criminal Court: Impunity status and the situation in Kenya, in International and European Union Legal Matter, 2014. LHOTSKỲ, The ICC Arrest Warrant for the Sudanese President Omar al-Bashir in Connection with his Visit to the Republic of South Africa, in Czech Yearbook of Public & Private International Law, 2016. FALLAGANT, The prosecution of Sudanese President Al Bashir: Why an SC deferral would harm the legitimacy of the ICC, in Wisconsin International Law Journal, 2010, pp. 732ss. MARECHA, CHIGORA, The Sudanese Conflict: War crimes and International Criminal Court. Alternatives, in Turkish Journal of International Relations, 2011, pp. 40ss.

⁴⁴ CURRIE, The protection of human rights in the suppression of transnational crime, in BOISTER, CURRIE (eds), Routledge Handbook of transnational criminal law, ed. Routledge, 2015, pp. 30-40.

⁴⁵ ROTHE, MEERNIK, INGADÖTTIR, The realities of international criminal justice, op. cit.

⁴⁶ BASSIOUNI, WISE, Aut dedere aut judicare. The duty to extradite or prosecute in international law, Martinus Nijhoff Publishers, 1995, pp. 7ss. MITCHELL, Sources of the aut dedere aut judicare obligation, Graduate Institute Publications of Geneva, 2009. PLACHTA, Aut dedere aut judicare: An overview of modes of implementation and approaches, in Maastricht Journal of European and Comparative Law, 1999, pp. 332ss. INTERNATIONAL LAW COMMISSION, The obligation to extradite or prosecute (aut dedere aut judicare), in Yearbook of the International Law Commission, 2014. VAN STEENBERGHE, Aut dedere aut judicare, Oxford University Press, 2013. NEWTON, Terrorist crimes and the aut dedere aut judicare obligation, in Vanderbilt Public Law Research paper, n. 13-22, 2014.

⁴⁷ See, PUENTE EGIDO, L'extradition en droit international: problèmes choisis, in Recueil des Cours, 1991, pp. 232ss. NADELMANN, The evolution of United States involvements in the international rendition of fugitive criminals, in New York Journal of International Law and Politics, 1993, pp. 814ss. DOEHRING, New problems of the international legal system of extradition with special reference to multilateral treaties. Preliminary report, in Institute of International law, Yearbook, session de Dijon, 1981, pp. 143ss. GOODWYN-GILL, Crime in international law: Obligations erga omnes and the duty to prosecute, in GOUDWYN-GILL, TALMON, The reality of international law. Essays in Honour of Ian Brownlie, Oxford University Press, 1999, pp. 200ss. ERRERA, Extradition et droits de l'homme, in Collected courses of the Academy of European Law, 1995, pp. 245ss. POUTIERS, L'extradition des auteurs d'infractions internationales, in ASCENSIO, DECAUX, PELLET, Droit international pènal, ed. Pedone, 2000, pp. 934ss. SHEARER, Extradition in international law, Manchester University Press, 1971. HAYES, Interpreting the new language of the national defense authorization act: A potential barrier to the extradition of high value terror suspects, in Wayne Law Review, 2012, pp. 570ss. LIAKOPOULOS, State responsibility and the obligation of aut dedere aut judicare obligation, in International and European Union Legal Matters, 2017.

⁴⁸ In March 2014, ICC issued the following: Guidelines governing relations between the court and intermediaries. Cooperation by states and third parties is not the only case in practice in which the prosecutor may need cooperation from private individuals to obtain relevant evidence. If the prosecutor is not qualified as judicial authority, in order to ascertain which procedures should be followed in the conduct of this type of investigative activity, it is necessary to verify the relevant internal rules from time to time where according to the guidelines: "(...) an act of the judicial authority is necessary to base the national law (...)". The prosecutor will have to get the cooperation first of all with the state, so that he can directly address private individuals and that the circumstances that have already been examined on-site investigations will be necessary. Individuals called upon to provide this kind of information would become a kind of immediate prosecutor's staff and could not be used to circumvent the rules of the investigative Statute. See, BUISMAN, Delegating investigations: Lessons to be learned from the Lubanga judgment, in Nothwestern Journal of International Human Rights, 2013, pp. 30-82. BAYLIS, Outsourcing investigations, in Legal Studies Research Paper Series, 2009, pp. 121-147. DE VOS, Investigating from Afar: the ICC’s evidence problem, in Leiden Journal of International Law, 2013, pp. 1009-1024. KLOSS, The exercise at the International Criminal Court: Towards a more principled approach, op. cit. KAHN, BUISMAN, Sitting on evidence? Systemic failings in the ICC’s disclosure regime-Time for reform, in STAHN (ed.) The law and practice of the International Criminal Court, op. cit.

⁴⁹ See from the international law the case of: Arrest Warrant (Democratic Republic of the Congo v. Belgium) of 14 February 2002 and Lotus (France v. Turkey) of 7 September 1927. VERESCHETIN, LE MON, Immunities of individuals under international law in the jurisprudence of the International Court of Justice, in The Global Community. Yearbook of International Law and Jurisprudence, 2004, pp. 78ss.

⁵⁰ The relationship between national and international jurisdictions characterizing ICC based on primacy, is different from that of the ad hoc tribunals and it is not conceivable the formal need for devolution of cases of greater importance to national jurisdictions. Excluding the crime of aggression and war crimes, the criminal acts described in the Rome Statute are not "just" crimes and therefore can be committed by anyone regardless of their qualifications, people are accused of having committed international crimes according to the titles of (article 25 (3) (a)), "ordering, soliciting or inducing" (article 25 (3) (b)), or in accordance with the provisions of "indirect co-perpetration" determine the responsibility of the hierarchical superior for acts committed by the subjects (article 28 (a)). However, the validation hearing may take place in absentia according to art. 61 par. 2 of the Statute if the accused cannot be found or escaped. The Statute and the rules of procedure maintain some silence regarding the powers of the chairman of the college to determine the way in which the trial will be conducted in absentia and above all for the order and the conditions for the submission of evidence (rec. 122). For further details see: DE HEMPTINNE, The future of international criminal justice: A blueprint for action, in CASSESE (eds), Realizing utopia. The future of international law, Oxford University Press, 2009, pp. 587ss. CABAN, The definition of the crime of aggression-Entry into force and the exercise of the Courtʹs jurisdiction over this crime, in Czech Yearbook of Public & Private International Law, 2015. The Prosecutor v. Bosco Ntaganda, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda, ICC-01/04-02/06- 309, 9 June 2014; The Warrant of Arrest for Saif Al-Islam Gaddafi, ICC-01/11-14, 27 June 2011. The Prosecutor v. Bosco Ntaganda, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda; see also: Situation in Uganda, Warrant of Arrest for Dominic Ongwen, ICC-02/04-01/05-57, 13 October 2005. The Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009. The Prosecutor V. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Judgment on the appeal of MrAbdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled: Decision on the admissibility of the case against Abdullah Al-Senussi, 24 July 2014, ICC-01/11-01/11-565. For the case Al Senussi and Gedaffi argue that:"(...) On the one hand, McDermott has argued that the “reference to “due process” in the complementarity clause is perfectly ambiguous” and “certainly leaves room for the court to take fair trial considerations into account”. However, on the other, Heller, rejects the “due process thesis”, which he considers to be “contradicted by the text, context, purpose and history of article 17”. Exploring a few of these, textually, he argues that the requirement to “have regard to principles of due process” in article 17(2) is a “sub-ordinate clause”, which “simply explains how the court should determine whether one or more of the paragraphs (the criteria for admissibility in articles 17(2)(a-c)) are satisfied”. It is not an independent base on which to challenge admissibility. Furthermore, historically, proposals that due process should be a basis for determining admissibility were rejected by many delegates to the court. This echoes the words of Prosecutor Moreno-Ocampo several years earlier that “we are not a human rights court. We are not checking the fairness of the proceedings”. On the basis of this interpretation of the statutory provisions, the court appears not to have erred procedurally. (...) it appears that the normative demands on ICC to respond to flagrant violation of rights to a fair trial can be met on the basis of the Statute, more specifically “unwillingness” under article 17(2). Yet while creativity in interpretation of article 17 in theory enables the court to act on Libyan violations of the accused’s human rights, both defendants continue to remain without access to legal representation (...)”. See : TOCHILOVSKY, Charges evidence and legal assistance in international jurisdictions, Wolf Legal Publishers, 2005. See also: DE RUITER, VAN DER WOLF, Aggression and international criminal law, Wolf Legal Publishers, 2011. CLARK International Criminal Courts and normative legitimacy: An achievable goal?, in International Criminal Law Review, 2015, pp. 763-783. DIVER, MILLER, Justiciability of human rights law in domestic jurisdictions, ed. Springer, 2015. DIXON, TENOVE, International criminal justice as a transnational field: Rules, authority and victims, in International Journal of Transitional Justice, 2013. GROSSMAN, The normative legitimacy of international Courts, in Temple Law Review, 2013, 62- 105. HANSEN, The International Criminal Court and the legitimacy of exercise, in ANDERSON et al. (eds), Law and legitimacy, DJØF Publishers, 2015. HELLER, The International Commission of Inquiry on Libya: A critical analysis, in MEIERHENRICH (ed.), International Commissions: The Role of Commissions of inquiry in the investigation of international crimes, Oxford University Press, 2012. KERSTEN, Justice after the war: The ICC and post-Gaddafi Libya, in FISHER, STEWART (eds) Transitional justice and the Arab Spring, ed. Routledge, 2014, pp. 188–209. KERSTEN, Between justice and politics: The ICC’s intervention in Libya, in DE VOS, KENDALL, STAHN, The politics of International Criminal Court interventions, Cambridge University Press, 2012, pp. 456-478. KERSTEN, Justice in conflict: The effects of the International Criminal Court's interventions on ending wars and building peace, Oxford University Press, 2016. KERSTEN, Transitional justice without a peaceful transition–The case of post-Gaddafi Libya, in LANGER, BROWN, Building sustainable peace: Timing and sequencing of post-conflict reconstruction and peacebuilding, Oxford University Press, 2016, pp. 300-320. MEGRÈT, SAMSON, Holding the line on complementarity in Libya, in Journal of International Criminal Justice, 2013, pp. 585-586. MOSS, The UN Security Council and the International Criminal Court: Towards a more principled relationship, FriedrichEbert-Stiftung International Policy Analysis, 2012. NOUWEN, Complementarity in the line of fire: The catalysing effect of the International Criminal Court in Uganda and Sudan, Cambridge University Press, 2013. NOUWEN, WERNER, Doing justice to the political: The International Criminal Court in Uganda and Sudan, in The European Journal of International Law, 2010. NOUWEN, The International Criminal Court: A peace-builder in Africa?, in DEVON, DZINSEA (eds) Peace-building, power, and politics in Africa, Ohio University Press, 2012, pp. 171-192. PAVEL, Divided sovereignty: International Institutions and the limits of State authority, Oxford University Press, 2014. VAN DER MERWE, KEMP, International criminal justice in Africa. Issues, challenges and prospects, Konrad Adenaur Stiftung, 2016. STAHN, The law and practice of the International Criminal Court, Oxford University Press, 2015. TAKEMURA, Reconsidering the meaning and actuality of the legitimacy of the International Criminal Court, in Amsterdam Law Forum, 2012, pp. 3-15. VASILIEV, Between international criminal justice and injustice: Theorising legitimacy, in BAILLIET, HAYASHI (eds), The legitimacy and effectiveness of International Criminal Tribunals, Cambridge University Press, 2016. WATERS, Libya’s home Court advantage: Why the ICC should drop its Qaddafi case, in Foreign Affairs, 2013. See also in argument: HELLER, Retreat from Nuremberg: The leadership requirement in the crime of aggression, in European Journal of International Law, 2007. SHABATAI, The International Criminal Court and the International Court of Justice: Some points of contact, in DORIA, GASSER, BASSIOUNI (ed. by), The legal regime of the International Criminal Court, ed. Brill, 2009, pp. 1004ss. FERENCZ, Defining international aggression. The search for world peace. A documentary history and analysis, Oceana Publications, 1993. MÜLLER, SCHILKE, IRINA, Defining the crime of aggression under the Statute of the International Criminal Court, in Leiden Journal of International Law, 2001, pp. 410ss. ROBINSON, Defining crimes against humanity at the Rome conference, in American Journal of International Law, 1999, pp. 44ss. SPIEKER, HEIK, The International Criminal Court and non-international armed conflicts, in Leiden Journal of International Law, 2000, pp. 396ss. NTANDA NDSEREKO, Aggression under the Rome Statute of the International Criminal Court, in Nordic Journal of International Law, 2002, pp. 498sss. PAULUS, Second thoughts on the crime of aggression, in European Journal of International Law, 2010. CLARK, Negotiating provisions defining the crime of aggression, its elements and the conditions for ICC exercise of jurisdiction, in European Journal of International Law, 2010. KLOSS, The exercise at the International Criminal Court: Towards a more principled approach, op. cit. LIAKOPOULOS, Die Hypothese des Rechts auf ein faires Verfahren internationalen Strafgericht, in International and European Union Legal Matters, 2012.