¹ M. C. Bassiouni, ‘Preface’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article-by-Article (1999), xix, at xxi.

² Professor Bassiouni was a Professor of Law and was the Chairman of the Drafting Committee of the United Nations Diplomatic Conference on the Establishment of an International Criminal Court.

³ See Bassiouni, supra note 1, at xxi.

⁴ See P. Kirsch, ‘Introduction’, in Triffterer, supra note 1, at xxiii–xxiv; M. H. Arsanjani, ‘The Rome Statute of the International Criminal Court’, (1999) 93 AJIL 22, at 24–5; P. Kirsch and J. T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, (1999) 93 AJIL 2, at 4.

⁵ While the Statutes of the ICTY and ICTR do not stipulate the applicable law, the UN Secretary General noted that the ICTY should apply ‘rules of international humanitarian law that are beyond any doubt part of customary law’. Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704 (1993), at 9, para. 34.

⁶ The judges, registry, prosecution, and defence could all propose rule amendments. See Practice Direction on Procedure for the Proposal, Consideration of and Publication of Amendments to the Rules of Procedure and Evidence of the International Tribunal, UN Doc. IT/143/Rev.2 (2002).

⁷ See G. Sluiter, ‘Procedural Lawmaking at the International Criminal Tribunals’, in S. Darcy and J. Powderly (eds.), Judicial Creativity at the International Criminal Tribunals (2010), 315, at 315.

⁸ See J. Powderly, Judges and the Making of International Criminal Law (2020), at 404–5.

⁹ See Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/KRM/1004/006)). Amended provisions in the Establishment Law are labeled as ‘new’.

¹⁰ M. G. Karnavas, ‘Bringing Domestic Cambodian Cases into Compliance with International Standards’, (2014) 1 Cambodia Law and Policy Journal 45, at 58.

¹¹ Unlike the UNSC handing down the ICTY/ICTR Statutes, the Assembly of States Parties is the legislative body of the ICC. See 1998 Rome Statute of the International Criminal Court, 2187 UNTS 153, Art. 112(2). See also Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume I, UN Doc. A/51/22, at 42–3, para. 186. See also P. Ambach, ‘Article 12 (Assembly of States Parties)’, in K. Ambos (ed.), Rome Statute of the International Criminal Court: Article-by-Article Commentary (2022), 2767, at 2769–70.

¹² B. Broomhall, ‘Article 51 (Rules of Procedure and Evidence)’, in Ambos, ibid., 1586, at 1590. Bruce Broomhall tells us that even states with no intention of becoming parties to the Statute were given an opportunity to prevent what they might regard as overreaching procedures, while undecided states would decide whether to sign or ratify the Statute based on the proposed rules.

¹³ Article 51(3) of the Rome Statute provides that the judges may draw up provisional rules in ‘urgent cases’ to be applied ‘until adopted, amended or rejected’ at the Assembly of State Parties’ (ASP) ‘next’ session. On 10 February 2016, the Plenary of Judges adopted Provisional Rule 165 to expedite Article 70 cases (offences against the administration of justice) by having a single judge conduct trials and a three-judge panel for appeals. Despite the ASP’s inability or unwillingness to take any action over the course of several sessions, the Appeals Chamber confirmed the decision to apply Provisional Rule 165. Prosecutor v. Gicheru, Judgment on the appeal of the Office of Public Counsel for the Defence against the decision of Pre-Trial Chamber A of 10 December 2020 entitled ‘Decision on the Applicability of Provisional Rule 165 of the Rules of Procedure and Evidence’, ICC-01/09-01/20 OA, A.Ch., 8 March 2021.

¹⁴ See, e.g., M. C. Bassiouni, ‘Negotiating the Treaty of Rome on the Establishment of an International Criminal Court’, (1999) 32 Cornell International Law Journal 443.

¹⁵ The debate around ICC Rule 140 could easily be characterized as a ‘clash of cultures between the civil law and the common law’, with delegations from France and the United States championing their respective legal traditions. P. Lewis, ‘Trial Procedure’, in R. S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001), 539, at 550.

¹⁶ See M. G. Karnavas, ‘The Serendipitous Nature of the ICC Trial Proceedings Risks the ICC’s Credibility’, in M. Böse et al. (eds.), Justice Without Borders (2018), 202.

¹⁷ P. Zsombor, ‘The Khmer Rouge Tribunal – A Legacy Yet to be Written’, Cambodia Daily, 5 December 2012, 17.

¹⁸ M. G. Karnavas, ‘Salvaging the Khmer Rouge Tribunal’s Legacy’, Cambodia Daily, 11 December 2012, available at www.cambodiatribunal.org/sites/default/files/news/Cambodia%20Daily%2012-14-12.pdf.

¹⁹ See Triffterer, supra note 1, at v.

²⁰ Ibid.

²¹ See Rome Statute, Art. 126(1).

²² See Triffterer, supra note 1, at vi.

²³ See Ambos, supra note 11, at vii.

²⁴ Ibid.

²⁵ Ibid. Those who did not contribute to the third and fourth editions had their names removed from the list of contributing authors, following an editorial rule by the publisher.

²⁶ B. Schmitt, ‘Introduction’, in Ambos, supra note 11, at xv–xvii.

²⁷ C. Kreß and K. Prost, ‘Part 9 (International Cooperation and Judicial Assistance): Preliminary Remarks’, in Ambos, ibid., at 2440.

²⁸ ICC Press Release, Assembly activates Court’s jurisdiction over crime of aggression, 15 December 2017, available at www.icc-cpi.int/pages/item.aspx?name=pr1350.

²⁹ Concerning employing microbial, biological, or toxin weapons; employing weapons that injure by fragments undetectable by X-rays; employing laser weapons; and starvation of civilians. See Rome Statute, Art. 8(2)(b)(xxvii)–(xxix), Art. 8(2)(e)(xv)–(xix).

³⁰ Ibid., Art. 63. W. Schabas and V. Caruana, ‘Article 63 (Trial in the Presence of the Accused)’, in Ambos, supra note 11, at 1855.

³¹ Prosecutor v. Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, ICC-01/05-01/08-3343, T.Ch., 21 March 2016; Prosecutor v. Jean-Pierre Bemba Gombo, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against Trial Chamber III’s ‘Judgment pursuant to Article 74 of the Statute’, ICC-01/05-01/08-3636, A.Ch., 8 June 2018.

³² Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu, and Narcisse Arido, Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber VII of 17 September 2018 entitled ‘Decision Re-sentencing Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba and Mr Jean-Jacques Mangenda Kabongo’, ICC-01/05-01/13-2351, A.Ch., 27 November 2019.

³³ Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment and Sentence, ICC-01/12-01/15-171, T.Ch., 27 September 2016.

³⁴ Prosecutor v. Bosco Ntaganda, Judgment on the appeals of Mr Bosco Ntaganda and the Prosecutor against the decision of Trial Chamber VI of 8 July 2019 entitled ‘Judgment’, ICC-01/04-02/06-2666, A.Ch., 30 March 2021.

³⁵ Prosecutor v. Dominic Ongwen, Trial Judgment, ICC-02/04-01/15-1762, T.Ch., 4 February 2021.

³⁶ Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Judgment in the appeal of the Prosecutor against Trial Chamber I’s decision on the no case to answer motions, ICC-02/11-01/15-1400, A.Ch., 31 March 2021.

³⁷ B. Schmitt, in Ambos, supra note 11, at xv–xvi.

³⁸ Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals against Trial Chamber II’s ‘Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable’, ICC-01/04-01/06-3466, A.Ch., 18 July 2019; Prosecutor v. Germain Katanga, Order for Reparations pursuant to Article 75 of the Statute, ICC-01/04-01/07-3728-tENG, T.Ch., 24 March 2017; Prosecutor v. Ahmad Al Faqi Al Mahdi, Judgment on the appeal of the victims against the ‘Reparations Order’, ICC-01/12-01/15-259, A.Ch., 8 March 2018; Prosecutor v. Ntaganda, Reparations Order, ICC-01/04-02/06-2659, T.Ch., 8 March 2021.

³⁹ Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Rectificatif à la Décision relative à la confirmation des charges portées contre Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18-461-Corr, P.T.Ch., 13 November 2019; Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona, Corrected version of Public Redacted Version of ‘Decision on the confirmation of charges against Alfred Yekatom and Patrice-Edouard Ngaïssona’, ICC-01/14-01/18-403-Red-Corr, P.T.Ch., 14 May 2020.

⁴⁰ Situation in the Republic of Burundi, ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi’, ICC-01/17-X-9-US-Exp, 25 October 2017, ICC-01/17-9, P.T.Ch., 9 November 2017; Situation in the Islamic Republic of Afghanistan, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan, ICC-02/17-138, P.T.Ch, 5 March 2020; Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19-27, P.T.Ch., 14 November 2019.

⁴¹ Prosecutor v. Paul Gicheru, Order Setting the Date for the Initial Appearance of Mr Gicheru, ICC-01/09-01/20-34, P.T.Ch., 4 November 2020; Prosecutor v. Ali Muhammad Ali Abd-Al-Rahman (‘Ali Kushayb’), Decision on the convening of a hearing for the initial appearance of Mr Ali Kushayb, ICC-02/05-01/20-88, P.T.Ch., 11 June 2020.

⁴² Prosecutor v. Saif Al-Islam Gaddafi, Judgment on the appeal of Mr Saif Al-Islam Gaddafi against the decision of Pre-Trial Chamber I entitled ‘Decision on the “Admissibility Challenge by Dr. Saif Al-Islam Gadafi pursuant to Articles 17(1)(c), 19 and 20(3) of the Rome Statute”’ of 5 April 2019, ICC-01/11-01/11-695, A.Ch., 9 March 2020.

⁴³ Prosecutor v. Omar Hassan Ahmad Al Bashir, Decision on Jordan’s request for suspensive effect of its appeal against the decision on the non-compliance by Jordan with the request for the arrest and surrender of Mr Omar Al-Bashir, ICC-02/05-01/09-333, A.Ch., 6 April 2018.

⁴⁴ B. Schmitt, in Ambos, supra note 11, at xvi.

⁴⁵ P. Ambach, ‘Article 2 (Relationship of the Court with the United Nations)’, in Ambos, supra note 11, at 26–48. Compare with P. Ambach, ‘Article 2 (Relationship of the Court with the United Nations)’, in O. Triffterer and K. Ambos (eds.), The Rome Statute of the International Criminal Court: A Commentary (2016), 22.

⁴⁶ H. Abtahi and R. Young, ‘Article 41 (Excusing and Disqualification of Judges)’, in Ambos, supra note 11, at 1506–7. Compare with H. Abtahi and R. Young, ‘Article 41 (Excusing and Disqualification of Judges)’, in Triffterer and Ambos, ibid., at 1258.

⁴⁷ S. Meisenberg, ‘Otto Triffterer and Kai Ambos (eds.): The Rome Statute of the International Criminal Court: A Commentary’, (2016) 16 International Criminal Law Review 561, at 562–3.

⁴⁸ C. Barthe, ‘Otto Triffterer and Kai Ambos (eds.), The Rome Statute of the International Criminal Court’, (2018) 16 Journal of International Criminal Justice 663, at 664–5.

⁴⁹ Ibid., at 668.

⁵⁰ See H. Evans, ‘A Survey of Recent Developments and Trends in Universal Jurisdiction’, Lawfare, 9 February 2022, available at www.lawfareblog.com/survey-recent-developments-and-trends-universal-jurisdiction.

⁵¹ See Ambos, supra note 11, at vii.

⁵² B. Elberling, ‘Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article’, (2008) 51 German Yearbook of International Law 759, at 761.

⁵³ P. Hofmański, ‘Introduction’, in Ambos, supra note 11, at xiii.

⁵⁴ See, e.g., M. Klamberg (ed.), Commentary on the Law of the International Criminal Court (2017), available at www.legal-tools.org/doc/aa0e2b/pdf/.

⁵⁵ For a summary of the proceedings see Syria Justice and Accountability Center, ‘Inside the Raslan Trial #58: The Raslan Verdict in Detail’, 13 January 2022, available at https://syriaaccountability.org/inside-the-raslan-trial-the-raslan-verdict-in-detail/.