_{UN - Security Council resolutions (1993/94)}¹

_{ILC-draft (1994)}

_{Alternative-draft (1995)}

_{legal nature/
structure}

_{Establishment as a subsidiary organ (Art. 29 UN-Charter) on the basis of ch. VII UN Charter two trial and two appeals chambers, prosecutor, registry (Art. 11-17).}

_{Treaty: permanent ICC/ `Presidency', trial and appeals chamber, prosecutor, registry (Art. 1-19, 22).}

_{As ILC-draft.}

_jurisdiction

_{Prerequisites: state complaint (Art. 21 - 25) or Security Council action (Art. 23) [`pre-trial proceedings'], then decision by the Court (Art. 24); challenge to the jurisdiction possible (Art. 34) and discretion of the Court to exercise jurisdiction in case of national prosecution or crimes of less gravity (Art. 35).}

_{In principle as ILC-draft, but state complaint facilitated and role of the SC discussed (part. III).}

_{- subject matter
jurisdiction}

_{Grave breaches of the Geneva Conventions,}² _{violations of the laws or customs of war, genocide, crimes against humanity, no exclusive enumeration (Art. 1-5).}

_{Specific `crimes' (genocide, aggression, breaches of the laws of war, crimes against humanity) and treaty crimes `of international concern' (Art. 20)}³ _{;ipsoiure jurisdiction over genocide.}

_{In principle as ILC-draft, but exact definition of specific crimes and additional crimes according to annex.}

_{-  personal
jurisdiction}

_{Natural persons who `planned, instigated, ordered, committed or otherwise aided ... in the planning, preparation or execution' of the above mentioned crimes, exclusion of the `Act of State' doctrine and `superior order' (Art. 6 -7).}

_{Any natural person
(ex Art. 21 par. 1).}

_{As ILC-draft.}

_{- territorial/
temporal
jurisdiction}

_{Territory of the former Yugoslavia/from 1/1/ 91 until the establishment of peace and security.}⁴

_{In principle unlimited, depends on the acceptance of the jurisdiction by a state party (Art. 22).}

_{As ILC-draft.}

_{UN - Security Council resolutions (1993/94)}

_{ILC-draft (1994)}

_{Alternative-draft (1995)}

_{- national
jurisdiction?}

_{In principle concurrent jurisdiction, but primacy of the ICC in case of conflict (Art. 9).}

_{Primacy of the ICC in case of subject matter jurisdiction (ex 51 ff.), otherwise complementary (Art. 35, see above and preamble).}

_{As ILC-draft.}

_proceedings

_{- pre-trial
proceedings}

_{Investigation and indictment by prosecutor, review and possible compulsory measures by judge of the trial chamber (Art. 18,19).}

_{Investigation and indictment by prosecutor, review and possible compulsory measures by `Presidency' (Art. 25-31).}

_{In principle as ILC-draft, only minor changes (see below).}

_{ Investigation}

_{Ex officio or on the basis of `information ... from any source'.}

_{On the basis of complaint by a state party which is party to the Genocide Convention or - in the case of other crimes - has accepted the jurisdiction of the court; or on the basis of Security Council decision (Art. 25 par. 4 in conjunction with 23).}

_{As ILC-draft.}

_{ indictment}

_{On the basis of prima facie case; confirmation or dismissal by judge.}

_{On the basis of prima facie case; `Presidency' confirms, amends or dismisses the indictment (ex 27 par. 2); also reviews negative decision of the prosecutor at the request of a complaining state or the Security Council and may request the prosecutor to reconsider the decision. Consideration of national prosecution and gravity of the crime
(Art. 35)}

_{In principle as ILC-draft, but definition of prima facie case in the sense of an urgent suspicion of a criminal act and right to a hearing for parties (Art 27 par. 1, 2).}

_{ compulsory
measures?}

_{Only if ordered by the judge (e.g. arrest warrant); prosecutor: can only request compulsory measures and carry out certain investigation measures, e.g. interrogation.}

_{Similar to UN-SC resolutions, with more exact provisions, particularly conditions of arrest (Art. 28).}

_{As ILC-draft.}

_{UN - Security Council resolutions (1993/94)}

_{ILC-draft (1994)}

_{Alternative-draft (1995)}

_{- Trial proceedings}

_{Art. 20 -21.}

_Art. 32-47

_{Art. 32-47}

_{ applicable law}

_?

_{Statutes, applicable treaties and rules and principles of general international law; `to the extent applicable' national law (Art. 33).}

_{As ILC-draft, but draws attention to `elements to be regulated in a General Part'.}

_{ course of the
trial}

_{Reading of the indictment, pleading of the accused, presence, date for trial.}

_{Reading of the indictment, ensuring respect for the rights of the accused, his pleading (Art. 38).}

_{As ILC-draft.}

_{ powers of
the Court}

_{Arrest of the accused, exclusion of the public.}

_{Exclusion of the public, conducting trial, decisions about evidence (Art. 38).}

_{As ILC-draft.}

_{ evidence}

_?

_{Hearing of witnesses according to national law, including criminalization of perjury; ICC decides about admissibility and relevance of evidence, does not require proofs or facts of common knowledge; illegally obtained evidence not admissible (Art. 44); record of evidence taken before indictment chamber admissible in subsequent trial (Art. 37).}

_{Own rules of evidence; audio or video-recording as documentary evidence; prohibition of use of evidence obtained in `serious violation' of human rights; right of witness not to testify; possible sanctions against witnesses (44); `record of evidence' only in case of legal assistance (Art 37).}

_{-  judgment}

_{Simple majority, delivered in public, accompanied by reasoned opinion in writing (Art. 23).}

_{Simple majority concerning guilt and sentencing, inability to agree leads to new trial; deliberations secret, judgment in writing and delivered in open court (Art. 45).}

_{as ILC-draft}

_{-  sentencing}

_{Only imprisonment; length according to `general practice' in the former Yugoslavia and gravity of the crime and individual circumstances of the convicted person; additionally, order of the return of any property and pursuits acquired by criminal conduct possible (Art. 24).}

_{Imprisonment or fine, length or amount according to the national law of the convicted person, place of the commission of the crime and the competent state (Art. 47); further separate hearing; consideration of the gravity of the crime and individual circumstances (Art. 46).}

_{In principle as ILC-draft but minimum punishment of 1 year imprisonment and fine additionally (not solely); confiscation of proceeds or instruments of the crime; credit for period of pre-trial detention (Art 47).}

_{UN - Security Council resolutions (1993/94)}

_{ILC-draft (1994)}

_{Alternative-draft}

_{judicial remedies}

_{Reasons for appeal and review (Art. 25-26).}

_{Reasons and consequences for appeal and review (Art. 48-50).}

_{Art. 48-50}

_-  appeal

_{In case of error of law or fact.}

_{In case of unfair trial, error of law or fact (new decision or trial); in case of disproportion between crime and sentence ( amendment of the sentence) (Art. 48, 49).}

_{In principle as ILC-draft, but: error of fact only in case of `miscarriage of justice' reason for appeal; prosecutor and accused have right to appeal (Art 48).}

_{-  revision}

_{In case of new, decisive facts.}

_{Similar to UN-SC resolutions, Presidency requests a decision of the former or new trial chamber or refers the matter to appeals chamber (Art. 50).}

_{As ILC-draft.}

_-  others

_ó

_{Habeas corpus during pre-trial proceedings (Art. 29 par. 3).}

_{As ILC-draft and additionally right to appeal against pre-trial rulings (Art 48 par. 1).}

_{execution
of a sentence}

_{Art. 27, 28.}

_{Prerequesite: recognition of judgments by state parties (Art. 58).}

_{In principle as ILC-draft, but stronger legal obligation by expression `abide'.}

_{-  principle}

_{In a certain state according to its law under supervision of the ICC.}

_{Similar to UN-SC resolutions, if impossible in `host state' (Art. 59).}

_{Additionally to ILC: formal acceptance of the administering state; no consent of the sentenced person; also applicable to fines and confiscatory measures (Art 59).}

_{-  exceptions}

_{Pardon or commutation of sentences subject to the decision of the ICC.}

_{Pardon, parole and commutation of sentences according to national law on request of convicted person at ICC (Art. 60).}

_{No release according to national law:, decision by the ICC alone (Art 60)}

_{UN - Security Council resolutions (1993/94)}

_{ILC-draft (1994)}

_{Alternative-draft (1995)}

_{rule of law
principle}

_{Ne bis in idem (Art. 10), pre-trial proceedings: right to counsel (Art. 18 par. 3); trial: `fair trial' principles, including presence of the accused (Art. 20); protection of witnesses and victims (Art. 21).}

_{Judicial independence (Art. 10); pre-trial proceedings: right to silence, right to counsel (Art. 26 par. 6), in principle release after 90 days (Art. 28 par. 2), notification of the indictment (Art. 30); trial: `fair trial', but hearing in absence of accused possible (Art. 37 par. 1-3, 38 par. 3, 40, 41); nullum crimen (Art. 39), ne bis in idem (Art. 42); protection of accused, witnesses and victims (Art. 43).}

_{As ILC-draft with amendments in Art. 26 par. 6, Art 37 (trial in absence more difficult), Art 41 (right to examine the evidence by defence), Art 42 (not applicable in case of exemption of punishment; taking into account other penalties), Art 43 (victims and witness service).}

_{other provisions}

_{Judicial co-operation and assistance (Art. 29).}

_{Judical co-operation and assistance (Art. 51-57), particularly Court may request state to take provisional measures (Art. 52).}

_{Various changes (Art. 51 to 57a).}