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Indicting Rafsanjani

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

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Article 30 Mental element

1.         Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
 
2.         For the purposes of this article, a person has intent where:

(a)     In relation to conduct, that person means to engage in the conduct;

(b)     In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3.         For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.
  Article 31 Grounds for excluding criminal responsibility

1.         In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct:

(a)     The person suffers from a mental disease or defect that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;

(b)     The person is in a state of intoxication that destroys that person's capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

(c)     The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;

(d)     The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

(i)     Made by other persons; or

(ii)     Constituted by other circumstances beyond that person's control.

2.         The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it.
 
3.         At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.
 
  Article 32 Mistake of fact or mistake of law

1.         A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.
 
2.         A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.
  Article 33 Superior orders and prescription of law

1.         The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a)     The person was under a legal obligation to obey orders of the Government or the superior in question;

(b)     The person did not know that the order was unlawful; and

(c)     The order was not manifestly unlawful.

2.         For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.
  PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT   Article 34 Organs of the Court

            The Court shall be composed of the following organs:

(a)     The Presidency;

(b)     An Appeals Division, a Trial Division and a Pre-Trial Division;

(c)     The Office of the Prosecutor;

(d)     The Registry.

  Article 35 Service of judges

1.         All judges shall be elected as full-time members of the Court and shall be available to serve on that basis from the commencement of their terms of office.
 
2.         The judges composing the Presidency shall serve on a full-time basis as soon as they are elected.
 
3.         The Presidency may, on the basis of the workload of the Court and in consultation with its members, decide from time to time to what extent the remaining judges shall be required to serve on a full-time basis. Any such arrangement shall be without prejudice to the provisions of article 40.
 
4.         The financial arrangements for judges not required to serve on a full-time basis shall be made in accordance with article 49.
  Article 36 Qualifications, nomination and election of judges

1.         Subject to the provisions of paragraph 2, there shall be 18 judges of the Court.
 
2.         (a)      The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1, indicating the reasons why this is considered necessary and appropriate. The Registrar shall promptly circulate any such proposal to all States Parties.
 
            (b)      Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened in accordance with article 112. The proposal shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties.

            (c)      (i)     Once a proposal for an increase in the number of judges has been adopted under subparagraph (b), the election of the additional judges shall take place at the next session of the Assembly of States Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2;

                    (ii)      Once a proposal for an increase in the number of judges has been adopted and brought into effect under subparagraphs (b) and (c) (i), it shall be open to the Presidency at any time thereafter, if the workload of the Court justifies it, to propose a reduction in the number of judges, provided that the number of judges shall not be reduced below that specified in paragraph 1. The proposal shall be dealt with in accordance with the procedure laid down in subparagraphs (a) and (b). In the event that the proposal is adopted, the number of judges shall be progressively decreased as the terms of office of serving judges expire, until the necessary number has been reached.

3.         (a)      The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

            (b)      Every candidate for election to the Court shall:

(i)     Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or

(ii)     Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court;

            (c)      Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.
 
4.         (a)      Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either:

(i)     By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or

(ii)     By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court.

            Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3.
 
            (b)      Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party.
 
            (c)      The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations. In that event, the Committee's composition and mandate shall be established by the Assembly of States Parties.
 
5.         For the purposes of the election, there shall be two lists of candidates:

List A containing the names of candidates with the qualifications specified in paragraph 3 (b) (i); and

 

List B containing the names of candidates with the qualifications specified in paragraph 3 (b) (ii).

          A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists.
 
6.         (a)      The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose under article 112. Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting.
 
            (b)      In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be held in accordance with the procedures laid down in subparagraph (a) until the remaining places have been filled.
 
7.         No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights.
 
8.         (a)      The States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:

(i)     The representation of the principal legal systems of the world;

(ii)     Equitable geographical representation; and

(iii)     A fair representation of female and male judges.

            (b)      States Parties shall also take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children.
 
9.         (a)      Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election.
 
            (b)      At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years.
 
            (c)      A judge who is selected to serve for a term of three years under subparagraph (b) shall be eligible for re-election for a full term.
 
10.         Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39 shall continue in office to complete any trial or appeal the hearing of which has already commenced before that Chamber.
  Article 37 Judicial vacancies

1.         In the event of a vacancy, an election shall be held in accordance with article 36 to fill the vacancy.
 
2.         A judge elected to fill a vacancy shall serve for the remainder of the predecessor's term and, if that period is three years or less, shall be eligible for re-election for a full term under article 36.
 
  Article 38 The Presidency

1.         The President and the First and Second Vice-Presidents shall be elected by an absolute majority of the judges. They shall each serve for a term of three years or until the end of their respective terms of office as judges, whichever expires earlier. They shall be eligible for re-election once.
 
2.         The First Vice-President shall act in place of the President in the event that the President is unavailable or disqualified. The Second Vice-President shall act in place of the President in the event that both the President and the First Vice-President are unavailable or disqualified.
 
3.         The President, together with the First and Second Vice-Presidents, shall constitute the Presidency, which shall be responsible for:
 
            (a)      The proper administration of the Court, with the exception of the Office of the Prosecutor; and
 
            (b)      The other functions conferred upon it in accordance with this Statute.
 
4.         In discharging its responsibility under paragraph 3 (a), the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern.

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