The Documentation of Historical Facts in Trial Judgments of the International Criminal Court - A Constitutional Theory of International Criminal Proceedings

• Applicant: Dr. Nicolai von Maltitz
• Subject Area: Criminal Law
• Term: since 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 550581412

It is unavoidable that trial judgments of any criminal Court portray a picture of the past. Establishing individual criminal responsibility on the basis of a specific set of facts undoubtably includes the narration of a historical context. In contrast, whether criminal Courts are also authorised to document merely historical facts, i.e. such facts that are not required to establish the guilt or innocence of the accused, has been subject to controversial debate at least since Hannah Arendt's critical Intervention in the trial against Adolf Eichmann in Jerusalem. Particularly regarding the young field of international criminal law, there is an incentive to fundamentally reflect upon the relationship between criminal judgment and historiography. Any international crime is invariably committed in a historical context of a so-called "situation", which may be referred to as "historical". Therefore, trial chambers of international criminal Courts often find themselves called upon to embed their findings of fact in the description of larger historical sequences. This treatise does not detect the answer to the normative relationship between historiography and international criminal law in trial judgments of the International Criminal Court (ICC) in general considerations of legal philosophy, but in the applicable law of the ICC itself. Starting point for this is the Observation that any documentation of merely historical facts unavoidably prolongs the criminal proceedings preceding the trial judgment. This prolongation intensifies and consolidates the limitation of individual autonomy that any (selective) criminal suspicion by the ICC inevitably entails. The question of the justifiability of the prolongation of the proceedings thus requires fundamental reflections an the protection and possible limitation of individual autonomy by the ICC. For this purpose, this treatise detects "constitutional structures" in Art. 21(3) of the Rome Statute, which requires that the application and Interpretation of the Court's applicable law must be consistent with internationally recognized human rights. On the basis of these "constitutional structures", this treatise develops an own procedural theory of international criminal proceedings at the ICC, which finally also allows to conclude on the normative question of the documentation of historical facts. Ultimately, this treatise largely agrees with Hannah Arendt's incompatibility thesis, but makes one significant modification. In that regard, the "constitutional structures" of the ICC do not prohibit the documentation of merely historical facts if it serves exclusively the protection of individual autonomy of the suspected individual. This is the case when the documentation of historical facts guarantees that a person who has already been convicted or acquitted by the ICC is not selected for prosecution before the ICC for (other) alleged crimes in the saure historical context of a "situation".

• DFG Programme: Publication Grants