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Statement by Judge Marc Perrin de Brichambaut

At the time of writing (November 2015), the International Criminal Court (‘ICC’) and Special Tribunal for Lebanon are the only international tribunals that do not have an internal case law database (that covers all public and confidential decisions). The ICC relies on the individual experience of a few dedicated individuals and on ad hoc arrangements. The internal system TRIM lacks any of the practical elements that make a case law database. In its current form, the ICC Legal Tools Database – with all its merits – does not include confidential documents. The only resource that seems to respond to the need I am describing is the Annotated Digests of the ICC that exist in English and French until 2009 and which are ready to be developed into a database. Dr. Cyril Laucci described this in his PPT presentation.

There is currently no clear plan or strategy to remedy this situation within the ICC despite an on-going process of consultation. This is why it is particularly important that CILRAP should take the lead in following up on the only viable initiative that exists and sustains it in order to complete it and operationalize it.

The need for a working case law database is particularly strong in a young Court that is still shaping its jurisprudence and makes it even more urgent to provide access to its jurisprudence in a comprehensible manner. First, the implementation of the Rome statute by the ICC is still a work in progress with constant debates taking place within the chambers on how to interpret and apply the provisions of the Statute and other governing documents of the ICC. The open issues are numerous and there are differing interpretations of key provisions. A clear and fast communication of the existing state of the debate is thus indispensable within the Court and it is currently not provided. Second, if the ICC wants to live up to its guiding principle of complementarity, influence and inspire national courts in their handling of the crimes within the ICC’s jurisdiction, it needs to provide an accessible and intelligible compendium of its initial decisions. This would allow it to facilitate a convergence in jurisprudences around the world taking into account the different legal traditions. This is particularly important with regard to the interpretation of crimes and modes of liability for which the ICC must be in a position to influence the interpretation of the Statute made by national jurisdictions. Without a case law database, the ICC therefore lacks an indispensable internal and external tool for its work and renounces a key aspect of its potential outreach.

The database developed by Dr. Laucci has digested ICC rulings which can be searched by relevant provision of the statutory documents of the Court and allows easy tracking, permitting users to identify variations and affirmations of ICC case law. The Court’s IT-section has confirmed that it is compatible with the Court’s internal platform. What remains to be done is the painful and demanding work of entering the 2010-2015 backlog of decisions as soon as possible.

I therefore very much welcome CILRAP’s intention to integrate the so-called Laucci database in its CMN Knowledge Hub and to support its further development. In doing so it performs a useful task that the Court’s Registry seems to be unwilling to advance. This is an excellent example of how outside actors can provide an important contribution to the progress of international criminal justice.

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