Mgm230 1103 a_02_p5ip

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  • Hello and welcome Mr. Green! This presentation is intended to give you a thorough overview of the International Criminal Court for your speaking engagement at the International Bar Association’s law conference in Madrid (International Bar Association, n.d.). If you have any questions please do not hesitate to ask.
  • Unlike the International Court of Justice which is mandated by a charter provision within the United Nations treaty the International Criminal Court is considered independent of the United Nations (ICC, n.d.; International Court of Justice, n.d.). Whereas the International Court of Justice can only hear cases between state parties and not individuals, the International Criminal Court can hear both (ICC, n.d.; International Court of Justice, n.d.). The International Criminal Court does enjoy a “cooperative relationship” with the United Nations primarily because of specific Articles of the Rome Statute that governs the International Criminal Court; these articles are: Article 2, Article 16 and Article 54(3) (e) (American University Washington College of Law, 2009). The International Criminal Court is the “first, permanent treaty based international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community” (ICC, n.d.).   The International Criminal Court is designed to be a “Court of Last Resort” meaning that sovereign nations are encouraged to handle their own internal investigations and trials involving gross human rights violations such as genocide and war crimes (ICC, n.d.) However the international community recognizes that some nations cannot or will not investigate or prosecute their own leaders in an open and authentically indisputable way (ICC, n.d.). In such cases a member nation may appeal to the International Criminal Court to handle the proceedings, the Prosecutor of the International Criminal Court can begin investigations upon receiving information regarding crimes from organizations or individuals in that region, or a referral can be made by the United Nations Security Council that the International Criminal Court begin investigations (ICC, n.d.). The International Criminal Court has thus far received three party state requests to handle investigations and trials regarding activities that took place in their territories and one request for investigations by the United Nations Security Council on behalf of a non-ICC member state (ICC, n.d.). WC=318
  • The origins of the International Criminal Court date to the end of World War II, the Tribunals held to prosecute Nazi and Japanese war criminals, and the beginning of the United Nations in 1947 with the adoption of a convention on the subject of genocide (ICC, n.d.). During this period it was generally acknowledged that a permanent international court would be needed to investigate, prosecute and punish parties responsible for acts of genocide, “crimes against humanity” and atrocities committed during times of war (ICC, n.d.). Due to differences of opinion within the International Law Commission, dialogues stalled by 1954 (ICC, n.d.). In 1989 the United Nations General Assembly requested the International Law Commission recommence work on drafting a framework for an International Criminal Court after receiving requests from Trinidad and Tobago with special reference to international drug trafficking (ICC, n.d.). During the planning and review stages tribunals were needed to investigate war crime and genocide in the former nation of Yugoslavia and in Rwanda (ICC, n.d.). Between the date of the adoption by 120 countries of the Rome Statute and the date the Statute went into effect, another special court tribunal was required to investigate atrocities committed in Sierra Leone (ICC, n.d.). The Rome Statute was ratified by the required 60 countries in order to go into effect four months later (n.d.)WC=222 
  • The Rome Statute was adopted on July 17, 1998 at the United Nations Conference of Plenipotentiaries in Rome Italy (ICC, n.d.). 120 nations adopted the Rome Statute, 7 nations voted against it and 21 abstained from voting (ICC, n.d.). The United States of America is among the nations that voted against the Rome Statute (Human Rights Watch, 2010). On April 11, 2002 10 countries added their ratifications concurrently with the United Nations Secretary General completing the required number of ratifications for the enforcement of the Rome Statute (ICC, n.d.). The Rome Statute went into effect on July 1, 2002 (ICC, n.d.).   The organization of the International Criminal Court including swearing of officers and judges subsequently began (ICC, n.d.). The first case taken up by the International Criminal Court was “The Prosecutor v. Thomas Lubanga Dyilo” (Democratic Republic of the Congo) (ICC, n.d.). The International Criminal Court refers to investigations as “Situations” and currently has “Situations” open in the following nations: Uganda, Democratic Republic of the Congo, Darfur, Sudan, Central African Republic, and Republic of Kenya (ICC, n.d.). Darfur, Sudan was the first referred to the ICC by the United Nations Security Council (ICC, n.d.). Most recently the United Nations Security Council by unanimous decision referred the Libyan Arab Jamahiriya to the International Criminal Court (ICC, n.d.). The Court authorized investigation by the Prosecutor of Libyan suspects on March 3, 2011 and on June 27, 2011 arrest warrants were issued for three suspects in the ICC Case “The Prosecutor v. Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi” (ICC, n.d.). WC= 263.
  • The International Criminal Court has jurisdiction over individuals who are found to be guilty of “crimes against humanity”, war crimes and genocide (ICC, n.d.). The specifics of definition are detailed within the “elements of crimes” within The Rome Statute (ICC, n.d.; United Nations, 2003 & 2011). Jurisdiction of the International Criminal Court is limited to rules specified by The Rome Statute such as state parties are not held liable for any actions in their territories previous to July 1, 2002 the date of ratification of The Rome Statute (United Nations, 2003 & 2011). State parties joining through the ratification of The Rome Statute are not subject to jurisdiction of the International Criminal Court for actions taking place prior to the Statute taking effect in their territories (United Nations, 2003 & 2011). The Rome Statute provides for jurisdiction of all individuals taking part in specific acts, individuals indirectly responsible by giving orders or failing to suppress actions committed by subordinates under their supervision and control including heads of state and generals (United Nations, 2003 & 2011).   The Rome Statute effectively outlaws the following criminal acts under one or more of the headings of Genocide, War Crime or Crimes against Humanity: Murder, Rape, Serious Bodily Injury, Illegal Transfer of Persons, Disappearance of Persons, Slavery, Sexual Violence, Sexual Slavery, Violence and Denial of Property to Civilians, Acts of Violence against Civilians, Torture, Enforced Pregnancy and Enforced Sterilization, Starvation, Use of Children as Soldiers, Violations of the Geneva Conventions with regard to Property, Compulsion of Service in Hostile Military Units, use of Protected Persons as Human Shields, Denial of Due Process or Fair Trial, Executions without Due Process or Fair Trial (United Nations, 2003 & 2011).   The Rome Statute does contain provisions for actions and manifestations of actions with regard to acts of “Aggression” between states in terms of acting without sanction by the United Nations however this provision has yet to be actively enforced (UCC, n.d.; United Nations, 2003 & 2011). WC=328
  • The ICC has “complimentarity” jurisdiction or concurrent jurisdiction with the court systems of countries that have signed The Rome Statute (ICC, n.d.). This means that the ICC will only take action under certain proscribed conditions (ICC, n.d.). If an action takes place in a given nation the government of that nation has the first claim to take legal actions within their own court system (ICC, n.d.). If an action takes place in a given nation but is perpetrated by individuals from outside of that nation, the nation in which the action takes place has first claim to take legal actions within their own court system (ICC, n.d.). If the government of the nation where the action takes place requests the situation be investigated and prosecuted by the ICC they can make this request (ICC, n.d.).  If the government of the nation where the action takes place has made no effort, or the effort is made in a way that is false in order to protect perpetrators of the action the ICC Prosecutor can request to launch an investigation on behalf of petitioners (individuals or organizations from within that nation) to investigate the situation (ICC, n.d.). If the United Nations Security Council requests that the ICC launch an investigation and prosecution into a situation they may do so without regard as to whether the nation in question is a signatory party of The Rome Statute (ICC, n.d.; United Nations, 2011). Otherwise in all other instances the national parties must be signatory parties of The Rome Statute (ICC, n.d.). WC=257
  • The sources of laws likely to be used by the International Criminal Court are: treaties, customs, general principles of law and judicial decisions (Colorado Technical University Online, 2010). Treaties consist of a covenant between “two or more nations” that are signed and ratified by the “highest powers” of leadership of the nations involved (CTUO, 2010). If a treaty involves several nations acting in accord through an international organization the treaty is referred to as a “convention” (CTUO, 2010). Customs are informal agreements based on a traditional means of understanding between national parties that are considered to be obligatory (CTUO, 2010). General principles of law and judicial decisions come from the judicial systems of individual nations and in this case the ICC could make use of the national systems of law for involved parties of a nation in order to make the laws clear (CTUO, 2010).   As an example The Rome Statute is a convention because it is a treaty that was organized through the United Nations, itself the result of a Treaty Convention and signed by 120 nations, ratified by 60 nations in order to become enforceable (ICC, n.d.; United Nations, 2003 & 2011). An example of a custom could be nations giving preference to one another in dealings because of common religious or political beliefs or cultural identity (CTUO, 2010; ICC, n.d.; United Nations, 2011). As an example of general principles of law and judicial decisions In the investigation and prosecutions of criminal parties in Sierra Leone the ICC could rely on The Rome Statute, United Nations documents relating to treaties signed with the United Nations specific to Human Rights and the national legal system of Sierra Leone itself to aid in clarification or fill in gaps (CTUO, 2010; ICC, n.d.; United Nations, 2011). WC=295
  • The sources of law most likely to be used by the International Criminal Court in particular are: The Rome Statute which governs the ICC in terms of functionality, jurisprudence, definition of criminal elements, and jurisdiction (American University Washington College of Law, 2009; Duke University School of Law, 2011; ICC, n.d.; United Nations, 2011). The International Criminal Courts growing body of “Basic Legal Texts” that makes up the “ICC Official Journal” and the ICC’s “Legal Tools Project” (American University Washington College of Law, 2009; Duke University School of Law, 2011; ICC, n.d.; United Nations, 2011). The United Nations library of documents, treaties, conventions and legal texts (American University Washington College of Law, 2009; Duke University School of Law, 2011; ICC, n.d.; United Nations, 2011). The War Crimes Research Office’s ICC Legal Analysis and Education Project also contribute analysis of early decisions made by the ICC (American University Washington College of Law, 2009). It should be noted that in general international courts favor treaties and customs first with principles of law and judicial decisions to be used when interpretations of treaties or customs are needed or when there are no customs or treaties (CTUO, 2010). WC=193 
  • Duke University School of Law refers readers to two organizations to learn more about the position of the United States Government regarding the International Criminal Court: Amnesty International and Human Rights Watch (Duke University School of Law, 2011). The United States holds a permanent seat in the United Nations Security Council; this council can refer situations in other countries for investigation by the International Criminal Court (United Nations, 2011). As such; there are several calls by Amnesty International to request that the United States support ICC investigation into situations in a few countries such as support for accountability in Darfur, Sudan, and investigation into human rights abuses in Sri Lanka, Egypt and Syria (Amnesty International USA, 2011). However, the United States is one of seven countries that voted against the Rome Statute in 1998 (Human Rights Watch, 2010). According to both Amnesty International and Human Rights Watch the United States Government policy toward the ICC has been to “undermine” the ICC, “bully” countries into accepting bilateral agreements to not give up U.S. Nationals to the ICC and “punish” countries for refusing the bilateral agreements (Amnesty International, 2011; Human Rights Watch, 2010).   Human Rights Watch accuses the United States Congress of seeking legislation against cooperation with the ICC referred to as the “American Servicemembers Protection Act” (ASPA) (Human Rights Watch, 2010). In short the United States Government refuses to take part in U.N. Peacekeeping if U.S. Military Personnel are not exempt from ICC jurisdiction and immune from ICC prosecution (Human Rights Watch, 2010). The ASPA Act also threatens “any means necessary” to remove U.S. personnel (and certain allies) from ICC custody (Human Rights Watch, 2010). The United States is the only democracy in the world that actively opposes the International Criminal Court (Human Rights Watch, 2010). The United Government’s stated reasons for opposition to the International Criminal Court do not appear to have any merit under the conditions of The Rome Statute itself; Human Rights Watch refers to the U.S. Government’s opposition as being “based in myth” (Human Rights Watch, 2010; United Nations, 2003 & 2011). WC=345
  • Thank you Professor Wade for teaching such a fascinating (even if a little mind-boggling at times) class. It was certainly a challenge but I learned a lot and enjoyed every minute of it. Thanks again. 
  • Mgm230 1103 a_02_p5ip

    1. 1. MGM230_1103A_02_Phase 5_IP_Formanek.C
    2. 2.  Is independent of the United Nations (International Criminal Court, n.d.)  Is the “first, permanent treaty based international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community” (ICC, n.d.)  Is a “Court of Last Resort” (ICC, n.d.)
    3. 3.  International dialogue and consensus on definitions of genocide, crimes against humanity and war crimes during the latter half of the 20th century (ICC, n.d.)  Influenced in part by the Nuremberg and Tokyo Trials following World War II (ICC, n.d.)  Further influenced by the International Criminal Tribunals for former Yugoslavia and for Rwanda in the 1990s (ICC, n.d.)
    4. 4.  Governed by the Rome Statute adopted July 17 1998 by 120 nations (ICC, n.d.)  Rome Statute went into effect July 1 2002 with ratification by 60 nations (ICC, n.d.)  United States of America does not support ICC (Human Rights Watch, 2010; ICC, n.d.)  January 26, 2009 first trial case begins “The Prosecutor v. Thomas Lubanga Dyilo” (ICC, n.d.)
    5. 5.  Genocide (ICC, n.d.; United Nations, 2003 & 2011)  Crimes Against Humanity (ICC, n.d.; United Nations, 2003 & 2011)  War Crimes (ICC, n.d.; United Nations, 2003 & 2011)  Aggression (ICC, n.d.; United Nations, 2003 & 2011)
    6. 6.  ICC has “conplementarity” jurisdiction over countries that have signed the Rome Statute (ICC, n.d.)  National Governments have first jurisdiction for investigation and trial until it is deemed they “cannot or will not” in “genuine” fashion (ICC, n.d.)  ICC proceedings can be brought by a member State the ICC Prosecutor or the United Nations Security Council (ICC, n.d.)
    7. 7.  Treaties (Colorado Technical University Online, 2010)  Customs (CTUO, 2010)  General Principles of Law (CTUO, 2010)  Judicial Decisions (CTUO, 2010)
    8. 8.  The Rome Statute (ICC, n.d.)  The ICC Official Journal of Basic Legal Texts and “Legal Tools Project” (ICC, n.d.)  The United Nations library of documents and legal texts  WCRO –ICC Legal Analysis and Education Project (American University Washington College of Law, 2009)
    9. 9.  One of seven nations to vote against the Rome Statute in 1998 (Human Rights Watch, 2010)  Bush Administration “unsigned” treaty May 2002 (Human Rights Watch, 2010)  U.S. seeks “bilateral agreements” with other countries to protect U.S. nationals from ICC detainment or custody (Human Rights Watch, 2010)  Congress passes “American Servicemembers Protection Act (ASPA) (Human Rights Watch, 2010)  United States a permanent member of the U.N. Security Council (United Nations, 2003)
    10. 10. American University Washington College of Law (2009) War Crimes Research Office: International Criminal Court and the United Nations. Retrieved from http://www.wcl.american.edu/warcrimes/icc/icc_reports.cfm Amnesty International USA (2011). International Criminal Court: Prosecuting Crimes in the Name of International Justice. Retrieved from http://www.amnestyusa.org/our- work/issues/international-justice/international-criminal-court Colorado Technical University (2010). U.S. Foreign Policy. [M.U.S.E.] Retrieved from Colorado Technical University Campus MGM230-1103A-02 http://campus.ctuonline.edu
    11. 11. Duke University School of Law (2011). International Criminal Law. Retrieved from http://www.law.duke.edu/lib/researchguides/intclaw Human Rights Watch (2010) The United States and the International Criminal Court Retrieved from http://www.hrw.org/legacy/campaigns/icc/us.htm International Bar Association (n.d.). IBA Human Rights Institute: IBA Members and the ICC. Retrieved from http://www.ibanet.org/Human_Rights_Institute/ICC_Outreach_Monitoring/ICC_IBA_mem bership.aspx International Court of Justice (n.d.). Practical Information: Frequently Asked Questions. Retrieved from http://www.icj-cij.org/information/index.php?p1=7&p2=2
    12. 12. International Criminal Court (n.d.). About the Court. Retrieved from http://www.icc-cpi.int/Menus/ICC/About+the+Court/ United Nations (2003) Rome Statute of the International Criminal Court. Retrieved from http://untreaty.un.org/cod/icc/index.html United Nations (2011). United Nations: International Law. Retrieved from http://www.un.org/en/law/
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