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International criminal law

  1. 1. International Criminal Law Jurisdiction and Admissibility Of International Criminal Court Supervised by: Compiled by: Ms. Pooja Bhardwar Rittika Dattana Session: 2012-13 LL.B (Hons.) 5th Semester Roll no.-145/11 [1]
  2. 2. Acknowledgement This project has been made for the purpose of covering a part of the syllabus of the International Criminal Court as prescribed by Panjab University. I hereby, acknowledge my mentor, Ms. Pooja Bhardwar, for her expert guidance and views in each and every aspect. Without her help, making of this project would never have been possible. Compiled by: Rittika Dattana LL.B (hons.) Roll no-145/11 [2]
  3. 3. Contents S.No. Particulars Pages 1. Introduction 4-6 2. Juridiction Forms of Jurisdiction  Temporal  Personal  Territorial  Subject-matter 7-18 3. Admissiblity  Complementarity  Ne bis in idem 4. Conclusion 5. 18-20 21-22 Bibliography 23 [3]
  4. 4. Introduction The International Criminal Court (commonly referred to as the ICC or ICCt) is the world's first permanent, international judicial body capable of bringing perpetrators to justice and providing redress to victims when states are unable or unwilling to do so.1 The International Criminal Court (ICC) was formed during one of the bloodiest decades in human history, after the Rwandan and Bosnian genocides. The establishment of a permanent International Criminal Court in 2002 represented a major breakthrough in international justice. The Court is the only one of its kind that can investigate and prosecute genocide, crimes against humanity, and war crimes when national authorities are unable or unwilling to do so. The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In addition, the ICC only tries those accused of the gravest crimes. In all of its activities, the ICC observes the highest standards of fairness and due process. The jurisdiction and functioning of the ICC are governed by the Rome Statute.2 As of May 2013, 122 states have ratified the Court's treaty, the Rome Statute -- including all of South America, nearly all of Europe and roughly half the countries in Africa. Today, the ICC is taking on its first cases. American 1 th, 27 Oct, 2013, 5.13 PM 2, th 27 Oct, 2013, 6.04 PM [4]
  5. 5. involvement is critical to both the Court's success and U.S. foreign policy objectives. Up to date, 20 cases in 8 situations have been brought before the International Criminal Court. Pursuant to the Rome Statute, the Prosecutor can initiate an investigation on the basis of a referral from any State Party or from the United Nations Security Council. In addition, the Prosecutor can initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court received from individuals or organizations (“communications”). To date, four States Parties to the Rome Statute – Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring on their territories to the Court. In addition, the Security Council has referred the situation in Darfur, Sudan, and the situation in Libya – both non-States Parties.3 Structure of the Court The Court is an independent institution. The Court is not part of the United Nations, but it maintains a cooperative relationship with the U.N. The Court is based in The Hague, the Netherlands, although it may also sit elsewhere. The Court is composed of four organs. These are: the Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.4 3, 27 Oct, 2013, 5.21 PM 4 Ibid. [5] th
  6. 6. Significance of ICC Statute In 128 articles, the ICC Statute (also known as Rome Statute) regulates the creation of the International Criminal Court (Part 1), its constitution, administration and financing (Parts 4, 11, 12), procedure before the Court and cooperation with the Court (Parts 5 to 10). The Statute also enumerates the crimes over which the Court has jurisdiction and contains general principles of criminal law (Parts 2 and 3). The ICC Statute is the core document of international criminal law today. The four crimes under international criminal law, the “classic” Nuremberg definitions plus the crime of genocide, are contained in Article 5. While the Statute’s predecessors contained only fragmentary provisions, the ICC Statute for the first time contains comprehensive rules on the “general principles” of international criminal law.5 5 Werle Gerhard, “Principles of International Criminal Law”, 2005, T.M.C. Asser Press, The Hague, The Netherlands, P 24 [6]
  7. 7. Jurisdiction Of ICC The Statute encourages States to exercise their jurisdiction over the ICC crimes. Its Preamble states that the effective prosecution of the ICC crimes must be ensured by taking measures at the national level and by enhancing international cooperation. In addition, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. Nevertheless, there is nothing explicit in the Statute imposing an obligation to prosecute the ICC crimes. This obligation can be found in other treaties, for some of the crimes listed in the Statute, but not for all of them. Under the four Geneva Conventions of 1949, States Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing grave breaches of the Conventions. Under article 5 of the Genocide Convention, States Parties undertake to enact the necessary legislation to give effect to the provisions of the Convention and to provide effective penalties for persons guilty of genocide. The history of the second half of the 20th century shows us that this obligation was only minimally respected. Nevertheless, the Statute does not deprive States of the power to prosecute the perpetrators of international crimes. Further, the ICC’s jurisdiction defers to that of States Parties. While the Statute does not relieve States of the power to prosecute perpetrators of crimes within its jurisdiction, it institutes a Court that will do so in the event that States Parties neglect to prosecute these criminals or do not possess the means to do so. Under the principle of complementarity, the ICC only exercises its jurisdiction when States Parties fail to investigate or undertake judicial procedures in good faith, after a crime covered under the Statute has been committed. The ICC cannot hear a case when a State has decided to act. 6 6 th William A. Schabas, An Introduction to the International Criminal Court, (2010) 4 ed., Cambridge: Cambridge University Press P 64 [7]
  8. 8. The jurisdiction of the ICC is non-retroactive. The ICC Statute entered into force on 1st July 2002. Therefore, as per Article 11, the earliest date from which the ICC can have jurisdiction over crimes under the Statute is 1st July 2002. Where the ICC Statute comes into force for a particular State Party after 1st July 2002, then the ICC has jurisdiction for crimes committed after the entry into force of the Statute for that State. Therefore for a State which accedes or ratifies after 1st May 2002, the entry into force of the Statute shall be the first day of the month after the 60th day following the deposit by the State of its instrument of ratification, acceptance, approval or accession (“The 60 day rule”) (Article 12(2)). Article 12 (2) – the one the judges refer to - reads as follows: In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. States which are not State Parties can make a declaration under Article 12(3) of the Statute, accepting the Jurisdiction of the ICC for particular crimes. The Jurisdiction of the ICC would then be from the date of declaration ( Article 11(2)).7 According to Article 5, “the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.” 7 icc-and-national-courts, 27 Oct, 2013, 6.56 AM [8]
  9. 9. What is the difference between these four types of international crimes? It appears that these different crimes overlap. Indeed, Robertson says that they do (for instance, an aggressive war might contain all of the other crimes as well). But, according to the Rome Statute, each crime does have its own character. [9]
  10. 10. Forms of Jurisdiction Chapter Two of the International Criminal Court Statute ("ICC Statute") 1 dealing with "Jurisdiction, Admissibility and Applicable Law" became the focus of the most profound controversies that attended the meetings in New York and Rome for the establishment of an International Criminal Court (ICC). This applied-admittedly in different degrees-to all four components of the concept of jurisdiction, these are: Temporal (ratione temporis) jurisdiction Personal (ratione personae) jurisdiction Territorial (ratione loci) jurisdiction Subject-matter (ratione materiae) jurisdiction8 Temporal Jurisdiction Temporal jurisdiction is the time when a given crime was committed. According to article 11 of the Rome Statute, the ICC has jurisdiction only on crimes committed after the entry into force of Rome Statute. This provision is based on the universally accepted principle of criminal law: nullum crimen and nulla poena sine lege, which forbids prosecution of the crimes not considered as such when they were committed. The temporal jurisdiction of the ICC is not like that of ICTY or ICTR, the latter two are both explicitly provided by the UN. For instance, the ICTY has jurisdiction over the crimes committed after January 1,1991, which symbolises the beginning of war in the territory of former Yugoslavia.[9] Thus, the ICC is not only the first permanent international court but also the first one to prosecute the crimes that will be committed after its institution. 8, th e=cite&docid=14+Emor, 27 October, 2013, 6.46 AM [10]
  11. 11. However, the provision of article 11 is hard to be considered as an iron principle. If a given country requests the court to exercise ad hoc jurisdiction or when the Security Council gives jurisdiction to the court, the ICC will also be able to prosecute the crimes committed after the entry into force of the Rome Statute, yet when a given country was not yet a state party to the Rome Statute. Personal Jurisdiction Personal jurisdiction refers to the persons that the ICC will have jurisdiction over. The ICC presently has jurisdiction only over person who is more than 18 at the time of the alleged commission of a crime. Due to the purpose and spirit of the Rome Statute, the ICC rejects the concept of immunity by stating that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law shall not bar the Court from exercising its jurisdiction over such a person”. It is worth mentioning that persons falling into the jurisdiction of the ICC are not limited to nationals of states parties, the court can also prosecute individuals who are nationals of non-party states if the non-party state accepts the court’s jurisdiction or when the appropriate decision is made by the Security Council. Territorial Jurisdiction Territorial jurisdiction refers to the territory over which the ICC may exercise its functions and powers. According to the stipulation of Rome Statute, the ICC may exercise its functions and powers on : (1) the territory of any State Party. Because when a state becomes a state to Rome Statute, it thereby accepts the jurisdiction of the ICC, and (2) on the territory of any other State that has accepted the jurisdiction of the ICC by special agreement.[4] Compared to that of a national court, the territorial jurisdiction of the ICC displays the character of uncertainty, which derives from the contract nature of Rome statute and the independence of sovereign states. The ICC was created on [11]
  12. 12. the basis of Rome Statute, consequently, it can only exercise its powers on the territory of states parties and the non-party states that have accepted its jurisdiction. Sovereign states are entitled to accede to or withdraw form Rome Statute and determine independently whether to accept the jurisdiction of the ICC for the purpose of maximizing their national interests. [5]The accession to or withdrawal from Rome Statute of sovereign states will doubtlessly lead to extension or reduction of the territorial jurisdiction of the ICC, then result in the uncertainty character of the jurisdiction of the ICC. The ICC being first international criminal court, its territorial jurisdiction is also quite different from that of ICTY or ICTR. The territorial jurisdictions of the two ad hoc tribunals are both definitely stipulated in their respective statute: ICTY has jurisdiction only on the territory of former Yugoslavia, including its territorial land, territory waters and territorial air. [6]ICTR can exercise jurisdiction not only on the territory of Rwanda, but also the territory in which the citizens of Rwanda committed international crimes that severely violated international humanitarian law. Subject-matter Jurisdiction Subject matter jurisdiction refers to the types of international crimes that will be prosecuted by the ICC. Currently, the ICC will have jurisdiction over four categories of international crimes, which are considered as “the most serious crimes of concern to the international community as a whole”.*11+ They are genocide, crimes against humanity, war crimes and crime of aggression, which will be specifically explored in the following paragraphs. Genocide The core of the crime of genocide is the “intent to destroy in whole or part a national, ethnical, racial or religious group as such.” When the intent is to destroy all members of a group simply because they are members of the group, then the crime is genocide. [12]
  13. 13. Part of the definition of genocide includes acts intended to prevent births within a group. Robertson says that this addition to the definition was added at the insistence of the Vatican, and the author takes a dim view of its inclusion as part of the meaning of genocide. According to Robertson, imposing birth control as a means to extinguish an entire group is a genocidal act, though imposing birth control by law to control population or for health reasons is outside the scope of what the crime of genocide is about. What Is Not Included in the Definition of Genocide Perhaps as important as the definition of genocide, is the definition of what does not count as genocide. It is not considered genocide when a sovereign state goes to war in order to annihilate an enemy nation. The threat or use of force against a state is not itself an act of genocide. Robertson believes that behavior by the state of this sort should be made part of the definition of the crime of aggression, but it is not currently part of the Rome Statute. Crimes against Humanity The Rome Statute contains the authoritative definition of crimes against humanity. The jurisdiction of the International Criminal Court does not cover just any cruel, violent or heinous act. Individuals are capable of committing these types of crimes, but they are not international crimes. To be considered an international crime, there are three conditions: The acts must be part of a widespread or systematic attack. Crimes committed on the spur of the moment are not covered. They must be directed against a civilian population. Treatment of soldiers is covered under the definition of war crimes. They must be carried out as a way to further the policy of a state or organization. [13]
  14. 14. Individuals are prosecuted, but only insofar as they are instruments of a state or organization. An important point is that it is not only states that can commit crimes against humanity under the Rome Statute. Certain types of non-state actors are covered as well. But, what kind of organization is covered under the statute? How Organized Is Organized? A group that has the ability to carry out atrocities by control over territory, people or both fall within the jurisdiction of the International Criminal Court. The group does not have to be invested with formal state power. Examples include paramilitaries and structured opposition forces. The Lord's Resistance Army (an itinerant guerrilla group operating in northern Uganda and parts of Sudan) provided the first individuals indicted. Some Examples of Crimes against Humanity Article 7 of the Rome Statute provides a list of the most heinous offenses, which includes: Enforced disappearance, defined as the detention or abduction of people (with the acquiescence of the state) along with a refusal to acknowledge their whereabouts or fate, Apartheid, Rape, sexual slavery, forced pregnancy and enforced prostitution and sterilization, Deportation or forcibly transferring a population, Persecution, defined as the intentional and severe deprivation of fundamental rights. An important advance beyond the previous doctrine of the sovereignty of states is the ability to indict a sitting head of state. It is also important that crimes against humanity are not limited to just political or military leaders. Members of professions—like lawyers or physicians—are not immune. [14]
  15. 15. What Is Not Included in the Definition of Crimes against Humanity? The Rome Statute specifically excluded certain types of crimes from the definition of crimes against humanity, including: Terrorism and drug trafficking. The reason that both of these crimes were not included is that they were not considered “as serious” as the crimes of genocide and crimes against humanity, and they were covered under other treaties. Persecution on the basis of gender. Robertson says that this is “the most ridiculous clause in any international treaty ever devised.” Insisted upon by the Vatican and Islamic states, the clause defines gender in terms of two sexes, male and female and should not be construed in any other manner. So, says Robertson, transsexuals, gays and lesbians are not covered by the statute. War Crimes There are two types of crimes defined in the Rome Statute as war crimes: crimes at times of international conflict and at times of internal armed conflict. So, a crime can be considered a war crime even if it does not involve multiple countries. In large measure, the substance of the crimes are stated in the Geneva Conventions. However, the statute includes other crimes as well, including enlisting children soldiers, engaging in systematic sexual violence and targeting UN peacekeepers or humanitarian workers. Some crimes not covered under the war crimes definition include: The use of anti-personnel land mines (covered under another treaty), The use of nuclear weapons, Internal disturbances and tensions such as riot and unrest. Robertson says that using nuclear weapons falls easily within the statute definition banning methods of warfare “which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently [15]
  16. 16. indiscriminate.” However, using nuclear weapons was consciously omitted from the statute. Robertson says, however, that nuclear weapons may be included in the next version of the statute when it is reviewed in 2009. Crime of Aggression Robertson says that the statute failed in not defining aggressive wars as crimes. Members of the Rome Conference could not agree on a definition. The statute does include a provision giving the International Criminal Court jurisdiction over the crime of aggression, but this crime will come into effect only once a definition is approved at a later review conference. In the meantime, declaring and waging an aggressive war in which millions of soldiers and civilians would be killed is not expressly defined as an international crime. Rome missed the opportunity to outlaw war as an instrument of national policy. Robertson says that this glaring omission is only made worse by the fact that the statute only pretends to include it.9 9 th, 27 October, 2013, 6.11 AM [16]
  17. 17. Liability to prosecution of those bearing office The accused can be both sentenced and punished by the International Criminal Court. The Statute applies equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under the Statute of the ICC, nor shall it, in and of itself, constitute a ground for reduction of sentence (Article 27, Paragraph 1 of the Statute). Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall also not bar the Court from exercising its jurisdiction over such a person (Article 27, Paragraph 2 of the Statute). Exclusion of criminal responsibility None of the accused may invoke any of the grounds specified under Article 31 of the Statute for excluding criminal responsibility. The accused were acting in full knowledge about the illegitimacy of their actions. Thus, any claims to the contrary are null and void. Equally null and void are all efforts by the accused to retroactively justify their crimes by forming ‘coalitions’ of opinions with other nations. [17]
  18. 18. Power to inflict punishment over members of the US Government and citizens of the USA Even those of the accused, who hold citizenship of the United States of America, cannot claim immunity from criminal prosecution before the International Criminal Court, just because the United States of America in contrast to 90 other countries around the world (i.e. almost half of the members of the United Nations) is not amongst the signatory states to the Rome Statute. The accused have long been devising plans to try and evade the power to inflict punishment of the International Criminal Court. This, however, does not exempt the accused from the jurisdiction of the International Criminal Court, because the mere performance of the crimes involved in the acts to be judged before the ICC constitutes liability to punishment under the terms of the Statute. It does not matter if you belong to a specific Member State, because the International Criminal Court has jurisdiction over natural persons and not over States and establishes individual responsibility and liability for punishment (Article 25 Paragraphs 1 and 2 of the Statute). The ICC Statutes render attempts by the US Administration to coerce smaller nations into bilateral ‘immunity pacts’ redundant. In addition, the UN Security Council did rule that the US Government and therefore also the majority of the accused could not and should not decide themselves whether the International Criminal Court could take action against them or not. This decision was taken for good reason: One can only imagine what would have happened if the main figures accused in the Nuremberg Trials had been allowed to choose whether they had to stand trial before the Nuremberg Tribunal. [18]
  19. 19. For these reasons the accused, even if they are citizens of the United States of America, are still subject to the power to inflict punishment of the International Criminal Court.10 Admissibilty The complementary nature of the jurisdiction of the ICC The principle of complementarity is definitely provided in the preamble and article 1 of the Rome Statute. The complementary nature of the jurisdiction of the ICC can also easily be found in relevant provisions of the Rome Statute. For one thing, the precondition for the ICC to exercise its jurisdiction. According to the Rome Statute, the ICC may exercise jurisdiction only if states that have accepted its jurisdiction are unwilling or unable genuinely to carry out the investigation or prosecution of a given case. Then, the limits on admissibility of given cases. For instance, the court shall determine that a case is inadmissible where the case is being investigated or prosecuted by a State which has jurisdiction over it, or where the case has been investigated by a State which has jurisdiction over it and the state has decided not to prosecute the person concerned. Ne bis in idem The jurisdiction of the ICC to try an individual who has been the object of sham proceedings in a national court is technically an exception to the principle of criminal lawin which a person may not be prosecuted twice for the same crime (ne bis in idem). Article 20 allows the ICC to prosecute a person for a crime referred to in the Statute, even after being tried for the same act in a national court if: a) the proceedings were aimed at shielding the person from criminal responsibility; or b) the procedure was not independent or impartial in accordance with the norms of due process recognized by international law, and was conducted in a 10 th, 27 Oct, 2013, 6.23 AM [19]
  20. 20. manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. Criminal justice has been rendered then, only when it has been rendered in accordance with due process and other international standards. The first example concerns a situation such as a State charging a perpetrator of genocide with assault. Such a trial, although respecting all the safeguards concerning impartiality, would be aimed at shielding the person from responsibility for an extremely serious crime. The second example covers a larger spectrum of situations. It does not mean, however, that the ICC will have the power to intervene in every case where it judges that a procedural safeguard was violated in a trial conducted by a national authority. In order for the ICC to begin a new trial, the violation of procedural safeguards must have been committed with the aim of preventing the person concerned from being brought to justice. The principle of ne bis in idem can be found in most national criminal codes, in some constitutions and in article 14 of the International Covenant on Civil and Political Rights. It would be preferable if the national law implementing the ICC Statute made mention of the exception to this principle provided by the Statute. Except as provided in this Statute, no person shall be tried before the ICC with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the ICC, and no person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the ICC with respect to the same conduct. Emphasis should be laid on the word used here, “conduct”, which implies that conducts forming the basis of crimes will not be tried for a second time even where they have been tried by national court as normal crimes provided in internal criminal code.11 11 th, 27 Oct, 2013, 7.16 AM [20]
  21. 21. Conclusion The ICC has begun functioning. However, it is far from ideal. Its coverage is incomplete and its power constrained. “Time will tell how effective its current legal design will be in practice.” This doubt is evident in the Statement made at the ceremony for the solemn undertaking of the Chief Prosecutor of the ICC by Mr. Luis Moreno-Ocampo. In his statement, Mr. Luis Moreno-Ocampo, the chief prosecutor, pointed out that “there are so many divergent interests in the world today that there is not even consensus about the basic goal of punishing the authors of genocide. An international criminal court totally independent and impartial brings hope, but at the same time raises reasonable fears and misunderstandings”12. Consequently, concern has been expressed that the future of the ICC in not certain. Frankly speaking, we consider this kind of concern quite reasonable. First, that sovereign states are the elementary subjects in international community decides that the ICC is not able to function like in vacuum, close and efficient cooperation of members of international community are necessary and indispensable for the ICC to function effectively. The fact that considerable numbers of states have not signed the Rome Statute, including China and U.S., both are standing powers of Security Council, has negatively affected the functioning of the ICC. The valid argument is the so-called 98-article agreement proposed by U.S., which actually blocks all the way for the ICC to request the signatory state to the agreement to transfer or extradite American suspects.13 Secondly, “loopholes in the construction of the ICC present a very real obstacle to its effectiveness”.14 For instance, provided each of the five powers consents, the Security Council may delay investigations concerning a given case for 12 months. In addition, Security Council may renew this postponement each year for an 12 Statement made at the ceremony for the solemn undertaking of the Chief Prosecutor of the ICC, by Luis MorenoOcampo, at 13 As for the analysis of the so-called 98-article agreement, please refer to: Zhou Zhenjie, Qu Xuwu, Analysis on the Effect of International Law of the So-called 98-Article Agreement, China Criminal Science, No.6 (2003), p110. 14 Brian D. Keatts, the International Criminal Court: Far from Perfect, New York Law School Journal of International and Comparative Law Vol.20, No. 1(2000), p139. [21]
  22. 22. indefinite period of time. In other words, the Security Council can effectively block any investigation it does not want conducted for an ultimate amount of time. Whatever loopholes or flaws are there, the ICC is an essential and great step towards international justice in a world where national justice has failed. We have confidence in that the ICC will benefit present and future generations, and its authority is sure to be accepted by more and more states, because “no significant national interest weighs against joining the ICC, and the call of humanity counsels in favour”.15 15 Douglass Cassel, the Rome Statute for an International Criminal Court: a Flawed but Essential First Step, VI Brown Journal of World Affairs 41(Winter/Spring 1999). [22]
  23. 23. Bibliography Books Werle Gerhard, “Principles of International Criminal Law”, 2005, T.M.C. Asser Press, The Hague, The Netherlands William A. Schabas, An Introduction to the International Criminal Court, (2010) 4th ed., Cambridge: Cambridge University Press Weblinks, spx 3B15&doctyp,e=cite&docid=14+Emor, [23]