International Criminal Law Flashcards
What were the UN ad hoc criminal tribunals in the context of the former Yugoslavia?
the Security Council created two special international courts—one for war crimes in the former Yugoslavia, The International Criminal Tribunal for the Former Yugoslavia (ICTY) and one for the genocide in Rwanda, The International Criminal Tribunal for Rwanda (ICTR)— pg 484
Why did Tadic challenge the power of the tribunal to try him? case on pg 484
Tadic argued that the security counsel had acted “ultra vires”…beyond its legal authority. pg 484
What did the ICTY Appeals Chamber rule? case on pg 484
in the particular circumstances of the former Yugoslavia,” the establishment of the International Tribunal “would contribute to the restoration and maintenance of peace” and indicates that, in establishing it, the Security Council was acting under Chapter VII
in other words, under article 41, the security counsel had the authority to establish the ICTY. pg 485
What were the three most contentious issues during the Rome Statute negotiations?
- Governments and NGOs disagreed about the extent to which certain states might need to consent to the jurisdiction of the Court before it could hear a case.
- states and NGOs sparred over who could initiate an investigation and prosecution—states party to the Statute, the Security Council, the Court’s prosecutor, or some combination of these.
- states and NGOs argued about the extent to which the Court could act in the face of ongoing domestic proceedings over the same facts—that is, whether it would work on the basis of primacy over national courts (as do the Yugoslavia and Rwanda Tribunals) or “complementarity” that deferred to national courts. pg 487
What are the various bases of the ICC’s jurisdiction? part 1/3
The Court has jurisdiction over crimes as long as the accused is a national of a state party (or of a state otherwise consenting the Court’s jurisdiction) or the conduct at issue took place on the territory of a state party (or of a state otherwise consenting to the Court’s jurisdiction). pg 489
What are the various bases of the ICC’s jurisdiction? part 2/3
If neither the state where the crimes took place nor the state of nationality of the accused is a party (or has otherwise consented to the Court’s jurisdiction), the Court has jurisdiction only if the Security Council refers the case to the Court under Chapter VII of the UN Charter. pg 489
What are the various bases of the ICC’s jurisdiction? part 3/3
The Security Council can halt any investigation or prosecution for twelve-month intervals by requesting a deferral in a resolution adopted under Chapter VII of the UN Charter.
What are the various bases of the ICC’s jurisdiction? summarized
Under Articles 12 and 13 of the ICC Statute, the Court has jurisdiction over situations only if: (a) the state where the crimes took place is a party to the Statute, (b) the state of nationality of the accused is a party to the Statute, or (c) the Security Council refers a case to the Court.
Under Articles 13 and 16, the Court may take a case even without the Security Council’s approval, although the Council can request a deferral of prosecution. pg 489
Who can refer situations to the ICC?
from either the states in which the crimes were committed or the Security Council
What powers does the prosecutor have to initiate cases?
Articles 13(c) and 15 permit the Prosecutor to begin an investigation on his or her own.The case against Kenyan officials represented the first use of that power. pg 489
What is the complementarity principle?
It enables States to retain jurisdiction over cases and promotes the exercise of criminal jurisdiction domestically. pg 491
What happened in Kenya and how did the ICC have jurisdiction?
there was a presidential election and the losing party did not accept that it lost. violence erupted in the country; over 1000 people were killed; and hundreds of thousands were forced to leave their home. the new president created a prime minister role and appointed the the losing party to that post, thereby ending the violence in Kenya. the ICC wanted to prosecute those responsible for the deaths, but the Kenyan government did not want to prosecute anyone for those crimes.
Kenya argued that it should be given more time to hear the issue before the ICC indicted anyone and invoked the complementarity principle. however, the ICC proceeded anyway because Kenya did not take any investigative steps; mere preparedness to investigate is not enough. and unless Kenya takes investigative steps in relation to the suspects in the case, it cannot say that the ICC is adjudicating the same case at the same time. there was no conflict of jurisdiction here.
What happened in Libya, and how did the ICC obtain jurisdiction?
Libia wanted to be the one to try its leader for war crimes and crimes against humanity and did not want the ICC to do it. Libya challenged the admissibility of the case in ICC. the ICC obtained jurisdiction by…(the case actually does not say IMP). pg 492
What were the accusations of bias and selectivity against the ICC?’
whether the ICC was biased in its selection of situations to investigate and individuals to indict. African leaders continue to criticize the ICC for focusing on Africa. Yet while Georgia remains the only non-African state subject to a formal investigation
What is the status of the Rome Statute in the US?
The United States was an active participant in the Rome negotiations but in the end refused to vote for the Statute.
During the Rome negotiations, the United States pressed for adoption of several different provisions, each of which would have eliminated the possibility that U.S. nationals could be prosecuted without U.S. consent. Unable to achieve its goals on this issue, the United States voted against the treaty. pg 497
