International Criminal Law Flashcards
The ICC composition
The Court consists of:
- the Chambers:
○ pre-trial Division: issues arrest warrants, authorizes investigation, confirms charges and ensures there’s enough evidence to trial
○ trial Division: determine the guilt or the innocence
○ appeals Division
- office of the Prosecutor - Registry: entrusted with the administrative aspect of the Court; has a unit for the protection of victims and witnesses as well - Assembly of State Parties: composed by a representative from each State Party (123). It adopts the Court's budget, supervises the management of the Court. It elects all 18 judges of the Court and the Chief Prosecutor. Judge's requisites: § expertise § impartiality § high morals § integrity
Cases’ admissability before the ICC
Two principles must be respected:
1. COMPLEMENTARITY:
the Court Statute turned into a big leap in domestic legal systems of State Parties that adopted domestic laws condemning international crimes, which thus gives them the appropriate jurisdiction to prosecute international criminals themselves; this despite territorial or personal jurisdiction (= universality principle).
THE COURT SHALL NOT:
- interfere with proceedings that have already started in State Parties
- promulgate judgements on matters already deicded upon by State Parties
THE PRINCIPLE OF COMPLEMENTARITY APPLIES WHEN:
- the State’s courts are “unwilling”: let this be the case, for instance, of a State shielding an accused from the ICC’s jurisdiction– then the case will be entrusted to the ICC
- the State’s courts are “unable”: let this be the case, for instance, of a State conducting a “sham” or “show” trial where no actual criminal justice is being made
The Court might as well reject a case.
2. Degree of the crime's gravity
Crime of Aggression (individual)
Creates individual criminal responsibility.
A definition of “agression” was not given until 2010, when the ICC’s Statute was amendend in its Art. 8:
it is the planning, preparation, ininitation and execution of an act of aggression to which a high State official (whether high-level military or policy-maker, or leader) contributed that constituted in its character, gravity and scale a manifest violation of the UN Charter.
WITH REFERENCE TO ART. 2 OF THE UN CHARTER; AGGRESSION= THREAT TO SOVEREIGNITY, TERRITORIAL INTEGRITY AND INDEPENDENCE OF A STATE.
Aggresion can comprehend actus reus:
- blockade
- bombardment
- occupation
Mens rae requisites:
- knowledge of the legal character of the situation:
○ circumstance of illegality of the use of force
○ manifest illegal character of the violation
War Crimes
While some violations of IL give birth State responsibility, war crimes also generate individual liability.
- actus reus:
○ pillage of a town or place
○ rape
○ torture
○ intentional aggression towards civilian population or structures
○ mistreatment of war prisoners
○ destruction of property
- mens rea:
the person committing the crime shall have knowledge of the circumstances that established the existence of an armed conflict and intent in perpetrating such actions. It is not required that the accused had made a legal evaluation of the conflict and it is insignificant whether the conflicit is international or national as war crimes apply to both.
War crimes do not apply to conducts that are unralted to the armed conflict.
The Court’s Statute aggravates the feature for such conducts of being part of plan, policy of large-scale commission. This in order to give more relevance and to distinguish a degree of greater seriousness.
Crimes against Humanity
“widespread or systematic attack on the civilian population with knowledge of the attack.”
- Attack= “any mistreament of the civilian population”. The attack may take place in times of peace as well.
- Widespread or systematic: only one of the two requisite must be met;
○ widespread= large-scale actions
○ systematic= concern the degree of organization by which the action is carried out
The mens rea requisite must entail not only the intention but also the knowledge of the perpetrator that he or she is committing an attack.
Actus reus are:
- extermination
- murder
- enslavement
- persecution
- forcible detention in violation of international law principles
- slavery
- sexual slavery
- forced pregnancy
- forced prostitution
- forced deportation
- forced disappearence
- apartheid
International Crimes Requisites
For every crime that is brought before the ICC, there are two requisites that must be proven:
1. actus reus= the actions of the accused must be proven
2. mens rea= the mental state of the accused at the moment of the crime must be proved. This means that it must be proved that the accused intended to perpetrate those actions and that he had knowledge of the legal circumstances.
Mens rea is not proved whenever there’s negligence or recklessness involved
Genocide
It is decsribed as five possible actions all perpetrated with the intent to destroy a national, ethnic, racial or religious group:
- killing of members of the group
- putting members of the group in life conditions calculated to destroy them
- causing bodily and mental harm to members of the group
- impose sterilization methods on members of the group
- transfer children of a group to another group
All these actions are acts of genocide: acts aimed at the destruction in whole or in part of a national. ethnic, religious or racial group.
SPECIAL INTENT: in order for a person to be convicted of genocide, there must be sufficient evidence proving not only the mental state, but a special mental state, which is the intention of perpetrating those actions with the intent of destroying the group.
- Quantiative feature: it is required that the person had aims to destroy a substantive number of members of that group. The “substantive” feature may be established on a case-by-case basis either in absolute terms or in relative terms considering the number of victims and the total population size
- Qualitative feature: depends on the prominence of the individuals killed
GENOCIDE IS NO THE SAME AS MASS MURDER. THE LATTER ONLY INVOLVES MASS KILLING, WHILE GENOCIDE DIRECTLY AIMS AT ONE SPECIFIC GROUP.
Principles of State Jurisdiction in Criminal Matters
- territoriality:
this principle determines that there shall be a genuine link between the person, property or act that is affected by the prescribing State and the territory of the prescribing State itself. The jurisdiction of the prescribing State shall apply extra-territorially if at least an element of the crime in question can be somehow located in the State’s territory.
There can be two different territorialities:
§ subjective: if the crime was instigated (or begun) in the prescribing State’s territory but was concluded in another location
§ objective: if the crime was concluded in the State’s territory but instigated in another- nationality/ personality principle:
link between the State and a person:
§ active nationality principle: the domestic laws of the prescribing State apply to its nationals committing a crime
§ passive nationality principle: the domestic laws of the prescribing State apply to any individual committing a crime against one of its nationals
Such principle also applies to tax laws - protective principle:
domestic criminal law or some of its provisions shall apply to people, property or acts outside the prescribing State whenever the crime committed puts at risk the prescribing State’s national interests (e.g. conspiracy against the State and forgery of currency) - universality:
let this be extra-territorial jurisdiction that can be exercised by States over persons, properties or acts in violations of universal values or universal interests.
International crimes deemed of universal interest:
§ war crimes
§ crimes against humanity
§ genocide
§ piracy
- nationality/ personality principle:
ICC’s jurisdiction ratine materiae
Art. 5
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. Jurisdiction is given over the following crimes:
§ war cimes
§ the crime of aggression
§ crimes against humanity
§ the crime of genocide
ICC’s jurisdiction ratione temporis
Art. 11
The provisions as well as obligations envisioned by the ICC Statute shall apply from the moment the Statute enters into force.
For accesssing States the Statute shall have legally binding effects and the Court jurisdiction over the acts committed exclusively after the entry into force of this Statute for that State.
NO RETROACTIVE EFFECT
ICC’s ratione loci and personae
Art. 12
In the case of Art. 13, paragraph (a) and (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:
a. the State on the territory of which the conduct in question occured or, if the crime was committed on board of 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
c. if the acceptance of a State which is not a Party to this Statute is required, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question
It is basically saying that the Court wil be able to exercise jurisdiction over matters that involve States that are part to the Statute; or, in cases involving a third party not member to the Statute, the Court may exercise jurisdiction if the latter recognizes its jurisdiction over the matter through a declaration.
ICC referrals
Art. 13
The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if:
a. a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; = referral by State of a crime committed under ICC’s jurisdiction
b. a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; = referral by the UNSC with respect to a crime within the ICC’s jurisdiction.
The referral by the UN comes from the UNSC, which means that all 5 permanent members must agree on letting the ICC to step in over certain matters. This also means that, given the SC acting under Chapter VII, the decision will be binding for all members of the UN; therefore the Statute of the ICC applies to all members of the UN
c. the Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15; = direct investigation under own initiate given enough evidences by the Prosecutor regardin crimes within the ICC’s jurisdiction
CHIEF PROSECUTOR= highest judge of the ICC
In cases of paragraphs (a) and (c), the ICC will have jurisdiction only if:
- the conduct has taken place at least in part in the territory of a State Party to the ICC and the criminal is of a State not party to the ICC
- the criminal is of a State Party’s nationality: the court will have jurisdiction over that person even if the crime was conduceted in another country not party to the ICC
IT IS TO SAY BASICALLY THAT THE ICC’S PERSONAL AND TERRITORIAL JURISDICTION DEPEND ON HOW THE ICC GAINED JURISPRUDENCE OVER THE CASE; EITHER REFERRAL BY UNSC OR STATE OR SELF-INITIATED INVESTIGATION
