Week 1(i) - History, Structure, and Jurisdiction

Question 1

What is ICL?

Answer 1

The international rules for direct individual responsibility for international crimes

Question 2

What are the 4 core crimes

Answer 2

1) Crimes against Humanity
2) Genocide
3) Aggression
4) War Crimes

Question 3

What are potentially missing international crimes (i.e. transnational crimes)? (6)

Answer 3

1) Piracy
2) Torture (cf. CaH)
3) Terrorism
4) Slavery
5) Drug Trafficking
6) Corruption

Question 4

What is transnational criminal law?

Answer 4

The domestic criminal law of States covering crimes with transborder effects

Question 5

What are some aims/purposes of ICL? (5)

Answer 5

1) Retribution
2) Deterrence
3) Incapacitation
4) Rehabilitation
5) Denunciation/Education

Question 6

What are some broader goals of ICL ? (3)

Answer 6

1) vindicating the rights of victims
2) recording history
3) post-conflict reconciliation

Question 7

What are 3 points making a combination of IL and criminal law strained?

Answer 7

1) PIL traditionally focused on States, rather than individuals
2) IL is a decentralized system creating enforcement and jurisdictional issues
3) whilst CL is about strict and clear rules IL is more about soft law, vague standards and diplomacy

Question 8

What are some main points in the modern history of ICL? (9)

Answer 8

1) 1945: Nuremberg IMT
2) 1946: Tokyo IMTFE
3) 1948: Genocide Convention
4) 1949: Geneva Convention
5) 1953-7: work on Draft Statute of ICC and Draft Code of Offences (until halted)
6) 1989: ILC resumes work on Drafts
7) 1993: ICTY
8) 1994: ICTR
9) 2002: Entry into force of Rome Statute

Question 9

How were ICTY and ICTR established? (5)

Answer 9

1) By UNSC Res
2) Under Art 41 UN Charter (non-forcible measure)
3) Art 41 does not set out an exhaustive list of non-forcible measures (Tadic)
4) Since UNSC can authorize force, it can also take lesser measures incl. ad hoc tribunals (Tadic)
5) Violations of IHL are a threat to the peace (Tadic)

Question 10

What was the subject-matter jurisdiction of ICTY? (4)

Answer 10

1) Grave violations of Geneva Conventions (Art 2 ICTY)
2) Violations of the laws and customs of war (Art 3 ICTY Statute)
3) Genocide (Art 4 ICTY)
4) Crimes against Humanity (Art 5 ICTY)

Question 11

What are 3 criticisms of the ICTY?

Answer 11

1) Too high costs and long delays (but perhaps necessary to protect rights of accused?)
2) Use of anonymous witnesses (only absolute anonymity in Tadic tho)
3) Too distant from conflict (but conflict in FRY made it impossible to sit there)

Question 12

What was the temporal jurisdiction of ICTR

Answer 12

Was limited to acts committed in 1994 (the year of the genocide)

Question 13

What was the subject-matter jurisdiction of ICTR? (3)

Answer 13

1) Genocide
2) Crimes against humanity

3) Violations of CA 3 and APII (first war crimes in NIAC)
- one year later in 1995 Tadic confirmed it was also part of CIL (not simply in ICTR Statute)

Question 14

What was the relationship between ICTY/ICTR and national courts? (5)

Answer 14

1) ICTR/ICTY had primacy over national courts
2) Thus they could require States to defer proceedings to them
3) ICTY (Art 9(1) ICTY)
4) ICTR (Art 8(1) ICTR)
5) Whilst done initially, both tribunals later added powers to refer cases to domestic jurisdiction to avoid overburdening

Question 15

What is IRMCT? (2)

Answer 15

1) International Residual Mechanism for Criminal Tribunals

2) Has taken over remaining tasks from ICTY (2015) and ICTR (2017)

Question 16

How did the establishment of the ICC differ from ICTY/ICTR? (2)

Answer 16

1) ICC: based on multilateral treaty (Rome Statute)

2) ICTY/ICTR: based on UNSCres

Question 17

What are the advantages of founding the ICC on a multilateral treaty? (2)

Answer 17

1) Legitimized by States voluntarily ratifying the Statute

2) creates a permanent court (not ad hoc)
- This means not open to criticisms of retroactive jurisdiction
- Not open to criticisms of victor’s justice

Question 18

What are 2 disadvantages of founding the ICC on a multilateral treaty?

Answer 18

1) lacks the force of UNSCres putting all UN MS under obligation to cooperate (incl. use NATO peace force)
(i) means priority over other obligations
(ii) ICC: only obligation on contracting States (unless UNSC referral requires cooperation)

2) Only 2/3rds of States are parties to ICC (and lacking major States)

Question 19

What 3 things must be considered when ICC starts a prelim. investigation? (5)

Answer 19

1) Art 53 Rome Statute
2) Prosecutor must be satisfied of reasonable basis to proceed:

3) Jurisdiction
- Subject-Matter (Arts 5-8)
- Temporal (Art 11)

4) Admissibility (Art 17)
- Complementarity
- Gravity

5) Interests of Justice (Art 53)

Question 20

What is the subject-matter jurisdiction of the ICC? (5)

Answer 20

1) Overall Arts 5-8
2) Genocide (Art 6)
3) CaH (Art 7)
4) War Crimes (Art 8)
5) Crime of Aggression (Art 8 bis)

Question 21

What is the temporal jurisdiction of the ICC? (2)

Answer 21

1) Art 11 Rome Statute

2) Only crimes committed after entry into force (1 July 2002)

Question 22

What is the principle of complementarity? (2)

Answer 22

1) Art 17 Rome Statute
2) Generally, ICC may only proceed where the States are not prosecuting/investigating or where they are unable or unwilling to do so.

Question 23

What are 2 rationales behind the principle of complementarity?

Answer 23

1) Protecting State sovereignty (and ensuring ratifications)

2) Reflect that often State has better access to evidence and witnesses and more resources to carry out proceedings

Question 24

What is the 2 step test for the complementarity principle?

Answer 24

1) Is there, or has there already been, an investigation/prosecution of the ‘same case’ at the national level (of any State with jurisdiction)?

If so the ICC may not proceed unless:

2) the State is/was unable or unwilling to ‘genuinely’ carry out the investigation/prosecution

Question 25

What does ‘unwilling’ mean? (4)

Answer 25

1) Art 17(2) Rome Statute
2) Shielding a person from criminal responsibility
3) unjustified delay inconsistent with intent to bring person to justice
4) lack of independence or impartiality

Question 26

What does ‘inability’ mean? (2)

Answer 26

1) Art 17(3) Rome Statute
2) ‘due to total or substantial collapse or unavailability of national judicial systems the State is unable to obtain the accused or the necessary evidence, or otherwise unable to carry out the proceedings’

Question 27

What does ‘same case’ mean under complementarity? (2)

Answer 27

1) national investigations covering the same individual and substantially the same conduct (Ruto)

Cf.

2) must concern the same gravamen or essence of the crime (Gadaffi and Al-Senussi)

Question 28

What are the 2 competing rationales under complementarity?

Answer 28

1) Complementarity should not be too broad to cause impunity
2) Complementarity should not be too narrow to force domestic courts to play mind reader, and potentially avoid double liability

Question 29

What is the admissibility requirement of ‘gravity’? (3)

Answer 29

1) Art 17(d) Rome Statute
2) cases of insufficient gravity to justify action by the ICC are inadmissible (NB, but may still be an international crime)
3) can lead to impunity if neither ICC nor domestic courts investigate/prosecute

Question 30

What factors are considered in assesing the gravity of a case? (5)

Answer 30

1) Registered Vessels of the Union of Comoros
2) Scale of the crimes
3) nature of the crimes
4) manner of commission
5) impact of the crimes

Question 31

What is the ‘interests of justice’ requirement? (2)

Answer 31

1) Art 53(1)(c) Rome Statute
2) Prosecutor may decide not to initiate investigation if there are ‘substantial reasons to believe that an investigation would not serve the interests of justice’

Question 32

What factors could indicate that it would not be in the interests of justice to start an investigation at the ICC? (5)

Answer 32

1) Office of the Prosecutor, Policy Paper on the Interests of Justice
2) high age or infirmity of the accused
3) accused’s rights have been seriously infringed by the State
4) the accused has already been prosecuted for related crimes
5) where it would not be in the interests of the victims

Question 33

What is the relationship between ICC and non-judicial justice mechanisms? (3)

Answer 33

1) incl. truth and justice commissions and amnesties
2) do not trigger complementarity under Art 17
3) however could be considered under ‘interests of justice’ (Art 53(1)(c))

Question 34

When can ICC exercise jurisdiction? (3)

Answer 34

1) where the crime was committed on the territory of a contracting State (Art 12(2)(a))
2) where the crime was committed by a national of a contracting State (Art 12(2)(b))
3) where the UNSC refers a situation to the ICC (Art 13(b))

Question 35

How may the ICC jurisdiction be triggered? (3)

Answer 35

1) Referral by a contracting State (Art 13(a))
2) UNSC referral (Art 13(b))
3) Proprio motu investigation by prosecutor (Art 13(c))

Question 36

What are pros and cons of the possibility of Self-referrals? (1 + 3)

Answer 36

Pros
1) ensures cooperation of the State

Cons
1) Risk of defering too many cases internationally

2) self-referral used to target domestic political opponents

NB: both cons are checked by prosecutor discretion under Art 53

Question 37

What is the nature of the proprio motu investigations by the prosecutor? (3)

Answer 37

1) exceptional for PIL that process is independent of States
2) Proprio motu investigations require authorization by PT Chamber (Art 15 Rome Statute)
3) balance: avoid political bias both by States and by prosecutor individually

Question 38

How may UNSC affect an investigation/prosecution at ICC? (2)

Answer 38

1) referral (Art 13)

2) deferral (Art 16)
- to permit setting aside demands of justice when required for international peace

Question 39

What are internationalized/mixed tribunals? (3)

Answer 39

1) tribunals with both national and international components
2) could be a mixed bench/staff of nationals and internationals
3) often integrated within domestic judicial framework

Question 40

What are examples of mixed tribunals? (3)

Answer 40

1) Special Court for Sierra Leone (2002) (SCSL)
2) Extraordinary Chambers in the Courts of Cambodia (2003) (ECCC)
3) Special Tribunal for Lebanon (2007) (STL)

Question 41

What are 3 ways for establishing mixed tribunals?

Answer 41

1) By agreement (State-IO, or multilaterally between States)
2) by international transitional administrations (e.g. UNMIK in KOS)
3) established under national law but with internaitonal support

Question 42

What are some pros of mixed tribunals? (5)

Answer 42

1) more legitimacy since embedded in local justice system
2) enable more participation by victims and affected communities
3) builds prosecutorial and judicial capacity in post-conflict societies
4) less expensive than fully international tribunals
5) the internationalized element ensures impartiality

Question 43

What are some cons of mixed tribunals) (4)

Answer 43

1) might lack UNSC support in ensuring State cooperation (cf. ICTY/ICTR)
2) consent of affected State is required
3) no established access to financial or other resources but depends on voluntary State contributions
4) More questions of impartiality may arise than in fully international tribunals

Question 44

How might Al-Bashir challenge ICC jurisdiction based on UNSC referral? (2)

Answer 44

1) Internal matters in SUD not within ‘international peace and security’ (but v unlikely - spill-over and migration is a risk)
2) since SUD not State party to Rome Statute, no waiver of immunity under Art 27)

Question 45

How could Ayyash challenge conviction by STL? (2)

Answer 45

1) tried and convicted in absentia contrary to Art 14 ICCPR? (however permitted under ECHR in certain conditions)
2) tried for terrorism, but not fully defined under IL - breach of principle of legality? (however it was defined in STL Statute and in LEB domestic law)

Question 46

How could Taylor challenge jurisdiction of SCSL? (2)

Answer 46

1) SCSL only had jurisdiction over crimes committed in SIER
2) Taylor aided and abetted crimes in SIER but never went there himself - did it from outside territory (however SCSL found that since primary crime happened within territory, there was jurisdiction)

Question 47

How could Karadzic challenge ICTY jurisdiction? (2)

Answer 47

1) UNSC has no competence to create ad hoc tribunal (however Tadic shows it does)
2) contrary to principle of legality to convict of CaH (not a crime prior to ICTY)

Question 48

Why are more ad tribunals unlikely to be created by UNSC in near future? (3)

Answer 48

1) UNSC does not want to cover cost
2) hybrud tribunals are more likely
3) ad hoc tribunals may undermine ICC (however ICC not universally unified - but Cf. UNSC referrals)

Question 49

What is the status of amnesties in ICL? (2)

Answer 49

1) Browne-Wilkinson, Pinochet (No 3)

2) amnesties are generally frowned upon at international level (e.g. SCSL)