Chapter XVI

THE INTERNATIONAL CRIMINAL COURT

The International Criminal Court

- is a permanent criminal tribunal
- created by a treaty known as the Rome Statute, which came into force on 01
July 2002
- it is located at The Hague Netherlands
- it should not to be confused with International Court of Justice
The main difference is that International Court of Justice, which is an organ of the
United Nations Organization, settles arguments between states, but the
International Criminal Court punishes only natural people.

The following principles must concur for the ICC to acquire jurisdiction:
1. Ratione materiae - subject-matter jurisdiction refers to the court's
authority to decide a particular case. It is the jurisdiction over the nature
of the case and the type of relief sought; the extent to which a court can
rule on the conduct of persons or the status of things.

The crimes that can be brought before the ICC are:

a. Genocide;
(acts committed with intent to destroy, in whole part or in part, a national,
ethnical, racial or religious group)
b. War crimes;
(grave breaches of the Geneva Conventions of August 21, 1949 and serious
violations of the laws and customs applicable in armed conflict, whether
national or international, except those expressly accepted in the statute, e.g.
willful killing, torture and excessive brutalities)
c. Crimes against humanity;
(acts committed as part of a widespread or systematic attack directed against
any civilian population, with knowledge of the attack such as widespread
rape, sexual slavery, forced pregnancy and enforced disappearance of
persons)
d. Crimes of aggression;
(acts that can commence only after the member States have agreed on the
definition of the crime)
2. Ratione temporis – The crime must be committed AFTER the state
became a member of the ICC through ratification.
3. Ratione soli – The crime must be committed WITHIN the territory of
the member state.
4. Ratione personae – The crime must be committed by a citizen of the
member state.
 Organs of the International Criminal Court

Art. 34 of the Rome Statute provides that ICC shall be composed of:
1. The Presidency;
- It is responsible for the overall administration of the Court, with the
exception of the Office of the Prosecutor, and for specific functions
assigned to the Presidency in accordance with the Statute
- It is composed of the President and First and Second Vice-
Presidents, all of whom are elected by an absolute majority of the
Judges of the Court for a three-year renewable term. The judges
composing the Presidency serve on a full-time basis.
- The Presidency has three main areas of responsibility: judicial/legal
functions, administration, and external relations.
 In the exercise of its judicial/legal functions, the
Presidency constitutes and assigns cases to Chambers,
conducts judicial review of certain decisions of the
Registrar and concludes Court-wide cooperation
agreements with States.
 In the exercise of administration, with the exception of
the Office of the Prosecutor, the Presidency is
responsible for the proper administration of the Court
and oversees the work of the Registry. The Presidency
also coordinates with and seeks the concurrence of the
Prosecutor on all matters of mutual concern.
 In the exercise of external relations, the Presidency
maintains relations with States and other entities and
promotes public awareness and understanding of the
Court.

1 https://www.aba-icc.org/about-the-icc/structure-of-the-icc/
2. The Appeals Divisions, the Trial Division and a Pre-Trial Division;
- The Chambers or Divisions consist of eighteen judges organized
into the Pre-Trial Division, the Trial Division, and the Appeals
Division. The judges of each Division are then divided into
Chambers which are responsible for conducting the proceedings of
the Court on specific cases and situations at different stages of the
judicial procedure.
- The Pre-Trial Chamber/Division plays an important role in the first
phase of judicial proceedings and makes the decision whether to
confirm the charges against the potential accused. After charges are
confirmed, the Trial Chamber/Division determines the innocence
or guilt of the accused, imposes a sentence on a convicted person,
and may order a convicted person to pay money for compensation,
restitution, or rehabilitation for victims. If either the Prosecutor or
the convicted person appeal the decision of the Trial Chamber, the
Appeals Chamber/Division may decide to reverse or amend the
decision or sentence or order a new trial before a different Trial
Chamber.
3. The Office of the Prosecutor;
- is responsible for receiving referrals and any substantiated
information on crimes within the jurisdiction of the Court. OTP
examines these referrals and information, conducts investigations,
and conducts prosecutions before the Court.
- is composed of three Divisions:
 the Jurisdiction, Complementarity and Cooperation
Division
 the Head of the Prosecutions Division
 the Investigations Division
- First, OTP performs preliminary analysis on the referrals and
information on crimes that it receives to determine if they meet the
jurisdictional requirements to merit an investigation. If OTP
determines that the situation meets jurisdictional requirements,
then it investigates the situation. Should the investigation yield
enough evidence to merit the issuing of arrest warrants, OTP
applies to the Pre-Trial Chamber for the issuance of a warrant or a
summons to appear. After the accused has been arrested or
summoned to court voluntarily, OTP presents its charges and its
evidence to the Pre-Trial Chamber and the Pre-Trial Chamber
determines whether to confirm the charges. After charges are
confirmed, OTP conducts the entirety of the prosecution at trial.
 4. The Registry.
- provides judicial and administrative support to all organs of the
Court and carries out its specific responsibilities in the areas of
defense, victims and witnesses, outreach and detention.
- It is headed by the Registrar who is the principal administrative
officer of the Court and oversees various offices and sections that
perform specific administrative and supportive tasks.
- In addition to providing all administrative support for the Court’s
activities both at the headquarters in The Hague and in the field, the
Registry has specific responsibilities in particular areas of the
Court’s mandate. In the area of defense, the Registry protects the
rights of defendants by administering the legal aid program for
indigent defendants and providing various forms of assistance to
defense counsel. The Registry provides a similar counsel support
function to victims as well as ensuring the safety and support of
witnesses and victims. The Registry also performs an essential
outreach function by ensuring that affected communities in
situations subject to investigation or proceedings can understand
and follow the work of the Court through the different phases of its
activities. The Registry is also responsible for administering and
coordinating the detention of all those detained under the ICC’s
authority.

* Assembly of State Parties

- is the management oversight and legislative body of the Court.
- is composed of representatives of the States that have ratified and
acceded to the Rome Statute. In addition, the ASP has a Bureau that
consists of a President, two Vice-Presidents and 18 members elected
by the Assembly for three-year terms that supports the work of the
ASP. It is not an organ of the Court but rather its oversight body.
- The ASP sets the rules and regulations of the Court and decides on
various items, such as the adoption of normative texts and of the
budget, the election of the judges and of the Prosecutor and the
Deputy Prosecutor(s).

How the International Criminal Court works?

1. Start of Jurisdiction
Whether after or during the commission of alleged atrocity crimes, the
ICC can only exercise jurisdiction over such crimes in one of three ways:
 Where a State Party refers the crimes to the Court (State Party
Referral),
 Where the UN Security Council refers the crimes to the Court
(UN Security Council Referral), or
  Where the ICC Prosecutor initiates a preliminary examination
into the crimes (Propio Motu Investigation).

2. Preliminary Examination
Whether alleged atrocities are referred to the ICC Prosecutor, or she
uses her proprio motu power, a case always begins with what is called
a “preliminary examination”. Each preliminary examination has four
phases of analysis:
 Initial;
- The ICC Prosecutor must first determine whether the alleged
crimes satisfy fundamental jurisdictional requirements of
the Rome Statute.
 Jurisdictional;
- The Prosecutor must will determine if the alleged crime falls
within the temporal, territorial, subject matter,
and personal jurisdiction of the ICC.
 Admissibility;
- Even when the temporal, territorial, subject matter, and
personal jurisdictional requirements are satisfied, the Rome
Statute limits the types of cases that “admissible” at the ICC.
The ICC Prosecutor must determine whether another court
(domestic or international) is properly investigating and
prosecuting the alleged crimes (this concept is called
“complementarity”), and whether the alleged crimes are the
gravest of crimes (this concept is called “gravity”).
 Interest of justice assessments.
- Even when the jurisdictional and admissibility requirements
are met, the ICC Prosecutor has the discretion to determine
whether moving a case forward at the ICC serves the
“interests of justice.” The Prosecutor may decide not to move
forward with an investigation or prosecution if she decides
that there are substantial reasons to believe that this is not in
the interests of justice. A Pre-Trial Chamber can review this
decision.

3. Investigation
The ICC Office of the Prosecutor (OTP) may turn a preliminary
examination into a formal investigation if the four phases of analysis in
a preliminary examination are satisfied.

In an investigation, the OTP gathers as much information as possible to

uncover the truth about the alleged crime as well as to determine who
is most responsible. An investigation may include:
  Inspection where the alleged crime occurred;
 Collection of evidence like cellphone data, emails, radio
intercepts, videos, photographs, minutes of meetings, military
and police communications, speeches and forensic material such
as exhumation reports;
 Interviewing witnesses and victims;
 Consultation with relevant experts and specialists;
 Analysis of financial transactions.

The OTP is legally required to take whatever steps are necessary to

gather all evidence which is relevant to an alleged crime, including
incriminating and exonerating evidence. Before trial starts, the
Prosecutor must disclose a great deal of evidence to the Defense. This
includes all the evidence the Prosecutor intends to rely upon at trial,
and any evidence which tends to show the innocence of the accused or
which affects the credibility of prosecution evidence.

4. Arrest Warrant and Summons

Once evidence establishes reasonable grounds to believe a person is
responsible for an atrocity crimes, the ICC Prosecutor may request the
Pre-Trial Chamber to issue a summons or arrest warrant.

A summons can be issued if the Pre-Trial Chamber is satisfied that the

person will appear in the courtroom, and can contain conditions
sufficient to ensure the person’s appearance.

An arrest warrant can be issued if the Pre-Trial Chamber believes that

the arrest of the person is necessary to ensure that the person appears
at trial. It can also be issued if the judges think it is necessary to ensure
that the person does not obstruct the investigation, or to prevent the
person from continuing to commit crimes similar to those he or she is
suspected of committing.
- Carrying out an arrest warrant depends on the cooperation of the country
where the fugitive is located, and of its police force. The ICC has no police
force of its own.

5. Confirmation of Charges
After an individual’s initial appearance, the Pre-Trial Chamber (PTC)
must hold a hearing within a reasonable amount of time to confirm or
dismiss the charges presented by the Prosecutor. The PTC can either:
 Confirm the charges and send the case to the Trial Chambers for
trial (at this point the individual becomes the “Accused”); or
 Dismiss the charges and set the individual free; or
  Pause the hearing to request the Prosecutor to produce additional
evidence or change the charges with the evidence presented.

If charges are dismissed, the ICC Prosecutor can provide additional

evidence at a later time in order to convince the PTC to confirm the
original charges. Alternatively, the ICC Prosecutor can start the whole
process over again with different charges.

6. Trial and Appeal

Trial
The Trial Chamber (TC) is required to conduct a fair and expeditious
trial that protects the rights of the Accused, Victims, witnesses, and
others involved. There is a presumption that trial sessions will be open
to the public. The trial can take place in “closed session” where this is
necessary to protect witnesses or the confidentiality of sensitive
matters.

The first step of a trial is to allow the Office of the Prosecutor (OTP) to
present its evidence in order to prove the Accused’s guilt beyond a
reasonable doubt. Defense lawyers are allowed to test the strength of
the OTP evidence presented.

Once the OTP’s case is concluded, the Defense can present their own
evidence. The OTP is allowed to test the strength of the Defense
evidence.

Victims are allowed to testify at trial. They can testify as witnesses

called by the OTP, and can also testify independently of the OTP.
Representatives of victims are allowed to submit evidence to support,
or to demonstrate the unreliability of, evidence presented by the OTP
and the Defense. Representatives of victims are also allowed to make
written and oral observations when the TC allows them to do so.

Once the trial is complete, the TC will begin to deliberate in private and
reach a guilty or not guilty verdict. The TC delivers its verdict with
written justifications.

Appeal
The Office of the Prosecutor or the Accused can appeal a judgment to
the Appeals Chamber. In an appeal, the Appeals Chamber will:
 review the judgment for errors of law, procedures, and/or fact;
and
 hold public hearings to listen to arguments from the parties.
 After deliberations in private, the AC will issue its own judgment that
either:
 affirms some or all of the Trial Chamber’s judgment;
 reverses or amends some or all of the Trial Chamber’s judgment;
 orders a new trial with a different Trial Chamber.

The Prosecutor – but not the victims – can appeal an acquittal. If the
accused is convicted, the Trial Chamber can order that the accused pay
reparations to the victims. The victims can appeal an order for
reparations.

7. Sentencing and Reparations

Sentencing
If convicted, the Trial Chamber (TC) will determine the appropriate
sentence by considering a range of factors, such as the gravity of the
crimes and the convicted person’s role in the crimes.

The death penalty is not an option. The TC can impose up to 30 years of

imprisonment or a life imprisonment. The TC can also issue fines
and/or forfeiture of proceeds, property, or assets derived directly or
indirectly from the crimes.

If the sentence and/or other punishment issued by the TC is appealed

by the Office of the Prosecutor or the convicted person, the Appeals
Chamber has the power to uphold, reverse, or amend the sentence
and/or other punishment issued.

Reparations
If the Trial Chamber (TC) convicts the Accused, it may also order
reparations for victims for the harm suffered. Reparations can only be
ordered for those crimes for which the Accused has been convicted.
Reparations can be awarded to individuals and/or collective entities.
Reparations can take multiple forms, including rehabilitation,
compensation, and restitution. The TC can order either the convicted
person and/or the ICC Trust Fund for Victims to pay monetary
compensation.

The Office of the Prosecutor, the convicted person, or the victims can
appeal the TC’s order for reparations. The Appeals Chamber can
uphold, reverse, or amend the reparations.
The Rome Statute adopts general principles of criminal law, such as:
- Nullum crimen sine lege;
- Non-retroactivity of application; and
- Individual criminal responsibility.

Children under 18 years of age are exempt from prosecution, while special
immunities granted by local laws in favor of certain official do not bar their
prosecution.

Responsibility of commanders and other superiors

1. A military commander having effective command and control over his or her
forces, or a person acting as a military commander having effective authority
and control over such forces, shall be liable for a crimes committed as a result
of his or her failure to exercise such control properly over such forces, where:
a. That military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces were
committing or about to commit such crimes; and
b. That military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for
investigation and prosecution.
2. A superior who is not a military commander shall be criminally liable for
crimes committed by his or her subordinates under his or her effective
authority and control as a result of his or her failure to exercise such control
properly over the subordinates, where:
a. The superior either knew, or consciously disregarded information
which clearly indicated, that the subordinates were committing or about
to commit such crimes;
b. The crimes concerned activities that were within the effective
responsibility and control of the superior; and
c. The superior failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and prosecution.

Application of the “Command Responsibility” doctrine to civilians

Command Responsibility
- it assigns criminal responsibility to higher-ranking members of military for
crimes of genocide, crimes against humanity and war crimes committed by
their subordinates
- The case of Prosecutor vs, Alfred Musema showed that “Command
Responsibility “ is not limited to military commanders but also applies to
civilians, provided that the other requisites are present.
 Chapter XVII
INTERNATIONAL HUMANITARIAN LAW

Definition
- International Humanitarian Law is a collection of treaties and acceptable
practices which govern the conduct of war, the status, treatment, rights and
obligations of belligerent as well as neutral and allied States, and of institutions
and individuals involved in the armed conflict, whether as military personnel,
health and relief providers, members of the media or as civilians.
- Set of rules “seeking to limit the suffering” caused to humanity by the conduct of
war (jus in bello), and differ from the laws governing the grounds for resorting
to war, or jus ad bellum.

Components of International Humanitarian Law

1. The laws of war or armed conflict, which were covered in The Hague Conventions
of 1899 and 1907. These laws define combatants and lay down the rules of combat.
2. The laws for the protection of the victims of war, which were the focus of the four
(4) Geneva Conventions in 1949.

Origin
- Two men played a vital role in the emergence of contemporary IHL: Henry
Dunant, a Swiss businessman, and Guillaume-Henri Dufour, a Swiss army
officer.
- In 1859, while travelling in Italy, Dunant witnessed the grim aftermath of the
battle of Solferino. After returning to Geneva he recounted his experiences in a
book entitled A Memory of Solferino, published in 1862. General Dufour, who
knew something of war himself, lost no time in lending his active moral support
for Dunant’s ideas, notably by chairing the 1864 diplomatic conference at which
the original Geneva Convention was adopted.
- In 1863, together with Gustave Moynier, Louis Appia and Théodore Maunoir,
Dunant and Dufour founded the ‘Committee of Five’, an international committee
for the relief of the military wounded. This would become the International
Committee of the Red Cross in 1876.
- The Swiss government, at the prompting of the five founding members of the
ICRC, convened a diplomatic conference in 1864. It was attended by 16 States,
who adopted the Convention for the Amelioration of the Condition of the
Wounded in Armies in the Field. This was the birth of modern IHL.
International Humanitarian Law versus International Human Rights Law
IHL IHRL
Origin was codified in the second half Human rights law is a more
of the 19th century, under the recent body of law: it had its
influence of Henry Dunant, the origins in certain
founding father of the national human rights
International Committee of the declarations influenced by the
Red Cross. ideas of the Enlightenment . It
was only after the Second
World War that human rights
law emerged, under the
auspices of the United Nations,
as a branch of international
law.
General IHL cannot be suspended IHRL allows a State to suspend
Application (except as provided in Article 5 a number of human rights if it
to the Fourth Geneva faces a situation of emergency
Convention) except for the right to life, the
prohibition of torture and
inhuman punishment or
treatment, the outlawing of
slavery or servitude, the
principle of legality and the
non-retroactivity of the law and
the right to freedom of thought,
conscience and religion
Temporal scope of applies exclusively in armed human rights law applies, in
application conflict principle, at all times, i.e. in
peacetime and during armed
conflict
Geographical That IHL governing It is widely accepted that
scope of international armed human rights law applies
application conflicts applies extraterritorially based, inter
extraterritorially is not a subject alia, on decisions by regional
of controversy, given that and international courts. The
its purpose is to regulate the precise extent of such
conduct of one or more States application, however, is yet to
involved in an armed conflict be determined. Human rights
on the territory of another. The bodies generally admit the
same reasoning applies in non- extraterritorial application of
international armed conflicts human rights law when a State
with an extraterritorial exercises control over
element: the parties to such a territory (e.g. occupation) or a
 conflicts cannot be absolved of
their IHL obligations when the
conflict reaches beyond the
territory of a single State.
Personal scope of IHL aims to protect persons
application who are not or are no longer
taking direct part in hostilities.
It protects civilians and
combatants hors de
combat, such as the wounded,
the sick and the shipwrecked or
prisoners of war.
Parties bound IHL binds all parties to an
armed conflict and thus
establishes an equality of rights
and obligations between the
State and the non-State side for
the benefit of everyone who
may be affected by their
conduct.
Substantive scope IHL deals with many issues
of application that are outside the purview of
human rights law, such as the
status of 'combatants' and
'prisoners of war', the
protection of the red cross and
red crescent emblems and the
legality of specific kinds
of weapon.
person (e.g. detention). Human
rights case law is unsettled,
however, on the extraterritorial
application of human rights
norms governing the use of
force.
Human rights law, developed
primarily for
peacetime, applies to all
persons within the jurisdiction
of a State. Unlike IHL, it
does not distinguish between
combatants and civilians or
provide for categories of
'protected person'.
Human rights law
explicitly governs the
relationship between a State
and persons who are on its
territory and/or subject to its
jurisdiction, laying out the
obligations of States vis à vis
individuals across a wide
spectrum of conduct. Thus,
human rights law binds only
States, as evidenced by the
fact that human rights treaties
and other sources of human
rights standards do not create
legal obligations for non-State
armed groups.
Similarly, human rights law
deals with aspects of life that
are not regulated by IHL, such
as the freedom of the press, the
right to assembly, to vote, to
strike, and other matters.
Geneva Conventions2
- The Geneva Convention was a series of international diplomatic meetings that
produced a number of agreements, in particular the Humanitarian Law of Armed
Conflicts, a group of international laws for the humane treatment of wounded or
captured military personnel, medical personnel and non-military civilians
during war or armed conflicts. The agreements originated in 1864 and were
significantly updated in 1949 after World War II.

The four (4) Geneva Conventions are:

1. First Geneva Convention - Amelioration of the Condition of the Wounded in
Armies in the Field, or the “Wounded and Sick Convention”;
- In October 1863, delegates from 16 countries along with military
medical personnel traveled to Geneva to discuss the terms of a
wartime humanitarian agreement. This meeting and its resultant
treaty signed by 12 nations became known as the First Geneva
Convention.
2. Second Geneva Convention – Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea, or the Maritime
Convention”
- First and Second Geneva Conventions are similar, covering land and
sea respectively. They embody the main idea which led to the
founding of the Red Cross: if a member of the armed forces is
wounded or sick, and therefore in no condition to take an active part
in the hostilities, he is no longer part of the fighting force and becomes
a vulnerable person in need of protection and care.
- The main points of these two Conventions are: The sick, wounded and
shipwrecked must be cared for adequately. Belligerents must treat
members of the enemy force who are wounded, sick or shipwrecked
as carefully they would their own. All efforts should be made to collect
the dead quickly; to confirm death by medical examination; to identify
bodies and protect them from robbery. Medical equipment must not
be intentionally destroyed, and medical establishments and vehicles
must not be attacked, damaged or prevented from operating even if,
for the moment, they do not contain patients.
3. Third Geneva Convention – Treatment of Prisoners of war, or the “Prisoners of
War Convention”
- covers members of the armed forces who fall into enemy hands. They
are in the power of the enemy State, not of the individuals or troops
who have captured them. According to this convention,

2
https://www.history.com/topics/world-war-ii/geneva-convention
 Prisoners of war MUST be:
 Treated humanely with respect for their persons and their honour.
 Enabled to inform their next of kin and the Central Prisoners of War
Agency (ICRC, the International Red Cross) of their capture.
 Allowed to correspond regularly with relatives and to receive relief
parcels.
 Allowed to keep their clothes, feeding utensils and personal effects.
 Supplied with adequate food and clothing.
 Provided with quarters not inferior to those of their captor's troops.
 Given the medical care their state of health demands.
 Paid for any work they do.
 Repatriated if certified seriously ill or wounded, (but they must not
resume active military duties afterwards).
 Quickly released and repatriated when hostilities cease.

Prisoners of war must NOT be:

 Compelled to give any information other than their name, age, rank
and service number.
 Deprived of money or valuables without a receipt (and these must
be returned at the time of release).
 Given individual privileges other than for reasons of health, sex, age,
military rank or professional qualifications.
 Held in close confinement except for breaches of the law, although
their liberty can be restricted for security reasons.
 Compelled to do military work, nor work which is dangerous,
unhealthy or degrading.

4. Fourth Geneva Convention – Protection of Civilian Persons in Time of War or

the “Civilians Convention.”
- covers all individuals "who do not belong to the armed forces, take
no part in the hostilities and find themselves in the hands of the
Enemy or an Occupying Power".

Protected civilians MUST be:

 Treated humanely at all times and protected against acts or threats
of violence, insults and public curiosity.
 Entitled to respect for their honour, family rights, religious
convictions and practices, and their manners and customs.
 Specially protected, for example in safety zones, if wounded, sick,
old, children under 15, expectant mothers or mothers of children
under 7.
 Enabled to exchange family news of a personal kind. - Helped to
secure news of family members dispersed by the conflict
  Allowed to practise their religion with ministers of their own faith.
Civilians who are interned have the same rights as prisoners of war.
They may also ask to have their children interned with them, and
wherever possible families should be housed together and provided
with the facilities to continue normal family life. Wounded or sick
civilians, civilian hospitals and staff, and hospital transport by land,
sea or air must be specially respected and may be placed under
protection of the red cross/crescent emblem.

Protected civilians must NOT be:

 Discriminated against because of race, religion or political opinion. -
Forced to give information.
 Used to shield military operations or make an area immune from
military operations.
 Punished for an offence he or she has not personally committed. -
Women must not be indecently assaulted, raped, or forced into
prostitution.