It-it, Marie Sharmaine R.

Mondays 5:30 – 8:30PM

Human Rights Law Wednesdays 5:30 – 7:50PM

INTERNATIONAL CRIMINAL COURT

1. What crimes are punishable under the International Criminal Court?

The crimes that are punishable under the ICC are as follows:
a. Crime of Genocide or the intent to destroy in whole or in part a national,
ethnic, racial, or religious group.
b. Crimes against Humanity or violations committed as part of large-scale
attacks against civilian populations, including murder, rape, imprisonment,
slavery, and torture.
c. War Crimes or grave breaches of the laws of war, which include the Geneva
Conventions’ prohibitions on torture, the use of child soldiers, and attacks on
civilian targets, such as hospitals or schools.
d. Crime of Aggression or the use or threat of armed force by a state against the
territorial integrity, sovereignty, or political independence of another state, or
violations of the UN Charter.

2. What was the wisdom of the creation of the ICC?

The International Criminal Court is the court of last resort that was created
to investigate and prosecute individuals accused of genocide, war crimes, and
crimes against humanity. Therefore, ICC comes in action when the state is
unable and unwilling to punish these crimes.

3. What was the position of the United States of the ICC and what was the
reason for such position?

In the early years of ICC, the administration of George W. Bush led a

hostile campaign against the court. The administration pressured governments
all over the world to enter into bilateral agreements requiring them not to
surrender US nationals to the ICC. This is due to the fallacious argument that the
ICC threatens sovereignty because it claims jurisdiction over citizens of countries
that have not ratified its treaty.

4. What was the first court that tried war crimes or crimes against humanity?
 The first prosecution for Crimes against Humanity took place at the
Nuremberg Trials.

5. What is the complementary principle of the ICC?

The Complementary principle of the ICC states that the ICC is the court of
last resort, the ICC is intended to complement, not to replace, national criminal
systems; it prosecutes cases only when States do not are unwilling or unable to
do so genuinely.

6. What were the three NOs of the United States?

The three NOs of the United States are as follows:

a. No Financial Support, directly or indirectly;
b. No collaboration;
c. No further negotiations with other governments to approve the Statute

7. What are the three ways by which the ICC can take jurisdiction

The three ways by which the ICC can take jurisdiction are:
a. A member country can refer a case as in Uganda;
b. The prosecutor can open an investigation on his own as contemplated in
Colombia;
c. The UN Security Council can make a referral to the Court as it did in the case
of Darfur.

8. What is the role of the UN Security Council and the UN General Assembly?

The UN Security Council has primary responsibility, under the United

Nations Charter, for the maintenance of international peace and security. They
are tasked to  investigate any dispute or situation which might lead to
international friction, to determine the existence of a threat to the peace or act of
aggression and to recommend what action should be taken, to take military
action against an aggressor, and to recommend to the General Assembly the
appointment of the Secretary-General and, together with the Assembly, to elect
the Judges of the International Court of Justice. On the other hand, the role of the
UB General Assembly is that, the General Assembly is the main deliberative,
policymaking and representative organ of the United Nations. Comprising all 193
Member States of the UN, it provides a unique forum for multilateral discussion of
international issues including peace and security. The General Assembly
 monitors the performance of UN Peacekeeping through its Special Committee on
Peacekeeping Operations. It was established in 1965 to conduct a
comprehensive review of all issues relating to peacekeeping. The Committee
reports on its work to the General Assembly through its Fourth Committee
(Special Political and Decolonization).

9. What is the nature of the Conflict in Uganda and the Lord Resistance Army.
Discuss legal basis for your answer.

Lord's Resistance Army (LRA) has created a pervasive climate of fear in

northern Uganda. The so-called ‘Lord’s Resistance Army’ (LRA) has waged war
on the Ugandan government and its own people, the Acholi. The LRA can best
be described as a quasi-religious-rebel armed group that began operating in the
Acholi region of northern Uganda in 1986, but has now grown into a regional
concern due to its expanded activities in the Central African Republic (CAR), the
Democratic Republic of the Congo (DRC) and South Sudan. Various strategies
have been employed in attempts to end the operations of the LRA in northern
Uganda. One of which is using the Military strategy. Uganda’s President Yoweri
Museveni has been a strong advocate of military solutions to the LRA problem,
as evidenced by the different offensives he has launched against the rebel group.
Many of the early years of the LRA conflict were marked by attacks between the
movement and government forces, which at that time were known as the
National Resistance Army (NRA). At the end of 2008, the UPDF launched a
military offensive against the LRA in the DRC. This operation was instigated after
the LRA and the Government of Uganda failed to reach a final agreement during
the Juba peace talks. The offensive, called Operation Lightning Thunder, was
supported by the Armed Forces of the DRC (FARDC) and the Central African
Armed Forces (FACA).

10. What is the effect of the arrest warrants issued by the ICC and what where
the considerations of the Prosecutors and issues by the Lord Resistance
Armies on the Arrest warrants?

The warrants charge the LRA leaders with a total of 33 counts of crimes
against humanity — sexual enslavement, rape, enslavement, murder and
inhumane acts — and war crimes committed in a non-international armed conflict
— inducing rape, attacks against the civilian population, enlisting of children,
cruel treatment, pillage and murder.
It is notable that the arrest warrants categorize the conflict between the Ugandan
Government and the LRA as a non-international armed conflict. An argument
might be made that the conflict is of an international character: the LRA has
 based itself not only in northern Uganda but also in Southern Sudan and, more
recently, in the DRC. Moreover, it has received material support from the
Sudanese Government and has at times allied itself with Khartoum in its struggle
against the Sudanese People’s Liberation Army.

11. Discuss the case of Darfur, what type of armed conflict, who were
prosecuted, crimes committed, what was the participation of the UN, why
did the ICC Prosecutors need to go to the UN, why did this cause a stir in
the international community, and the status of the case now?

The situation in Darfur was the first to be referred to the ICC by the United
Nations Security Council, and the first ICC investigation on the territory of a non-
State Party to the Rome Statute. It was the first ICC investigation dealing with
allegations of the crime of genocide. The UNSC determined that "the situation in
Sudan continues to constitute a threat to international peace and security", and 
referred this situation to the ICC in March 2005, taking note of the report of the
International Commission of Inquiry on violations of international humanitarian
law and human rights law in Darfur. The UN Secretary-General established the
Commission "to investigate reports of violations of international humanitarian law
and human rights law in Darfur by all parties, to determine also whether or not
acts of genocide have occurred, and to identify the perpetrators of such violations
with a view to ensuring that those responsible are held accountable." The
Commission took as a starting point two facts: "First, according to United Nations
estimates there are 1.65 million internally displaced persons in Darfur, and more
than 200,000 refugees from Darfur in neighbouring Chad. Secondly, there has
been large-scale destruction of villages throughout the three States of Darfur."
The ICC investigation, which opened in June 2005, has produced several cases
with suspects ranging from Sudanese Government officials, Militia/Janjaweed
leaders, and leaders of the Resistance Front, and has involved charges that
include the following crimes:

a. genocide: genocide by killing; genocide by causing serious bodily or mental

harm; and genocide by deliberately inflicting on each target group conditions
of life calculated to bring about the group's physical destruction;
b. war crimes: murder; attacks against the civilian population; destruction of
property; rape; pillaging; and outrage upon personal dignity; violence to life
and person; intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a peacekeeping mission; and
c. crimes against humanity: murder; persecution; forcible transfer of population;
rape; inhumane acts; imprisonment or severe deprivation of liberty; torture;
extermination; and torture.
 Former Sudan's President Omar Al Bashir is the first sitting President to
be wanted by the ICC, and the first person to be charged by the ICC for the crime
of genocide. Neither of the two warrants of arrest against him have been
enforced, and he is not in the Court's custody. 

12. What is the limitation of the ICC?

When the International Criminal Court was first formed in 2002, many feared
that it would become too powerful. It turns out that the problem with the ICC is not
that it is too powerful, but that it is too weak. Its own bureaucracy has kept the ICC
from becoming anything approaching tyrannical and effective. Procedural and
substantive deficiencies have marred the work of the court, leading to lengthy delays
and frustration.

Another limitation is that, the contribution of the ICC to furthering the cause of
justice and peace is limited by the fact that some states do not yet accept its
legitimacy, by the tendency of certain states to seek to control and use it as an
instrument to reinforce their own power, and by its own ability to pursue its
investigations successfully. Increasingly, however, the ICC is being recognized as a
legitimate international institution by a growing number of states. It has gained
visibility through its strategy whereby the cases it selects concern all parties to a
conflict, and have a high likelihood of success, that is, the person or persons
investigated and prosecuted are eventually found guilty of a crime.

13. Discuss the case of Libya and the position of the ICC?

The situation in Libya was referred to the ICC by the UN Security Council
in February 2011, in the wake of alleged crimes against humanity after the 2011
popular demonstrations. Libya is not a state party to the Rome Statute, but the
United Nations Security Council referred the situation in Libya to the ICC to
investigate alleged crimes against humanity following the outbreak of popular
demonstrations against the regime of Muammar Gaddafi in February 2011. The
ICC investigation opened in March 2011, with arrest warrants soon following for
Gaddafi, his son Saif Al-Islam Gaddafi, and Abdullah Al-Senussi, director of
military intelligence. The arrest warrant against Muammar Gaddafi was
withdrawn in the same year due to his death. With persistent instability and
regional armed factions vying for control of the country, cooperation with the ICC
has been limited. National prosecutions of Saif Gaddafi and Al-Senussi have
taken place, with fair trial concerns. ICC judges agreed to Libya’s request to
prosecute al-Senussi domestically but rejected a similar request for Saif Gaddafi.
 The ICC continues to seek his transfer to The Hague. The UN Security Council
has also failed to provide the necessary support for the ICC investigation. Civil
society continues to call for accountability for widespread grave crimes afflicting
the country, including through Rome Statute ratification and implementation.
There is an outstanding arrest warrant against Al-Tuhamy Mohamed Khaled.
Thus, the ICC issued two arrest warrants against Mahmoud Mustafa Busayf Al-
Werfalli for alleged killings in Benghazi.
The ICC situation in Libya concerns allegations of a 2011 state-level policy
to quell, including by use of lethal force, civilian demonstrations against
Muammar Gaddafi’s government. This was the first ICC situation to be
unanimously referred by the UN Security Council, which stressed the need to
hold accountable those responsible for attacks on civilians after the uprisings in
2011. The Security Council set out in its referral by “condemning the violence
and use of force against civilians, deploring the gross and systematic violation of
human rights, including the repression of peaceful demonstrators, expressing
deep concern at the deaths of civilians, and rejecting unequivocally the
incitement to hostility and violence against the civilian population made from the
highest level of the Libyan government.”

14. What are the challenges of the ICC in prosecuting cases for other
countries?

The challenges of the ICC in prosecuting cases for other countries is that
it is dependent on effective criminal cooperation, on the support of state parties.
As the Court generally has no executive powers and no police force of its own, it
is totally dependent on full, effective and timely cooperation from states parties.
As foreseen and planned by its founders, the Court is characterized by the
structural weakness that it does not have the competencies and means to
enforce its own decisions. This is as shown with regard to the principle of
complementarity. It also has difficulty of carrying out investigations and collecting
evidence regarding mass crimes committed in regions which are thousands of
kilometers away from the Court, of difficult access, unstable and unsafe.

15. Discuss the case of Lubanga and the challenges of the ICC, the basis of the
prosecution, defense and ruling of the ICC?

Lubanga is charged under article 8 of the Rome Statute of the ICC with the
war crimes of enlisting and conscripting children under the age of 15 years as
soldiers and using them to participate actively in hostilities. Pre-Trial Chamber I of
the ICC determined that there were “reasonable grounds to believe” he committed
these crimes and issued an arrest warrant against him on February 10, 2006. The
hearing, scheduled to begin on November 9, is to confirm the charges against
Lubanga. It is not a trial. Rather, the hearing will allow the judges of Pre-Trial
Chamber I to decide if there is enough evidence to support the charges against him
to move ahead with a trial. The prosecutor must demonstrate that there are
“substantial grounds to believe” that Lubanga committed the crimes alleged. This is
a higher threshold than the “reasonable grounds to believe” standard used by the
chamber in issuing the arrest warrant. The prosecutor has already submitted to the
Pre-Trial Chamber a detailed description of the charges and a list of evidence the
prosecution will present at the hearing. The current charges against Lubanga
represent an important step toward bringing justice to the victims of war crimes in
Ituri. Enlisting, conscripting, and using children as soldiers in armed conflict are
serious crimes that should be tried and appropriately punished.