Law 111 Public International Law

GILBERT R. HUFANA
Professor

International Criminal Court

(ICC)
 The ICC

• It came into being on 1 July 2002—the date its

founding treaty, the Rome Statute of the
International Criminal Court, came into force
• the first permanent, treaty based, international
criminal court established to help end impunity
for the perpetrators of the most
serious crimes of concern to the
international community
 The ICC

• The ICC is an independent international

organization, and is not part of the United Nations
system.
• Its seat is at The Hague in the Netherlands.
• Although the Court’s expenses are funded primarily
by States Parties, it also receives voluntary
contributions from governments, international
organizations, individuals, corporations and other
entities.
The ICC in The Hague
 The Rome Statute

• The treaty that established the International

Criminal Court, an international court that
has jurisdiction over certain international crimes:
– genocide,
– crimes against humanity, and
– war crimes
• that are committed by nationals of states parties
or within the territory of states parties.
 The Rome Statute

Green: Parties; Yellow: Signed but not ratified; Red: Neither signed nor ratified
 The ICC Today

• Seat: The Hague, Netherlands

• Official Languages: English, French, Arabic,
Chinese, Russian, Spanish
• Statute in force for 123 states (As of October
2017)
• The current president is Chile Eboe-Osuji who
was elected 11 March 2018, succeeding Silvia
Fernández de Gurmendi (first female president).
 States parties to the Rome
Statute of the ICC
• those sovereign states that have ratified, or have
otherwise become party to, the Rome Statute of
the International Criminal Court
• legally obligated to co-operate with the Court
when it requires, such as in arresting and
transferring indicted persons or providing access
to evidence and witnesses
• States parties are entitled to participate and vote
in proceedings of the Assembly of States
Parties, which is the Court's governing body.
 Withdrawal

• Article 127 of the Rome Statute allows for states

to withdraw from the ICC.
• Withdrawal takes effect one year after
notification of the depositary, and has no effect
on prosecution that has already started.
• As of March 2018 four states have given formal
notice of their intention to withdraw from the
statute, although two rescinded before it came
into effect.
 The status of PH

• Signed the Treaty: December 28, 2000

• Ratified or acceded: August 30, 2011
• Entry into Force: November 1, 2011
• Withdrawal Notified: March 17, 2018
• Withdrawal Effective: March 17, 2019
 Jurisdiction

• Article 5 of the Rome Statute grants the

Court jurisdiction over four groups of crimes,
which it refers to as the "most serious crimes of
concern to the international community as a
whole": the crime of genocide, crimes against
humanity, war crimes, and the crime of
aggression.
– Initiated by a state party, the SC and the prosecutor
on its own/motu propio
 Jurisdiction

• The Court has four mechanisms which grant it

jurisdiction:
– (1st) if the accused is a national of a State party to the
Rome Statute
– (2nd) if the alleged crime took place on the territory of
a State Party
– (3rd) if a situation is referred to the Court by the
United Nations Security Council.
– (4th) if a State not party to the Statute 'accepts' the
Court's jurisdiction.
 Jurisdiction

• Pursuant to article 12(3) of the Statute, a state

that is not a party to the Statute may, "by
declaration lodged with the Registrar, accept the
exercise of jurisdiction by the Court with respect
to the crime in question."
• Even if the state that does so is not a State Party
to the Statute, the relevant provisions of the
statute would still be applicable on the accepting
state, but only on an ad hoc basis.
 Territorial Jurisdiction

• During the negotiations that led to the Rome

Statute, a large number of states argued that the
Court should be allowed to exercise universal
jurisdiction.
• However, this proposal was defeated due in
large part to opposition from the United States.
• A compromise was reached, allowing the Court
to exercise jurisdiction only under the following
limited circumstances:
 Territorial Jurisdiction
– where the person accused of committing a crime
is a national of a state party (or where the
person's state has accepted the jurisdiction of the
Court);
– where the alleged crime was committed on the
territory of a state party (or where the state on
whose territory the crime was committed has
accepted the jurisdiction of the Court); or
– where a situation is referred to the Court by the
UN Security Council.[
 Temporal jurisdiction

• The Court's jurisdiction does not apply

retroactively: it can only prosecute crimes
committed on or after 1 July 2002 (the date on
which the Rome Statute entered into force).
• Where a state becomes party to the Rome
Statute after that date, the Court can exercise
jurisdiction automatically with respect to crimes
committed after the Statute enters into force for
that state.
 Complementarity

• The ICC is intended as a court of last resort,

investigating and prosecuting only where
national courts have failed. Article 17 of the
Statute provides that a case is inadmissible if:
– "(a) The case is being investigated or prosecuted by a
State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the
investigation or prosecution;
 Complementarity

• Article 20, paragraph 3, specifies that, if a

person has already been tried by another court,
the ICC cannot try them again for the same
conduct unless the proceedings in the other
court:
– "(a) Were for the purpose of shielding the
person concerned from criminal responsibility
for crimes within the jurisdiction of the Court;
or
 Complementarity

– (b) Otherwise were not conducted

independently or impartially in accordance
with the norms of due process recognized by
international law and were conducted in a
manner which, in the circumstances, was
inconsistent with an intent to bring the person
concerned to justice."
 Complementarity
– (b) The case has been investigated by a State which
has jurisdiction over it and the State has decided not
to prosecute the person concerned, unless the
decision resulted from the unwillingness or inability of
the State genuinely to prosecute;
– (c) The person concerned has already been tried for
conduct which is the subject of the complaint, and a
trial by the Court is not permitted under article 20,
paragraph 3;
– (d) The case is not of sufficient gravity to justify further
action by the Court."
 Genocide

• the deliberate and systematic destruction,

in whole or in part, of an
ethnic, racial, religious, or national group
• any of the following acts committed with
intent to destroy, in whole or in part, a
national, ethnical, racial or religious group,
as such:
– killing members of the group;
 Genocide

– causing serious bodily or mental harm to

members of the group;
– deliberately inflicting on the group conditions
of life, calculated to bring about its physical
destruction in whole or in part;
– imposing measures intended to prevent births
within the group; [and]
– forcibly transferring children of the group to
another group.
 Crime against humanity

• are particularly odious offenses in that they

constitute a serious attack on human dignity or
grave humiliation or a degradation of one or
more human beings
• part either of a government policy (although the
perpetrators need not identify themselves with
this policy) or of a wide practice of atrocities
tolerated or condoned by a government or a de
facto authority
 Crime against humanity
• Murder; extermination; torture; rape; political,
racial, or religious persecution and other
inhumane acts reach the threshold of crimes
against humanity only if they are part of a
widespread or systematic practice.
• Isolated inhumane acts of this nature may
constitute grave infringements of human rights,
or depending on the circumstances, war crimes,
but may fall short of falling into the category of
crimes under discussion.
 War Crimes

• serious violations of the laws applicable in

armed conflict (also known as international
humanitarian law) giving rise to individual
criminal responsibility
• Examples: murder, the ill-treatment or
deportation of civilian residents of an occupied
territory to slave labor camps", "the murder or ill-
treatment of prisoners of war", the killing of
prisoners, "the wanton destruction of cities,
towns and villages, and any devastation not
justified by military, or civilian necessity
 Crime of Aggression

• planning, preparation, initiation or execution, by a

person in a position effectively to exercise control
over or to direct the political or military action of a
State, of an act of aggression which, by its
character, gravity and scale, constitutes a
manifest violation of the UN charter
• “act of aggression” means the use of armed
force by a State against the sovereignty, territorial
integrity or political independence of another
State, or in any other manner inconsistent with the
Charter of the United Nations
 Crime of Aggression

• invasion or attack by the armed forces of a

State of the territory of another State, or
any military occupation
• Bombardment by the armed forces of a State
against the territory of another State or the use
of any weapons by a State against the territory
of another State
• blockade of the ports or coasts of a State by
the armed forces of another State
 Crime of Aggression

• attack by the armed forces of a State on the

land, sea or air forces, or marine and air fleets of
another State
• use of armed forces of one State which are
within the territory of another State with the
agreement of the receiving State, in
contravention of the conditions provided for in
the agreement or any extension of their
presence in such territory beyond the
termination of the agreement
 Crime of Aggression

• action of a State in allowing its territory, which it

has placed at the disposal of another State, to
be used by that other State for perpetrating an
act of aggression against a third State
• sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which
carry out acts of armed force against another
State of such gravity as to amount to the acts
listed above, or its substantial involvement
therein
 Structure of the Court

• The Court is an independent institution.

• The Court is composed of four organs.
These are:
– the Presidency,
– the judicial Divisions,
– the Office of the Prosecutor and
– the Registry.
 The Presidency

• 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
• composed of three judges of the Court, elected
to the Presidency by their fellow judges, for a
term of three years
• The current President of the Court is Judge
Sang-Hyun Song (Republic of Korea).
 Judicial Divisions

• consist of eighteen judges organized into the

Pre-Trial Division, the Trial Division and the
Appeals Division
• judges of each Division sit in Chambers which
are responsible for conducting the proceedings
of the Court at different stages
• Assignment of judges to Divisions is made on
the basis of the nature of the functions each
Division performs and the qualifications and
experience of the judge.
 Office of the Prosecutor

• responsible for receiving referrals and any

substantiated information on crimes within the
jurisdiction of the Court, for examining them and
for conducting investigations and prosecutions
before the Court
• Currently, the Office is headed by the
Prosecutor, Mrs. Fatou Bensouda (The
Gambia), who was elected by the States Parties
for a term of nine years.
 Registry

• responsible for the non-judicial aspects of the

administration and servicing of the Court
• headed by the Registrar who is the principal
administrative officer of the Court
• The Registrar exercises his or her functions
under the authority of the President of the Court.
 Other Offices

• The Court also includes a number of semi-

autonomous offices such as the Office of Public
Counsel for Victims and the Office of Public
Counsel for Defense.
• These Offices fall under the Registry for
administrative purposes but otherwise function as
wholly independent offices.
• The Assembly of States Parties has also
established a Trust Fund for the benefit of victims
of crimes within the jurisdiction of the Court and
the families of these victims.
 General Principles of Criminal
Law adhered to by the ICC
• Nullum crimen nulla poena sine lege
– maxim states that there can be no crime
committed, and no punishment meted out,
without a violation of penal law as it existed at
the time
• Rule against Ex-post facto law
– No person shall be criminally responsible
under this Statute for conduct prior to the
entry into force of the Statute.
 General Principles of Criminal
Law adhered to by the ICC
• A person shall be criminally responsible and
liable for punishment for a crime within the
jurisdiction of the Court if that person:
– Direct participation
– Orders, solicits or induces the commission of
such a crime which in fact occurs or is
attempted
– In any other way contributes to the
commission or attempted commission of such
a crime by a group of persons acting with a
common purpose
General Principles of Criminal
Law adhered to by the ICC
– For the purpose of facilitating the commission
of such a crime, aids, abets or otherwise
assists in its commission or its attempted
commission, including providing the means
for its commission
– directly and publicly incites others to commit
genocide
– Attempts to commit such a crime by taking
action that commences its execution by
means of a substantial step, but the crime
does not occur because of circumstances
independent of the person's intentions
 General Principles of Criminal
Law adhered to by the ICC
• Individual responsibility
• The Court shall have no jurisdiction over any
person who was under the age of 18 at the time
of the alleged commission of a crime.
• Crimes under the jurisdiction of the ICC do not
prescribe.
• Intent and knowledge is an essential element.
• Mistake of fact – exemption from criminal liability
• Mistake of law - not be a ground for excluding
criminal responsibility
 General Principles of Criminal
Law adhered to by the ICC
• Exemption from criminal liability
– Person suffering from mental disease or defect
– person is in a state of intoxication that destroys
that person's capacity to appreciate the
unlawfulness or nature of his or her conduct
– self-defense
– caused by duress resulting from a threat of
imminent death or of continuing or imminent
serious bodily harm against that person or
another person
The International Criminal Court

END OF LECTURE