Riassunto sulla Corte Penale Internazionale in inglese

MAIN POINTS

-art. 11 / ratification after 01July / unability of the Court / nullum crimen sine lege / difference

between non retroactivity (prohibition of IHRL) and ratione temporis / crimine continuo

Ratione personae – Personal jurisdiction p 76

 ICC has jurisdiction over nationals of a State party who are accused of a crime, regardless of

where acts are perpetrated

 ICC can prosecute nationals of a non-party state if this accepts its jurisdiction on an ad hoc basis

OR pursuant a decision of the Security Council

 The Court can’t prosecute persons who committed a crime at an age under 18 (art. 26)

 Diplomatic immunity: (?) A state party to the statute cannot shelter its own Head of State from

prosecution by the ICC

 personnel of the UN: the UN will provide to take all necessary measures to allow the ICC to

exercise its jurisdiction, by waiving the privileges and immunities of the personnel

 art. 27(2): “immunities or special procedural rules which may attach to the official capacity of a

person, whether under national or international law, shall not bar the Court from exercising its

jurisdiction over such a person”

 The ICC cannot exercise jurisdiction over individuals where the Security Council has decided to

exclude them from the Court’s jurisdiction (pag. 81, rivedere)

Ratione loci – Territorial jurisdiction

 jurisdiction over crimes committed on the territory of States Parties, regardless of the nationality

of the offender (article 12(2)(a) of the Statute)

 jurisdiction if the crime has been committed in the territory of a State not part of the Statute that

has ad hoc decided to accept the jurisdiction

 territory: land territory of the State, but include salso board vessels or aircrafts

 It remains to be determined if territorial waters, exclusive economic zones, the airspace above

the State can be considered as “part” of the territory. There are not cases law

 If atrocities are committed in high seas, outer space or Antartica, jurisdiction will have to be

established on the basis of the nationality of the offender

 there could be problems with ratione loci principle because more than 50% of the international

boundaries are disputed

Acceptance of jurisdiction by a non-party State (rivedere)

 article 12(3): possibility of a non-party State accepting the jurisdiction of the Court ad hoc

 the State must lodge a declaration, and accepts the jurisdiction of the ICC “with respect to the

crime in question”. This is an “accepting State”

Ratione materiae – Subject-matter jurisdiction

 ICC has jurisdiction over four cathegories of crimes: genocide, crimes gainst humanity, war

crimes, crime of aggression

 preamble and art 5 say: “the most serious crimes of concern to the international community as a

whole”

 international crimes: they were generally considered to be offences whose repression compelled

some international dimension

 they escape prosecution under the ordinary criminal justice system. In case of genocide, crimes

against humanity, war crimes and aggression they are left unpunished by the very state where the

crime was committed. Why? A political explanation: the state of territorial jurisdiction is usually

unwilling to prosecute because it is itself complicit in the criminal behaviour

 their nature brings them to be of concern to the international community: the humanity as a

whole is a victim

 the definition of the crimes in the Rome statute is in some cases the result of recent HR treaties

(CAT, Apartheid convention)

 most of the development of the definition is attributed to the evolution of customary law

 article 10: “nothing in this Part shall be interpreted as limiting or prejudicing in any way

existing or developing rules of interntional law for purposes other than this statute”

Genocide

Articolo 6 Crimine di genocidio: Ai fini del presente Statuto, per crimine di genocidio s'intende uno

dei seguenti atti commessi nell'intento di distruggere, in tutto o in parte, un gruppo nazionale,

etnico, razziale o religioso, e precisamente: a) uccidere membri del gruppo; b) cagionare gravi

lesioni all'integrità fisica o psichica di persone appartenenti al gruppo; c) sottoporre deliberatamente

persone appartenenti al gruppo a condizioni di vita tali da comportare la distruzione fisica, totale o

parziale, del gruppo stesso; d) imporre misure volte ad impedire le nascite in seno al gruppo; e)

trasferire con la forza bambini appartenenti al gruppo ad un gruppo diverso;

 In 1946 genocide was declared an international crime by the UNGA, even if committed in time

of peace

honey boop

 genocide constitutes the most aggravate form of crimes against humanity (“the crime of crimes,

ICTY)

 genocide is defined in art. 6 of the Rome Statute, the provision is essentially a copy of article II

of the Genocide convention, and constitutes a codification of a customary international norm.

 genocide consists of five specific acts committed with the intent to destroy a national, ethnical,

racial or religious group as such.

 the 5 acts are: 1) killing members of the group 2) causing serious bodily or mental harm to

members of the group 3) imposing conditions on the group calculated to destroy it 4) preventing

births within the group 5) forcibly transferring children from the group to another group

 What distinguishes genocide from the other crimes is its mental element: genocide must be

committed with the intent to destroy in whole or in part a national, ethnical, racial or religious group

as such

During the debates on the drafting of the Convention, the forms of destruction considered were:

physical, biological or cultural. The drafter decided not to insert the cultural aspect on the

Convention, leaving it in the human rights declarations. However, today, a broader interpretation of

genocide could be adopted, including the cultural aspect.

 the existence of a plan or policy is not a legal ingredient of the crime. However, in the context of

proving specific intent, the existence of a plan or policy may become an important factor.

 with the words “in whole or in part” the definition indicates a quantitative dimension. The

quantity must be significant. Where only part of a group is destroyed, it must be a substantial part.

However, it must be contextualized in the “intent”, or the mental purpose.

 in cases where it is not present a specific intent, prosecution may still lie for crimes against

humanity

Crimes against humanity pag. 107

Article 5 of the Statute of ICTY provides that crimes against humanity must be committed in armed

conflict, whether international or internal.

- Rome Statute, at art. 7, states that “For the purpose of this Statute, “crimes against humanity”

means any of the following acts when committed as part of a widespread or systematic attack

directed against any civilian population, with knowledge of the attack”.

There is the requirement that these acts be part of a “widespread or systematic attack”.

Further on in art. 7 the term attack is defined as “a course of conduct involving the multiple

commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in

furtherance of a State or organizational policy to commit such attack”. Some drafters wanted the

attack to be “systematic and widespread”, but eventually they did not succeed putting it in these

terms. However, the definition of attack in art. 7 seems that the term has both widespread and

systematic aspects.

 attack must be directed towards civilians, and does not need to be a military attack.

 the attack must be carried out “pursuant to or in furtherance of a State or organizational policy

to commit such attack” : this seems (some scholars do not agree) to suggest that they can also be

carried out by NSAs. This is confirmed the the ICTY that said that, at customary law, “crimes

against humanity could also be committed on behalf of entities exercising de facto control over a

particular territory but without international recognition or formal status of a “de jure” state, or by a

terrorist group or organization”.

 the perpetrator of crimes against humanity must have knowledge of the attack. This mental

element, however, seems to be less demanding than the “specific intent” required for genocide.

 The definition of CaH makes no mention of the motive for such crimes. After various debates on

this issue, a judgement of the Appeals Chamber of the ICTY declared that there was no particular

motive requirement for crimes against humanity in general.

Motives are, anyway, important, where it can be shown that an accused had a motive to commit the

crime, this may be a compelling indicator of guilt.

 the introductory portion of paragraph 1 of art. 7 is followed by an enumeration of 11 acts of

CaH. However, the statute leaves an open door for some evolution of CaH: at the end of the list, it

deals with “other inhumane acts”.

War crimes (pag. 122)

The basis in international law for these offences was the Regulations annexed to the 1907 Hague

Convention IV

 in the “grave breaches” provisions of the four Geneva Conventions of 1949, a codification of

“war crimes” was advanced: “wilful killing, torture or inhuman treatment, including biological

experiments, wilfully causing great suffering or serious injury to body or health, unlawful

deportation or transfer or unlawful confinement of a protracted person, compelling a protracted

person to serve in the forces of a hostile Power, or wilfully depriving a protracted person of the

rights of fair and regular trial prescribed in the present Convention, taking of hostages and

extensive destruction and appropriation of property, not justified by military necessity and carried

out unlawfully and wantonly” (this does not cover the entire range of violations of the laws of war.

These provisions only contemplate international armed conflict, but with the two Protocols of 1977

also NIACs were contemplated)

 War crimes are foreseen in art. 8 of the Rome Statute, where several war crimes are defined in

considerable detail (this, however, could constitute as an attempt to narrow the scope of war crimes

in some cases and narrow the interpretation of such crimes). As warned by the ICTY, “an exhaustive

categorization would merely create opportunities for evasion of the letter of the prohibition”.

 Art. 8 consists of four categories of war crimes, two addressing IAC and two addressing NIAC

 in customary law, a major distinction between war crimes and the other categories is that the

latter three have jurisdictional thresholds while the former does not. (Crimes against humanity must

be widespread or systematic, and genocide and aggression require a very high level of specific

intent). War crimes, on the other hand, could also pot