Riassunto sulla Corte Penale Internazionale in inglese

AN INTRODUCTION TO THE INTERNATIONAL

CRIMINAL COURT

CHAPTER 1 – THE CREATION OF THE COURT

 the first international trial for the perpetration of atrocities was that of Peter von Hagenbach

(1474). He was charged with war crimes

 the development of LOAC (mid 19th century) led to the emerging of concepts of international

prosecution for humanitarian abuses

The Nuremberg and Tokyo trials

 Moscow Declaration, 1943: the Allies affirm their will to prosecute Nazis for war crimes

 the work of the London Conference, composed by the four major powers (US, UK, France,

USSR) laid the groundwork for the prosecutions of Nuremberg

 An agreement, signed on 1945, established the creation of the International Military Tribunal

 the tribunal’s jurisdiction was confined to three cathegories of offence: crimes against peace,

against humanity, and war crimes

The international law commission

 is a body of experts, named by the UNGA, charged with the codification and development of

international law

 the UNGA asked it to prepare the “Nuremberg principles” and the “Code of crimes against the

peace and security of mankind”

 UNGA establishes a committee charged with drafting the statute of an international criminal

court

 UNGA suspended its mandate, because there was the need to define the crime of aggression

 1974: UNGA adopts a definition of aggression

 1996: the Commission adopted the final draft of its “Code of crimes against the peace and

security of mankind” (which played an important role in the preparation of the Rome statute)

 the ICTY states that “the Draft Code is an authoritative international instrument which,

depending upon the specific question at issue, may (i) constitute evidence of customary law, or (ii)

shed light on customary rules which are of uncertain content or are in the process of formation, or,

at the very least, (iii) be indicative of the legal views of eminently quali ed publicists representing

the major legal systems of the world”

The ad hoc tribunals

 in late 1992, as war raged in Bosnia, a Commission of experts was established by the Security

Council, and identify a range of crimes and crimes against humanity

 it urged the establishment of an international criminal tribunal

 22 february 1993: security council decides to establish a tribunal mandated to prosecute

“persons responsible for a serious violations of international humanitarian law committed in the

territory of former Yugoslavia since 1991”

 November 1994: on a request from Rwanda, the Security council approves the creation of the

ICTR, to prosecute genocide and other serious violation of IHL committed in the country

 role of the d hoc tribunals important for the creation of the ICC, they provided for a model of

what an international criminal court should look like, and set legal precedents to guide the drafters

Drafting the Rome statute

 1994: the UNGA decides to pursue work towards the establishment of an icc, taking the

international law commission’s draft statute as a basis

 creation of an ad hoc Committee (but some issues raised, revealing differences among States

about the future court)

 creation of a Preparatory committee, that amended the draft prepared by the International Law

Commission

 15 june 1998: a Diplomatic conference convened in Rome, to establish the ICC

 negotiations followed

 the statute was adopted

CHAPTER 2 – THE COURT BECOMES OPERTIONAL

 60 ratifications required for the Statute to enter into force (this goal achieved on 11 April 2002)

 1 July 2002: the date that the Statute enters into force. Events prior to this date cannot be

prosecuted

 some delays occured between signature and ratification, because in many cases many legislative

changes had to be made, in order to comply with the obligations imposed by the Statute

 in 2002-2003, nomination of judges and of the Prosecutor, the argentinian Luis Moreno-Ocampo

The rise and fall of the United States opposition

 During negotiations, many contributions by the US. However, it was not happy with the final

result

 Opposition regarding the principle of jurisdiction over third countries

 What the United States actually wanted? In 1994 was well disposed to the proposal of the report

made by the International law commission (the proposal fitted within the Charter of the UN, and the

court was therefore subordinate to the Security Council)

 In the above mentioned proposal, the Security Council could determine whether cases that

pertain to its functions under chapter VII of the UN charter should be considered by the ICC

 however, following the post Cold war era, there was a malaise with the Security council

monopoly on such matters

 Therefore, a new international organization, separated from the UN, was created. It would have

dealt with issues that before where, although on a piecemeal basis, dealt by the SC.

 An indirect amendment of the Security Council, that couldn‘t have been done before

 that’s why many states enthusiastically joined the ICC

 US signed the Statute but not ratified

 US pressed for bilateral agreements to shelter its own citizens from the Court (under art. 98 of

the Statute, a State cannot be requested to surrender an accused if this would require the requested

State to breach an international agreement)

 Half of the States “bullied” were not part of the Statute, and those with the most significant

number of american citizens did not accept

 US threatens to veto Security council decisions on peacekeeping if they didn’t specify the

immunity for personnel from the court jurisdiction

 US opposition to ICC was flagging, in 2004 it decided not to argue for renewal of the SC

resolution that it had pushed through two years before

 Generally, it has abstained and not pushed against some resolutions of SC concerning ICC

 later on, Bush waived the penalities imposed upon those that refused to sign bilateral agreements

 In practice, these agreements never operated as an obstacle to the Court

 US recognised that the Court, with over than 100 parties, including important allies, couldn’t be

delegitimized

Developing a prosecution strategy

 under the principle of complementarity (art. 17), the Court proceeds only if a State party is

“unwilling or unable to proceed”

 principle of complementarity recognises the responsibility of States to exercise criminal

jurisdiction. It also recognises that the exercise of national criminal jurisdiction is a right but also a

duty of States

 the policy set by the first Prosecutor: “take action only where there is a clear case of failure to

take national action”

 in the strategy, the main targets of prosecution would be those who bear most responsibility for

the crimes

 Moreno-Ocampo selected the situation in the Democratic Republic of Congo. What was

happening in Ituri was the focus of his activity, he used his proprio motu powers (a case can be

opened on suggestion of a State OR if the Prosecutor decides proprio motu to do so).

CHAPTER 3 – JURISDICTION

 States exercise jurisdiction in the field of criminal law on five bases: territory / protection /

active personality / passive personality / universality

 As far as ICC is concerned, states agree that crimes committed in their territory may be

prosecuted by the court. However, it’s first up to the States to have jurisdiction on crimes. Unless

they are unwilling or unable to act

 Universal jurisdiction applies to limited number of crimes for which any State, even absent a

personal or territorial link with the offence, is entitled to try the offender

 Universal jurisdiction recognized for hijacking, terrorism, nuclear safety, piracy, torture ecc.

 also crimes against humanity, genocide and war crimes, the core crimes of the Rome Statute,

may be subject to universal jurisdiction. ICTY and ICTR provide rules that enable them to transfer

case to a national court that is willing (and adequately prepared, for ICTY) to prosecute the offender

 the judges of the ad hoc tribunals have confirmed the validity of universal jurisdiction for

genocide, war crimes and crimes against humanity, and there has been no objection by the SC

 the court has jurisdiction in cases where a crime has been committed in the territory of a state

party and over nationals of a state party

 Article 12 “Preconditions to the exercise of jurisdiction”:

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with

respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or

more of the following States are Parties to this Statute or have accepted the jurisdiction of

the Court in accordance with paragraph 3:

(a) e State on the territory of which the conduct in question occurred or, if the crime was

committed on board a vessel or aircraft, the State of registration of that vessel or aircra ; (b)

State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that

State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the

Court with respect to the crime in question. e accepting State shall cooperate with the Court

without any delay or exception in accordance with Part 9.

 issues of jurisdiction take several forms: ratione temporis, ratione personae, ratione loci,

ratione materiae

Ratione temporis – Temporal jurisdiction

 the ICC cannot exercise its jurisdiction over crimes commited prior to the entry into force of the

Statute (previous international criminal tribunals did the contrary)

 art. 11(1) “the Court has jurisdiction only with respect to crimes committed after the entry into

force of this Statute” that is, 01 July 2002. More or less the same is said in art. 24 (states wouldn’t

have accepted and ratified it it was otherwise)

 temporal jurisdiction and non-retroactivity principles merge in one single provision

 if a state becomes party to the Statute after its entry into force, the court has jurisdiction over

crimes committed after the entry into force with respect to that state

 Court criticized for being unable to prosecute past crimes. By the way, a crime committed prior

to the entry into force of the Statue can still be prosecuted by nationl courts, or sometimes can be

judged on the basis of universal jurisdiction

 principle of nullum crimen sine lege, art. 22: “a person shall not be criminally responsible

under this statute unless the conduct in question constitutes, at the time it takes place, a crime within

the jurisdiction of the court”

 the issue of “continuing crimes” (crimes that have been committed prior to the entry into force

but continue after the entry into force) remains unresolved

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<