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Laws424 International Criminal Court Notes

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Intro Note: Some General Things to keep in mind

• ICL is broader than just the ICC. But ICC is becoming center of gravity for ICL.

• Focus in ICL and ICC is on the behaviour of individuals, not states/organizations/political parties/corporation. This is very different than international law in general is usually approached, which is focused on states.

• ICL and the ICC are very new and rudimentary. ICC just celebrated its 10th birthday. The idea of it is considerably older. This year, finally finished its first trial and sentenced the person on July 2010 2012. Not a lot of case law to guide us, under ICL we have more, but still not that much.

• ICC often deal with most serious crimes, and deal with some pretty horrible people.

• Presumed innocent until proven guilty.

• Still disagreement as to whether the ICL and ICC are positive developments in law. Criminal Law

• If someone commits a crime, who can prosecute? Usually, jurisdiction to prosecute individuals has been usually based on territory. For example, Section 6 of our Crimes Act.

• A state can prosecute anyone it suspects of committing a crime on its territory (land, waters, and ships, and aircraft registered).

• Less commonly, states claim criminal jurisdiction based on nationality (of the perpetrator). For example, section 7A sets out some of the circumstances where NZCL will apply to a NZ National outside of New Zealand. Terrorism, slavery, sexual slavery, trafficking, bribery of Judges etc. All of those crimes, can base jurisdiction over you just because you are a New Zealand national.

• Generally, acts of state are not subject to prosecution, because a state cannot be criminally prosecuted, only and individual can. Exceptions to the Rules Above

• First major exception, piracy. Any state is legally permitted to prosecute suspected pirates.
○ This is because happens in international waters. They are common enemies of mankind (hostes humani generis) thus any state should be able to prosecute them. Piracy was first creation of international criminal law.

• Second major exception applied to war crimes.
○ The Lieber Code by President Lincoln, set out rules for Union Troops (not to commit war crimes). After this document, other countries adopted similar manuals. First exception to principle that acting on behalf of state, can be prosecuted by state. Soldiers are not acting in personal capacity, but exception to the rule. Thus, hanging on to nationality concept. Opens up to prosecution of an enemy soldier.
○ War crimes became the subject of international treaties between states (Geneva Convention etc). History of the Idea of an International Criminal Court: 5 Stages

• Stage 1: Post First World War Ideas
○ Treaty of Versailles, provision in it, that said German Emperor would be tried for War crimes by international tribunal. Never eventuated as he fled Germany and hid.

• Stage 2: Post Second World War International Military Tribunals
○ Nuremburg and Tokyo Trials. International military tribunals. The victors, US, USSR, UK. Planned what to do with Nazi individuals. British, wanted to have summary executions. The Soviets didn't like that, Stalin argued we should have trials. Americans supported the Soviets- two wrongs wouldn't make a right. We should treated defeated in a way, they wouldn't have treated us. Both of the military tribunals were made of number of judges. They tried high level Japanese and German officials and they were given jurisdictions over war crimes and created two new offences: crime against humanity, and crimes against Peace. Ex post facto law, against rule of Law.
○ Important Things:
 First time ever, multiple states bound together to prosecute people for crimes. Study Page 1

 First time ever, multiple states bound together to prosecute people for crimes.
 Creation of these new offences.
 First time where we got high ranking officials charged and prosecuted and convicted of war crimes and other international crimes. Previously, had just lowlevel individuals prosecuted, such as soldiers.
○ Bad:
 One-sided - imposed victors' justice over defeated
 Tribunals composed of judges appointed by victors, as with prosecutors.
□ Not independent courts proper, but organs of victor states.
○ Good:
 Broke states' monopoly over criminal jurisdiction concerning inter crimes
 New crimes: against humanity, against peace.
 Military leaders and high ranking politicians, civilians brought to trial.
 Statutes and case law helped develop new legal norms and standards
 Symbolic significance: moral legacy.

• Stage 3: Work of International Law Commission
○ Drafts statute to create an international Court. Things were looking up, but CW put these hopes to rest. Plans for ILC were shelved. Competing superpowers with own spheres of influence, neither of which wanted to show weakness or vulnerability, wanted to protect supporting states, so no international consensus that any particular crimes should be prosecuted by an international body.

• Stage 4: Post- Cold War ad hoc tribunals, draft statute gets shelved. ICTY and ICTR Russian foreign policy allowed agreement on conflict in former Yugoslavia. Not enough political will to stop atrocities, but to establish ICT for serious breaches (UNSC authority) UNSC charged with maintaining/restoring peace and prosperity in the world - Chap VII UN Charter.
...virtually limitless power So UNSC set up ad hoc tribunal under this power. ICTY established in 1993, given jurisdiction over i. Crimes against humanity, ii. war crimes iii. Genocide - a third crime that had developed post-Nuremburg Jurisdiction limited to traditional basis: territory - could prosecute those three crimes occurring in the territory of the former Yugoslavia since a particular date. Turned out ICTY was very expensive, difficult to manage. April 1994, genocide in Rwanda - no political will to stop the killing, 1 million Rwandans killed within 100 days. Major powers didn't intend to set up a tribunal - but Rwanda was a member of the UNSC in 1994, and the Rwandan delegate pushed for a tribunal. ICTR set up, given same jurisdiction as ICTY, slightly modified but still traditional within territory of Rwanda, and over crimes committed in neighbouring countries (because some spilled over borders) if the perpetrator is a Rwandan national. Good: Bad: Exceeding expected time frame and budget (5 - 10 years max - but both still operating massively expensive) Criticism of bias (e.g. against Serbians, against Hutus in favour of Tutsi…) Face saving measure?
Unlikely that it will actually deter crimes Established to make up for impotency of diplomacy and politics SC exceeded its power under charter, acting ultra vires Selective justice Good "Half a loaf is better than pie in the sky" - better selective justice than none at all AC in Tadic - was within UNSC's power. Study Page 2

AC in Tadic - was within UNSC's power. Met Rwandan government's desires Both have same appeals chamber, ensuring uniformity in administering international criminal justice. Stage 5: 'Tribunal Fatigue' and the Negotiation of a Permanent ICC Tribunal fatigue developed quickly - e.g. by 1994/5 - UNSC didn't want to create any more ad hoc tribunals. Broad consensus: not the way forward. Too complicated to establish new court for every major event. More sense in establishing a permanent international court which can always be turned to. Trinidad and Tobago proposed to reconsider the (stage 3) proposal for a permanent criminal Court. T&T were concerned with drug trafficking. CM 15 - in 1989. GA asked the ILC to draft statute - developed in 1994. Various commissions set up post 1994 to refine the statute. Once it was considered to be a promising treaty, committee made permanent. Draft statute with broad agreement that it was now the time to set up the ICC. Considered a good thing because it would avoid ad hoc tribunals.

Looks at Course Materials for the actual conference… I hope you're a fast reader in exams. Prelim to crimes:

1. Art 12: ICC must apply Statute > Elements of Crimes (Art 9) > Rules of Procedure and Evidence Only once these sources exhausted may ICC refer to commentaries, case law, other treaties etc.

2. Art 10: int law outside ICC may be different from in Statute, and ICC doesn't limit IHL. - ICC is a closed system.

Study Page 3

Creation of the Rome Statute and Ratifications 1998 Rome Conference - developed Rome Statute for the ICC. Look at hand-out Committee of the Whole - all UNGA members. Bureau of the CotW - directors of discussion. Drafting Committee = P5 + 20 elected member states. Responsible for putting down in writing what the CotW came up with. Drafting Committee started making counter proposals… CotW wanted to stop this but they did make them. 238 NGOs were involved, had no final say, but were permitted to lobby states/groups, make proposals and suggest compromises. All states when signing the treaty were acting in their own self-interest ; realist perspective. P5 group wanted ICC only to be able to act when the UNSC referred something to it - wanted a permanent tribunal which they could fetter. Prosecutor would be controlled by UNSC (and P5's fetter). Didn't want nuclear weapons included - because all P5 were nuclear armed states. Crime of aggression not included - wouldn't be in P5's best interests Wanted home state to request prosecution - couldn't force onto people. Wanted strong protection of rights of accused (i.e. adversarial court system - UK & US) Like-minded states: largest group by far Universal jurisdiction - no territorial/national/permissive restrictions on jurisdiction. Independent prosecutor - not controlled by UNSC. One who could initiate cases proprio motu (on own initiative) Broad definition of war crimes - including gender crimes, same definitions in international and internal conflicts. Traditionally, some things are impermissible in an international war, but permissible in an internal conflict. The Non-Aligned Movement states group (NAM) A movement that started during CW. Third world/developing countries. Wanted UNSC to have no role in the ICC - totally neutral body. Wanted internal conflicts excluded from ICC jurisdiction Include nuclear weapons as prohibited weapons Include terrorism crimes in jurisdiction Include drug trafficking crimes in jurisdiction Give ICC jurisdiction over aggression Allow capital sentences Rwanda's response to ICTR's lack of capital punishment. Usually, any party that signs a treaty can make reservations to the treaty; Country when signing a treaty can make an exception on its behalf - aimed to promote treaty agreement, more of a chance at the broad consensus required if some slight alterations are possible. But massive problems if countries could agree to Rome Treaty except for Crime X or Crime Y, etc. Universal international criminal code, so need clause in treaty preventing reservations. The Treaty made with certain deadline; when reached, conference agreed to accept the result by consensus. Having a treaty doesn't bind countries; if flawed, no one will ratify or sign it. So accept by consensus, then see whether individual states will sign up; This happened with a twist Time running out, Bureau of the CotW produced draft statute, to be accepted by consensus, or just accept failure. Contentious material in draft treaty, countries forced to decide whether to agree to it by consensus. Many countries disagreed with parts, US, China and India tried to drag things on; looked like accepted by consensus Then US (unusually) called for formal vote for treaty's acceptance, rather than allow it to be accepted by consensus. An unreported vote show of hands by delegation: 120 yes, 7 no, 31 abstentions. Conference concluded after this.

Next step of treaty making: open for signature. Signatures don't bind states but signals intention to eventually ratify. Signing = impliedly agreeing you think it's a god idea, won't do things to undermine, intend to someday ratify. Final step: states that have signed can go through domestic ratification process. Statute's provisions specify ICC created as a body only if substantial number (60) parties ratified Took 4 years to come into force through article 126. (CM22) Rome Statute enters into force: 1 July 2002 NZ ratified relatively early (7 Sept 2000 - #17) Excerpt from NZ enacting legislation is on CM25 - 27 International Crimes and International Criminal Court Act 2000 Basically: Rome Statute is domestic law in NZ. NZ is subject to ICC Treaty, and ICC crimes are also domestic NZ crimes. No party is subject to the jurisdiction of the ICC prior to 1 July 2002 - even those who ratified the treaty earlier.

Study Page 4

Deadline for signing the treaty has now passed - immediate ratification is necessary now to join the ICC. Signed, then withdrew signature - US, Israel, Sudan. US & Israel did so after a change in Govt (Dubya withdrew Clinton's signature, Sharon withdrew previous leader's signature). Sudan withdrew its signature after the ICC indicted its president...

Study Page 5

Jurisdiction of the ICC

Outline: For a crime to fall within the ICC's jurisdiction, it must satisfy the following: (1) it must fall within the category of crimes referred to in article 5 (jurisdiction ratione materiae) (2) It must fulfil the temporal requirements specified under art 11 (jurisdiction ratione temporis) (3) It must meet one of the two alternative requirements embodied in art 12 of the statute: (a) Jurisdiction ratione loci (art 12(2)(a)) (b) Jurisdiction ratione personae (art 12(2)(b)) Must also be a natural person, not an agency (art 25(1)) France and Colombia State ratified the RS, declared they were opting-out of war crime juris (Art 124)
#12 France no WC juridiction 1/7/02 - 13/8/08. #77 Colombia no WC jurisdiction 1/11/02 to 1/11/09. Crime of aggression: jurisdiction only one year after 30 State Parties have ratified amendments ((Arts 15 bis(2) and 15 ter(3)); and may enter ICC's jurisdiction no earlier than 1 Jan 2017 (Arts 15 ter(3), 15 bis(3)) e.g. if NZ (SP) nationals commit torture in Solomon Islands (non-SP) in 2003. (1) The ICC has jurisdiction with respect to torture per art 5(b), as torture may be the actus reus for a crime against humanity per art 7(1)(f) (2) The ICC only has jurisdiction over acts which occurred after the Statute came into force on 1 July 2002 (art 11(1)): jurisdiction is not excluded in this case. (3) Territorial/national preconditions to exercise of jurisdiction: the Court may exercise its jurisdiction if : 12(2) (a) The conduct occurred on the territory of a State Party (b) The person accused of the crime is a national of a State Party. (3) Or non-State Party may declare that it accepts the Court's jurisdiction with respect to the crime.

What? Subject-matter jurisdiction (ratione materiae) Art 5: The Court has jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression, as described in articles 6 - 8ter.

When? Temporal jurisdiction (ratione temporis) Arts 11, 24(1): ICC only has jurisdiction for crimes committed since the statute came into effect (1 July 2002) Start with clean slate, no investigation for prior crimes, protects politicians. Absolute cut-off, no exceptions. Often the relevant day is in fact later.

Who? Subject jurisdiction (ratione personae) Arts 1, 25(1): only natural persons subject to ICC jurisdiction [not agencies]
Art 26: jurisdiction only over persons who were age 18 or over when crime committed (minors --> domestic) Art 27: no individual is exempt from jurisdiction because of official capacity.

Where/whom? Preconditions to the exercise of jurisdiction Jurisdiction based upon the traditional grounds of territoriality and nationality of perpetrator. Pre-conditions to exercise of jurisdiction: Art 12(2): prosecute only if either Art 12(2): Study Page 6

Pre-conditions to exercise of jurisdiction: Art 12(2): prosecute only if either Art 12(2): (a) Crime committed in territory of an ICC state-party; Territorial jurisdiction (ratione loci) or (b) Crime committed by a national of an ICC state-party (ratione personae). 'National' includes citizens, permanent residents, those w right to be in country, dual nationality poss. i.e. crime is committed in non-State party's territory by non-State Party national: ICC has no jurisdiction If jurisdiction established both ways, the earlier country's date establishes jurisdiction. CM22: state parties list. Two exceptions : 1) Non-State party can choose to accept ICC jurisdiction explicitly in given situation over territory/nationals Art 12(3) 2) UNSC referral (regardless of pre-conditions; but temporal + subject restrictions still apply) Art 13(b)

Invoking jurisdiction of the ICC - 4 possible routes (1) (2) (3) (4)

Preliminary note: ICC's jurisdiction initially invoked over entire situation; then prosecutor looks at cases within. 4 routes to invoking jurisdiction over a situation State-party referral [Arts 13(a), 14]
UNSC referral [Art 13(b)]
Prosecutor's proprio motu power [Arts 13(c), 15]
Non-state party declaration [Art 12(3)]
No route is superior; prosecutor has discretion around whether/who to prosecute.

(1) State party referral [Arts 13(a), 14]
When member state refers a 'situation' officially to the Court. Uganda (2004) DRC (2004 - CM30 - press releases from prosecutor) Central African Republic (2005) RS doesn't specify that SP must have jurisdiction: any state party can refer (politically unlikely). (2) UNSC referral - exception to preconditions [Art 13(b)]
UNSC referrals under Chapter VII, UN Charter (UNSC must declare 'threat to international peace and security') Art 12 'Pre-conditions to exercise of jurisdiction' do not apply [see Art 12(2)] - type of universal jurisdiction. Darfur, Sudan (2005 - CM30f) (non-member) Libyan Arab Jamahiriya (2011)(non-member) P5 members have veto power over UNSC resolutions (inc referrals) - e.g. Syria. Non-SP P5 members = impunity. (3) Prosecutor's proprio motu power [Arts 13(c), 15] ('by one's own action') OTP discretion, subject only to permission of Pre-Trial Chamber (PTC) (three judge panel)
[Article 15(3)-(4)]
Controversial: possibly politically motivated charges. PTC cures. A PTC refusal of permission does not preclude reconsideration if OTP gives new evidence [Art 15(5)]
Republic of Kenya (2010, PTC approval CM32-35) - so not being used politically. Arts 15(3)-(4), 53(1): Kenya PTC: 'reasonable basis to proceed' (is a low standard - c.f. proof BRD, BOP) Major consideration: whether crimes appear to be within ICC's jurisdiction (Kenya case) Whether Kenya an ICC signatory, whether after material time, whether behaviour reasonably categorised as crimes ICC may prosecute -[yes, displacing thousands, Study Page 7

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