Lecture 6_International Criminal Court I Part 2 24-25 PDF

LECTURE 5 – THE INTERNATIONAL CRIMINAL COURT (II) Isabel Düsterhöft, LL.M., M.A. Email: [email protected]  OUTLINE oRecap oJurisdiction (Arts. 11-16 Rome Statute) oComplementarity oGravity oInterests of Justice oHead of State Immunity ...

LECTURE 5 – THE INTERNATIONAL CRIMINAL COURT (II) Isabel Düsterhöft, LL.M., M.A. Email: [email protected]  OUTLINE oRecap oJurisdiction (Arts. 11-16 Rome Statute) oComplementarity oGravity oInterests of Justice oHead of State Immunity  THE ICC IN 3 MINUTES https://www.youtube.com/watch?v=Jw_cQrGwMJo&feature=youtu.be  THE PROCEDURE AT THE ICC Preliminary examination -> situation -> Investigation Arrest warrant/summons to appear Confirmation of charges (ICC/ECCC) Jurisdiction Admissibility Trial/case presentation (evidence) Contextual elements Specific elements Individual criminal responsibility Defences Verdict Sentencing (possible appeal) Reparations  JURISDICTION Art. 11 Art. 17 (jurisdiction (complementarity) rationae temporis) Art. 12 Art. 13 (preconditions to (triggering jurisdiction) jurisdiction)  THE STEPS: Art. 5 Does the crime fall under ICC jurisdiction? Art. 11 Does the temporal jurisdiction apply? Art. 12 Does the territorial and/or personal jurisdiction apply? Art. 13 Was the case properly referred? Art. 17 Does complementarity apply? Is the gravity threshold met? Art. 53 Interests of Justice  JURISDIC TION ARTICLE 11 -> JURISDIC TION ‘RATIONE TEMPORIS ’ 1.The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 1 July 2002 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State […].  JURISDICTION ARTICLE 12 -> PRECONDITIONS FOR 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) The 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 aircraft; (b) The 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. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.  JURISDIC TION ARTICLE 13 → EXERCISING JURISDIC TION The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15 (proprio motu).  JURISDICTION ARTICLE 13 → EXERCISING JURISDICTION State Party State Referral ICC Security SC Resolution under Chapter ICC Council VII Victims may Prosecutor Pre-Trial Panel submit (proprio ICC information motu) EXAMPLES? Ilg2.org, 2017  LET'S REC AP Art. 5 – which Art. 11 – what is Art. 12 – what is crimes? the temp. juris.? pers. juris? Art.13 - what Art. 12 – what is are the triggering terr. juris? mechanisms? MOVING ON TO… Complementarity COMPLEMENTARITY PRINCIPLE & GRAVITY ARTICLE 17 (1) Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (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; (b) has been investigated by State with jurisdiction and has decided not to prosecute; (c) ne bis in idem (Art. 20); (d) gravity. THE COMPLEMENTARITY PRINCIPLE ARTICLE 17 → COMPLEMENTARITY  TWO-STEP PROCESS Article 17(1)(C) Purpose: Has the same case been dealt with at the national level? Has the same case been prosecuted at the national level? - usually no need to consider state's inability - no need to consider 'delays' because trial has already taken place - was there intention to shield the Accused or hold a sham trial? -> potential admissibility - Is it questionable whether the case was conducted impartially independently? -> potential admissibility https://www.ictj.org/sites/default/files/ICTJ_Handbook_ICC_Complementarity_2016.pdf  SAME-CASE TEST (Substantially) Same suspect the same conduct https://www.ictj.org/sites/default/files/ICTJ_Handbook_ICC_Complementarity_2016.pdf  EXAMPLE Saif al-Islam Muammar Gaddafi Situation in Libya General info on complementarity: https://www.icc- cpi.int/sites/default/files/NR/rdonlyres/20BB4494 -70F9-4698-8E30- 907F631453ED/281984/complementarity.pdf & h ttps://www.ictj.org/sites/default/files/ICTJ_Handb ook_ICC_Complementarity_2016.pdf MOVING ON TO… Gravity & Interests of Justice  GRAVITY Part of the admissibility test No common definition Factors influencing a determination on gravity: Scale (number of direct and indirect victims; extent of the damage caused; geographical and temporal spread etc.) Nature (factual evidence etc.) Manner of commission of the crimes (means employed, systematic, plan or policy etc.) Impact (vulnerability, terror, social/economic/environmental damage, etc.) Those most responsible Can lead to not opening an investigation or declaring a case inadmissible The threshold his higher at case selection than at the admissibility stage Focus on the most serious crimes of concern to the international community Resources Have a look at: https://www.internationalcrimesdatabase.org/upload/documents/20160111T115040- Ochi%20ICD%20Format.pdf  INTERESTS OF JUSTICE ART.53 RS Can lead to a decision not to proceed with a case Presumption in favor of investigation or prosecution Determined on a case-by-case basis Object and purpose of the statute: prevention of serious crimes & ending impunity OTP must inform the Pre-Trial Chamber if decision not to prosecute Arts. 53(1)(c) and 53(2)(c) balancing test: Interests of justice test need only to be considered where there was a positive determination on both jurisdiction and admissibility It is essentially a ‘negative’ test, potentially providing a reason ‘not’ to prosecute The OTP must not establish that it is in the ‘interests of justice’ but only that it is ‘not’ Factors to be considered Gravity Victims’ interest Victim’s protection Circumstances of the accused Other justice mechanisms & peace processes? Have a look at: https://www.icc-cpi.int/sites/default/files/ICCOTPInterestsOfJustice.pdf  REMEMBER: Art. 5 Does the crime fall under ICC jurisdiction? Art. 11 Does the temporal jurisdiction apply? Art. 12 Does the territorial and/or personal jurisdiction apply? Art. 13 Was the case properly referred? Art. 17 Does complementarity apply? Is the gravity threshold met? Art. 53 Interests of Justice  MOVING ON TO… Head of State Immunity  IRRELEVANCE OF OFFICIAL C APACITY Art. 27 Rome Statute (1): This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. (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. ICC, 2017  NEXT WEEK 1. Modes of liability 2. Defences 3. Enforcement of sentences 4. Victims Participation