1 International Justice: between Utopia and Realism The experience of the International Criminal Court Bolzano, 25 June 2010 Cuno J. Tarfusser, Judge at the ICC EURAC European Academy of Bolzano

2 Historical context Origins of the International Criminal Court Main procedural features: –Applicable law –Jurisdiction –Complementarity –Pre-Trial Chambers Some substantive features: –Official capacity –Individual and command responsibility –Superior orders The Victims at the ICC Outline

3 1945/1947: the Nuremberg and Tokyo military Tribunals The cold war 1993/1994: ICTY and ICTR ad hoc Tribunals Historical context

4 Different ILC’s appointed by the UN to prepare a Draft Statute for an ICC and Draft Code of Crimes Against the Peace and Security of Mankind (last ) 15.6 – : the Rome Conference Historical context

5 After 1998: establishment of “hybrid” courts : –Special Court for Sierra Leone –Extraordinary Chambers in the Courts of Cambodia –Iraqi Special Tribunal –War Crimes Chamber in the Court of Bosnia and Herzegovina –District Court of Dili in East Timor –Special Tribunal for Lebanon Historical context

6 15 th June to 17 th July: The Rome Conference 18 th July 1998: adoption of the Rome Statute (120 positive votes/21 abstentions/7 negative votes) 1 st July 2002: Rome Statute entered into force (at the ratification of the 60 th State) Origins of the ICC

7 111 States Parties today (Bangladesh joining last on March 23 rd 2010) African States: 30 Asian States: 15 Eastern European States: 17 Latin American and Caribbean States: 24 So called WEOG States:25 States Parties

8 1.Assembly of States Parties (legislative and administrative controlling organ) 2.Judges (18 divided in 3 Divisions, pre-trial, trial and appeal, and in Chambers) 3.OTP (Prosecutor and one Deputy) 4.Registrar (legal and administrative support) The organs of the Court

9 Hierarchy of the legal sources: 1.ICC constitutive instruments (RS; RPE; EoC, RoC); 2.Applicable treaties and principles and Rules of International law; 3.General principles of law derived from national laws of legal systems of the world Precedents of the Court All sources of law have to be applied and construed consistently with internationally recognized human rights Applicable law and principals

10 Jurisdiction i. ratione materiae ii.ratione loci iii.ratione temporis Triggering mechanisms Complementarity Pre-Trial Chambers Victims Main procedurale features of the ICC

11 The crime of Genocide Crimes against Humanity War Crimes [The crime of Aggression ] Jurisdiction ratione materiae

12 The person accused of the crime is a national of a State party, or The State of which the accused is a national accepts ICC jurisdiction Jurisdiction ratione personae

13 The conduct occurred on the territory of a State party, or The State where the conduct occurred accepts ICC jurisdiction Jurisdiction ratione loci

14 No territorial or personal link is necessary when the situation is referred by the UN Security Council acting under Chapter VII of the Charter of the United Nations Jurisdiction

15 The Court has jurisdiction only over crimes committed after 1 st July 2002 Jurisdiction ratione temporis

16 Referral by a State Party Referral by the Security Council Prosecutor acting motu proprio, subject to authorization by the PTC Triggering mechanisms of ICC jurisdiction

17 Rules governing the relationship between the Court and national jurisdictions Primacy recognized in principle to national jurisdictions, unless –national action is lacking, or –the relevant State is unwilling or unable genuinely to carry out national proceedings Complementarity

18 Reconcile the States’ persisting duty to exercise criminal jurisdiction over international crimes with the establishment of a permanent court having jurisdiction over the same crimes Division of labour between national Courts and the ICC Fundamental objective: “to put an end to impunity” for crimes of concern to the international community as a whole and “thus … contribute” to their prevention (Statute, Preamble) Function of complementarity

19 Filter –Only solid and grave cases should go to trial; art. 15 Safeguard –Of the rights of the suspect, the defense and the victims. Principle of fair trial. Impulse –Confirm (or not) the charges against the accused and thus mark the transition from pre-trial to trial proceedings with all preliminary questions solved Role of Pre-Trial Chambers

20 Irrelevance of official capacity Individual criminal responsibility Command responsibility Superior orders and prescriptions of law Substantive features concerning criminal responsibility

21 At the International Criminal Court the term Victims is somehow coincident with the term Minorities The victims

22 The ICC is the first and only international criminal Tribunal foreseeing: Victims participation Victims reparation Victims Trust Fund (Victims protection) The victims

23 ICC offices dealing with victims  VPRS – Victim Participation and Reparation Section (support in the field)  VWU – Victims and Witnesses Unit (protection, logistic, psychological support)  OPCV – Office of the Public Counsel of Victims (legal support)  Trust Fund – (dealing with reparation) The victims

24 Genocide Acts committed “with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such” Therefore, to be part of a minority group is a constitutive element of the crime of genocide The victims as minorities

25 Crimes against humanity Acts committed “as part of a widespread or systematic attack directed against any civilian population…” In particular the crime of persecution committed “against any identifiable group or collectivity on political, racial, national, ethnical, cultural, religious, gender…or other grounds that are universally recognized as impermissible under international law…” The victims as minorities

26 Victims as natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court. Victims as organizations and institutions that have sustained direct harm to any of their property witch is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes. The victims - definition

27 1.the victim as a natural person 2.the victim must have suffered harm 3.The origin of the harm must be a crime falling within the jurisdiction of the Court 4.Causal nexus between crime and harm suffered The victims definition

28 General provision in the Statute Where the personal interests of the victims are affected, the Court shall permit their concerns and views to be presented and considered at stages of the proceedings … in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial… The victims participation

29 Participation through legal representatives Attend and participate in the proceedings Participate in hearings Make opening and closing statements Question witnesses, experts, suspects Present evidence The victims participation

30 Victims protection is a responsibility of the Court Measures to protect the safety, physical and psychological well-being, dignity and privacy: 1.Redactions 2.Anonymity 3.Voice distortion 4.Closed session hearings 5.Relocations The victims protection

31 The ICC may make an order Directly against the convicted person Indirectly through the Trust Fund Upon request or on its own motion On an individualized or on a collective basis The victims reparation

32 Forms of reparation Restitution Compensation Rehabilitation The victims reparation

33 Thank you for your attention