- International Criminal Law – Sommersemester 2017

- International Criminal Law – Sommersemester 2017
Prof. Dr. Andreas Zimmermann, LL.M. (Harvard)

Prof. Andreas Zimmermann, LL.M. (Harvard)
University of Potsdam, Germany - member German delegation preparatory Commission and Rome conference Member Permanent Court Arbitration counsel in inter alia ICJ Bosnia v. Serbia (Genocide); Croatia v. Serbia (Genocide); Kosovo advisory opinion; Georgia v. Russia (CERD); Ukraine v. Russia (CERD; ICSFT); counsel Iran – US Claims Tribunal judge ad hoc European Ct. Hum Rights

Part A Introduction Part A Introduction: Notion and relevance of international criminal law in the international legal system

Part A Introduction International criminal law as a cornerstone of modern international law - (traditional) international law as only regulating the relationship between States - human rights: individuals as bearers of individual rights under international law - international criminal law: individuals as bearer of obligations under international law and as being exposed to criminal sanctions under international law

Functions of international criminal law
Part A Introduction Functions of international criminal law retribution deterrence (individual and general) foster international (criminal) law combat threats to international peace and security

Prosecutor v. Kupreskic, 2000
Part A Introduction ICTY (Trial Chamber) Prosecutor v. Kupreskic, 2000 “ (…) in general, retribution and deterrence are the main purposes to be considered when imposing sentences in cases before the International Tribunal. (…) punishment for having violated international humanitarian law is, in light of the serious nature of the crimes committed, a relevant and important consideration. As to the latter, the purpose is to deter the specific accused as well as others (…). worldwide from committing crimes in similar circumstances against international humanitarian law (…) .

Prosecutor v. Kupreskic, 2000
Part A Introduction ICTY (Trial Chamber) Prosecutor v. Kupreskic, 2000 “(...) another relevant sentencing purpose is to show the people (…) of the world (…) that there is no impunity for these types of crimes (…) in order to strengthen the resolve of all involved not to allow crimes against international humanitarian law to be committed as well as to create trust in and respect for the developing system of international criminal justice. The Trial Chamber also supports the purpose of rehabilitation for persons convicted (…)“

Rome Statute International Criminal Court
Part A Introduction Rome Statute International Criminal Court Preamble (excerpts) The States Parties to this Statute, Recognizing that such grave crimes threaten the peace, security and well-being of the world, (…) Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes, (…)

Rome Statute International Criminal Court
Part A Introduction Rome Statute International Criminal Court Preamble (excerpts) Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court (…) with jurisdiction over the most serious crimes of concern to the international community as a whole, (…) Resolved to guarantee lasting respect for and the enforcement of international justice (…)

Historical development of international criminal law
I. Historical development Part B Historical development of international criminal law 10 10

I. Historical development
The Hague Convention respecting the Laws and Customs of War on Land (1907) Art. 3 A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. 11 11

Treaty of Versailles I. Historical development Art. 227
The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan.

The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies. The German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office or employment which they held under the German authorities.

Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power. Persons guilty of criminal acts against the nationals of more than one of the Allied and Associated Powers will be brought before military tribunals composed of members of the military tribunals of the Powers concerned. In every case the accused will be entitled to name his own counsel.

The Leipzig War Crimes Trials
I. Historical development The Leipzig War Crimes Trials Law on Prosecution of War Crimes and Offenses German Reichsgericht the responsible forum for prosecution of crimes committed by Germans during the war Few results: Only 6 convictions Only had an indirect impact on the development of international law, since the basis of the trials was German criminal law

[Treaty of Sèvres] I. Historical development Art. 320
The Turkish Government undertakes to hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on August 1, 1914. The Allied Powers reserve to themselves the right to designate the tribunal which shall try the persons so accused, and the Turkish Government undertakes to recognise such tribunal.

[Treaty of Sèvres] I. Historical development Art. 320
In the event of the League of Nations having created in sufficient time a tribunal competent to deal with the said massacres, the Allied Powers reserve to themselves the right to bring the accused persons mentioned above before such tribunal, and the Turkish Government undertakes equally to recognise such tribunal. (...)

Work of the League of Nations
I. Historical development Work of the League of Nations 1920: an Advisory Committee of Jurists considered the establishment of a Court of International Justice as premature 1937: adoption of the Convention for the Prevention and Punishment of Terrorism Annex of the Convention provided for the creation of an international criminal tribunal Draft Convention of the United Nations War Crimes Commission mainly based on 1937 League of Nations treaty

I. Historical development Work of the League of Nations Convention for the Prevention and Punishment of Terrorism, ; Annex, Convention for the Creation of an international criminal court Art. 1 An International Criminal Court for the trial, as hereinafter provided, of persons accused of an offence dealt with in the Convention for the Prevention and Punishment of Terrorism is hereby established.

I. Historical development Work of the League of Nations Convention for the Prevention and Punishment of Terrorism, ; Annex, Convention for the Creation of an international criminal court Art. 2 1. In the cases referred to in Articles 2, 3, 9 and 10 of the Convention for the Prevention and Punishment of Terrorism, each Contracting Party to the present Convention shall be entitled, instead of prosecuting before his own courts, to commit the accused for trial to the Court.

I. Historical development Work of the League of Nations Convention for the Prevention and Punishment of Terrorism, ; Annex, Convention for the Creation of an international criminal court Art. 2 2. A High Contracting Party shall further, in cases where he is able to grant extradition in accordance with Article 8 of the said Convention, be entitled to commit the accused for trial to the Court if the State demanding extradition is also a Party to the present Convention.

International Military Tribunal (Nuremberg Charta) and International Military Tribunal for the Far East (Tokio Charta) Art. 6 IMT-Statute (...) The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing;

International Military Tribunal (Nuremberg Charta) and International Military Tribunal for the Far East (Tokio Charta) Art. 6 IMT-Statute (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;

International Military Tribunal (Nuremberg Charta) and International Military Tribunal for the Far East (Tokio Charta) Art. 6 IMT-Statute (c) Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.

IMT Nuremberg, Judgment of 1 October 1946
I. Historical development Nuremberg International Military Tribunal and the Concept of Universal Jurisdiction IMT Nuremberg, Judgment of 1 October 1946 “The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law.”

Adopted by the International Law Commission in 1950
I. Historical development Nuremberg Principles Adopted by the International Law Commission in 1950 1. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. 2. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. 3. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Adopted by the International Law Commission in 1950
I. Historical development Nuremberg Principles Adopted by the International Law Commission in 1950 4. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. (...) 6. The crimes hereinafter set out are punishable as crimes under international law: a) Crimes against peace b) War crimes c) Crimes against humanity

Genocide Convention 1948 I. Historical development Art. II
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Genocide Convention 1948 I. Historical development Art. VI
Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction territory of which the act was committed.

Geneva Conventions 1949 I. Historical development
Art. 130 GC III (respectively Art. 50 GC I, Art. 51 GC II, Art GC IV) Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or willfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

Common Art. 3 Sec. 1 GC In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

Common Art. 3 Sec. 1 GC (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

Common Art. 3 Sec. 1 GC (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

1973 Convention against Apartheid
I. Historical development 1973 Convention against Apartheid Art. II For the purpose of the present Convention, the term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:

I. Historical development 1973 Convention against Apartheid Art. II (a) Denial to a member or members of a racial group or groups of the right to life and liberty of person: (i) By murder of members of a racial group or groups; (ii) By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment; (iii) By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;

I. Historical development 1973 Convention against Apartheid Art. II (b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;

I. Historical development 1973 Convention against Apartheid Art. II (c) Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;

I. Historical development 1973 Convention against Apartheid Art. II d) Any measures including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof; (e) Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour; (f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.

I. Historical development 1973 Convention against Apartheid Art. V Persons charged with the acts enumerated in article II of the present Convention may be tried by a competent tribunal of any State Party to the Convention which may acquire jurisdiction over the person of the accused or by an international penal tribunal having jurisdiction with respect to those States Parties which shall have accepted its jurisdiction.

Geneva Conventions 1977 Add.Prot. I and II
I. Historical development Geneva Conventions 1977 Add.Prot. I and II AP I inter alia extended the list of grave breaches, Arts. 11 (4) and 85 AP I in international armed conflicts AP II extented the guarantees of common Art. 3 GK i- IV in non-international armed conflicts

Threshold clauses AP II Art. 1 1. This Protocol (…) shall apply (…) which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 41

Threshold clauses AP II Art. 1 2. This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. 42

Creation of ad hoc tribunals
I. Historical development Creation of ad hoc tribunals S/RES/827 (1993), 25. May 1993 regarding Yugoslavia (...) Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of "ethnic cleansing", including for the acquisition and the holding of territory, Determining that this situation continues to constitute a threat to international peace and security,

I. Historical development Creation of ad hoc tribunals S/RES/827 (1993), 25. May 1993 regarding Yugoslavia Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace, (...)

I. Historical development Creation of ad hoc tribunals S/RES/827 (1993), 25. May 1993 regarding Yugoslavia Acting under Chapter VII of the Charter of the United Nations, (…) 2. Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace (…)”

I. Historical development Creation of ad hoc tribunals S/RES/827 (1993), 25. May 1993 regarding Yugoslavia 4. Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute;

International Criminal Tribunal for the Former Yugoslavia (ICTY)
I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY)

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 2 Grave breaches of the Geneva Conventions of 1949 The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 2 (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) wilfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;.

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 2 (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages.

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 3 Violations of the laws or customs of war The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 3 (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property.

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 91. Article 3 thus confers on the International Tribunal jurisdiction over any serious offence against international humanitarian law not covered by Article 2, 4 or 5. Article 3 is a fundamental provision laying down that any "serious violation of international humanitarian law" must be prosecuted by the International Tribunal. In other words, Article 3 functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. Article 3 aims to make such jurisdiction watertight and inescapable.

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 92. This construction of Article 3 is also corroborated by the object and purpose of the provision. When it decided to establish the International Tribunal, the Security Council did so to put a stop to all serious violations of international humanitarian law occurring in the former Yugoslavia and not only special classes of them, namely "grave breaches" of the Geneva Conventions or violations of the "Hague law." Thus, if correctly interpreted, Article 3 fully realizes the primary purpose of the establishment of the International Tribunal, that is, not to leave unpunished any person guilty of any such serious violation, whatever the context within which it may have been committed.

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 4 Genocide 1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 4 Genocide 2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 4 Genocide 3. The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide.

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 5 Crimes against humanity The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement;

I. Historical development International Criminal Tribunal for the Former Yugoslavia (ICTY) Article 5 Crimes against humanity (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts.

International Criminal Tribunal for Rwanda (ICTR)
I. Historical development International Criminal Tribunal for Rwanda (ICTR)

I. Historical development International Criminal Tribunal for Rwanda (ICTR) Article 3 Crimes against humanity The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: a) Murder; b) Extermination;

I. Historical development International Criminal Tribunal for Rwanda (ICTR) Article 3 Crimes against humanity c) Enslavement; d) Deportation; e) Imprisonment; f) Torture; g) Rape; h) Persecutions on political, racial and religious grounds; i) Other inhumane acts.

I. Historical development International Criminal Tribunal for Rwanda (ICTR) Article 4 The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June These violations shall include, but shall not be limited to: a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal Punishment; b) Collective punishments;

I. Historical development International Criminal Tribunal for Rwanda (ICTR) Article 4 c) Taking of hostages; d) Acts of terrorism; e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; f) Pillage; g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples; h) Threats to commit any of the foregoing acts.

Creation of the International Criminal Court (ICC)
I. Historical development Creation of the International Criminal Court (ICC)

Creation of the International Criminal Court (ICC)
I. Historical development Creation of the International Criminal Court (ICC) 1994 General Assembly appointed ad hoc committee 1995 ad hoc committee submitted a report in which, for the first time, the provisions on the creation and jurisdiction of the international criminal court and the substantive law were merged Preparatory committee was created by General Assembly to draft texts for a planned diplomatic conference Rome Conference from 16 June to 17 July 1998 On 17 July 1998, the Rome Statute of the International Criminal Court was adopted Statute went into effect on 1 July 2002

Main facts about the International Criminal Court (ICC)
I. Historical development Main facts about the International Criminal Court (ICC) Signatories: currently 139 Parties: currently 122 Review Conference of the Rome Statute in Kampala ( ) Referrals by the Security Council so far: Darfur (Sudan) Libya

Contracting parties of the Rome Statute (green)

Structure of the Statute of the International Criminal Court (ICC)
I. Historical development Structure of the Statute of the International Criminal Court (ICC) The Creation of the International Criminal Court (Part 1) Crimes over which the Court has jurisdiction (Part 2) General Principles of criminal law (Part 3) Constitution, administration and financing of the ICC (Part 4, 11, 12) Procedure before the Court and co-operation (Part 5-10)

Excursus: The creation of the Special Panels in East Timor
I. Historical development Excursus: The creation of the Special Panels in East Timor

Excursus: The creation of the Special Panels in East Timor
I. Historical development Excursus: The creation of the Special Panels in East Timor Hybrid international-East Timorese panel created in 2000 by the United Nations Transitional Administration in East Timor Jurisdiction over the following serious criminal offences: Genocide War crimes Crimes against humanity Murder Sexual Offences and Torture The Special Panels suffered from a number of problems and the trials fell short of international standards

Special Court for Sierra Leone (SCSL)
I. Historical development Special Court for Sierra Leone (SCSL)

I. Historical development Special Court for Sierra Leone (SCSL) Agreement between the UN and the Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone (...) WHEREAS the Secretary-General of the United Nations (hereinafter "the Secretary-General") and the Government of Sierra Leone (hereinafter "the Government") have held such negotiations for the establishment of a Special Court for Sierra Leone (hereinafter "the Special Court"); NOW THEREFORE the United Nations and the Government of Sierra Leone have agreed as follows:

I. Historical development Special Court for Sierra Leone (SCSL) Article 1 Establishment of the Special Court 1. There is hereby established a Special Court for Sierra Leone to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996. 2. The Special Court shall function in accordance with the Statute of the Special Court for Sierra Leone. The Statute is annexed to this Agreement and forms an integral part thereof.

I. Historical development Special Court for Sierra Leone (SCSL) Statute of the Special Court for Sierra Leone Article 1 Competence of the Special Court 1. The Special Court shall, except as provided in subparagraph (2), have the power to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.

I. Historical development Special Court for Sierra Leone (SCSL) SCSL, Prosecutor v. Santigie Borbor Kanu, Decision of the Appeals Chamber on motion challenging jurisdiction and raising objections based on abuse of process “(…) The Special Court is vested with its own specific jurisdiction and competence by the constitutive documents establishing it. As a treaty based institution it operates outside the legal system of Sierra Leone and does not derive its jurisdiction from or within that system. “

I. Historical development Special Court for Sierra Leone (SCSL) SCSL, Prosecutor v. Morris Kallon, Sam Hinga Norman and Brima Bazzy Kamara, Decision of the Appeals Chamber on constitutionality and lack of jurisdiction “(…) unlike the ICTY and ICTR which were established by resolution of the Security Council, the Special Court, “is established by an agreement between the United Nations and the Government of Sierra Leone and is therefore a treaty-hased sui generis court of mixed jurisdiction and composition. (…)”

Extraordinary Chambers in the Courts of Cambodia
I. Historical development Extraordinary Chambers in the Courts of Cambodia

I. Historical development Extraordinary Chambers in the Courts of Cambodia Article 1 Agreement between UN and the Royal Government of Cambodia The purpose of the present Agreement is to regulate the cooperation between the United Nations and the Royal Government of Cambodia in bringing to trial senior leaders of Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia, that were committed during the period from 17 April 1975 to 6 January 1979.

I. Historical development Extraordinary Chambers in the Courts of Cambodia Article 2 Agreement between UN and the Royal Government of Cambodia “(…) the Extraordinary Chambers have subject matter jurisdiction consistent with that set forth in “the Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea" (hereinafter: "the Law on the Establishment of the Extraordinary Chambers"), as adopted and amended by the Cambodian Legislature under the Constitution of Cambodia. The (…) Extraordinary Chambers have personal jurisdiction over senior leaders of Democratic Kampuchea and those who were most responsible for the crimes referred to in Article 1 of the Agreement.”

I. Historical development Extraordinary Chambers in the Courts of Cambodia Article 4 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed the crimes of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, and which were committed during the period from 17 April 1975 to 6 January (...)

I. Historical development Extraordinary Chambers in the Courts of Cambodia Article 5 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed crimes against humanity during the period 17 April 1975 to 6 January 1979. Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial, and religious grounds; other inhumane acts.

Special Court for Lebanon (STL)
I. Historical development Special Court for Lebanon (STL)

Special Court for Lebanon (STL)
I. Historical development Special Court for Lebanon (STL) UN Doc. S/Res/1757 (2007), 30 May 2007 The Security Council, (...) Recalling also that the Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon was signed by the Government of Lebanon and the United Nations respectively on 23 January and 6 February 2007 (…) Acting under Chapter VII (…)

Special Court for Lebanon (STL) Art. 2 Applicable criminal law
I. Historical development Special Court for Lebanon (STL) Art. 2 Applicable criminal law The following shall be applicable to the prosecution and punishment of the crimes referred to in article 1, subject to the provisions of this Statute: (a) The provisions of the Lebanese Criminal Code relating to the prosecution and punishment of acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences, including the rules regarding the material elements of a crime, criminal participation and conspiracy; and (b) Articles 6 and 7 of the Lebanese law of 11 January 1958 on “Increasing the penalties for sedition, civil war and interfaith struggle”.

Jurisdiction of the ICC
II. International Criminal Court Jurisdiction of the ICC

Overview: Jurisdiction of the ICC
II. International Criminal Court Overview: Jurisdiction of the ICC mode of acceptance of jurisdiction, Art. 12 by becoming a party to the Statute ad hoc acceptance, Art.12 para.3 role of the Security Council referrals deferrals trigger mechanisms self-referrals propio motu

II. International Criminal Court Jurisdiction of the ICC The principle of automatic acceptance of jurisdiction Art. 12 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.

Jurisdiction of the ICC Ad hoc acceptance under Art. 12, para. 3
II. International Criminal Court Jurisdiction of the ICC Ad hoc acceptance under Art. 12, para. 3 Art. 12 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.

II. International Criminal Court Jurisdiction of the ICC Ad hoc acceptance: Côte d’Ivoire, ICC Press release 15 February 2005 The Registrar has confirmed that the Republic of Côte d’Ivoire has accepted the exercise of jurisdiction by the International Criminal Court with respect to crimes committed on its territory since the events of 19 September 2002. The declaration was sent in accordance with Article 12, paragraph 3 of the Rome Statute of the Court. (…)

Jurisdiction of the ICC Ad hoc acceptance: Palestine
II. International Criminal Court Jurisdiction of the ICC Ad hoc acceptance: Palestine Declaration recognizing the Jurisdiction of the International Criminal Court In conformity with Article 12, paragraph 3 of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002. As a consequence, the Government of Palestine will cooperate with the Court without delay or exception, in conformity with Chapter IX of the Statute. This declaration, made for an indeterminate duration, will enter into force upon its signature. (…) Signed in The Hague, the Netherlands, 21 January 2009

II. International Criminal Court Jurisdiction of the ICC Ad hoc acceptance: Decision of the ICC Prosecutor on the situation in Palestine, 3 April 2012 5. The issue that arises, therefore, is who defines what is a “State” for the purpose of article 12 of the Statute? In accordance with article 125, the Rome Statute is open to accession by “all States”, and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary-General of the United Nations. In instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary-General to follow or seek the General Assembly’s directives on the matter. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a “State”.

II. International Criminal Court Jurisdiction of the ICC Ad hoc acceptance: ICC on the Situation in Palestine Thus, competence for determining the term “State” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article112(2)(g) of the Statute. (…)

Ad hoc acceptance: ICC on the Situation in Palestine
II. International Criminal Court Ad hoc acceptance: ICC on the Situation in Palestine 7. The Office has been informed that Palestine has been recognised as a State in bilateral relations by more than 130 governments and by certain international organisations, including United Nation bodies. However, the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non-member State”. The Office understands that on 23 September 2011, Palestine submitted an application for admission to the United Nations as a Member State in accordance with article 4 (2) of the United Nations Charter, but the Security Council has not yet made a recommendation in this regard. While this process has no direct link with the declaration lodged by Palestine, it informs the current legal status of Palestine for the interpretation and application of article 12.

Jurisdiction of the ICC Jurisdiction loci/personae
II. International Criminal Court Jurisdiction of the ICC Jurisdiction loci/personae Art. 12 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.

Jurisdiction of the ICC Jurisdiction loci/personae
II. International Criminal Court Jurisdiction of the ICC Jurisdiction loci/personae Art. 124 Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1.

II. International Criminal Court Jurisdiction of the ICC Declaration of Colombia regarding Art. 124, 5 August 2002 Availing itself of the option provided in article 124 of the Statute and subject to the conditions established therein, the Government of Colombia declares that it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by Colombian nationals or on Colombian territory.

II. International Criminal Court
ICC and third States

ICC and third States II. International Criminal Court
especially the USA was a constant critic of the ICC the United States used to generally oppose that the Court exercises jurisdiction over crimes committed by nationals of non-party States on the territory of States Parties

ICC and the United States
II. International Criminal Court ICC and the United States In a communication received on 6 May 2002, the Government of the United States of America informed the Secretary-General of the following: "This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.”

II. International Criminal Court ICC and the United States SEC PROHIBITION ON COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT. b. PROHIBITION ON RESPONDING TO REQUESTS FOR COOPERATION- „(…) no United States Court, and no agency or entity of any State or local government, including any court, may cooperate with the International Criminal Court in response to a request for cooperation submitted by the International Criminal Court pursuant to the Rome Statute. „

II. International Criminal Court ICC and the United States SEC PROHIBITION ON COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT. d. PROHIBITION ON EXTRADITION TO THE INTERNATIONAL CRIMINAL COURT- „(…) no agency or entity of the United States Government or of any State or local government may extradite any person from the United States to the International Criminal Court, nor support the transfer of any United States citizen or permanent resident alien to the International Criminal Court. „

II. International Criminal Court ICC and the United States SEC PROHIBITION ON COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT. h. PROHIBITION ON INVESTIGATIVE ACTIVITIES OF AGENTS- No agent of the International Criminal Court may conduct, in the United States or any territory subject to the jurisdiction of the United States, any investigative activity relating to a preliminary inquiry, investigation, prosecution, or other proceeding at the International Criminal Court.

II. International Criminal Court ICC and the United States Agreement between the Government of the Kingdom of Lesotho and the Government of the United States of America Regarding the Surrender of Persons to the International Criminal Court 2. Persons of the United States of America present in the territory of the Kingdom of Lesotho shall not, absent the express consent of the Government of the United States of America, (a) be surrendered or transferred by any means to the International Criminal Court for any purpose, or (b) be surrendered or transferred by any means to any other entity or third country, or expelled to a third country, for the purpose of surrender to or transfer to the International Criminal Court.

II. International Criminal Court ICC and the United States Agreement between the Government of the Kingdom of Lesotho and the Government of the United States of America Regarding the Surrender of Persons to the International Criminal Court 3. When the Government of the Kingdom of Lesotho extradites, surrenders or otherwise transfers a person of the United States of America to a third country, the Government of the Kingdom of Lesotho will not agree to the surrender or transfer of that person to the international Criminal Court by a third country, absent the express consent of the Government of the United States of America.

II. International Criminal Court Jurisdiction of the ICC Art. 98 Cooperation with respect to waiver of immunity and consent to surrender 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

ICC and the Security Council
II. International Criminal Court Jurisdiction: ICC and the Security Council

Authority of International Tribunals to review their establishment by the Security Council ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 18. This power, known as the principle of "Kompetenz-Kompetenz" in German or "la compétence de la compétence" in French, is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its "jurisdiction to determine its own jurisdiction." It is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents of those tribunals, although this is often done. (...)

Authority of International Tribunals to review their establishment by the Security Council ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction This is not merely a power in the hands of the tribunal. In international law, where there is no integrated judicial system and where every judicial or arbitral organ needs a specific constitutive instrument defining its jurisdiction, "the first obligation of the Court - as of any other judicial body - is to ascertain its own competence.“.

Authority of International Tribunals to review their establishment by the Security Council ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction 19. It is true that this power can be limited by an express provision in the arbitration agreement or in the constitutive instruments of standing tribunals, though the latter possibility is controversial, particularly where the limitation risks undermining the judicial character or the independence of the Tribunal. But it is absolutely clear that such a limitation, to the extent to which it is admissible, cannot be inferred without an express provision allowing the waiver or the shrinking of such a well-entrenched principle of general international law.

Authority of International Tribunals to review their establishment by the Security Council ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction As no such limitative text appears in the Statute of the International Tribunal, the International Tribunal can and indeed has to exercise its "compétence de la compétence" and examine the jurisdictional plea of the Defence, in order to ascertain its jurisdiction to hear the case on the merits.

Authority of International Tribunals to review their establishment by the Security Council STL, Prosecutor v. Salim Jamil Ayyash et al., Decision on the Defence Appeals Against the Trial Chamber‘s „Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal“ “(…) there is nothing in the Charter that gives any of the other organs of the United Nations the power to review the Security Council's actions. Attempts to introduce such powers of review for the ICJ - the principal judicial organ of the United Nations - at the time the United Nations Charter was drafted were defeated. Indeed, the ICJ has categorically stated that it "does not possess powers of judicial review or appeal in respect of decisions taken by the United Nations organs concerned.”

Authority of International Tribunals to review their establishment by the Security Council STL, Prosecutor v. Salim Jamil Ayyash et al., Decision on the Defence Appeals Against the Trial Chamber‘s „Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal“ While the ICJ may pronounce itself incidentally on the legality of Security Council decisions in the course of proceedings before it, the extent of the Court's power to do so and its practical effects are unclear. In any event, this Tribunal's authority as an independent institution created by the Security Council outside of the United Nations system must necessarily be much more limited than that of the ICJ. (…)

Security Council referrals
II. International Criminal Court Security Council referrals

Security Council referrals
II. International Criminal Court Security Council referrals Art. 13 lit. b Rome Statute Art. 13 Rome Statute 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: (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

Security Council referrals Art. 13 lit. b Rome Statute
II. International Criminal Court Security Council referrals Art. 13 lit. b Rome Statute UN Security Council resolution 1593 (2005) (Darfur) Taking note of the existence of agreement referred to in Article 98-2 of the Rome Statute, Determining that the situation in Sudan continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Decides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court;

Security Council referrals UN Security Council resolution 1593 (2005)
II. International Criminal Court Security Council referrals Art. 13 lit. b Rome Statute UN Security Council resolution 1593 (2005) 2. Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;

II. International Criminal Court Security Council referrals Art. 13 lit. b Rome Statute UN Security Council resolution 1593 (2005) 6. Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State;

II. International Criminal Court Security Council referrals Art. 13 lit. b Rome Statute UN Security Council resolution 1593 (2005) 7. Recognizes that none of the expenses incurred in connection with the referral including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

II. International Criminal Court Security Council referrals Art. 13 lit. b Rome Statute UN Security Council resolution 1970 (2011) 4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court; 5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

II. International Criminal Court Security Council referrals Art. 13 lit. b Rome Statute UN Security Council resolution 1970 (2011) 6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

II. International Criminal Court Security Council referrals Art. 13 lit. b Rome Statute UN Security Council resolution 1970 (2011) 8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

Security Council deferrals
II. International Criminal Court Security Council deferrals

Trigger mechanism: Contracting States
II. International Criminal Court Trigger mechanism: Contracting States Art. 16 Rome Statute Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

Security Council deferrals UN Security Council resolution 1422 (2002)
II. International Criminal Court Security Council deferrals Art. 16 Rome Statute UN Security Council resolution 1422 (2002) Taking note of the entry into force on 1 July 2002, of the Statute of the International Criminal Court (ICC), done at Rome 17 July 1998 (the Rome Statute), Emphasizing the importance to international peace and security of United Nations operations, (...) Determining that operations established or authorized by the United Nations Security Council are deployed to maintain or restore international peace and security, Determining further that it is in the interests of international peace and security to facilitate Member States’ ability to contribute to operations established or authorized by the United Nations Security Council,

Security Council deferrals Art. 16 Rome Statute
II. International Criminal Court Security Council deferrals Art. 16 Rome Statute UN Security Council resolution 1422 (2002) Acting under Chapter VII of the Charter of the United Nations, 1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise; 2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12-month periods for as long as may be necessary;

Trigger mechanism: Contracting parties
II. International Criminal Court Trigger mechanism: Contracting parties

II. International Criminal Court Trigger mechanism: Contracting States Art. 14 Rome Statute Referral of a situation by a State Party 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.

II. International Criminal Court Trigger mechanism: Contracting States Self Referrals Uganda Congo Central African Republic Mali

II. International Criminal Court Trigger mechanism: Contracting States Press Release of the ICC concerning the referral of the situation in the Democratic Republic of Congo The Prosecutor of the International Criminal Court, Luis Moreno Ocampo, has received a letter signed by the President of the Democratic Republic of Congo (DRC) referring to him the situation of crimes within the jurisdiction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute, on 1 July 2002. By means of this letter, the DRC asked the Prosecutor to investigate in order to determine if one or more persons should be charged with such crimes, and the authorities committed to cooperate with the International Criminal Court.

II. International Criminal Court Trigger mechanism: Contracting States Referral of the „Union of Comoros“ with respect to the 31 May 2010 Israeli raid on the humanitarian aid flotilla bound for Gaza Strip 1. This referral along with its particulars are submitted to the Madame Prosecutor of the International Criminal Court (hereinafter "ICC") by Union of the Comoros (hereinafter "Comoros"), a State Party to the ICC as well as the registered State of MV Mavi Marmara vessel, -one of the passenger vessels of the humanitarian aid flotilla bound for Gaza on 31 May 2010, in which nine (9) victims were killed on board and more than dozens were seriously injured, as a consequence of the attacks of the Israel Defence Forces (hereinafter the "IDF"), in international waters. (...)

II. International Criminal Court Trigger mechanism: Contracting States Referral of the „Union of Comoros“ with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip 3. We, acting on behalf of the Comoros state, are of the view that the crimes that have been committed on the humanitarian aid flotilla, (Gaza Freedom Flotilla), specifically on board the MV Mavi Marmara vessel, falls within the jurisdiction of the Court. The majority of the crimes have been committed within the territorial jurisdiction of the Comoros, namely on board the Mavi Marmara vessel.

II. International Criminal Court Trigger mechanism: Contracting States Referral of the „Union of Comoros“ with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip 4. We therefore respectfully request the Prosecutor of the ICC, to initiate an investigation pursuant to Articles 13 (a) and (14) of the Rome Statute into War Crimes and Crimes Against Humanity, arising from IDF's attack on the humanitarian aid flotilla on the 31st May In light of the respectful submission of Comoros and for reasons delineated below, the ICC has jurisdiction to consider this matter under Article 12(2)(a) of the Rome Statute.

Trigger mechanism: Proprio motu
II. International Criminal Court Trigger mechanism: Proprio motu

Trigger mechanism: „Proprio motu“
II. International Criminal Court Trigger mechanism: „Proprio motu“ Art. 15 Rome Statute Prosecutor The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

II. International Criminal Court Trigger mechanism: „Proprio motu“ Art. 15 Rome Statute Prosecutor 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

II. International Criminal Court Trigger mechanism: „Proprio motu“ ICC, Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010 20. The Chamber notes that according to article 15(2) and (3) of the Statute, the Prosecutor, after having analyzed the seriousness of the information received from different sources, may conclude that there is "a reasonable basis to proceed with an investigation". In reaching this conclusion, rule 48 of the Rules of Procedure and Evidence (the "Rules") dictates that the Prosecutor "shall consider the factors set out in article 53, paragraph 1(a) to (c)".

II. International Criminal Court Trigger mechanism: „Proprio motu“ ICC, Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya On the basis of a finding by the Prosecutor that there is "a reasonable basis to proceed with an investigation", the Prosecutor "shall submit" to the Chamber a request for authorization of the investigation. The Chamber, in turn, is mandated to review the conclusion of the Prosecutor by examining the available information, including his request, the supporting material as well as the victims' representations (collectively, the "available information"). If, upon examination, the Chamber considers that the "reasonable basis to proceed" standard is met, it shall authorize the commencement of the investigation. (...)

II. International Criminal Court Trigger mechanism: „Proprio motu“ ICC, Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya 27. As for the "reasonable basis to believe" test referred to in article 53(l)(a) of the Statute, the Chamber considers that this is the lowest evidentiary standard provided for in the Statute. This is logical given that the nature of this early stage of the proceedings is confined to a preliminary examination. Thus, the information available to the Prosecutor is neither expected to be "comprehensive" nor "conclusive", if compared to evidence gathered during the investigation.

II. International Criminal Court Trigger mechanism: „Proprio motu“ ICC, Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya This conclusion also results from the fact that, at this early stage, the Prosecutor has limited powers, which cannot be compared to those provided in article 54 of the Statute at the investigative stage. (...) 35. Accordingly, in evaluating the available information provided by the Prosecutor, the Chamber must be satisfied that there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court "has been or is being committed". A finding on whether there is a sensible justification should be made bearing in mind the specific purpose underlying this procedure.

Principle of Complementarity
II. International Criminal Court Principle of Complementarity

II. International Criminal Court Principle of Complementarity Art. 17 Rome Statute Issues of admissibility 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) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

II. International Criminal Court Principle of Complementarity Art. 17 Rome Statute Issues of admissibility (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.

II. International Criminal Court Principle of Complementarity ICC, The Appeals Chamber, The Prosecurtor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali 40. The Admissibility Challenge that gave rise to the present appeal was brought under article 19 (2) (b) of the Statute in relation to a case in which a summons to appear has been issued against specific suspects for specific conduct. Accordingly, as regards the present appeal, the 'case' in terms of article 17 (1) (a) is the case as defined in the summons. This case is only inadmissible before the Court if the same suspects are being investigated by Kenya for substantially the same conduct.

II. International Criminal Court Principle of Complementarity ICC, The Appeals Chamber, The Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali The words 'is being investigated', in this context, signify the taking of steps directed at ascertaining whether those suspects are responsible for that conduct, for instance by interviewing witnesses or suspects, collecting documentary evidence, or carrying out forensic analyses. The mere preparedness to take such steps or the investigation of other suspects is not sufficient. This is because unless investigative steps are actually taken in relation to the suspects who are the subject of the proceedings before the Court, it cannot be said that the same case is (currently) under investigation by the Court and by a national jurisdiction, and there is therefore no conflict of jurisdictions.

II. International Criminal Court Principle of Complementarity ICC, The Appeals Chamber, The Prosecurtor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali It should be underlined, however, that determining the existence of an investigation must be distinguished from assessing whether the State is "unwilling or unable genuinely to carry out the investigation or prosecution", which is the second question to consider when determining the admissibility of a case. For assessing whether the State is indeed investigating, the genuineness of the investigation is not at issue; what is at issue is whether there are investigative steps.

II. International Criminal Court Principle of Complementarity ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi 52. The Chamber is guided by the jurisprudence of the Appeals Chamber that "a State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible“. The Chamber observes that the inadmissibility of the case is premised on both limbs of article 17(l)(a) of the Statute and the challenging State is required to substantiate all aspects of its allegations to the extent required by the concrete circumstances of the case. The principle of complementarity expresses a preference for national investigations and prosecutions but does not relieve a State, in general, from substantiating all requirements set forth by the law when seeking to successfully challenge the admissibility of a case.

II. International Criminal Court Principle of Complementarity ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi 134. On the basis of the materials placed before it, the Chamber is not persuaded that the evidence presented sufficiently demonstrates that Libya is investigating the same case as that before the Court. As found above, the Chamber is satisfied that some items of evidence show that a number of investigative steps have been taken by Libya with respect to certain discrete aspects that arguably relate to the conduct of Mr Gaddafi as alleged in the proceedings before the Court. These aspects include instances of mobilisation of militias and equipment by air, the assembly and the mobilization of military forces at the Abraq Airport, certain events in Benghazi on 17 February 2011, and the arrest of journalists and activists against the Gaddafi regime.

II. International Criminal Court Principle of Complementarity ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi 135. Nevertheless, the evidence, taken as a whole, does not allow the Chamber to discern the actual contours of the national case against Mr Gaddafi such that the scope of the domestic investigation could be said to cover the same case as that set out in the Warrant of Arrest issued by the Court. Libya has fallen short of substantiating, by means of evidence of a sufficient degree of specificity and probative value, the submission that the domestic investigation covers the same case that is before the Court.

II. International Criminal Court Principle of Complementarity ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi 215. In light of the above, although the authorities for the administration of justice may exist and function in Libya, a number of legal and factual issues result in the unavailability of the national judicial system for the purpose of the case against Mr Gaddafi. As a consequence, Libya is, in the view of the Chamber, unable to secure the transfer of Mr Gaddafi's custody from his place of detention under the Zintan militia into State authority and there is no concrete evidence that this problem may be resolved in the near future.

II. International Criminal Court Principle of Complementarity ICC, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi Moreover, the Chamber is not persuaded that the Libyan authorities have the capacity to obtain the necessary testimony. Finally, the Chamber has noted a practical impediment to the progress of domestic proceedings against Mr Gaddafi as Libya has not shown whether and how it will overcome the existing difficulties in securing a lawyer for the suspect.

Temporal jurisdiction
II. International Criminal Court Temporal jurisdiction

Jurisdiction of the ICC Temporal Jurisdiction
II. International Criminal Court Jurisdiction of the ICC Temporal Jurisdiction Art. 24 No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.

II. International Criminal Court Jurisdiction of the ICC ICC, Pre-Trial chamber III, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire 10. On 18 April 2003, the Republic of Côte d'Ivoire, which is not a State party to the Statute, lodged a declaration under Article 12(3) of the Statute accepting the jurisdiction of the Court for crimes committed in its territory since the events of 19 September 2002 and, additionally, "for an unspecified period of time” (“Declaration"). This Declaration was signed by Mamadou Bamba, Minister of Foreign Affairs of the Government of former President Laurent Gbagbo. (…)

II. International Criminal Court Jurisdiction of the ICC ICC, Pre-Trial chamber III, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire 15. The Chamber concludes that the Court has jurisdiction over crimes allegedly committed in Côte dTvoire since 19 September 2002, on the basis of the Declaration of acceptance of 18 April 2003 and the letters of December 2010 and May 2011.

Structure of the International Criminal Court
II. International Criminal Court Structure of the International Criminal Court

Structure of the International Criminal Court
II. International Criminal Court Structure of the International Criminal Court Four Organs: Presidency Judicial Divisions Office of the Prosecutor Registry

Issues of cooperation

Surrender of persons to the Court
II. International Criminal Court Cooperation Art. 89 Rome Statute Surrender of persons to the Court 1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

Substantive international criminal law
III. Substantive international criminal law Substantive international criminal law

Core crimes III. Substantive international criminal law
Art. 5 Rome Statute genocide crimes against humanity war crimes [crime of aggression]

III. Substantive international criminal law
Genocide

Genocide III. Substantive international criminal law
Art. 6 Rome Statute For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

ICTY, Prosecutor v. Radislav Krstić, Case No. IT A, Judgment of 19 April 2004 25. The Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group. The Trial Chamber expressly acknowledged this limitation, and eschewed any broader definition. The Chamber stated: “Customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. [A]n enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.”

ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Urteil vom 2 September 1998 701. Hence the question to be addressed is against which group the genocide was allegedly committed. (…) the genocide was committed against the Tutsi group. Article 2(2) of the Statute, like the Genocide Convention, provides that genocide may be committed against a national, ethnical, racial or religious group. In its findings on the law applicable to the crime of genocide supra, the Chamber considered whether the protected groups should be limited to only the four groups specifically mentioned or whether any group, similar to the four groups in terms of its stability and permanence, should also be included.

ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Urteil vom 2 September 1998 702. In the light of the facts brought to its attention during the trial, the Chamber is of the opinion that, in Rwanda in 1994, the Tutsi constituted a group referred to as "ethnic" in official classifications. Thus, the identity cards at the time included a reference to "ubwoko" in Kinyarwanda or "ethnie" (ethnic group) in French, which, depending on the case, referred to the designation Hutu or Tutsi, for example.

ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Urteil vom 2 September 1998 The Chamber further noted that all the Rwandan witnesses who appeared before it invariably answered spontaneously and without hesitation the questions of the Prosecutor regarding their ethnic identity. Accordingly, the Chamber finds that, in any case, at the time of the alleged events, the Tutsi did indeed constitute a stable and permanent group and were identified as such by all.

ICTY, Prosecutor v. Radislav Krstić, Case No. IT A, Urteil vom 19 April 2004 37. The gravity of genocide is reflected in the stringent requirements which must be satisfied before this conviction is imposed. These requirements – the demanding proof of specific intent and the showing that the group was targeted for destruction in its entirety or in substantial part – guard against a danger that convictions for this crime will be imposed lightly. (…) By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide.

ICTY, Prosecutor v. Radislav Krstić, Case No. IT A, Urteil vom 19 April 2004 They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. (…) . The Bosnian Serb forces were aware, when they embarked on this genocidal venture, that the harm they caused would continue to plague the Bosnian Muslims.

ICJ, Case concerning application of the convention on the prevention and punishment of the crime of genocide, 26 February 2007 “The Court recalls first that the essence of the intent is to destroy the protected group, in whole or in part, as such. It is a group which must have particular positive characteristics — national, ethnical, racial or religious — and not the lack of them. The intent must also relate to the group “as such”. That means that the crime requires an intent to destroy a collection of people who have a particular group identity. It is a matter of who those people are, not who they are not.”

ICJ, Case concerning application of the convention on the prevention and punishment of the crime of genocide, 26 February 2007 “(…) the Court observes that it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area. In the words of the ILC, “it is not necessary to intend to achieve the complete annihilation of a group from every corner of the globe” (ibid.). The area of the perpetrator’s activity and control are to be considered. “ 171 171

ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, Second Warrant of Arrest, 12 July 2010 CONSIDERING that that there are also reasonable grounds to believe that in furtherance of the genocidal policy, as part of the GoS's unlawful attack on the above-mentioned part of the civilian population of Darfur and with knowledge of such attack, GoS forces throughout the Darfur region (i) at times, contamined the wells and water pumps of the towns and villages primarily inhabited by members of the Fur, Masalit and Zaghawa groups that they attacked;

ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, Second Warrant of Arrest, 12 July 2010 (ii) subjected hundreds of thousands of civilians belonging primarily to the Fur, Masalit and Zaghawa groups to acts of forcible transfer; and (iii) encouraged members of other tribes, which were allied with the GoS, to resettle in the villages and lands previously mainly inhabited by members of the Fur, Masalit and Zaghawa groups;

ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial Chamber I, Second Warrant of Arrest, 12 July 2010 CONSIDERING therefore that there are reasonable grounds to believe that (…) GoS forces, including the Sudanese Armed Forces and their allied Janjaweed Militia, the Sudanese Police Force, the NISS and the HAC, committed the crimes of genocide by killing, genocide by causing serious bodily or mental harm and genocide by deliberately inflicting conditions of life calculated to bring about physical destruction, within the meaning of article 6 (a), (b) and (c) respectively of the Statute, against part of the Fur, Masalit and Zaghawa ethnic groups;

Crimes against humanity
III. Substantive international criminal law Crimes against humanity

Crimes against humanity Art. 7 Rome Statute (excerpts)
III. Substantive international criminal law Crimes against humanity Art. 7 Rome Statute (excerpts) 1. For the purpose of this Statute, "crime 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: Murder (…) (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

III. Substantive international criminal law Crimes against humanity Art. 7 Rome Statute (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid

III. Substantive international criminal law Crimes against humanity Art. 7 Rome Statute (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 2. For the purpose of paragraph 1: (a) "Attack directed against any civilian population" means 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;

III. Substantive international criminal law Crimes against humanity Art. 7 Rome Statute (f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (…) (h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

III. Substantive international criminal law Crimes against humanity Art. 7 Rome Statute (i) Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

III. Substantive international criminal law Crimes against humanity widespread or systematic: cumulative or alternative? “attack directed against any civilian population” no requirement of armed conflict State or organizational policy

III. Substantive international criminal law Crimes against humanity ICC, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Prosecutor’s Application for Summons, 8 March 2011 22. In order to implement the plan agreed upon, the Prosecutor submitted that Ruto, Kosgey and Sang established a network of perpetrators belonging to the Kalenjin community. This network was comprised of eminent ODM political representatives, representatives of the media, former members of the Kenyan police and the army, Kalenjin elders as well as local leaders. (…)

III. Substantive international criminal law Crimes against humanity ICC, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Prosecutor’s Application for Summons, 8 March 2011 24. There are also reasonable grounds to believe that the network possessed the means to carry out a widespread or systematic attack against the civilian population, as its members had access to and utilised a considerable amount of capital, guns, crude weapons and manpower. The material presented also provides reasonable grounds to believe that the network identified the criminal activities against the civilian population as its primary purpose, and that it articulated an intention to attack the civilian population.

III. Substantive international criminal law Crimes against humanity ICC, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Prosecutor’s Application for Summons, 8 March 2011 25. In light of the foregoing, the Chamber considers that the network qualifies as an "organization" within the meaning of article 7(2)(a) of the Statute.

III. Substantive international criminal law Crimes against humanity ICC, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Prosecutor’s Application for Summons, Dissenting Opinion by Judge Hans-Peter Kaul 49. I am satisfied that the violence was planned and organised; preparatory steps and measures of an organisational nature were taken to coordinate the attacks. However (…) the mere act of planning and organising violence will not alone determine whether an "organizational policy" exists pursuant to article 7(2)(a) of the Statute.

III. Substantive international criminal law Crimes against humanity ICC, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Prosecutor’s Application for Summons, Dissenting Opinion by Judge Hans-Peter Kaul What is of crucial importance is that the attack directed against the civilian population is attributable to a state-like 'organisation', the intellectual author that established or at least endorsed a policy to commit such an attack. Accordingly, I hold that the planning and coordination of violence (…) alone does not transform an ethnically-based gathering of perpetrators into a state-like 'organisation'.

III. Substantive international criminal law Crimes against humanity ICC, Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Prosecutor’s Application for Summons, Dissenting Opinion by Judge Hans-Peter Kaul In the absence of any evidence proving that the crimes alleged are embedded in an "organizational policy", I continue to hold that the Court has no jurisdiction ratione materiae over the situation in the Republic of Kenya, including the present case.

War crimes

War crimes (selected problems)
III. Substantive international criminal law War crimes (selected problems) Art. 8 Rome Statute 1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention (…) (b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

War crimes III. Substantive international criminal law
Art. 8 Rome Statute (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949 (…) (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

International versus non-international armed conflicts
III. Substantive international criminal law International versus non-international armed conflicts ICTY, Prosecutor v. Dusko Tadic, The Appeals Chamber, 15 July 1999 “Admittedly, the legal solution to the question under discussion might be found in the body of law that is more directly relevant to the question, namely, international humanitarian law. This corpus of rules and principles may indeed contain legal criteria for determining when armed forces fighting in an armed conflict which is prima facie internal may be regarded as acting on behalf of a foreign Power even if they do not formally possess the status of its organs. (…)”

International versus non-international armed conflicts
III. Substantive international criminal law International versus non-international armed conflicts ICTY, Prosecutor v. Dusko Tadic, The Appeals Chamber, 15 July 1999 “(…) In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law. “

Threshold for non-international armed conflicts under customary law
III. Substantive international criminal law Threshold for non-international armed conflicts under customary law ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for for Interlocutory Appeal on Jurisdiction “(…) we find that an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. “

Threshold for non-international armed conflicts under the Rome Statute
III. Substantive international criminal law Threshold for non-international armed conflicts under the Rome Statute Art. 8 para. 2 Rome Statute (d) Paragraph 2 (c) [violations of common Art. 3] applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

III. Substantive international criminal law Threshold for non-international armed conflicts under the Rome Statute Art. 8 para. 2 Rome Statute (f) Paragraph 2 (e) [other serious violations of ihl in non-internat. armed conflict] applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

III. Substantive international criminal law Threshold for non-international armed conflicts under the Rome Statute Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir 4 March 2009 ICC Pre-Trial Chamber I “ (…) article 8(2)(f) of the Statute makes reference to "protracted armed conflict between [...] organized armed groups", and that, in the view of the Chamber, this focuses on the need for the organised armed groups in question to have the ability to plan and carry out military operations for a prolonged period of time. In this regard, the Chamber observes that, to date, control over the territory by the relevant organised armed groups has been a key factor in determining whether they had the ability to carry out military operations for a prolonged period of time.”

Nexus between the act and the armed conflict
III. Substantive international criminal law Nexus between the act and the armed conflict ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction “(…) we hold that the alleged crimes were committed in the context of an armed conflict. (…) Notwithstanding various temporary cease-fire agreements, no general conclusion of peace has brought military operations in the region to a close. “

Nexus between the act and the armed conflict
III. Substantive international criminal law Nexus between the act and the armed conflict ICTY, Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction Even if substantial clashes were not occurring in the Prijedor region at the time and place the crimes allegedly were committed (...) international humanitarian law applies. It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. (…)”

Selected war crimes in international armed conflicts
III. Substantive international criminal law Selected war crimes in international armed conflicts Art. 8 para. 2 b) Rome Statute (…) (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict

III. Substantive international criminal law Selected war crimes in international armed conflicts Art. 8 para. 2 lit. b) Rome Statute (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (…) 200 200

III. Substantive international criminal law Selected war crimes in international armed conflicts Art. 8 para. 2 lit. b) Rome Statute (viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory

III. Substantive international criminal law Selected war crimes in international armed conflicts Elements of crimes re Art. 8 para. 2 lit. b) viii) Rome Statute (excerpts) 1. The perpetrator: (a) Transferred (fn 44) directly or indirectly, parts of its own population into the territory it occupies (…) (44) The term “transfer” needs to be interpreted in accordance with the relevant provisions of international humanitarian law. 202 202

III. Substantive international criminal law Selected war crimes in international armed conflicts Art. 8 para. 2 lit. b) Rome Statute (xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

III. Substantive international criminal law Selected war crimes in international armed conflicts Art. 8 Rome Statute (xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;

III. Substantive international criminal law Selected war crimes in international armed conflicts Art. 8 para. 2 lit. b) Rome Statute (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.

III. Substantive international criminal law Selected war crimes in international armed conflicts ICC Trial Chamber I, Lubanga, Judgment of 14 March 2012 “(…) “enlisting” is defined as “to enrol on the list of a military body” and “conscripting” is defined as “to enlist compulsorily”. Therefore, the distinguishing element is that for conscription there is the added element of compulsion. (…) However, the consent of a child to his or her recruitment does not provide an accused with a valid defence. (…) the offences of conscripting and enlisting are committed at the moment a child under the age of 15 is enrolled into or joins an armed force or group, with or without compulsion. (…)“ 206 206

III. Substantive international criminal law Selected war crimes in international armed conflicts ICC Trial Chamber I, Lubanga, Judgment of 14 March 2012 “Those who participate actively in hostilities include a wide range of individuals, from those on the front line (who participate directly) through to the boys or girls who are involved in a myriad of roles that support the combatants. (…) The decisive factor, therefore, in deciding if an “indirect” role is to be treated as active participation in hostilities is whether the support provided by the child to the combatants exposed him or her to real danger as a potential target.” 207 207

War crimes in non-international armed conflicts:
III. Substantive international criminal law War crimes in non-international armed conflicts: ‚the missing crimes‘ attacks upon civilian objects causing excessive collateral damages prohibited weapons 208 208

War crimes in non-international armed conflicts: prohibited weapons at Kampala  addition to article 8(2)(e) of the Statute: - xiii) Employing poison or poisoned weapons; - xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; - xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. 209 209

Crime of aggression: the Kampala compromise
III. Substantive international criminal law Crime of aggression: the Kampala compromise

Crime of Aggression: The Kampala compromise
III. Substantive international criminal law Crime of Aggression: The Kampala compromise Art. 6 IMT-Statute (...) The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing;

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Resolution A/RES/29/3314, Definition of Aggression, adopted by the General Assembly 14th December 1974 Article 1 Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. (...) Article 3 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression: 212 212

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Resolution A/RES/29/3314, Definition of Aggression, adopted by the General Assembly 14th December 1974 (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof, (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State;

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Resolution A/RES/29/3314, Definition of Aggression, adopted by the General Assembly 14th December 1974 (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Resolution A/RES/29/3314, Definition of Aggression, adopted by the General Assembly 14th December 1974 (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Art. 5 Rome Statute 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Art. 121 Rome Statute 3. The adoption of an amendment at a meeting of the Assembly of States Parties or at a Review Conference on which consensus cannot be reached shall require a two-thirds majority of States Parties. 4. Except as provided in paragraph 5, an amendment shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Art. 121 Rome Statute 5. Any amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance. In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory.

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Resolution RC/Res.6 Article 8 bis - Crime of aggression For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

III. Substantive international criminal law Crime of Aggression: The Kampala compromise 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:

Crime of Aggression: The Kampala compromise The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;

Crime of Aggression: The Kampala compromise (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement;

Crime of Aggression: The Kampala compromise (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

Article 15 bis Exercise of jurisdiction over the crime of aggression
III. Substantive international criminal law Crime of Aggression: The Kampala compromise Article 15 bis Exercise of jurisdiction over the crime of aggression 3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute.

Crime of Aggression: The Kampala compromise 4. The Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The withdrawal of such a declaration may be effected at any time and shall be considered by the State Party within three years. 5. In respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory.

Crime of Aggression: The Kampala compromise 6. Where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The Prosecutor shall notify the Secretary-General of the United Nations of the situation before the Court, including any relevant information and documents.

III. Substantive international criminal law Crime of Aggression: The Kampala compromise 8. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorized the commencement of the investigation in respect of a crime of aggression in accordance with the procedure contained in article 15, and the Security Council has not decided otherwise in accordance with article 16. 9. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under this Statute.

III. Substantive international criminal law Crime of Aggression: The Kampala compromise Article 15 ter Exercise of jurisdiction over the crime of aggression (Security Council referral) 1. The Court may exercise jurisdiction over the crime of aggression in accordance with article 13, paragraph (b), subject to the provisions of this article.

General principles of international criminal law
III. Substantive international criminal law General principles of international criminal law

III. Substantive international criminal law General principles of international criminal law Art. 30 Rome Statute Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

III. Substantive international criminal law General principles of international criminal law Art. 30 Rome Statute Mental element 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.

III. Substantive international criminal law General principles of international criminal law Art. 25 Rome Statute Individual criminal responsibility 1. The Court shall have jurisdiction over natural persons pursuant to this Statute. 2. A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. (…) 4. No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

III. Substantive international criminal law General principles of international criminal law Art. 25 Rome Statute Individual criminal responsibility 3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

III. Substantive international criminal law General principles of international criminal law Art. 25 Rome Statute Individual criminal responsibility (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; shall affect the responsibility of States under international law.

III. Substantive international criminal law General principles of international criminal law Art. 25 Rome Statute Individual criminal responsibility (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime;

III. Substantive international criminal law General principles of international criminal law Art. 25 Rome Statute Individual criminal responsibility - Attempt (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

III. Substantive international criminal law General principles of international criminal law Art. 25(3)(a) Rome Statute – Co-Perpetration ICC, Prosecutor v. Thomas Lubanga Dyilo, Judgment, 14 March 2012 “For the reasons set out above, the prosecution must prove in relation to each charge that: (i) there was an agreement or common plan between the accused and at least one other co-perpetrator that, once implemented, will result in the commission of the relevant crime in the ordinary course of events; (ii) the accused provided an essential contribution to the common plan that resulted in the commission of the relevant crime;

III. Substantive international criminal law General principles of international criminal law Art. 25(3)(a) Rome Statute ICC, Prosecutor v. Thomas Lubanga Dyilo, Judgement pursuant to Article 74 of the Statute, 14 March 2012 (iii) the accused meant to conscript, enlist or use children under the age of 15 to participate actively in hostilities or he was aware that by implementing the common plan these consequences “will occur in the ordinary course of events”; (iv) the accused was aware that he provided an essential contribution to the implementation of the common plan; (…)

III. Substantive international criminal law General principles of international criminal law Art. 25(3)(c) Rome Statute – Aiding and abetting ICTY, Prosecutor v. Momcilo Perišić, Judgement, 28 February 2013 “ (…) specific direction is a necessary element of aiding and abetting liability. (…) Perišić’s assistance (…) was remote from the relevant crimes of principal perpetrators. In particular, the Trial Chamber found that the VRS was independent from the VJ, and that the two armies were based in separate geographic regions. In addition, the Trial Chamber did not refer to any evidence that Perišić was physically present when relevant criminal acts were planned or committed. “

III. Substantive international criminal law General principles of international criminal law Art. 25(3)(c) Rome Statute ICTY, Prosecutor v. Momcilo Perišić, Judgement, 28 February 2013 “In these circumstances, the Appeals Chamber, Judge Liu dissenting, further considers that an explicit analysis of specific direction would have been required in order to establish the necessary link between the aid Perišić’s provided and the crimes committed by principal perpetrators. “

III. Substantive international criminal law General principles of international criminal law Art. 28 Rome Statute Responsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

III. Substantive international criminal law General principles of international criminal law Art. 28 Rome Statute Responsibility of commanders and other superiors (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress, their commission or to submit the matter to the competent authorities for investigation and prosecution. (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

III. Substantive international criminal law General principles of international criminal law Art. 28 Rome Statute Responsibility of commanders and other superiors (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

III. Substantive international criminal law General principles of international criminal law Art. 27 Rome Statute Irrelevance of official capacity 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.

III. Substantive international criminal law General principles of international criminal law Art. 98 Rome Statute Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.

III. Substantive international criminal law General principles of international criminal law Art. 98 Rome Statute Cooperation with respect to waiver of immunity and consent to surrender 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

III. Substantive international criminal law General principles of international criminal law Case Concerning the Arrest Warrant (Democratic Republic of Congo v. Belgium), Judgment ICJ, 14 February 2002 58. The Court has carefully examined State practice, including national legislation and those few decisions of national higher courts, such as the House of Lords or the French Court of Cassation. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.

III. Substantive international criminal law General principles of international criminal law Case Concerning the Arrest Warrant (Democratic Republic of Congo v. Belgium), Judgment ICJ, 14 February 2002 The Court has also examined the rules concerning the immunity or criminal responsibility of persons having an official capacity contained in the legal instruments creating international criminal tribunals, and which are specifically applicable to the latter (see Charter of the International Military Tribunal of Nuremberg, Art. 7; Charter of the International Military Tribunal of Tokyo, Art. 6; Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 7, para. 2; Statute of the International Criminal Tribunal for Rwanda, Art. 6, para. 2; Statute of the International Criminal Court, Art. 27).

III. Substantive international criminal law General principles of international criminal law Case Concerning the Arrest Warrant (Democratic Republic of Congo v. Belgium), Judgment ICJ, 14 February 2002 It finds that these rules likewise do not enable it to conclude that any such an exception exists in customary international law in regard to national courts. Finally, none of the decisions of the Nuremberg and Tokyo international military tribunals, or of the lnternational Criminal Tribunal for the former Yugoslavia, cited by Belgium deal with the question of the immunities of incumbent Ministers for Foreign Affairs before national courts where they are accused of having committed war crimes or crimes against humanity. The Court accordingly notes that those decisions are in no way at variance with the findings it has reached above.

III. Substantive international criminal law General principles of international criminal law Case Concerning the Arrest Warrant (Democratic Republic of Congo v. Belgium), Judgment ICJ, 14 February 2002 In view of the foregoing, the Court accordingly cannot accept Bel- gium's argument in this regard. (…) 60. The Court emphasizes, however, that the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law.

III. Substantive international criminal law General principles of international criminal law Case Concerning the Arrest Warrant (Democratic Republic of Congo v. Belgium), Judgment ICJ, 14. February 2002 Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility. 61. Accordingly, the immunities enjoyed under International law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries' courts in accordance with the relevant rules of domestic law.

III. Substantive international criminal law General principles of international criminal law Case Concerning the Arrest Warrant (Democratic Republic of Congo v. Belgium), Judgment ICJ, 14. February 2002 Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.

III. Substantive international criminal law General principles of international criminal law Case Concerning the Arrest Warrant (Democratic Republic of Congo v. Belgium), Judgment ICJ, 14. February 2002 Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention.

III. Substantive international criminal law General principles of international criminal law Case Concerning the Arrest Warrant (Democratic Republic of Congo v. Belgium), Judgment ICJ, 14. February 2002 The latter's Statute expressly provides, in Article 27, paragraph 2, that "[i]mmunities 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".

III. Substantive international criminal law General principles of international criminal law ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial-Chamber I, 12 December 2011 “(…) immunity for Heads of State before international courts has been rejected time and time again dating all the way back to World War 1. (…) Second, there has been an increase in Head of State prosecutions by international courts in the last decade. Only one international prosecution of a Head of State had been initiated when the judgment in the "Arrest Warrant Case" was rendered; this trial (Slobodan Milosevic) began only two days before this judgment was issued and its existence is not even referenced by the ICJ majority. “

III. Substantive international criminal law General principles of international criminal law ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial-Chamber I, 12 December 2011 Subsequent to 14 February 2002, international prosecutions against Charles Taylor, Muammar Gaddafi, Laurent Gbagbo and the present case show that initiating international prosecutions against Heads of State have gained widespread recognition as accepted practice. Third, the Statute now has reached 120 States Parties in its 9 plus years of existence, all of whom have accepted having any immunity they had under international law stripped from their top officials.

III. Substantive international criminal law General principles of international criminal law ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial-Chamber I, 12 December 2011 All of these states have renounced any claim to immunity by ratifying the language of article 27(2): "[i]mmunities 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 jurisdiction over such a person”. Even some States which have not joined the Court have twice allowed for situations to be referred to the Court by United Nations Security Council Resolutions, undoubtedly in the knowledge that these referrals might involve prosecution of Heads of State who might ordinarily have immunity from domestic Prosecution.

III. Substantive international criminal law General principles of international criminal law ICC, Prosecutor v. Omar Hassan Ahmad Al Bashir, Pre-Trial-Chamber I, 12 December 2011 41. Fourth, all the States referenced above have ratified this Statute and/or entrusted this Court with exercising "its jurisdiction over persons for the most serious crimes of international concern”. It is facially inconsistent for Malawi to entrust the Court with this mandate and then refuse to surrender a Head of State prosecuted for orchestrating genocide, war crimes and crimes against humanity. To interpret article 98(1) in such a way so as to justify not surrendering Omar Al Bashir on immunity grounds would disable the Court and international criminal justice in ways completely contrary to the purpose of the Statute Malawi has ratified.

III. Substantive international criminal law General principles of international criminal law Press Release African Union Commission , 9 January 2012 “The African Union Commission expresses its deep regret that the decision has the effect of: (i) Purporting to change customary international law in relation to immunity ratione personae; (ii) Rendering Article 98 of the Rome Statute redundant, non-operational and meaningless; (…) Article 27 appears under the part of the Statute setting out ‘general principles of criminal law’ and applies only in the relationship between the Court and the suspect. In the relationship between the Court and states, article 98(1) applies. 259 259

III. Substantive international criminal law General principles of international criminal law Press Release African Union Commission , 9 January 2012 As a general matter, the immunities provided for by international law apply not only to proceedings in foreign domestic courts but also to international tribunals: states cannot contract out of their international legal obligations vis-à-vis third states by establishing an international tribunal. (…) article 98(1) was included in the Rome Statute establishing the ICC out of recognition that the Statute is not capable of removing an immunity which international law grants to the officials of States that are not parties to the Rome Statute. (…) 260 260

III. Substantive international criminal law General principles of international criminal law Press Release African Union Commission , 9 January 2012 The Security Council has not lifted President Bashir’s immunity either; any such lifting should have been explicit, mere referral of a "situation" by the UNSC to the ICC or requesting a state to cooperate with the ICC cannot be interpreted as lifting immunities granted under international law. The consequence of the referral is that the Rome Statute, including article 98, is applicable to the situation in Darfur.” 261 261

Domestic implementation of international criminal law
III. Substantive international criminal law Domestic implementation of international criminal law

Domestic implementation
III. Substantive international criminal law Domestic implementation ICC Stature does not oblige the states to incorporate the Statute’s substantive criminal law into national law Options for Implementation Complete Incorporation Non-Incorporation Modified Incorporation Combinations Forms of Incorporation Amendment of Existing Laws Self-Contained Codification

Domestic implementation: the example of Germany
III. Substantive international criminal law Domestic implementation: the example of Germany Art. 16 (2) Basic Law of the Federal Republic of Germany old version No German may be extradited to a foreign country. Article 89 (1) S. 2 States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender. Article 120 No reservations may be made to this Statute

III. Substantive international criminal law Domestic implementation Art. 16 (2) Basic Law of the Federal Republic of Germany No German may be extradited to a foreign country. The law may provide otherwise for extraditions to a member state of the European Union or to an international court, provided that the rule of law is observed.

Domestic implementation Section 1 Völkerstrafgesetzbuch
III. Substantive international criminal law Domestic implementation Section 1 Völkerstrafgesetzbuch Scope of application This Act shall apply to all criminal offences against international law designated under this Act, to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany.

III. Substantive international criminal law Domestic implementation Section 6 Völkerstrafgesetzbuch Genocide (1) Whoever with the intent of destroying as such, in whole or in part, a national, racial, religious or ethnic group 1. Kills a member of the group, 2. Causes serious bodily or mental harm to a member of the group, especially of the kind referred to in section 226 of the Criminal Code, 3. Inflicts on the group conditions of life calculated to bring about their physical destruction in whole or in part,

III. Substantive international criminal law Domestic implementation Section 6 Völkerstrafgesetzbuch Genocide 4. Imposes measures intended to prevent births within the group, 5. Forcibly transfers a child of the group to another group Shall be punished with imprisonment for life. (2) In less serious cases referred to under section (1), numbers 2 to 5, the punishment shall be imprisonment for not less than five years.

III. Substantive international criminal law Domestic implementation Section 7 Völkerstrafgesetzbuch Crimes against humanity Whoever, as part of a widespread or systematic attack directed against any civilian population, 1. Kills a person, 2. inflicts, with the intent of destroying a population in whole or in part, conditions of life on that population or on parts thereof, being conditions calculated to bring about its physical destruction in whole or in part, 3. Traffics in persons, particularly in women or children, or whoever enslaves a person in another way and in doing so arrogates to himself a a right of ownership over that person,

III. Substantive international criminal law Domestic implementation Section 7 Völkerstrafgesetzbuch Crimes against humanity 4. Deports or forcibly transfers, by expulsion or other coercive acts, a person lawfully present in an area to another State or another area in contravention of a general rule of international law, 5. Tortures a person in his or her custody or otherwise under his or her control by causing that person substantial physical or mental harm or suffering where such harm or suffering does not arise only from sanctions that are compatible with international law, 6. Sexually coerces, rapes, forces into prostitution or deprives a person of his or her reproductive capacity, or confines a woman forcibly made pregnant with the intent of affecting the ethnic composition of any population,

III. Substantive international criminal law Domestic implementation Section 7 Völkerstrafgesetzbuch Crimes against humanity 7. Causes a person‘s enforced disappearance, with the intention of removing him or her from the protection of the law for a prolonged period of time, (a) By abducting that person on behalf of or with the approval of a State or a political organisation, or by otherwise severely depriving such person of his or her physical liberty, followed by a failure immediately to give truthful information, upon inquiry, on that person‘s fate and whereabouts, or

III. Substantive international criminal law Domestic implementation Section 7 Völkerstrafgesetzbuch Crimes against humanity (b) By refusing, on behalf of a State or a political organisation or in contravention of a legal duty, to give information immediately on the fate and whereabouts of the person deprived of his or her physical liberty under the circumstances referred to under letter (a) above, or by giving false information thereon, 8. Causes another person severe physical or mental harm, especially of the kind referred to in section 226 of the Criminal Code, 9. Severely deprives, in contravention of a general rule of international law, a person of his or her physical liberty, or

III. Substantive international criminal law Domestic implementation Section 7 Völkerstrafgesetzbuch Crimes against humanity 10. Persecutes an identifiable group or collectivity by depriving such group or collectivity of fundamental human rights, or by substantially restricting the same, on political, racial, national, ethnic, cultural or religious, gender or other grounds that are recognised as impermissible under the general rules of international law shall be punished, in the cases referred to under numbers 1 and 2, with imprisonment for life, in the cases referred to under numbers 3 to 7, with imprisonment for not less than five years, and, in the cases referred to under numbers 8 to 10, with imprisonment for not less than three years.

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons (1) Whoever in connection with an international armed conflict or with an armed conflict not of an international character 1. Kills a person who is to be protected under international humanitarian law, 2. Takes hostage a person who is to be protected under international humanitarian law, 3. Treats a person who is to be protected under international humanitarian law cruelly or inhumanly by causing him or her substantial physical or mental harm or suffering, especially by torturing or mutilating that person,

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons 4. Sexually coerces, rapes, forces into prostitution or deprives a person who is to be protected under international humanitarian law of his or her reproductive capacity or confines a woman forcibly made pregnant with the intent of affecting the ethnic composition of any population, 5. Conscripts children under the age of fifteen years into the armed forces, or enlists them in the armed forces or in armed groups, or uses them to participate actively in hostilities,

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons 6. Deports or forcibly transfers, by expulsion or other coercive acts, a person who is to be protected under international humanitarian law and lawfully present in an area to another State or another area in contravention of a general rule of international law, 7. Imposes on, or executes a substantial sentence in respect of a person who is to be protected under international humanitarian law, in particular the death penalty or imprisonment, without that person having been sentenced in a fair and regular trial affording the legal guarantees required by international law,

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons 8. Exposes a person who is to be protected under international humanitarian law to the risk of death or of serious injury to health (a) By carrying out experiments on such a person, being a person who has not previously given his or her voluntary and express consent, or where the experiments concerned are neither medically nor carried out in his or her interest, (b) By talking body tissue or organs from such a person for transplantation purposes so far as it does not constitute removal of blood or skin for therapeutic purposes in conformity with generally recognised medical principles and the person concerned has previously not given his or her voluntary and express consent, or

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons (c) By using treatment methods that are not medically recognised on such person, without this being necessary from a medical point of view and without the person concerned having previously given his or her voluntary and express consent, or 9. Treats a person who is to be protected under international humanitarian law in a gravely humiliating or degrading manner

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons Shall be punished, in the cases referred to under number 1, with imprisonment for life, in the cases referred to under number 2, with imprisonment for not less than five years, in the cases referred to under number 3 to 5, with imprisonment for not less than three years, in the cases referred to under numbers 6 to 8, with imprisonment for not less than two years, and, in the cases referred to under number 9, with imprisonment for not less than one year.

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons (2) Whoever in connection with an international armed conflict or with an armed conflict of an international character, wounds a member of the adverse armed forces or a combatant of the adverse party after the latter has surrendered unconditionally or is otherwise placed hors de combat shall be punished with imprisonment for not less than three years. (3) Whoever in connection with an international armed conflict 1. Unlawfully holds a prisoner or unjustifiably delays the return home of a protected person within the meaning of subsection (6), number 1,

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons 2. transfers, as a member of an Occupying Power, parts of its own civilian population into the occupied territory, 3. Compels a protected person within the meaning of subsection (6), number 1, by force or threat of appreciable harm to serve in the forces of a hostile Power or 4. Compels a national of the adverse party by force or threat of appreciable harm to take part in the operations of war directed against his or her own country Shall be punished with imprisonment for not less than two years. (...)

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons (6) Persons who are to be protected under international humanitarian law shall be 1. In an international armed conflict: persons protected for the purposes of the Geneva Conventions and of the Protocol Additional to the Geneva Conventions (Protocol I) (annexed to this Act), namely the wounded, the sick, the shipwrecked, prisoners of war and civilians; 2. In an armed conflict not of an international character: the wounded, the sick, the shipwrecked as well as persons taking no active part in the hostilities who are in the power of the adverse party;

III. Substantive international criminal law Domestic implementation Section 8 Völkerstrafgesetzbuch War crimes against persons 3. In an international armed conflict and in an armed conflict not of an international character: members of armed forces and combatants of the adverse party, both of whom have laid down their arms or have no other means of defence.

IV. Outlook Outlook ICC after ten years? Anti-African bias?
Further increase in ratifications? Further SC referrals forthcoming? Syria? Entry into force of the Kampala compromise: Overburdening the Court?

- International Criminal Law – Sommersemester 2017

Similar presentations

Presentation on theme: "- International Criminal Law – Sommersemester 2017"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

- International Criminal Law – Sommersemester 2017

Similar presentations

Presentation on theme: "- International Criminal Law – Sommersemester 2017"— Presentation transcript:

Similar presentations

About project

Feedback