International Criminal Law—Payam Akhavan
AUTHOR'S NOTE
International criminal law is amazing. Payam Akhavan is amazing. Combine both, obtain the most
interesting course I have ever taken in my life. This course is little work and the evaluations are not
too hard. Payam's lectures typically will talk in a disorganized way of "textbook material" for a
third of his lecture and the rest will be amazing conceptual discussions. Readings usually do not go
beyond 30 pages and are somewhat superficial. But don't worry, so are Payam's exams. He only
expects his students to have a good basic legal and conceptual understanding of international
criminal law. Do all readings—even his articles are important for the final. The most important
sections are the infractions and modes of responsibility. I will underline them in the syllabus.
Je vais habituellement mettre mes notes de cours en premier pour chaque cours, suivies d'un résumé
des lectures. Mes notes de cours ne sont pas ce qui est le plus clair, à l'image des cours de Payam.
Ce qui a le plus de valeur dans ce document est le résumé que j'ai fait de chaque lecture. J'estime
qu'il rend les lectures avec assez de précision pour ne pas avoir à les faires soi-même.
I hope you enjoy as much as I did,
Vincent Dalpé.
SYLLABUS
6. Schedule of Sessions
1. Jan. 7th: INTRODUCTION (skipped and unimportant)
a. Can radical evil be punished? (Or: is International Criminal Law futile?)
2. Jan. 9th: INTRODUCTION: FUNDAMENTALS OF INTERNATIONAL CRIMINAL
LAW (skipped and unimportant)
a. Cassese, International Criminal Law: Introduction, pp. 3–9
January 14th re-scheduled for January 22nd 7:00-8:30 pm.
3. Jan. 16th: FUNDAMENTALS OF INTERNATIONAL CRIMINAL LAW: SOURCES
AND
CONCEPT
a. Cassese, International Criminal Law, pp. 9-21
4. Jan. 21st: JURISDICTION: INTERNATIONAL v. NATIONAL JURISDICTION
a. Cassese, International Criminal Law, pp.271–305
5. Jan. 22nd: INTERNATIONAL CRIMINAL COURTS: HISTORICAL EVOLUTION
Make-up Class in NCDH 101 from 7:00-8:30 pm)
a. Cassese, International Criminal Law: Introduction, pp. 253–27
b. Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future
Atrocities?” 95 Am. J. Int'l L. 7 2001 [WebCT]
c. Payam Akhavan, “The Rise, and Fall, and Rise, of International Criminal Justice”
Journal of
International Criminal Justice11 (2013), 527-536 [WebCT]
6. Jan. 23rd: JURISDICTION: INTERNATIONAL v. NATIONAL JURISDICTION
(CONT'D)
a. Payam Akhavan, “Whither National Courts? The Rome Statute's Missing Half”
Journal of International Criminal Justice 8 (2010), 1245-1266 [WebCT]
b. Payam Akhavan, “Self Referrals Before the International Criminal Court. Are
States the Villains or Victims of Atrocities?” Criminal Law Forum (2010) 21:103–120
[WebCT]
January 28th & 30th re-scheduled to double-session on February 3rd
7. Feb. 3rd: JURISDICTION: THE “COMPLEMENTARITY” PRINCIPLE (Make-up
class in NCDH 201 from 5:30-8:30 pm)
a. Kenya Admissibility Judgement, ICC Appeals Chamber, paras. 1-3, 57-69 & 95-99
[WebCT]
b. Libya Admissibility Decision, ICC Pre-Trial Chamber, paras. 24-30 & 199-312
[WebCT]
8. Feb. 3rd: JURISDICTION: LEGAL IMPEDIMENTS (Make-up Class in NCDH 201
from 5:30-8:30 pm)
a. Cassese, International Criminal Law, pp. 309–325
 Feb. 4th: THE NULLEM CRIME SINE LEGE PRINCIPLE
a. Cassese, International Criminal Law, pp. 22–36
 Feb. 6th: THE ELEMENTS OF INTERNATIONAL CRIMES
a. Cassese, International Criminal Law, pp. 37– 58
11. Feb. 11th: INTERNATIONAL CRIMES: WAR CRIMES

(Writing assignment posted on WebCT)
a. Cassese, International Criminal Law, pp. 63–83
12. Feb. 13th: INTERNATIONAL CRIMES: WAR CRIMES (CONT`D)
a. Gotovina Judgment, ICTY Appeals Chamber, paras 23–98
13. Feb. 18th: INTERNATIONAL CRIMES: CRIMES AGAINST HUMANITY
 (Writing assignment due at SAO)
a. Cassese, International Criminal Law, pp. 84–108
14. Feb. 18th: INTERNATIONAL CRIMES: GENOCIDE Make-up Class in NCDH 202
from 5:30-7:00 pm)
a. Cassese, International Criminal Law, pp. 109–130
b. Suggested Reading: P. Akhavan, Reducing Genocide to Law, “Contesting Genocide in
Jurisprudence”(pp. 141 – 168) [WebCT]
15. Feb. 20th: INTERNATIONAL CRIMES: TORTURE
a. Cassese, International Criminal Law, pp.131–135
b. Henry Steiner, Phillipe Alstin and Ryan Goodman, International Human Rights in
Context, (3rd, Ed) pp. 234 – 250 [WebCT]
16. Feb. 20th: INTERNATIONAL CRIMES: AGGRESSION (Make-up Class in NCDH
202 from 5:30 -7:00 pm)
a. Cassese, International Criminal Law, pp. 136–145
b. Suggested Reading: Noah Weisbord, Judging Aggression, (Columbia Journal of
Transnational Law.) 50 Colum. J. Transnat'L. 82 (2011) [WebCT]
February 25th & 27th classes re-scheduled as double sessions on February 18th and 20th
17. March 11th: INTERNATIONAL CRIMES: TERRORISM (non lu)
a. Cassese, International Criminal Law, pp.146–158
18. March 13th: ATTRIBUTION OF INDIVIDUAL CRIMINAL RESPONSIBILITY:
JOINT AND INDIRECT PERPETRATION
a. Cassese, International Criminal Law, pp.161–179
19. March 18th: ATTRIBUTION OF INDIVIDUAL CRIMINAL RESPONSIBILITY:
OMISSION LIABILITY AND "SUPERIOR RESPONSIBILITY"
a. Cassese, International Criminal Law, pp. 180–192
20. March 20th: ATTRIBUTION OF INDIVIDUAL CRIMINAL RESPONSIBILITY:
OTHER MODES OF CRIMINAL LIABILITY AND INCHOATE CRIMES
a. Cassese, International Criminal Law, pp. 193–203
21. March 25th: GROUNDS FOR THE EXCLUSION OF CRIMINAL
RESPONSIBILITY: JUSTIFICATIONS AND EXCUSES
b. Cassese, International Criminal Law, pp. 209–227
22. March 27th: OBEDIENCE TO SUPERIOR ORDERS AND OFFICIAL CAPACITY
a. Cassese, International Criminal Law, pp. 228–248
23. April 1st: INTERNATIONAL CRIMINAL TRIALS AND THE ADVERSARIAL
SYSTEM
a. Cassese, International Criminal Law, pp.329–346
24. April 3rd: ALTERNATIVES TO INTERNATIONAL CRIMINAL JUSTICE
a. Film screening: The Iran People's Tribunal (42 minutes)
25. April 8th: REFLECTIONS ON RADICAL EVIL
a. Film screening: Genocide: The Great Challenge (38 minutes)
26. April 10th: EXAM REVIEW
COURS 3: SOURCES OF ICL
Crimes in conflicts not of international matter
Art. 147 Geneva Convention (civilians): definition of "grave breaches":
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 present
Convention: wilful killing, torture or inhuman treatment, including biological experiments,
wilfully causing great suffering or serious injury to body or health, unlawful deportation or
transfer or unlawful confinement of a protected person, compelling a protected person to
serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights
of fair and regular trial prescribed in the present Convention, taking of hostages and
extensive destruction and appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly.
The violations under art 147 are considered "grave" breaches, which are considered to be
the most important. These ones are particularly important, so we'll call them "grave
breaches".
Art. 146 Geneva Convention: "responsibility for grave breaches":
The High Contracting Parties undertake to enact any legislation necessary to provide
effective penal sanctions for persons committing, or ordering to be committed, any of the
grave breaches of the present Convention defined in the following Article
Each High Contracting Party shall be under the obligation to search for persons alleged to
have committed, or to have ordered to be committed, such grave breaches, and shall
bring such persons, regardless of their nationality, before its own courts. It may also, if it
prefers, and in accordance with the provisions of its own legislation, hand such persons
over for trial to another High Contracting Party concerned, provided such High
Contracting Party has made out a ' prima facie ' case.
Each High Contracting Party shall take measures necessary for the suppression of all
acts contrary to the provisions of the present Convention other than the grave breaches
defined in the following Article.
In all circumstances, the accused persons shall benefit by safeguards of proper trial and
defence, which shall not be less favourable than those provided by Article 105 and those
following of the Geneva Convention relative to the Treatment of Prisoners of War of
August 12, 1949.
The Geneva Convention was conceived under the assumption that breaches are committed
by a member of a state to a member of another state. The state will be liable for the acts of
its perpetrator. The state is seen as a "parent" of its perpetrators. This convention is about
state responsibility. When we think about international law in a classic sense, we think of
the responsibilty of the state. Here, we have a merger of responsibility between state and
individuals.
What about non-international armed conflicts, where members of a state aren't attacking
members of another state? This is a different situation because state members are attacking
members of the same state.
Art. 3 Geneva Convention: "conflicts not of international character"
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:
(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:
(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.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross,
may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of
special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties
to the conflict.
Among the 200 provisions of this convention, there is only one applying to noninternational conflicts. And it is a minimum standard. Both art. 3 and 147 focus on
minimum standards of human rights. However, for article 3, there is no basic minimum in
terms of prosecution. There is no obligation to prosecute war crimes in domestic conflict
in terms of international treaty law, contrarily to grave breaches in international conflicts.
That is left to the national judicial system.
Sources of ICL: customary international law
The Secretary General, who drafted the ICTY Statute, decided only to include crimes
contained in customary international law. Why? The legality principle ("nullum crimen sin
lege") is what the secretary general had in mind. The body of treaties do not truly form
international crimes, for the crimes enshrined in the statute of the ICTY and the ICTR are
only valid before these tribunals. The only truly universal body of international crimes is
contained in customary international law.
Custom is more universal than treaties, unless treaties are internationally ratified. This is
why it's interesting to base the statute on international custom. General principles of law
aren't as emprirical as customary law, which needs a repetition of practice. General
principles are less objective and are less evident than custom.
Treaties and customs are not mutually exclusive. Many treaties are codifications of custom.
This easiens its revelation and use. And vice versa-- certain treaties can become
international customary law. This means certain states which did not ratify the treaty will
feel bound by it and so an international custom will see the light of day.
Customary international law is not based on expressed state consent, contrarily to treaty
law. Some may say that this violates the "legality principle".
Art. 15 International Covenant on Civil and Political Rights: "Legality principle"
and "general principles of international law":
1 . No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time when the criminal offence
was committed. If, subsequent to the commission of the offence, provision is
made by law for the imposition of the lighter penalty, the offender shall benefit
thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for
any act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognized by the community of
nations.
Why does article 15(2) exist since "international law" (in art. 15(1)) already includes the
general principles of law?
If we go back to the charter of the Nuremberg Tribunal, there are three categories of crimes:
war crimes (these were already well recognised by international customary law), crimes
against peace (today known as a "crime of agression": the unlawful use of war) and crimes
against humanity (refers to a sclare of gravity of acts of a state against its own citizen and
says that only where you have such a level of gravity that it shocks the conscience of
mankind). This last crime was not part of customary law nor of treaty law. It was from
general principles.
General principles: for instance, we know that all countries in the world criminalized
murder. So it only makes sense to criminalize mass murder. General principles go against
two principles: (1) state sovereignty-- the state never really consented to this being a crime;
(2) nulle crimen sine legem-- in the perpetrator state's laws, these killings usually were
legal. General principles are the most ill-defined components of international criminal law.
Unlawful use of war: ius ad bellum vs ius in bellum: the right to initiate war vs
behaviour during war.
Art. 5 of the ICTY Statute is crimes against humanity. Art. 4 is genocide and is the least
uncontroversial. Art. 3 is a very important provision. It relates to the laws and customs of
war. ICTY Statute.
Article 3 of the ICTY:
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;
(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.
This article relates to other issues than the physical integrity protection, which usually is
what it was all about. Article 3 deals with more complex issues. This provision is linked
to the Hague Convention of 1907. The most important of article 3 is "shall include but not
be limited to". This isn't the kind of language that we should have in a criminal code. It is
unthinkable because of the principle of legality.
Fourth source of ICL: judicial opinions
It is a subsidiary source. Unless a judgment is not followed subsequently, it is law.
READING ON: SOURCES OF ICL
Intro to ICL
At the international level, the criminalization of individual conducts is a recent
phenomenon that mainly occurred around the early 1990s. In the 1940s, with regard to
crimes perpetrated within the context of state violence, the international community reacted
by resorting to the traditional institutional framework by imposing on states a duty to
criminalize the prohibited conducts, and organizing judicial cooperation for their
repression. This system did not work well.
Art. 21 Rome Statute (RS)
ICL is but a branch of public international law and the sources of law from which one may
derive the relevant rules are those proper to international law. The order in which one may
use these sources is the following. One should at first look for treaty rules or secondary
rules, if applicable. When such rules are lacking or contain gaps, one should resort to
customary international law. When even this set of rules is of no avail, one should apply
general principles of international law, particularly those related to the relevant branches
of international law (ICL, HRL, IHL). If a rule contains a gap, one may have resort to
general principles common to national jurisdiction, such as the ban on denial of justice, the
doctrine of res judicata, ie of the binding force of a judicial decision, and so on. It is
important to clarify that these sources create international rules that must be applied by
national courts.
Many may be tempted to see the Rome Statute as an "international code of criminal law"
but it is not one. It only dictates part of the rules the ICC should obey to. This treaty, in and
of itself, has no influence on other international criminal tribunals or on national
jurisdictions ruling on international crimes.
Article 21
1. La Cour applique :
a) En premier lieu, le présent Statut, les éléments des crimes et le Règlement de procédure et de
preuve ;
b) En second lieu, selon qu’il convient, les traités applicables et les principes et règles du droit
international, y compris les principes établis du droit international des conflits armés ;
c) À défaut, les principes généraux du droit dégagés par la Cour à partir des lois nationales
représentant les différents systèmes juridiques du monde, y compris, selon qu’il convient, les lois
nationales des États sous la juridiction desquels tomberait normalement le crime, si ces principes
ne sont pas incompatibles avec le présent Statut ni avec le droit international et les règles et normes
internationales reconnues.
2. La Cour peut appliquer les principes et règles de droit tels qu’elle les a interprétés dans ses
décisions antérieures.
3. L’application et l’interprétation du droit prévues au présent article doivent être compatibles avec
les droits de l’homme internationalement reconnus et exemptes de toute discrimination fondée sur
des considérations telles que l’appartenance à l’un ou l’autre sexe tel que défini à l’article 7,
paragraphe 3, l’âge, la race, la couleur, la langue, la religion ou la conviction, les opinions
politiques ou autres, l’origine nationale, ethnique ou sociale, la fortune, la naissance ou toute autre
qualité.
1. ICL legislation
While statutes in ICL usually do not spell out in detail all the legal ingredients of the crimes,
the Rome Statute does so. The ICC is assisted by the so-called "Elements of Crimes",
containing additional clarification as regards the objective and subjective elements of
interpretation of the relevant provisions of the Statute (Article (9(1)).
Article 9
1. Les éléments des crimes aident la Cour à interpréter et appliquer les articles 6, 7 et 8. Ils
doivent être adoptés à la majorité des deux tiers des membres de l’Assemblée des États Parties.
Proceedings before international criminal courts are normally governed by Rules of
procedure and evidence (the "Rules"). These are to be adopted by the tribunal itself in the
cases of the ICTY and the ICTR. In the case of the ICC, under article 51(1) and (2), it is
the Assembly of States Parties that adopts the Rules by a two-thirds majority.
2. Other international law treaties
Treaties relevant to our subject matter are those laying down substantive rules of IHL; that
is, rules the serious violation of which may amount to war crimes. p.13
3. Customary international law
Written rules on ICL are not numerous. Hence, resort to rules of customary international
law may prove necessary to clarify the content of written provisions or to fill gaps in these
provisions. It may also be useful to pinpoint general principles of criminal law.
Customary international rules may normally be drawn or inferred from judicial decisions,
which to a very large extent have been handed down, chiefly in the past, by national
criminal courts. Il s'agit d'un exercice difficile puisque les cours de justice nationales ont
des traditions bien différentes les unes des autres. Many examples can be cited of instances
where national or international criminal courts have taken into consideration case law to
establish whether a rule of customary international law had evolved on a specific matter.
In ICL, case law (from other tribunals) is not binding. It can only be binding insofar as it
creates customary international law. Common law judges working in international criminal
law courts are often confused over this.
4. Subsidiarily, general principles of criminal law recognized in domestic legal systems
While the general principles just mentioned may be inferred from the whole system of ICL
or of PIL, "general principles of criminal law recognized in domestic legal systems" may
be drawn from a comparative survey of the principal legal systems of the world. This source
is subsidiary in nature. A principle of criminal law may belong to this class only if a court
finds that it is shared by common law and civil law systems as well as other legal systems
such as those of the Islamic world, some Asian countries such as China and Japan, and the
African continent. It is more and more frequently pointed out in the literature that limiting
comparative legal analysis to civil law and common law systems alone is too restrictive.
International criminal courts have also emphasized that one ought not to transpose legal
constructs typical of national systems into international law, whenever these constructs do
not harmonize with the specific features of the international legal system.
The "Furundzija" case of the ICTY set the delineation of the limitations inherent in
resorting to general principles. The textbook does not go into details about this case. An an
example of such a general principle could be that all criminal systems recognize that rape
usually is defined by the insertion of the penis or of another object into the vagina or the
anus, such as pictured in the Furundzija case.
The role of the court's own judicial decisions and the opinion of scholars
Article 38 of the ICJ Statute:
1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if
the parties agree thereto.
As stated above, judicial decisions-- even of the same court-- do not constitute per se a
source of ICL. Formally speaking they may only amount to a "subsidiary means for the
determination of international rules of law". Article 21(2) of the Rome Statute also
expressly rejects the doctrine of the 'stare decisis', where a decision has to be followed by
the court.
These decisions (national or international) may however prove appropriate to ascertain
whether a rule of customary international law has evolved, or whether the interpretation of
a treaty rule is the most appropriate.
In the 'Aleksovski' case of the ICTY, the Appeals Chamber affirmed that it could depart
from a previous decision by the same Chamber if it had cogent reasons to do so. One may
wonder whether the chamber tried to establish a rule of precedent at the Tribunal. In any
event, this should be understood as giving strong persuasive authority to Appeals Chamber
decisions. This is much like WTO case law.
COURS 4: NATIONAL VS INTERNATIONAL JURISDICTION
The statute of the ICC, as well as other treaties in relation to the implementation of the
ICC Statute, require that international crimes be implemented into national law.
Contrarily to ICTY and ICTR, the ICC gives primacy to national jurisdiction.
In international law, the general rule with regard to jurisdiction is territoriality: crimes
have to have been comitted on the state's territory (it can include the national sea, high sea).
The territorial principle is by far the most important. It is taken into account by the 1948
Genocide Convention. It obliges the state where the crime was committed to prosecute.
However, the perpetrators of ICL crimes often are high-ranking state officials, which makes
the state unlikely to prosecute the perpetrators. While territoriality is the most basic
principle, it however proves to be the least effective when it comes to such crimes.
Other principles relevant to jurisdiction are active and passive nationality. Active
nationality is the perpetrator's nationality and passive nationality is that of the victim.
Common law jurisdiction have a strong bias in favor of the territoriality principle. Active
and passive nationality only applies to certain crimes mentionned in the Canadian Criminal
Code. Murder, for instance, is not a crime mentionned in the Code as based on
active/passive nationality. A Canadian murdering a Canadian in Mexico would be
prosecuted in Mexico. On the other hand, torture is mentionned in the code as
active/passive jurisdiction, so Canada could prosecute a Canadian torturing anyone in
Mexico.
On the other hand, Continental European countries have a different approach. People from
there can be called by their own country for almost any crime committed abroad. This
makes sense because in Continental Europe it is much easier to cross borders.
International Conventions on crimes will usually recognise active/passive nationality as
the jurisdiction principle.
ICL is interesting because its crimes are subject to "universal jurisdiction". These
crimes are so grave that all countries are concerned by it and have an interest in
prosecuting them. Universal jurisdiction is regardless of the nationality or territory.
The Geneva convention, in art. 147 (seen in last class), grants universal jurisdiction to
"grave breaches". The rest of the convention is however of active/passive national
jurisdiction (not sure if that or territorial-- the idea is that it isn't the whole treaty that has
universal jurisdiction).
For example, in the Convention Against Tortutre, Article 5 states:
1.
Each State Party shall take such measures as may be necessary to establish its jurisdiction
over the offences referred to in article 4 in the following cases:
1.
When the offences are committed in any territory under its jurisdiction or on board a ship
or aircraft registered in that State;
2.
When the alleged offender is a national of that State;
3.
When the victim was a national of that State if that State considers it appropriate.
2.
Each State Party shall likewise take such measures as may be necessary to establish its
jurisdiction over such offences in cases where the alleged offender is present in any territory under
its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in
Paragraph 1 of this article.
3.
This Convention does not exclude any criminal jurisdiction exercised in accordance with
internal law.
You're given a choice: extradite or prosecute..
Why would you choose to extradite or to prosecute nationally? It is simpler to prosecute
where the crime happened in order to get the evidence. It might also be interesting to
consider if the extradited person will have a fair trial.
Most countries will extradite the "génocidaires" discovered on their territory. It costs
millions to prosecute them because there are so many procedural guarantees in our system.
You cannot proceed quickly. You would for example have to send a white RCMP guy
interview witnesses in a remote village in Rwanda, with a translator. It's very difficult.
Also, it's hard for a judge to find out if a Rwandan is lying. There's a big cultural difference.
Then you'd have to call about 50 testimonies from Africa to come and testify here.
Obviously, the trial lasts several months. Imagine the costs f that. Practically, universal
jurisdiction is not effective. Universal jurisdiction, in that sense, is the last resort against
impunity.
Most state parties to the Rome Statute have implemented complementarity legislation,
where all crimes under the ICC's jurisdiction may be prosecuted domestically. There is no
provision in the ICC Statute explicitly requiring that such legislation be implemented.
However, such enactments are an implicit obligation deriving from the complementarity
system enshrined in Article 17. If there is no such domestic legislation, the court can, de
facto, have jurisdiction over the crimes committed on the state's territory since the lack of
proper legislation will amount to "incapacity" under Article 17(3). In order to at least try
to prosecute by themselves, states therefore have to pass such legislation.
RELATIONSHIP BETWEEN NATIONAL AND INTERNATIONAL JURISDICTION
ICTR and ICTY have primacy over national jurisdiction when they request it. There also
is a division of labour between them and national courts. National courts will prosecute
the less important criminals.
Rome Statute: 11
Rome Statute of the International Criminal Court
Article 12
Preconditions to the exercise of jurisdiction
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of
the Court with respect to the crimes referred to in article 5.
2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction
if one or more of the following States
are Parties to this
Statute or
have accepted
the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if
the crime was committed on board a vessel or aircraft, the State of
registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3. If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the
exercise of jurisdiction by the Court with respect to the crime in question. The
accepting State shall cooperate with the Court without any delay or exception in
accordance with Part 9.
The ICC has three ways of referring cases: (1) OTP's proprio motu powers; (2) referral by
the Security Council; (3) auto-referral by a state.
13
Article 17
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;
Rome Statute of the International Criminal Court
(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;
(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.
2. In order to determine unwillingness in a particular case, the Court shall consider,
having regard to the principles of due process recognized by international law,
whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision
was made for the purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court referred to in
article 5;
(b) There has been an unjustified delay in the proceedings which in the
circumstances is inconsistent with an intent to bring the person concerned
to justice;
(c) The proceedings were not or are not being conducted independently or
impartially, and they were or are being conducted in a manner which, in
the circumstances, is inconsistent with an intent to bring the person
concerned to justice.
3. In order to determine inability in a particular case, the Court shall consider
whether, due to a total or substantial collapse or unavailability of its national
judicial system, the State is unable to obtain the accused or the necessary evidence
and testimony or otherwise unable to carry out its proceedings.
READING: INTERNATIONAL VS NATIONAL JURISDICTION
Introduction
Though no treaty rules directly adress the possible conflict of jurisdiction between states,
conflicts between national and international criminal courts are addressed by the
constitutive instruments of the ICC. These instruments also address the relationship
between states and the relevant international criminal court matter of judicial cooperation.
In particular, they lay down the powers of the relevant international criminal court to issue
requests of cooperation to states as far as investigation, arrest and surrender of suspect, etc.,
are concerned, and lay down the corresponding obligations of states in this respect.
The Nuremberg scheme vs the ICC scheme
At the Nuremberg Trials, this court prosecuted the major leaders accused of international
crimes. German courts dealt with offences by Germans against Germans and foreign courts
dealt with offences by Germans against foreigners.
The two ad hoc tribunals (ICTY and ICTR) are based on the principle of their primacy over
national courts.
In the case of the ICC, art. 17(3) RS states that national courts have the "duty" to prosecute
all perpetrators, even including the major leaders. The ICC is only to intervene when the
state is unwilling or unable to do so. According to Payam's article, the "duty" to prosecute
does not equate to a proper enforceable obligation. The consequence of the failing to
comply with this "duty" is that the case will be declared admissible before the ICC.
The primacy of international criminal courts with respect to national jurisdictions
The ICTY and ICTR
The statutes of both tribunals provide that they have concurrent jurisdiction with national
courts, but that they may request to have primacy over national courts at any time.
Judges of these courts drafted a document named the RPE (Rules of Procedure and
Evidence) establishing when primacy is to be exercised (p.294):
(1) when a national court is proceeding with regard to a criminal offence not as an
international crime, but as an "ordinary criminal offence". For instance, genocide
is reduced to multiple murder;
(2) when a national court proves to be "unreliable". This is proved when there is a "lack
of impartiality or independence", or "the investigations or proceedings are designed
to shield the accused from international criminal responsibility", or else "the case
is not diligently prosecuted". In all these cases, the authorities may not be trusted
because they are somehow "protecting" the accused.
(3) When, although the relevant national court appears to be reliable and able to
conduct a fair trial, nonetheless the case is "closely related, or may be relevant, to
other cases" being tried by the International Tribunal.
These rules reconcile state soreveingty, the economy of international ressources and the
responsibility for international tribunals to prosecute the most responsible.
The Rules also provide that the Tribunals may divest themselves of a case when they
consider that the case may more appropriately be tried by a national court.
The SCSL (Special Tribunal for Sierra Leone) and STL (Special Tribunal for
Lebanon)
While the ICTY and the ICTR enjoy primacy over any national court, the SCSL and the
STL have been granted primacy only over the courts of Sierra Leone and Lebanon
respectively.
Jurisdiction of the ICC
Article 11
Compétence ratione temporis
1. La Cour n’a compétence qu’à l’égard des crimes relevant de sa compétence commis après l’entrée
en vigueur du présent Statut.
2. Si un État devient Partie au présent Statut après l’entrée en vigueur de celui-ci, la Cour ne peut
exercer sa compétence qu’à l’égard des crimes commis après l’entrée en vigueur du Statut pour cet
État, sauf si ledit État fait la déclaration prévue à l’article 12, paragraphe 3.
Article 12
Conditions préalables à l’exercice de la compétence
1. Un État qui devient Partie au Statut accepte par là même la compétence de la Cour à l’égard des
crimes visés à l’article 5.
2. Dans les cas visés à l’article 13, paragraphes a) ou c), la Cour peut exercer sa compétence si l’un
des États suivants ou les deux sont Parties au présent Statut ou ont accepté la compétence de la
Cour conformément au paragraphe 3 :
a) L’État sur le territoire duquel le comportement en cause a eu lieu ou, si le crime a été
commis à bord d’un navire ou d’un aéronef, l’État du pavillon ou l’État d’immatriculation ;
b) L’État dont la personne accusée du crime est un ressortissant.
3. Si l’acceptation de la compétence de la Cour par un État qui n’est pas Partie au présent Statut est
nécessaire aux fins du paragraphe 2, cet État peut, par déclaration déposée auprès du Greffier,
consentir à ce que la Cour exerce sa compétence à l’égard du crime dont il s’agit. L’État ayant
accepté la compétence de la Cour coopère avec celle-ci sans retard et sans exception
conformément au chapitre IX.
Article 13
Exercice de la compétence
La Cour peut exercer sa compétence à l’égard d’un crime visé à l’article 5, conformément aux
dispositions du présent Statut:
a) Si une situation dans laquelle un ou plusieurs de ces crimes paraissent avoir été commis est
déférée au Procureur par un État Partie, comme prévu à l’article 14 ;
b) Si une situation dans laquelle un ou plusieurs de ces crimes paraissent avoir été commis est
déférée au Procureur par le Conseil de sécurité agissant en vertu du chapitre VII de la Charte des
Nations Unies ; ou
c) Si le Procureur a ouvert une enquête sur le crime en question en vertu de l’article 15.
The complementarity of the ICC
The court cannot intervene if the person has already been convicted or acquitted for the
international charges. It may also not do so whenever a national court asserts its jurisdiction
over the same person for the same crime and under its national law the state has jurisdiction
and the case is being duly investigated and prosecuted by its authorities or these authorities
have decided, in a proper manner, not to prosecute the person concerned.
The ICC may override this jurisdiction if there is inability or unwillingness in the
prosecution or in the decision not to prosecute. It is important to note that this question
arises only if the state undertakes an investigation or prosecution. If the state chooses not
to investigate or prosecute, for whatever reason, then the case is admissible before the ICC.
Inability and unwillingness are spelled out in article 17(2) and (3):
2.
Pour déterminer s’il y a manque de volonté de l’État dans un cas d’espèce, la Cour
considère l’existence, eu égard aux garanties d’un procès équitable reconnues par le droit
international, de l’une ou de plusieurs des circonstances suivantes :
a) La procédure a été ou est engagée ou la décision de l’État a été prise dans le dessein de
soustraire la personne concernée à sa responsabilité pénale pour les crimes relevant de la
compétence de la Cour visés à l’article 5 ;
b) La procédure a subi un retard injustifié qui, dans les circonstances, est incompatible avec
l’intention de traduire en justice la personne concernée ;
c) La procédure n’a pas été ou n’est pas menée de manière indépendante ou impartiale mais d’une
manière qui, dans les circonstances, est incompatible avec l’intention de traduire en justice la
personne concernée.
3. Pour déterminer s’il y a incapacité de l’État dans un cas d’espèce, la Cour considère si l’État est
incapable, en raison de l’effondrement de la totalité ou d’une partie substantielle de son propre
appareil judiciaire ou de l’indisponibilité de celui-ci, de se saisir de l’accusé, de réunir les éléments
de preuve et les témoignages nécessaires ou de mener autrement à bien la procédure.
One should also add cases where the national court is unable to try a person not because of
a collapse or malfunctioning of the judicial system, but on account of legislative
impediments, such as an amnesty law, or a statute of limitations, making it impossible for
the national judge to commence proceedings.
JUDICIAL COOPERATION OF STATES WITH INTERNATIONAL CRIMINAL
COURTS
For international criminal courts, state cooperation is crucial to the effectiveness of judicial
process. International, unlike domestic criminal courts, have no enforcement agencies at
their disposal: without the assistance of authorities, they cannot seize evidentiary material,
compel witnesses to give testimony, search the scenes where crimes have allegedly been
committed, or execute arrest warrants.
Models of state cooperation
The ICC is now empowered to issue binding orders to states and, in case of noncompliance, may set in motion enforcement mechanisms. This is not the case for other
international institutions, who must obtain the state's consent for it to collaborate.
See p. 299 for the model where the state has to consent to participate.
Judicial cooperation of states with the ICTY and ICTR
For the ICTY, it's the same as the ICC. This is because at the time it started its activities,
the tribunal was still acting in a state of national chaos.
Article 29
Co-operation and judicial assistance
1. States shall co-operate with the International Tribunal in the investigation and prosecution of
persons accused of committing serious violations of international humanitarian law.
2. States shall comply without undue delay with any request for assistance or an order issued by a
Trial Chamber, including, but not limited to:
(a) the identification and location of persons;
(b) the taking of testimony and the production of evidence;
(c) the service of documents;
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal.
The most commonly requested measures at the investigation stage are the disclosure of
documents presumed to be in a state's possession, and assistance to compel or authorize a
reluctant potential witness to meet with the requesting party.
Possible sanctions for the refusal to cooperate ("Blaskic, subpoena")
What happens if a state refuses to cooperate? Though ICTY Trial Chamber decisions can
prescribe obligations, sanctions for non-compliance are a matter purely for the Security
Council, to which the Tribunal may make a report of non-compliance. The Security Council
is, however, free to take, or not to take, sanctions. The Security Council itself has never
gone beyond publicly condemning the states concerned. Moreover, if it is an individual
who fails to cooperate, the tribunal may hold him in contempt and initiate contemp
proceedings even in absentia (Blaskic (subpoena)). Finally, the collection of evidence may
be carried out by the authorities of the relevant state, but the tribunal's prosecutor is
authorized to undertrake investigations and gather evidence directly on the territory of the
states of the former Yugoslavia, as well as on the territory of those states which have passed
implementing legislation authorizing such tibunal's activity.
Rule 54
General Rule
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders,
summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an
investigation or for the preparation or conduct of the trial.
SEE 54 ET S. OF THE RULES OF PROCEDURE AND EVIDENCE FOR MORE DETAILED
INFORMATION
Dependance on state cooperation, after all—and dependance on political will
The ICTY may also issue orders (the arrest of suspects or transmission of documents) and
subpoenas (see p.301). Despite these various avenues of direct action, there is often no
substitute for active state assistance. Any investigative act that cannot safely be performed
without the assistance of police officers or in relation to documents in the state's possession
requires active state cooperation. The execution of search and arrest warrants, leaving aside
the exceptional involvement of international forces in Croatia and Bosnia, can usually only
be performed with state assistance. The political dimension of securing state cooperation
cannot be overstated. Substantial financial aid and the prospect of membership in the EU
for the states of the former Yugoslavia were important catalysts towards fuller cooperation
with the ICTY.
Judicial cooperation of states with the ICC
A. Rules and practice
Article 86
Obligation générale de coopérer
Conformément aux dispositions du présent Statut, les États Parties coopèrent pleinement avec la
Cour dans les enquêtes et poursuites qu'elle mène pour les crimes relevant de sa compétence.
The obligation to cooperate arises only from "requests" that fall within a form of
cooperation specifically enumerated in Part IX of the ICC Statute. Although the forms of
cooperation enumerated in Article 93 are broad and cover the needs of most investigations,
states are theoretically permitted to prohibit any non-enumerated form of cooperation.
Prosecutor taking direct action
The ICC Prosecutor may take direct action (that is, bypass the usual obligation of making
"requests") in only two circumstances. First, where a state party is "clearly unable to
execute a request for cooperation due to the unavailability of any authority or any
component of its judicial system competent to execute the request" (Art 86(7) RS)1. This
1
Si un État Partie n'accède pas à une demande de coopération de la Cour contrairement à ce que prévoit le
présent Statut, et l'empêche ainsi d'exercer les fonctions et les pouvoirs que lui confère le présent Statut, la
Cour peut en prendre
acte et en référer à l'Assemblée des États Parties ou au Conseil de sécurité lorsque c'est celui-ci qui l'a
provision is not addressed to the case of a non-cooperative state, but rather to a situation
where the apparatus of the state has broken down or been displaced by rebel force. This
provision requires inability and unavailability, not unwillingness. The PTC is even
required, if possible, to have regard to the views of the state concerned.
Second, the Prosecutor may, under Article 99(4)2, execute a request that does not require
"compulsory measures" without judicial authorization under three conditions listed p.303.
Under Regulation 108, states parties are however expressly authorized to challenge the
action, either before or after its execution, before a PTC.
The ICC's more "horizontal" approach to cooperation (as opposed to vertical—in the case
of the ICTY and ICTR)
The ICC Statute was a product of inter-state negociations and reflects a far greater
solicitude for the prerogatives of states, as opposed to the ICTY and ICTR. States, for
example, have the right to reject requests for the production of information relating to their
national security, which is not the case for the ICTY and ICTR. A further shortcoming is
the absence of any express obligation to transfer witnesses. Article 93(1)(b) however
obliges to produce all required evidence, which is interpreted as obliging the witness'
comparution via video-link, for instance (p.304).
However, a referral by a state itself normally implies that it wishes to cooperate fully, and
a Security Council referral usually imposes obligations of cooperation independent of the
ICC Statute. For example in Lybia and Darfur, Security Council resolutions have required
the addressees to "cooperate fully and provide any necessary assistance".
B. Main features of the state cooperation model under the ICC scheme
In contrast to the ICTY and ICTR, which are creatures of the Security Council moulded
into their shape in large part by the judges, the treaty-making process that led to the
adoption of the ICC produced a more state-orientated approach. The final outcome, as has
been rightly pointed out, may be held to be "a mixture of the horizontal and the vertical
model".
Under Article 90(6) and (7), a state party may decide between compliance with the
saisie.
2
4. Sans préjudice des autres articles du présent chapitre, lorsque cela est nécessaire pour exécuter
efficacement une demande à laquelle il peut être donné suite sans recourir à des mesures de contrainte,
notamment lorsqu'il s'agit d'entendre ou de faire déposer une personne agissant de son plein gré, y compris
hors de la présence des autorités de l'État partie requis quand cela est déterminant pour la bonne exécution
de la demande, ou lorsqu'il s'agit d'inspecter un site public ou un autre lieu public sans le modifier, le
Procureur peut réaliser l'objet de la demande directement sur le territoire de l'État, selon les modalités
suivantes :
a) Lorsque l'État requis est l'État sur le territoire duquel il est allégué que le crime a été commis et qu'il y a
eu une décision sur la recevabilité comme prévu aux articles 18 ou 19, le Procureur peut exécuter
directement la demande, après avoir mené avec l'État requis des consultations aussi étendues que possible ;
b) Dans les autres cas, le Procureur peut exécuter la demande après consultations avec l'État Partie requis et
eu égard aux conditions ou préoccupations raisonnables que cet État a éventuellement fait valoir.
Lorsque l'État requis constate que l'exécution d'une demande relevant du présent alinéa soulève des
difficultés, il consulte aussitôt la Cour en vue d'y remédier.
extradition request from a non-party state and the court, if the state party is bound with the
non-party state by an extradition treaty. Also, Article 93(4) provides that "a state party may
deny a request for assistance, in whole or in part, only if the request concerns the production
of any documents or disclosure of evidence which relates to its national security".
Admittedly, Article 72, to which this provision refers, does envisage a complex mechanism
designed to induce a state invoking national security concerns to disclose as much as
possible of the information it wishes to withhold.
Consequence of failure to cooperate
Article 87(7) ICC Statute
Si un État Partie n'accède pas à une demande de coopération de la Cour contrairement à ce que
prévoit le présent Statut, et l'empêche ainsi d'exercer les fonctions et les pouvoirs que lui confère le
présent Statut, la Cour peut en prendre acte et en référer à l'Assemblée des États Parties ou au Conseil
de sécurité lorsque c'est celui-ci qui l'a saisie.
The question of surrender of nationals
The constitution or the laws of many civil law countries lay down the principle that
nationals may not be extradited for prosecution abroad. The ICTY, in Blaskic, held that
states may not invoke their national legislation, even of constitutional rank, to evade to
comply with an international obligation. See p. 308 for the argument. Article 102 of the
ICC Statute reproduces this idea3:
3
Article 102
Emploi des termes
Aux fins du présent Statut :
a) On entend par « remise » le fait pour un État de livrer une personne à la Cour en application du présent
Statut.
b) On entend par « extradition » le fait pour un État de livrer une personne à un autre État en application
d'un traité, d'une convention ou de la législation nationale.
COURS 5: HISTORICAL EVOLUTION OF INTERNATIONAL CRIMINAL COURTS
Kaiser Wilhelm was to be put on trial in the Versailles treaty after WWI. The Kaiser fled
to the Netherlands and was never prosecuted. Certain German officers were tried after
WWI. There was also, at this time, the Treaty of Sèvres, concluded with the Ottoman
Empire-- to prosecute Turkish Empire millitary officers for crimes against humanity. This
was however abandoned.
Later, after WWII, the history of ICL really began with the Nuremberg Trials of the nazi
officers. The Russians and British wanted to simply line up nazi leaders and shoot them.
It's the USA that wanted the trials to happen-- in order to "un-nazify" Germany. They
wanted the nazi ideal to disappear and the trials were the best way to do it. The crimes
against the nazis, such as a cleansing of former eastern German territories in Danzig and
Königsberg, were excluded from the court's jurisdiction since the latter was only for crimes
committed by nazis. In this sense, it's victor's justice.
It's quite an incredible moment in these trials to see these nazi "gods" on trial. Up to then,
such high-ranking officials had never been prosecuted. Since the nazis meticulously
documented all their activities, it made it much easier to prosecute the nazi leaders. Another
revolutionary point was the use of film. Americans filmed massive piles of bodies in mass
graves and this was shocking to see. It unraveled the truth to the German people and
promoted rule of law in a country where rule of law had been severely compromised in the
last decade. These trials were very big. Most nazi leaders were condemned to death and
hanged. One or two were acquitted. A couple were sentenced to prison.
In WWII, the novelty was that technology allowed to go as far as to destroy the morale of
the enemy. Before then, war was only between soldiers and civilians were left unharmed.
With strategic bombing, destroying the factories and going as far as killing civilians (and
bombing entire cities) in order to destroy the morale of troops. People thought that these
kinds of strategies would make war shorter. Strategic bombing quickly became illegal.
ICL retributes, puts a precedent and sends the message that "we will put on trial those
committing such atrocities".
Another precedent was the Tokio Tribunal, which put on trial Japaneese officials, except
the Emperor-- his trial would have been a terrible offense to the Japaneese people. In this
case there was no international agreement for this tribunal. The US was the only one
carrying out trials. A couple years after, the US was more interested in gaining Japan as an
ally. So many criminals did not serve their full sentence.
Another goal for these tribunals was to expose the public to truth. The average German
was shown propaganda films where concentration camps were pictured as holiday spots
and where Jews had balls and danced joyfully. The images of the piles of bodies was a
shock to the German population.
After this, in 1945, the UN was established. At this time, experts were given the mandate
to draft a code of offences against mankind-- which codified the Nuremberg jurisdiction.
The experts were also given the mandate to establish an international criminal court.
During the cold war, no head of state wanted the international criminal court to exist
because they were affraid it would eventually prosecute them.
After WWII, everyone agreed that "never again" would we let such terrible violence to
happen. However, almost ten genocides happended in the third world after WWII: Pol Pots
(many million people died under the Khmers Rouges), Ethiopia, Chile, Duvalier, ... All the
leaders behind these massacres escaped prosecution by moving to another country.
Duvalier went to France and the leader of Ehtiopia went to Uganda. There was an immense
sense of impunity among the international community.
Since the Khmers Rouges were against the Soviets, the international community
supported them... They committed genocide, but it was "ok" because it was carried out
against Soviets. ICL in the cold war was therefore completely reduced to a joke.
By the end of the cold war, people felt like a new chapter had to be opened. Suddenly, the
war in Serbia breaks out and no one wants to intervene. The Security Council then
established the ICTY. It was never seen before that the Security Council could establish a
tribunal-- it usually authorises the use of force. All of a sudden, there is an international
tribunal. People said that "this is not Nuremberg, we will try everyone, not only the victors".
But again this was really not like Nuremberg because "we" did not win a war against
"them". This was like having nuremberg after agreeing to Hitler's annexation of
Czekoslovakia. The prof said he thought the court would not last more than 2 months but
he ended up staying there 7 years. The war began by the work of political leaders who
instigated hatred towards an ethny to its people.
Serbia was taken seriously because it was part of Europe. It was close to home. Rwanda,
in constrast, was completely abandoned at the inception of the genocide. The international
community just fkin left and shut its eyes while thousands of people were massacred every
day. After the massacre, the ICTR was established.
50 years after having been given its mandate, in 1945 (of instigating an international
cirminal court) the UN finally drafted the Rome Statute, which was widely ratified. The
US, Russia and China did not ratify the treaty because they want to have a free hand on
prosecution. After 10 years, the ICC has only brought two convictions. The honeymoon for
ICL is kind of over. International justice is costly. So the question is "now what"? What
purpose do these institutions serve? Have we made the world a better place with the ICC?
What is it that we want to achieve with ICL?
NOTES ON: article named "Beyond Impunity: Can International Criminal Justice
Prevent Impunity?"
WARNING: I don't think I have summarized the other article there is to read for this
class.
Beyond dispensing retributivejustice andvindicating the suffering ofvictims,
have these institutions proved to be an effective instrumentfor preventing further interethnic violence and
human rights abuses? This consideration is particularly relevant to the ICTYand
the ICTR since the Security Council established both as measures for the restoration ofpeace
and security under Chapter VII of the United Nations Charter.
The empirical evidence suggests that the ICTYand the ICIR have significantly contributed
to peace building in postwar societies, as well as to introducing criminal accountability into the
culture of international relations. Both institutions have helped to marginalize nationalist political
leaders and other forces allied to ethnic war and genocide, to discourage vengeance by
victim groups, and to transform criminal justice into an important element of the contemporary
international agenda.
In Bosnia-Herzegovina, the work of the ICTY has dramatically
changed the civic landscape and permitted the ascendancy ofmore moderate political forces
backing multiethnic coexistence and nonviolent democratic process. InYugoslavia, the ICTY
helped to delegitimize Milogevid's leadership, as revealed by his attacks on the Tribunal prior
to his overthrow, as well as the later calls for his prosecution by the Serb and Montenegrin
public. In Kosovo, the ICTY indictment did not stem the deportation and abuse of ethnic
Albanians during the NATO campaign, butit has atleastmarginally discouraged anti-Serb vengeance
by the Kosovo Liberation Army (KLA). In Croatia, cooperation with the ICTYhas facilitated
steps toward international integration, discrediting extremist elements and encouraging
liberal political forces to consider the initiation of complementary war crimes prosecutions
before national courts. In Rwanda, the ICTRhas undermined the capacity of Huta extremists
to rehabilitate the remnants of their leadership abroad, and mitigated the severity of Tutsi
reprisals against the Hutu by making accountability an important and constant political factor.
Together with the ICTY and ICTR precedents, the ICC blueprint for a future
international criminaljustice system, howeverweak and limited, has raised accountability to
unprecedented prominence in the politics ofinternational legitimacy. Criminal accusations
increasingly constitute a serious political impediment to the ambitions of existing or aspiring
leaders.
I.
PREVENTION OF ABERRANT CONTEXTS: INSTILLING INHIBITIONS AGAINST GENOCIDE
Yet the potential impact of the IGIYand the ICTR on political
behavior is subtle and long-term, profound and lasting. Publicly vindicating human rights
norms and ostracizing criminal leaders may help to prevent future atrocities through the power
of moral example to transform behavior.
"There was plenty of racial and historical
tinder available inYugoslavia. But the conflagrations didn't break out through spontaneous
combustion. Pyromaniacs were required.
The focus of punishment should be the prevention of such deliberately induced aberrant
contexts, within which habitually lawful social relations degenerate into unrestrained violence.
In liberal societies, the criminal law model presupposes some moral choice or moral freedom
on the part of the putative criminal. In many of the most hideous international crimes,many of the
individuals who are directly responsible operate within a cultural universe that
inverts our morality and elevates their actions to the highest form of group, tribe, or
national defense. Afteryears or generations ofacculturation to these views, the perpetrators
may not have had the moral choice that is central to our notion of criminal responsibility
The central issue is whether and how punishment can prevent such aberrant
contexts prior to their occurrence, or prevent their recurrence in postconflict situations.
Prevention of elite-induced mass violence can operate through both conscious and unconscious
responses to punishment. Where leaders engage in some form of rational cost-benefit
calculation, the threat of punishment can increase the costs of a policy that is criminal under
international law.(PAYAM IS REALLY CRITICAL ABOUT THIS) Leaders maybe desperate, erratic, or
even psychotic, but incitement to ethnic
violence is usually aimed at the acquisition and sustained exercise of power. As Professor
Ehrlich suggests, "willful engagement in even the most reprehensible violations of legal and
moral codes does not preclude an ability to make self-serving choices."15 Momentary glory and
political ascendancy, to be followed by downfhll and humiliation, are considerably less attractive
than long-term political viability.
Furthermore, in an integrated world community, international
legitimacy is a valuable asset for aspiring statesmen, no matter how remote their fiefdoms
may be. Even an isolated Somali orAfghan warlord cannot entirely disregard the relation
between international acceptance and long-term survival. The stigmatization associated with
indictment, as much as apprehension and prosecution, may significantly threaten the attainment
of sustained political power.
Besides the conscious fear of punishment, there is another, more subtle, dimension to general
prevention-almost "constructivist," ifyou will-that operates to prevent aberrant contexts by
instilling "unconscious inhibitions against crime" or "a condition of habitual lawfulness" in society.'
the expression ofsocial disapproval through the
legal process may influence moral self-conceptions so that "illegal actions will not present
themselves consciously as real alternatives to conformity, even in situations where the potential
criminal would run no riskwhatsoever of being caught.
II.
YUGOSLAV ANOMALIES: WHITHER THE WORSHIP OF NATIONALIST SAVIORS?
The focus of the present inquiry is the long-term impact of the ICTY on postconflict peace
building. Has the ICTYcontributed to the stigmatization and marginalization ofultranationalist
leaders and ideologies allied with ethnic hatred and violence? Or have indicted leaders
been supported by local political institutions in an expression of ethnic solidarity? Has the
broader public distanced itself from indicted leaders despite a common ethnic affiliation? Or
has indictment only reinforced the martyred image of nationalist saviors, and the ICTYbeen
dismissed as an illegitimate institution?
The Arrest of Krajifnik
The relative indifference of most Serbs to the arrest illustrates the ICTY's effect on peace buildingdiscrediting the remnants of wartime
ultranationalism and preventing the resumption of interethnic conflict. Fearing the creation of an SDS
martyr, a
moderate Bosnian Serb politician remarked that the arrest might play into the hands of the
extremists and "radicalise the political environment."
Itis not suggested that a mechanical cause and effect operates between IGTYindictments and
the moderation ofBosnian Serb politics
Furthermore, as serious economic problems such
as 90 percent unemployment afflict certain areas, people are preoccupied with daily survival
and opportunities for progress. Although the situation has probably changed for the better in
the intervening years, a 1997 U.S. Information Agency poll indicated that no more than 6
percent of the ethnic groups in Bosnia regarded the issue of war crimes prosecutions as urgentY
In addition to the graft and corruption of his government, the stigma
ofYugoslavia's pariah status and the devastating consequences of economic sanctions on the
people's standard ofliving can reasonablybe seen as primary reasons for the eventual collapse
of the regime, through both the ballot box and massive street demonstrations and strikes
Instead ofdwelling on sending Milogevi6 to The Hague,
the opposition asked for Europe's help in "replac [ing] the regime and democratiz ling] the
country, while intimating that punishingwar criminalswould be a logical consequence of such
changes.
without the ICIYindictment, an amnesty deal between the vulnerable opposition
and Milogevi6would clearlyhave been far likelier. With the addedweight of the international
community acting through the ICTY, the opposition to Milogevi6 during the postelection
transition to Ko~tunica's rule was greatly strengthened.
III.
RESURRECTION IN RWANDA: REPAIRING THE IRREPARABLE
In contrast to the origin of the ICTY, the initial proposal for the establishment of the
ICTR came from the Rwandese government, and not the international community.' The government
supported such an institution, inter alia, because of its desire to avoid "any suspicion
of its wanting to organize speedy, vengeful justice
Notwithstanding the various conflicts between the ICTR and the Rwandese government
as to the speed and control ofproceedings and the division oflabor between the Tribunal
and national courts, this policy of accountability, aimed at discrediting the Hutu extremists, has
also restrained the extent ofanti-Hutuvengeance killings. Under the shadow ofICTRproceedings
against leadership figures, the diversion of popular fury at the gnocidaires through the
national criminaljustice system, however inadequate and rudimentary, appears to have exercised
a moderating influence in the postconflict peace-building process. The detention and trial of
tens of thousands ofginocidaires before Rwandese courts may be viewed as an alternative to mass
expulsions or widespread extrajudicial executions and private revenge killings.
the decapitation of the gbnocidaire leadership has thwarted any political rehabilitation
and military reorganization of Hutu extremism. This is the result of the arrests as well
as the stigmatization of those associated with the previous government. Without the ICTR, it
would have been much easierfor the defunct Interahamwe to find political sympathizers, and to
launch a more vigorous campaign against the successor government
The ICTR's other key role in postconflict peace building is in moderating Tutsi revenge killings
against Hutu.
The relationship between the ICTRand national trials manifests considerable complexity,
even in achieving national reconciliation. The ICTRhas often been faulted for its remoteness
from the Rwandese people. Its geographical location inArusha, Tanzania, makes itvisibly distant,
even though it has tried increasingly to inform the public about its activities through the
Rwandese media.
ProfessorJos6 Alvarez points out that prosecutions before Rwandese courts
are preferable to ICTR adjudication because "localjustice is more accessible, more compatible
with community expectations, and... may present greater opportunities for control overboth
criminal and civil proceedings." However[T] here are probably only about sixty private lawyers in the entire
country.Security problems and the politicization of thejudiciary also impede the holding of international
trials in Rwanda
IV. MAKING ACCOUNTABILrY FASHIONABLE: CHANGING THE RULES OF LEGITIMACY
Beyond the formerYugoslavia and Rwanda, the broader impact of the ICTYand the ICTR
on transforming a culture of impunityshould notbe overlooked. These institutions have "mainstreamed"
accountability in international relations and thus instilled long-term inhibitions
against international crimes in the global community. The establishment of the ICTYand the
ICTR helped to revive the process of adopting a statute for an international criminal court.
Despite its limitedjurisdictional reach, the ICC will make it increasingly difficult for states to
avoid their obligations to impose individual accountability for international crimes. Pending
the entry into force of the ICC statute, the relative success of the two international criminal
tribunals has brought calls for ad hoc judicial intervention in response to other large-scale
atrocities. The increased national prestige associated with accountability and the stigma attached
to the failure to prosecute international crimes have also encouraged third-party states
to use their courts to assert universaljurisdiction over accusedwar criminals. Several states have
prosecutedYugoslav or Rwandese perpetrators, even when no international indictments had
been issued. 9 In the Pinochetnational case, proceedings before English and Spanish courts gave
impetus to renewed proceedings before the Chilean courts, despite once insurmountable
political obstacles.
The international community increasingly views impunity for large-scale atrocities as an
impediment to postconflict peace building and stability. A stark example is the "absolute and
free pardon and reprieve" granted to the insurgent RUF under the 1999 Lom6Agreementin
Sierra Leone, concluded by the democratically elected government under international pressure.
92 In a ruthless campaign aimed at profiting from Sierra Leone's vast gold and diamond
reserves, the RUF attempted to win the "allegiance" ofpeople through the exhaustive employment
of terror. RUF tactics included the abduction and forced recruitment of children and the
use of narcotics to turn them into effective killers, often against their own family members.
Widespread killing, rape, and torture were common, and those suspected of supporting the
government-as well as their children and infants-had limbs amputated in a form of "rule by
terror." As part of an internationally sponsored "solution" to the horrific war of atrocities
plaguing Sierra Leone, the RUF leader, FodaySankoh, was appointed vice president and chairman
of the Commission for Strategic Mineral Resources and Development, in a power-sharing
agreementwith the democratically elected government of PresidentAhmad Tejan Kabbah.
Thus, Sankoh was allowed to maintain control over the natural resources that had financed his
war of terror against the civilian population since 1991. Predictably, Sankoh was nota reliable
partner. He continued his ruthless quest for absolute power and supremacy, as if the Lom6
Peace Agreement had changed nothing. The atrocities continued unabated, as did the pillage
of the diamonds and gold. The RUF also took hostage several hundred peacekeepers from the
UN Assistance Mission in Sierra Leone. Sankoh attempted to escape from the capital city of
Freetown but was eventually arrested by government forces and now faces prosecution.
Thereafter, the government asked the Security Council to establish a special court for Sierra
Leone "in order to bring and maintain peace and security in Sierra Leone and the WestAfrican
subregion."93 The Security Council endorsed this request on the understanding that "the
amnesty provisions of the [Lom6] Agreement shall not apply to international crimes." 94 In
retrospect, the Sankoh affair offers additional evidence that impunity is not an effective instrument
for peace and stability.
The mainstreaming ofcriminaljustice in international relations has created an incentive in
some instances for "preemptive" national proceedings, strengthening moderate political
forces committed to reconciliation. For example, despite considerable resistance, President
Abdurrahman Wahid of Indonesia has shown an unprecedented willingness to investigate the
atrocities committed by military and paramilitary forces in East Timor before and after the
population voted in favor of independence on August 30, 1999. The UN Commission on
Human Rights established an International Commission of Inquiry on East Timor, 95 which
found "patterns of gross violations of human rights and breaches of humanitarian law" 96 and
recommended the establishment of an "international human rights tribunal ....to try and
sentence those accused."9" In response to these demands, President Wahid indicated his preference
for trials "to take place at home." UN Secretary-General KofiAnnan supportedWahid
92 See,
eg., Sean D. Murphy, Contemporary Practice of the United States, 94 AJIL 369 (2000).
LetterDated 9August2000from the PermanentRepresentative ofSierraLeone to the United Nations Addressed
to the President of the Security Council, UN Doc. S/2000/786, annex (Aug. 10, 2000).
4 SC Res. 1315, preambular para. 5 (Aug. 14,2000), obtainablefrom<http://ivwv.un.org/documents>.
"For the Report of the International Commission of Inquiry on EastTinorto the Secretary-General, see Identical
Letters Dated 31January 2000 from the Secretary-General Addressed to the President of the General Assembly, the
President of the Security Council and the Chairperson of the Commission on Human Rights, UN Doc. A/54/
726-S/2000/59, annex (Jan. 31, 2000).
Id. at 29, para. 123.
"Id. at 35-36, para. 153.
93
[Vol. 95:7
SYMPOSIUM: STATE RECONSTRUCTION AFTER CIVIL CONFLICT
and emphasized that an international tribunal would not be established if the legal proceedings
in Indonesia were "fair and transparent." s
InJanuary 2000, an Indonesian commission ofinquiryadvised thatAttorney General Marzuki
Darusman should investigate six generals, including General Wiranto, who had served as chief
of staff of the armed forces and was currently coordinating minister of policy and security in
the cabinet. The Hasibuan commission found" 'convincing evidence' that the six men [were]
jointly responsible for murders and arson in East Timor after the referendum" and that'Wiranto
is guilty of negligence because as chiefofstaffhe did not take timely action to curb the violence
in East Timor."' President Wahid subsequently dismissed General Wiranto, although the Indonesian
Parliamentlatervoted a general bill of amnesty. Observers point out that the Indonesian
armed forces did not attack the findings of the commission because it had been established "as
a fortress to preempt a plan to setup an international tribunal on the mayhem in EastTimor.""'
According to AirVice Marshall Graito Usodo, "The last thingwe want is for outsiders to interfere
in our internal matters." °1 Despite fears of a military coup, Wahid prevailed in a contest
of strength with General Wiranto and, with the support of the military, ordered Wiranto's
resignation pending completion ofaformal investigation by the attorney general. In September
2000, the attorney general indicted nineteen officials for crimes in East Timor, including three
lower level generals and a former provincial governor. Although Wiranto was not included
among the accused, Indonesian prosecutors indicated that other suspects were not ruled out
and said publicly that theywere "planning to take an incremental approach, using information
gleaned from lower-level officials to assemble cases against the senior ones.""2 Calling the
indictments "an encouraging andvery positive first step," the special representative of the UN
Secretary-General in East Timor, Sergio Vieira de Mello, suggested that " [w] e shouldn't be
disappointed if the glass is only half full now."'
President Wahid embraced accountability notjust to appease the international community,
but also to check the power of the military, strengthen democracy, and promote national
reconciliation. Changes in the military command, includingWahid's order for the resignation
of General Wiranto, were partially linked with international pressures but clearly served his
democratic and reformistagenda. One commentator observed that, from the time of his election
in October 1999, Wahid had "set about loosening the Indonesian military's well-fortified
power base, brick by cautious brick,"" ° including through prosecutions for abuses. "It will help
him.., that unless Indonesia proceeds with its own trials, the UN is ready to create an
international criminal tribunal on EastTimor."'° 5Accountabilityforatrocities and corruption,
itwas noted, "is the key to obtaining the international investment and aid Indonesia desperately
needs. Mr. Wahid is playing his aces-democratic legitimacy and international supportto
break with the past."l°
Wahid has been especially concerned with interethnic reconciliation and national unity.
Aware that military abuses have weakened support forjakarta's rule in outlying provinces, he
has prosecuted human rights abuses to moderate the centrifugal forces tearing apart the heterogeneous
archipelago, particularly in the province ofAceh in northwestern Sumatra. Ac48 WahdReaffirms Commitment toEast7imorPivsecut4FBISDoc.SEP20000216000033 (Feb. 16,2000) (trans.
ofJAARTA
DETIX, Internet version, Feb. 16, 2000).
" Indonesia Finds Generals Involved in Timor Violence, FBIS Doc. FTS20000201000387 (Feb. 1, 2000) (trans. of
NRC
HANDELSBLAD (Rotterdam),Jan. 31, 2000, at 1).
" Indonesian Militay ETindings Must beProven in Court,'FBIS Doc. FS20000201000054 (Feb. 1, 2000) (quoting
JAKARTA POST, Internet version, Feb. 1, 2000).
101 Id
uRajiv Chandrasearan1, 9Ac uedofEastTimorAtrocities:B ut Top GeneralsAreMissingfromIndonesia'sListofSuspects,
INT10'L3 HERALD TRiB., Sept. 2-3, 2000, at 4. Id.
10 UKDaily ViewslndonesianPresidentRiskyBusinessF, BISDo. FTS20000201000753 (Feb. 1, 2000) (quoting editorial,
TIMES (London), Internet version, Feb. 1, 2000).
105 Id.
2001]
THE AMERICANJOURNAL OF INTERNATIONAL LAW
cording to a member of the Indonesian Commission of Inquiry into Human Rights Violations
in East Timor, 'The killings inAceh are far more horrible than those that occurred in East Timor
[in 1999]."17 On May 17, 2000, an Indonesian court convicted twenty-four members of the
armed forces and one civilian for the murder ofstudents in the Free Aceh Movement. These
prosecutions were linked with the first cease-fire and peace negotiations with the separatist
insurgents in a twenty-five-year-old conflict that has claimed thousands oflives. 8 Indeed, such
is the importance of accountability to reconciliation in the newly democratic Indonesia that
President Wahid has even initiated ajudicial inquiry into the killing of some five hundred
thousand "communists" in the 1965-1966 coup that brought President Suharto to power."
(The political ambition ofSuharto's children may also explain this measure.) Despite political
limitations, Wahid's efforts suggest that international demands for criminaljustice can inspire
action by national courts, and that such pressures can be used to weaken the grip of militarist
elements with aview to strengthening democratic forces and promoting national reconciliation.
V. ACCOUNTABILITY AND THE "NEw REALiSM": TOWARD "PRAGMATIC IDEALISM"
The current prominence of accountability, and its emergence as a significant element of
international relations, is a reflection of a desire forjustice, as well as utilitarian objectives of
postconflict peace building and the long-term prevention of mass violence. Impunity is often
a recipe for continued violence and instability. The examples of the formerYugoslavia, Rwanda,
Sierra Leone, and other transitional situations demonstrate how hard it is becoming even for
realpolitik observers and diehard cynics to deny the preventive effects of prosecuting murderous
rulers. Indeed, the rules of legitimacy in international relations have so dramatically changed
since the inception of the ICTY, the ICTR, and the ICC during the 1990s that accountability
is arguably a reflection ofa new "realism." A past view of policy based on principles ofjustice
as naive and unrealistic has been seriously challenged by the convergence of realities and ideals
in postconflict peace building and reconciliation.
Accountability is ultimately effective when it conforms with the broader policy contextwithin
which it operates. In contrast to the prevention of ongoing atrocities through military
intervention or peacekeeping, and substantial postconflict economic assistance and social rehabilitation,
resort to international tribunals incurs a rather modestfinancial and political cost.
However, the attractive spectacle of courtroom drama, which pits darkness against the forces
of light and reduces the world to a manageable narrative, could lead international criminal
justice to become an exercise in moral self-affirmation and a substitute for genuine commitment
and resolve. Postmortem justice without a corresponding commitment of military,
political, and economic resources significantly dilutes the message of accountability and undermines
its long-term viability in preventing crimes.
International criminal justice also cannot enjoy long-term credibility if it becomes an
instrument of hegemony for powerful states. Understandably, in a slightly primitive international
order built on the anarchy of power and state sovereignty, the early glimmerings of
international criminal justice manifest themselves in selective ad hoc accountability. It is
reasonable to assume that the progressive internalization of international criminaljustice will
gradually spread from the periphery to the center and give rise to a more inclusive universal
framework, possibly through awidely ratified ICC statute togetherwith vigilant and invigorated
national or foreign courts. If the international community is to move beyond the currently
fragmented assortment ofjurisdictions to a coherent system ofjustice, a great burden falls on
the shoulders of influential states to set a fitting moral example.
107
President Wahid Security Situation in Aceh Improving FBIS Doc. SEP20000317000003 (Mar. 17, 2000) (quoting
JAKARTA POST, Internet version, Mar. 17,2000).
'"SeeRajivChandrasekaran &AryantiRianom, 24 SoldiersAreConvictedofKillingAceh Vi!!agers, INT'LHERALDTRIB.,
May 18, 2000, at 1.
" SeeMichael Richardson, Wahid Seeks Inquiry into 1960s Killings in Indonesia, INT'L HERALD TRIB., Mar. 30,2000, at 1.
[Vol. 95:7
2001] SYMPOSIUM: STATE RECONSTRUCTION AFTER
CIVIL CONFLICT 31
No one should entertain the illusion that the relative success of the ICIY, the ICTR, and the
ICC process, or the engagement of national and foreign courts, has somehow exorcised the
specter of genocide and other massive crimes from our midst. The reality ofwidespread atroci- o
ties in Africa and elsewhere leaves little room forjudicial romanticism and even less for moral
triumphalism. Achieving effective prevention against an entrenched culture of impunity, and
fostering inhibitions against widespread rape, pillage, and murder in a context of habitual
violence, cannot be realized through the efforts of a few ad hoc tribunals and national trials
here and there. As ProfessorDavid Wippman has observed, international criminal prosecutions
may"strengthen whatever internal bulwarks help individuals obey the rules ofwar, but the general
deterrent effect of such prosecutions seems likely to be modest and incremental, rather
than dramatic and transformative."" 0 Yet, in contrastwith the gloom that encircled those seekingjustice
in the not-so-remote past, even these modest and early glimmerings ofinternational
criminal justice may be dramatic and transformative.
"' DavidWippman, Atrocities,D eterrence,a ndt heLimits oflnternatio
COURS 6: NATIONAL V. INTERNATIONAL JURISDICTION (CONTINUED)
What's the role that national courts have in the in international criminal law system: this
is the question we're tackling today. Read very carefully Kenya and Lybia decisions for
next class.
The ICC Statute has 128 articles, as opposed to ICTY and ICTR who only have about 20
articles.
The Rome Statute states the concept of complementarity in its preambule and in article 1
and 17. The fact that this concept is in the preamble indicates its centrality. Article 17 is
the core complementarity provision. This concept was said to be the cornerstone of the
statute while it was crafted.
The ICC only has the means to prosecute a handful of perpetrators, so it only makes
sense to relegate the rest over national courts.
The "duty" vs the "obligation" to prosecute
There is no provision in the Rome Statute that creates an obligation to prosecute
international crimes. The preamble only says that "states have a duty to prosecute
international crimes". There is no proper legal obligation to prosecute international
crimes. If a state does not exercise jurisdiction, the ICC can intervene under the
complementarty principle-- that's not an obligation to prosecute.
There's no obligation to prosecute because in some cases we want states to be able to
refer a case themselves if they don't have the means to do the prosecution.
The duty of states to prosecute in the preamble refers to general international criminal
law. It could only be said that in customary law there is an obligation to exercise
jurisdiction. This duty to prosecute referred to in the preamble is extranious to the statute
itself.
Article 17
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;
(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)
2.
The case is not of sufficient gravity to justify further action by the Court.
In order to determine unwillingness in a particular case, the Court shall consider, having regard to
the principles of due process recognized by international law, whether one or more of the following exist,
as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of
shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court
referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent
with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or
are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the
person concerned to justice.
3.
In order to determine inability in a particular case, the Court shall consider whether, due to a total or
substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused
or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
Article 19
Contestation de la compétence de la Cour ou de la recevabilité d’une
affaire
1. La Cour s’assure qu’elle est compétente pour connaître de toute affaire portée devant elle. Elle
peut d’office se prononcer sur la recevabilité de l’affaire conformément à l’article 17.
2. Peuvent contester la recevabilité de l’affaire pour les motifs indiqués à l’article 17 ou contester
la compétence de la Cour :
a) L’accusé ou la personne à l’encontre de laquelle a été délivré un mandat d’arrêt ou une citation à
comparaître en vertu de l’article 58 ;
b) L’État qui est compétent à l’égard du crime considéré du fait qu’il mène ou a mené une enquête,
ou qu’il exerce ou a exercé des poursuites en l’espèce ; ou
c) L’État qui doit avoir accepté la compétence de la Cour selon l’article 12.
3. Le Procureur peut demander à la Cour de se prononcer sur une question de compétence ou de
recevabilité. Dans les procédures portant sur la compétence ou la recevabilité, ceux qui ont déféré
une situation en application de l’article 13, ainsi que les victimes, peuvent également soumettre
des observations à la Cour.
4. La recevabilité d’une affaire ou la compétence de la Cour ne peut être contestée qu’une fois par
les personnes ou les États visés au paragraphe 2. L’exception doit être soulevée avant l’ouverture
ou à l’ouverture du procès. Dans des circonstances exceptionnelles, la Cour peut autoriser qu’une
exception soit soulevée plus d’une fois ou à une phase ultérieure du procès. Les exceptions
d’irrecevabilité soulevées à l’ouverture du procès, ou par la suite avec l’autorisation de la Cour, ne
peuvent être fondées que sur les dispositions de l’article 17, paragraphe 1, alinéa c).
5. Les États visés au paragraphe 2, alinéas b) et c), soulèvent leur exception le plus tôt possible.
6. Avant la confirmation des charges, les exceptions d’irrecevabilité ou d’incompétence sont
renvoyées à la Chambre préliminaire. Après la confirmation des charges, elles sont renvoyées à la
Chambre de première instance. Il peut être fait appel des décisions portant sur la compétence ou la
recevabilité devant la Chambre d’appel conformément à l’article 82.
7. Si l’exception est soulevée par l’État visé au paragraphe 2, alinéas b) ou c), le Procureur sursoit
à enquêter jusqu’à ce que la Cour ait pris la décision prévue à l’article 17.
8. En attendant qu’elle statue, le Procureur peut demander à la Cour l’autorisation :
a) De prendre les mesures d’enquête visées à l’article 18, paragraphe 6 ;
b) De recueillir la déposition ou le témoignage d’un témoin ou de mener à bien les opérations de
rassemblement et d’examen des éléments de preuve commencées avant que l’exception ait été
soulevée ;
The "case" referred to refers to a specific person and his specific conduct. Typically, it
will be the state that will raise the admissibility issue. The actual issue will be between
national and international courts. The defendant may raise the issue as well-- but as the
defendant you usually would prefer have the ICC to intervene, namely because there is
no death penalty and because there are more garanties procédurales.
In order for a state to challenge jurisdiction, what must happen first? There has to be an
arrest warrant issued by the ICC. The ICC will claim jurisdiction over a single case. It has
to be the same person and the same conduct for there to be an admissibility challenge.
This consequently creates an obligation on states to prosecute exactly the same way
(same person/conduct) that the ICC would have prosecuted if they don't want the ICC to
intervene. The ICC will only force states to prosecute in an extremely limited manner.
The Rome Statute’s complementarity system envisages the exercise of national jurisdiction
as the primary means of eradicating impunity. There is, however, no correspondingvobligation on states parties to repress
international crimes. The only remedy for the unwillingness or inability of national courts to prosecute is the exercise of
jurisdiction by the International Criminal Court (ICC). Due to practical constraints, the ICC can only prosecute a small
fraction of international crimes. Thus, the absence of an obligation for national prosecution is inconsistent with an
effective system of complementarity. Moreover, the limited and disjointed obligations under conventional and customary
international law are not an adequate substitute in this regard. In order to gradually complete the complementarity
system, states parties should consider adoption of an Optional Protocol to the Rome Statute enshrining an express and
enforceable obligation to exercise national jurisdiction
If you indict Khadafi, then you're leaving out the other thousands of perpetrators.
National courts are much more efficient than the ICC, namely because they have more
access to evidence and because they speak the local language.
The prof wanted to familiarize us with how limited the scope of the ICC jurisdiction is.
He claims there is a "missing half" to the Rome Statute: the obligation to prosecute
nationally crimes of international concern.
jurisdiction
What are the jurisdiction criteria for the ICC? The conduct must fall within the
jurisdiction of the court. Art. 11: temporal jurisdiction: only after 2002-- the entry into
force of the statute. It is by 2002 that there have been enough states that have ratified the
treaty.
Article 11
Compétence ratione temporis
1. La Cour n’a compétence qu’à l’égard des crimes relevant de sa compétence commis après
l’entrée en vigueur du présent Statut.
2. Si un État devient Partie au présent Statut après l’entrée en vigueur de celui-ci, la Cour ne peut
exercer sa compétence qu’à l’égard des crimes commis après l’entrée en vigueur du Statut pour cet
État, sauf si ledit État fait la déclaration prévue à l’article 12, paragraphe 3.
Triggering mechanisms (art 12)
Article 12
Preconditions to the exercise of jurisdiction
1.
A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with
respect to the crimes referred to in article 5.
2.
In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more
of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in
accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed
on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b)
The State of which the person accused of the crime is a national.
3.
If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that
State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with
respect to the crime in question. The accepting State shall cooperate with the Court without any delay or
exception in accordance with Part 9.
Article 13
Exercise of jurisdiction
The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in
accordance with the provisions of this Statute if:
(a) A situation in which one or more of such crimes appears to have been committed is referred to the
Prosecutor by a State Party in accordance with article 14;
(b) A situation in which one or more of such crimes appears to have been committed is referred to the
Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
(c)
The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.
Art 13(a) and (c)
Art. 13(a) : state referral to the court. The state requests (cannot order) the OTP to do the
prosecution. The OTP will decide whether or not to act. Art. 13(c): the prosecutor's
proprio motu powers. In these cases, the principle of territoriality and nationality apply.
State referral. At the time of drafting, we thought that this triggering mechanism would be
an inter-state mechanism: state A would refer state B. This is a mechanism well-known in
human rights for instance. It ended up being totally different in practice.
Article 14
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.
It really is to the OTP's discretion to decide to prosecute or not after there has been a state
referral.
Art. 13(b)
Art. 13(b): Referral by the Security Council. That's usefull when there is an emergency to
intervene. The decision to intervene can be taken fairly quickly. The ICC is independent
from the UN. The Security Council is therefore referring a case to an organ which does
not even belong to the UN. The territoriality and personnality jurisdiction principles
therefore do not apply when the Security Council refers a case. This allows to prosecute
nationals of states that did not ratify the statute.
SELF-REFERRALS BEFORE THE INTERNATIONAL
CRIMINAL COURT: ARE STATES THE VILLAINS
OR THE VICTIMS OF ATROCITIES?
If commentators believed that
article 14 of the Rome Statute would be used at all, it was argued that
state referrals would rather be initiated against another state by an interested state. It was, for
instance, conceived that ‘‘official-act cases
may well include cases in which an official state act is characterized as
criminal by the ICC prosecutor (acting, very possibly, on a referral
from an aggrieved state), while the state whose national is being
prosecuted maintains that the act was lawful
Shortly after his appointment in April 2003, the Prosecutor, eager
to initiate the first proceedings before the Court, indicated that he
might exercise his proprio motu powers to investigate large-scale
atrocities in the Democratic Republic of the Congo (DRC).9 However,
the first case before the Court, and all subsequent cases (with
one exception) were self-referrals. The controversy began with the
unexpected self-referral by Uganda of the situation concerning the
Lord’s Resistance Army (LRA) in December 2003 pursuant to
Articles 13(a) and 14 of the Statute.10 While some celebrated this as a
promise of justice for the victims of LRA atrocities in northern
Uganda, others criticized it as a one-sided case that risked politicizing
the Court.11 The Democratic Republic of the Congo and the Central
African Republic followed the example of Uganda and referred the
situations on their territories to the Prosecutor in 200412 and 200513
respectively. Similarly, although Coˆ te d’Ivoire did not ratify the
Rome Statute and thus could not invoke Articles 13(a) and 14, it had
accepted ICC jurisdiction in 2003 by way of a declaration under
Article 12(3)14 which in substance amounted to a self-referral. The
only exception to this pattern was the Security Council Chapter VII
referral of the situation in the Darfur region of the Sudan in 2005,Thus, within three years of
the Rome Statute’s entry into force, all but one case before the Court
was based on self-referrals, defying the prognosis that the Court
would be primarily dependent on other, more non-consensual, basis
of jurisdiction.
Most recently in 2009, the Prosecutor for the first time announced
that he would request a Pre-Trial Chamber to authorize an investigation
into the January 2008 post-election violence in Kenya based
on his proprio motu powers under Articles 13(c) and 15 of the Statute.
16 Although this does not constitute a self-referral, the Prosecutor
has sought and received reassurances of cooperation from the Kenyan
government.17 This demonstrates that even with respect to this
triggering mechanism, the Prosecutor relies heavily on State cooperation
in a manner similar to self-referrals.
A state referral kind of goes against the duty to at least try to prosecute? It will be used by states
against their guerrilla enemies and the risk is that the ICC will look like it's only investigating one
side of the conflict. This parctice is in line with a more state consent-oriented approach from the
ICC, as opposed to the ICTY and ICTR, which are more authoritative over states.
The defence of Katanga had submitted that the Democratic
Republic of the Congo was able to prosecute the case and that the
ICC should therefore not proceed. In response to this, the PTC indicated that: The Court would be
unable to exercise its jurisdiction over a
case as long as the State is theoretically willing and able to investigate and to
prosecute the case, even though that State has no intention of doing so. Thus, a
potentially large number of cases would not be prosecuted by domestic jurisdictions
or by the International Criminal Court. Impunity would persist.
(yes but what about cases where the state "prefers" to see the ICC prosecute its enemy because it
is more humiliating to be convicted by the ICC-- on the face of the international community? The
ICC should not be a surrogate court-- it should only act when states are unwilling or unable, not
when they "would prefer" the ICC to prosecute! In this sense, the ICC should seek to have a more
authoritative approach)
In Uganda for instance, although the judiciary is among
the best in Africa, any trials of LRA leaders before national courts
may be perceived as biased in view of deep suspicions of the Government
by elements of the Acholi population in the north. (THE TRIAL COULD NOT POSSIBLY BE
FAIR BECAUSE IT IS THE STATE'S ENEMY).
A second scenario where relinquishment of jurisdiction may be
warranted is where there is a volatile security situation. The
presidents of Sierra Leone and Liberia, fearing a new outburst of
violence in the region if Taylor was tried in Sierra Leone, requested
that the trial be relocated to another country. Where the only alternative to national trials is the
ICC, security considerations may justify self-referrals, and the
remoteness and safety of The Hague may be a distinctive advantage.
A third scenario is where the conduct of a particularly complex
trial in conformity with international standards entails exorbitant
costs that cannot be managed within the limited resources of a State,
especially those in the developing world. Although development
assistance may be an option, a more expeditious solution may be a
referral to the ICC. (I disagree. Ideally, the ICC should give aid and try to help the state to
comply with its duty to prosecute. One could maybe say that this result (state-referrals) is the
outcome of the meeting of idealism and pragmatism-- the otp does need to get convictions and it
might not be realistic to expect good results with the aid that is given if that state wanted the icc
to prosecute in the first place, the icc might then have to make a finding of unwillingness in order
to finally get that conviction, which means a lot of time and money spent for one dude)
II STATES AS BOTH VILLAINS AND VICTIMS
The criticism of self-referrals arises in large measure from the suspicion
that States are invariably pursuing narrow interests that are
inconsistent with the common interest in the suppression of international
crimes.
(following the ICC's approach, there seems to still be very little that can be done when a state is
unwilling to cooperate)
In the contemporary world, power and violence have become
increasingly stateless The proliferation of powerful insurgencies,
terrorist groups, and criminal organizations, has challenged the primacy
of the once untouchable State in the global order. In the UN era however, the vast
majority of genocides and other mass atrocities have been committed
in internal armed conflicts, which now represent 95% of all armed conflicts.This reality should
shape jurists’ attitudes towards self-referrals,
even where a State, desperate to maintain sovereignty and control
over its own territory, invokes ICC jurisdiction to perpetuate its
survival. (well then in that case there should be a finding of inability! Not a self-referral!)
III THE FAILURE OF INTER-STATE ENFORCEMENT
MECHANISMS
In addition to the spectre of failed States, another compelling reason
why Article 14 should encompass self-referrals is because of the
historical failure of inter-State human rights enforcement mechanisms.
For instance,
Article 41(1) of the Covenant on Civil and Political Rights
provides that a State Party may recognize ‘‘the competence of the
Committee to receive and consider communications to the effect that a
State Party claims that another State Party is not fulfilling its obligations
under the present Covenant. To date, there is not a
single instance in which these mechanisms have been utilized. CERD and the Genocide
Convention also include
clause compromissoires recognizing the jurisdiction of the International
Court of Justice in resolving disputes among State Parties. Thus
far, in the few instances where this mechanism has been invoked, it has
involved direct injury to the complaining State. In both cases, the
respondent State was alleged to be responsible for ‘‘ethnic cleansing’’
on the complainant State’s territory.
The referral of the Darfur
situation to the ICC by the Security Council followed by the conspicuous
failure to exert any meaningful pressure on the Sudanese
government to execute arrest warrants is a stark illustration of this
point.56 Absent coercive means at its disposal, the ICC’s dependence
on State cooperation becomes an important factor in its effectiveness.
Whither National Courts? The
Rome Statute’s Missing Half
Absent a means of ensuring that national
courts will assume their share of the burden, the complementarity scheme of
the Rome Statute remains inadequate and incomplete.
In this light, this article proposes the adoption of an instrument enshrining
an obligation for the repression of the ICC core international crimes before
national courtsçwhether by prosecution or extradition12çtogether with a
flexible enforcement mechanism to ensure compliance in widely divergent contexts.
2. The Rome Statute’s Missing Half
The Katanga judgment justifies self-referrals based on the recognized
absence in the Rome Statute of an enforceable obligation to exercise national
criminal jurisdiction.
there is no obligation of aut dedere aut prosequi
(‘prosecute or extradite’)18 under the ICC Statute that would give effect
to international cooperation between states in ensuring prosecution of international
crimes before national courts.
the obligation to repress international
crimes in international law, spread across various conventions as well
as customary law, is haphazard and disjointed. Even if such a duty exists, a further consideration is the
absence of a consolidated enforcement mechanism
such as the ICC that can ensure compliance by states.
An express and enforceable obligation would thus strengthen
the partnership between the ICC and national courts by ensuring a more vigorous
exercise of jurisdiction at the domestic level. (what about unwillingness? The "consequence" to
falling short of respecting the "obligation" to demonstrate willingness to prosecute is the
obligation to transfer the case before the ICC! Having a finding of a violation of the "obligation
to prosecute" would, furthermore, make no difference in the end since the state would not want to
cooperate anyways. I just don't see how that's a problem)
3. Is there an Existing Obligation for Repression of the
Core International Crimes by National Jurisdictions?
A. War Crimes
The most robust and far-reaching obligation to repress international crimes in
treaty law is the ‘grave breaches’ provisions of the 1949 Geneva Conventions
and Additional Protocol I of 1977. Article 49 of the First Geneva Convention,
Article 50 of the Second Geneva Convention, Article 129 of the Third Geneva
Convention and Article 146 of the Fourth Geneva Convention provide in identical
terms as follows:
Each High Contracting Party shall be under the obligation to search for persons alleged to
have committed, or to have ordered to be committed ::: grave breaches, and shall bring
such persons, regardless of their nationality, before its own courts. It may also, if it prefers,
and in accordance with the provisions of its own legislation, hand such persons over for
trial to another High Contracting Party concerned, provided such High Contracting Party
has made out a prima facie case.
these provisions only apply to international armed conflicts. 37
They also evidently only apply to ‘grave breaches’ and not all war crimes as such. Thus, while conventional
humanitarian law provides a variant of ‘primary
universal repression’, it is considerably limited in scope because it does
not apply to internal armed conflicts and, of course, to atrocities committed
outside the context of armed conflict whether international or internal.
B. Crimes Against Humanity
p.1255-1258. Nothing interesting.
C. Genocide
Despite genocide’s designation as the ‘crime of crimes,’53 Article VI of the 1948
Genocide Convention54 provides only that persons charged with genocide
‘shall be tried by a competent tribunal of the State in the territory of which
the act was committed’. Thus, the obligation to prosecute is limited to the
locus delicti although this ‘does not prevent a State from exercising universal
jurisdiction in a genocide case’.
D. An Aut dedere aut prosequi Obligation in Customary International Law?
Absent a comprehensive treaty law basis for primary universal repression,
there may still be a basis in general international law. It is noteworthy that the prohibition of war crimes,
crimes against humanity
and genocide is widely considered as part of the jus cogens. The question is whether
this exalted status imposes any customary law obligations for the repression
of such crimes. The jurisprudence thus far only suggests that jus cogens status
gives rise to a right to prosecute based on universal jurisdiction, but not a
duty.Thus, until the lex ferenda crystallizes into customary law, or is recognized as
a general principle, primary universal repression remains largely a right to be
exercised by states at their discretion.
4. The Need for an Express and Enforceable Obligation
for Repression of the Core International Crimes by
National Jurisdictions
Since practical limitations only allow for international trials
against a small fraction of perpetrators, the mere exercise of jurisdiction by
the ICC may not be an effective remedy where national courts fail to prosecute. That is why the mere
encouragement of states to exercise national jurisdiction
through ‘positive complementarity’83çprimarily related ‘to the ability of
states to conduct national proceedings, not the willingness’84çmay not be a
viable foundation for the long-term effectiveness of the international criminal
justice system.
In addition to the foregoing, a viable complementarity system requires at
least minimal enforcement mechanisms in order to give effect to a duty to
prosecute.
COURS 7: COMPLEMENTARITY
How do you interpret complementarity realistically so that third world countries with
messy judicial systems may respect it if they genuinely try? Or do we have to raise the
bar higher to respect human rights? The ICC is the one deciding if complementarity
applies or not. It has the power to interpret it narrowly or broadly. It is the one that will
decide how high to raise the bar for these third world countries struggling to have a
functioning judicial system.
The ICC is not there to garantee the best standards of human rights. What we want to
know is how low we may allow the bar to go before it becomes problematic.
Article 17
Questions relatives à la recevabilité
1. Eu égard au dixième alinéa du préambule et à l’article premier, une affaire est jugée irrecevable
par la Cour lorsque :
a) L’affaire fait l’objet d’une enquête ou de poursuites de la part d’un État ayant compétence en
l’espèce, à moins que cet État n’ait pas la volonté ou soit dans l’incapacité de mener véritablement
à bien l’enquête ou les poursuites ;
b) L’affaire a fait l’objet d’une enquête de la part d’un État ayant compétence en l’espèce et que
cet État a décidé de ne pas poursuivre la personne concernée, à moins que cette décision ne soit
l’effet du manque de volonté ou de l’incapacité de l’État de mener véritablement à bien des
poursuites ;
c) La personne concernée a déjà été jugée pour le comportement faisant l’objet de la plainte, et
qu’elle ne peut être jugée par la Cour en vertu de l’article 20, paragraphe 3 ;
d) L’affaire n’est pas suffisamment grave pour que la Cour y donne suite.
2. Pour déterminer s’il y a manque de volonté de l’État dans un cas d’espèce, la Cour considère
l’existence, eu égard aux garanties d’un procès équitable reconnues par le droit international, de
l’une ou de plusieurs des circonstances suivantes :
a) La procédure a été ou est engagée ou la décision de l’État a été prise dans le dessein de
soustraire la personne concernée à sa responsabilité pénale pour les crimes relevant de la
compétence de la Cour visés à l’article 5 ;
b) La procédure a subi un retard injustifié qui, dans les circonstances, est incompatible avec
l’intention de traduire en justice la personne concernée ;
c) La procédure n’a pas été ou n’est pas menée de manière indépendante ou impartiale mais d’une
manière qui, dans les circonstances, est incompatible avec l’intention de traduire en justice la
personne concernée.
3. Pour déterminer s’il y a incapacité de l’État dans un cas d’espèce, la Cour considère si l’État est
incapable, en raison de l’effondrement de la totalité ou d’une partie substantielle de son propre
appareil judiciaire ou de l’indisponibilité de celui-ci, de se saisir de l’accusé, de réunir les
éléments de preuve et les témoignages nécessaires ou de mener autrement à bien la procédure.
Art. 17(1)(a): on-going proceedings
Art. 17(1)(b): concluded proceedings, and the state has decided not to prosecute
The question is "how much time do you give to national authorities to mess around trying
to prosecute the person"?
Art.19(4): La recevabilité d’une affaire ou la compétence de la Cour ne peut être contestée qu’une
fois par les personnes ou les États visés au paragraphe 2. L’exception doit être soulevée avant
l’ouverture ou à l’ouverture du procès. Dans des circonstances exceptionnelles, la Cour peut
autoriser qu’une exception soit soulevée plus d’une fois ou à une phase ultérieure du procès. Les
exceptions d’irrecevabilité soulevées à l’ouverture du procès, ou par la suite avec l’autorisation de
la Cour, ne peuvent être fondées que sur les dispositions de l’article 17, paragraphe 1, alinéa c).
Art.19(5): Les États visés au paragraphe 2, alinéas b) et c), soulèvent leur exception le plus tôt
possible.
The challenge may only be done once, before the commencment of the trial. Art. 19(5)
says the admissibility challenge must be done as early as possible.
Kenya decision
Kenya says it is in the process of starting an investigation. There needs to be evidence of
probative value that an investigation is being carried out. In this case, it was apparent that
the state did not have the will to prosecute. The guy is the son of the "liberator" of Kenya
from British colonial power. The guy was the president of Kenya and was immensly
popular. It was therefore clear that the country did not want to investigate.
Lybia (al-senussi)
Here there clearly was no doubt that Lybia did not want to be prosecuted. This situation is
the exact opposite to that of Kenya. Lybia started investigating as soon as possible in order
to keep the ICC at bay. Forcing Gaddafi to be handed out to the ICC would have been a
political scandal-- the militia that suffered massive losses in lives to get to him would never
agree to hand him over. Moreover, even if Lybian authorities were to consent to hand him
over, they would be unable to do so because Gaddafi is in the hands of uncontrolled militia
and the Lybian government does not even have an army.
Clearly, from the point of view of human rights, it is clear that his trial will not meet
Western standards. He does not have a lawyer and witnesses cannot really make it to the
trial because it is dangerous. It is amazing that he was not shot on the spot nor tortured and
that he is fed well, given that people detaining him aren't the central government but the
militia that caught him.
Legal test
According to "Libya", the test is a two-limb test: (1) the same person-same conduct test;
(2) the admissibility test (gravity, unwillingness, inability):
26. As observed by the Appeals Chamber, article 17(l)(a) of the Statute contemplates a two-step test,
according to which the Chamber, in considering whether a case is admissible before the Court, shall
address in turn two questions: (i) whether, at the time of the proceedings in respect of a challenge to
the admissibility of a case, there is an ongoing investigation or prosecution of the case at the national
level (first limb); and, in case the answer to the first question is in the affirmative, (ii) whether the
State is unwilling or unable genuinely to carry out such investigation or prosecution (second limb).
A case is therefore inadmissible before the Court when both limbs of article 17(l)(a) of the Statute
are satisfied.
Jurisdiction: Security Council chapter 7 referral, crimes against humanity, committed after 2002:
so there is jurisdiction.
Admissibility: were there investigations? Yes. Is there unwillingness or inability? Let's see.
For unwillingness, we only take into consideration due process standards when the state is unwilling
to prosecute. When the state is willing to prosecute but does not respect due process, art. 17 does
not apply. The ICC is not a human rights court.
For inability, the ICC wants to allow national courts to take as many responsibilities as possible. In
the Al Sanussi case, the court decided to give Lybia a chance.
NOTES:
National law
the assessment of Libya's ability and willingness to carry out its proceedings against
Mr Al-Senussi must be made with reference to Libya's own national law.
Unjustified delay
Two years have passed since he was incarcerated and the prosecution has not even
formulated any charges. The court says this is not sufficient to declare that there is an
unjustified delay demonstrating that there is no intent to prosecute because Lybia is in
a state of transition and the scope of the investigation encompasses evens having taken
place all over the country during many years.
No legal representation
While the charges have not yet been formulated, there has been a significant amount
of investigations taking place and the defendant was not allowed legal representation
when being interrogated.
Security of testimonies
Nothing has been done so far to secure the security of testimonies but that's not a
problem yet since it does not show bad faith. The state has not willingly made the
situation like that.
Inability
Even if the state is in a state of chaos (security of testimonies, prisonners escaped from
prisons), there is no indication that the proceedings are completely halted. In fact,
proceedings are advancing slowly but steadily. It is however troubling that there is no
legal representation and this will be fatal if it does not change. However, many lawyers
are ready to represent him and it should be arranged shortly. If the situation remains,
the OTP, under Art. 19(10)4, will be entitled to ask for the PTC to rule on the
4
Quand la Cour a jugé une affaire irrecevable au regard de l’article 17, le Procureur peut lui demander de
reconsidérer sa décision s’il est certain que des faits nouvellement apparus infirment les raisons pour
admissibility of the case once over.
First limb (same person, same conduct):
163. As found above, the evidence presented by Libya allows the Chamber to discern the contours
of the domestic case against Mr Al-Senussi and, in turn, to meaningfully compare the alleged
conduct of Mr Al-Senussi with the conduct attributed to him in the Warrant of Arrest issued against
him. The Chamber recalls that the present case before the Court concerns the individual criminal
responsibility of Mr Al-Senussi for the killings and acts of persecution by reason of their (real or
perceived) political opposition to the Gaddafi regime carried out against many civilian
demonstrators and political dissidents, allegedly committed directly or through the Security Forces
during the repression of the demonstrations taking place in Benghazi from 15 February 2011 until
at least 20 February 2011 and as part of a policy designed at the highest level of the Libyan State
machinery to deter and quell, by any means, the revolution against the Gaddafi regime occurring
throughout Libya.
164. The Chamber is satisfied that the facts that have been investigated by the Libyan authorities in
relation to Mr Al-Senussi, as summarised above, ^09 comprise the relevant factual aspects of Mr AlSenussi's conduct as alleged in the proceedings before the Court.'
166. Finally, the Chamber recalls that a number of criminal acts that are alleged against Mr AlSenussi in the proceedings before the Court are qualified, inter alia, by having been inflicted on
civilians "because of [their] political opposition (whether actual or perceived) to Gaddafi's regime".
These actsallegedly constitute the crime of "persecution" within the meaning of article 7(l)(h) of the
Statute. The Chamber notes that this factual aspect of the
allegations against Mr Al-Senussi before the Court is not an element of any of the crimes with which
it is currently envisaged that Mr Al-Senussi could be charged at the domestic level. Nevertheless, as
observed in the Gaddafi Admissibility Decision, the fact that the crimes targeted a particular group
of individuals by reason of the identity of the group "is an aggravating factor which is taken into
account in sentencing under articles 27 and 28 of the Libyan Criminal Code". Accordingly, the
national provisions with which Libya contemplates charging Mr Al-Senussi, together with the
provisions under articles 27 and 28 of the Libyan Criminal Code, sufficiently capture Mr AlSenussi's commission, between 15 and at least 20 February 2011 in Benghazi, of murders and
inhuman acts severely depriving civilians of fundamental rights contrary to international law, by
reason of their political
identity, as alleged in the proceedings before the Court.
Second limb (unwillingness, inability)
Unwillingness
The shortcomings do not amount to unwillingness, only an understandable difficulty in investigating
lesquelles l'affaire avait été jugée irrecevable en vertu de l’article 17.
crimes with a very large temporal and geographical scope in a context of transition. The crimes have
taken place throughout the entire country during many decades and investigating them in a context
of still ongoing violence and political transition is a delicate a difficult endeavour.
Inability
297. The Chamber is of the view that the security situation across Libya is a relevant aspect as it
may, in itself or in combination with other circumstances, impact on Libya's capacity to obtain the
evidence and the testimony that are necessary to conduct genuine criminal proceedings against
officials of the Gaddafi regime, Mr Al-Senussi included. In particular, on this specific point, the
Chamber considers that the security situation must be assessed against the absence of effective
protection programmes for witnesses and the fact that certain detention facilities are yet to be
transferred under the authority of the Ministry of Justice. In this regard, in the Gaddafi Admissibility
Decision, the Chamber considered that these two aspects have a direct bearing on the investigation
against Mr Gaddafi as they prevent Libya from obtaining "the necessary evidence and testimony"
within the meaning of article 17(3) of the Statute. Those aspects were deemed compelling, given
that Libya did not satisfactorily demonstrate that it had collected more than a few sparse items of
evidence as part of its investigation against Mr Gaddafi.
298. The Chamber observes that Libya has provided a considerable amount of evidence collected as
part of its investigation against Mr Al-Senussi. This evidence includes several relevant witness and
victims' statements as well as pieces of documentary evidence, such as written orders, medical
records and flight documents.66^ In the Chamber's view, at least some of the evidence and testimony
that necessary to carry out the proceedings against Mr Al-Senussi -which need not comprise all
possible evidence - has therefore already been collected, and there is no indication that collection of
evidence and testimony has ceased or will cease because of unaddressed security concerns for
witnesses in the case against Mr Al-Senussi or due to the absence of governmental control over
certain detention facilities.
299. Indeed, the Chamber observes that it appears that the domestic proceedings in the case against
Mr Al-Senussi have so far not been prejudiced by these security challenges, as demonstrated by the
progressive and concrete investigative steps taken to date and the fact that the judicial proceedings
against Mr Al-Senussi are currently progressing and have recently reached the accusation stage.
KENYA JUDGMENT
1. When the Court has issued a warrant of arrest or a summons to appear, for a case to be
inadmissible under article 17 (1) (a) of the Statute, national investigations must cover the
same individual and substantially the same conduct as alleged in the proceedings before
the Court.
The words 'is being investigated' in this context signify the taking of steps directed at
ascertaining whether this individual is responsible for that conduct, for instance by
interviewing witnesses or suspects, collecting documentary evidence, or carrying out
forensic analyses.
2. If a State challenges the admissibility of a case, it must provide the Court with evidence
with a sufficient degree of specificity and probative value that demonstrates that it is indeed
investigating the case. It is not sufficient merely to assert that investigations are ongoing.
As Kenya also acknowledges, a State that challenges the admissibility of a case bears the
burden of proof to show that the case is inadmissible. To discharge that burden, the State
must provide the Court with evidence of a sufficient degree of specificity and probative
value that demonstrates that it is indeed investigating the case. It is not sufficient to merely
assert that investigations are ongoing: "[I]t is an essential tenet of the rule of law that
judicial decisions must be based on facts established by evidence. Providing evidence to
substantiate an allegation is a hallmark of judicial proceedings".
Although the information provided by Kenya reveals that instructions were given to
investigate the three suspects subject to the Court's proceedings, the Government of Kenya
does not provide the Chamber with any details about the asserted, current investigative
steps undertaken. Although Annexes 1 and 2 made reference, in a general manner, to
alleged investigations against all the suspects in this case, they do not provide any details
as to the steps that Kenya may have taken to ascertain whether they were responsible for
the conduct that is alleged against them in the proceedings before the Court.
While Kenya asserts, for instance, that "[o]fficers have been re-visiting the crime scenes to
make inquiries and gather any evidence that could assist their investigations in respect of
the six suspects", it provided no evidence thereof, such as police reports attesting to the
time and location of those visits or the cases in which these inquiries took place.
LIBYA JUDGMENT (al-senussi)
Libya's Admissibility Challenge is made on the grounds that Libya is investigating the
same case against Mr Al-Senussi that is before the Court, and, accordingly, that the case is
inadmissible pursuant to article 17(l)(a) of the Statute.
210. The Chamber recognizes that the two limbs of the admissibility test, while distinct,
are nonetheless intimately and inextricably linked. Therefore, evidence put forward to
substantiate the assertion of ongoing proceedings covering the same case that is before the
Court may also be relevant to demonstrate their genuineness. Indeed, evidence related,
inter alia, to the appropriateness of the investigative measures, the amount and type of
resources allocated to the investigation, as well as the scope of the investigative powers of
the persons in charge of the investigation are relevant for both limbs since such aspects,
which are significant to the question of whether there is no situation of "inactivity" at the
national level, are also relevant indicators of the State's willingness and ability genuinely
to carry out the concerned proceedings.
211. The Chamber therefore recalls its previous findings in relation to the first limb of the
admissibility test,493 including, in particular, that the evidence relied upon by Libya
demonstrates: (i) that adequate investigative steps have been taken by the ProsecutorGeneral's investigative team, including conducting interviews of witnesses, obtaining
documentary evidence, and requesting specific information from relevant external sources;
(ii) that multiple lines of investigation have been followed by the judicial authorities with
a view to ascertaining those facts that may be relevant to ascertaining Mr Al-Senussi's
alleged criminal responsibility; and (iii) that, during interviews, witnesses were asked to
provide information of a potential exculpatory nature, to comment on information given
by other witnesses or on items of documentary evidence, and to clarify portions of their
own interviews, while victims were also requested to provide documentary evidence in
support of their assertions as to the harm suffered as a result of the commission of the
reported crimes.
The Chamber then notes that the investigative authorities have a vast array of powers in
their investigation.
216. Finally, the Chamber notes that Libya has been receiving intemational assistance in
several relevant areas. In particular, the UN has been providing assistance in supporting
the Libyan Government to formulate a prosecutorial strategy, as well as providing training
for public prosecutors on screening and criminal investigations.
217. The Chamber considers that all these facts and circumstances are relevant to its
consideration on whether Libya is willing and able genuinely to carry out the proceedings
against Mr Al-Senussi.
220. The Defence alleges that the domestic proceedings against Mr Al-Senussi are being
conducted in violation of his fundamental rights or are otherwise vitiated by procedural
irregularities. In particular, the Defence alleges that: (i) the domestic proceedings against
Mr Al-Senussi are tainted by "unjustified delay";'09 (ii) Mr Al-Senussi has not benefited
from legal assistance to date in the proceedings;'^o (iü) other of Mr Al-Senussi's
fundamental rights have been violated or, at a minimum, there is no indication that they
have been respected;'^^ and (iv) Mr Al-Senussi may be further prejudiced by a systemic
lack of independence and impartiality of the Libyan judicial system.
221. The Chamber reiterates that the assessment of Libya's ability and willingness to carry
out its proceedings against Mr Al-Senussi must be made with reference to Libya's own
national law. Nonetheless, the Chamber emphasises that it is not just any alleged departure
from, or violation of, national law that may form a ground for a finding of unwillingness
or inability.'^4 The Chamber will take into account only those irregularities that may
constitute relevant indicators of one or more of the scenarios described in article 17(2) or
(3) of the Statute, and that are sufficiently substantiated by the evidence and information
placed before the Chamber.
Allegations that the proceedings against Mr Al-Senussi are being conducted with
"unjustified delays"
"[t]he Libyan investigation appears to be stuck - or is being held - at the preaccusation stage
during which a lawyer is denied and the investigation materials remain largely secret. After
two years of investigation, there is apparently still not enough evidence to sustain a single
charge"
225. Contrary to the submission of the Defence, Libya asserts that "any delays in the
proceedings are an understandable result of the challenges Libya faces as a country in
transition and [...] they in no way demonstrate a lack of intention to bring Mr. Al-Senussi
to justice"
227. In the view of the Chamber, the relevant chronology of Libyan proceedings against
Mr Al-Senussi can briefly be summarised as follows: on 9 April 2012, the investigation
commences under the direction of the Military Prosecutor; on 17 July 2012, the Supreme
Court issues a decision clarifying that jurisdiction over cases such as Mr Al-Senussi's fall
within the competence of civilian judicial authorities and, thereafter, the investigation of
Mr Al-Senussi is transferred to the Prosecutor-General; '22 on 5 September 2012, Mr AlSenussi is transferred to Libya by Mauritania'23 and, from that moment on, the Libyan
judicial authorities are able to interview him'24 and confront him, pursuant to article 106
of Libya's Criminal Procedure Code, with the evidence they have collected; on 2 April
2013, Libya files the Admissibility Challenge before this Chamber. Throughout this period,
Libya has continued progressively to conduct its investigation, as demonstrated by the
dates of witness interviews, which appear in the evidence submitted as part of the
Admissibility Challenge. Finally, on 19 September 2013, the case against Mr Al-Senussi is
transferred to the Accusation Chamber.'2'
228. The Chamber observes that the proceedings against Mr Al-Senussi appear to cover
factual allegations that have broad temporal, geographic and material parameters, since
they refer to events and different alleged criminal conducts taking place over a long period
of time and across the entire country.'26 The investigation into the crimes allegedly
committed in Benghazi as part of the repression of the revolution of 2011 appears on its
own to be sufficiently broad in scope to be understandably challenging.
229. In these specific circumstances, the Chamber is of the view that a period of less than
18 months between the commencement of the investigation in relation to Mr Al-Senussi
and the referral of the case against him to the Accusation Chamber cannot be considered to
constitute an unjustified delay inconsistent with an intent to bring Mr Al-Senussi to justice.
Lack of legal representation for Mr Al-Senussi
230. The Defence argues that the Chamber should take into account the fact that Mr AlSenussi does not benefit from legal representation in the national proceedings. According
to the Defence, this circumstance warrants both a finding of inability - on the ground that
Libya is unable to carry out the proceedings against Mr Al-Senussi - and a finding of
unwillingness, given that this "support[s] a finding that Libya is not willing to provide such
protections to this accused" .'2' In this latter respect, the Defence argues that it appears that
Mr Al-Senussi has been interrogated on several occasions in the absence of a lawyer and
has been confronted with evidence against him without the benefit of legal advice,'28
despite repeatedly requesting a lawyer.'
233. At this point of its analysis, the Chamber finds it sufficient to observe that Mr AlSenussi is yet to appoint (or to have appointed to him) a lawyer to represent him in the
domestic proceedings in Libya, notwithstanding his entitlement, under article 106 of
Libya's Criminal Procedure Code, to benefit from legal representation.' 38The Chamber
considers that these are relevant considerations for the purposes of its determination under
article 17(2)(c) and (3) of the Statute
Allegations of violations of Mr Al-Senussi's other fundamental rights during the
domestic proceedings
Nothing interesting.
Allegations of systemic lack of independence and impartiality of the Libyan judicial
system
245. At the outset, the Chamber clarifies that, while submissions of a general nature
indicating significant defects of Libya's national judicial system may be relevant as
"contextual information", information of this kind can be considered only to the extent that
such systemic difficulties have a bearing on the domestic proceedings against Mr AlSenussi, such that it would warrant a finding of one of the scenarios envisaged under article
17(2) or (3) of the Statute.
"the Libyan judiciary continues to be manned by the very same judges who supported the
former regime and who sat in 'special' and 'extraordinary' courts known for their lack of
independence and impartiality and for having endorse[ed] human rights violation for
decades, as acknowledge[d] by Libya itself" and that "it has not been reported that any of
the judges who served during the Gaddafi-era on People's Court and other types of
'extraordinary' or 'special' courts has been dismissed from duty on such basis"
248. The Chamber observes that the independence and impartiality of the judiciary is
recognised in articles 32 and 33 of Libya's Constitutional Declaration of 3 August 2011."3
In particular, article 32 provides that "Judges shall be independent, subject to no other
authority than the law and conscience" and that "[ejstablishing Exceptional Courts shall be
prohibited". Libya submits that it was the "exceptional" or "special" courts operational
under Muammar Gaddafi that carried out human rights violations against persons
considered to be enemies of the regime and "were staffed not by ordinary judicial officers
(who reported to the Ministry of Justice and who still work as judges in Libya today) but
were presided over by court officials specially appointed by Muammar Gaddafi's security
apparatus"."
250. The Chamber also notes that the Supreme Judicial Council is now composed only of
members of the judiciary and is chaired by the President of the Supreme Court instead of
the Minister of Justice."
252. The Chamber has also before it a "discussion paper" of the Libyan Government, dated
13 December 2012, about "Rule of Law and Transitional Justice Priorities" .'83 In this
document, which mentions the relevant measures already taken and identifies necessary
further actions with the assistance of the international community, "[bjolstering the
independence of the judiciary" is considered "an urgent priority in Libya, in order to
increase public trust in rule of law institutions" and has been placed under the responsibility
of the General National Congress, the Ministry of Justice, the High Judiciary Institute, the
Supreme Judicial Council and the Bar Association.'84 As indicated in the document,'8' and
subsequently confirmed by Libya,'86 a review of the code of conduct of Libyan judges in
light of the Bangalore Principles has been carried out with the assistance of the UN and a
UN-led workshop has been held for Libyan judges on judicial integrity and accountability.
The Chamber considers various cases where Libya has made efforts to ensure that its
judicial system be independent. It is cases where high-ranking officers were granted
extensions for their lawyer to have enough time to prepare the defense. It is also cases
where the law and the government state that proceedings must be impartial.
258. In light of the above, and considering all relevant circumstances, the Chamber is not
persuaded that the information provided by the Defence and the OPCV indicates a systemic
lack of independence and impartiality of the judiciary such that would demonstrate, alone
or in combination with other relevant circumstances, that the proceedings against Mr AlSenussi "are not being conducted independently or impartially and they [...] are being
conducted in a manner which, in the circumstances is inconsistent with an intent to bring
[Mr Al-Senussi] to justice", within the meaning of article 17(2)(c) of the Statute.
Facts allegedly affecting the functioning of Libya's judicial system for the purposes
of the proceedings against Mr Al-Senussi
261. The Chamber considers that submissions in relation to the precarious security situation
in Libya - which is not in itself disputed by Libya - may be relevant to the Chamber's
determination of the admissibility of the present case only if they bear upon the domestic
proceedings against Mr Al-Senussi.
262. Accordingly, the Chamber will hereunder address the main submissions alleged to
have a tangible impact on the proceedings against Mr Al-Senussi, namely Libya's lack of
control over (certain) detention facilities, the security threats faced by the Libyan judicial
authorities and organs, and the security concerns for witnesses and victims involved in the
case against Mr Al-Senussi.
267. The Chamber's assessment in the present decision is limited to whether a number of
factual circumstances render Libya unable genuinely to carry out its domestic proceedings
against Mr Al-Senussi. The Chamber is of the view that, depending on all the relevant
circumstances, the lack of control over detention facilities where relevant witnesses may
be located may be a relevant factor to take into account when determining the State's ability
to collect the "necessary evidence and testimony" to carry out the proceedings within the
meaning of article 17(3) of the Statute.
270. The Chamber is of the view that the fact that an unspecified number of detention
centres are yet to be transferred under the control of the central government, something
that is not disputed by Libya, 621 may be a relevant "contextual" fact for the Chamber's
consideration pursuant to article 17(3) of the Statute of whether, due to the unavailability
of the national judicial system, Libya is unable to carry out the proceedings against Mr AlSenussi. This aspect will therefore be taken into account and assessed against all the other
relevant factual circumstances.
277. The OPCV makes similar submissions and argues that "Libya is not fully able to
ensure security and safety of criminal courts and, as a result, they have to operate at
minima".^^^ In support of its contention, the OPCV relies on the following statement made
by the International Crisis Group in its report of 17 April 2013: "[ajcross the country,
criminal courts operate at a bare minimum. In the Jebel Akhdar region, east of Benghazi,
inadequate security and threats against local prosecutors and judges have forced the
suspension of all investigations and trials since December 2012. The courthouse in
Waddan, a desert city some 600km south east of Tripoli, was torched in February 2013 and
all case files destroyed".
281. The Chamber is of the view that the fact that certain incidents of threats or violence
against judicial authorities may have occurred across the country does not necessarily entail
"collapse" or "unavailability" of the Libyan judicial system such that would impede Libya's
ability to carry out the proceedings against Mr Al-Senussi within the meaning of article
17(3) of the Statute. Nevertheless, the Chamber considers that the existence of serious
security concerns in Libya is an issue relevant to the final determination on Libya's ability
to conduct its proceedings against Mr Al-Senussi, and will therefore take this fact into
account, together with all the other circumstances, in its final conclusion on the matter.
Security of witnesses in the national case against Mr Al-Senussi
283. The Chamber considers that the security situation of witnesses could impact on
Libya's ability to obtain the necessary evidence and testimony within the meaning of article
17(3) of the Statute. Indeed, in the context of a potentially precarious security situation
across the country, witnesses may be afraid of coming forward or may be eliminated,
ultimately causing prejudice to the domestic proceedings. The security situation of
witnesses is therefore relevant to the Chamber's conclusion on whether Libya is unable
genuinely to carry out the proceedings against Mr Al-Senussi.
284. In this regard, the Defence submits that according to certain material disclosed by the
Prosecutor under rule 77 of the Rules, "[t]wo witnesses who were originally prepared to
testify in the cases against Mr. Gaddafi and Mr. Al-Senussi have now informed the Office
of the Prosecutor [of this Court] that they are no longer prepared to testify against Mr.
Gaddafi or Mr. Al-Senussi 'due to security concerns'".
287. This concern remains valid, as Libya has provided no new submissions intended to
demonstrate the existence and effective functioning of a witness protection programme in
the country. This issue will therefore be considered, in light of all other relevant factors,
for the Chamber's determination on whether Libya is able genuinely to carry out its
proceedings within the meaning of article 17(3) of the Statute.
288. Finally, the Chamber is of the view that there is no indication from the information in
its possession that witnesses would deliberately be exposed to, or intentionally left
unprotected from, security threats in the country on the part of Libya such that it would be
inconsistent with an intent to bring Mr Al-Senussi to justice within the meaning of article
17(2)(c) of the Statute.
Conclusion on the second limb of the admissibility test
a. Whether Libya is unwilling genuinely to carry out the proceedings against
Mr Al- Senussi
Relevant facts referred to by Libya in support of its Admissibility Challenge relate to the
evidence (both in terms of its quantity and quality) collected as part of the investigation of
Mr Al-Senussi, the scope, methodology and resources of the investigation into Mr AlSenussi's case, the recent transfer to the Accusation Chamber of the case against Mr AlSenussi and his other 37 co-defendants,6'o the example of certain judicial proceedings
conducted to date against other former Gaddafi-era officials, and the efforts made to resolve
certain issues of the justice system through recourse to international assistance. Other facts
have been brought to the Chamber's attention by the Defence and/or the OPCV to counter
Libya's submissions, namely the lack of legal representation for Mr Al-Senussi, the serious
security difficulties currently experienced across Libya,6'4 the absence of protection
programmes for witnesses in the context of this precarious security situation and the
difficulties faced by the national authorities in exercising control over certain detention
facilities
Whether Libya is unwilling genuinely to carry out the proceedings against Mr AlSenussi
290. First, the Chamber considers that there is no indication that the proceedings against
Mr Al-Senussi are being undertaken for the purpose of shielding him from criminal
responsibility for the crimes that are alleged in the proceedings before the Court, such that
it would warrant a finding of "unwillingness" within the meaning of article 17(2)(a) of the
Statute.
291. Second, as expressly found above,6" the Chamber is of the view that the national
proceedings against Mr Al-Senussi cannot be considered as tainted by an unjustified delay
that in the concrete circumstances is inconsistent with an intent to bring Mr Al-Senussi to
justice, within the meaning of article 17(2)(b) of the Statute.
292. Third, the Chamber is satisfied that the two cumulative requirements that may ground
a finding of unwillingness under article 17(2)(c) of the Statute are not present in relation to
the domestic proceedings against Mr Al-Senussi. Libya has provided persuasive
information showing that the investigations into Mr Al-Senussi's case are not being
conducted in a manner that is inconsistent with the intent to bring Mr Al-Senussi to justice.
On this point the Chamber recalls that the investigation against Mr Al-Senussi, which has
ultimately led to the transfer of the case to the Accusation Chamber,6'8 appears to have
been adequately conducted.6'^ In the Chamber's view, the fact that Mr Al-Senussi's right
to benefit from legal assistance at the investigation stage is yet to be implemented does not
justify a finding of unwillingness under article 17(2)(c) of the Statute, in the absence of
any indication that this is inconsistent with Libya's intent to bring Mr Al-Senussi to justice.
Rather, from the evidence and the submissions before the Chamber, it appears that Mr AlSenussi's right to legal representation has been primarily prejudiced so far by the security
situation in the country.
b. Whether Libya is unable genuinely to carry out the proceedings against Mr
AlSenussi
297. The Chamber is of the view that the security situation across Libya is a relevant aspect
as it may, in itself or in combination with other circumstances, impact on Libya's capacity
to obtain the evidence and the testimony that are necessary to conduct genuine criminal
proceedings against officials of the Gaddafi regime, Mr Al-Senussi included. In particular,
on this specific point, the Chamber considers that the security situation must be assessed
against the absence of effective protection programmes for witnesses and the fact that
certain detention facilities are yet to be transferred under the authority of the Ministry of
Justice. In this regard, in the Gaddafi Admissibility Decision, the Chamber considered that
these two aspects have a direct bearing on the investigation against Mr Gaddafi as they
prevent Libya from obtaining "the necessary evidence and testimony" within the meaning
of article 17(3) of the Statute. Those aspects were deemed compelling, given that Libya did
not satisfactorily demonstrate that it had collected more than a few sparse items of evidence
as part of its investigation against Mr Gaddafi.
298. The Chamber observes that Libya has provided a considerable amount of evidence
collected as part of its investigation against Mr Al-Senussi. This evidence includes several
relevant witness and victims' statements as well as pieces of documentary evidence, such
as written orders, medical records and flight documents.66^ In the Chamber's view, at least
some of the evidence and testimony that necessary to carry out the proceedings against Mr
Al-Senussi -which need not comprise all possible evidence - has therefore already been
collected, and there is no indication that collection of evidence and testimony has ceased
or will cease because of unaddressed security concerns for witnesses in the case against Mr
Al-Senussi or due to the absence of governmental control over certain detention facilities.
299. Indeed, the Chamber observes that it appears that the domestic proceedings in the case
against Mr Al-Senussi have so far not been prejudiced by these security challenges, as
demonstrated by the progressive and concrete investigative steps taken to date and the fact
that the judicial proceedings against Mr Al-Senussi are currently progressing and have
recently reached the accusation stage.
301. Taking into account all the relevant circumstances, the Chamber, while reiterating its
concerns about the lack of appropriate witness protection programmes in the proceedings
against Mr Al-Senussi in the context of the country's precarious security situation,
considers that this fact, in the concrete circumstances of the present case, does not result in
Libya's inability genuinely to carry out its proceedings in Mr Al-Senussi's case on the
grounds that Libya, as a result of a total or substantial collapse or unavailability of its
national judicial system, is unable to obtain the evidence and testimony that is necessary
for the proceedings against Mr Al-Senussi.
302. Finally, the Chamber turns to the consideration of any residual form of inability on
the part of Libya to "otherwise carry out its proceedings" as a result of a total or substantial
collapse or unavailability of its national judicial system.
303. At the outset, the Chamber considers that Libya's capacity to carry out the proceedings
against Mr Al-Senussi is not affected per se by the ongoing security concerns across the
country, in particular taking into account the quantity and nature of the evidence gathered
as part of the investigation in relation to Mr Al-Senussi's case, the ultimate transfer of the
case to the Accusation Chamber and the recent commencement of the accusation phase.
The fact that the hearing of 19 September 2013 occurred without incident, notwithstanding
certain protests outside the courtroom complex, 664 further confirms that Libya appears to
be in a position to address the ongoing security difficulties in order that the proceedings
against Mr Al-Senussi not be hindered.
304. Nevertheless, and as observed above, 66' the Chamber considers of relevance for its
determination under article 17(3) of the Statute the fact that Mr Al-Senussi has not been
provided with any form of legal representation for the purposes of the national proceedings
against him up until now.
307. The Chamber is of the view that the problem of legal representation, while not
compelling at the present time, holds the potential to become a fatal obstacle to the progress
of the case.
In its Final Submissions, Libya has confirmed that "many local lawyers from Mr AlSenussi's tribe have indicated their willingness to represent Mr. Al-Senussi but have not yet
been given a formal power of attorney [and] [i]t is expected that this final hurdle to securing
legal representation will be overcome at the order of the Accusation Chamber in the very
near future" .6'3 The Chamber has no reason to put into question the information provided
by Libya in this regard, or to consider it refuted by the existence of certain security
challenges across the country. In these circumstances, the Chamber cannot conclude at this
point in time that the situation is such that Mr Al-Senussi's case will be impeded from
proceeding further on the grounds that Libya will be unable to adequately address the
current security concerns and ensure the provision of adequate legal representation for Mr
Al-Senussi as necessary for the subsequent judicial proceedings as presently envisaged.
312. The Chamber notes that according to article 19(10) of the Statute, "[i]f the Court has
decided that a case is inadmissible under article 17, the Prosecutor may submit a request
for review of the decision when he or she is fully satisfied that new facts have arisen which
negate the basis on which the case had previously been found inadmissible under article
17". The Prosecutor may therefore seize the Chamber with a request for review of the
present decision as appropriate.
COMMENTS
The court is not a human rights court. In this case, the disrespect of international norms is
not to the defendant's advantage. The ICC is not there to make sure that the defendant's
trial is to his advantage. Quite on the contrary, the "raison d'être" of Article 17 is to ensure
that sham proceedings do not benefit the defendant, for example by omitting to take into
account incriminatory evidence. Would this reasonning still hold for a trial where they are
trying to shield the defendant? Are there two different sets of standards for article 17? The
court does not specify this and should have done so. However, it goes without saying that
the threshold would be lower in order to prove bad faith.
The chamber should take all of these elements, altogether, in one all-encompassing
situation. If you add all these elements up, it reall does prove a certain inability: corrupt
judge, long delays, no lawyer, ... The chamber should at least have said that the
admissibility should be evaluated again in two years or something like that, because all
these elements do amount to solid proof that there will probably be a questionable trial.
And otherwise it's way too easy to fall through the cracks of Article 17.
Another dimension is that now the OTP should at least wait until the trial is in a more
advanced stage of the proceedings so that the inability/unwillingness is even more
apparent.
COURS 8: JURISDICTION-- LEGAL IMPEDIMENTS
The prof says he will focus on amnesties and almost leave out double jeopardy and
statutes of limitations.
Double jeopardy
Right not to be prosecuted twice for the same crime.
Statute of limitations
Ex: ten years after having taken place, a crime cannot be prosecuted.
Amnesties
An amnesty law says that a national jurisdiction cannot prosecute a specific person.
Should a democratically voted amnesty be subject to an interference of the ICC?
Art. 53(1)(c): “interests of justice”. Would this encompass giving an amnesty that would
end a war? The prof gives the example of Charles Taylor, whose amnesty ended a war?
Article 54
Devoirs et pouvoirs du procureur en matière d'enquêtes
1. Le Procureur :
a) Pour établir la vérité, étend l'enquête à tous les faits et éléments de preuve qui peuvent être
utiles pour déterminer s'il y a responsabilité pénale au regard du présent Statut et, ce faisant,
enquête tant à charge qu'à décharge ;
b) Prend les mesures propres à assurer l'efficacité des enquêtes et des poursuites visant des crimes
relevant de la compétence de la Cour. Ce faisant, il a égard aux intérêts et à la situation personnelle
des victimes et des témoins, y compris leur âge, leur sexe, tel que défini à l'article 7, paragraphe 3,
et leur état de santé ; il tient également compte de la nature du crime, en particulier lorsque celui-ci
comporte des violences sexuelles, des violences à caractère sexiste ou des violences contre des
enfants ; et
c) Respecte pleinement les droits des personnes énoncés dans le présent Statut.
2. Le Procureur peut enquêter sur le territoire d'un État :
a) Conformément aux dispositions du chapitre IX ; ou
b) Avec l'autorisation de la Chambre préliminaire en vertu de l'article 57, paragraphe 3, alinéa d).
3. Le Procureur peut :
a) Recueillir et examiner des éléments de preuve ;
b) Convoquer et interroger des personnes faisant l'objet d'une enquête, des victimes et des
témoins ;
c) Rechercher la coopération de tout État ou organisation intergouvernementale ou accord
intergouvernemental conformément à leurs compétences ou à leur mandat respectifs ;
d) Conclure tous arrangements ou accords qui ne sont pas contraires aux dispositions du présent
Statut et qui peuvent être nécessaires pour faciliter la coopération d'un État, d'une organisation
intergouvernementale ou
d'une personne ;
e) S'engager à ne divulguer à aucun stade de la procédure les documents ou renseignements qu'il a
obtenus sous la condition qu'ils demeurent confidentiels et ne servent qu'à obtenir de nouveaux
éléments de preuve, à
moins que celui qui a fourni l'information ne consente à leur divulgation ; et
f) Prendre, ou demander que soient prises, des mesures nécessaires pour assurer la confidentialité
des renseignements recueillis, la protection des personnes ou la préservation des éléments de
preuve.
Article 53
Ouverture d'une enquête
1. Le Procureur, après avoir évalué les renseignements portés à sa connaissance, ouvre une
enquête, à moins qu'il ne conclue qu'il n'y a pas de base raisonnable pour poursuivre en vertu du
présent Statut. Pour prendre sa décision, le Procureur examine :
a) Si les renseignements en sa possession fournissent une base raisonnable pour croire qu'un crime
relevant de la compétence de la Cour a été ou est en voie d'être commis ;
b) Si l'affaire est ou serait recevable au regard de l'article 17 ; et
c) S'il y a des raisons sérieuses de penser, compte tenu de la gravité du crime et des intérêts des
victimes, qu'une enquête ne servirait pas les intérêts de la justice. S'il ou elle conclut qu'il n'y a pas
de base raisonnable pour poursuivre et si cette
conclusion est fondée exclusivement sur les considérations visées à l'alinéa c), le Procureur en
informe la Chambre préliminaire.
2. Si, après enquête, le Procureur conclut qu'il n'y a pas de base suffisante pour engager des
poursuites :
a) Parce qu'il n'y a pas de base suffisante, en droit ou en fait, pour demander un mandat d'arrêt ou
une citation à comparaître en application de l'article 58 ;
b) Parce que l'affaire est irrecevable au regard de l'article 17 ; ou
c) Parce que poursuivre ne servirait pas les intérêts de la justice, compte tenu de toutes les
circonstances, y compris la gravité du crime, les intérêts des victimes, l'âge ou le handicap de
l'auteur présumé et son rôle dans le crime allégué ; il ou elle informe de sa conclusion et des
raisons qui l'ont motivée la Chambre préliminaire et l'État qui lui a déféré la situation
conformément à l'article 14, ou le Conseil de sécurité s'il s'agit d'une situation visée à l'article 13,
paragraphe b).
3. a) À la demande de l'État qui a déféré la situation conformément à l'article 14, ou du Conseil de
sécurité s'il s'agit d'une situation visée à l'article 13, paragraphe b) la Chambre préliminaire peut
examiner la décision de ne pas poursuivre prise par le Procureur en vertu des paragraphes 1 ou 2 et
demander au Procureur de la reconsidérer.
b) De plus, la Chambre préliminaire peut, de sa propre initiative, examiner la décision du Procureur
de ne pas poursuivre si cette décision est fondée exclusivement sur les considérations visées au
paragraphe 1, alinéa c) et au paragraphe 2, alinéa c). En tel cas, la décision du Procureur n'a d'effet
que si elle est confirmée par la Chambre préliminaire.
4. Le Procureur peut à tout moment reconsidérer sa décision d'ouvrir ou non une enquête ou
d'engager ou non des poursuites à la lumière de faits ou de renseignements nouveaux.
Immunities
Personal immunity: head of state, for personal acts. It applies so long as you are head of
state or so. It applies to all acts you do while you hold that position, regardless of the
relevance of your acts with regard to your functions.
Functional immunity: is for the acts while acting in your official capacity. If you do
personal stuff outside of your functions, it does not apply.
The ICC Statute, article 27, says that immunities cannot apply for international crimes.
States that ratified the statute therefore waived any immunity that their officials may
have.
Art. 98(1): this concerns states that did not ratify the statute-- they are named “third states”.
If national of a third state (for example Jordan) is on the territory of a state party (for
example Canada), if the ICC requests Canada to hand the Jordanian over, Canada will need
to ask Jordan for a waiver of immunity before doing so in order to avoid violating its
international obligations.
READING: JURISDICTION-- LEGAL IMPEDIMENTS
In this lecture we examine all impediments to jurisdiction, such as amnesties, statutes of
limitation, the prohibition of double jeopardy, ...
1. Amnesties
The rationale behind amnesties is that in the aftermath of periods of turmoil and deep rift,
such as those following armed conflict, civil strife, or revolution, it is best to heal social
wounds by forgetting past misdeeds, hence by obliterating all the criminal offences that
may have been paerpetrated by any side.
The choice between "forgetting" and "justice" must in any event be left to policy-makers
and legislators. From a legal viewpoint, one can nevertheless note that international rules
often oblige states to refrain from granting amnesty for international crimes. Here we
should distinguish between treaty rules and customary rules.
The author gives several examples of recent amnesty laws excluding crimes under the
ICC's jurisdiction (p.311). These manifestations therefore reflect the concept that the
requirement to dispense justice should trump the need to respect state sovereignty.
However, they are not yet so widespread as to warrant the contention that a customary rule
concerning all international crimes has crystallized, the more so because no customary rule
having general purport has yet emerged imposing upon states the obligation to prosecute
and punish the alleged authors of any international crime. See p.312 for more on that.
2. Statute of limitations
Many states lay down rules providing that after the elapse of a certain number of years
(normally ten or twenty) no prosecution may any longer be initiated with regard to some
major categories of crimes. Some states also add provisions whereby, if a final sentence
pronounced for a crime has not been served after a certain number of years, it is no longer
applicable. For instance, in France, the right to prosecute a crime is forfeited within ten
years of the perpetration of the crime.
The rationale behind this is that the passage of time renders the collection of evidence very
difficult. In addition, it is felt that it is better for society to forget, the more so because, once
many years have gone by, the victims or their relatives may feel less inclined to demand
the prosecution and punishment of the authors of crimes.
Two treaties ban statutes of limitation for international core crimes (p.313), but haven't
been ratified widely. The ICC Statute provides in Article 29 that crimes within the
jurisdiction of the Court shall not be subject to any statute of limitation5.
p.314: the author investigates in order to determine if there is a customary rule of
international law forbidding statutes of limitations for international crimes. He concludes
5
Les crimes relevant de la compétence de la Cour ne se prescrivent pas.
that no rule has come into being prohibiting the application of statutes of limitations to all
international crimes. Customary rules render statutes of limitations inapplicable only with
regard to some categories of crimes: genocide, crimes against humanity and torture. In any
case, Article 29 of the Rome Statute prevents any state from invoking any statute of
limitations in proceedings before the court.
Article 29
Imprescriptibilité
Les crimes relevant de la compétence de la Cour ne se prescrivent pas.
3. The prohibition of double jeopardy
Under the principle of double jeopardy a court may not institute proceedings against a
person for a crime that has already been the object of criminal proceedings in the same
state or in another state, or in an international court, and for which the person has already
been convicted or acquitted. This principle is also know as "ne bis in idem".
p.316: the author tries to see if this rule has evolved into customary law and contends that
it has, with respect to international crimes.
There are two different approaches to the "ne bis in idem" principle. Some states interpret
the rule as encompassing historical facts, regardless of their legal qualification. For
instance, "has the Rape of Nanking been judged?", regardless of the specific charges that
were brought (for example, crime against humanity, torture, war crime, etc). On the
contrary, some states interpret the rule as encompassing legal qualification of a historical
episode, and not the historical episode in itself.
Interestingly, Article 20 of the ICC Statute, dealing with the prohibition of "ne bis in idem",
is not uniform on the meaning of "idem", which varies depending on which court the
prohibition applies to. If it is the ICC itself, the "ne bis in idem" prohibition concerns the
historical facts that were the basis of the prosecution. By contrast, if the prohibition applies
to any other court (a domestic court or an international court), the "idem" refers to the legal
qualification of the historical facts of the first prosecution, with the consequence that the
person can be tried again for part of the same facts, but under a different legal qualification.
Article 20
Ne bis in idem
1. Sauf disposition contraire du présent Statut, nul ne peut être jugé par la Cour pour des actes
constitutifs de crimes pour lesquels il a déjà été condamné ou acquitté par elle.
2. Nul ne peut être jugé par une autre juridiction pour un crime visé à l’article 5 pour lequel il a
déjà été condamné ou acquitté par la Cour.
3. Quiconque a été jugé par une autre juridiction pour un comportement tombant aussi sous le
coup des articles 6, 7 ou 8 ne peut être jugé par la Cour que si la procédure devant l’autre
juridiction :
a) Avait pour but de soustraire la personne concernée à sa responsabilité pénale pour des crimes
relevant de la compétence de la Cour ; ou
b) N’a pas été au demeurant menée de manière indépendante ou impartiale,dans le respect des
garanties d’un procès équitable prévues par le droitinternational, mais d’une manière qui, dans les
circonstances, était incompatible avec l’intention de traduire l’intéressé en justice.
4. International rules on immunities (ICJ "Arrest Warrant Case")
The distinction between functional and personal immunities
The functional immunity relates to conduct of state agents acting in their official capacity,
and therefore protecting the public nature of the act accomplished by the state agent in his
official capacity. The personal immunity protects the person and property of the individual
exercising a specific function abroad, until such time as he holds the post.
Functional immunity
For the functional immunity, only the state may be held responsible at the international
level. When a state agent is sued, this is a defense he may invoke and the trial will have to
be redirected against the state for which he was acting. The state agent may be acting in
this quality "de jure" or "de facto". This immunity does not cease at the end of the discharge
of official functions by the state agent; the reason being that the act is legally attributed to
the state, hence any legal liability for it may only be incurred by the state. Finally, this
immunity may be invoked towards any other state.
Personal immunity
It covers official or private acts carried out by the state agent while in office, as well as
private or official acts performed prior to taking office. These immunities are intended to
protect only some categories of state officials, namely diplomats, heads of state and so on.
This immunity also comes to an end after the cessation of the official functions of the state
agent.
Personal immunities and international crimes
International law obliges national and international jurisdiction to set aside any functional
immunity the accused may invoke as a defense, any time he is charged with an international
crime (section 13.2 of the book). As to personal imunity, this defense stands even in the
event of a prosecution for an international crime on the domestic level. This was decided
by the ICJ's "arrest warrant" case. This applies to incumbent senior state officials. As
soon as the state agent leaves office, he may no longer enjoy personal immunities.
However, the situation is different for international criminal courts. The ICJ, in its "arrest
warrant" case, states that international criminal courts are an exception. Moreover, Article
27(2) of the ICC Statute states that any type of immunity shall not bar the Court from
exercising its jurisdiction over that person.
Article 27
Défaut de pertinence de la qualité officielle
1. Le présent Statut s’applique à tous de manière égale, sans aucune distinction fondée sur la qualité
officielle. En particulier, la qualité officielle de chef d’État ou de gouvernement, de membre d’un
gouvernement ou d’un parlement, de représentant élu ou d’agent d’un État, n’exonère en aucun cas
de la responsabilité pénale au regard du présent Statut, pas plus qu’elle ne constitue en tant que telle
un motif de réduction de la peine.
2. Les immunités ou règles de procédure spéciales qui peuvent s’attacher à la qualité officielle
d’une personne, en vertu du droit interne ou du droit international, n’empêchent pas la Cour
d’exercer sa compétence à l’égard de cette personne.
The difference between adjudicatory jurisdiction of international criminal courts
and enforcement jurisdiction of states (Articles 98(1) and 27)
That personal immunities do not hamper a competent international criminal court to
exercise jurisdiction over persons accused of international crimes does not mean
necessarily that the state will have to cooperate. Article 98(1) of the ICC Statute provides
that the court may not proceed with a request for surrender and assistance if compliance
with it would require the requested state to act inconsistently with its obligations under
interantional law with respect to immunities of a person or property of a third state, unless
the court can first obtain a waiver of the immunity from the third state. A waiver must
therefore be obtained from the third state. "Third state" in this context clearly means "noncontracting state". The waiver is therefore only necessary for non-contracting states.
Among contracting parties, Article 27 dispenses from the waiver obligation.
COURS 9: THE NULLUM CRIMEM SINE LEGE PRINCIPLE-- AKA "LEGALITY"
Arts. 22-24 RS: principle of legality in the RS. Art. 22: "no crime without law". Art. 24:
benefit of change and not retroactivity. When there is ambiguity, it must be interpreted in
favor of the accused.
The problem with ICL is that there is no legislator, nor parliament, nor a proper system of
higher and lower courts. There are different treaties and courts without hierarchy. It's a
very chaotic law-making process. Treaties are very broad because it is easier to get wide
ratification that way. You also want to leave it to domestic legal systems to fill in the
blanks; for instance in civil law systems there is no infraction of treason and so this
infraction would have to translate into something else than what common law
jurisdictions call "treason". For these reasons, we don't see ICL as this totalitarian state
trying to impose its arbitray use of power on people. On the contrary, it is seen as too
weak.
The Nuremberg Tribunal had jurisdiction over war crimes, crimes against humanity and
crimes against peace (Art. 6). The Hague Convention of 1907 and customary law
encompassed war crimes. Crimes against peace was not in the UN Charter. It's the
prohibition of the use of force. Ius ad bellum, ius in bello (Kellog-Brion Pact of 1928
tried to outlaw war). This treaty was quite weak and was not largely ratified. At the time
of the Nuremberg Tribunal, there certainly was a problem with the principle of legality.
There were too few sources to the crimes for which the tribunal had jurisdiction. For the
crimes against humanity there was virtually no basis to claim that there was a rule of
international law forbidding it.
Then, this was clearly, in the case of crimes against humanity, retroactive legislation. And
so the birth of ICL really took place in blatant violation of the principle of legality. Then in
1948 and 1949 we have Geneva Conventions and other treaties. By the 1990's, there is no
real problem with the subject-matter of the court. Check out articles 1-5 ICTY Statute to
see the subject-matter of that court. All of these crimes have precedents and treaties
prohibiting them. This statute does not encompass general principles of international law
but keeps international customary law. That is because the latter is more empirical and
certain.
In the 1990's the ICTY only had 20 articles and could not resort to general principles of
international law. In this sense, it kind of had to stretch out a lot the law. Cassesse was a
jusge there and really extended the meaning of article 3 to non-international conflicts.
Art.22(2) RS: the definition of a crime shall not be extended by analogy. But art. 7(1)(k) is
really general "autres actes inhumains de caractère analogue".
READING: NULLUM CRIMEN SINE LEGE
Substantive justice
Substantive justice is the opposite of strict legality; it favors reprehension of disruptive
behaviour (hence public order) over individual liberties. This gave way to much abuse in
Nazi Germany. Nowadays, this system has evolved to allowing punition of a reprehensible
behavior without law so long as this punition is sensible and just. This new version of
substantive justice was invented by the famous German jurisprudence professor named
Radbruch, who wanted to avoid that completely immoral behaviour be sanctioned without
law.
Strict legality
In contrast, the doctrine of strict legality postulates that a person may only be held
criminally liable and punished if at the moment when he performed a certain act this act
was regarded as a criminal offence under the applicable law. This principle stems from the
1215 Magna Carta and aimed at protecting the population from arbitrary baronial and
knightly power.
The principle of legality in civil law and in common law jurisdictions
At present, most democratic civil law countries tend to uphold the doctrine of strict legality
as an overarching principle. Plainly, the purpose of these principles is to safeguard citizens
as far as possible against both the arbitrary power of government and possibly excessive
judicial discrection. Here are the great principles of legality:
Written offences
Criminal offences may only be provided for in written law, namely legislation enacted by
Parliament. It cannot be customary rules nor secondary legislation (règlements adopted by
a ministry without the vote of the government expressing popular will).
Specificity
Criminal legislation must abide by the principle of specificity, whereby rules
criminalizing human conduct must be as specific and clear as possible.
Non-retroactivity
A person may only be punished for behaviour that was considered criminal at the time the
conduct was undertaken.
No analogy
Resort to analogy in applying criminal rules so as to punish conduct similar to that
already prohibited is prohibited.
In common law jurisdiction, the legality principle is not as strong a principle. For
instance, common law offences (as opposed to statutory offences) result from judge-made
law and therefore may lack those requirements of rigidity and certainty proper to written
legislation.
The principle of legality in ICL
For a long period, and until recently, the doctrine of substantive justice was prevailing in
ICL; it is only in recent years that it has been gradually replaced with the doctrine of
strict legality, albeit with some important modifications.
The initial adoption of the doctrine of substantive justice
The rationale for the adoption of the doctrine of substantive justice in ICL was that states
were not prepared to enter into treaties laying down criminal rules, nor had customary
international rules evolved covering this area. In practice, there only existed customary
international rules prohibiting and punishing war crimes, although in a rather rudimentary
and unsophisticated manner. This was during the era of the Nuremberg Tribunal.
The shift towards the doctrine of strict legality
After WWII, states agreed upon and ratified a number of important human rights treaties
which laid down the nullum crimen princple as legal standard for national courts. Also,
ICL as a body of law greatly expanding, criminalized a more reasonable array of
reprehensible behaviours. As a consequence, the principle of strict legality was laid down,
albeit implicitly, in the Statutes of the ICTY and the ICTR. The principle of legality seems
to be set forth explicitly in the ICC Statute, in Article 22:
Article 22
Nullum crimen sine lege
1. Une personne n’est responsable pénalement en vertu du présent Statut que si son comportement
constitue, au moment où il se produit, un crime relevant de la compétence de la Cour.
2. La définition d’un crime est d’interprétation stricte et ne peut être étendue par analogie. En cas
d’ambiguïté, elle est interprétée en faveur de la personne qui fait l’objet d’une enquête, de
poursuites ou d’une condamnation.
3. Le présent article n’empêche pas qu’un comportement soit qualifié
Articulations of the principle of legality
A. Specificity
Under this corollary of the principle of strict legality, criminal rules must be as detailed as
possible, so as to clearly indicate their addressees and the conduct prohibited, namely,
both the objective elements of the crime and the requisite mens rea.
However, ICL is quite often very unclear as to what, precisely, is prohibited. "Other
inhumane acts" in the definition of crimes against humanity is a good example. Both
national and international courts have played an immensly important role in gradually
clarifying notions.
B. Non-retroactivity
ICL , to a large extent, constists of judge-made law. Consequently, one should reconcile
the principle of non-retroactivity with these inherent characteristics of ICL.
Following jurisprudence from the European Court of Human Rights, courts may not
create a new criminal offence, with new legal ingredients. They can only adapt provisions
envisaging criminal offences to changing social conditions; for instance, by broadening
the actus reus, or possibly lowering the the subjective element threshold from intent to
recklessness. This is acceptable so long as this adjustment is consonant with general
principles of law.
C. The ban on analogy and extensive interpretation
This rule is enshrined in Article 22(2) RS. This principle entails that one is not allowed to
broaden surreptitiously (furtivement), by way of interpretation, the scope of criminal
rules, so as to make them applicable to instances not specifically envisaged by those
rules.
Courts are however allowed to draw from general principles of ICL in order to fill out
gaps or penumbra cases. It should be noted that this in no way allows a court to create a
new infraction.
A rule applying to such interpretation is that in some cases legislation opens the door to
interpretation, but only for consideration of similar behavior to that described in its text.
For instance, "other inhumane acts" in the crime against humanity requires that the "other
inhumane acts" be of equal gravity as the ones described in the provision's text.
Finally, for example,one may look at the provisions of a treaty banning the use of certain
bombs to see if the general principle of bannig weapons that cause indiscriminate killings
applies to a new kind of bomb (p.34).
D. The principle of favouring the accused
This is the principle imposing, when faced with conflicting interpretations of a rule, the
construction that favours the accused. This is also enshrined in Article 22(2) RS. This
principle also applies to evidence: if from the evidence, two reasonable inferences may be
drawn, one of guilt and the other of innocence, the latter must be taken.
The principle of legality of penalties
It is common in Romano-Germanic jurisdictions that there be a certain tariff for the scale
of penalties in relation to each crime, so as to avoid arbitrary sentences. This principle is
not applicable in ICL, due to cultural differences regarding the gravity of certain crimes.
Articles 23 and 77 RS provide that the maximum sentence may be of 30 years of
imprisonment and that life inprisonment may only take place in exceptionally grave cases.
This implictly rules out the death penalty.
COURS 10: THE ELEMENTS OF INTERNATIONAL CRIMES
What is it that makes a crime (murder, rape, torture, abductions, ...) an international crime?
It's the context that changes it all. That context usually has a mens rea that is even beyond
national crimes. In ICL you're going to have the elements of national crimes + additional
ICL context. For instance, one murder could be part of a wider attack and the soldier has
knowledge that this murder is part of a wider attack and that murder is then transformed
into a crime against humanity.
Actus reus
It's the objective element. Art. 30
Article 30
Elément psychologique
1. Sauf disposition contraire, nul n’est pénalement responsable et ne peut être puni à raison d’un
crime relevant de la compétence de la Cour que si l’élément matériel du crime est commis avec
intention et connaissance.
2. Il y a intention au sens du présent article lorsque :
a) Relativement à un comportement, une personne entend adopter ce comportement ;
b) Relativement à une conséquence, une personne entend causer cette conséquence ou est
consciente que celle-ci adviendra dans le cours normal des événements.
3. Il y a connaissance, au sens du présent article, lorsqu’une personne est consciente qu’une
circonstance existe ou qu’une conséquence adviendra dans le cours normal des événements. «
Connaître » et « en connaissance de cause » s’interprètent en conséquence.
Objective vs subjective intent requirements
In common law systems there are two different requirements in terms of state of mind. One
looks at what should have been in the mind of the accused, from a diligence point of view
(objective), and the other simply looks at it in an of itself (subjective). In civil law systems,
the requirements are different. Clearly Art. 30(1) RS refers to subjective intent requirement.
Different forms of mens rea in Canadian criminal law
In Canadian law, there typically is a gradation between the gravity of the infraction and
the level of mens rea requirement. That is because graver crimes entail a harder stigma
and punishment.
Typcially, in Canada, the different types of mens rea are: intention, knowledge,
recklessness, wilful blindness, criminal negligence, negligence, absolute liability.
Criminal negligence is significant divegence with respect to diligent behaviour. For
instance, you drive at 120 km/h in a 40 km/h zone, someone jumps in front of the car and
you kill him. You did not intend to kill him at all and did not even think this incident
could happen, but your negligence was such that it is criminal.
Willful blindness is that you "don't know because you don't want to know". For instance,
in the case of sexual assault, the perpetrator can say "she didn't say no", but you
deliberately chose not to ask her, you created a coercive environment and had you asked
she would clearly have said no.
Recklessness is you know that the outcome of the crime might happen but you still take
the risk anyway.
Intention is wanting the person to die.
Negligence is simple deviation from diligent behaviour.
Knowledge is knowing that your act has an unlawful result, but you don't have the
intention of causing it. For instance there was a British subject during WWII who was
forced to make Nazi propaganda. He knew what he was doing but did not have the
intention to do so. Here the motive is irrelevant-- all that matters is that you know the
facts.
The difference between recklessness and wilful blindness is that for wilful blindness you
cannot invoke mistake of fact. You don't know but you should have known.
Subjective/objective intent
Negligence is objective and knowledge is subjective. Intention, knowledge, recklessness
and wilful blindness are subjective. Criminal negligence, negligence and absolute liability
are objective. Criminal negligence is sort of in between objective and subjective.
Recklessness is subjective, so you have to prove that the person knew the risks. Criminal
negligence is objective and in this case we don't have to prove that you were aware of the
risks-- we only have to prove that your behaviour was very far from diligent.
Subjective intent relates to what is called "true crimes" while objective intent is called
"regulatory infraction". The latter makes it easier to prosecute more common and less
morally appaling crimes. For objective intent, the sanction is much lower (no more than 6
months maximum prison sanction) and the stigma is lower. For these crimes, you may also
always invoke a diligence defense. However, you may never attach an imprisonment to
absolute liability. For absolute liability, you're not even allowed to invoke a defense of
diligence.
In ICL
Article 30 RS: general rule requiring proof of subjective intent
In ICL, there is usually no objective mens rea since international crimes are extremely
grave (Art. 30 RS). There is also always a double mens rea, for you must have intended
to kill the person and you had to know that the killing was part of a larger scheme or
something like that.
Command responsibility: the exception to the general rule
However, command responsibility is interesting because it does not require mens rea in
relation to the crimes committed. The crime is committed by the subordinates of the
commander and the infraction is consumed by the commander's failure to act. It is a
negligence infraction proven by mere knowledge.
Art. 28: "should have known": it usually is interpreted as an objective standard. It is at the
fringe of wilful blindness and objectivity. I don't quite get it.
Article 28
Responsabilité des chefs militaires et autres supérieurs hiérarchiques
Outre les autres motifs de responsabilité pénale au regard du présent Statut pour des crimes
relevant de la compétence de la Cour :
a) Un chef militaire ou une personne faisant effectivement fonction de chef militaire est
pénalement responsable des crimes relevant de la compétence de la Cour commis par des forces
placées sous son commandement et son contrôle effectifs, ou sous son autorité et son contrôle
effectifs, selon le cas, lorsqu’il ou elle n’a pas exercé le contrôle qui convenait sur ces forces dans
les cas où :
i) Ce chef militaire ou cette personne savait, ou, en raison des circonstances, aurait dû savoir,
que ces forces commettaient ou allaient commettre ces crimes ; et
ii) Ce chef militaire ou cette personne n’a pas pris toutes les mesures nécessaires et raisonnables
qui étaient en son pouvoir pour en empêcher ou en réprimer l’exécution ou pour en référer aux
autorités compétentes aux fins d’enquête et de poursuites ;
b) En ce qui concerne les relations entre supérieur hiérarchique et subordonnés non décrites au
paragraphe a), le supérieur hiérarchique est pénalement responsable des crimes relevant de la
compétence de la Cour commis par des subordonnés placés sous son autorité et son contrôle
effectifs, lorsqu’il ou elle n’a pas exercé le contrôle qui convenait sur ces subordonnés dans les cas
où :
i) Le supérieur hiérarchique savait que ces subordonnés commettaient ou allaient commettre ces
crimes ou a délibérément négligé de tenir compte d’informations qui l’indiquaient clairement ;
ii) Ces crimes étaient liés à des activités relevant de sa responsabilité et de son contrôle effectifs ;
et
iii) Le supérieur hiérarchique n’a pas pris toutes les mesures nécessaires et raisonnables qui étaient
en son pouvoir pour en empêcher ou en réprimer l’exécution ou pour en référer aux autorités
compétentes
aux fins d’enquête et de poursuites.
The way to prove intent is through facts: for instance, for a Rwandan minister, you can
prove that the genocide was "la ligne de partie", that you provided weapons and gave
racist speeches.
READING: ELEMENTS OF INTERNATIONAL CRIMES
*See the following link for the ICC's Elements of Crimes-- listing all required elements to
prove for any given crime under the ICC's jurisdiction. This may be usefull to quickly
answer exam questions. http://www1.umn.edu/humanrts/instree/iccelementsofcrimes.html
The objective structure
As is normally the case in domestic legal systems with all criminal offences, international
crimes can also be split into i) conduct; ii) consequences; and iii) circumstances.
A. Conduct
The conduct is the behaviour that is prohibited. For instance, murder is prohibited by
crimes against humanity.
B. Consequences
Consequences are the effect of the criminal conduct. For instance, I throw missiles at a
hospital and the effect is the death of hundreds of civilians. From this point of view crimes
may be held to belong to two different categories: crimes of conduct and crimes of result.
Most international criminal rules concern crimes of result. The rationale behind this
emphasis is that the primary goal of international criminal law is to prevent and punish
behaviour that injures protected persons.
C. Circumstances
This encompasses any other modalities or requirements. For instance, some rules apply to
military commanders. In that case, one must prove that the person was a military
commander at the time of the alleged perpetration.
The mental element
Substantive rules concerning crimes often do not specify the subjective element required
for each specific offence. An exception may however be found in the various substantive
provisions of the ICC Statute. This difficult condition is aggravated by the failure of
national case law to cast light on the matter. Depending on the legal tradition to which
the infraction belongs, each court has placed its own interpretation on the notion of intent,
fault or negligence.
Objective vs subjective intent requirements
In common law systems there are two different requirements in terms of state of mind. One
looks at what should have been in the mind of the accused, from a diligence point of view
(objective), and the other simply looks at it in an of itself (subjective). In civil law systems,
the requirements are different. Clearly Art. 30(1) RS refers to subjective intent requirement.
Subjective/objective intent
Negligence is objective and knowledge is subjective. Intention, knowledge, recklessness
and wilful blindness are subjective. Criminal negligence, negligence and absolute liability
are objective. Criminal negligence is sort of in between objective and subjective.
Recklessness is subjective, so you have to prove that the person knew the risks. Criminal
negligence is objective and in this case we don't have to prove that you were aware of the
risks-- we only have to prove that your behaviour was very far from diligent.
Subjective intent relates to what is called "true crimes" while objective intent is called
"regulatory infraction". The latter makes it easier to prosecute more common and less
morally appaling crimes. For objective intent, the sanction is much lower (no more than 6
months maximum prison sanction) and the stigma is lower. For these crimes, you may also
always invoke a diligence defense. However, you may never attach an imprisonment to
absolute liability. For absolute liability, you're not even allowed to invoke a defense of
diligence.
A. Substantive rules setting out the mental element required for crimes
See end of notes and/or p.40.
B. General notions of mens rea common to most domestic legal systems
Here is a brief overview of the types of mens rea common to most domestic legal
systems.
Intent
This requires the awareness that a certain conduct will bring about a certain result in the
ordinary course of events, and the will to attain that objective. For example, I use a gun to
shoot at a person because I want to cause his death and anticipate that as a consequence of
my shooting he will die.
Recklessness
This requires the awareness that undertaking a course of conduct carries with it an
unreasonable or unjustifiable risk of producing harmful consequences, and the decision
nevertheless to go on to take that risk. For instance, I perceive the risk that using a certain
weapon againt a legitimate military target may entail killing dozens of innocent civilians,
and nevertheless willingly ignore this risk.
Culpable negligence
This requires failure to pay sufficient attention to or to comply with certain genreally
accepted standards of conduct thereby causing harm to another person when the actor
believes that the harmful consequences of his action will not come about, thanks to the
measures he has taken or is about to take. For instance, two teenagers playing with a
loaded gun and one kills the other, thinking the gun was not working.
Inadvertent negligence
This requires the failure to respect generally accepted standards of conduct without,
however, being aware of or anticipating the risk that such failure may bring about
harmful effects. For instance, killing a pedestrian by not stopping at a red light.
Intent
ICL most often requires intent. As stated above, this requires the awareness that a certain
conduct will bring about a certain result in the ordinary course of events, and the will to
attain that objective. For example, I use a gun to shoot at a person because I want to cause
his death and anticipate that as a consequence of my shooting he will die.
Special intent
International rules may require a special intent for particular classes of crime. Such rules,
in addition to providing for the intent to bring about a certain result by undertaking certain
conduct, may also require that the agent pursue a specific goal that goes beyond the result
of his conduct. For example, international rules require a special intent for genocide: the
agent must possess "the intent to destroy, in whole or in part, a national, ethnical, racial or
religious group". Hence, the person not only has the intent to kill the victim by shoting him,
but also has the intent that this killing be part of a series of events that will lead to the
destruction, in whole or in part, of a particular group. Another example is the infraction of
terrorism, which requires "the specific intent to cause terror in the population by killing,
hijacking, blowing up buildings, etc". In a sense, the individual damage must be part of a
“greater scheme” of damage. In all cases the intent is essential, while the result is not. For
instance, for terrorism, the fact that the population be not terrorised following the acts of
terror does not matter.
Recklessness or indirect intent
Recklessness is a state of mind where a person forsees that his or her action is likely (or
that it is possible) to produce its prohibited consequences, and nevertheless willingly takes
the risk of so acting. However, he does not necessarily will or desire the result.
For instance, the rule on superior's responsibility states that a commander will be held liable
for having disregarded information clearly indicating that his subordinates were about to
commit international crimes.
Knowledge
Knowledge is usually regarded as a distinct class of mental attitute in criminal behaviour
in common law jurisdictions. See p.50-52 for three different sorts of knowledge. It must be
emphasized that in ICL knowledge as awareness of circumstances does not mean
awareness of the legal appraisal of those circumstances.
Knowledge as part of the intent
An example is attacking a person while having the knowledge that he is "hors de combat".
Knowldege is also sufficient for the aider and abettor-- for example the gun smugler must
not necessarily share the principal's full intent to kill the victim, he must only know that
the gun will help in violent acts. It's the same for command responsibility-- the commander
only needs to know that his subordinates are committing crimes and to stay inactive in
order to incur responsibility. He does not have to have the intent that the crimes be carried
out.
Criminal negligence
The difference between criminal negligence and recklessness is that criminal negligence
is an objective mens rea requirement: you objectively significantly diverted from a diligent
behaviour. Recklessness is a subjective standard, which requires the crown to prove that
you indeed were aware of the risks and took them anyways. ICL crimes cannot simply
require recklessness (or simple negligence) because of the gravity of the offences-- the
perpetrator's intent must be demonstrated, otherwise it would be too severe to send
someone for 20 years in prison without having properly proved his "personal" mens rea.
The mental element in the ICC Statute
Article 30
Elément psychologique
1. Sauf disposition contraire, nul n’est pénalement responsable et ne peut être puni à raison
d’un crime relevant de la compétence de la Cour que si l’élément matériel du crime est
commis avec intention et connaissance.
2. Il y a intention au sens du présent article lorsque :
a) Relativement à un comportement, une personne entend adopter ce comportement ;
b) Relativement à une conséquence, une personne entend causer cette conséquence ou est
consciente que celle-ci adviendra dans le cours normal des événements.
3. Il y a connaissance, au sens du présent article, lorsqu’une personne est consciente qu’une
circonstance existe ou qu’une conséquence adviendra dans le cours normal des événements. «
Connaître » et « en connaissance de cause » s’interprètent en conséquence.
This provision envisages intent and knowledge as the only mental elements of those crimes.
Article 30 raises two problems. First, it does not refer expressly to recklessness or culpable
negligence, although recklessness may be held to be encompassed by the definition of
intent laid down in paragraph 2. Second, it always requires both intent and knowledge,
whereas there may be cases where only intent, as defined in the provision, is sufficient, and
other cases where instead only knowledge would be sufficient.
Omission of recklessness or culpable negligence
To solve the first problem, one has to focus on the "sauf disposition contraire" in the first
paragraph of the provision. Whenever a provision of the Statute or a rule of customary
international law requires a different mental element, this will be considered sufficient by
the court. For instance, this holds true for article 8(2)(xxvi), where the perpetrator
"should have known" that the persons he was conscripting were minors.
Nonetheless, when a specific substantive provision of the Statute does not specify the
mental element required, one may deduce from Article 30 that one must take that
substantive provision to require intent and knowledge.
Requirement of both intent and knowledge
One could argue that "and" could be replaced by "or" when this is logically required. p.
57.
Judicial determination of the mental element
As in national criminal law, in ICL a culpable state of mind is normally proved in court
by circumstantial evidence. The individual may protest vehemently what his intentions
were, but such evidence is subject to human frailty and human perfidy. Accordingly,
intention is presumed from the overt act. If a man points a gun at another and deliberately
fires, it is presumed that he intends to kill the other. However, this is a presumption of
fact, and may be rebutted.
Substantive rules setting out the mental element required for crimes
One may recall, as major illustrations, a set of important treaty provisions. Almost all of
the following at least require intent, except certain war crimes. Hence, other lesser
subjective frames of mind such as recklessness and negligence do not suffice. It goes
without saying that objective frames of mind will not suffice.
Genocide (specific intent)
Article II of the Genocide Convention, which has now turned into customary international
law, states that genocide is an intentional crime that requires the specific intent to "destroy,
in whole or in substantial part, national, ethnical, racial or religious group, as such".
Genocide has a higher threshold for its mens rea since it requires not only that there be
intent to kill an individual, but that this intent be added to that of destroying a significant
amount of other members to which the victim belongs. This specific "added intent"
requirement is known as "dolus specialis".
Terrorism (specific intent)
Terrorism requires "the specific intent to cause terror in the population by killing, hijacking,
blowing up buildings, etc".
Torture (intent)
Article I of the 1984 Convention on Torture requires that the torture be "intentionally
inflicted".
War crimes (intent/recklessness)
Various paragraphs of the Article 8 ICC Statute require intentionality: "intentionally
directing attacks against the civilian population or civilian objects". In the Additional
Protocol of 1977, a host of violations must be committed "wilfully", which has been
interpreted to encompass "wrongful intent" or "recklessness", i.e. the attitude of an agent
who, without being certain of a particular result, accepts the possibility of it happening.
Crimes against humanity: other inhumane acts (intent)
Article 7(1)(k) ICC Statute, which states that "other inhumane acts" not listed in the
statutes' definition of crimes against humanity may be a crime against humanity when
"intentionally causing great suffereing or serious injury, ..."
COURS 11: WAR CRIMES
The only difference between many ICL crimes is the mens rea with respect to the
knowledge of the context. A murder can be a genocide, a crime against humanity and a
war crime.
War crimes have relatively simple requirements. It has to take place in an armed conflict
(a nexus with an armed conflict). You kill a civilian in an ordinary context, it is a murder.
You kill a civilian in a context of war, that's a war crime.
War crimes emerged from international humanitarian law (droit de la guerre) while
crimes against humanity emerged form human rights.
International humanitarian law imposes state responsibility but the criminalization of
international humanitarian law is another business because it deals with individual
liability. Not all violations of international humanitarian law are ICL crimes. Only the
most important ones will qualify.
The violation has to be committed against an opponent in the armed conflict
Geneva Convention 4 (civilians)
Art. 2. In addition to the provisions which shall be implemented in peace-time, the present
Convention shall apply to all cases of declared war or of any other armed conflict which may arise
between two or more of the High Contracting Parties, even if the state of war is not recognized by
one of them.
Art. 4. Persons protected by the Convention are those who, at a given moment and in any
manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party
to the conflict or Occupying Power of which they are not nationals.
"two or more states engaged in armed conflict". + "protected persons" under the Geneva
Convention.
It also has to be a "grave breach"
mens rea
Mens rea has to be in relation to each and every element of the crime. For example, a
wilful killing: (1) intent to kill someone; (2) by someone who belongs to the armed forces
of the armed conflict and the victim has to be protected by the Geneva convention IV
article 4.
The civilian is a protected person, in all circumstances. It may also be a combatant that is
in the hands of the opposing party. Being "in the hands" means the combattant is "hors de
combat" (sick or wounded-- neutralized soldiers). Once a soldier surrenders, lays arms or
so, he will be a "protected person".
Geneva Convention IV only deals with people in the hands of the opposing party.
Article 6: IHL ceases to apply with the war (except for those who are still detained, for
instance in a concentration camp).
The Geneva law codifies the humane treatment of those in the hands of the party to the
convention. What about those who are not in their hands? Hague Convention of 1906:
means and methods of warfare. It's about how you fight a war as opposed as what you do
with your deteainees. How you use your tanks to invade a country, for instance. Once
you've invaded a country, whoever falls under your protection (civilians and hors de
combats) however falls under Geneva Conventions law. Hague law is much more
complex and technical than Geneva law.
By 1977 (geneva additional protocols), the nature of warfare had drastically changed to
that of 1907 (hague law). There are three protocols, no 2 and 3 are for
national/international armed conflict.
In recent history, the vast majority of conflicts have been internal (civil wars). Then it
happens between persons of the same nationality. Then how do you qualify as a protected
person? Well you have to differenciate between the beligerents. For instance, Bosnians
and Serbs in Yugoslavia.
Enemy aliens can be deported. He gives the exaple of erethrians in etheopia in 1998.
The additional geneva I and II combine geneva and hague law: means and methods of
warfare and decent treatment of hors de combat and civilians.
Art. 3 deals with non-international armed conflict.
Is the Geneva Conventions wishful thinking? Really when people are at war they loose
their shit. The survival instinct does not take moral considerations into account. When
you see your brother shot, you don't think of those things anymore. Is humanizing war a
good or a bad thing? Some say, the more brutal it is, the sooner the war will end...
Means and methods of warfare
The purpose of war is to intimidate, terrorize and crush your enemy.
First provision: Prohibition of indiscriminate attacks on civilians. In an armed attack, you
cannot deliberately attack civilians and civilian objects (ex: hospital, school, water
purifying factory, ...).
The next category, which is much more complex, is indiscriminate attacks. Art. 51(4),
57(2) Protocol 1. There are two principles. The first one is "distinction". Distinction
between legitimate targets (civilian and military targets). You do not deliberately attack
civilians and you attack military objectives. You don't just randomly bomb a city that has
military objectives in it. A military objective is an objective which by (time, location, use
etc) can make an effective contribuntion to the conflict and which's destruction gives a
distinct military advantage. If there is a warehouse, an airfield with military jets, a
dormitory with sleeping soldiers, these are military objectives. What about a bridge that
people use to go to the market? Well if the bridge, railway, airport, is mainly used by
citizens but happens to also be used by the military, that's a legitimate military objective.
You have to look at the circumstances. Indiscriminate attacks are not deliberately targeted
at civilians, but fail to focus on military objectives.
The next principle is proportionality. Using force that is not disproportionate for civilian
casualties. For instance, there is a command center in a city. It is in a bunker that you need
to bomb. You know bombing the bunker will blow up the surroundings and that will kill
civilians. If there's a market nearby you want to use it at times where it's not too busy. You
also have to gage the power of your bomb. If there's a couple of people that go to the fruit
market nearby and the command center holds most military commanders of the enemy, in
one bomb, you kill all military commanders, and you also kill a dozen cititzens. That's
proportionate. In contrast, if there's one sniper in one building, you bomb the building an
kill everyone that lives in it, that's disproportionate.
The prof gives an interesting example where the arms used by the army simply are so old
that it's hard not to kill civilians. You might be a decent army commander but shitty
weapons and primitive fighters will likely result in the violation of war crimes. In that
case you really do what you have to do-- you don't have much of a choice but to defend
yourself with hasardous weaponry and military personnel that will likely result in war
crimes. Prof gives the example of the erethrian 18 year old that bombed a school instead
of an airfield because the plane was old and imprecise. The criterion of precision in this
sense is problematic. The combatant is doing the best possible but the best is just not
good enough. One option is to say to erethria not to use the old weapons, but that's
completely unrealistic.
READING: WAR CRIMES
This type of crime is the first international crime in history to give way to individual (as
opposed to state) responsibility. It has emerged in the mid-19th century and blossomed with
the Hague conventions (1899-1907). Traditionally, such crimes were defined as violations
of the laws of warfare committed by combatants in international armed conflicts. It was
new that army officials (low or high-ranking) could be judged by another state since they
would normally have been protected by state immunity. [p.64-65 for more on the history].
Later on, the ICTY held in “Tadic” that the notion of war crimes was gradually extended
to serious violations of IHL governing non-international armed conflict.
THE NOTION
Serious violation of IHL (“Tadic”)
War crimes are serious violations of customary or treaty rules belonging to international
humanitarian law (IHL). As noted in Tadic, war crimes "(i) must consist of a serious
infringement of an international rule, that is to say "must constitute a breach of a rule
protecting important values, and the breach must involve grave consequences for the
victim", (ii) the rule violated must either belong to the corpus of customary law or be part
of an applicable treaty; and (iii) the violation must entail, under customary or conventional
law, the individual criminal responsibility of the person breaching the rule. An example of
a "non-serious violation" would be a combatant appropriating a loaf of bread in an occupied
village; although it is a violation of the 1907 Hague Convention Article 46(1) stating that
"private property must be respected", it isn't grave enough. The ICTY (AC) held in “Tadic”
that the notion of war crimes was gradually extended to serious violations of IHL governing
non-international armed conflict.
In an armed conflict (“Boskoski”)
What is meant by "armed conflict"? The question was correctly settled in 2010 by the ICTY
Appeals Chamber (AC) in Boskoski: "an armed conflict exists whenever there is a resort
to armed force between states or protracted (prolongé) armed violence between
governmental authorities and organized armed groups or between such groups within a
state. In order to distinguish an armed conflict from banditry, unorganized armed and shortlived insurrections or terrorist activities, the two following criteria must be applied on a
case-by-case basis in light of the particular evidence (i) the intensity of the conflict; (ii) the
level of organization of the parties.
Law of the Hague and Law of Geneva
IHL consists of the Law of the Hague and the Law of Geneva. The Law of the Hague
primarily regulates combat action (means and methods of warfare) and the treatment of
persons who no longer take part in armed hostilities (prisoners of war). The Law of Geneva
comprises the 1949 Geneva Conventions and the Additional Protocols of 1977 and is
essentially designed to regulate the treatment of persons who do not, or no longer, take part
in armed conflict (civilians, the wounded, the sick and shipwrecked, as well as prisoners
of war). The traditional difference between Hague and Geneva Law is now fading away,
given that the additional protocols update the Hague rules on means and methods of
combat, for the sake of protecting civilians as much as possible.
Against the other party to the conflict
War crimes may be perpetrated by combatants or by civilians of a party to the conflict
against combatants or civilians or non-other military targets (for instance, private
property) of the other party party to the conflict. Conversely, crimes committed by
combatants of one party to the conflict against members of their own armed forces do not
constitute war crimes.
THE CRIMINALIZATION OF THE SERIOUS VIOLATION OF A RULE OF IHL
Rules belonging to IHL normally ban given behaviours of states. In order for a serious
violation of IHL to become a war crime, it is necessary that the violation be also
criminalized by international law so that the liability of the individual may arise. The
relevant provisions of the four 1949 Geneva Conventions on “grave breaches” expressly
indicate that these violations also entail criminal responsibility of the individual for war
crimes. Leaving aside these provisions, usually rules of IHL fail to provide expressly for
the criminalization of their violations, or for the need for criminal proceedings in the event
of the rule being breached. This is not, however, determinative of the issue. What matters
is that criminal or military courts have in fact adjudicated breaches of IHL as war crimes.
In this sense, a war crime can (i) clearly be identified as such by the practice of national or
international courts. This will be the case for the most blatant violations of IHL, such as
killings. It would be better if it were possible to show that the breach is considered a war
crime under customary international law; (ii) a second option is that the breach is
considered a war crime by the Statute of the ICC; (iii) a third more difficult option is to
prove the existence of a general principle of law.
In “List and others” the court (the IMT I think) stated that “It is not essential that a crime
be specifically defined and charged in accordance with a particular ordinance, statute or
treaty if it is made a crime by international convention, recognized customs and usages of
war, or the general principles of criminal justice common to civilized nations generally”.
The tribunal noted that the acts at issue were traditionally punished. In Tadic, the ICTY
first considered whether there were customary rules of IHL governing internal armed
conflict, and answered in the affirmative. It then asked itself whether violations of those
rules could entail responsibility, and answered in the affirmative: “the accused were
therefore aware that they were amenable to the jurisdiction of their national criminal
courts”.
THE OBJECTIVE ELEMENTS
General
No authoritative and legally binding list of conducts that can constitute war crimes exists
in customary international law. The “grave breaches” of the Geneva Conventions and
article 8 of the ICC Statute give many examples, but are not exhaustive. Hence in each case
(and with only the exception of grave breaches) the only objective element of the crime
must essentially be inferred from the substantive rules of IHL. As for the “grave breaches”,
they must be committed in the context of an international armed conflict.
Classes of war crimes (p.70-75)
There are two categories: war crimes committed in international and internal armed
conflict. One must note that, according to Article 14(1) of the First Additional Protocol of
1977, an armed conflict between a state and a national liberation movement is considered
as an international armed conflict.
On account of their objective element, both classes include the following:
(i) Crimes committed against persons not taking part, or no longer taking part, in armed
hostilities
In practice, by far the most numerous crimes are committed against civilians.
Protected persons-- grave breaches
Crimes committed against protected persons or objects are grave breaches. Protected
persons are the wounded, shipwrecked, prisoners of war and civilians on the territory of
the detaining power or subject to the belligerent occupation of an occupying power.
Geneva civilian Convention
Art. 2. In addition to the provisions which shall be implemented in peace-time, the present
Convention shall apply to all cases of declared war or of any other armed conflict which may arise
between two or more of the High Contracting Parties, even if the state of war is not recognized by
one of them.
Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the
conflict or Occupying Power of which they are not nationals.
Article 13 Civilian Geneva Convention
The provisions of Part II cover the whole of the populations of the countries in conflict, without any
adverse distinction based, in particular, on race, nationality, religion or political opinion, and are
intended to alleviate the sufferings caused by war.
Infractions and jurisdiction-- grave breaches
Articles 50, 51, 130 and 147 of the First, Second, Third and Fourth Geneva Conventions
respectively encompass the “grave breaches”. Any contracting party is authorized as well
as obliged to search for and bring to trial-- or alternatively extradite to a requesting state-any person suspected or accused of a grave breach. Grave breaches include wilful killing,
torture, or inhumane treatment, including biological experiments, wilfully causing great
suffering or serious injury to body or health, extensive destruction and appropriation of
property, not justified by military necessity and carried out unlawfully and wantonly.
Art. 147
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 present Convention: wilful killing,
torture or inhuman treatment, including biological experiments, wilfully causing great suffering or
serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a
protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully
depriving a protected person of the rights of fair and regular trial prescribed in the present
Convention, taking of hostages and extensive destruction and appropriation of property, not justified
by military necessity and carried out unlawfully and wantonly.
Art. 146 Geneva Convention: "responsibility for grave breaches":
The High Contracting Parties undertake to enact any legislation necessary to provide effective
penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of
the present Convention defined in the following Article
Each High Contracting Party shall be under the obligation to search for persons alleged to have
committed, or to have ordered to be committed, such grave breaches, and shall bring such persons,
regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance
with the provisions of its own legislation, hand such persons over for trial to another High
Contracting Party concerned, provided such High Contracting Party has made out a ' prima facie '
case.
Each High Contracting Party shall take measures necessary for the suppression of all acts contrary
to the provisions of the present Convention other than the grave breaches defined in the following
Article.
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence,
which shall not be less favourable than those provided by Article 105 and those following of the
Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949.
Non-international conflicts
One should look at Article 3 common to the four Geneva Conventions, the Second
Additional Protocol (especially Article 4), as well as Article 4 of the ICTR Statute. There
is no statutory nor customary obligation to prosecute these (non-international conflict)
crimes using a universal jurisdiction, for they are not recognized as "grave breaches" as
such.
Art. 3 Geneva Convention: "conflicts not of international character"
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:
(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:
(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.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer
its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the
conflict.
(ii) Crimes against enemy combatants or civilians, committed by resorting to prohibited
methods of warfare
Examples
Intentionally directing attacks against the civilian population in the combat area;
committing acts or threats of violence the primary purpose of which is to spread terror
among the civilian population; intentionally launching an indiscriminate attack affecting
the civilian population or civilian objects in the knowledge that such attack will cause
excessibe loss of life, injury to civilians, or damage to civilian objects; intentionally
attacking medical buildings or equipment; intentionally launching an attack in the
knowledge that such attack will cause widespread, long-term, and severe damage to the
natural environment; declaring that no quarter will be given.
(iii) Crimes against enemy combatants and civilians, involving the use of prohibited
means of warfare
This is the prohibition of certain types of weapons, such as expanding bullets, gaz, napalm,
chemical weapons, etc. The rationale is that these weapons are of a nature to cause
superfluous injury or unecessary suffering.
(iv) Crimes against specially protected persons and objects
These persons or objects are, for instance, medical personnel units or transports, personnel
participating in relief actions, humanitarian organizations such as the Red Cross, or Red
Crescent, or Red Lion and Sun units, UN personnel belonging to peacekeeping missions,
etc.
(v) Crimes consisting of improperly using protected signs and emblends
These signes and emblems are, for instance, the flag of trucs, the distinctive emblems of
the Red Cross, or Red Crescent, or Red Lion and Sun, plus the emblem provided for in the
Third Additional protocol of 8 December 2005; perfidious (treacherous) use of a national
flag or of military uniform and insignia.
(vi) Conscripting or enlisting children under the age of 15 years (p.75)
Well that's already clear enough lol.
THE SUBJECTIVE ELEMENT
The subjective element (mens rea) of the crime is sometimes specified by the
international rule.
Examples of specified mens rea
Article 130 of the Third Geneva Convention requires intent for "grave breaches" to be
recognized: "wilfull killing, wilfully causing great suffering, wilfulling depriving a
prisoner of war of the rights of fair and regular trial prescribed in the Convention".
Another example is article 85(3) of the First Additional Protocol of 1977, which requires
that attacks (and other infractions) committed against civilians or undefended localities
requires the proof of intent. For other acts, the same provision also requires "knowledge"
as a condition to criminal liability. For instance, "launching indiscriminate attacks against
civilians" requires the knowledge that the attack will forseeably cause excessive loss of
life.
Unspecified mens rea
When international rules do not provide, not even implicitly, for a subjective element, it
would seem appropriate to hold that what is required is the intent or, depending upon the
circumstances, recklessness as prescribed in most legal systems of the world for the
underlying offense. Often, international criminal courts and tribunals have gradually
identified the requisite mental elment based on the nature of the underlying offence.
THE NEXUS WITH THE ARMED CONFLICT ("Kunarac")
Not all crimes committed during an armed conflict constitute war crimes. In order to
qualify, the conduct must be "closely related to the hostilities". This differentiation serves
to distinguish between war crimes and ordinary criminal conduct falling under the law
applicable in the relevant territory. The question of “nexus” applies in particular to offences
committed by civilians against other civilians or against combatants. Identifying a nexus
between a criminal and an armed conflict is relatively easy in the case of international
armed conflict.
The ICTY (in the Kunarac case) and ICTR have identified several criteria to identify the
nexus: (1) the fact that the perpetrator and/or the victim is a combatant or a non-combatant;
(2) the fact that the victim is a member of the opposing party; (3) the fact that the act may
be considered to serve the ultimate goal of a military campaign; (4) the fact that the act was
committed as part of the perpetrator's “official duties”.
An offence perpetrated during a non-international conflict by a civilian against another
civilian belonging to the opposing party may qualify as a war crime. For instance, a Serbian
raping a Muslim woman. If the offender identifies the victim with the opposing party, the
crime may be regarded as carried out in unison with the ultimate goals of the military
campaign. The same holds true for an offence committed by a civilian against a a combatant
belonging to the opposing party.
In contrast, if a crime committed by a combatant against an enemy civilian does not pursue
the ultimate goals of the military campaign nor is at least consonant with the military
campaign, it can be classified as an ordinary crime. Take the case of a group of militias or
combatants' intent on profiting from the confusion caused by an internal armed conflict by
stealing goods from a wealthy civilian who also happens to be a member of the opposing
party. In this case, unless prosecuting authorities show some other specific link with the
armed conflict, the robbery should be characterized as a common crime and not as looting
as a war crime.
The rationale behind this is that war crimes is an offence geared towards the deterrence
and punishment of the “wrong pursuing of war”.
WAR CRIMES IN THE ICC STATUTE
The ICC Statute is quite precise when it comes to war crimes.
Article 8(1): “when committed as part of a plan or policy or as part of a large-scale
commission”
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.
This provision should be construed to the effect that the jurisdiction of the Court is limited
to those war crimes which are not isolated events but constitute part of a policy or a largescale practice. Plainly, the drafters of the ICC Statute intended to limit the Court's
jurisdiction over war crimes to those offences that are more conspicuous and may involve
a plurality of persons or constitute part of a general practice. This definition affects the
scope of the Court's jurisdiction.
Art.8(b) and (e): “within the established framework of international law”
The meaning of the wording “within the established framework of international law” found
in articles 8(b) and (e) is unclear and could potentially mean that the infractions listed in
these provisions must also be in concordance with international custom. In this sense, the
court would need to make a positive finding when determining, on a case-by-case basis, if
the behaviour described in these provisions in fact is prohibited by customary law in order
to apply these provisions.
Other weaknesses of the Statute
The use in international armed conflict of modern weapons which cause superfluous injury
or unnecessary suffering, or are inherently indiscriminate, is not banned per se and
therefore does not amount to a crime under the ICC Statute. See p.81, 82 for environmental
destruction.
Article 8
War crimes
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:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular
trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(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:
(i) Intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military
objectives;
(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;
(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;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are
undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of
defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of
the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions,
resulting in death or serious personal injury;
(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;
(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical
or scientific experiments of any kind which are neither justified by the medical, dental or hospital
treatment of the person concerned nor carried out in his or her interest, and which cause death to or
seriously endanger the
health of such person or persons;
(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively
demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the
nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against
their own country, even if they were in the belligerent's service before the commencement of the
war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii)Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or
devices;
(xix) 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;
(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;
(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(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;
xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or
military forces immune from military operations;
(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva Conventions in conformity with international
law;
(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects
indispensable to their survival, including wilfully impeding relief supplies as provided for under the
Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces
or using them to participate actively in hostilities.
(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, namely, any of the following acts
committed against 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:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without previous judgement
pronounced by a regularly constituted court, affording all judicial guarantees which are generally
recognized as indispensable.
(d) Paragraph 2(c) 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.
(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:
(i) Intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities;
ii) Intentionally directing attacks against buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva Conventions in conformity with international
law;
(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;
(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives;
(v) Pillaging a town or place, even when taken by assault;
(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article
7, paragraph 2 (f), enforced sterilization, and any other form of sexual violence also constituting a
serious violation of article 3 common to the four Geneva Conventions;
(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or
using them to participate actively in hostilities;
(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless
the security of the civilians involved or imperative military reasons so demand;
(ix) Killing or wounding treacherously a combatant adversary;
(x) Declaring that no quarter will be given;
(xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation
or to medical or scientific experiments of any kind which are neither justified by the medical, dental
or hospital treatment of the person concerned nor carried out in his or her interest, and which cause
death to or seriously endanger the health of such person or persons;
(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be
imperatively demanded by the necessities of the conflict;
f) Paragraph 2 (e) 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.
3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or
re-establish law and order in the State or to defend the unity and territorial integrity of the State, by
all legitimate means
DEFINITION OF A WAR CRIME AND SUMMARY:
(1) a grave violation of the customs of war; (2) against a protected person (usually a
civilian or "hors de combat" from the state being invaded by another state); (3) the crime
has a nexus to an armed conflict; (4) there is an armed conflict.
If the armed conflict is not international, then only article 3 applies, which concerns the
taking of prisoners of war and such. However, "Tadic" mentions that war crimes also
apply to non-international conflicts?
At the ICC, the violation has to be linked to a greater plan or policy of large-scale
commission, which is not the case usually for war crimes under customary international
law. The ICC Statute, moreover, des not seem to ban the use of prohibited weapons.
COURS 12: WAR CRIMES (CONTINUED)
WARNING: I was absent during this lecture. My notes probably are not the best for this
lecutre.
February 13th 2014 – War Crimes - The Hague law: means and methods of warfare. o
The Hague Convention of 1907. - Geneva: protected persons in the hands of the party in
the conflict – human treatment of persons hors de combat. o Additional Protocol I and II.
–
Protocol I: means and methods of attack - Military thinking – one of the main
problems of international law – failure to understand military thinking. - Military
necessity: related to the killing of someone or destruction of an object necessarily
from a military objective. Additional Protocol I: - Article 49: attacks – relates to
means and methods of warfare. - Article 52: general protection of civilian objects
(schools, hospitals etc.) - Article 53: There exists a distinctive emblem for cultural
property under special protection – to identify an object as being protected – non
attackable - Art 55: Protection of the natural environment (ex: it includes dams) Art. 57: precautions in attacks o But dependant on context (you won’t announce
publicly your attack either)
Art 49 Additional Protocol I. Definition of attacks and scope of application
1. "Attacks" means acts of violence against the adversary, whether in offence or in defence.
2. The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory
conducted, including the national territory belonging to a Party to the conflict but under the control
of an adverse Party.
3. The provisions of this section apply to any land, air or sea warfare which may affect the civilian
population, individual civilians or civilian objects on land. They further apply to all attacks from the
sea or from the air against objectives on land but do not otherwise affect the rules of international
law applicable in armed conflict at sea or in the air.
4. The provisions of this section are additional to the rules concerning humanitarian protection
contained in the Fourth Convention, particularly in part II thereof, and in other international
agreements binding upon the High Contracting Parties, as well as to other rules of international
law relating to the protection of civilians and civilian objects on land, at sea or in the air against
the effects of hostilities.
Art 51. - Protection of the civilian population
1. The civilian population and individual civilians shall enjoy general protection against dangers
arising from military operations. To give effect to this protection, the following rules, which are
additional to other applicable rules of international law, shall be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack.
Acts or threats of violence the primary purpose of which is to spread terror among the civilian
population are prohibited.
3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they
take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific
military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as
required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or
civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military
objective a number of clearly separated and distinct military objectives located in a city, town,
village or other area containing a similar concentration of civilians or civilian objects;
and
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated.
6. Attacks against the civilian population or civilians by way of reprisals are prohibited.
7. The presence or movements of the civilian population or individual civilians shall not be used to
render certain points or areas immune from military operations, in particular in attempts to shield
military objectives from attacks or to shield, favour or impede military operations. The Parties to
the conflict shall not direct the movement of the civilian population or individual civilians in order
to attempt to shield military objectives from attacks or to shield military operations.
8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal
obligations with respect to the civilian population and civilians, including the obligation to take the
precautionary measures provided for in Article 57.
Art 52. General Protection of civilian objects
1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects
which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military
objectives are limited to those objects which by their nature, location, purpose or use make an
effective contribution to military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military advantage.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a
place of worship, a house or other dwelling or a school, is being used to make an effective
contribution to military action, it shall be presumed not to be so used.
Art 53. Protection of cultural objects and of places of worship
Without prejudice to the provisions of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international
instruments, it is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places
of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort;
(c) to make such objects the object of reprisals.
Art 57. Precautions in attack
1. In the conduct of military operations, constant care shall be taken to spare the civilian
population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor
civilian objects and are not subject to special protection but are military objectives within the
meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol
to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to
avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and
damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a
military one or is subject to special protection or that the attack may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated;
(c) effective advance warning shall be given of attacks which may affect the civilian population,
unless circumstances do not permit.
3. When a choice is possible between several military objectives for obtaining a similar military
advantage, the objective to be selected shall be that the attack on which may be expected to
cause the least danger to civilian lives and to civilian objects.
4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in
conformity with its rights and duties under the rules of international law applicable in armed
conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian
objects.
5. No provision of this article may be construed as authorizing any attacks against the civilian
population, civilians or civilian objects.
- Principle of distinction: between civilians and military o Deliberate o Indiscriminate
- What is a specific military objective? – depends on the context o How accurate does it
have to be? Depends on the technological abilities.
- Article 51(5): different types of indiscriminate attacks Gotovina Judgement: - Context:
Yugoslavia = republic. o International intra-state war and non-international conflict at the
same time. - Control of territory based on ethnic demography – which leads to ethnic
cleansing - UN declared a safe area in Srebrenica – but major execution – genocide.
Beginning of the end – people took control of the war. Operation “storm” which leads to
the situation in Gotovina. - Many people with no military skills – conscripts. Only a
minority are military trained. - Americans behind the scene –are training the Croatian
army. Private contracting firms. o They teach them the NATO doctrine: center of gravity
doctrine - focuses on command and control. You can only use your artillery from a
territory under your control. Ballistic science. o But what is the range of error? 400
meters – a lot for an urban area. Relative question. Measured against perfect precision,
which is quasi impossible to attain. (maybe drones)
- The issue in the case ends up revolving about the margin of error of artillery – the Court
determines that it was 200 meters. Does not find that it is not an acceptable margin of
errors – it only finds that too many projectiles fell outside of this margin. - Two issues
militate in favour for an acquittal: o Target of utilities (fixed targets) o The impact which
falls outside of the 200 meters is almost all empty fields o No proof of any civilian deaths
or injuries arising from the artillery attacks. - So what is the problem? Almost all the
population left. How could it be so effective (limited-means army?) – the CIA was using
drones. Relatively bloodless. But the entire population left. - Why did they leave? –
Evacuation process? Terrified? – Prosecution argues that the population left because they
were targeted. But is it enough? Civilians do flee… - Issue: whether those artillery attacks
were indiscriminate or not, because of the missing of their marks.
- Difficult tension: o Civilian suffering o Realization that warfare is about killing and
destruction
- If military necessity is interpreted too broadly, compromising humanitarian protection
and its scope. More proactive/humanitarian judges tend to adopt an extensive application
of the law (parallel with the nullem crimen sine lege principle). - But by implementing
too severe standards, you’ll make IHL impossible… IHL must be a realistic code of
conduct for military commanders fighting war in a human way. Educate combatants.
GOTOVINA JUDGEMENT (para 29-98)
28. Gotovina submits, inter alia, that the Trial Chamber erred in finding that unlawful artillery
attacks took place,89 and that, “without a finding of unlawful attacks resulting in massdeportation,”
the Trial Chamber’s finding that a JCE existed should be reversed.
“In accordance with Gotovina’s order, Knin, Benkovac, Obrovac, Gračac, and many other
towns, villages and hamlets […] were struck repeatedly with artillery over two days despite
having few or, as in almost all cases, no identifiable military targets. Residential areas of
these towns, villages and hamlets were struck as part of an indiscriminate shelling campaign
to achieve complete demoralisation” (para. 46)
The 200 meters range
-54: The Trial Chamber summarised Witness Rajčić’s relev
ant testimony as stating that a
130 millimetregunatadistanceof26kilometres“
hasanerrorrangeofabout15metresalongthe
axis, and about 70 to 75 metres in distance, with t
he normal scattering dispersion of a
130 millimetreshellbeinganareawithadiameter
of35metres.”
165
TheTrialChamberfurther
understood Witness Rajčić to have testified that BM
21 launchers cover a broader area than 130 millimetreguns.
166
Additionally,theTrialChambernotedWitnessLeslie’sviewthat“landing
withina400 metrer radius of the target with the first shot”would be acceptable with respect to,
inter alia ,130 millimetre guns andBM 21s.
1
55.
The Trial Chamber observed that it understood “prim
arily from ₣Witnessğ Konings’s
evidencethatthevariationinthelocationsofimp
actsoftheartilleryweaponryemployedbythe
HV is difficult to delimit precisely, as it depends
on a number of factors on which the Trial
Chamberhasnotreceiveddetailedevidence.”
168
TheTrialChamberfurtherobservedthatWitness
Leslie “was not called as an artillery expert” and
that it was “not clear which of the factors
described by ₣Witnessğ Konings ₣Witnessğ Leslie too
k into account.”
169
The Trial Chamber
concluded that a reasonable interpretation of this
evidence was that “those artillery projectiles
whichimpactedwithinadistanceof200metresofa
nidentifiedartillerytargetweredeliberately
firedatthatartillerytarget.”
58.
TheAppealsChamberobservesthattheTrialChamber
didnotexplainthespecificbasison
whichitarrivedata200metremarginoferroras
areasonableinterpretationofevidenceonthe
record.
176
TheTrialJudgementcontainsnoindicationthatan
yevidenceconsideredbytheTrial
Chamber suggested a 200 metre margin of error. The
Trial Chamber appears to have accepted
WitnessKonings’stestimonythattherangeoferror
forartilleryweaponsdependsonanumberof
factors, such as wind speed and air temperature, bu
t concluded that it did not receive detailed
evidenceonthesefactors.
177
However,theTrialChambermadenoattempttojust
ifythe200Metre
StandardwithrespecttothefactorsWitnessKoning
sidentified,despiterejectingWitnessLeslie’s
proposed400metrerangeoferrorpartlybecauseit
didnotexplicitlyaccountforthesefactors
Legitimate military targets
TheTrialChamber
observedthattherewaslimitedevidenceof“police
trucks,tanksorunits”movingthroughKnin
duringthetimeartilleryattacksweretakingplace
,thoughitnotedthatHVartillerystruckapolice
car,andthat“SVKtanksandtruckspassedtheUNc
ompound”ontheseconddayartilleryshelling
tookplace.
196
TheTrialChambercametosimilarconclusionswith
respecttoBenkovac,Gračac,
andObrovac,findingnoevidenceoflawfulmobilet
argets,andwithrespecttoBenkovac,thatno
linesofsightexistedononeofthedaysartillery
shellingoccurred
63.
The Appeals Chamber finds no error in the Trial Cha
mber’s conclusions regarding the
existenceoftargetsofopportunityinBenkovac,Gr
ačac,andObrovac.Absentanyindicationthat
targetsofopportunityexisted,theAppealsChamber
considersthattheTrialChamberwasentitled
tofindthatthespecificimpactsitesidentifiedi
nthosethreetownswerenotreasonablyattributed
to
lawfulattacksonopportunistictargets.However,w
ithrespecttoKnin,whichappearstohavebeen
themostheavilyshelledtown,
198
theTrialChamberdidnotexplicitlydiscountevid
encethat,at
minimum,didnotexcludethepossibilitythatHVfo
rcescouldobservemovementinthetown.It
alsoacknowledgedthatHVartilleryhitacarbelon
gingtothepolice,andthattargetsofopportunity
weremovingthroughthetown
- The Appeals Chamber recalls that the Trial Chamber considered a number of factors in
assessing whether particular shells were aimed at targets that offered a definite military
advantage,201 including the broad spread of individual artillery impact sites and the number
of projectiles falling far from identified artillery targets.202 However, the Appeals Chamber,
Judge Agius and Judge Pocar dissenting, finds that the distance between a given impact site
and one of the artillery targets identified by the Trial Chamber was the cornerstone and the
organising principle of the Trial Chamber’s Impact Analysis. The Appeals Chamber recalls
that it has found that the Trial Chamber failed to provide a reasoned opinion in deriving the
200 Metre Standard,206 a core component of its Impact Analysis.207 In view of this legal
error, the Appeals Chamber will consider de novo the remaining evidence on the record to
determine whether the conclusions of the Impact Analysis are still valid. (para. 64)
the Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that no reasonable
trier of fact could conclude beyond reasonable doubt that the Four Towns were subject to
unlawful artillery attacks.” (para. 83)
Chapter II. Civilians and civilian population
Art 50. Definition of civilians and civilian population
1. A civilian is any person who does not belong to one of the categories of persons referred to in
Article 4 (A) (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case
of doubt whether a person is a civilian, that person shall be considered to be a civilian.
2. The civilian population comprises all persons who are civilians.
3. The presence within the civilian population of individuals who do not come within the definition
of civilians does not deprive the population of its civilian character.
Art 51. - Protection of the civilian population
1. The civilian population and individual civilians shall enjoy general protection against dangers
arising from military operations. To give effect to this protection, the following rules, which are
additional to other applicable rules of international law, shall be observed in all circumstances.
2. The civilian population as such, as well as individual civilians, shall not be the object of attack.
Acts or threats of violence the primary purpose of which is to spread terror among the civilian
population are prohibited.
3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they
take a direct part in hostilities.
4. Indiscriminate attacks are prohibited. Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific
military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as
required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives and civilians or
civilian objects without distinction.
5. Among others, the following types of attacks are to be considered as indiscriminate:
(a) an attack by bombardment by any methods or means which treats as a single military
objective a number of clearly separated and distinct military objectives located in a city, town,
village or other area containing a similar concentration of civilians or civilian objects;
and
(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated.
6. Attacks against the civilian population or civilians by way of reprisals are prohibited.
7. The presence or movements of the civilian population or individual civilians shall not be used to
render certain points or areas immune from military operations, in particular in attempts to shield
military objectives from attacks or to shield, favour or impede military operations. The Parties to
the conflict shall not direct the movement of the civilian population or individual civilians in order
to attempt to shield military objectives from attacks or to shield military operations.
8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal
obligations with respect to the civilian population and civilians, including the obligation to take the
precautionary measures provided for in Article 57.
Chapter III. Civilian objects
Art 52. General Protection of civilian objects
1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects
which are not military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military
objectives are limited to those objects which by their nature, location, purpose or use make an
effective contribution to military action and whose total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military advantage.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a
place of worship, a house or other dwelling or a school, is being used to make an effective
contribution to military action, it shall be presumed not to be so used.
Art 53. Protection of cultural objects and of places of worship
Without prejudice to the provisions of the Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international
instruments, it is prohibited:
(a) to commit any acts of hostility directed against the historic monuments, works of art or places
of worship which constitute the cultural or spiritual heritage of peoples;
(b) to use such objects in support of the military effort;
(c) to make such objects the object of reprisals.
Art 54. Protection of objects indispensable to the survival of the civilian population
1. Starvation of civilians as a method of warfare is prohibited.
2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the
survival of the civilian population, such as food-stuffs, agricultural areas for the production of
food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the
specific purpose of denying them for their sustenance value to the civilian population or to the
adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to
move away, or for any other motive.
3. The prohibitions in paragraph 2 shall not apply to such of the objects covered by it as are used
by an adverse Party:
(a) as sustenance solely for the members of its armed forces; or
(b) if not as sustenance, then in direct support of military action, provided, however, that in no
event shall actions against these objects be taken which may be expected to leave the civilian
population with such inadequate food or water as to cause its starvation or force its movement.
4. These objects shall not be made the object of reprisals.
5. In recognition of the vital requirements of any Party to the conflict in the defence of its national
territory against invasion, derogation from the prohibitions contained in paragraph 2 may be made
by a Party to the conflict within such territory under its own control where required by imperative
military necessity.
Art 55. Protection of the natural environment
1. Care shall be taken in warfare to protect the natural environment against widespread, longterm and severe damage. This protection includes a prohibition of the use of methods or means
of warfare which are intended or may be expected to cause such damage to the natural
environment and thereby to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited.
Art 56. Protection of works and installations containing dangerous forces
1. Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical
generating stations, shall not be made the object of attack, even where these objects are military
objectives, if such attack may cause the release of dangerous forces and consequent severe
losses among the civilian population. Other military objectives located at or in the vicinity of these
works or installations shall not be made the object of attack if such attack may cause the release
of dangerous forces from the works or installations and consequent severe losses among the
civilian population.
2. The special protection against attack provided by paragraph 1 shall cease:
(a) for a dam or a dyke only if it is used for other than its normal function and in regular, significant
and direct support of military operations and if such attack is the only feasible way to terminate
such support;
(b) for a nuclear electrical generating station only if it provides electric power in regular, significant
and direct support of military operations and if such attack is the only feasible way to terminate
such support;
(c) for other military objectives located at or in the vicinity of these works or installations only if
they are used in regular, significant and direct support of military operations and if such attack is
the only feasible way to terminate such support.
3. In all cases, the civilian population and individual civilians shall remain entitled to all the
protection accorded them by international law, including the protection of the precautionary
measures provided for in Article 57. If the protection Ceases and any of the works, installations or
military objectives mentioned in paragraph 1 is attacked, all practical precautions shall be taken to
avoid the release of the dangerous forces.
4. It is prohibited to make any of the works, installations or military objectives mentioned in
paragraph 1 the object of reprisals.
5. The Parties to the conflict shall endeavour to avoid locating any military objectives in the
vicinity of the works or installations mentioned in paragraph 1. Nevertheless, installations erected
for the sole purpose of defending the protected works or installations from attack are permissible
and shall not themselves be made the object of attack, provided that they are not used in
hostilities except for defensive actions necessary to respond to attacks against the protected
works or installations and that their armament is limited to weapons capable only of repelling
hostile action against the protected works or installations.
6. The High Contracting Parties and the Parties to the conflict are urged to conclude further
agreements among themselves to provide additional protection for objects containing dangerous
forces.
7. In order to facilitate the identification of the objects protected by this article, the Parties to the
conflict may mark them with a special sign consisting of a group of three bright orange circles
placed on the same axis, as specified in Article 16 of Annex I to this Protocol [Article 17 of
Amended Annex]. The absence of such marking in no way relieves any Party to the conflict of its
obligations under this Article.
Chapter IV. Precautionary measures
Art 57. Precautions in attack
1. In the conduct of military operations, constant care shall be taken to spare the civilian
population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(a) those who plan or decide upon an attack shall:
(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor
civilian objects and are not subject to special protection but are military objectives within the
meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol
to attack them;
(ii) take all feasible precautions in the choice of means and methods of attack with a view to
avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and
damage to civilian objects;
(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated;
(b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a
military one or is subject to special protection or that the attack may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage
anticipated;
(c) effective advance warning shall be given of attacks which may affect the civilian population,
unless circumstances do not permit.
3. When a choice is possible between several military objectives for obtaining a similar military
advantage, the objective to be selected shall be that the attack on which may be expected to
cause the least danger to civilian lives and to civilian objects.
4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in
conformity with its rights and duties under the rules of international law applicable in armed
conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian
objects.
5. No provision of this article may be construed as authorizing any attacks against the civilian
population, civilians or civilian objects.
COURS 13: CRIMES AGAINST HUMANITY
It's independent from armed conflict, contrarily to war crimes. Crimes against humanity
require no nexus to armed conflict. Here any civilian is protected, as opposed to war
crimes (where it has to be in a conflict between two nations). The idea is that we want
something massive; not insignificant. The wording we found is that it must "shock the
conscience of mankind".
Nuremberg Charter, art. 6c): cimes against humanity: namely, murder, extermination,
enslavement, deportation, and other inhumane acts (imprecise) 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 (this is a reference to war crimes and crimes against peace, which both
take place in armed conflict) whether or not in violation of the domestic law of the
country where perpetrated.
ICTY Statute: Article 5 defines 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;
(d)deportation;
(e)imprisonment;
(f)torture;
(g)rape;
(h)persecutions on political, racial and religious grounds;
(i)other inhumane acts.
Here we require a connection with armed conflict. This is more restrictive that
international customary law, which does not require a nexus with an armed conflict.
The ICTR statute does not require a connection with an armed conflict. There was no
connection between the genocide and the Rwandan conflict.
It's the same for the ICC; there's no requirement of a nexus to an armed conflict.
Art. 7: Aux fins du présent Statut, on entend par crime contre l’humanité l’un quelconque des
actes ci-après lorsqu’il est commis dans le cadre d’une attaque généralisée ou systématique lancée
contre toute population civile et en connaissance de cette attaque : [...]
Art. 7(2)(a): Par « attaque lancée contre une population civile », on entend le comportement qui
consiste en la commission multiple d’actes visés au paragraphe 1 à l’encontre d’une population civile
quelconque, en application ou dans la poursuite de la politique d’un État ou d’une organisation ayant
pour but une telle attaque ;
[... ran out of battery-- see loose sheet]
READING: CRIMES AGAINST HUMANITY
The notion of crimes against humanity was propounded for the first time in 1915, on the
occasion of mass killings of Armenians in the Ottoman Empire. On 28 May 1915, the
French, British and Russian governments decided to react strongly by stating that
participants to such atrocities will be prosecuted personally. However these guys only
seemed to adopt this document in order to give a short-term response to an urgent
political crisis-- they did not seem to have in mind to create a new and lasting form of
international infraction.
THE NUREMBERG CHARTER AND JUDGEMENT
The allies were aware that some of the most heinous acts of barbary perpetrated by
Germans were not prohibited by customary international law. The laws of warfare only
proscribed violations involving the adversary or the enemy populations, whereas the
Germans had also performed inhuman acts for political or racial reasons against their own
citizens (Jews, Gypsies, trade union members, etc...).
SUBSEQUENT DEVELOPMENTS
The link between crimes against humanity and war was gradually dropped. At present,
customary international law bans crimes against humanity whether they are committed in
the time of war or peace. The same holds true for the ICC Statute.
THE NOTION TODAY
Here's customary international law's definition of crimes against humanity:
(1) particularly odious offences;
(2) that are not isolated or sporadic. It has to be committed in an instance of a repetition of
similar crimes or be the manifestation of a governmental policy. This contextual element
does not necessarily mean that the individual act amounting to crime against humanity
(murder, torture, rape, ...) be repeated in time and space or, in other words that the same
underlying offence be committed on a large scale;
(3) they are prohibited and may consequently be punished regardless of whether they are
perpetrated in time of war or peace;
(4) the victims may be civilians or combatants, but the widespread or systematic attack
which is made out of the various underlying offences be committed against a civilian
population, which must be the ultimate target of crimes against humanity.
(5) customary international law omits the ICC Statute's requirement that these crimes be
committed following a state or organization's actively promoted policy
THE OBJECTIVE ELEMENTS: THE CONTEXTUAL ELEMENT
ICC art. 7:
Aux fins du présent Statut, on entend par crime contre l’humanité l’un quelconque des actes ci-après
lorsqu’il est commis dans le cadre d’une attaque généralisée ou systématique lancée contre toute
population civile et en connaissance de cette attaque : [meurtre, extermination, torture, persécution
(raciale, politique, religieuse, ...), viol...]
Art. 7(2)(a): Par « attaque lancée contre une population civile », on entend le comportement qui
consiste en la commission multiple d’actes visés au paragraphe 1 à l’encontre d’une population
civile quelconque, en application ou dans la poursuite de la politique d’un État ou d’une organisation
ayant pour but une telle attaque ;
First of all, crimes against humanity are of a large-scale or massive nature. In order to be
an “attack on humanity”, the offence needs to be of extreme gravity and not a sporadic
event but a pattern of misconduct. In summary, criminal acts such as murder, extermination,
torture, persecution, (...) reach the threshold of crimes against humanity only if they are
part of a practice, according to jurisprudence (see p.93 note 27). Isolated inhumane acts of
this nature may constitute grave infringements of human rights or, depending on the
circumstances, war crimes, but fall short of the stigma attaching to crimes against
humanity.
On the other hand, an individual may be guilty of crimes against humanity even if he
perpetrates one or two of the offences mentioned above, provided those offences are part
of a consistent pattern of misbehaviour by a number of persons linked to that offender.
At present, ICL always requires for the crimes under discussion a general context of
criminal conduct, consisting of a widespread or systematic practice of unlawful attacks
against the civilian population.
THE OBJECTIVE ELEMENTS: THE UNDERLYING OFFENCES
Crimes against humanity consist of two distinct categories¸of crimes: i) inhumane acts such
as murder, extermination, enslavement, and deportation of any civilian population; ii)
persecution on political, racial or religious grounds-- this can embrace actions that at the
time of their commission may not be prohibited by national legal systems, for persecution
may take the form of acts other than murder, extermination, enslavement, or deportation.
Murder: While the mental element for murder in ICL usually is intent, Akayesu specified
that it will suffice for crimes against humanity to want “to cause the victim serious injury
with reckless disregard for human life”.
Extermination: Art. 7(2)(b) ICC Staute: “Par « extermination », on entend notamment le fait
d’imposer intentionnellement des conditions de vie, telles que la privation d’accès à la nourriture et aux
médicaments, calculées pour entraîner la destruction d’une partie de la population”. In Krstic, the ICTY
specified that it had to be the destruction of a “numerically significant part of the
population”. This may also include extermination of a significant number of the population
by terrorists for the purpose of spreading terror.
Enslavement: Art. 7(2)(c) ICC Statute: “Par « réduction en esclavage », on entend le fait d’exercer
sur une personne l’un quelconque ou l’ensemble des pouvoirs liés au droit de propriété, y compris dans le
cadre de la traite des être humains, en particulier des femmes et des enfants ;”.
Deportation or forcible transfer of population: Art. 7(2)(d): Par « déportation ou transfert forcé
de population », on entend le fait de déplacer de force des personnes, en les expulsant ou par d’autres moyens
coercitifs, de la région où elles se trouvent légalement, sans motifs admis en droit international”. The ICTY,
in Krstic, specified that “Deportation presumes transfer beyond state borders, whereas
forcible transfer relates to displacement within a state”.
Imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law: The ICTY specified in Kordic that imprisonment as a crime
against humanity must “be understood as arbitrary imprisonment, that is to say, the
deprivation of liberty of the individual without due process of law, as part of a wide-spread
or systematic attack directed against a civilian population.
Torture: Art. 7(2)(e) ICC Statute: “ Par « torture », on entend le fait d’infliger intentionnellement une
douleur ou des souffrances aiguës, physiques ou mentales, à une personne se trouvant sous sa garde ou sous
son contrôle ; l’acception de ce terme ne s’étend pas à la douleur ou aux souffrances résultant uniquement de
sanctions légales, inhérentes à ces sanctions ou occasionnées par elles”. The suffering has to be intense,
but does not have to be equal to that of a serious injury or death, according to the ICTY in
Brdanin. According to Naletilic (ICTY), the determination of the existence of torture must
be made on a case-by-case basis.
Sexual violence: Art.7(1)(g) ICC Statute: “[constitue un crimes contre l'humanité le] Viol,
esclavage sexuel, prostitution forcée, grossesse forcée, stérilisation forcée ou toute autre forme de violence
sexuelle de gravité comparable”. According to Akayesu (ICTR), “rape” is “a physical invasion
of a sexual nature, committed under circumstances which are coercive”. In Furundzija,
“forced pregnancy” was defined as “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”.
Persecution: Art. 7(1) (h) and 7(2)(g) ICC Statute: 7(1)(h) Persécution de tout groupe ou de toute
collectivité identifiable pour des motifs d’ordre politique, racial, national, ethnique, culturel, religieux ou
sexiste au sens du paragraphe 3, ou en fonction d’autres critères universellement reconnus comme
inadmissibles en droit international, en corrélation avec tout acte visé dans le présent paragraphe ou tout
crime relevant de la compétence de la Cour ; 7(2)(g) Par « persécution », on entend le déni intentionnel et
grave de droits fondamentaux en violation du droit international, pour des motifs liés à l’identité du groupe
ou de la collectivité qui en fait l’objet ; In a sense, persecution is the reduced form of a genocide.
Enforced disappearance of persons: Art. 7(2)(i) ICC Statute: “Par « disparitions forcées de
personnes », on entend les cas où des personnes sont arrêtées, détenues ou enlevées par un État ou une
organisation politique ou avec l’autorisation, l’appui ou l’assentiment de cet État ou de cette organisation,
qui refuse ensuite d’admettre que ces personnes sont privées de liberté ou de révéler le sort qui leur est réservé
ou l’endroit où elles se trouvent, dans l’intention de les soustraire à la protection de la loi pendant une période
prolongée.” It may be noted that with respect to this crime the ICC Statute has not codified
existing customary law but contributed to the crystallization of a nascent rule.
Other inhumane acts of a similar character and gravity: This is a loose catch-all provision
and it's at odds with the legality principle enshrined in art. 21. See p.98 for two decisions
narrowing down the scope of this provision.
THE SUBJECTIVE ELEMENTS
The relevant rules of international law require two mental elements for crimes under
discussion: i) the mens rea proper to the underlying offence (murder, rape, torture,
deportation, etc.); and ii) awareness of the existence of a widespread or systematic
practice.
i) the mens rea proper to the underlying offence:
In most cases the required mental element is intent.
Murder: Akayesu specified that mens rea for murder could also be “the intent to inflict
serious injury in reckless disregard of human life”. More generally, where an accused,
acting as an “agent of a system”, does not directly and immediately cause the inhumane
acts, it is not necessary that he anticipate all the specific consequences of his misconduct;
it is sufficient for him to be aware of the risk that his action might bring about serious
consequences for the victim. Thus recklessness may be sufficient.
Persecution: Here, another mental element is also required: a persecutory or discriminatory
animus. The intent must be to subject a person or group to discrimination, ill-treatment, or
harassment, so as to bring about great suffering. This added element for persecution
amounts to a special criminal intent.
ii) awareness of the existence of a widespread or systematic practice.
The second requirement is that the agent be cognizant of the link between his misconduct
and a widespread or systematic practice. The “contextual” practice may refer either to
offences of the same category or to other large-scale attacks on the civilian population
directed to offend the dignity and humanity of the population, as long as a link exists
between the crime against humanity at issue and the practice. As stated in Tadic (ICTY),
the perpetrator needs to know that there is an attack on the civilian population and that his
acts comprise part of the attack. In Blaskic, the ICTY specified that the perpetrator needs
at least to be aware of the risk that his act is part of the attack, and then takes that risk. This
does not, however, entail that he needs to know the details of the attack (Kunarac). This
additional element of knowledge helps to distinguish crimes against humanity from war
crimes.
THE AUTHORS
Normally it is state organs, ie individuals acting in an official capacity such as military
commanders, servicemen, etc. who perpetrate crimes against humanity. Is this a necessary
element of the crimes? May such crimes be committed by individuals not acting in an
official capacity? In the latter case, must the offence be approved or at least condoned or
countenanced by a governmental body?
The case law seems to indicate that the crimes we are discussing may be committed by
individuals acting in their private capacity, provided they behave in unison, as it were, with
general state policy and find support for their misdeeds in such policy. It has to fit clearly
within such a policy. p.100.
Art. 7(2)(a) RS: Par « attaque lancée contre une population civile », on entend le comportement qui
consiste en la commission multiple d’actes visés au paragraphe 1 à l’encontre d’une population civile
quelconque, en application ou dans la poursuite de la politique d’un État ou d’une organisation ayant pour
but une telle attaque ;
It would seem that the Statute requires that the offender, in committing a crime against
humanity, pursue or promote such a practice. It would follow that any practice simply
tolerated or condoned by a state or an organization would not constitute an attack on the
civilian population or a widespread or systematic practice. This requirement goes beyond
what is required under international customary law and unduly restricts the notion under
discussion. The Elements of Crime make this restriction even broader and more explicit.
There is is stated that the “policy to commit such attack” “requires that the state or
organization actively promote or encourage such an attack against a civilian population”.
THE VICTIMS
Art.7 Chapeau ICC Statute states that the attack may be launched against “any civilian
population”. The word “civilian” does not cover combatants. Interestingly, however,
persecution does include combatants (p.102). This is because the laws of war has
traditionally excluded them. It is worth noting, however, that the requirement that murdertype crimes against humanity must target the civilian population does not exclude that the
individual victims of the underlying offences might be non-civilians. In other words, the
“targeted group” of victims must be civilians but a couple of combatants here and there
may also be the object of the crime against humanity. See p.103-104 for more on the
progressive inclusion of combatants.
It is unclear whether art. 7 includes combatants or not. See p.106-107.
ARTICLE 7 OF THE ICC STATUTE AND CUSTOMARY INTERNATIONAL LAW
In some respects, art. 7 is broader or narrower than international customary law. In most
respects, it is however similar.
Areas where art 7 is narrower than customary international law
See p.106-107.
Article 7
Crimes contre l’humanité
1. Aux fins du présent Statut, on entend par crime contre l’humanité l’un quelconque des actes ci-après
lorsqu’il est commis dans le cadre d’une attaque généralisée ou systématique lancée contre toute population
civile et en connaissance de cette attaque :
a) Meurtre ;
b) Extermination ;
c) Réduction en esclavage ;
d) Déportation ou transfert forcé de population ;
e) Emprisonnement ou autre forme de privation grave de liberté physique en violation des dispositions
fondamentales du droit international ;
f) Torture ;
g) Viol, esclavage sexuel, prostitution forcée, grossesse forcée, stérilisation forcée ou toute autre forme de
violence sexuelle de gravité comparable ;
h) Persécution de tout groupe ou de toute collectivité identifiable pour des motifs d’ordre politique, racial,
national, ethnique, culturel, religieux ou sexiste au sens du paragraphe 3, ou en fonction d’autres critères
universellement reconnus comme inadmissibles en droit international, en corrélation avec tout acte visé
dans le présent paragraphe ou tout crime relevant de la compétence de la Cour ;
i) Disparitions forcées de personnes ;
j) Crime d’apartheid ;
k) Autres actes inhumains de caractère analogue causant intentionnellement de grandes souffrances ou des
atteintes graves à l’intégrité physique ou à la santé physique ou mentale.
2. Aux fins du paragraphe 1 :
a) Par « attaque lancée contre une population civile », on entend le comportement qui consiste en la
commission multiple d’actes visés au paragraphe 1 à l’encontre d’une population civile quelconque, en
application ou dans la poursuite de la politique d’un État ou d’une organisation ayant pour but une telle
attaque ;
b) Par « extermination », on entend notamment le fait d’imposer intentionnellement des conditions de vie,
telles que la privation d’accès à la nourriture et aux médicaments, calculées pour entraîner la destruction
d’une partie de la population ;
c) Par « réduction en esclavage », on entend le fait d’exercer sur une personne l’un quelconque ou
l’ensemble des pouvoirs liés au droit de propriété, y compris dans le cadre de la traite des être humains, en
particulier des femmes et des enfants ;
d) Par « déportation ou transfert forcé de population », on entend le fait de déplacer de force des personnes,
en les expulsant ou par d’autres moyens coercitifs, de la région où elles se trouvent légalement, sans motifs
admis en droit international ;
e) Par « torture », on entend le fait d’infliger intentionnellement une douleur ou des souffrances aiguës,
physiques ou mentales, à une personne se trouvant sous sa garde ou sous son contrôle ; l’acception de ce
terme ne s’étend pas à la douleur ou aux souffrances résultant uniquement de sanctions légales, inhérentes à
ces sanctions ou occasionnées par elles ;
f) Par « grossesse forcée », on entend la détention illégale d’une femme mise enceinte de force, dans
l’intention de modifier la composition ethnique d’une population ou de commettre d’autres violations
graves du droit international. Cette définition ne peut en aucune manière s’interpréter comme ayant une
incidence sur les lois nationales relatives à la grossesse ;
g) Par « persécution », on entend le déni intentionnel et grave de droits fondamentaux en violation du droit
international, pour des motifs liés à l’identité du groupe ou de la collectivité qui en fait l’objet ;
h) Par « crime d’apartheid », on entend des actes inhumains analogues à ceux que vise le paragraphe 1,
commis dans le cadre d’un régime institutionnalisé d’oppression systématique et de domination d’un
groupe racial sur tout autre groupe racial ou tous autres groupes raciaux et dans l’intention de maintenir ce
régime ;
i) Par « disparitions forcées de personnes », on entend les cas où des personnes sont arrêtées, détenues ou
enlevées par un État ou une organisation politique ou avec l’autorisation, l’appui ou l’assentiment de cet
État ou de cette organisation, qui refuse ensuite d’admettre que ces personnes sont privées de liberté ou de
révéler le sort qui leur est réservé ou l’endroit où elles se trouvent, dans l’intention de les soustraire à la
protection de la loi pendant une période prolongée.
3. Aux fins du présent Statut, le terme « sexe » s’entend de l’un et l’autre sexes, masculin et féminin,
suivant le contexte de la société. Il n’implique aucun autre sens.
COURS 14: GENOCIDE
My notes are on loose sheets.
READING: GENOCIDE
Article 6
Crime de génocide
Aux fins du présent Statut, on entend par crime de génocide l’un quelconque des actes ci-après commis
dans l’intention de détruire, en tout ou en partie, un groupe national, ethnique, racial ou religieux,
comme tel :
a) Meurtre de membres du groupe ;
b) Atteinte grave à l’intégrité physique ou mentale de membres du groupe ;
c) Soumission intentionnelle du groupe à des conditions d’existence devant entraîner sa destruction
physique totale ou partielle ;
d) Mesures visant à entraver les naissances au sein du groupe ;
e) Transfert forcé d’enfants du groupe à un autre groupe.
This definition is a copy-paste from the 1948 Genocide Convention Article 2. "To destroy
in part" is interpreted as "to destroy a substantial part" of the group. One must note that the
chapeau does not mention political groups, nor cultural groups (only "ethnies"). The
Convention confined itself to the physical destruction of relatively stable groups to which
persons in most instances belong "involuntarily" and, often, by birth. Political groups were
left out in the 1948 Convention and were not added subsequently. Hence, a genocide on
political opponents would only fall as a crime against humanity based on persecution. The
lists of groups and of "means of destruction" are exhaustive, which is ciriticized nowadays
since there are many ways to persecute "with a genocidal intent" that are not listed. It would
seem that the text does not cover the conduct currently termed as "ethnic cleansing", that
is, the forcible expulsion of civilians belonging to a particular group from an area.
THE GENOCIDE CONVENTION
The Genocide Convention pursued two goals: i) to oblige contracting parties to criminalize
genocide and punish their authors within the legal system of each party; and accordingly
ii) to provide for the judicial cooperation of those contracting states for the suppression of
the crime.
Article I states that the contracting parties "undertake to prevent and punish" genocide.
Article III imposes upon contracting parties the obligation to punish not only the
perpetration of genocide but also conduct somehow linked to the crime. Article VI obliges
the persons accused of genocide to be prosecuted and tried by the judicial authorities of the
territory "in which the act was committed".
In Bosnia v. Serbia and Montenegro, the ICJ held that states had the obligation not to
commit genocide themselves. In this way, the treaty imposes both personal and state
responsibility for the comission of genocide. Article 9 of the Convention states that it is the
Court that can ensure the judicial safeguard of compliance with such obligation. In other
words, it has jurisdiction over disputes between states concerning the interpretation,
application, or fulfilment of the Convention.
OBJECTIVE ELEMENTS
The following treatment must be given to members of what we could call one of the
"protected groups", hence national, ethnical, racial or religious groups:
a) Meurtre de membres du groupe ;
b) Atteinte grave à l’intégrité physique ou mentale de membres du groupe ;
c) Soumission intentionnelle du groupe à des conditions d’existence devant entraîner sa destruction
physique totale ou partielle ;
d) Mesures visant à entraver les naissances au sein du groupe ;
e) Transfert forcé d’enfants du groupe à un autre groupe.
Killing
In sub-section a), the "killing of members" of a group indicates that many members must
be killed.
Serious harm
As for b), it is not necessary that the harm be permanent and irremediable, but it must
involve harm that goes beyond temporary unhappiness, embarrassment or humiliation
(Akayesu). It must be harm that results in grave and long-term disadvantage to a person's
ability to lead a normal and constructive life. The seriousness of the harm must be assessed
on a case-by-case basis. The harm may include acts of bodily or mental torture, sexual
violence and persecution (Rutaganda).
Conditions calculated to bring about destruction
This includes so-called "slow death measures". This expression includes among other
things "subjecting a group of people to a subsistence diet, systematic expulsion from homes
and the reduction of essential medical services below minimum requirements (Akayesu).
It is not required that those conditions of life actually bring about the physical destruction
of the group, in whole or in part; it is only required that "they are calculated to bring its
destruction", namely that they intended to achieve this result.
Measures intended to prevent births
It is conduct which prevents the biological reproduction of the group. This can be acheived
through sterilization of women (when women transmit ethnicity, such as in the Jewish
culture), or rape (when geared towards changing the ethnicity of the group and when men
transmit the ethnicity in a given culture), segregation of sexes, forced birth control. In
addition, the measure at issue may not only be physical but also mental; they may include
rape as an act directed to prevent births when the woman raped refuses subsequently to
engage in intercourse. It is not required that the measures achieve the desired goal, being
only necessary that they are carried out for that particular purpose.
Forcibly transfering children to another group
This conduct may embrace threats or intimidation leading to the forcible transfer of
children to another group.
THE SUBJECTIVE ELEMENTS
It is necessary to distinguish between first, the mental element required for each of the
underlying acts (murder, rape, etc.) and, second, the specific mental element that is
necessary to consider those acts as amounting to genocide.
All the prohibited acts must be accomplished intentionally, ie they require intent on the
part of the perpetrator. To the general intent of the underlying act an additional specific
mental element must be added, namely "the intent to destroy, in whole of in part, one of
the enumerated group as such". This is known as the "genocidal intent". By "in part", we
mean "a substantial part" of the group.
The question however arises of whether the specific intent harboured by the perpetrator
has to be "realistic"; must the perpetrator believe that the intended goal can be achieved
through the commission of one of the prohibited acts? There is no clear answer. See p.119.
THE PROTECTED GROUPS
An exhaustive enumeration of stable groups
The genocidal intent must be directed towards one of the enumerated groups. The ICTY
and ICTR clarified the definition of "group", moving from an objective to a subjective
evaluation. In Akayesu, the ICTR stressed that it be a "stable group", i.e. one must belong
to it authomatically, by birth, in a continuous and often irremediable manner. Some argue
tha the groups protected against genocide should not be limited to the four groups
envisaged in the relevant rules, but-- in order to respect the intention of the draughtsmen
of the Genocide Convention, who clearly intended to protect any identifiable group-should include "any stable and permanent group" (Akayesu). This statement is however
unconvincing, given that the enumeration is explicitly limited to four groups.
The subjective test
It is important to stress that these groups are refered to as social entities. It would be useless
to try to describe the protected groups by applying rigorous scientific or objective notions,
because by doing so one may find that some groups do not scientifically and objectively
exist. The ICTR has developped a "subjective test" to determine the existence of a group.
Indeed, the Tutsis and Hutus essentially were identical groups (same culture, ethnicity,
religion, nationality). The ICTR considered that the Tutsis and Hutus were distinct groups
because the Rwandans themselves, without hesitation, answered questions regarding their
ethnicity. It is sufficient that the perpetrator believes that the victim is a member of the
group he or she seeks to destroy (Akayesu). This subjective approach was followed by the
ICTY and the UN in Darfur.
Destruction "in whole or in part"
Destruction "in part" means that the suspect must not necessarily have had the intention to
destroy the group entirely. He must however at least have had the intention to destroy the
group "in a substantial part"-- that's how "in part" has been interpreted. Also, in order to
determine if a "substantial part" was targeted, one must look at the proportion of the group
that was destroyed (quantitative approach) as well as the importance of the people that were
killed (ie leaders, intelligencia, ...)(qualitative approach). There is no strict method on how
to adequate the quantitative and qualitative approaches. In Krstic, the ICTY added that "the
intent to eradicate a group (ex: Bosnian Muslims) within a limited geographical area such
as the region of a country or even a municipality (ex: all Bosnian Muslims (that's about
8000 people) in the city of Srebrenica) could be characterized as genocide". I personally
think this is inconsisten with the "substantial part" requirement developped by previous
jurisprudence-- Srebrenica Muslims isn't a "substantial part" of Bosnian Muslims.
National group
In Akayesu, "national groups" was defined as "a collection of people who are perceived
to share a legal bond of common citizenship, coupled with reciprocity of rights and
duties".
Ethnic group
In Akayesu, this was defined as "a group whose members share a common language or
culture".
Racial group
In Akayesu, this was defined as "a group based on the hereditary physical traits often
identified with a geographical region, irrespective of linguistic, cultural, national or
religious factors".
Religious group
In Akayesu, this was defined as "a group whose members share the same religion,
denomination or mode of worship".
TWO PROBLEMATIC ASPECTS OF GENOCIDE
Whether genocide always requires a genocidal policy or context
The fact that historically genocide coincides with the actual destruction of a protected
group, carried out in furtherance of a genocidal policy, has not been mirrored in the legal
definition of genocide. Commentators consider this stand to be incorrect and argue that
there must be a contextual element, in the form of a genocidal campaign, or at least of a
pattern of collective violence against a group. It is maintained that it would be unrealistic
for a single individual to aim at the destruction of a group. This finds support in the
Elements of Crime of the ICC, according to which the conduct must take place "in the
context of a manifest pattern of similar conduct directed against the group" or must be
conduct "that could itself effect the destruction of the group". In Al Bashir, the ICC-PTC
stated that:
"the crime of genocide is only completed when the relevant conduct presents a concrete threat to the
existence of the targeted group, or a part thereof. The protection offered by the penal norm defining
the crime is an ultima ratio mechanism to preserve the highest valies of the international
community."
How to identify genocidal intent
Usually deduced from facts
Normally to prove genocidal intent one has to infer such intent from factual circumstances.
Only seldom can one find documents or statements by which one or more persons explictly
declare that they intend to destroy a whole group. For instance, in Krstic, all Muslim men
of military age in a given city were killed and the rest of the population was deported. The
genocidal intent was deduced from the facts, since the result was that there were no more
Muslims in the city after the event.
Policy
The question whether those acts were art of a plan or policy or of wide-spread or systematic
practice may eventually acquire importance from an evidentiary viewpoint, as an element
capable of proving that there was indeed genocidal intent (Akayesu).
COURS 15: TORTURE AND TERRORISM
These crimes are not in and of themselves international crimes but can constitute one
when mixed with other attributes.
TERRORISM
"One man's terrorist is another's freedom fighter". IHL gives the right to soldiers in official
uniform to kill enemies and destroy military objectives. On the other hand, if you're acting
as a soldier but without official capacity, then you're really only being a terrorist.
What about liberation movements? Protocol I states that it also applies to liberation
movements acting in the name of the right to self-determination (art. 1 para 4). The point
is to tranform liberation movements from terrorists to freedom fighters.
Article 1(4) provides that armed conflicts in which peoples are fighting against colonial
domination, alien occupation or racist regimes are to be considered international conflicts.
There is no general convention defining terrorism. This is because it is highly political-which is a national liberation movement and which is a terrorist? There are many different
treaties (seven-- they are in the footnotes in p.152) that regulate precise aspects of terrorism.
One of them is the Tokio Convention, which targets attacks against aircrafts. There is also
the Vienna Convention of protection for protection of Nuclear Weapons. There's one
against the hijacking of ships (crusaders). There's one for oil platforms. There's one for
airports, as opposed to aircrafts. There's one for plastic explosives. There's one for terrorist
bombings, which is probably the broadest.
The definition of terrorism is a big issue outside of armed conflict, since in the context of
armed conflict IHL applies, according to Protocol I art.1(4).The Special Tribunal for
Lebanon gives a definition of terrorism. It refers to international customary law (p. 149):
the key elements of terrorism are (1) the perpetration of a criminal act; (2) the intent to
spead fear among the population such that it would make the government take action-- "in
order to coerce a national or international authority to take some action or to refrain from
taking some action" (ex: release prisonners, etc); (3) has an international element to it (ex:
the training camps are in country X, a cell is plotting in country Y to attack country Z =
you need internaitional cooperation to deal with these crimes).
The mens rea is the intention to spead fear in order to coerce a national or international
authority to take some action or to refrain from taking some action. It is possible that you
can have an intense act that only is made out of sadistic pleasure and it would therefore not
qualify as terrorism. 9-11 would qualify as terrorism because even if the main objective
simply was to harm, there were also other motives, probably such as changing US policy
in the Middle East.
Acts of terror are prohibited in war. Art. 51(2) Additional protocol: acts the primary
objective of which is to spread terror among the civilian population are prohibited.
Art 51. - Protection of the civilian population
2. The civilian population as such, as well as individual civilians, shall not be the object of
attack. Acts or threats of violence the primary purpose of which is to spread terror among
the civilian population are prohibited.
Protocol II art? Gives a definition of terrorists in the context of war?
If you're not recognized a combatant by IHL, if you're harming combatants, then it's
terrorism or a war crime. That's the case of Omar Kadhr. Had he been an Iraki soldier, his
killing of an American soldier would have been legal.
If they are criminals, not combatants, does that make them legitimate military targets? Or
do you need the police to come and arrest them? You do not kill people in a police operation
at first-- the first thing you want to do is say "put your hands up", and then only use lethal
force if they refuse.
Terrorists are legitimate military targets but don't have the right to attack legitimate
combatants, I think. We're not dealing with war between states, not even with guerilla that
have a uniform and a commander, now al quaeda terrorists can be your next door neighbor,
who grew up in Sainte Foy and is an engineer. That clearly was not envisaged by IHL.
We need a new treaty for this. It isn't a liberation movement. Liberation movements don't
attack civilians. Terrorists specialize in that.
TORTURE
It isn't a crime as such, but it's an element of international crimes. Article 1 of the 1948
Torture Convention: (1) severa pain, whether physical or mental; (2) intentionally inflicted;
(3) on a person for such purposes of obtaining information or a confession or punishing
him for an act or intimidating or discrimination; (4) with the assent of a public official.
This would not include your neighbor locking up his child in the basement. That's
viscious but it does not qualify as torture under the treaty.
The prof talks about torture carried out by the US to prevent terrorism. Here when you're
fighting terrorism you're really trying to survive. You can torture one person and obtain
information that will save hundreds of life by avoiding an attack. YO TERRORISM IS
SUPER INTERESTING-- CONSIDER THAT FOR PHD. IT'S PROBABLY IN
DEMAND, AND THE BODY OF LAWS ISN'T WORKING.
That would be encompassed by the defense of art. 31(1)(d)(2) RS.
READING: TORTURE
Torture is normally adjudicated as an underlying aspect of a larger core crime such as a
war crime or crime against humanity. Torture in principle falls under national criminal
jurisdiction. The definition of torture as a crime per se is laid down in Article 1(1) of the
UN Torture Convention:
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing him for an act he or a
third person has committed or is suspected of having committed, or intimidating or coercing him or
a third person, or for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity. It does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which
does or may contain provisions of wider application.
Specific intent: to obtain information, a confession, etc.
Clearly, the mens rea is that of criminal intent, for the wording requires that the severe pain
be inflicted "intentionally". Other subjective criteria (recklessness, culpable negligence)
are not sufficient. The intent is specific, as torture must be done to obtain information, a
confession, to punish, intimidate, coerce or discriminate.
With the consent or acquiescence of a public official
Moreover, this provision requires that the severe pain be instigated with the consent or
acquiescence of a public official or of another person acting in an official capacity. The
instrumental purpose requirement distinguishes the phenomenon of torture from isolated
sadism, which is more properly the concern of domestic law.
By now a rule of customary international law has evolved in the international community
i) prohibiting individuals from perpetrating torture, regardless of whether it is committed
on a large scale; and ii) authorizing all states to prosecute and punish the alleged author of
such acts, irrespective of where the acts were perpetrated and the nationality of the
perpetrator or the victim.
Torture in war crimes and crimes against humanity (p.134-135)
The UN definition of torture essentially appplies to torture in war crimes and crimes against
humanity. The exception is that it does not require the involvement of a state official
(Kunarac (ICTY) and Elements of Crimes (ICC)-- and for Crimes against humanity
Kvocka (ICTY) and Article 7(1)(f) ICC Elements of Crimes). For crimes against humanity,
there is no obligation to prove the instrumental purpose (specific intent) (Article 7(1)(f)
ICC Elements of Crimes).
TERRORISM
The Freedom fighters' problem
See p.146-148 for three interpretations of terrorism with regard to liberation movements.
Elements pointing to the existence of a generally agreed definition of terrorism in time
of peace
Many states have asserted that as long as no agreement is reached on the freedom fighter's
contentious issue, no consent could evolve on the very notion of terrorism either. The
author thinks that there has, on the contrary, formed a definition of terrorism in time of
peace. In 2011, the AC of the STL has confirmed this view in “Interlocutory Decision on
the Applicable Law”:
“This customary rule requires the following three key elements: (i) the perpetration of a criminal act
(such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act; (ii) the
intent to spread fear among the population (which would generally entail the creation of public
danger) or directly or indirectly coerce a national or international authority to take some action, or
to refrain from taking it; (iii) when the act involves a transnational element.”
The ingredients of terrorism as an international crime in time of peace
1. The objective element
Illegal acts
International terrorist acts consist of conduct that is already criminalized under any national
dosy of criminal law: murder, mass killing, serious bodily harm, kidnapping, bombing,
hijacking and so on.
Transnational acts
Furthermore, the conduct must be transnational in nature; that is, not limited to the territory
of one state with no foreign elements or links whatsoever, in which case it would
exclusively fall under the domestic criminal system of that state (ex: the training camps are
in country X, a cell is plotting in country Y to attack country Z = you need international
cooperation to deal with these crimes).
Private a public victims
As for the victims of criminal conduct, they may embrace both private individuals or the
civilian population at large and also state officials, including members of the state
enforcement agencies.
2. The subjective element
A number of international instruments and national laws provide that terrorists pursue the
objective of either spreading terror among the population or compelling a government or
an international organization to perform or abstain from performing an act. Other
instruments also envisage a third possible objective: to destabilize or destroy the structure
of a country. These goals differentiate terrorism from criminal acts similarly designed to
spread fear among the civilian population but pursuing merely private purposes such as
personal gain, revenge, and so on.
There must be political, ideological or religious motivations to the acts. The criminals must
subjectively identify to a group or organization intent on performing similar acts. For
instance, a person doing a mass shooting in a cinema for mere sadism is not terrorism.
However, a person doing a mass shooting in a cinema in the name of a religion banning
this movie transforms these acts into terrorism.
In short, there must be the mens rea proper to the specific offence (killing, for instance)
and the specific intent that these acts be done in the name of a cause.
Specific sub-categories of terrorism as an international crime (p.152-153)
There are many different treaties (seven-- they are in the footnotes in p.152) that regulate
precise aspects of terrorism. One of them is the Tokio Convention, which targets attacks
against aircrafts. There is also the Vienna Convention of protection for protection of
Nuclear Weapons. There's one against the hijacking of ships (crusaders). There's one for
oil platforms. There's one for airports, as opposed to aircrafts. There's one for plastic
explosives. There's one for terrorist bombings, which is probably the broadest.
Terrorism in armed conflict: a sub-category of war crimes
The prohibition of resort to terrorism in armed conflict and the criminalization of its
violation (p.154)
The Fourth Geneva Convention of 1949 prohibits “all measures of terrorism against
civilians”. Although the provision was primarily calculated to forestall terrorism by
Occupying Powers or, more generally, by belligerents, terrorist acts are also prohibited if
perpetrated by civilians or organized groups in occupied territories or in the territory of a
party to the conflict. See p. 154 for other provisions from other protocols that repeat the
same obligation.
...See p.155 et s.
Terrorism as a crime against humanity
See p.157.
COURS 16: CRIME OF AGRESSION
WARNING: Again, my in-class notes are not very good and I have not summarized Noah
Wiesbord's (long) paper on the issue. It really is what you should focus on if you want to
thoroughly understand this infraction. Cassesse's book is too superficial on this issue in my
opinion
Agression is a leadership crime. Only when you're in position to direct political or military
powers of a state can you be liable for aggression. The subordinate cannot commit
aggression.
Substantive crime
Not every use of force is an aggression. It's a subset of UN Charter violations (by their
character, gravity and scale) that amount to aggression. For instance, a few shots over the
border would not suffice.
It's got to be a leader that's accountable for the crime of aggression. There's a definition of
"leader" in the wording of the crime: "has effective control or directs military or political
action of the state". A political or military leader that controls or directs the state does not
necessarily have to be within the state; for instance, a religious leader could have effective
control over the state. So that's a way to see it.
The other thing you need is an "armed attack". A threat of use of force, in this sense, would
amount to an armed attack. It has to be a threat of military force. It cannot be economic
aggression, like cutting off supplies.
Jurisdictional framework
The Russians, during the negociations, wanted the ICC to require the Security Council's
permission to prosecute for the crime of aggression.
Now, if the SC says yes (yes, there has been a crime of aggression), the ICC can prosecute,
if the SC says there has not been an act of aggression, the ICC cannot prosecute, if the SC
does not act, the ICC can act six months after.
Three modes of referral?
That's all explained in his paper.
...missed a bit of lecture
READING: CRIME OF AGRESSION
Not until the 2010 ICC Review Conference in Kampala, Uganda, was a consensus
definition reached for the crime of aggression. Jurisdiction over the crime will not vest
unless and until at least thirty state parties have ratified or accepted the amendments and
two-thirds of the state parties agree to activate jurisdiction after 1 January 2007. Ultimately,
the amendments did not give the UN Security Council a monopoly on referrals. Because
of controversy over the matter, the vesting of jurisdiction was delayed pending state party
vote and ratifications.
Article 8 bis
1. 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.
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:
(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;
(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;
(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.
Comments: article 8 bis (2)(b) seems to be outlawing war (a war which amounts to a
manifest violation of the Charter of the UN), since it outlaws the "use of weapons" by a
state against another state.
Only those in a position of leadership sufficient to exercise effective control over or to
direct the political or military action of the state can be held responsible for the crime of
aggression. The leader will be held liable under Article 25(3) of the ICC Statute, under JCE
or ordering, soliciting, inducing, assisting or providing means for the commission of the
crime.
Jurisdiction
Now, if the SC says yes (yes, there has been a crime of aggression), the ICC can prosecute,
if the SC says there has not been an act of aggression, the ICC cannot prosecute, if the SC
does not act, the ICC can act six months after.
Security Council referral
Under a Security Council referral, the ICC may even intervene in states that are non-state
parties.
State referral
Same as usual. See p.9 of suggested reading.
OTP's proprio motu powers
Even if the ICC Prosecutor concludes after a preliminary analysis that there is a reasonable
basis to proceed with an aggression investigation, he or she must complete another step
before moving forward: the Prosecutor must notify the UN Secretary-General of the
situation and provide him or her with documentation that aggression has occurred. The
Security Council then has six months to deliberate and make a determination before the
prosecutor can proceed. If the Security Council has not made a determination or referral
after those six months have passed, the Prosecutor will be allowed to move forward and
request a PTC authorization to open an investigation.
Security Council's power to halt the case for 12 months
Article 16 mentions that the Security Council has the power to halt the ICC's work for 12
months. In order to take this decision, the five state members of the Security Council have
to agree on this, which means that a single state can veto the contiunation of the OTP's
work.
Article 16
Aucune enquête ni aucune poursuite ne peuvent être engagées ni menées en vertu du présent
Statut pendant les douze mois qui suivent la date à laquelle le Conseil de sécurité a fait une demande
en ce sens à la Cour dans une résolution adoptée en vertu du Chapitre VII de la Charte des Nations
Unies ; la demande peut être renouvelée par le Conseil dans les mêmes conditions.
Entry into force
First condition
Thirty state parties must ratify or accept the amendment.
Second condition
Two-thirds of the Assembly of State Parties will have to decide that the ICC should
proceed.
Third condition
The court cannot have jurisdiction over this crime before the first of January 2017,
according to Articles 15 "bis" and 15 "ter", paragraphs 3.
ELEMENTS OF THE CRIME
Objective elements
Article 8 bis of the Rome Statute enshrines the crime of agression and reads as follows:
"The planning, perpetration, 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 agression which, by its
character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations"
Section 2 defines an "act of aggression" as "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. The requirement of "manifest"
violations of the UN Charter excludes borderline or grey-area cases in an area of law with
a lot of blurry regions and focuses on conduct that warrants criminal condemnation. This
definition essentially codifies rules of customary international law (p.140 top, for the
customary definition).
Exclusion of single attacks
It follows that single attacks that are limited in scope and in time, though very serious in
nature, do not reach the necessary threshold to be considered as acts of agression. They
may constitute, however, blatant breaches of the use of force by the attacking state and
consequently give rise to its international responsibility.
Exclusion of non-state actors by the ICC
While there are sound arguments for extending criminal responsibility for aggression to
instances of massive use of armed force by non-stante actors, the ICC Kampala Review
Conference took a different approach: the definition of the crime of aggression finally
adopted restricts criminal liability to persons "in a position effectively to exercise control
over or to direct the political or military action of a state" because of questions over whether
current customary international law supported an extension of the crime to non-state or
minor official actors. Aggression thus retains its connotation as a leadership crime.
The result of many high-ranking individuals' efforts
Be that as it may, it is clear from the intrinsic features of aggression that such crime: i) is
never perpetrated by single individuals acting separately; instead, it always results from
some sort of collective action of a plurality of persons; and ii) is certainly an offence
attributable to political and military leaders and other senior state officials (or leading
organs of a non-state entity); that is, those who mastermind, plan, or organize the crime. It
may not involve the personal criminal liability of low-lever perpetrators. For instance, it
would seem difficult to charge with aggression the pilots carrying out air raids in foreign
territory in execution of an aggressive plan because they are not in a position to effectively
exercise control over, or direct, the political or military action.
Subjective elements
Criminal intent or knowledge
While the ICC Kampala Review Conference definition is blurry regarding mens rea,
history instructs that the crime also requires criminal intent. It must be shown that the
perpetrator intended to participate in planning or waging aggression, was aware of the
scope, significance, and consequences of the action taken, and substantially contributed to
"shaping" or "influencing" the planning or waging aggression. A leader or high-ranking
military officer or senior state official or leading private (for instance, an industrialist) may
also bear responsibility for the knowledge of other leaders' plans and willingly pursues the
criminal purpose of furthering the aggressive aims. International case law on this matter is
clear and consistent (Göring and others, IMT).
Special intent for individuals
In addition, aggression requires in a special intent; that is, the will to achieve territorial
gains, or to obtain economic advantages, or deliberately to interfere with the internal affairs
of the victim state (for instance, by toppling its government, bringing about a change in its
political regime or ideological leanings or in its international political alignment or to
appropriate assets belonging to the victim state). The standards to evaluate this special
intent are found in the 1928 Kellogg-Briand Pact banning war as "an instrument of national
policy".
Personal vs state liability for aggression
The notion of aggression is split into two separate concepts, one valid for the internationally
wrongful acts of states and the other for individuals' criminal offenses. The wrongful act
of states does not require the proof of the "special intent".
THE NEED TO DISENTANGLE CRIMINAL LIABILITY OF INDIVIDUALS FROM
STATE RESPONSIBILITY: THE TWO DIFFERENT LEGAL REGIMES
Agression vs use of force
"Unlawful use of force as an international wrongful act" and the "crime of aggression" are
two similar, yet distinct, rules of international customary law. The preconditions of
responsibility and the legal consequences are different.
Agression
Agression as an international wrongful act of state is broader than aggression. It embraces
any serious large-scale breach of Article 2(4) of the UN Charter:
"All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations."
As such, aggression is subject to the legal regime governing the so-called aggravated
responsibility of states.
Use of force
In contrast, the following are unlawful uses of force that do not amount to state aggression:
i) breaching Article 2(4) of the UN Charter by acts that are not sporadic or not large scale;
ii) engaging in an armed conflict in violation of international treaties proscribing resort to
armed violence; iii) using force under the authority of the resolution of an international
body or on humanitarian grounds but in contravention to the UN Charter; or iv) resorting
to self-defence in disregard of the conditions laid down in Article 51 of the UN Charter.
In ICL
In ICL, only serious and large-scale instances of use of force may be regarded as
amounting to an international crime involving the criminal liability of individuals that
organized it. Second, ICL rules also penalize acts by non-state actors such as terrorist armed
groups, organized insurgents, liberation movements, and the like (with the exception of the
ICC I think). Third, an additional subjective element is required by international criminal
rules for aggression, which instead is not envisaged for aggression as an international state
delinquency.
The Security Council's political findings
Under the UN Charter the UN Security Council is empowered to determine whether a state
or non-state entity has engaged in aggression, and also to adopt all the necessary measures
to counter such aggression. It can also adopt or authorize sanctions against either the
delinquent state or non-state entity, or against individuals participating in the aggression.
However, being a political body, its determinations may not amount to a judicial finding of
the criminal liability of individuals for the crime of aggression. Courts are free to make any
legal finding on this matter regardless of what is decided by the Security Council.
WHETHER CONSPIRACY TO WAGE AGGRESSION IS CRIMINALIZED
It would seem that conspiracy to wage a war of aggression may be regarded as a separate
crime in ICL. p.145. Not important.
COURS 17: PERPETRATION: IN PARTICULAR JOINT AND INDIRECT
PERPETRATION
Principal: physical perpetrator of the offence; has the mens rea to commit the crime
First degree: doing the actual bank robery
Second degree: contributes to the crime, but is not physically robbing the bank
Accessory before the fact: giving the gun before the crime without caring what it will be
used for and therefore not sharing the principal's mens rea
Accessory after the fact: ...
This topic is interesting because we want to delineate where is the line "of pariticipation"
between international core crime and domestic crimes. In a camp, there is the master mind,
like Eichmann, and there are dominial employees like the cook and the nurse. Are they all
responsible for international core crimes?
What is the basic distinction between a principle and an accessory in mens rea? If you're
an accessory, you might be knowledgeable of what might happen, but you don't have any
intent to carry out the crime. The principal, however, has the intention of carrying out the
crime. For example, if you're selling the weapon for the bank robbery but you don't care
that the crime actually happens, then that's accessory. If you're giving the gun because you
want the bank to be robbed, that's an other thing. The mens rea has to be the same as the
main perpetrator.
JCE is useful to hold a wide bunch of people responsible for the same crime. You have to
make a "significant contribution". "Substantial" contribution is more important than
"significant" contribution.
As a perpetrator, your physical contribution needs to be significant. As an accessory, you
need a substantial physical contribution.
Principal in the second degree That's JCE in ICL. The mens rea is that of "common
intention". Here the physical contribution needs to be "significant".
Accessory liability. That's known as aiding and abetting in ICL. In this case, the mens rea
is "knowledge". Knowledge, but not intention. The physical contribution needs to be
"substantial", which is higher than that of JCE.
So, in one case, there's a higher mens rea and a lower actus reus and in the other case
there is a lower mens rea and a higher actus reus. That makes sense from a policy point of
view. You want the plotters to be punshied more easily.
Who is most liable? The bureaucrat (Eichmann) who organized the camp but never hurt
anybody and did not know what was going on in concentration camps or the evil camp
guard (Ivan the terrible) who tortured inmates every day?
In Tadic, there are three types of JCE. JCE I is common intention. It's the classical case of
two or more people sharing a criminal purpose and each making a significant contribution.
JCE II is concentration camps. One could say that the element of knowledge can almost be
presumed, because all employees obviously know what is going on in a camp. JCE III is
knowledge of forseeable consequences. This involves a situation where you plan to commit
crime X but it is forseeable that in the commission of crime X, crime Y might also apply.
For example, crime X could be the use of artillery to terrorise the population and it is
forseeable that once you take over that territory, it is forseeable that your soldiers will take
part in burning and looting of property on the conquered territory. It is subjective
knowledge of what could have happened, as opposed to objective knowledge (what the
reasonable person should have known). What this does is to hold someone liable for a very
serious crime without even really having mens rea. This goes against the principle of
criminal law that requires a higher proof of mens rea, the more serious the infraction is.
Usually more serious infractions also entail harsher sentencing. In this sence, JCE III does
not apply to genocide, because it requires special intent. It cannot apply to crimes requiring
special intent. They require that you have the special intent while JCE III requires that it
"might be a possible outcome"-- that's not enough, you have to directly want it to happen.
READING: PERPETRATION: IN PARTICULAR JOINT AND INDIRECT
PERPETRATION
A "principal" is the one that has physically committed the offence.
Just as in any national legal system, criminal responsibility in ICL arises not only when a
person physically commits a crime but also when he or she is involved in criminal conduct
in other ways. There is namely commission by omission and indirect perpetration. In ICL
criminality is always a matter of group criminality. As stated in Tadic:
"Although only some members of the group may physically perpetrate the criminal act (murder,
extermination, wanton destruction of cities, towns or villages, etc.), the participation and
contribution of the other members of the group is often vital in facilitating the commission of the
offence in question. It follows that the moral gravity of such participation is often no less-- or indeed
no different-- from that of those actually carrying out the acts in question".
While international criminal tribunals, in their jurisprudence, usually largely discuss the
mode of liability (accessory before the fact, first degree principal, second degree principal
and accessory after the fact (see p.161 in fine)), the statutes do not impose any strict legal
consequence to this determination, at least as far as penalties are concerned. However, the
degree or mode of participation may affect the sentence. The general trend is that
perpetration is at the high end of the sentencing range and forms of accomplice liability
(such as aiding and abetting) are at the lower end.
Under joint criminal enterprise and co-perpetration, each participant will be treated as a
"principal" provided that he played a sufficiently important role in the commission of the
crime.
JOINT CRIMINAL ENTERPRISE
Joint criminal enterprise (JCE) addresses the criminal liability of participants in a common
criminal plan. The rationale behind this mode of liability is clear: if those who take part in
a common criminal act are aware of its purpose and share its requisite criminal intent, they
must share criminal liability, whatever the role and position they may have played in the
commission of the crime. JCE requires the prosecution to prove i) the involvement of a
plurality of persons in the commission of the crime; ii) the existence of a common plan,
design or purpose which amounts to or involves the commission of a crime; and iii) the
participation of the accused in the JCE in the form of a significant contribution to the crime.
Three forms of JCE
There are three forms of JCE: JCE 1, where, as held in Tadic, all co-defendants, acting
pursuant to a common design, possess the same criminal intention; JCE 2 is where the
crimes are committed within the framework of a concentration or detention camp; JCE 3
embraces cases involving a common design to pursue one course of conduct where one of
the perpetrators commits an act which, while outside of the common design, was
nevertheless a natural and forseeable consequence of the effecting of a that common
purpose.
JCE vs conspiracy and membership of a criminal organization
The element of "significant contribution" distinguishes JCE from the related concepts of
conspiracy and membership in a criminal organization (Milutinovic and others). Unlike
JCE, conspiracy requires only an agreement to commit a crime and is punishable regardless
of whether the crime is eventually completed. JCE, on the other hand, is a mode of liability
in a completed crime, requiring-- in addition to the common criminal purpose-- the
accused's significant contribution to its commission. For JCE, mere membership in an
institutional framework or organization, without more, is insufficient for conviction.
JCE vs aiding and abetting
JCE, a principal perpetrator mode of responsibility, is also distinct from aiding and
abetting. The material element, or actus reus, of aiding and abetting requires a "substantial"
contribution to another's crime. This is more than the "significant" contribution required
for JCE. The mental element, however, is higher for JCE. For aiding and abetting, the
perpetrator merely needs to know that the contribution assists in the commisison of the
crime. In contrast, to be a principal perpetrator through JCE, the accused must share the
common criminal purpose. This difference in mens rea explains why aiding and abetting
"gerenally involves a lesser degree of individual criminal responsibility than coperpetration in a joint criminal enterprise" (Kvocka).
JCE I: LIABILITY FOR A COMMON PURPOSE
It imposes criminal responsibility on all participants in the JCE for crimes committed
pursuant to the common criminal prupose, even though only some of the participants
physically perpetrate the crime. What is important for JCE I is that all participants share
the same intent to commit the crime. The common criminal purpose does not have to be
expressly criminal, but must amout to or involce the commission of crimes. For example,
the shared goal to take control of territory may not be criminal in itslef, yet it may form the
shared intent for a JCE if it involves the ethnic cleansing of the territory by deporting all
people of other ethnicities. The shared intent does not need to be manifested in any formal
agreement. It can arise extemporaneously (impromptu). However, the intent must be
shared in the sense that it is common to all the participants; it is not sufficient for the
participants to each have formed an independent, yet identical, intent. The requirement of
shared intent limits the scope of the crimes for which each individual can be criminally
responsible.
"Significant contribution"
All the participants in a JCE I are treated as criminally responsible for the crime if they
made a "significant" (though not necessarily substantial) contribution to the commission
of the crime (Brdanin). The contribution is not limited to fulfilling elements of the crime;
it can also include various means of supporting the other members of the JCE to commit
the crime. For example, in a JCE to murder, all the participants can be convicted even if
one of them actually shoots the gun that kills the victim. The other participants who share
the common criminal purpose-- for example, the participant who brings the victim to the
scene of the crime or the participant who drives the getaway car- are also criminally
responsible for the murder. Moreover, the contribution need not be criminal in itslef. For
example, public statements protected by freedom of speech were considered to be part of
Krajisnik's contribution to ethnically cleasing Bosnian-Serb territory. An accused can also
make a significant contribution to the crimes of the JCE through omission (ie omitting to
prevent troops from committing crimes).
JCE II: LIABILITY FOR PARTICIPATION IN A COMMON CRIMINAL PLAN
WITHIN AN INSTITUTIONAL FRAMEWORK
In a concentration camp, or similar criminal system, all participants bear responsibility
for the crimes committed within the system. Unlike the first category, JCE II does not
require proof of an express or implied agreement to commit a crime. Instead, proof of the
accused's particiaption in the system of ill-treatment serves the same legal fucntion as an
agreement.
The mental element required for JCE II is knowledge of the criminal system and the intent
to further its criminal purpose. Each participant in the criminal institutional framework who
is aware of the crimes in which the institution or its members engage must implicitly or
expressly share the criminal intent to commit such crimes. It cannot be otherwise, because
any person discharging a task of some consequence in the institution could refrain from
participating in its criminal activity by leaving. Knowledge of the criminal nature of the
system can be inferred, for example, from the accused's position within the camp, time
spent in the camp, contact with detainees, and the opportunity of the accused to observe
the ill-treatment or its effects (Kvocka). In Tadic, the ICTY affirmed that:
"The required actus reus was the active participation in the enforcement of a system
of repression. The mens rea element comprised i) knowledge of the nature of the
system; ii) the intent to further the common concerted design to ill-treat inmates. It
is important to to note that, in these cases, the requisite intent could also be inferred
from the position of authority held by the camp personnel."
"Significant contribution"
As with JCE I, criminal liability arises if the participant makes a "significant contribution"
to the joint criminal enterprise. In addition to the camp's leaders and physical perpetrators,
JCE II responsibility extends, for example, to those who discharge administrative duties
indispensable to the achievement of the camp's main goals such as registering the incoming
inmates, recording their deaths, or providing medical treatment. The author thinks that
those doing the cleaning or the laundry however should be excluded, because their
contribution is not indispensable for the camp.
Here's an example from a judgement concerning seven German soldiers who killed over
400 Polish during WWII by sending them to the hospital for a lethal injection (Alfon Klein
and others):
"Klein, the administrative head, could not have done all of this by himself-- from the hauling of
individuals to the hospital to the falsification of their bith certificate. Every accused's contribution
was necessary. When you do business on a wholesale production basis as they did at the Hadamar
Institution, that murder factory, it means that you have to have several people doing different things
of that illegal operation in order to produce the results, and you cannot draw a distinction between
the man who may have initially conceived the idea and those who participated".
HOW IS THIS NOT JCE I?
In later cases, the ICTY AC has stressed that although an accused's contribution need not
be "necessary or substantial", it must at least be "significant".
JCE III: CRIMINAL LIABILITY BASED ON FORESIGHT AND VOLUNTARY
ASSUMPTION OF RISK
This arises when one or more members of a JCE commits an additional crime that was not
part of the common criminal design. For instance, in a JCE I to forcibly expel civilians
from an occupied territory, one member of the JCE kills a civilian during the expulsion. If
the other JCE members could forsee the possibility of this crime, then they can also be held
accountable for the murder. The possibility standard is not satisfied by implausibly remote
scenarios. The risk must be sufficiently substantial to allow the accused to forsee the crime
(Karadzic).
An example could be that of a gang planning on robing a bank with fake weapons. One of
the gang members secretly brings a real weapon to defend himself. Another gang member
sees that his weapon is real but does not act. During the robbery, the armed gang member
kills a bank employee trying to assault him. The gang member who saw that he was
carrying a real gun could be held liable for robbery and murder because the murder of the
employee was forseeable to him. The rest would be excluded from liability with respect to
that murder.
JCE III only arises if the participant who did not have the intent to commit the "incidental
offence" was nevertheless in a position to foresee its commission and willingly took that
risk by continuing to participate in the criminal enterprise.
Some commentators have argued that this third category of JCE breaches the principle of
culpability (nullum crimen sine culpa) and amounts to guilt by association. Indeed, crimes
of important gravity, in domestic criminal law, always require that the subjective intent be
proven. It is not enough to prove that the person "should have known" (reasonable person
test aka objective standard) that the outcome would happen if you're going to convict him
of something like murder and send him 20 years in prison. You have to make sure that the
person knew what was going on. This is even more true in ICL, where international core
crimes are of extreme gravity. ICL, again, does not respect this with regard to JCE III. And
neither does domestic law with similar modes of participation. The rationale is that by
punishing a "secondary offender" the law intends to convey the message that he should
have opposed or impeded the crime of the "primary offender". Usually, sentencing will be
more lenient with secondary offenders. Experience has shown that joint criminal enterprise
only too readily escalates into the comission of greater offences.
With JCE III, one must keep in mind that what is at stake here is not the responsibility
arising when members of a group (for instance, a military unit) engage in lawful action (for
example, overpowering an enemy fortification by military force) and in the course of
combat one of the combatants deliberately targets a civilian-- a crime for which he alone
must bear criminal responsibility.
It is unnecessary to show that the accused was actually aware that the opportunistic crimes
were being committed; rather "it was sufficient that their occurrence was forseeable to him
and that those other crimes did in fact occur".
DEFINING THE LIMITS OF JCE RESPONSIBILITY
The evolving relationship between JCE I/II and JCE III
A JCE is not necessarily static and may evolve over time. The intention of the JCE members
may expand to include additional crimes, which at the beginning of the enterprise were
only forseeable. If, over time, the JCE members accept the forseeable crimes and embrace
them as part of their interntional conduct, then these crimes move from JCE III to JCE I.
JCE III and specific intent crimes
Resorting to JCE III would be instrinsically ill-founded when the crime committed requires
"special" or specific intent. It would thus be inappropriate to apply the extended form of
JCE to charges, for example, of genocide, persecution, or aggression. In these cases the
"secondary offender" does not share-- by definition-- that "special" intent (otherwise
liability would fall under the first or second category of JCE). To hold otherwise risks
watering down the gravity and stigma of the crime (of genocide, for example). In such
circumstances, the secondary offender should be charged with a form of a accomplice
liability such as aiding and abetting.
However, the ICTY affirmed that JCE III can apply to any crime of specific intent
(Brdanin).
Does the JCE need to include the physical perpetrator?
The members are the ones that share the intention and the others are the ones that don't.
You're not a member if you're looting for personal gain but you don't share the greater
scheme. It is unclear if a mastermind using other people to commit the crime can be held
responsible under JCE. It seems that co-perpetration would be a better mode of liability.
Be it as it may, the ICTY Appeals Chamber, in ''Bradnin'', reversed the Trial Chamber's
finding and affirmed that, in order to be held liable for other persons' crimes, the latter did
not necessarily need to share the common plan. I don't see how that makes sense. p.173 in
fine.
JCE AT THE ICC
JCE liability is implicitly permitted by Article 25(3)(a) of the ICC Statute, which
generically states that criminal responsibility for any of the crimes covered by the Statute
is incurred by anybody "committing a crime" "jointly or with another person".
Article 25
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.
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;
(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;
...
CO-PERPETRATION BASED ON JOINT CONTROL
In contrast to JCE liability, co-perpetration based on joint control over the crime focuses
on the criminal acts rather than the mental element. This mode of criminal liability, drawn
primarily from German legal theory, has been applied at the ICC, when interpreting the
reference in Article 25(3)(a) of the ICC Statute Article to committing "jointly with
another". In adopting this model of co-perpetration, the Lubanga PTC expalined that
"principals to a crime are not limited to those who physically carry out the objective
element of the offence, but also include those who, in spite of being removed from the
scene of the crime, control or mastermind its commission because they decide whether and
how the offence will be committed". Thus, co-perpetration based on joint control is thus
principal, rather than accessory, liability for the crime.
The PTC opted for a mixed subjective (shared intent) and objective (physical perpetration)
approach requiring objective joint control plus awareness of the factual circumstances
enabling the accused to jointly control the crime. According to this model, co-perpetrators
share control over the commission of the offence. Joint control does not imply exclusive
control or even overall control over the offence. Instead, each co-perpetrator depends on
the others to complete the crime. A participant is in joint control when he or she has been
assigned essential tasks and thus has the ability to frustrate the commission of the crime by
not performing the assigned functions. Co-perpetration is not limited to those who
participate directly in the execution of the crime; it may also extend to those who participate
in its preparatory stages.
According to Lubanga PTC, co-perpetration requires the following material elements: i)
the involvement of at least two individuals in the commission of the crime; ii) the existence
of an agreement or common plan between the co-perpetratords involving criminality, in
that its impleentation embodied at least a risk that, if events follow the ordinary course, the
crime will be committed; iii) an "essential" contribution by the co-perpetrator, including
by controlling or masterminding its commission, which is not limited to physically
perpetrating elements of the crime.
The mens rea is the following: i) the co-perpetrators' mutual awareness and acceptance of
the risk that implementing the common plan may result in the crime in the ordinary course
of events; and ii) the co-perpetrator's awareness that he provided an essential contribution
to the implementation of the common plan.
INDIRECT PERPETRATION
Indirect perpetration occurs when the indirect perpetrator uses another person to physically
commit the crime. This form of commission is specifically enumerated in Article 25(3)(a)
of the ICC Statute. In a typical domestic case, the physical perpetrator is an innocent agent
who is not fully criminally responsible for his actions because he is acting under a mistaken
belief, duress, or incapacity. The concept extends, however, to indirect perpetration where
the physical perpetrator is criminally responsible.
Liability based on control over a hierarchical organization
In setting out the requirements of indirect perpetration based on control over an
organization, the PTC explained that the organization must be based on a hierarchical
structure comprising sufficient fungible subordinates ensuring automatic compliance with
the leader's will (Katanga). In this way, the perpetrator-behind-the perpetrator is able to
achieve his criminal aims by using subordinates as a "mere gear in a giant machine".
The combination of co-perpetration and indirect perpetration
In Katanga PTC, the court noted that the combination of co-perpetraton based on joint
control and indirect perpetration through other persons results in a mode of liability that is
especially suited to cases of "senior leaders". When a group of senior leaders works
together to commit criminal acts (co-perpetration), each using the organizations under their
control (indirect perpetration), these crimes can be mutually attributed amongst them
through "indirect co-perpetration".
COURS 18: OMISSION LIABILITY AND SUPERIOR RESPONSIBILITY
Omission could be parental neglect-- like a parent omitting to feed their child.
Components of superior responsibility:
(1) superior-subordinate relationship. This is either "de jure" or "de facto" command
and control. For instance, you may have "de jure" command over soldiers, but these
soldiers are undisciplined drunks who never obey. Than you have a defence that
you did not have "de facto" control. This is controversial because some say that
then if your subordinates are drunks it was all your fault-- you should have expected
that they would commit crimes. But then what if these drunkards were all you had
at your disposition to defend your village?
(2) knowledge: "knew or had reason to know that they had committed or were about to
commit". This is not strict liability. It is not an objective person test. We don't apply
the test of the reasonable person. We could not attribute a crime against humanity
on an objective standard because ICL crimes are too grave. To have "knowledge"
is to know clearly what happened. "Had reason to know" is a bit more complicated.
It's a bit like wilful blindness. This is the deviding line between objective and
subjective standard. It's still a subjective fault requirement. What if the commander
has a report on his desk and did not read it? For wilful blindness, you are "wilfully"
blinding yourself. You have the "intention" not to know. You have knowledge of
something that should warrant more knowledge. For instance, if the report's title
indicated crimes and the commander did not read it. Also, commanders are
presumed to know what their troops are up to. That's your responsibility.
(3) Failure to act: failure to prevent or to punish. Failure to prevent: for example, you
see that your soldiers have had too many beers at the cantine, you hear them say
that they want to go out and pillage the village. It is then your responsibility to issue
an order to prevent them from going. In that case, if he took "necessary and
reasonable measures" such as giving an order, and his soldiers disobeyed and did
the pillage, then the commander is not liable. Failure tu punish is another thing. The
commander has the responsibility to refer the matter to the military police. It is not
the commander's responsibility to carry out the investigation. If the police does not
carry out the investigation after the commander referred them the matter, then the
commander cannot be held responsible.
If you just issue an order and you know it won't be followed, then that's not a "necessary
and reasonable" measure. You'd have to do more. This varries on how disciplined your
army is. If your army is well disciplined, then it's reasonable to expect your orders to be
followed and then the measure to be sufficient. On the opposite, if your army is
undisciplined, you know you will have to do more than giving one single order. What is
"necessary and reasonable" then increases. The level of discipline can be indicated by the
lack of training.
"Necessary and reasonable" is an obligation of means and not result.
When the war usually is legal and you have some sporadic crimes, then the command
responsibility is functional. However, if the war is mostly illegal and there are a lot of
massive ICL crimes, then JCE will be more appropriate. Then you can infer that
commanders wanted this to happen.
ON JOINT CRMINAL ENTERPRISE:
In particular, I find pages 173 and 174 confusing (the section "Does the JCE need to include the
physical perpetrator?"). What is a "JCE member"? Is it only the ones that orchestrated the massacre
without physically engaging in it? In this case, what happens with the physical perpetrator that did
not take part in the planning but that still committed the atrocity while desiring the realization of
the "evil plan"? For instance, I'm told to kill my Tutsi neighbor and I do it not only to obey the order
but also because I agree that Tutsis should be "wiped out"? Would I only be responsible for the
killing or also for the greater scheme, just like the one who gave me orders? From the reading, it
seems like the physical perpetrator would only be responsible for his own crime. This is confusing
because JCE II implies that most employees of a POW are liable for all atrocities committed in the
camp.
My second question is the difference between JCE, co-perpetration based on joint control and
indirect perpetration. Are these modes of responsiblity mutually exclusive? If not, why not simply
use indirect perpetration for all cases of JCE where leaders gave orders to subordinates? I also fail
to clearly see the difference between joint control and JCE. For joint control, the co-perpetrator's
contribution was more essential than for JCE, but is that really the only difference? I know the
result is different: JCE will convict some as secondary perpetrators while co-perpetration convicts
all as primary perpetrators.
The members are the ones that share the intention and the others are the ones that don't.
You're not a member if you're looting for personal gain but you don't share the greater
scheme.
READING: OMISSION LIABILITY AND SUPERIOR RESPONSIBILITY (command
responsibility)
International criminal liability may arise not only as a result of a positive act but also from
an omission; that is, the failure to take required action. Omission is only criminalized when
the law imposes a clear obligation to act and the person fails to do what is legally required.
CULPABLE OMISSION
Legal anchoring
"Tadic" was the first case to recognize culpable omission. The ICTY based itself on Article
7(1) of its Statute, which does not recognize this officially. At the ICC, it is the Lubanga
case that recognizes this form of responsibility.
Only when there is a legal duty
Criminal responsibility for omission may only be imposed when there is a failure to comply
with a legal duty. In Tadic, the AC specified that the duty needed to be mandated by a rule
of criminal law. The preferable view is that the duty to act must be found in international
law. A duty based solely on domestic law is an insufficient basis for international criminal
responsibility.
The requirement of the "ability to act"
For an omission to constitute the physical element of a crime, the accused must not only
be under a duty to act, he must also possess the ability to act (Mrksic).
The test ("Ntaguera and others")
In order to hold an accused criminally responsible for an omission as a principal
perpetrator, the following elements must be established: (a) the accused must have had a
duty to act mandated by a rule of criminal law; (b) the accused must have had the ability
to act; (c) the accused failed to act intending the criminally sanctioned consequences or
with awareness and consent that the consequences would occur; and (d) the failure to act
resulted in the commission of the crime.
Physical element of other modes of liability
Omissions may constitute the physical element of other modes of liability, such as aiding
and abetting and instigation. Omissions have also been recognized as contributions to a
JCE.
SUPERIOR RESPONSIBILITY (command responsibility)
ICL imposes criminal liability on superiors, both civilian and military, who fail to prevent
or punish the criminal activities of their subordinates. It bears noting that it is not necessary
for the subordinates to have physically perpetrated the crimes themselves; they may have
engaged in criminal conduct under any head of liability; for example perpetration, coperpetration, JCE, aiding and abetting, etc.
Crystallization of the customary rule
The doctrine of command responsibility crystallized into a rule of customary international
law i) imposing on military commanders as well as civilian leaders the obligation to prevent
or repress crimes by their subordinates if they knew or should have known that their troops
were about to commit or were committing or had committed crimes (Araky and others); ii)
criminalizing the culpable failure to fulful this obligation, albeit without clearly outlining
the mental element of such criminal liability.
Together, Articles 86 and 87 of the First Additional Protocol, addressed to the Contracting
Parties and to the Parties to a conflict, codify the principle on responsible command
entioned above and restate the customary criminal law rule:
Art 86 First additional protocol: Failure to act
1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and
take measures necessary to suppress all other breaches, of the Conventions or of this Protocol
which result from a failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate
does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they
knew, or had information which should have enabled them to conclude in the circumstances at the
time, that he was committing or was going to commit such a breach and if they did not take all
feasible measures within their power to prevent or repress the breach.
Art. 86 is the general customary rule, applying to any kind of superior within the state (1) having a
duty to act under international law; (2) the superior must have known what was going on and; (3)
must not have taken measures within his power to act. This rule clearly applies to "grave breaches",
while all other breaches entail a different form of liability.
Art 87. Duty of commanders
1. The High Contracting Parties and the Parties to the conflict shall require military commanders,
with respect to members of the armed forces under their command and other persons under their
control, to prevent and, where necessary, to suppress and to report to competent authorities breaches
of
the
Conventions
and
of
this
Protocol.
2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict
shall require that, commensurate with their level of responsibility, commanders ensure that members
of the armed forces under their command are aware of their obligations under the Conventions and
this
Protocol.
3. The High Contracting Parties and Parties to the conflict shall require any commander who is
aware that subordinates or other persons under his control are going to commit or have committed
a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent
such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary
or penal action against violators thereof.
Art. 87 is the more specific rule, applying more specificaly to military commanders. It applies to
any breach in the convention and protocol (and therefore not exclusively to "grave breaches",
contrarily to article 86). The commander must (1) be aware of his subordinates' crime; (2) and
prevent and punish these crimes.
This provision does not require the commander to have knowledge of crimes or ability to act, which
is already imposed by art 86.
Modern superior responsibility
Art. 7(3) ICTY Statute enunciates this principle and is almost identical to its counterpart in
the ICTR Statute:
Article 7: Individual criminal responsibility
3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a
subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that
the subordinate was about to commit such acts or had done so and the superior failed to take the necessary
and reasonable measures to prevent such acts or to punish the perpetrators thereof.
This mode of responsibility applies in non-international armed conflicts. It does not distinguish
between military and non-military superiors. The ICTY and ICTR have treated the duty to prevent
and the duty to punish as two separate and legally distinct obligations. Failure to punish concerns
past crimes and failure to prevent concerns future crimes. A superior is obliged to both prevent and
punish. If a commander learns of the crimes prior to commission, he cannot avoid responsibility for
failing to prevent merely by imposing punishment after the fact (Semanza).
Art.28 of the ICC Statute enunciates this principle as follows:
Article 28
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
(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:
(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.
This article further specifies that the commander or person may also submit the matter to competent
courts.
Different mens rea for non-military persons
This provision distinguishes between military (art. 28(a)) and non-military (art. 28(b)) persons on
the level of the mens rea; Art. 28(a)(i) requires that the military person know "or should have known"
that the crimes were committed by his subordinates. In contrast, Art. 28(b)(i) requires that the nonmilitary person know "or consciously disregarded information" indicated commission of such
crimes. In other words, military persons have an objective mens rea while non-military persons have
a wilful blindness mens rea.
The causation requirement
The ICC Statute also diverges from the ICTY and ICTR Statutes in that Article 28 requires an
element of causation for the military commander: the subordinates' crimes must have occurred "as
a result of" the superior's failure to exercise control properly over his subordinates. This however
does not require a direct causal link-- the superior's omission must be shown to have "increased the
risk of the commission of the crimes" (Bemba).
Exclusion of knowledge after the crime
The Statute only requires the superior to have knowledge of the crimes before or during their
commission. This language appears to rule out any responsibility for a superior who learns of the
crimes after they were committed.
Duty to repress
The PTC observed in "Bemba" that the "duty to repress" includes both a duty to stop ongoing crimes
from being repeated and a duty to punish forces after the crimes are completed. However, under the
ICC Statute, criminal responsibility only arises when the superior has actual or constructive
knowledge of subordinate crimes prior to or during their commission. This temporal limitation rules
out criminal liability for the superior who learns about subordinate crimes after they have been
perpetrated.
Elements of superior responsibility
In order to hold a superior criminally responsible for crimes committed by a subordinate,
the following elements must be proven: i) the existence of relationship of subordination
between the accused and those who are about to commit or have committed the crimes,
which requires that the superior has effective control over the subordinates; ii) knowledge
or constructive knowledge of the accused of the involvement of the subordinates in a crime;
iii) failure by the accused to prevent the commission of the crimes or to punish the
subordinates; iv) as noted above, the ICC's Statute also requires that the commission of the
crimes resulted from the superior's failure to exercise control.
A. Subordination and effective control
"De jure" vs "de facto" command
The superior-subordinate relationship can either be "de jure" (such as in the case of
officially appointed military commanders) or "de facto" (such as in the case of "persons
effectively acting as a military commander"). In both cases liability under the doctrine of
superior responsibility requires that the superior's control over the subordinates be effective
(Delalic). A superior has "effective control" over a subordinate when he has the material
ability to prevent or punish subordinate criminality. A "de jure" commander without
effective control over his subordinates would therefore not be liable while a commander
without official formal letters that has effective control would be held liable (Blagojevic
and Jokic).
Effective control is more than mere influence or ability to persuade (Delalic). Determining
whether a superior has effective control is "more a matter of evidence than of substantive
law". Effective control cannot be presumed from "de jure" authority. The indicators of
effective control are facts which demonstrate that the accused "had the power to prevent,
punish or initiate measures leading to proceedings against the alleged perpetrators where
appropriate" (Blaskic).
Effective control before the ICC ("Bemba")
For the ICC, the criteria are set out in "Bemba":
(i) The official position of the suspect; (ii) his power to issue or give orders; (iii) the
capacity to ensure compliance with the orders issued (i.e. ensure that they would be
executed); (iv) his position within the military structure and the actual tasks that he carried
out; (v) the capacity to order forces or units under his comand, whether under his immediate
command or at lower levels, to engage in hostilities; (iv) the capacity to resubordinate units
or make changes to command structure; (vii) the power to promote, replace, remove or
discipline any member of the forces; and (viii) the authority to send forces where hostilities
take place and withdraw them at any given moment.
Irregular army or rebel group ("Birma and others")
In "Birma and others" the SCSL affirmed that the traditional criteria of effective control
may not be appropriate or useful in a context involving an irregular army or rebel group.
Civilian leaders (" Nahimana and others")
Civilian leaders do not need to be in military-like structures, but they must possess a similar
degree of effective control over their subordinates (Nahimana and others).
B. Actual or constructive knowledge
The superior must have had actual or constructive knowledge that his subordinates were
going to commit, or were committing (or, except at the ICC, had committed) crimes.
At the ICTY and ICTR, "contructive knowledge" is proven when the superior is shown to
have "had reason to know" of subordinate crimes. The superior who possesses information
providing notice of the risk of subordinate crimes must take steps to determine whether his
subordinares are involved in crimes. According to Delalic and others:
A showing that a superior had some general information in his possession, which would put him on
notice of possible unlawful acts by his subordinates would be sufficient to prove that he "had reason
to konw". This information does not need to provide specific information about unlawful acts
committed or about to be committed. For instance, a military commander who has received
information that some of the soldiers under his command have a violent or unstable character, or
have been drinking prior to being sent on a mission, may be considered as having the required
knowledge.
The assessment of whether the information is "sufficiently alarming to justify further
inquiry" must be grounded in the specific situation of the superior at the time
(Hadzihasanovic). There must not ncesessarily be a "strong" or "clear possibility" and the
commander only needs to be on notice of a risk "sufficient to justify furter inquiry".
Information triggering a duty to investigate might include reports of crimes, the past
criminal behaviour of the subordinates and the superior's reaction to it, the subordinate's
level of training, or the tactical situation. Knowledge of the occurrence of a crime is
insufficient; the superior must also know that his subordinates are involved. However, the
superior need not know the exact identity of the subordinates engaging in criminal conduct;
it is sufficient that he know the "category" of the subordinates.
This standard is similar to the standard applied at the ICC for civilian superiors, which
requires that the accused "consciously disregarded information which clearly indicated that
the subordinates were committing or about to commit" crimes within the jurisdiction of the
court.
In contrast, the ICC Statute employs a lower "should have known" standard to establish
constructive knowledge for military superiors. In "Bemba", the PTC accepted that this
formulation was a type of negligence. This imposes an "active duty on the part of the
superior to take the necessary measures to secure knowledge of the conduct of his troops
and to inquire, regardless of the availability of information at the time on the commission
of the crime".
C. Failure to take necessary and reasonable measures
What is necessary and reasonable depends on the circumstances (Blaskic). Although a
superior cannot be required to do the impossible, he must take all measures within his
material ability. This may require a superior to go beyond his formal powers. "Necessary
and reasonable" is an obligation of means and not result. If your army is undisciplined, you
know you will have to do more than giving one single order. What is "necessary and
reasonable" then increases. The level of discipline can be indicated by the lack of training.
The ICTY and ICTR have treated the duty to prevent and the duty to punish as two separate
and legally distinct obligations. Failure to punish concerns past crimes and failure to
prevent concerns future crimes. A superior is obliged to both prevent and punish. If a
commander learns of the crimes prior to commission, he cannot avoid responsibility for
failing to prevent merely by imposing punishment adter the fact (Semanza).
The ICC PTC came up with a non-exhaustive list of the type of measures required to
discharge the duty to prevent: (i) to ensure that superior's forces are adequately trained in
international humanitarian law; (ii) to secure reports that military actions were carried out
in accordance with international law; (iii) to issue orders aiming at bringing the relevant
practices into accord with the rules of war; (iv) to take disciplinary measures to prevent the
commission of atrocities by the troops under the superior's command.
IS SUPERIOR RESPONSIBILITY A MODE OF LIABILITY OR A CRIME PER SE?
Superior responsibility has a "sui generis", unique nature. The superior did not personally
commit the underlying offences; he performed a different actus reus with a different mens
rea. His criminal responsibility is therefore of a different type from that of the person who
committed the offence. Yet both the charging practice of international prosecutors and the
convictions of internatioanl tribunals generally treat superior responsibility as a mode of
liability through which the accused is guilty of the underlying offence.
There is a connection between the omission of the superior and the crimes when he has
failed to prevent them. This might explain why it is so. On the other hand, a superior who
breaches his duty to punish is in a different situation. A superior who only learns of the
crime after its coission, cannot be said to have participated in the criminal offence.
See p.192 for the succeeding commander who fails to punish crimes committed under his
predecessor's command. See p.192 (last paragraph) for the sentencing of superior
responsibility.
COURS 19: OTHER MODES OF LIABILITY AND INCHOATE CRIMES
Aiding and abetting: the aider and abetter merely has knowledge of the crime of the
principle but not the intention. So, in contrast to JCE, the aider and abetter does not share
the common intent. Aiding and abetting is easier to prove than JCE and could be your
fallback position.
For JCE, all members of the JCE are liable for all acts committed in the crime. Not so for
aiding and abetting. If you provide a weapon and you think the person will commit a
robbery and what happens is a murder, you're only liable for robbery. If you thought the
crime that was going to be committed is murder and there is a murder within a genocide,
you'll only be convicted of murder and not of genocide, as opposed to JCE.
Perisic: the ICTY AC came up with "specific direction": you must make a contribution that
was specifically directed at the crime for aiding and abetting.
Inchoate crimes only apply to Genocide. This is borrowed from Article 3 of the 1948
Genocide Convention.
Attempt
You take some steps to commit the crime and you fail.
Direct and public incitement
Similar to instigation. Instigation is direct and public incitement that succeds. Direct and
public inciteent is instigation that does not succeed.
It has to be a direct incitement to genocide: let's kill all of them. It also has to be public.
Conspiracy
The act is the act of conspiring. Conspiring involves agreeing. It is a "meeting of the
minds". Obviously, here there is a shared intention. Conspiracy requires a very specific
intention. Here the actus reus is the mens rea. This is the only case where this happens.
This is kind of troubling because you're not really criminalizing any acts-- it's just thoughts.
READING: OTHER MODES OF LIABILITY AND INCHOATE CRIMES
AIDING AND ABETTING
Ading and abetting (encourager) consists of giving practical assistance, encouragement, or
moral support with knowledge that it assists the perpetrator in the commission of the crime.
The assistance given by the accessory to the principal must have a substantial effect on the
perpetration of the crime.
Objective element ("Blaskic")
The objective element of aiding and abetting is a positive action or omission that has a
substantial effet on the perpetration of the crime (Blaskic). The assistance may be physical
or psychological. The aider and abetter does not need to be present at the scene of crime
(Blaskic). The assistance may be given, before, during or after the crime.
Mental element ("Furundzija")
The subjective element of aiding and abetting requires the aider and abettor to have
knowledge that "his actions assist the perpetrator in the commission of the crime" As stated
by the SCSL in "Birma and others", knowledge may include awareness of a risk ("he was
aware of the substantial likelihood that his acts would assist the commission of a crime by
the perpetrator"). This mental element presupposes that the aider and abettor knows of the
principal perpetrator's crime. He must have knowledge of the "essential elements of the
crime which was ultimately committed by the principal" including any specific intent
(Simic). In other words, the aider and abettor is not required to possess the mental element
for the crime. It is sufficient that he has knowledge that the principal is committing the
crime. For example, to be convicted of aiding and abetting genocide, the defendant needs
to know that he is substantially assisting the principal perpetrator in committing genocide.
He does not need to share the specific genocidal intent to destroy the group. Although the
aider and abettor has to have knowledge of the principal's crime, he does not have to predict
the exact crime that will be committed. According to "Furundzija", "It is not necessary that
the aider and abettor should know the precise crime that was intended and which in the
event was committed. If he is aware that one of a number of crimes will probably be
committed, and one of those crimes is in fact committed, he has intended to facilitate the
commission of that crime, and is guilty as an aider and abettor".
For example, if someone lent a gun to a well-known armed robber without knowing what
specific crime he intended to perpetrate but aware that he would use it to engage in criminal
conduct (either murder, armed robbery or serious bodily harm), that person is answerable
for aiding and abetting whichever of these crimes the armed robber may later have
committed by using that weapon. It is not necessary for the lender to have been fully aware
of the specific crime the well-known armed robber intended to perpetrate and the required
mental element of that crime, so long as the lender was aware of the crimes that the armed
robber was likely to commit and one of those crimes was committed. Another example is
the Dutch case of "Anraat", who was a supplier of the chemical element necessary to make
mustard gas to the Iraqi government, who in turn used it against the Kurds. He knew that
the chemical would be used for mustard gas and the high risk of its use in war and was thus
found guilty of aiding and abetting for the war crime of use of mustard gas, which is a
prohibited weapon.
Aiding and abetting at the ICC
Article 25(3)(c):
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:
[...]
(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;
Based on this language, it is possible that the ICC will interpret Article 25(3)(c) as
introducing an additional requirement that the aider and abettor act "for the purpose" of
facilitaring the principal's crime. This is unfortunate, since a person who sells a gun to a
known thug with knowledge that he is going to commit a crime should be criminally
responsible for aiding and abetting. He should not be able to avoid conviction by showing
that he sold the gun for a "purpose" other than facilitating the crime, such as profit.
The "approving spectator" aider and abettor ("Pig-Cart Parade Case")
Physical presence of an authority figure at the scene of a crime may provide moral and
psychological encouragement resulting in aiding and abetting liability. This is known as
the "approving spectator scenario". The approving spectator must meet the legal test for
aiding and abetting. Silent approval of an influential actor that does not make a substantial
contribution to the offence does not fulfil the requirements for criminal liability. In the
"Pig-cart parade" case, a Nazi leader followed a "parade" where Nazi opponents were
publicly humiliated. The court decided that the leaders' presence, in civilian attire, could
not be certainly evaluated as objective or subjective approval. The Nazi leader was simply
there to attend the parade.
Aiding and abetting vs JCE
The aider and abetter merely has knowledge of the crime of the principle but not the
intention. So, in contrast to JCE, the aider and abetter does not share the common intent.
Aiding and abetting is easier to prove than JCE and could be your fallback position. For
JCE, all members of the JCE are liable for all acts committed in the crime. Not so for aiding
and abetting. If you provide a weapon and you think the person will commit a robbery and
what happens is a murder, you're only liable for robbery. If you thought the crime that was
going to be committed is murder and there is a murder within a genocide, you'll only be
convicted of murder and not of genocide, as opposed to JCE.
Ordering ("Gacumbitsi")
Ordering is a mode of responsibility whereby a person in a position of authority is held
criminally responsible for instructing a perpetrator to commit a crime. The order must have
a direct and substantial effect on the commission of the crime. Ordering does not require a
superior-subordinate relationship (Kordic). This is distinct from the hierarchical
relationship required for superior responsibility. The ICTR AC emphasized that "Ordering
requires no such relationship-- it requires merely authority to order, a more subjective
criterion that depends on the circumstances and the perceptions of the listener
(Gacumbitsi). Since the person who issues the order is not required to have any formal
position, it follows that the order need not be legally binding on the perpetrator.
Proven by circumstancial facts
There is no need for the order to be given in writing or in any other particular form. Its
existence can be proved by inference from the circumstances.
Orders passed down the chain of command
If the order issued by a superior authority is passed by a subordinate authority down the
chain of command, the latter authority may, depending upon the circumstances, also be
held criminally responsible (Boskoski).
Direct intent or awareness of a substantial risk
The person giving the order must do so with either direct intent or with the awareness of
the substantial likelihood that a crime will be committed in execution of the order and
acceptance of that risk. Thus, a conviction can be entered even when the order does not
explicitly direct any criminal act.
Ordering would fall under Article 25(3)(b) ICC Statute:
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:
[...]
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
Instigating ("Nahimana and others")
Instigating, that is prompting another to commit a crime-- is closely related to other modes
of liability such as aiding and abetting and ordering.
ICTY Statute, Article 7
1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually
responsible for the crime.
Article 25(3)(b) ICC Statute:
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:
[...]
(b)Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
The prompting of the instigator must make a substantial contribution to the conduct of the
principal perpetrator who commits the crime (Kordic). The instigator can act with direct
intent or advertent recklessness, in the sense of an awareness of the substantial likelihood
that a crime will be committed and acceptance of that risk. An example is that of "Nahimana
and others", where radio broadcasts called for action against Tutsis. In some cases, the
ICTR found that some broadcasts did not satisfy the criteria because "the longer the lapse
of time between a broadcast and the killing of a person, the greater the possibility that other
events might be the real cause of such killing".
Planning ("Boskoski")
ICTY Statute, Article 7
1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning,
preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually
responsible for the crime.
Planning consists of devising, preparing, and arranging for the commission of a crime. One
may think, for instance, of planning an air attack on civilians or use of prohibited chemical
weapons. Planning does not have to be only for higher-ranking military or civilian officers.
The ICTY has convicted a police officer together with other higher ranking people
(Boskoski).
It is difficult to imagine a scenario that would result in planning responsibility that is not
also encompassed by aiding and abetting liability. This lack of distinction may be one of
the reasons why planning is not specifically enumerated in the ICC Statute. It is likely that
conduct categorized as planning at the ICTY and ICTR will be treated by the ICC under
the general provisions of Article 25(3)(c) covering aiding and abetting and "otherwise
assisting".
Objective element
The objective element is established when one or more persons design the commission of
a crime, which is then carried out. The planning has to contribute substantially to the crime.
Subjective element
The subjective element is the direct intent to commit the crime or have it committed by
others pursuant to the plan. It is also sufficient if the planner acted with advertent
recklessness; that is, with an awareness of the substantial likelihood that a crime will be
committed in the execution of the plan and an acceptance of that risk.
RESIDUAL ACCESSORY LIABILITY IN THE ICC STATUTE
Article 25
3. Aux termes du présent Statut, une personne est pénalement responsable et peut être punie pour un
crime relevant de la compétence de la Cour si :
d) Elle contribue de toute autre manière à la commission ou à la tentative de commission d’un tel
crime par un groupe de personnes agissant de concert. Cette contribution doit être intentionnelle et,
selon le cas :
i) Viser à faciliter l’activité criminelle ou le dessein criminel du groupe, si cette activité ou
ce dessein comporte l’exécution d’un crime relevant de la compétence de la Cour ; ou
ii) Être faite en pleine connaissance de l’intention du groupe de commettre ce crime ;
Article 25(3)(d) of the ICC Statute introduces a novel mode of criminal responsibility at
the crossroads of JCE and aiding and abetting. It provides for criminal responsibility when
a person, who, while not necessarily belonging to a group, 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. The PTC in Lubanga qualified this as a "residual form of accessory
liability".
Objective element
The objective element requires that the accused has contributed to a crime carried out by a
group sharing a common purpose in any way other than those set out in Article 25(3)(a) to
(c) of the Statute. Here the contribution to the comission of the crime must be a significant
one (Mbarushiana). The term "significant" is less demanding than "substantial", which is
the requirement for other modes of liability.
Subjective element
In Article 25(3)(d)(i), the accused aims to further the criminal intent of the group and in
Article 25(3)(d)(ii), the accused is merely aware of (but does not share) the group's
intention to commit a crime. In either case, the accused's contribution must be linked with
the crime in the sense that the accused must mean to engage in the conduct and be aware
that his conduct contributes to the group's activities.
INCHOATE CRIMES
In ICL, while attempts are regarded as admissible as a general class of inchoate crimes,
conspiracy and incitement are only prohibited when connected to the most serious crime:
genocide (art. art. 2(3)(d) and 4(3)(d) ICTY and ICTR Statutes). Arguably, ordering and
planning should also be considered as inchoate crimes.
Attempt
Attempt as a distinct criminal offence occurs when a person acts with the intent to commit
a crime, but fails. This can happen when the perpetrator takes the initial steps but is then
apprehended or when the perpetrator's actions do not produce the intended results because
of intervening external circumstances. For instance, a soldier happens to kill a prisoner of
war by shooting him and only injurs him, without bringing about his death. Attempt is
considered a completed crime even though the intended harm is not caused to the victim.
For an attempt to be punishable, the accused must take a significant step towards intiating
the criminal action that is interrupted by intervening circumstances. The subjective element
for attempt is direct intent. Recklessness is not enough.
Attempt is probably a rule of customary international law since it is present in most
jurisdictions and there is plenty of case law of national proceedings relating to ICL crimes
using attempt as a mode of responsibility. See p.200 for examples.
The rule under discussion has been codified in Article 25(3)(f):
Article 25
3. Aux termes du présent Statut, une personne est pénalement responsable et peut être punie pour un
crime relevant de la compétence de la Cour si :
f) Elle tente de commettre un tel crime par des actes qui, par leur caractère substantiel, constituent
un commencement d’exécution mais sans que le crime soit accompli en raison de circonstances
indépendantes de sa volonté. Toutefois, la personne qui abandonne l’effort tendant à commettre le
crime ou en empêche de quelque autre façon l’achèvement ne peut être punie en vertu du présent
Statut pour sa tentative si elle a complètement et volontairement renoncé au dessein criminel.
The ICTY and ICTR did not view that attempt is encompassed in their statute.
Conspiracy to commit genocide
Conspiracy is a group offence, consisting of the agreement of two or more persons to
commit a crime. It is punishable even if the crime is never perpetrated.
Mens rea
The mens rea for conspiracy is twofold: (i) knowledge of the facts or circumstances making
up the crime the group intends to commit; (ii) intent to carry out the conspiracy and thereby
perpetrate the substantive offence.
Restricted application: only in the ICTY and ICTR Statutes and only with respect to
genocide
In ICL no customary rule has evolved on conspiracy on account of the lack of support from
civil law countries for this category of crime. However, treaty rules on conspiracy can be
found in the Charter of the Nuremberg Tribunal (Article 6). The only treaty rule on
conspiracy currently in force is Article 3(b) of the 1948 Genocide Convention, which
makes "conspiracy to commit genocide" punishable. Conspiracy to commit genocide is an
enumerated crime in the ICTY and ICTR Statutes. It is not included in the ICC Statute,
which consequently differs in that respect from customary international law.
The agreement to commit genocide
The agreement can be inferred from circumstances, in particular from the coordinated
actions of the conspirators. The required mental element is the intention to form an
agreement coupled with the specific intent of the crime of genocide--- the intent to destroy
[...].
Conviction for genocide and conspiracy
In some cases (p.203), ICTR chambers have convicted for both conspiracy to commit
genocide and genocide itself. The better view, advanced by the "Musema" Trial Chamber,
is that it is unecessary to convict for conspiracy when the completed offence has been
perpetrated because it would no longer serve any preventive purpose.
Direct and public incitement to commit genocide ("Nahimana")
Incitement to genocide is prompting of others to commit the crime of genocide. According
to the ICTR AC, hate propaganda or even "propaganda tending to provoke genocide" is
insufficient; only specific acts of direct and public incitement to commit genocide are
criminalized (Nahimana). The required intent to incite others to commit genocide includes
the genocidal intent to destroy the group. As an inchoate crime, incitement to commit
genocide is punishable whether or not genocide is perpetrated as a result of the incitement.
Incitement vs instigation
In order to be punishable, inciteent to genocide must be direct and public. These
requirements serve to limit the scope of the inchoate crime. They also distinguish the crime
of direct and public incitement from modes of liability involving the prompting of another
to commit a crime, such as instigation. Whereas direct and public incitement to genocide
is a crime in itself, instigation is a mode of participation in the completed crime and does
not need to be either direct or public.
Direct
Incitement must be direct; that is, it must specifically provoke or induce other persons to
engage in genocide. In other words, it must not consist of vague suggestions. Nevertheless,
the meaning of the message must be assessed in its cultural and linguistic context. Even
implicit messages may amount to direct incitement, as long as the audience can
immediately understand the message in context. For instance, the use of coded language
employing the pejorative term "cockroaches" to refer to Tutsi as the targets of the genocide
in Rwanda was found to amount to "direct" incitement (Akayesu).
Public ("Muvunyi")
Incitement must also be public: the act of inducing or provoking other persons to engage
in acts of genocide must be performed in a public place or gathering or through the mass
media capable of reaching the general public at large. In Muvunyi, the ICTR explained that
there is no requirement that the incitement message be addressed to a certain number of
people or that it should be carried through a specific medium such as radio, television or a
loudspeaker. However, both the number and the medium may provide evidence in support
of a finding that the incitement was public. See p.204 excerpt for an example.
Ordering and planning
Although the ICTY and ICTR have treated ordering and planning exlusively as modes of
liability for participating in a completed crime, there is considerable historical authority
supporting ordering and planning as inchoate crimes. p.204.
COURS 20: JUSTIFICATIONS AND EXCUSES
Justifications and excuses were extracted as general legal principles from most criminal
law systems in the world. A justification makes the behaviour lawful (and not morally
blameworthy) and the excuse makes the behaviour non-punishable. In the later case, the
behaviour remains blameworthy. For instance, self-defence is a classical example of
justification. And the classical example for excuses is duress. For the excuse, you have
moral involuntariness.
"Erdemovic case": The commander told the guy: if you don't kill those muslims lined up
before the ditch, you might as well just line up with them. "I had to kill 1200 persons on
that day, but I had to do it otherwise I was going to be killed". He wanted to confess that
he was guilty. So did he confess his guilt or did he invoke duress? In common law, duress
applies to all crimes except treason and murder, and only to the principal to the first degree.
The court ruled that there was an exception to murder, as exists in many national criminal
systems.
Duress. It may be an excuse or it may anihilate the mens rea.You cannot commit genocide
under duress (because it requies the specific intent) but you can commit a war crime under
duress (because it only requires the knowledge).
Reprisal: you used prohibited weapons, I get to use prohibited weapons. There are
exceptions, such as the killing of civilians. You kill my civilians, I don't get to kill your
civilians.
Mistake of law.
Mistake of fact: it differs from a justification or excuse, because it keeps the crime from
being consumated because you don't have the mens rea. For example, you were given the
wrong coordinates and you end up shelling a school.
Defences in the ICC Statute
mental incapacity: it goes to appreciating the consequences of your acts, and not simply
that you're a twisted fuck.
Intoxication: voluntary intoxication is not a defense.
Self-defence: imminent and unlawful use of force, and response must be proportionate to
the degree of danger involved.
Duress:
Necessity:
Mistake of fact: it has to negate the mens rea. Interesting for sexual violence and consent.
Mistake of law: cannot be an excuse, unless there is a crime that specifically provides that
mistake of law may be an excuse?
Superior orders: the person did not know that the orders were illegal: ex: you're told to
blow up a building and you did not know it was filled with civilians.
READING: JUSTIFICATIONS AND EXCUSES
A justification affirms that a conduct normally deemed criminal may, in exceptional
circumstances, be appropriate or at least permissible, if not legally authorized. An example
is self-defence. An excuse, by contrast, does not negate that the crime has taken place, but
recognizes a circumstance that makes it unjust or inappropriate to hold the perpetrator
criminally responsible for the action. An example is intoxication or mistake of law.
Justifications affirm the rightness, or least permissibility of the actions; excuses preserve
the wrongness of the action, while at the same time recognizing the injustice of punishing
the actor.
Other persons participating in the crime, for example as accessories or co-perpetrators, are
not necessarily excused because the perpetrator is excused. While it may be unjust to
punish a person where his conduct is excused, it may not always be unjust to require the
payment of compensation for any resulting damage. No such obligation would arise, on
the other hand, if the action is deemed legally justified.
JUSTIFICATIONS
Among the circumstances that negate unlawfulness of what would otherwise be a criminal
act are i) self-defence; ii) necessity (as justification); iii) belligerent reprisals (for war
crimes).
Self-defence
The commission of an international crime may be justified as self-defence when
perpetrated to prevent, or put an end to, a crime being, or about to be, perpetrated against
himself or a third person. Self-defence is lawful provided it fulfils the following
requirements: i) the action in self-defence is taken in response to an imminent or actual
unlawful attack on the life of the person or of another person; ii) there is no other way of
preventing or stopping the unlawful attack; iii) the unlawful attack has not been caused by
the person acting in self-defence; iv) the conduct in self-defence is proportionate to the
unlawful attack to which the person reacts.
Article 31(1)(c) ICC Statute
Outre les autres motifs d’exonération de la responsabilité pénale prévus par le présent Statut, une
personne n’est pas responsable pénalement si, au moment du comportement en cause :
[...]
c) Elle a agi raisonnablement pour se défendre, pour défendre autrui ou, dans le cas des crimes de
guerre, pour défendre des biens essentiels à sa survie ou à celle d’autrui ou essentiels à
l’accomplissement d’une mission militaire, contre un recours imminent et illicite à la force,
d’une manière proportionnée à l’ampleur du danger qu’elle courait ou que couraient l’autre
personne ou les biens protégés. Le fait qu’une personne ait participé à une opération défensive
menée par des forces armées ne constitue pas en soi un motif d’exonération de la responsabilité
pénale au titre du présent alinéa ;
The threat must be objectively justified, even if it later turns out to be mistaken. See
p.212-213 for a critic of this provision.
Necessity as justification
Domestic jurisdictions recognize that occasions may arise, albeit very rarely, when the
harm occasioned by the commission of a criminal act is less than some other harm thereby
avoided. Doctrinal formulations differ, but the common denominator is that a criminal act
is justified if the actor subjectively "believes it to be necessary to avoid a harm or evil to
himself or to another", and the harm or evil avoided by the act is objectively greater than
that "sought to be prevented by the law defining the offense charged".
This principle overlaps with, but is broader than, self-defence to the extent that it
encompasses not only actions defending against an aggressor, but also actions seeking to
avoid harm from natural or external forces.
Necessity was recognized to be part of customary international law in "Oric", upon the
existence of four conditions: i) a present or imminent threat of severe and irreparable harm
to life; ii) the crime committed "must have been the only means to avoid the aforesaid
harm"; iii) it must not be disproportionate; and iv) it must not have been voluntarily brought
about by the perpetrator himself.
Beligerent reprisals
The legality and scope of these reprisals, in response to a previous violation of the laws of
war, has recently been evolving towards a very restrictive interpretation. See p.214.
The conditions for a legal beligerent reprisal are the following: i) they may only be a
reaction to previous violations by the adversary; ii) protests or other efforts must have been
undertaken to secure compliance that have been fruitless, and that no other lawful measures
are available to suppress or deter the violation; iii) they are proportionate; iv) they have
been approved at the highest levels of government, and not a field commander, and the
issuance of a public warning of impending reprisals; and v) imediate cessation upon
compliance by the adversary.
EXCUSES
Duress
Duress can arise either from threats by a third party against the perpetrator, or from
circumstances that exert tremendous pressure on the perpetrator to commit a crime. The
latter situation, as previously mentionned, is sometimes described as "necessity", in the
sense of "excused necessity". The difference between justified and excused necessity
depends on whether the claim is that the criminal act led to a less evil outcome (and is
therefore justified) or was the product of psychological coercion (and is therefore excused).
The key criterion in assessing duress is whether the circumstances "eliminated the actor's
autonomy by asking him to sacrifice something (such as his family or himself) that he was
not capable of doing. In other words, even though the person possesses the mens rea for
the action, his or her capacity to choose is so impared as to require excusing their liability.
Duress is well established in customary interantional law, albeit under strict conditions: i)
the crime is committed under an immediate threat of severe and irreparable harm to life or
limb; ii) the crime committed is not disproportionate to the harm threatened; and iv) the
situation leading to duress must not have been voluntarily brought about by the person
coerced.
Article 31(1)(d) ICC Statute
Outre les autres motifs d’exonération de la responsabilité pénale prévus par le présent Statut, une
personne n’est pas responsable pénalement si, au moment du comportement en cause :
[...]
d) Le comportement dont il est allégué qu’il constitue un crime relevant de la compétence de la Cour
a été adopté sous la contrainte résultant d’une menace de mort imminente ou d’une atteinte grave,
continue ou imminente à sa propre intégrité physique ou à celle d’autrui, et si elle a agi par nécessité
et de façon raisonnable pour écarter cette menace, à condition qu’elle n’ait pas eu l’intention de
causer un dommage plus grand que celui qu’elle cherchait à éviter. Cette menace peut être :
i) Soit exercée par d’autres personnes ;
ii) Soit constituée par d’autres circonstances indépendantes de sa volonté.
The provision adopts the customary international law definitions of intensity of threat
required to constitute duress, but also imposes objective and subjective limitations on the
range of actions that could be so excused.
Article 31(3) ICC Statute
Lors du procès, la Cour peut prendre en considération un motif d’exonération autre que ceux qui
sont prévus au paragraphe 1, si ce motif découle du droit applicable indiqué à l’article 21. La
procédure d’examen de ce motif d’exonération est fixée dans le Règlement de procédure et de
preuve.
A. Unavailability of duress where a person has knowingly joined a criminal organization
Duress cannot be invoked as an excuse where a person freely and knowingly chooses to
become a member of a unit, organization, or group institutionnally intent upon actions
contrary to IHL. In other words, if a person has voluntarily joined a military or paramilitary
unit whose main purpose is to engage in criminal action, he is not allowed to plead in
defence to the crimes perpetrated in that capacity that he acted under threat to his life or
limb.
B. May duress be a defence to killing?
In some cases, under the influence of English criminal law, domestic courts have taken the
view that duress may never excuse homicide, though it may be urged in mitigation. The
principle is grounded in the notion that human life is such a sacred asset that its taking may
never be excused. This balancing of values has been called "hypocritical" and assailed for
absurdity requiring men to act as heroes.
In the "Erdemovic" case, the ICTY concluded that duress can only be used in mitigation of
punishment in the case of murder.
Courts have rarely allowed the defence to succeed in cases involving killing, even when
they have in principle admitted its applicability. It is also relevant to examine whether a
crime would have been committed in any case by a person other than the one acting under
duress, in which case duress seems admissible as a defence. In fact, where the accused has
been charged with participation in a collective killing which would have proceeded
irrespective of whether the accused was a participant, the defence has in principle been
allowed. In this case, if an individual member of the execution squad first refuses to obey
but has then to comply with the order as a result of duress, he may be excused.
Mistake of law
Article 32(2) ICC Statute
Une erreur de droit portant sur la question de savoir si un comportement donné constitue un crime
relevant de la compétence de la Cour n’est pas un motif d’exonération de la responsabilité pénale.
Toutefois, une erreur de droit peut être un motif d’exonération de la responsabilité pénale si elle fait
disparaître l’élément psychologique du crime ou si elle relève de l’article 33.
Article 33 ICC Statute
1. Le fait qu’un crime relevant de la compétence de la Cour a été commis sur ordre d’un
gouvernement ou d’un supérieur, militaire ou civil, n’exonère pas la personne qui l’a commis de sa
responsabilité pénale, à moins que :
a) Cette personne n’ait eu l’obligation légale d’obéir aux ordres du gouvernement ou du supérieur
en question ;
b) Cette personne n’ait pas su que l’ordre était illégal ; et
c) L’ordre n’ait pas été manifestement illégal.
2. Aux fins du présent article, l’ordre de commettre un génocide ou un crime contre l’humanité est
manifestement illégal.
"Si elle fait disparaître l'élément psychologique du crime" in Article 32(2) refers to the
evaluation of facts that are themselves imbued with a legal assessment such as, for
example, the consequence of a flag of truce or the minimum standard of due process
required for lawful sentence to be passed against a prisoner of war. This may therefore
merely be viewd as a special type of mistake of fact, which is the section discussed below.
ICL, like in most national legal systems, does not consider ignorance of the law to be a
ground for excluding criminal responsibility. Domestic legal systems, however, widely
recognize that there are in exceptional circumstances cases where mistake of law can be
successfully raised as an excuse. The Swiss, French, and German criminal codes stipulate
that this is the case when the mistake could not have been avoided; the American Model
Penal Code restricts such errors to situations where the law has not been "published or
otherwise reasonably made available" or there are official pronouncements of the erroneous
view on which the accused relied. An argument could be made that the character of IHL
and ICL merits a limited recognition of mistake of law. See. p.221 for domestic
jurisprudential examples.
Mistake of fact
It differs from a justification or excuse, because it keeps the crime from being consumated
because you don't have the mens rea. It refers to instances where the person, though
possessed of his individual autonomy, is under a non-culpable misapprehension of the facts
and therefore is not aware of the circumstances making his or her action criminal. Mistake
of fact negates the very existence of mens rea and culpability. Since it concerns an element
of the crime that must be proven, the burden of showing that the mistake did not exist rests
always with the prosecution.
A mistake of fact arises only if it "negates the mental element required by the crime". That
can occur only if the person is mistaken i) about facts upon which an element of the crime
is based; and ii) in a way that deprives the person of the required mental state in respect of
that element.
If a hunter kills a man in the woods genuinely believing that the man is a gorilla, the hunter
will not be guilty of murder; but his mistake would not negate a crime with a lower mental
state, such as negligent homicide, if it could be shown that the mistake, though genuine,
was not reasonable.
An example of an admitted mistake of fact is the "Schwarz case", from the US Martial
Court. A soldier was ordered to search a tent and while he was inside, he heard his capitain
scream "shoot them! Shoot them all!". And so the soldier ran out of the tent and shot the
people that had just escaped from the tent, thinking that they were about to attack, while,
in reality, his capitain was simply ordering their illegal execution.
Mental incapacity
Mental incapacity arises where the accused's psychological condition deprives the person
of the capacity to assess the nature or wrongfulness of his actions. This may be a transient
(temporary) condition, as in the case of intoxication, or relatively continuous, as with
insanity or age. The mental incapacity may be so severe as to negate mens rea entirely, but
some national legal systems nevertheless refer to the actions as "criminally not imputable".
A. Intoxication
Article 31(1)(b) ICC Statute
Outre les autres motifs d’exonération de la responsabilité pénale prévus par le présent Statut, une
personne n’est pas responsable pénalement si, au moment du comportement en cause :
[...]
b) Elle était dans un état d’intoxication qui la privait de la faculté de comprendre le caractère
délictueux ou la nature de son comportement, ou de maîtriser celui-ci pour le conformer aux
exigences de la loi, à moins qu’elle ne se soit volontairement intoxiquée dans des circonstances telles
qu’elle savait que, du fait de son intoxication, elle risquait d’adopter un comportement constituant
un crime relevant de la compétence de la Cour, ou qu’elle n’ait tenu aucun compte de ce risque
Intoxication as a result of alcohol, drugs, or other intoxicants may amount to an excuse
only under very strict conditions: i) the intoxication is so serious as to negate mens rea (that
is, it alters the agent's mental state to such a point that he is not in aposition to be aware of
his actions and to appraise the unlawfulness of his conduct); and ii) in the case of
voluntarily intoxication, the person has not become voluntarily intoxicated knowing the
risk that, as a result of his state, he was likely to engage in criminal action.
In "Kvovka", the ICTY rejected drunkenness as an excuse for the accused's beating and
brutalization of inmates.
B. Insanity or serious mental disorder
Article 31(1)(a) ICC Statute
Outre les autres motifs d’exonération de la responsabilité pénale prévus par le présent Statut, une
personne n’est pas responsable pénalement si, au moment du comportement en cause :
[...]
a) Elle souffrait d’une maladie ou d’une déficience mentale qui la privait de la faculté de comprendre
le caractère délictueux ou la nature de son comportement, ou de maîtriser celui-ci pour le conformer
aux exigences de la loi ;
The condition must be quite extreme, for it has to destroy that person's capacity to
appreciate the unlawfulness or nature of his conduct, or capacity to control his conduct to
conform to the requirements of law. Some mental conditions may not be sufficient to meet
the threshold for excusing liability, but can be serious enough to be taken into account for
sentencing. See p.226 for examples in domestic law. Uncontrollable fits of temper would
not normally qualify as negating or excusing responsibility. At the most, and under strict
conditions, it might prove appropriate to take them into account, as extenuating
circumstances.
C. Minors
Article 26 ICC Statute
La Cour n’a pas compétence à l’égard d’une personne qui était âgée de moins de 18 ans au moment
de la commission prétendue d’un crime.
While this is a clear jurisdictional limitation for the court, no customary international rule
can be said to have emerged on this matter.
COURS 21: OBEDIENCE TO SUPERIOR ORDERS AND OFFICIAL CAPACITY
Official capacity comes from equal sovereignty of states. That does not apply to ICL courts,
which are above states. That immunity is granted for the individual to be able to carry out
his functions without being afraid of being prosecuted.
The irrelevance of official capacity is a matter of customary law and treaty law. States
agreed to the irrelevance of official capacity. ICL crimes do not fall within the proper
functions of a head of state.
Personal vs official capacity: immunity for your acts as a state agent (while carrying out
your functions) vs your acts while you're a state agent.
Procedurally, official capacity is still relevant, however. Read article 98(1).
Article 98
Coopération en relation avec la renonciation à l'immunité et le
consentement à la remise
1. La Cour ne peut poursuivre l'exécution d'une demande de remise ou d'assistance qui contraindrait l'État
requis à agir de façon incompatible avec les obligations qui lui incombent en droit international en matière
d'immunité des États ou
d'immunité diplomatique d'une personne ou de biens d'un État tiers, à moins d'obtenir au préalable la
coopération de cet État tiers en vue de la levée de l'immunité.
For example, if Canada hears that the Kenyan diplomat is suspected of crimes against
humanity, it cannot prosecute him in Canada because he has immunity. Article 98(1)
applies to third states and Canada and Kenya are both parties, so it does not apply; Sudan
is a third state-- if it were about Sudan, Article 98(1) would apply and Canada would have
to extradite with Sudan's consent.
"Congo Arrest Warrant": immunity vs impunity: so long as the congoleese diplomat enjoys
his immunity, impunity will persist. I think Congo's not a party to the statute?
"Al Bashir": he's been indicted as head of state. Sudan's not going to hand him over. One
of the strategies is to restrict his movement.
A Security Council referral does not create an obligation to surrender the indicted??
Prosecuting génocidaires is more important than immunity-- that's what one ICL judge
once said. What do you think of that? Fahed says that's romantic and that the risk is that
any state would be free to indict officials for silly reasons.
What happens if you have immunity, you're not a member of the ICC and the ICC wants
to indict you? The ICC may not indict without Sec council resolution. If there is one then
this will be like Al-Bashir case. Yeah they can`t enforce it. His traveling is limited but he
makes sure to call up the other countries before traveling to them.
Are amnesties a good way to end wars? Should peoples have the right to opt for peace and
amnesties? Should that grant jurisdiction to the ICC and be deemed as unwillingness in the
sense of Article 17? My answer is no because then the country is actually dealing with it-the leaders are not avoiding their responsibility. It's the population and the state that chose
this to happen and not the head of state who uses the state to shield himself.
Granting amnesties goes againt the international law system. It's not consistent if you grant
this guy an amnesty to save lives and prosecute this other guy. You would wish that ICL
could be more of a consistent system rather than a fragmented system. We would wish for
a "global rule of law", so that similar situations being dealt with similarly.
READING: OBEDIENCE TO SUPERIOR ORDERS AND OFFICIAL CAPACITY
Historically, "obedience to superior orders" allowed those in lower ranks to be protected
against liability by the orders of their superiors and the superiors were protected under
"official capacity" because their orders were called "acts of state". The London Charter
establishing the Nuremberg Tribunal rejected these forms of defences and ICL has largely
followed this decision. The two defences are however not completely supressed from ICL,
for they may still be asserted in residual or modified form. Superior orders may debatably
be the basis of an excuse based on mistake of fact or where they are part of a climate of
coercion that is so severe as to rise to the level of duress. The overall position appears to
be, however, that there is now little scope for mistake of law even in respect of superior
orders, and that while duress certainly is a well-founded defence in principle, it is very
rarely accepted in practice.
SUPERIOR ORDERS
Superior orders and mistake of law
A. The ICC Statute
Article 33 ICC Statute
1. Le fait qu’un crime relevant de la compétence de la Cour a été commis sur ordre d’un
gouvernement ou d’un supérieur, militaire ou civil, n’exonère pas la personne qui l’a commis de sa
responsabilité pénale, à moins que :
a) Cette personne n’ait eu l’obligation légale d’obéir aux ordres du gouvernement ou du supérieur
en question ;
b) Cette personne n’ait pas su que l’ordre était illégal ; et
c) L’ordre n’ait pas été manifestement illégal.
2. Aux fins du présent article, l’ordre de commettre un génocide ou un crime contre l’humanité est
manifestement illégal.
The author strongly criticizes this provision because it, in a sense, allows for a defense of
mistake of law (“l'ordre n'ait pas été manifestement illégal”) while article 32 of the ICC
Statute specifically abolishes this type of defense. One can hardly see how, given all these
limitations on the class of war crimes over which the ICC may pronounce, there might be
cases where a defendant could validly claim that he was not aware of the illegality of the
order and that the order was not “manifestly unlawful”.
B. The “manifestly unlawful” standard in domestic law and military manuals
National legislation frequently states that a subordinate is not “liable to punishment” or not
“criminally responsible” unless the unlawfulness of the order is “manifest” or “obvious”.
However, the illegality to which a subordinate may otherwise be subject at the national
level is not limited to violations of the IHL or other prohibitions of ICL, but also includes
“very broad categories of offenses, including ordinary crimes such as theft, military
offenses and minor violations of the laws of warfare”. International rules, by contrast,
regulate a more limited number of norms, almost all of which are notorious crimes that
may, in themselves, be understood as manifestly unlawful. The “manifestly unlawful”
standard in state practice, therefore, cannot be simplistically transferred to the international
realm.
C. Case law rejecting the plea of superior orders
See p.233-235.
D. Case law accepting the plea of superior orders
In, “Wilhelm von Leeb”, the tribunal held that the military order was not patently illegal
because the law on the matter was unclear; consequently, the accused were not responsible
under this count. See p.235-237.
Superior orders and duress
Superior orders may be issued without being accompanied by any threats to life and limb.
In these circumstances, if the superior order involves the commission of an international
crime, the subordinate is under a duty to refuse to obey the order. If, following such a
refusal, the order is reinforced by a threat to life or limb, then the defense of duress may be
raised, and the superior order loses any legal relevance. Equally, duress may be raised
independently of superior order, for example, where the threat issues from a fellow
serviceman, or even a subordinate.
Superior order and mistake of fact
Individual soldiers often have to rely on information given to them by others about the
circumstances in which they are acting, and often have to rely on information implicitly or
expressly conveyed to them in orders given to them by their superiors. For instance, the
US Manual for Air Forces explains that if a hospital is selected as a target for attack,
although the person making the selection would be criminally responsible, a pilot given
such coordinates would not be criminally responsible unless he knew the nature of the
protected target. This defense has been raised before many national courts and was namely
upheld in cases where the subordinates genuinely believed that individuals they were
ordered to murder had previously been tried and sentenced to death, because they had been
told so.
THE IRRELEVANCE OF OFFICIAL CAPACITY
Under international law, there exists one category of immunities that may in principle come
into play and be relied upon, which is called “functional immunities”. This class of
immunities apply to all state agents discharging their official duties. Their rationale is that
an individual performing acts on behalf of a sovereign state may not be called to account
before foreign courts for a violation of international law he may have committed while
acting in an official function. Only the state may be held responsible at the international
level. Is the international rule on functional immunities also applicable with respect to acts
amounting to international crimes?
The inapplicability of the doctrine of functional immunities with respect to
international crimes
National case law supports the inapplicability to international crimes of the customary rule
on functional immunities to international crimes. Many cases where state military officials
were brought to trial demonstrate that state agents accused of war crimes, crimes against
humanity, or genocide may not invoke before national courts their official capacity as a
valid defense. It can be conceded that most of the cases under discussion deal with military
officers. However, it would be untenable to infer from this fact that the customary rule only
applied to such persons. There is a 2012 case named “Khaled Nezzar” before a Swiss court
prosecuting an ex-minister. A set of other decisions also mention this customary rule
(p.244).
It is of the view of the ICTY that its article 7(2) applies to any person. See p.244 for
jurisprudence.
Art. 7(2) ICTY Statute-- individual criminal responsibility
2. The official position of any accused person, whether as Head of State or Government or as a
responsible Government official, shall not relieve such person of criminal responsibility nor mitigate
punishment.
Article 27 of the ICC Statute also affirms this customary rule whereby, for the purpose of
establishing criminal responsibility for crimes under international law, the plea of acting in
an official capacity is of no avail. This also applies to members of international
organizations.
Art. 27 ICC Statute-- défaut de la pertinence de la qualité officielle
1. Le présent Statut s’applique à tous de manière égale, sans aucune distinction fondée sur la qualité
officielle. En particulier, la qualité officielle de chef d’État ou de gouvernement, de membre d’un
gouvernement ou d’un parlement, de représentant élu ou d’agent d’un État, n’exonère en aucun cas
de la responsabilité pénale au regard du présent Statut, pas plus qu’elle ne constitue en tant que telle
un motif de réduction de la peine.
2. Les immunités ou règles de procédure spéciales qui peuvent s’attacher à la qualité officielle
d’une personne, en vertu du droit interne ou du droit international, n’empêchent pas la Cour
d’exercer sa compétence à l’égard de cette personne.
Within the framework of, and with reference to, complementarity, the provision makes it
clear that-- whenever a state exercises its jurisdiction over one of the crimes under Article
5, the possible application of national legislation on functional immunities runs counter to
the Statute. Consequently the Court is entitled to exercise its jurisdiction.
COURS 22: INTERNATIONAL CRIMINAL TRIBUNALS AND THE ADVERSARIAL
SYSTEM
How different national systems have shaped the procedure in ICL is interesting. Another
interesting element is how ICL has evolved on its own to diverge in some respects from
national systems, due to the peculiarity (magnitude, gravity of crimes and caseload) of
crimes. The civil model is inquisitorial and the common law model is adversorial.
In the adversarial system, the assumption is that parties will vigorously plead their case and
that this will make justice come to light. The parties are more central and the judge is more
of a arbitor or a mediator to the dispute. The proceedings are public, which is illustrative
of how the dispute is not a private affair (vengeance) but a public affair. There is also a
jury that may be present. There is a division of labour between the judge and jury. The jury
makes factual findings and the values of the community are defended and there is a check
on the powers of the judge (who used to be a noble (In England) and that would sometimes
make strange rulings completely at odds with the values of the community). In France,
however, after la Grande Noirceur (1790's), peoples' justice turned into a bloodbath and
this is why they have opted, after all, for professionnally trained judges.
Because the jury has so much power to make factual findings, this is why there are so many
rules concerning evidence. The jury is made of laymen that have no knowledge about the
law and it would be easy to mislead them if there were few rules regarding evidence. In
civil systems, this is not the case because the judge is the only one making the factual
findings and, contratily to a jury, he is professionnaly trained. The ICTY and ICTR have
very few evidence rules.
In adversarial systems, for the most part, the process to initiate investigations falls in the
hands of the public authorities. There is no such thing as a "partie civile", which can initiate
a proceeding (in civil law). The investigation is driven by the investigating magistrate in
civil law. He is arriving at judicial conclusions as to whether or not to intiate proceedings
against a person. He investigates incriminating and exonerating facts. He forms a "dossier"
with all the evidence, which he hands to the court after his decision (to come up with
charges or not) has been rendered. The ad versarial process puts the burden on the
defendant to ensure that all exculpatory informations have been put.
The judge in inquisitorial systems has much more power than the judge in the common law
system. The judges in common law will be passive and will not "descend into the arena".
The assumption is that the "truth will emerge" from the parties' dispute. In contrary, in civil
law, the truth will emerge from the judges' work. He will call evidence and interfere and
call evidence and sometimes even his own evidence. However in this case you have to
assume that the judge is not biased. In the commmon law system, you're a bit more
guaranteed that it will be imparital because parties bring all the proof before the course.
As a defendant, you're better off with civil law, because the investigating judge will
investigate exclupatory evidence for you. In common law, usually, the crown has more
means than the defendant. In inquisitorial systems there is no hearsay. There is more
reliance on sworn statements than oral testimony, in opposition to common law.
The question is: which way has ICL evolved? Some would argue that ICL has, for the most
part, adopted the adversarial system. The ICTY gave the judges the duty to come up with
rules of procedure and evidence. The American Bar Association helped a lot in that and
that helped to form a more adversarial system.
With mass crimes, contrarily to murder in domestic systems, you can have tens of
thousands of witnesses? How do you ensure that trials don't last three years, like that of
Milosevic? After a while the ICTY began to adopt a more inquisitorial culture, where the
judge adopted a more managerial role, asking "why do you want this witness? Do you
really need him?", in order to shorten proceedings.
This is still a problem at the ICC. The first judgement (Lubanga) took six years. The ICC
has a somewhat inquisitorial approach to evidence. Civil law countries were a bit upset
with how the ICTY was too adversarial. The result is the creation of the PTC. It has the
power to issue arrest warrants. The PTC has often requested the prosecutor to collect
aditionnal evidence, etc and in a way has a managerial role.
Which is best suited-- the adversarial or inquisitorial system? Some would say the
inquisitorial method is preferable because it is more centered on establishing the truth-- it's
not only about the guilt of a single accused. And this is desirable because these judgements
have significant repercussions on entire societies. In other words, you don't only want the
information regarding this single individual to be the focus, you also want the whole truth
to be unravelled.
READING: INTERNATIONAL CRIMINAL TRIBUNALS AND THE ADVERSARIAL
SYSTEM
A COMPARISON OF THE TWO MODELS IN OPERATION
Initiation of investigation, prosecution, and trial proceedings
In inquisitorial systems, a judge, rather than the defence and crown, will be carrying out
the investigation. During this investigation, the defence will however have the right to
assess all of the information put into the "dossier". Moreover, the defence will, as a general
rule, have the right to participate in the taking of statements that are of decisive importance,
according to the ECHR (p.333). The investigating judge is a powerful figure. He decides
the course of the investigation in most respects and, therefore, the scope of the information
that will determine guilt or innocence; determines whether and when the dossier should be
handed over for trial; and whether there are justifications for special procedures, such as
excluding the defence from hearing a witness.
There is not plea bargaining in inquisitorial systems.
Admission of evidence
An inquisitorial trial does not commence from a clean slate. The case file transmitted to
the trial court by the investigating judge is, in most investigative systems, presumptively
admitted as evidence. In other words, any piece of information, document, or exhibit in the
case file constitutes "evidence" before being submitted to the court in oral proceedings.
Testimony or statements recorded in the case file can, subject to certain conditions, be
admitted without the witness's appearance during the trial itself, or if they do appear, may
be simply asked whether they confirm the testimony they gave to the investigating judge.
See. p.337 for more.
The position of the accused
Trials "in absentia" are generally impermissible under the adversarial model which, after
all, depends on a contest between the prosecution and the defence. If the defendant is
absent, the trial cannot start, but it may continue if he absconds after the trial starts, or is
removed from the courtroom for disruptive behaviour. In either case, the defence would be
obliged to continue to represent the interests of the accused as effectively as possible. In
many civil law countries, trials in absentia are allowed. The inquisitorial system does not
accord an unequivocal right to remain silent during trial proceedings, and questions may
be posed to the accused intermittently by the trial judges. See p.337.
The role of the victims
In contrast to adversarial systems, as pointed out above, in the inquisitorial system victims
may in some cases institute proceedings or take part in the criminal proceedings initiated
by the prosecution, through the so-called "constitution de la partie civile" (application to
join criminal proceedings as a civil petitioner) aimed at claiming compensation. "Civil
petitioners" participate in the proceedings: they have access, through their lawyers, to the
case file during the investigation by the investigating judge and may call for certain
investigations; at trial, they can evidence, question witnesses, and set out their legal views
as to the guilt of the accused. Thus, in contrast with the adversarial system, criminal and
civil proceedings are not serperate but may be merged.
Appelate proceedings
In the adversarial system, the verdict of the jury at the trial level is final, unless it is
invalidated by serious mistakes made by the judge in his instructions to the jury. In
inquisitorial systems, appellate proceedings may entail a sort of retrial, in that the same
evidence may be scrutinized a second time and legal arguments reheard. In short, appellate
proceedings consist of a full rehearing of the case.
The adoption of the adversarial model at the international legal level (ICTY/ICTR)
See p.342-343. Although the adversarial system dominates, judges have some case
management powers at the ICTY and ICTR. They may summon witnesses and question
them, when it is really necessary. They may also limit the scope of the investigation. Rules
73 "bis" and 73 "ter" confer the Chamber broad powers to determine the number of
witnesses to be called by the parties; the time available for its presentation; and even to
"fix a number of crime sites or incidents comprised in one or more of the charges" which
"are reasonably representative of the crimes charged". The effect of these rules is to exert
considerable influence over the course of proceedings with a view to resolving the
problems that are presented by the use of a pure and undiluted form of adversarial process.
The result is a heavily managed adversarial proceeding.
At the ICC
See p.344. Similar to the ICTR and ICTY, except even less influenced by inquisitorial
tradition.
The ECCC and the STL
The criminal procedure of the ECCC and the STL accord a much greater, if not
predominant, influence to inquisitorial procedures. Expectations arising from domestic
legal systems undoubtedly played a substantial role in this choice. See p.344-345.
COURS 22: MOVIE ON GENOCIDE
Just watch the movie. It's great.
COURS 23: EXAM REVIEW
FORMAT:
3 hours
75% of our grade :
-
-
¼ = Short conceptual questions
o
Agreed or disagreed
o
But the point is how you reason and justify your argument
o
500 words roughly speaking
o
Be concise
o
Quality over quantity – how persuasive
o
Refer to the discussion, readings, … not so much about footnotes
o
Very obvious issues
¾ = fact patterns, problem solving.
o
Issues topics – not getting a right or wrong answers
o
Do the reasoning!
o
Facts – some are relevant, some are not. Think like a lawyer.
o
30 minutes could be allowed to read the facts, spot the issues, apply the law to the
facts, conclusion you arrive at.
o
Headings, organize things really well. Good structure. Good handwriting, if you write
by hand. Easy to understand! Organize, organize, organize.
o
Really about the ICC Statute – probably not about other instances. Relevant
analogies. Don’t make the mistake of ignoring other jurisdiction or links with other
instances.
o
Too much – turning a problem solving exercise to an essay. No!
o
No need to extensively footnoting. Only really relevant authorities.
o
Will provide the relevant provisions.
o
Answer the issue on both sides – both arguments.
-
** There will be an appendix with the necessary provisions (mais il vient juste d’accepter
et donc moi je printerais quand même les différents statuts)
-
No need to bring the Geneva conventions.
-
He will reproduce the provisions needed.
-
But still, be familiar with the various statutes.
-
If it was not in the readings or statutes, never necessary to quote.
SUBSTANTIVE QUESTIONS:
-
Wilfully in the ICC state: intention. But not necessarily dolus specialis. Not recklessness.
-
ICC Statute, due rest is included.
-
Functional immunities:
o
-
-
-
Does not apply to international crimes
Personal immunities:
o
ICC Statute: 2 or + States are parties, ICC requests the surrender, immunity would
not apply to the ICC, by ratifying you’re taking away sovereign immunity.
o
But if 3rd State, under article 98, the ICC state parties may have a legitimate reason
not to execute the arrest warrant.
o
States parties – territoriality vs nationality.
Crimes of aggression:
o
To any crime committed after the Rome Statute’s entry into force (2002), or to
ratification unless the State agrees to retroactively go back to 2002.
o
Even if the crime was defined subsequently.
Co-perpetration of the ICC is not identical to JCE ideas drawn from the ICTY
jurisprudence.