Fact-Finding, Procedure, and Evidence at the International Criminal Court Concerning Environmental Harm

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

On 16 March 2016, the Prosecutor of the International Criminal Court (ICC) rejected on jurisdictional grounds a victims’ request to investigate a case of environmental destruction by Chevron in Ecuador. A little over a year later, on 15 September 2016, the Prosecutor released a policy paper indicating that her office would consider hearing cases of environmental destruction. This article examines how the ICC can prosecute environmental destruction as a crime against humanity under Article 7 of the Rome Statute. It presents a survey of the potential jurisdictional and substantive issues of prosecuting environmental issues and uses the victims’ request asking the Prosecutor to investigate environmental destruction by Chevron in the Ecuadorian Amazon as a backdrop. The article proceeds in three parts. Firstly, it discusses the request by the victims in Ecuador asking for the Prosecutor to investigate. Secondly, it sets out the basic jurisdictional framework of the ICC and analyzes why the Prosecutor rejected the victims’ request. Thirdly, it examines Article 7 and concludes that while peacetime environmental destruction committed by a non-state actor that results in a humanitarian atrocity can qualify as a crime against humanity, the factual circumstances alleged in the Ecuadorian victims’ request did not amount to a crime against humanity under the Rome Statute.

Human Trafficking and Its Prosecution: Challenges of the ICC

Environmental destruction and exploitation of natural resources are some of the main causes of humanitarian conflicts, which are often international in scale. One instance was the crime of genocide conducted by Al-Bashir, which was triggered by exploitation of natural resources (resource war), causing pollution of vital water sources, and ending with conflict in Darfur, Sudan. This case is evidence that environmental destruction can be a driving factor for crimes against humanity. In response to this, the International Criminal Court (ICC) issued a Policy Paper, which sets out considerations to prosecute cases of environmental destruction and illegal exploitation of natural resources, which is referred to by some as ecocide. With growing demand of the international community, not only natural persons, but corporations are urged to be prosecuted before the ICC for ecocide. This research is normative legal research. It is intended to outline the current rise of demand for the ICC to prosecute cases of ecocide, whilst challenging the existing jurisdiction of the ICC based on the Rome Statute. This paper will discuss whether the ICC have jurisdiction to adjudicate ecocide, expanding the Court’s jurisdiction to prosecute corporations, and crimes conducted in and/or by citizens of States that are not members of the Rome Statute, such as Indonesia. This paper concludes with constructive recommendations for businesses to start re-evaluating their business plans to put environment and human rights awareness into priority concern.

This chapter considers the accuracy of interpretations and, to some extent, translations in international and hybrid criminal courts settings and looks at the effects of both linguistic and paralinguistic (nonverbal) misinterpretations on the effectiveness of the international criminal process and, in particular, the effects these can have on the quality of trials, procedural fairness, and ultimately defense rights. Specifically, the rights to seek and expect from international criminal courts and tribunals competent and effective language services, as well as the corresponding right to review translated transcripts and relevant documents, are considered here. As this chapter tries to demonstrate, the protection and further development of these specific rights are essential to the requirements of procedural fairness alongside the rights to equality before the law, equality of arms, and the right to a fair trial. Although statutes and rules of international courts and tribunals assert that equal treatment before the law, as recognized in international human rights law, requires that there be no significant disparity in trial and punishment regimes in individual cases, there remain considerable outcome problems in these complex multilingual and multicultural settings. Right to equality before the law and the right to a fair trial are examined here with a particular reference to the International Covenant on Civil and Political Rights 1996 (ICCPR) Article 14. Case law reveals in fact that equal and equitable protection of fundamental procedural pretrial and trial rights remains inconsistent and that the determination of the nature of ICCPR provisions is contradictory. Given the complexity of most international criminal trials, some practical interpretation and translations problems may be readily recognized and anticipated. Nevertheless, the responsibility to fully explore reasons and conditions that lead to potentially procedurally and ethically unjust trial outcomes rests on the judiciary. The responsibility to provide effective remedies in individual cases rests on them too. Importantly, these courts and tribunals are based and legitimized on the basis of their legal foundations and principles deriving from the rule of law, such as independence, transparency, and accountability. In turn, the rule of law increasingly requires that international justice is administered by applying norms that promote and protect elevated, and not just minimum, human rights standards and fundamental values of equality, fairness, and justice. By analyzing statutes and rules of procedure and evidence of international courts and their proceedings as well as studying court transcripts and simultaneous translations in different international criminal law jurisdictions (mainly the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court), the chapter examines whether the review of court transcripts in the second (translated) language could amount to a procedural right in international criminal law.

The International Criminal Court (the ICC) is an independent institution and the world's first international permanent criminal court. The ICC was created via a multi-lateral treaty; the Rome Statute adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 17 July, 1998 in Rome (see Appendix F.1 for the text of the Rome Statute). This is unlike the situation with the other international criminal courts so far discussed; the ICTR, ICTY and SCSL. The latter courts have a mandate which ends after a defined period of time. The ICTR, ICTY and SCSL were set up by the United Nations Security Council in response to the need to respond to specific situations that occurred in these jurisdictions and avoid the perpetrators of international crimes involved in those particular situations escaping justice. The Assembly of States (comprised of the State Parties to the Rome Statute) is the body that has oversight over the ICC and is responsible for any legislative decisions affecting the legal instruments guiding the operation of ICC. The States Parties to the Rome Statute have a legal obligation under that treaty to cooperate with the International Criminal Court. As of 14 November, 2008, there were 108 States Parties (States which had ratified the Rome Statute), but these did not include a number of major powers such as the United States, Russia, and China. There is also an agreement between the United Nations and the ICC which sets out institutional co-operative relations that allows, for instance, for exchange of information, etc. (i.e., the United Nations may have confidential documents relevant to a case being prosecuted by the ICC which it will share with the ICC subject to certain confidentiality provisions. This in order that the Prosecutor may use the information provided by the United Nations to develop further evidence). However, the ICC is not part of the United Nations but rather a completely independent institution. The ICC makes an annual report to the United Nations on its activities. However, the ICC remains a fully independent institution.

After prefatory terminological and conceptual clarifications, the chapter examines the basis for, and the international legal significance of, the formal juridical distinction between international and municipal (or ‘national’ or ‘domestic’) criminal courts, as well as the differences among international criminal courts when it comes to the legal underpinnings of their establishment and empowerment. It highlights how, for the purposes of international law, relatively little turns on the technical distinction between an international and a municipal criminal court and how of far greater international legal significance are the differing legal bases on which international criminal courts can be established and empowered. The chapter also suggests that what is more important in practical terms than the distinction between an international and a municipal criminal court are the differences as to jurisdiction ratione materiae, applicable law, rules of procedure and evidence, composition of the bench and its method of appointment, and so on, among international criminal courts and municipal criminal courts respectively.

Although victims have the right to limited participation in trials and to seek reparations after sentencing, the legal structure of the International Criminal Court (ICC) prioritizes retributive justice over restorative justice and punishment over reparations. Thus, currently, although the perpetrators can be tried through the ICC, it is still difficult to obtain reasonable compensation for the damages suffered by the victims. On the one hand, the ICC’s reparation system may be restricted by the identity of the victim, ICC internal factors, and so on. The current structure of the ICC compensation system allows for hierarchical relationships between victims, while at the same time, there is tension between individual and collective types of compensation. These factors have led to a disconnect and gap between the protection of rights at the theoretical level and actual reparation. This dichotomy between the theoretical protection of the rights of victims and the real protection of victims in practice exists in the ICC. Victims are isolated from the field of vision due to potential repercussions. The idealistic illusion of justice is completed when the ICC stands on the stage and accepts the audience’s praise. However, for compensation in criminal courts, people are paying increasing attention to the legal process and content. In practice, the proportion of victims of international crimes is not low, and in some cases, victims are widespread. It can be seen that criminal compensation for victims is an issue that spans a vast range of people and regions. Nonetheless, there are still research gaps regarding reparation and other ideas of justice according to the ICC, how the ICC provides multifaceted safeguards for victims, and the limitations and influence of the mechanism of the ICC on the compensation of victims. Considering the above problems, this paper aims to analyze the International Criminal Court indemnity cases. This paper wishes to analyze reparations and other ideas of justice under the ICC, examining the approach of the ICC toward compensation for victims, where the ICC is heading regarding reparations for victims, how the reparations system works, and the advantages and disadvantages of the reparations system, as well as what are the potential problems of ICC related to reparations. What guarantees do the ICC’s mechanisms provide for victims to be able to receive reparations? How does the structure of the ICC reparations system conflict with victims’ reparations in practical terms? What are the potential obstacles and gaps between criminal trial reparations and victims? The first chapter wants to analyze the early Nuremberg tribunal, Tokyo tribunal, ICTY, and the ICTR by analyzing whether international criminal justice under these military tribunals was restorative justice or reparation justice and interspersed with analyses of reparation to victims under these tribunals. Then, it analyses it further about justice and reparation of the ICC, and it talks about the compensation for the victim and how the idea of compensation under the ICC has evolved. Using these arguments to analyze reparation and other different ideas of justice under the paly of ICC. The second chapter of the article analyzes the “participatate in trial for compensation”, “The limits of participating in trial”, “Safety protection for victims” to demonstrate the current protection and progress of the ICC system on the issue of victims’ compensation, this is because victims’ participation in the trial will bring a lot of help to the issue of compensation. The article analyses the significance and shortcomings of participation in a trial for compensation, which is necessary and meaningful to the issue of compensation because “participation in trial” and compensation are related and complementary to each other, as participation of the victims will bring a lot of help to the issue of compensation. The article analyses the section “Protection of the financial situation of victims: A possible alternative methods of reparation” because, to some extent, it can be seen as an alternative method of ICC compensation. The third chapter of the article hopes that by analyzing “Little compensation”, “The silence court put on victims’ rights of compensation”, “The ICC’s model of judicial administration remains optional” to argue and analyze how the structure of the ICC reparations system conflict with victim reparations in practical terms. Because the silence the court put on victims’ rights of compensation and the ICC’s model of judicial administration remains optional, both directly impact the issue of compensation. Chapter IV mainly aims to analyze some of the potential negative impacts of the ICC on victim reparations, specifically “The victim’s social death”, “Restrictions on “expression” between the victim and the court”, “Does the ICC hope to improve its attitude to victims?” to specifically analyze and argue these aspects of its potential negative impact on victim reparations. On this basis, this paper analyzes the gap between criminal trial reparations and victims to identify what negatives exist between the two.

The article aims to compare the role that the International Criminal Court, as opposed to local courts is able to play in providing restorative justice in post-conflict societies. The author examines in detail the experience of the Rwandese ‘Gacaca’ courts, in order to demonstrate that local courts achieve better results than international or Western-biased criminal courts. The article further raises many useful insights that can throw some light on some of the current problems in Africa. While this traditional mechanism of the local court system demonstrates the wisdom that has sustained the local court systems, the modern African leaders appear to rebel against their roots through dictatorial rule that sentences the greater percentage of the population to a miserable life in pursuance of justice. It is within this perspective that the author noted that local tribunals of suspects can easily speed the trials which would cost the government dearly if international criminal courts were used. However, reconciliation and forgiveness remain pertinent challenges of local courts system because of the tensions that are eminent between victims, offenders and the community due to poor mechanism for reintegration for those found guilty. Key words: Grand coalition, rigging, Gacaca, toxic leaders, impunity, genocide, restorative justice, local tribunal, International Criminal Court, perpetrators.

Between Rhetoric and Action: The Politics, Processes and Practice of the ICC's Work in the Democratic Republic of the Congo (DRC)

This Research Paper provides a complete analysis of International Criminal Court (ICC), U.S. Interference, Role of ICJ, Rome Statue, Treaty and Government and over all depth study over to the topic. The International Criminal Court (ICC) aims to promote not only justice, but also peace. It has been widely criticised for doing neither, yet it has to contend with some severe structural and political difficulties: it has limited resources, it faces institutional restrictions, it is manipulated by states, and it is criticised for an alleged selectivity in the way it dispenses justice. What are in effect the shortcomings of the ICC, and has it made positive contributions to justice and peace? And under which conditions can it provide international justice and peace? This Research Paper shows the limits and problems of the ICC but also its inherent potential. A number of factors hamper the ICC: it lacks legitimacy, and it can be constrained by power politics when it investigates a case and when an arrest warrant needs implementing. It is very selective in its cases, and this goes against the principle of universal justice on the ground. Furthermore it has only indicted Africans. It is also argued here that the contribution of the ICC to justice and peace depends on its institutional autonomy to indict potential criminals, on the support it receives from states parties to the ICC, on its own impartial work, and on the extent to which it is respected by people in the world. Four contributions are made here to the literature on the International Criminal Court, on justice and peace, and on theories of policy making. First, I point out the difficulties the ICC faces in seeking to provide not only justice but also peace. Second, I use studies of the ICC by lawyers and political scientists, by those interested in the current impact of the ICC on the ground, in countries where it already operates, and by those interested in its potential for wider independent action. Third, conditions under which the ICC could provide international justice and peace are proposed. Fourth, by identifying the limits within which the ICC operates and its potential, this article hopes to rectify the flawed perception of the ICC, which is considered by some a Western court manipulated by the USA and European states, and to open up a debate on the measures needed to enhance its legitimacy. This Research Paper is organised into three main sections. The first discusses the institutional limits within which the ICC currently works. The Court has to face a lack of support from all states in the world, and the absence of systematic cooperation by states parties to its Statute. It is an instrument for power politics, and manipulated by states parties and non-party states to the ICC Statute. Nonetheless, its legitimacy is growing, and the ICC is shown to be a political actor which can set its own agenda. The second section seeks to evaluate the action of the ICC on the ground. It analyses the impact of the ICC on local justice, its influence on peace negotiations, and the way it is perceived by perpetrators and victims of crimes. It shows that the ICC provides important symbolic justice and peace. Even if leaders with a history of violence have continued being violent, despite the threat of an ICC arrest warrant, the ICC could have a deterrent effect in the long term, as no state or militia leader wants to be arrested. Some indicted people have changed their attitude for fear of the ICC. Victims of crime seem to have diverging views on the utility of the ICC, but they generally welcome its work. The last and concluding section highlights the difficulties for the ICC to provide both international justice and peace, and suggests possible practical policies both it and the international community might implement to provide justice and durable peace for people. The main proposals are that: (a) The ICC has to be given the means to deliver justice without bias, that is, without control by states and with a focus on all individuals and parties responsible for crimes in a conflict (b) An emphasis needs to be laid on strengthening institutions providing local justice (c) Officials who work within states which have ratified the ICC treaty cannot rely solely on the ICC to provide justice: states themselves should also be focusing their policies on the promotion of long-term economic and social development for victims of conflict.

MADELINE MORRIS [*] I INTRODUCTION The Rome Treaty for an International Criminal Court (ICC) [1] provides for the establishment of an international court with jurisdiction over genocide, war crimes, and crimes against humanity. [2] Those crimes often are committed by or with the approval of governments. It is unlikely that a government sponsoring genocide, war crimes, or crimes against humanity would consent to the prosecution of its national for his or her participation. Therein lies the problem with an international criminal court that may exercise jurisdiction only if the defendant's state of nationality consents. The very states that are most likely to be implicated in serious international crimes are the least likely to grant jurisdiction over their nationals to an international court. The ICC Treaty avoids the dismal prospect of an international criminal court that cannot obtain jurisdiction over international criminals. The treaty provides that the ICC may exercise jurisdiction even over nationals of states that are not parties to the Treaty and have not otherwise consented to the court's jurisdiction. Article 12 provides that, in addition to jurisdiction based on Security Council action under Chapter VII of the United Nations Charter and jurisdiction based on consent by the defendant's state of nationality, the ICC will have jurisdiction to prosecute the national of any state when crimes within the court's subject-matter jurisdiction are committed on the territory of a state that is a party to the treaty or that consents to ICC jurisdiction for that case. That territorial basis would empower the court to exercise jurisdiction even in cases where the defendant's state of nationality is not a party to the treaty and does not consent to the exercise of jurisdiction. [3] The United States has objected to the ICC Treaty on the ground that, by purporting to confer upon the court jurisdiction over the nationals of non-consenting non-party states, the treaty would bind non-parties in contravention of the law of treaties. [4] This objection has given rise to a heated controversy that has focused on the particulars of the international law of treaties and of jurisdiction. On close inspection, however, we can detect a more basic issue struggling to make its way to the surface. The fundamental issue concerns the nature of the ICC as an international institution. The jurisdictional structure of the ICC is based on a view of the ICC as a criminal court, tout court. In this view, the job of the ICC is to adjudicate the guilt or innocence of individuals accused of recognized international crimes. With this model in mind, it makes sense to give the court meaningful powers of compulsory jurisdiction, lest perpetrators of serious international crimes should escape justice. From this perspective one might reason that, if the court's subject-matter jurisdiction is limited to established international crimes and the process of the court is fair, then no state-whether party or non-party-should have legitimate objections to the court's exercise of jurisdiction over its nationals. The deficiency of this approach is that it reflects only one of the two types of cases that the ICC will be called upon to decide. In addition to the cases that are concerned solely with individual culpability, there will be ICC cases that focus on the lawfulness of official acts of states. Even while individuals, and not states, will be named in ICC indictments, there will be cases in which those individuals are indicted for official acts taken pursuant to state policy and under state authority. These 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. One can readily imagine ICC cases in which the act forming the basis for the indictment was a military intervention, deployment of a particular weapon, recourse to a certain method of warfare, or other official conduct that the responsible s tate maintains was lawful. …

As the International Criminal Court (ICC) increasingly focuses on environmental harm, and with ecocide formally proposed for adoption into the Rome Statute, the normative adjustments needed to accommodate this ecocentric shift require urgent analysis. Other branches of international law, such as environmental, human rights, and humanitarian law, will be critical in environmental harm proceedings. However, the conceptual basis to incorporate extrinsic law at the ICC under Article 21 of the Rome Statute has not been adequately explored, jurisprudence on it is inconsistent, and its practical implementation remains ad hoc. In seeking to reconcile the Rome Statute with its broader legal context, a well-known doctrine for the incorporation of disparate bodies of law is that of systemic integration, which has been espoused by Martii Koskenniemi and the International Law Commission. Yet, a deeper analysis reveals that this hermeneutically-bound approach is overly restrictive for the ICC’s environmentally-oriented activities. In its place, the article proposes a new approach called ‘framework integration’. The article pre-emptively addresses potential challenges to this novel theory, including the risks of the Court acting ultra vires and perpetuating inconsistent legal standards. This normative examination provides insights for the ICC and for other institutions charged with redressing atrocity crimes, which is particularly apposite for existing offences harming the environment as well as the proposed crime of ecocide.

The recent proposal by the Independent Expert Panel of the Stop Ecocide initiative to include the crime of ecocide in the International Criminal Court's Rome Statute has raised expectations for preventing and remedying severe environmental harm through international prosecution. As alluring as this image is, we argue that ecocide prosecutions may be the most difficult, perhaps even impossible, in precisely the cases that the ICC would need to be concerned with; namely, the gravest global incidents of environmental harm, including those associated with planetary climate change. We explore a series of questions about the panel's formulation of ecocide that resonate with longer debates around criminalizing environmental harm but take on new dimensions amid the Anthropocene and after twenty years of ICC trials. Ecocide must contend with the hard lessons learned concerning the ICC's limitations in realizing justice in a fraught international political context and also with fundamental challenges to knowledge and legitimacy arising from the uncertainty and dynamic socioenvironmental context of the Anthropocene. The proposed amendment, if adopted, risks ineffective prosecutions or even perverse outcomes for the environment itself. This risk, however, may characterize any effort to prosecute ecocide internationally in the Anthropocene unless the terms of international criminal law are fundamentally rethought.

Those designing and implementing the statutes of the various modern international and internationalized criminal courts and tribunals have adopted the principle of legality as a core principle. The way in which this has been done has, however, varied among the courts. All of the international and internationalized criminal courts have accepted the rule of nullum crimen sine lege (nothing is a crime without [preexisting] law) in one way or another. The ad hoc UN Tribunals for the Former Yugoslavia and for Rwanda (ICTY and ICTR, respectively) and the Special Court for Sierra Leone (SCSL) have done so without a formal provision in their statutes. The Rome Statute of the International Criminal Court (ICC) has several provisions implementing the principle. Three of the internationalized courts (Kosovo, East Timor, and now Cambodia) adopted the principle by reference to major international documents on human rights, and the East Timor court incorporated it explicitly into the law. The Iraqi Special Tribunal incorporated the principle by reference to applicable Iraqi domestic law. The principle of nulla poena sine lege (no penalty may be imposed without [preexisting] law) has been slightly more problematic. Some theorists have stated that nulla poena does not truly apply to international criminal law.