The Homogeneity of International Criminal Court with Islamic Jurisprudence

Shall I Surrender Thee to the International Criminal Court‘: The United States and Bilateral 'Non-Surrender' Agreements

Click to increase image sizeClick to decrease image size Acknowledgement The author would like to thank Hugh Dyer and David Galbreath for their helpful comments. Notes Sam Zia-Zarifi, ‘Who's Afraid of International Relations?’ Leiden Journal of International Law, Vol.13 (2000), pp.1015–24. Ibid. Tam Dalyell, ‘Blair, the War Criminal,’ The Guardian, 27 March 2003; see also Richard Tyler, ‘Greek Lawyers to Sue Blair for War Crimes’, World Socialist Web Site, 2 June 2003, found at www.wsws.org See Yoram Dinstein, ‘The Distinction between War Crimes and Crimes against Peace’, Israel Yearbook on Human Rights, Vol.24 (1995), pp.1–17. Of course, the unilateral resort to force does not necessarily qualify as aggression. A state may claim that a unilateral act is lawful under customary international law, for instance in the case of humanitarian intervention, or to uphold prior resolutions adopted under Chapter VII of the Charter. In adopting the latter argument the UK government followed a similar line of argument to that used to justify NATO action in Kosovo in March 1999. See Constantine Antonopoulos, ‘Whatever Happened to Crimes Against Peace?’ Journal of Conflict and Security Law,Vol.6 (2001), pp.33–62. ‘Treaty of Peace with Germany’, American Journal of International Law, Vol.13 (1919), p.250; see also ‘International Military Tribunal Judgement and Sentences’, American Journal of International Law, Vol.41 (1947), pp.172–332. See Broomhall, (under review) pp.46–7; Sadat (under review) pp.132–8. Sadat (under review), pp.132–3. G. Gaja, ‘The Long Journey towards Repressing Aggression’, in Cassese et al. (under review), p.428; see also A. Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court, in Cassese et al. (under review), p.10, fn.23. Dalyall, ‘Blair the War Criminal’ (note 3). Sadat, p.xiii. The ICC assumed non-retrospective jurisdiction over genocide, crimes against humanity and war crimes on 1 July 2002. This was following the 60th ratification of the Rome Treaty earlier that year. The Rome Statute reaffirms the illegality of aggression in principle but specifies in Article 5 that the Court may not exercise jurisdiction until the Assembly of State Parties is able to define it and not within seven years of the Statute entering into force. This political compromise allowed some commentators to claim that the Court exercises ‘dormant jurisdiction’ over the crime of aggression. Kirsch and Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), p.78. Marc Weller echoes Sadat in calling the Rome Conference ‘a constitutional moment’. He writes, for instance that the Conference ‘exercised the function of an international constitutional convention’. See ‘Undoing the global constitution: UN Security Council action on the International Criminal Court’, International Affairs Vol.78 (2002), pp.693–712. With the definition of a state's right of self-defence expanding following the use of force after September 11th it is likely that a consensus on aggression is even further away. On the right to self-defence see M. Byers, ‘Terror and the Future of International Law’ in K. Booth and T. Dunne (eds.), Worlds in Collision: Terror and the Future of Global Order (Basingstoke: Palgrave, 2002), pp.118–27. Sadat (under review), p.9. Sadat, (under review), pp.8–9. See also L.N. Sadat and S.R. Carden, ‘The New International Criminal Court: An Uneasy Revolution’, The Georgetown Law Journal, Vol.38 (2000), pp.381–474. K. Sengupta, ‘Guilty of War Crimes – or Victim of a Feud with US Soldiers?’ The Independent, 22 May 2003; Richard Norton-Taylor, ‘Soldier Arrested over Iraqi Torture Photos’ The Guardian, 31 May 2003. M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to extradite or prosecute in international law (Dordrecht: Martinus Nijhoff, 1995) Broomhall (under review), p.4. On this use of Grotian solidarism see F. Mégrét, ‘Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law’, European Journal of International Law, Vol.12 (2001), pp.247–68; see also Bassiouni and Wise (note 16), pp.22–42. Broomhall (under review), p.105. Ibid., p.59. Ibid., p.106. See also William Schabas, ‘National Courts Finally Begin to Prosecute Genocide, the “Crime of Crimes” ’, Journal of International Criminal Justice, Vol.1 (2003), pp.39–63. Broomhall (under review), p.109. Ibid., p.112. See also Holmes, ‘National Courts versus the ICC’ in Cassese et al. (under review), pp.667–8. Antonio Cassese, ‘From Nuremburg to Rome: International Military Tribunals to the International Criminal Court’, in Cassese et al. (under review), p.18. See Sadat, pp.21–46; Broomhall, pp.71–6. Cassese (note 24), p.15. Ibid., p.16. James Crawford, ‘The Work of the International Law Commission’ in Cassese et al. (under review), pp.23–34; see also Adriann Bos, ‘From the International Law Commission to the Rome Conference (1994–1998)’, In Cassese et al. (under review), pp.35–65. Sadat (under review), pp.11–12. See P. Kirsch QC and D. Robinson, ‘Reaching Agreement at the Rome Conference’, in Cassese et al. (under review), pp.67–91. Ibid., p.88. W.R. Pace and J. Schense, ‘The Role of Non-Governmental Organization’, in Cassese et al. (under review), pp.105–43. Ibid., p.137. Sadat (under review), p.5. Broomhall (under review), p.5. Mégrét (note 18), p.258. Sadat (under review), p.103. Mégrét (note 18), p.258. For a commentary on the origins of complimentarity and the relevant Articles of the Statute see John T. Holmes, ‘Complimentarity: National Courts versus the ICC’, in Cassese et al. (under review), pp.667–86. Rome Statute, Article 17, accessed at http://www.un.org/law/icc/statute/romefra.htm. J. Ralph, ‘Between Cosmopolitan and American Democracy: Understanding American Opposition to the International Criminal Court’, International Relations Vol.17 (2003), pp.195–212. The term ‘new sovereigntist’ is Peter J. Spiro's. See his ‘The New Sovereigntists: American Exceptionalism and Its False Prophets’, Foreign Affairs, Vol.79 (2000), pp.9–15. In May 2002 the Bush administration ‘unsigned’ the Rome Treaty. In a public statement explaining US policy, Under Secretary of State Marc Grossman stated that the US remained ‘committed to promoting the rule of law and helping to bring violators of humanitarian law to justice, wherever the violations may occur.’ Remarks to the Center for Strategic and International Studies (CSIS), Washington, DC, 6 May 2002, accessed at http://www.state.gov/p/9949.htm. The US government opposes the Rome Statute, however, because it has delegated jurisdiction to an unaccountable court. In other words the US does not necessarily oppose universal jurisdiction for core crimes, but it has insisted that such jurisdiction can only be enforced by national courts. This position can be found in D.J. Scheffer, ‘Staying the Course with the International Criminal Court’, Cornell International Law Journal, Vol.35 (2002), pp.47–100. See also R. Wedgewood, ‘The International Criminal Court: An American View’, European Journal of International Law, Vol.10 (1999), pp.93–107. The subject is addressed in the Cassese volume by Hans-Peter Kaul who was Deputy Head and Head of the German Delegation to the Rome Conference and Preparatory Committee respectively. He argues that ‘the idea of universal jurisdiction entitles states to do collectively what they have the power to do individually’. States ‘may confer this individual power on a judicial entity they have established and sustain together and which acts on their behalf.’ He argues that the principle of universal jurisdiction for the core crimes is well established in customary international law. ‘Consequently, States have a legitimate and acknowledged legal basis to use, if they so wish, the universality approach with regard to core crimes, either in their national criminal jurisdiction or when establishing together a new and complimentary international criminal justice system as during the UN negotiation for the ICC.’ Hans-Peter Kaul, ‘Preconditions to the Exercise of Jurisdiction’, in Cassese et al. (under review), p.591. America's pressure on Belgium to repeal legislation providing for universal jurisdiction suggests that the US statement supporting universal jurisdiction enforced at the level of the state is merely a rhetorical strategy to disguise a policy that puts American national interests ahead of the universal interest. See C.S. Smith, ‘Rumsfeld says Belgian law could prompt alliance to leave’, International Herald Tribune, 13 June 2003’, and ‘Belgians are incensed by American pressure on war crimes law’, International Herald Tribune, 14 June 2003. Broomhall (under review), p.93. See also Jan K. Kleffner, ‘The Impact of Complimentarity on National Implementation of Substantive International Criminal Law’, Journal of International Criminal Justice, Vol.1 (2003), pp.86–113. Darryl Robinson, ‘The Rome Statute and its Impact on National law’, in Cassese et al. (under review), pp.1849–50. Luis Moreno Ocampo, an Argentinian lawyer who helped bring the leaders of his country's former military dictatorship to justice was elected as Prosecutor in March 2003. For detailed commentary on these procedures see Olivier Fourmy, ‘Powers of the Pre-Trial Chambers’ in Cassese et al. (under review), pp.1207–30. P. Kirsch, QC and D. Robinson, ‘Initiation of Proceedings by the Prosecutor’, in Cassese et al. (under review), p.662. For similar arguments see Fernandez de Gurmandi, S.A., ‘The Role of the International Prosecutor’, in Roy Lee (ed.), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), pp.175–88. See Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). Grossman, ‘American Foreign Policy and the International Criminal Court’ (note 42). For this see Ralph, ‘Between American and Cosmopolitan Democracy’ (note 41). See also David P. Forsythe (2002) ‘The United States and International Criminal Justice’, Human Rights Quarterly, Vol.24, pp.974–91. Broomhall (under review), p.68. At the time of writing 90 of the 139 signatories had ratified the Rome Treaty. Sadat notes that opponents of the idea of an independent Prosecutor included not only the US, but also the Russian Federation, China, France, Israel, India, Malaysia, Egypt and Syria. The UK, she notes, was initially undecided. Its decision to join the Like-Minded Groups was a pivotal moment in the history of the negotiations. Sadat (under review), p.94. Rome Statute, Article 16 (note 40). D.J. Scheffer, ‘The United States and the International Criminal Court’, American Journal of International Law, Vol.93 (1999), p.18. Kaul (note 42), p.600. Rome Statute, Article 12 (note 40). Not only did the US vote against the Treaty at the Rome Conference, it has since pursued a strategy to exclude American citizens from the Court's jurisdiction. On the use of Article 16 to negotiate exemptions for UN personnel see C. Stahn, ‘The Ambiguities of Security Council Resolution 1422’, European Journal of International Law, Vol.14 (2003), pp.85–104; on the use of Article 98 to negotiate bilateral agreements promising US citizens immunity from ICC jurisdiction, see S. Zappalà, ‘The Reaction of the US to the Entry into Force of the ICC Statute: Comments on UN SC Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, Vol.1 (2003), pp.114–34. Kaul (note 42), p.607. Sadat (under review), p.118. Ibid., p.106; see also E. Wilmshurst, ‘Jurisdiction of the Court’, in Lee (note 48), pp.127–42. Sadat (under review), pp.120–21. Rome Statute, Article 72 (note 40). H.J. Behrens, ‘Protection of National Security Information in the ICC: A Guide to Article 72 of the Rome Statute’, in Roggemann and S˘arccˇevicˇ (under review) pp.116–17. Rome Statute Article 72 (note 40). W. Schabas, ‘National Security Interests and the Rights of the Accused’, in Roggemann and [Sbreve]arcčevič (under review), p.113. Rome Statute, Article 66 (note 40). Schabas (note 65), p.109.

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

This chapter considers the possible theoretical and legal bases of a victim-centered approach to international criminal justice, of the type seen in the International Criminal Court (ICC) Statute. After a brief consideration of the approach to victims taken by the ad hoc tribunals, it analyzes the relevant provisions of the ICC Statute. For states wherein serious violations of international humanitarian law and grave human rights violations have been committed and which are seeking to come to terms with and move beyond that legacy, criminal prosecution will be only one possible course of action. In the modern age, the predominant paradigm of criminal justice is a correctional or retributive model, with the primary goals being prosecution and punishment of violators of the law. The right of individuals to redress and compensation for serious human rights violations is well established in international human rights law.

In a context where supranational courts order reparations in environmental cases, this article examines whether the International Criminal Court (ICC) should pay attention to the Inter-American Court of Human Rights (IACtHR) reparations jurisprudence in environmental cases. The ICC has yet to engage with environmental cases and order ensuing reparations. However, the ICC Statute contains an environmental war crime, ‘ecocide’ may be incorporated into it, and some ICC cases/ICC complaints involved environmental damages. This article examines constraints of a potential extrapolation of IACtHR’s reparation jurisprudence to the ICC’s reparations system in environmental cases: differences between IACtHR’s and ICC’s mandates, particularly their reparations systems; and potential backlash from states/other actors vis-à-vis ‘green’ reparations jurisprudence. This article also provides justifications for ICC/IACtHR cross-fertilization: international human rights law is embedded in ICC’s reparations law and practice, and need for a coherent international law of reparations in environmental cases across supranational courts. Through adapted cross-fertilization, the ICC’s reparations system should consider IACtHR’s reparations practice concerning environmental cases.

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.

Nationalizing International Criminal Law: The International Criminal Court as a Roving Mixed Court

War crime, as an international criminal act, has many forms which has been criminalized by the international criminal court statute. Some instances of war crime that have been internationally criminalized concern to the use of some kind of weapons in an international conflict. This category is often called unusual weapons, in contrast to Conventional Weapons, which contains several different types of chemical weapons, biological weapons, nuclear weapons and instances of firing explosive shells, which inflict unnecessary pain and suffering. The use of any types of unconventional weapons by perpetrator, considered as intentional crimes in some international documents, including the statute of the International Criminal Court. In these intentional crimes, in addition to the will to commit the crimes, the perpetrator need to be aware of circumstances. Islamic jurisprudence has imposed some restrictions and bans on the use of warfare instruments. Illegitimacy of using some military equipment as a general rule applicable to several instances, is an elementary principle. Hence, Islamic teachings and religious orders can be resorted to ban the use of these types of weapons as may be cited in various international documents, which contain the rules and norms of humanitarian law. This descriptive–analytic study shows that the theoretical foundations of the Prevention and Punishment of the use of unconventional weapons, are supported by similar rules in both Islamic law and international criminal system. These rules are based on the logic of rational religious law and the interests of human society.

The editorial board of the Leiden Journal of International Law is pleased to announce a debate on a very important but underexposed topic in international criminal law: witness proofing. Witness proofing is an accepted and well-established practice at the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL). It entails setting up a meeting between a party to the proceedings and a witness, usually shortly before the witness is to testify in court, the purpose of which is to prepare and familiarize the witness with courtroom procedure and to review the witness's evidence. Recently a trial chamber of the International Criminal Court (ICC) prohibited witness proofing. On 30 November 2007, Trial Chamber I held in the Lubanga case that the possibility of witness proofing is not expressly provided for in the ICC Statute and its Rules of Procedure and Evidence, and that no general principle exists in national or international criminal law that would require the ICC to adhere to such a practice. Moreover, and this is the most interesting argument, the trial chamber held that the ICC Statute ‘moves away from the procedural regime of the ad hoc tribunals’ and that as a result witness proofing is not easily transferable to the ICC.

The 2016 Office of the Prosecutor of the International Criminal Court (ICC) policy paper on case selection and prioritization is a significant development in that it highlights the possible role of the ICC in prosecuting environmental damage, illegal natural resource exploitation and land grabbing. For obvious reasons, however, the ICC Office of the Prosecutor policy paper could not expand the court’s current jurisdiction over ecocide which is dependent on a formal amendment to the ICC Statute and the policy paper is only an internal policy document. But more fundamentally it has been predicted that the 2016 ICC Office of the Prosecutor may signify the revitalization of the debate on how an international crime of ecocide could be conceptualised under international law and ultimately whether the ICC should have a broader jurisdiction over ecocide. This article aims to critically evaluate how a crime of ecocide could be conceptualised under international law, as well as to assess the limitations of conceptualising ecocide based on the narrow definition of the existing crimes under the ICC Statute. Moreover, this article aims to critically evaluate developments in past three and half years following the adoption 2016 OTP Policy Paper, and notes that the practice of the OTP in dealing with recent national communications and the ICC case law itself to date have not signified a considerable shift in interpreting the law in cases involving environmental damage, illegal natural resources exploitation and land grabbing. Therefore, they have done little so far to clarify the scope of the court’s existing jurisdiction over “ecocide”.

The Khmer Rouge under their leader Saloth Sar (“Pol Pot”) were in power in Cambodia between April 1975 and January 1979.1 They came into control of the country after a long and brutal civil war2 an...

Background: 24 February 2022 shall be remembered as a day on which the international law principle prohibiting the use of force was breached once again. This incident could come under scrutiny from several different standpoints. The present study looks at this occurrence via the lens of international criminal law and the occurrence of the crime of aggression and its examination by the International Criminal Court (ICC). This study aims to analyse whether the inclusion of the crime of aggression in the ICC Statute was symbolic and practically useless or whether it could move the international community one step closer to the end of impunity. To this end, the incidence of aggression as defined by the ICC Statute will be determined after an assessment of the justifications offered by Russia. Despite the prohibition entailed in Art. 15 bis (5) of the Statute, which has led the doctrine to rule in favour of the Court’s lack of jurisdiction, a solution to this impasse must be sought. Methods: This paper uses doctrinal methods, and its dominant theoretical perspective is positivism. It relies on an accurate description and analysis of Russia’s invasion as aggression and the capacity of the court to deal with it. The authors has attempted to collect as much pertinent data as possible, analyse the same, and review the applicable and relevant legal instruments and literature. Other publications on this subject matter accepted the inability of the ICC to prosecute the Russian aggression. The novelty of this paper is its search for the few loopholes in the rules and judgments of the ICC to investigate this crime in Ukraine. As a result, recommendations are made to stop Russia’s wrongdoing while also offering suggestions and answers. This would ultimately result in the protection of international law and the preservation of Ukrainian territory. Conclusions and Recommendations: The Russian claims, namely, anticipatory and collective self-defence, humanitarian intervention, and intervention by invitation, cannot face the crucible of international law norms, and, as such, the attack is a flagrant violation of the UN Charter. Thereafter, the exercise of jurisdiction seemed challenging, bearing in mind that Russia and Ukraine are not members of the IC, that the situation was not referred to the Security Council, and that the declaration issued by Ukraine accepting the Court’s jurisdiction entailed a number of limitations (being restricted to crimes against humanity and war crime). Nonetheless, a case could be made that the Court has some capacity to engage with the question of an act of aggression based on a study of the Court’s jurisprudence regarding such declarations and the Trial Chamber’s interpretation of the phrase ‘occurrence of crime in the territory of the State Party’, affirming a positive interpretation of Art. 15 bis (5) and confirming the possibility for the presence of Ukrainian secessionists in the decision to attack. According to the authors, the following recommendations merit attention: 1) the necessity of a teleological interpretation of the Statute’s articles by the Prosecutor and the Member States Assembly’s solemn efforts to amend and deal with jurisdictional burdens in the Court’s competence to entertain the crime of aggression; 2) reviewing the possibility of establishing an ad hoc or hybrid tribunal via an agreement between Ukraine and the UN; 3) consistent state practice in not recognising the auto-proclaimed governments at Donetsk and Luhansk; 4) establishing Russia’s civil liability and the payment of proper compensation by the same.

The Statute of the first permanent International Criminal Court (ICC) was adopted in 1998 at the Rome Conference, paving the way for the future of modern international criminal law. Only one year later, a German-Austrian professor of law from the University of Salzburg with a long-standing passion for international criminal law and justice, Otto Triffterer, published the first edition of his seminal book on the legal framework of the newly established Court, entitled Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article. Almost ten years later, in 2008, the second edition of the so-called ‘Triffterer’ was released, followed by the third edition in November 2015. This edition was edited by another well-known expert in international criminal law, Kai Ambos, and dedicated to its founder, as Triffterer died on 1 June 2015, only a few months before the third edition of his Commentary was published.1 In the past two decades, since the adoption of the ICC Statute, international criminal law has experienced a quite unexpected renaissance, not only in the courtrooms of the ICC, the two ad hoc tribunals of the United Nations, the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), and other international and/or mixed courts, but also — due to the principle of complementarity laid down in Article 17 of the ICC Statute — on the domestic level, where, like in Germany, legal provisions pertaining to the core international crimes were adopted or amended in accordance with the ICC Statute.

THE POWER OF THE UNITED NATIONS SECURITY COUNCIL TO REFER COUNTRY situations to the International Criminal Court (ICC) has been hailed, particularly among international human rights activists, as a chance to expand the reach of international criminal justice by offering the opportunity to hold accountable perpetrators of atrocities who might otherwise be exempt from prosecution and punishment. The historic referral of the situation in Darfur in March 2003 was widely welcomed as an important step in the fight against impunity as was the Security Council's later, and more controversial, referral of Libya in February 2011. In principle the expansion of the reach of accountability is something to be welcomed, but it is important to recognize the costs of this expansion as well as the danger that they may outweigh the intended benefits. When the ICC was established in 1998, it was heralded as a significant step forward for international justice, a permanent court that would aid in the fight against impunity for genocide, crimes against humanity, war crimes, and eventually aggression, and that would expand the reach of international justice beyond the hybrid and ad hoc mechanisms that had been established in the preceding years. To date, 122 states have become parties to the Rome Statute, accepting the ICC's jurisdiction over humanity's worst crimes, albeit in a form that is complementary or secondary to the jurisdiction of national courts. The Rome Statute includes a number of provisions that are particularly celebrated in the human rights community, not least Article 13(b) that grants the Security Council the power to refer country situations to the court, thereby placing even nonsignatory states under the court's jurisdiction in cases where the Council, acting under Chapter VII of the UN Charter, finds a threat to international peace and security. This, in a sense, simply confirms the powers previously exercised by the Council when it created the ad hoc tribunals for the former Yugoslavia and for Rwanda, among others. But referrals to the ICC engage a whole new set of issues. Along with the referral power, the Security Council was also granted powers to defer an ICC investigation or prosecution for a renewable period of twelve months under Article 16. Unsurprisingly, this provision has been far more contentious among those seeking to advance the legal protection of human rights, and international criminal justice as a whole, with many viewing it as providing an unwelcome opportunity for political interference in a judicial body as well as reducing the scope for accountability. So far, the Security Council has referred only two cases to the ICC--those of Darfur in 2005 and Libya in 2011--and has not yet exercised its Article 16 deferral powers to stay an active investigation or prosecution. In the cases of both Sudan and Libya, the Council's decision to act in the face of evidence of significant and widespread human rights violations was, particularly in the West, largely applauded by those who have actively supported the development of human rights and international criminal tribunals. Both cases demonstrate the primary benefit of Council referrals, which is that they expand the reach of accountability to cases where the ICC would normally not have access--cases where the suspects are either not nationals of a country that has ratified the Rome Statute, or where the crimes under scrutiny were not committed on the territory of a ratifying party. Yet for all the good that Security Council referrals do in expanding accountability and combating impunity, there is a danger they could, and already do, undermine the wider aims of international criminal justice. Such referrals not only could erode the legal principles at the heart of this project, not least the fundamental tenets of the rule of law, but also on a more practical level could provoke a backlash against the ICC over the perceived use of international justice as a bargaining chip or tool to gain political powers. …

With the establishment of the International Criminal Court (ICC) the first comprehensive codification of international criminal law (ICL) was achieved. The strong support of the ICC by civil society, academic institutions and more than hundred states has quickly turned the ICC Statute and its complimentary norms into the fundamental reference points of modern ICL. As to ‘defenses’, however, the Statute is silent; it does not even mention this term. The drafters consciously avoided certain ‘catch words’ too closely associated with either the common law or civil law system. They wanted to make sure the Statute would be truly universal and would not be interpreted by way of a recourse to a specific national system. Article 31 of the ICC Statute contains explicit rules regarding ‘grounds for excluding criminal responsibility’ distinguishing between mental disease or defect, intoxication, self-defense, and duress/necessity. This list is not exhaustive. Pursuant to article 31 (2), the Court may consider others grounds for excluding individual criminal responsibility. These are first and foremost other defenses provided for in the Statute such as mistake of fact and mistake of law (article 32) and superior orders (article 33). In addition, other grounds may arise from any source of law as referred to in Article 21 ICC Statute, especially from customary international law or general principles of law. In this regard, the classical humanitarian law defenses of military necessity and reprisal are or particular importance (see the discussion of Other Defenses, infra.) The case law, especially from the UN ad-hoc tribunals for the former Yugoslavia and Rwanda, may serve as an important source aiding in the interpretation and application of these defenses. Apart from these substantive defenses relating to the conduct in question, the ICC Statute also provides for procedural defenses addressed to the jurisdiction and the right of a court to try an accused. The latter include for example the exclusion of jurisdiction over persons under eighteen years (Art. 26), immunities (Art. 27) as well as amnesties and the statute of limitations not regulated in the Statute. These procedural defenses are beyond the scope of this paper but are partly treated in other chapters of this handbook. The following analysis will follow the structure of articles 31–33 and complement these with some considerations on other defenses.