ICC Statute Research Articles

Anglo-African Perspectives on Self-Defence

Forty-eight years ago, the London Conference on ‘The Future of Law in Africa’ agreed that there should be a general set of criminal laws to be universally applied to all African nations. Unfortunately, no progress whatsoever has been made towards achieving this long-term objective. Lately, a fresh impetus for doing so has come from another quarter, namely, the enactment of the Statute of the International Criminal Court in 2002 (hereinafter called the ‘ICC Statute’) which was the culmination of the Rome Conference convened to establish such a court. As a result of the ICC Statute, a permanent international criminal court composed of judges who are independent of their home states, was created for the first time in history, to try perpetrators of crimes against humanity, genocide, war crimes and aggression. The ICC Statute contains provisions spelling out some of the general principles of criminal responsibility. This development is of special significance to African nations because many of them have ratified the Statute. Moreover, at the time of writing, all the cases before the International Criminal Court (ICC) involve African nationals. Consequently, the ICC Statute is an important source of law which African lawmakers (both legislators and judges) should take cognisance of in evaluating the current state of their criminal laws. Among the general principles of criminal responsibility embodied in the ICC Statute is a provision rendering a person not criminally liable who had performed the incriminating conduct in defence of the person against an assailant, commonly described as ‘self-defence’. This includes acting in defence of oneself as well as of another person. Furthermore, the ICC provision includes the right of defence

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Given that the Rome Statute does not provide jurisdiction to try corporations for breaches of international criminal law, it has been suggested that national jurisdictions might be used to fill this impunity gap. The author presents several arguments. First, the international criminal law system, including the Rome Statute - and particularly the principles of universal jurisdiction and complementarity - provides the theoretical grounding for states to assert jurisdiction over international crimes wider than the International Criminal Court (ICC). Second, Canada, owing to interactions between its domestic legislation implementing the ICC Statute and existing national criminal law, is now able to prosecute corporations for breaches of international criminal law. Finally, this increased jurisdiction of Canadian courts is consistent with the current status of corporations under international criminal law. What is really interesting about Canada's approach, however, is not so much that it has created a new legal principle, but rather that it is one of the first countries to establish jurisdiction over international crimes committed by corporate entities which were previously committed with impunity.

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between two models: (i) the model of the ‘criminal law of the enemy’ inspired by the national criminal law and rendered topical again by the attacks of September 11; (ii) the model of the ‘criminal law of inhumanity’ symbolized by the paradigm of crimes against humanity. The latter model is better suited to take account of the qualitative dimension of massacres, i.e. the fact that they, besides being mass offences (quantitative criterion), also offend against humanity. To establish a ‘criminal law of inhumanity’ as a model with a universal, or universalizable, dimension, three conditions are necessary, which concern (i) the definition of the crimes, (ii) the assignment of responsibility and (iii) the nature of the punishment. As for the definition of the crime, one could implicitly deduce from the list of acts constituting crimes against humanity (Article 7 of the International Criminal Court Statute) that humanity so protected has two inseparable components: the individuality of each human being, not reducible to membership in a group, and the equal membership of each in the human community as a whole. With regard to the second condition, it is not sufficient to hold responsible the de jure or de facto leaders; intermediaries and perpetrators, at all levels of hierarchy, must also be held accountable. As for the third condition, it is not sufficient to content oneself with the watchword of the fight against impunity without bringing up the nature and functions of the punishment; hence the necessity not only to rethink the role ‘criminal’ law can play in a policy of punishment, but also to focus on prevention, reparation and reconciliation. Finally, the author suggests that the proposed model of a ‘criminal law of inhumanity’ must be built through the interplay between municipal law and international law. On the one hand, the wealth of national legal systems - also with regard to penalties and responsibility - should be better integrated into international criminal justice; on the other, national criminal systems should be better adapted to conditions of international law, through the introduction into domestic law of the definitions of the crimes and also the rules for assigning criminal responsibility.

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

On 17 July 1998 and after years of negotiation, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome conference) adopted the Statute of the International Criminal Court (ICC). Although some heralded the creation of the ICC as [one of the] major achievements in international law during the past century, that sentiment was and is certainly not universally shared. In particular the United States has strong reservations about the ICC. The last five years, it has taken what some have called unprecedented diplomatic, legislative, and executive measures designed to diminish the effectiveness of the Court. The most recent of these efforts is the conclusion of so called bilateral 'non-surrender' agreements, in which each state agrees that it will not surrender citizens of the other party to the ICC without the express consent of that other party. The United States argues that these agreements are specifically provided for by Article 98, paragraph 2 of the ICC Statute. The 'non-surrender' agreements are highly controversial and have stirred considerable debate in the international community as well as in the literature. In both cases, however, a piecemeal approach prevails and emotions rather than legal arguments seem to dominate the debate. This thesis aims to remedy these shortcomings by providing a comprehensive legal analysis of the 'non-surrender' agreements without taking a stance on their political or even moral 'appropriateness'. The main research question of this thesis is: are the 'non surrender' agreements as currently concluded by the United States compatible with international law (in particular the ICC Statute) and if not, what would be the consequences thereof‘ Part I of this thesis (Chapters 2-3) will provide the relevant factual introduction necessary to put the phenomena of the 'non-surrender' agreements into context. In particular, it will focus on the position of the United States towards the ICC prior, during and subsequent to the negotiations of the ICC Statute. Part II of this thesis (Chapters 4-6) will provide a legal analysis of the 'non-surrender' agreements and answer the main research question of this thesis. First, it will assess the validity of the 'non-surrender' agreements under international law. Chapter 4 of this thesis will argue that as international law currently stands, the 'non surrender' agreements are not invalid under international law. Having established the validity of the 'non surrender' agreements allows us to move on to perhaps the most important question: Does Article 98, paragraph 2 of the ICC Statute apply to the 'non-surrender' agreements‘ Chapter 5 - which forms the core of this thesis - will argue that the 'non-surrender' agreements are only partially covered by Article 98, paragraph 2 and thus not fully compatible with the ICC Statute. Having established that the 'non-surrender' agreements are neither invalid nor fully covered by Article 98, paragraph 2, we are left with a final question: What consequences does this have under international law‘ Chapter 6 will argue that as international law currently stands, a signatory or state party to the ICC Statute that enters into a 'non surrender' agreement does not breach any obligation under international law. A state party to the ICC Statute that is also a party to a 'non surrender' agreement cannot avoid a breach, however, if it is confronted with an incompatible request (i.e. a request prohibited by the 'non-surrender' agreement but not covered by Article 98, paragraph 2). In such a case it incurs state responsibility. The thesis concludes with a conclusion and summary of findings (Chapter 7).

The Homogeneity of International Criminal Court with Islamic Jurisprudence

AbstractWhen implemented, the systems of the International Criminal Court (ICC) and Islamic criminal jurisdiction have to ensure equality, justice and peace for humanity. Consequently, implementation of international or Islamic justice does not necessarily emphasise applying the power of law but rather, as well as possible, the power to achieve appropriate human rights principles, which can reach the heart of the international community as a whole. Giving priority to any concept of law, thus recognizing one concept over another, diminishes the value of international criminal justice and creates contradictions in the application of an impartial equal jurisdiction and basic philosophy of cultural attitudes. Therefore, when the ICC Statute was being drafted, there was a strong tendency to overlook the cultural context of law within the social structures of various nations. The chief purpose of this article is to look into the basic principles of the Statute and examine whether similar principles can also be found within Islamic criminal jurisprudence. The article indicates the ability of both systems to function together and increase the practical intensification of international criminal justice. The study also offers, in a homogenous manner, to expand the juridical relationship, seeking cooperation and accommodation between the two systems in order to modify, adapt, adjust or alter laws for the better understanding of justice and equality between nations around the world. Prevention of international crimes will not be achieved through Islamic or ICC jurisprudence, or through any other system of law, but solely by cultivating equal justice together with the spirit of love and mutual admiration. This is the only seed for the promulgation of the ethic of reciprocity or the celebration of the golden rule of humanity.

The Gravity Threshold under the ICC Statute: Gravity Back and Forth in Lubanga and Ntaganda

AbstractThe Prosecutor must exercise prosecutorial selection due to his limited capacity. Therefore, Article 53 provides a complicated corset that has to be applied in a consistent manner. One of the central themes is gravity, which has generated early case law in Lubanga and Ntaganda. In this article, the author argues that the notion of gravity entails two different layers: a legal gravity threshold and a relative (discretionary) gravity assessement, linked to Article 53(1)(b), 17(1)(d) and Article 53(1)(c) respectively. As will be shown below, neither the OTP nor the Chambers have developed a congruent gravity approach. Starting from the author's basic distinction between two gravity facets, the ICC's actors are now able to fill in the blanks: they must sort out legal and policy criteria and apply them accordingly under legal or relative gravity.

International Criminal Due Process in the Making: New Tendencies in the Law of Non-Disclosure in the Proceedings before the ICC

AbstractIn the everyday trial practice before the International Criminal Court, the issue of non-disclosure of evidence is highly technically regulated and creates problems due to the ambiguities of the provisions governing the process. This article will display the legal systematic of the applicable law to clarify established findings of the Court and discuss new tendencies. Discussed problems include, to what extent “potential Prosecution witnesses” and “innocent third parties” can be integrated into the dogmatic of the law of non-disclosure, and whether non-disclosure should be granted on grounds of Article 54(3)(f) of the ICC Statute.

Current Developments at the International Criminal Tribunals (2008)

In the decision on the confi rmation of charges in the Katanga and Ngudjolo Chui case Pre-Trial Chamber I of the ICC elaborated on the defi nition and the requisite elements of ‘the war crime of pillaging under Article 8(2)(b)(xvi) of the ICC Statute, 2 which is criminalized under the Rome Statute whether it is committed in international or internal armed confl ict. According to the Elements of Crimes, the war crime of pillaging requires proof of the following three elements: ‘(i) the perpetrator appropriated certain property; (ii) the perpe trator intended to deprive the owner of the property and to appropriate it for private or personal use; and (iii) the appropriation was without the consent of the owner’.

‘Witness Proofing’ before the International Criminal Court: A Reply to Karemaker, Taylor, and Pittman

AbstractThis paper was written at the request of the LJIL editorial board as a reply to the article by Karemaker, Taylor, and Pittman published in the previous issue. It is argued that their position starts from incorrect assumptions and that their overall assessment of proofing is flawed, especially with regard to the risks for fair trial. As to the law of the international tribunals it is acknowledged, however, that there is a structural and normative difference between the ICTY (as the most important ad hoc tribunal) and the ICC. While the former still follows, despite some normative changes, a predominantly adversarial procedure, the ICC Statute provides for a mixed adversarial–inquisitorial procedure. Such a procedural model is not compatible with the adversarial origins of witness proofing and it is therefore not surprising that the ICC Statute does not provide for this technique. As a consequence, at the ICC proofing is neither legally admissible nor necessary.

Keeping Indian Claims Commission Decisions in Their Place: Assessing the Preclusive Effect of ICC in Litigation over Off-Reservation Treaty Fishing Rights

The article addresses the tension between Indian law and the litigation finality doctrines of claim preclusion and issue preclusion. We argue that some litigants and courts have improperly resolved this tension, applying preclusion too freely and thus preventing Indian tribes from pursuing valid claims. Between 1946 and 1978, many Native American tribes submitted claims against the US government to the Indian Claims Commission, a special court created by Congress to allow the tribes to seek compensation for land takings, broken treaties, and other uncompensated wrongs. In spite of the Commission's resolution of hundreds of claims and congressional appropriation of millions of dollars to pay the ICC awards, tribal claims did not end when Congress terminated the ICC in 1978. Tribes continue to pursue claims against the federal government, states, and private parties. Often, the opposing parties meet tribal claims with a preclusion defense, arguing that if a tribe received an ICC award, further claims are precluded - either by the common law doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion), or by statutory preclusion in the terms of the ICC statute itself. These arguments cannot be resolved by a simple one bite of the apple analysis. A more nuanced approach is required that looks carefully at the limited scope and purpose of the ICC process. Using the example of tribes with off-reservation treaty fishing rights, this article demonstrates the proper use of preclusion in the context of Indian Claims Commission decisions and cautions against overly-broad analysis that elevates finality over legitimate, unfulfilled tribal claims.

Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests Under the ICC Statute

The parameters of legal structures within which perpetrators of most serious international crimes are surrendered to the ICC and the legal frameworks within which the rights of such individuals are best protected are not sufficiently precise in international law. By examining both international and some national jurisprudence with regard to mala captus bene detentus practice, the reach of the right to challenge the legality of one’s arrest is evaluated with a conclusion that there is no uniform state or international practice and that the ICC Statute does not resolve the status of the doctrine nor does it regulate the effects of abuse of process against accused persons.

On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at The Hague?

In his application for the issuance of an arrest warrant against the President of Sudan, Omar Hassan Ahmad Al Bashir, the Prosecutor of the International Criminal Court argued that Al Bashir did not physically or directly carry out genocide, crimes against humanity and war crimes but committed these crimes through members of the state apparatus, the army and the militia. It is the first time that a prosecutor before an international tribunal exclusively bases the charges on the concept of perpetration-by-means. This comment discusses the Prosecutor's application, explores the appearance of the theory of indirect perpetration in international law, and tracks down the roots of the theory of perpetration-by-means of a hierarchical organization in German criminal law. The authors find that charging Al Bashir as an indirect perpetrator appears to be an appropriate description of his involvement in the alleged crimes indeed, given the explicit inclusion of perpetration-by-means in Article 25(3)(a) ICC Statute and the interpretation of Article 25(3) by the Pre-Trial Chamber in Lubanga as well as, most recently, in Katanga and Chui. They further submit that the concept of indirect perpetration could possibly become a key mode of liability in international criminal law.

Obtaining Cooperation from Sudan -- Where is the Law?

While much indignation has been expressed in respect of Sudan's almost total lack of cooperation with the International Criminal Court (ICC) in the Darfur prosecution, a legal analysis has yet to be conducted. It is submitted that both the procedural and substantive aspects of the cooperation law pertaining to Sudan are problematic. The ICC Prosecutor has waited too long with the application for a judicial finding of non-compliance and has thereby unnecessarily jeopardized the enforcement process. Regarding the substantive cooperation law, to date, neither the Prosecutor nor any other ICC organ has shed light on three vital issues for the determination that Sudan has violated its cooperation duties. First, what is the applicable cooperation law? Second, does Security Council Resolution 1593 (2005) amount to an unacceptable discriminatory investigation and prosecution, invalidating the referral? Third, if one applies the ICC Statute to Sudan, how effective is this instrument in relation to an uncooperative state non-party?

Advancing International Criminal Law: The Special Court for Sierra Leone Recognizes Forced Marriage as a 'New' Crime against Humanity

The Appeals Chamber of the Special Court for Sierra Leone (SCSL) in Brima, Kamara and Kanu recognized that forced marriages may amount to crimes against humanity, falling under the sub-heading of ‘other inhumane acts’. This decision is to be welcomed because the practice of forced marriage is not adequately described by existing categories of sexual crimes. As forced conjugality results in particular psychological and moral suffering for the victims, it is argued that this heinous practice may be more appropriately pursued as a separate crime, under a definition that describes the entirety and complexity of the criminal conduct. The SCSL decision may also be important for its impact on the activities of the International Criminal Court (ICC). The widespread practice of forced marriage presently features in all the situations being investigated by the ICC and the inclusion in the ICC Statute of the offence of forced marriage as a separate crime against humanity could be discussed during the Review Conference in 2009.

The Proceedings against President Al Bashir and the Prospects of their Suspension under Article 16 ICC Statute

The announcement by the Prosecutor of his submission to the Judges of the International Criminal Court (ICC) of an application for the issuance of a warrant of arrest against the President of Sudan, Omar Hassan Ahmad Al Bashir, for genocide, crimes against humanity and war crimes, has triggered diverse reactions from states, international organizations and other international actors. The article discusses the possibility of a request by the United Nations (UN) Security Council that the prosecution against Al Bashir be deferred, in the light of the background, timing and context of the Prosecutor's application.

Witness Proofing in International Criminal Law: Introduction to a Debate

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.

Prosecutorial Discretion v. Judicial Activism at the International Criminal Court

The Prosecutor of the International Criminal Court has exercised broad prosecutorial discretion in the selection of situations and cases to be heard by the Court. It is difficult to explain the exercise of this discretion by reference to the criteria purportedly used by the Prosecutor of ‘gravity’ and ‘interests of justice’ under Articles 17 and 53 of the ICC Statute, respectively. Unlike the ad hoc international criminal tribunals, it appears more the norm that the Prosecutor of the International Criminal Court acts in accordance with the wishes of the State parties, and with respect to the availability of an individual to be prosecuted. For its part, the Court has encountered difficulties in reviewing the Prosecutor's exercise of discretion as it has been unable to effectively access the criteria of ‘gravity’ and ‘interests of justice’. In relation to the charges faced by an accused, the Court has been more active, and has even been willing to add the criterion of ‘inactive’ to Article 17 ICC Statute. The Court's impatience with the slow pace of prosecutions in Darfur has created tension with the Prosecutor.

Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges

In its Lubanga decision on Confirmation of Charges, the International Criminal Court (ICC) Pre-Trial Chamber (PTC) I addresses a number of important issues regarding the General Part of Criminal Law in the ICC Statute. As a matter of methodology, the PTC affirms (although without specific argument) that the Elements of Crimes can provide for lower standards for conviction than those suggested by the terms of the Statute itself. The PTC then rejects, on factual grounds, the argument made by the Defence that Lubanga was subject to a mistake of law. The focus of the Decision is the concept of co-perpetration (Article 25(3)(a) ICC Statute) and its objective and subjective requirements. At the outset, the PTC rejects the concept of joint criminal enterprise as falling within co-perpetration. The PTC demands, as an objective requirement, that each co-perpetrator has assumed an ‘essential’ part of the common plan and that he or she can consequently cause the plan to fail by withholding participation. The subjective requirement for co-perpetrator liability is defined as an awareness of a substantial risk that the objective offence elements will be brought about. It is however questionable whether the PTC in fact applied its enunciated standards correctly to the case at hand.

Testing Co-operation: The International Criminal Court and National Authorities

AbstractThe ICC Statute sets up a system for enforcement whereby the Court's decisions are to be effected by domestic authorities. The article explores the implications of this institutional design in terms of the legal tools at the Court's disposal and the extent to which the ICC can adjudicate issues related to state co-operation. At the same time, it examines the responsibilities assumed by all states parties under the Statute to secure compliance, including in situations where the requested national authorities are unwilling or unable to co-operate. It suggests that to be sucessful, the co-operation regime under the ICC Statute will require a dynamic set of interactions between the individual state and the collective.

Aspects of victim participation in the proceedings of the International Criminal Court

AbstractThe participation of victims in criminal proceedings is generally a rather new phenomenon. While there is a certain tradition of victim participation as “partie civile” in the criminal proceedings of some national jurisdictions, it is a novelty in international criminal trials. The drafters of the International Criminal Court (ICC) Statute chose to design a rather broad victim participation scheme. Although it is hailed as an important and effective instrument for giving victims of gross violations of human rights and international humanitarian law a voice, the procedural and substantive details are far from being settled. Some of the most significant issues are discussed in this article, including the question whether and how victim participation may influence sentencing and punishment.