ICC Statute Research Articles

Remarks on the General Part of International Criminal Law

After decades of little reflection on the General Part of International Criminal Law ('ICL'), the practice of the Ad Hoc Tribunals and Part III of the ICC Statute both offer a unique opportunity and create a necessity to give more thought to the rules of attribution for international crimes. Indeed, the aim of further research must be to develop a more refined system of attribution. This is especially important in ICL, since it is primarily concerned with high level perpetrators who rarely commit the crimes themselves but use mid- or low-level perpetrators to execute their criminal plans. While ICL 'in action' is recognized today as primarily criminal law, the rules of attribution are still underdeveloped. Some rules developed by the case law even violate, when applied in their extreme form, fundamental principles of criminal law. Identifying and applying these principles, specifically the principles of legality and culpability, will be the first step in constructing a more legitimate system of attribution.

Critical Thoughts on Article 59(2) of the ICC Statute

The International Criminal Court (ICC) has already issued its first arrest warrants. Hence, the question of the custodial state arresting a person in response to a request issued by the Court and his or her appearance before competent judicial authorities (per Article 59(2) ICCSt.), becomes compelling. Several pertinent questions arise in relation to the application of this provision. The article addresses, in particular, issues such as: (i) the rationale for Article 59; (ii) the implications of paragraph 2; (iii) the consequences of non compliance with this provision; (iv) the impact of human rights decisions on its application and (v) the question of self-referrals in relation to paragraph 2.

The Enforcement of Arrest Warrants by International Forces

The conflict in the former Yugoslavia set a precedent in modern history for having a multinational military force being empowered and directed to execute arrest warrants issued by an international criminal tribunal. On legal grounds, the International Criminal Tribunal for the former Yugoslavia (ICTY) attained this result by relying on the broad wording of its governing Statute coupled with the ICTY’s own rule-making powers. In contrast, the drafters of the International Criminal Court (ICC) Statute elaborated on the nature of the cooperation from international forces in significantly more details but at the same time opted for reducing the ICC’s powers vis-a' -vis these forces. Therefore, the ICC Statute now runs contrary to the ICTY’s case law recognizing a judicial power to order an international force to execute an ICTY arrest warrant. This deferential stance towards collective enterprises of states not only infringes upon the States Parties’ general obligation to cooperate with the ICC, but, in the end, weakens the ICC’s ability to enforce international criminal justice.

The First Decision of the ICC Pre-Trial Chamber

By its decision of 17 February 2005 to convene a status conference on the situation in Democratic Republic of Congo, the ICC Pre-Trial Chamber I broadened its role by referring to and interpreting the general provision contained in Article 57(3)(c) of the ICC Statute. It resorted to the status conference in order to exercise general control over the work of the Prosecutor that is not related to a specific occasion, with a view to obtaining information about the investigations seven months after their initiation. During this time, the Prosecutor had not let the Chamber know anything about his progress and results. Arguably, the main reason behind the Chamber`s decision was its intention to both speed up the investigations and to take care of the rights of the `prospective suspects` - a special aspect of the `interest of justice` - to whom the delay could, obviously, be prejudicial. Thus, the Chamber somewhat shifted the `equilibrium` between legal traditions reached in Rome, arguably taking on a role more closely resembling an investigating judge than provided for in the Statute and ICC Rules of Procedure and Evidence.

US Foreign Policy and the International Criminal Court: Towards a Third Way of Strategic Accommodation

The United States has argued that its military personnel can and should be exempt from ICC investigation and prosecution, and that the ICC Statute should be revised accordingly. Advocates of the ICC have condemned this position by claiming that it undermines the morale of the ICC and is based on false legal and political pretenses. This article proposes a third way of strategic accommodation involving amendments to the ICC Statute that will serve as structured incentives to the U.S. to (re) sign and ratify the ICC Treaty. Such an arrangement will avert the need for special measures that would violate the integrity of the ICC Statute and build consensus within the Assembly of States Parties.

The Interpretation of Article 21 (3) ICC Statute 1 Opinion Reviewed

The Interpretation of Article 21 (3) ICC Statute 1 Opinion Reviewed

Complementing Complementarity

AbstractNon-criminal sanctions have experienced an extensive proliferation in the aftermath of mass atrocities and regime changes over the last decades. Operating under a principle of complementarity the International Criminal Court (ICC) will inevitably have to deal with implications of their employment. But despite being the most broadly applied accountability mechanism non-criminal sanctions have been neglected almost entirely in the current debate surrounding the complementarity principle. The following article seeks to identify sustainable criteria to establish a viable basis for determinations of admissibility. Pertinent provisions of the ICC Statute, namely Articles 17, 20, 53, are, therefore, explored and operationalized as regards non-criminal sanctions. On that basis the article lays out a proposal to substantiate determinations of admissibility in such cases and introduces contextual proportionality as a concept to complement complementarity.

THE DARFUR REFERRAL OF THE SECURITY COUNCIL AND THE SCOPE OF THE JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT

On 31 March 2005, the UN Security Council (hereinafter, Council) passed resolution 1593 which referred the situation concerning the Darfur region in Sudan to the International Criminal Court (hereinafter, ICC). Darfur is the fourth situation to be referred to the ICC since the entry into force of its statute on 1 July 2002. States on whose territories situations have occurred made the first three referrals to the ICC under Article 13(a) of the ICC Statute. The fourth referral of the situation in Darfur is unique in so far as, for the first time in the ICC's short history, the Council, acting under Chapter VII of the UN Charter and Article 13(b) of the ICC Statute, referred a situation to the ICC.The following part two discusses five aspects of Council resolution 1593: the situation in Sudan (2.1), the negotiations leading to the adoption of resolution 1593 (2.2), the legal basis of the referral (2.3), the obligation to cooperate with the ICC (2.4), and the scope of the referral (2.5). Part three focuses on the jurisdiction of the ICC over African Union (hereinafter, AU) or UN peacekeepers of third states operating in Sudan. Part four discusses the evolving relationship between the Council and the ICC after the first referral by the Council.

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in international criminal law is a concept widely upheld by international case law. It has, however, been harshly attacked by commentators, particularly with regard to what has come to be known as the ‘third category’ of the notion, that of liability based on foreseeability and the voluntary taking of the risk that a crime outside the common plan or enterprise be perpetrated. This author considers that while most criticisms are off the mark, at least two are pertinent: (i) that the International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber in Tadic (1999) was wrong in indiscriminately using terminology typical of both the civil law and common law tradition, and (ii) that the foreseeability standard, being somewhat loose as a penal law category of culpability and causation, needs some qualification or precision. Generally speaking, the notion of JCE needs some tightening up. For instance, in Kvocka, an ICTY Trial Chamber rightly stressed that the contribution of a participant in a common criminal plan must be ‘substantial’ (the Appeals Chamber, however, disagreed to some extent in the same case). Furthermore, with specific regard to the third category of JCE, the author, after setting out the social and legal foundations of the foreseeability standard and the motivations behind its acceptance in international criminal law, suggests various ways of qualifying and straightening it out. One of them could lie in assigning to the ‘primary offender’ (i.e. the person who, in addition to committing the concerted crimes, also perpetrates a crime not part of the common plan or purpose) liability for all the crimes involved, while charging the ‘secondary offender’ with liability for a lesser crime, whenever this is legally possible. The author then suggests, contrary to a 2004 decision of the ICTY Appeals Chamber in Brđanin, that the third category of JCE may not be admissible when the crime other than that agreed upon requires special intent (this applies to genocide, persecution as a crime against humanity, and aggression). In such cases, the other participants in JCE could only be charged with aiding and abetting the crimes committed by the ‘primary offender’ if the requisite conditions for aiding and abetting do exist. The author then suggests that the view propounded in 2004 by an ICTY Trial Chamber in Brđanin is sound, namely that the general notion of JCE may not be resorted to when the physical perpetrators of the crimes charged were not part of the criminal plan or agreement, but rather committed the crimes unaware that a plan or agreement had been entered into by another group of persons. In conclusion, he contends that this qualified notion of JCE, in addition to being provided for in customary international law, does not appear to be inconsistent with a broad interpretation of the provision of the ICC Statute governing individual criminal responsibility, that is, Article 25, in particular 25(3)(d).

The ICC and Russian Constitutional Problems

The Statute of the International Criminal Court (the ICC Statute) has not yet been submitted to the Russian parliamentary chambers, the Duma, and the Council of the Federation. However, an Inter-Agency Panel led by the Ministry of Justice has been set up, with a view to drafting amendments to current Russian legislation and facilitating Russia`s cooperation with the ICC. Major problems standing in the way of Russia`s ratification include certain provisions of Russia`s Constitution, which, for instance, do not provide for an international court substituting national courts, and lay down the right to jury trial and the right to seek pardon. However, there are various ways of reconciling the Constitution with the ICC Statute. In short, there are no insurmountable legal hurdles to harmonizing the Russian Constitution and laws with the ICC Statute: the question of Russia`s ratification is mostly a question of political will.

India and the ICC

The Statute of the International Criminal Court (ICC Statute) would have been more acceptable to India if it had contained an opt-in provision whereby a state could accept the jurisdiction of the ICC by declaration (possibly for a specified period), and this might be limited to particular conduct or to conduct committed during a particular period of time. The lack of such a provision, and the inherent jurisdiction which replaced it, are perceived as representing a violation of the consent of states, and thus a threat to sovereignty. India’s resistance to accepting the inherent jurisdiction of the ICC is explained, in part, by anxieties about how investigation, prosecution and criminal proceedings in the Indian system may be judged by an international court. The inclusion of ‘armed conflict not of an international character’ in defining ‘war crimes’ in Article 8 ICCSt. constitutes another reason for India’s concern (that the conflicts that persist in Kashmir, the North-East and as was experienced in Punjab, as well as the violence of more recent vintage in Gujarat, could be referred to the ICC). Further elements giving rise to India’s misgivings are the fear that the Court might be used with political motives, the power conferred on the Prosecutor to initiate investigations proprio motu and the role allotted to the Security Council. 1. The Reasons for India’s Abstention on the Statute in Rome When the Statute for an International Criminal Court was voted on in Rome in July 1998, India abstained. There was a sense of disbelief among the Indian delegation as the overwhelming support for the Statute moved through improbability, and possibility, to fact. It continues to be difficult for the Indian establishment to reorient reality to account for an international community that willingly hands over a mandate for justicing to an institution * The author is an independent writer on issues of law; she may be contacted at uramanathan@

Reclaiming Fundamental Principles of Criminal Law in the Darfur Case

According to the authors, the Report of the UN Commission of Inquiry on Darfur and the Security Council referral of the situation in Darfur to the International Criminal Court (ICC) bring to light two serious deficiencies of the ICC Statute and, more generally, international criminal law: (i) the systematic ambiguity between collective responsibility (i.e. the responsibility of the whole state) and criminal liability of individuals, on which current international criminal law is grounded, and (ii) the failure of the ICC Statute fully to comply with the principle of legality. The first deficiency is illustrated by highlighting the notions of genocide and genocidal intent, as well as that of joint criminal enterprise. The second is exposed by drawing attention to the uncertainties and ambiguities surrounding such notions as recklessness and dolus eventualis, and in addition to the frequent reliance in both international case law and the legal literature on customary international law and loose concepts such as proportionality. The authors finally point out that if the ICC tries to operate as a real criminal court under the rule of law and shows sensitivity to the rights and interests of the accused, US fears of politicized prosecution will diminish. * Cardozo Professor of Jurisprudence, Columbia University Law School; member of the Journal ’s Board of Editors; fletch@law.columbia.edu. ** Ph.D., Columbia University; J.D., Columbia University Law School; jdo18@columbia.edu. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Journal of International Criminal Justice 3 (2005),539^561 doi:10.1093/jicj/mqi049 Oxford University Press, 2005, All rights reserved. For permissions please email journals.permissions@oupjournals.org

China's Attitude Towards the ICC

Unlike the USA, China has few overseas military commitments, and therefore is not concerned that its troops may one day come under International Criminal Court (ICC) jurisdiction. Moreover, China is not in a position to pressurize other countries to sign bilateral agreements as the USA has done. Whether or not China eventually accedes to the Rome Statute, it cannot avoid the jurisdiction of the ICC in other parts of the world. There are five main reasons for China`s opposition to the ICC. First, its jurisdiction is not based on the principle of voluntary acceptance; furthermore, complementarity gives the ICC the power to judge whether a state is able or willing to conduct proper trials of its own nationals. Secondly, also war crimes in internal armed conflicts fall under the jurisdiction of the ICC. Thirdly, crimes against humanity are prohibited in time of peace as well. Fourthly, the inclusion of the crime of aggression within the jurisdiction of the ICC weakens the power of the UN Security Council. Fifthly, the proprio motu power of the Prosecutor may make the ICC open to political influence. The authors try to show how all these objections can be legally met and set forth a series of considerations that would make China`s participation in the Court a welcome development in China`s national and international interests. They finally argue that the Chinese government should take an open attitude, taking into consideration the Court`s actual performance, and should not, therefore, exclude the possibility of acceding at an appropriate time to the ICC Statute.

Truth Commission Amnesties and the International Criminal Court

Truth commissions and the new International Criminal Court (ICC) appear to be very different mechanisms for dealing with human rights abuses: the primary purpose of a truth commission is to compile an accurate record of what happened, whereas the ICC is designed to punish individual perpetrators. This article considers how these two institutions will interact, and, more specifically, how the ICC Prosecutor will deal with perpetrators who have been granted amnesties by a truth commission in return for divulging their crimes. The ICC Statute, which contains the powers of the Court and the Prosecutor, fails to provide the ICC Prosecutor with any clear guidance on this question. On one interpretation it supports a prosecutorial policy that completely ignores amnesties, but on another, it supports the Prosecutor who decides to work cooperatively with those truth commissions that are able to demonstrate their legitimacy. Under a cooperative approach the Prosecutor would delay bringing any prosecutions until a truth commission has completed its work and then prosecute individuals from the pool who had not been granted amnesties. Such an approach could bolster the legitimacy of the ICC, by providing a principled basis for the exercise of prosecutorial discretion, and assist truth commissions, by encouraging more perpetrators of serious crimes to apply for amnesties, and, in the process, divulge their secrets.

'Unless Otherwise Provided':: Article 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law

For the first time in international criminal law, Article 30 of the International Criminal Court (ICC) Statute (ICCSt.) codifies a mental element as a general requirement for individual criminal responsibility. Moreover, Article 30 seeks to set a uniform standard - intent and knowledge - for the mental element, applicable to all crimes under international criminal law. The authors show that Article 30 establishes subjective conditions of liability which depart significantly from the ones that can be found in other provisions of the ICC Statute, the Elements of Crimes and customary international law. The authors argue that the `unless otherwise provided` clause included in Article 30(1) ICCSt. plays a vital role for a consistent and coherent application of international criminal law. They conclude that Article 30 ICCSt. should be interpreted as a default rule that is applied only in the few cases where there are no specific rules on the mental element in either the other provisions of the ICC Statute, the Elements of Crimes or in customary international law.

Arab States and the Role of Islam in the International Criminal Court

This article assesses the various disagreements between Arab and western states that surfaced at the 1998 Rome Conference and Preparatory Commission. It also discusses the relationship between state repression and cultural adaptation by examining the undeveloped domestic criminal systems of Arab states and the ambiguous role played by shariah (Islamic law) in the constitutions of many of them. It argues two main points: that more mutual accommodation will be needed to resolve these and future conflicts between Islamic and international law; and that such conflicts between the ICC and Arab states expose the need for further cultural adaptation to the ICC Statute. It is out of this process of cultural adaptation that the relationship between Islam and serious international crimes will evolve.

The Triggering Procedure of the International Criminal Court, Procedural Treatment of the Principle of Complementarity, and the Role of Office of the Prosecutor

AbstractThis article addresses the most fundamental procedural issues arising from Arts. 13, 14, 15, 18 and 53(1), (2) and (4) of the ICC Statute (hereinafter “the Rome Statute” or “RS”). It first analyses the reasons why the proceedings provided for in those articles constitute, referred to in this article as “Triggering Procedure”, within the complex procedural system provided for in the ICC Statute, an autonomous procedure whose object, parties and proceedings are perfectly distinguishable from the object, parties and proceedings of the Criminal and Civil Procedures. Once the relationship between the Triggering Procedure and the Criminal and Civil Procedures is introduced, the article analyses the procedural treatment of the principle of complementarity in the different procedures provided for in the ICC Statute. Finally, the last part of the article brie fly addresses the key role of the Of fice of the Prosecutor in the Triggering Procedure, and the duties imposed upon the competent Chamber of the Court to control, propio motu or at the request of a party to the proceedings, that the Of fice of the Prosecutor is acting within the powers granted to it by the RS and fully respecting the substantive and procedural standards set out by the RS.

The Security Council, the International Criminal Court, and the Crime of Aggression: How Exclusive Is the Security Council's Power to Determine Aggression?

One of the most contentious issues surrounding the new International Criminal Court (ICC) is what role the Security Council should play in prosecuting the crime of aggression. In the negotiations that led to the adoption of the Rome Statute of the International Criminal Court, the participants could not agree on the Security Council’s role, and they also could not agree on how to define the crime of aggression. Accordingly, these issues were postponed. Article 5(2) of the ICC Statute states that the ICC “shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Such an amendment, Article 5(2) directs, “shall be consistent with the relevant provisions of the Charter of the United Nations.” Some contend that under the U.N. Charter, the Security Council must determine the existence of an act of aggression as a precondition to any prosecution for the crime of aggression. They point to Article 39 of the U.N. Charter, which states: “The Security Council shall determine the existence of

International criminal judiciary as a means to keep and protect peace and international security

After a long historical development, the second half of the 20th century has inaugurated the new, latest branch of the punitive law - international criminal law. By its legal nature and characteristics it is somewhere between the national criminal law and international public law, maintaining its peculiarity and independence. The basic and most important notion and institute of this branch of law is certainly the international criminal act. In the theory of law (domestic and foreign), there are several views on the notion and contents of the international criminal act. However, it can be concluded that this notion implies a socially dangerous, illegal act committed by the perpetrator and defined as a criminal act whose perpetrator is to be punished as prescribed by the law. Such a defined notion of the international criminal act includes its basic elements, and these are as follows: 1) the act of a man (including the act of an adult person that can be committed in three forms: acting, non-acting, failure to provide proper supervision, effect and casualty; 2) social danger; 3) unlawfulness; 4) definition of an act by rules, and 5) guilt of the perpetrator. There are two kinds of international criminal acts: international criminal acts in a narrow sense and international criminal acts in a broad sense. The most significant are certainly the international criminal acts in a narrow sense that are directed towards violation or endangering of the universal, general civilisation values - international law and humanity - what is actually the subject of protection from these criminal acts. Apart from the international criminal act, the theory of law also includes a foreign criminal act (any criminal act with a foreign element). By all this, these two notions coincide largely, but are also considerably different from each other. Apart from the general notion of the international criminal act, the theory of law also includes a special being or a special notion of the international criminal act by whose characteristics and specific forms and shapes of manifestation some international criminal acts or responsibility of their perpetrators actually differ from each other. As a matter of fact, all international legal documents in this field (and then national criminal legislation as well) deal with the whole system of various incriminations punished by various kinds and sorts of penalties (as basic sorts of criminal sanctions). The following documents deal with some international criminal acts in their specific forms and shapes of manifestation: The Statute of the International Military Tribunal (that served to reach the Nuremberg and then the Tokyo verdicts), the Law No. 10 of the Control Council for Germany, the Statute of the Hague Tribunal for the Former Yugoslavia as well as the statutes of some other ad hoc tribunals such as: Tribunals for Rwanda, Eastern Timor and Sierra Leone, then the Statute of the Iraqi Special Tribunal and finally the Permanent International Criminal Court Statute (the so-called Rome Statute).

A New Passport to Impunity?: Non-Extradition of Naturalized Citizens versus Criminal Justice

Recent media reports have highlighted the risk that criminals could evade justice through naturalization: if the state does not extradite its citizens and is unable or unwilling to prosecute them, then the grant of nationality could equal to providing sanctuary. Against this background, this article reviews the laws and practice of states related to the non-extradition of (naturalized) nationals, and considers the impact of this phenomenon on criminal justice at the domestic level and before the International Criminal Court (ICC). To this end, the author evaluates common (legislative) constructions which could – directly or indirectly – reduce the effect of the extensive freedom of states to refuse extradition of their nationals. She concludes that, whereas the ICC Statute contains sufficient safeguards and non-extradition of nationals might seldom lead to impunity, even in the interstate context, a comprehensive international solution to legal problems related to extradition and mutual assistance would better facilitate criminal justice.