Individual Criminal Liability in International Law

The Rome Statute and the International Criminal Court

AgendaOverview

– What are the history and mission of the ICC?

Jurisdiction

– What crimes are under the jurisdiction of the ICC?

Exercise of Jurisdiction

– How are cases brought to the ICC, not domestic courts?

Issues

– Does the ICC infringe on state sovereignty?

International Criminal Tribunals and the ICC

Ad hoc courts of limited jurisdiction Nuremberg and Tokyo tribunals

International Criminal Tribunal on Rwanda

International Criminal Tribunal on the Former Yugoslavia

Sierra Leone, Timor-Leste, Cambodia...

ICC Expansion in time: A permanent court

Expansion in space: Not limited to regions

Overview of the ICC

Entered into force July 1, 2002

121 parties

Court of last resort

Crimes

Crimes

SeriousCrimes

Crimes

SeriousCrimes

InternationalCrimes

Crimes

SeriousCrimes

Inter-nationalCrimesGenocide

Crimes

SeriousCrimes

Inter-nationalCrimesCrimes

AgainstHumanity

Crimes

SeriousCrimes

Inter-nationalCrimes

War Crimes

Crimes

SeriousCrimes

Inter-nationalCrimes

Crimes of Aggression

Crimes

SeriousCrimes

Inter-nationalCrimes

The Crime of

Genocide

Crimes AgainstHumanity

War CrimesCrimes of Aggression

Genocide

Objective element

– Action: Killing, etc. (Art. 6 (a) to (e))

Subjective element

– Intention: Intent to destroy national, ethnical, racial, religious group

Crimes Against Humanity

Objective element

– Action: Murder, etc. (Art. 7 (a) to (k))

– Condition: Part of widespread/systematic attack

Subjective element

– Knowledge of the attack

War Crimes

Objective element

– Action: Grave Geneva breaches, etc. (Art. 8 (2))

– Condition: In particular when part of policy/plan

Subjective element

Crime of Aggression

Stay tuned! (Art. 5 (2))

Other Limits on Jurisdiction

Temporal jurisdiction

– Crimes committed after entry into force (11 (1))

Admissibility (Art. 17)

– Investigation or prosecution by a state

• Unless unable or unwilling

• Last resort

Exercise of Jurisdiction

ICC Case Checklist

ICC trial

Is the domestic court unable or unwilling to prosecute?

Was the case properly referred?

Is there temporal jurisdiction?

Is the crime under ICC jurisdiction? Art. 5

Art. 11

Art. 13

Art. 17

Exercise of Jurisdictionand State Sovereignty

Of the 3 forms of case referral, which is least problematic when it comes to sovereignty?

Is it justifiable for the Security Council to refer cases to the ICC, even situations in non-ICC states?

Is it justifiable for the ICC prosecutor to initiate cases? Why or why not?

Criticism of the ICC

Lack of oversight, checks & balances

Selectivity

Sovereignty concerns

Makes peace process more difficult

Thinking about the ICC

What checks are there on the ICC’s power?

Is the ICC biased against Africa?

Does the ICC infringe on sovereignty?

Is the ICC doing its job deterring int’l crimes?