International Criminal Law & Terrorism

8/8/2019 International Criminal Law & Terrorism

1/47

INTERNATIONAL CRIMINAL LAW

KDR/RGSOIPL/2008 1


2/47

INTERNATIONAL CRIMES

INTERPOL

Extradition return of criminals wanted for trail.

In the absence of a treaty no obligation to extradite

The crime alleged must be a crime in both states double

criminality principle.

Request for extraditing to be done through diplomatic channels

accompanied by arrest warrant.

KDR/RGSOIPL/2008

2


3/47

EXTRADITION

European laws prohibits extradition of its own nationals.

Political offenders are not extraditable.

Europe judiciary determines the question on extradition.

1946 UN GA Res. 96(1) - genocide to be a crime.

1948 Convention on the Prevention and Punishment of theCrime of Genocide.

KDR/RGSOIPL/2008

3


4/47

ICC

Rome Statute, 1998

Entered into force in 2002

106 parties

Ceat of ICC is Hague

It established the first international criminal court

India, China, Indonesia, Iran, Japan, Pakistan, Russia and US are notmembers.

KDR/RGSOIPL/2008

4


5/47

ICC

18 judges elected for a tem of 9 years.

Appeal

Trail

Pre-trail

Office of prosecutor

Working language is English and French

KDR/RGSOIPL/2008

5


6/47

JURISDICTION

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

KDR/RGSOIPL/2008

6


7/47

GENOCIDE

A.6 - For the purpose of this Statute, genocide means any of the

following acts committed with intent to destroy, in whole or in part, a

national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

KDR/RGSOIPL/2008

7


8/47

GENOCIDE DEFINITION

Convention on the Prevention and Punishment of the Crime of Genocide1948 140parties

A.2 - In the present Convention, genocide means any of the following acts committedwith intent to destroy, in whole or in part, a national, ethnical, racial or religious group,as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about itsphysical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

KDR/RGSOIPL/2008

8


9/47

CRIMES AGAINST HUMANITY

A.7 - For the purpose of this Statute, crime against humanity

means any of the

following acts when committed as part of a widespread orsystematic attack

directed against any civilian population, with knowledge of the

attack:

(a) Murder;

(b) Extermination;

KDR/RGSOIPL/2008

9


10/47


Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violationof

fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization, or any other form of sexual violence of comparable gravity;

KDR/RGSOIPL/2008

10


11/47


(h) Persecution against any identifiable group or collectivity on

political,racial, national, ethnic, cultural, religious, gender as defined

in paragraph 3, or other grounds that are universally recognized as

impermissible under international law,

Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causinggreat

suffering, or serious injury to body or to mental or physical health.

KDR/RGSOIPL/2008

11


12/47

WAR CRIMES

Grave breaches of the Geneva Conventions of 12 August 1949, namely,

any of the following acts against persons or property protected under the

provisions of the relevant Geneva Convention:

(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

KDR/RGSOIPL/2008

12


13/47

WAR CRIMES

Extensive destruction and appropriation of property, not justified

by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve

in the forces of a hostile Power;

Willfully depriving a prisoner of war or other protected person of

the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii) Taking of hostages.

KDR/RGSOIPL/2008

13


14/47

PRINCIPLE OF

COMPLEMENTARITY

The Preamble of the Rome Statute recognizes that the Court itself

is but a last resort for bringing justice to the victims of genocide,

war crimes, and crimes against humanity.

It therefore calls upon all States to take measures at the national

level and enhance international co-operation to put an end to

impunity, and reminds States of their duty to exercise criminal

jurisdiction over those responsible for such crimes.

Thus, the Rome Statute assigns the Court a role that is

complementary to national systems.

KDR/RGSOIPL/2008

14


15/47

ICC

No jurisdiction over general criminal jurisdiction

Terrorism or drug trafficking Jurisdiction - It can exercise jurisdiction only with respect to

genocide, crimes against humanity, and war crimes.

Jurisdiction of ICC can be invoked by A.13 a party referring an

alleged crime to the Prosecution UN SC acting under chapter VII

The prosecutor initiating an investigation into the alleged crime.

KDR/RGSOIPL/2008

15


16/47

ICC

ICC can exercise jurisdiction only if:

1. the state on whose territory the conduct occurred

2. the state of nationality of the accused person is a party to the

statute.

ICC does not have jurisdiction:

If the case is being investigated or prosecuted by the state that

has jurisdiction over the crime unless the state is unwilling or

unable genuinely to carryout the investigation and prosecution.

KDR/RGSOIPL/2008

16


17/47

ICC

The state has been jurisdiction conducted the investigation and decided notto prosecute;

The accused has already been properly tried;

The case has not of sufficient gravity to justify the action.

Unwillingness to prosecute shows - shielding of accused

The crime must have been committed after entry into force of the statute

A.11.

No person can be tried by ICC and the national court for the same offence A.20)

The accused must have been 18 at the time of alleged crime.

KDR/RGSOIPL/2008

17


18/47

JURISDICTION

There must be an arrest warrant from the Pre-Trail chamber of the

Court.

A party cannot refuse to surrender its own nationals where there isa prohibition in national law.

A.25 individual responsibility.

Politicians and government officers are within the jurisdiction of the

ICC, A.27.

KDR/RGSOIPL/2008

18


19/47

SOVEREIGNTY PROBLEMS

The main allegation against ICC is that it replaces the national

courts.

KDR/RGSOIPL/2008

19


20/47

LAW

ICC statute, elements of crimes and Rules ofProcedure and Evidence

Treaties and principles of international law.

Law of armed conflict

General principles of law derived form nationallaws.

Accordance with human right laws

Mix of civil and common law systems

KDR/RGSOIPL/2008

20


21/47

INVESTIGATION

According to the order of the Pre-trail Court

State has to co-operate in investigations.

If the prosecutor wants to arrest a person he has

to apply to the Pre-trail Court.

The party whose territory the accused is, it is the

obligation to surrender the accused to the ICC-A.89.

KDR/RGSOIPL/2008

21


22/47

APPEAL

Appeal against the conviction to Appeal Court

A.81-85.

The ICC can sentence an accused up to 30 years

of imprisonment.

ICC dont have a prison, so the person has to

serve the term in the territory of a member, need

not be the party.

If no state is willing to accept the prisoner, he will

be sent to Dutch prison.

KDR/RGSOIPL/2008

22


23/47

INTERNATIONAL TRIBUNALS

First Nuremberg Tribunal

Second - Tokyo Tribunal

Nuremberg Tribunal fix individual responsibility for

international crimes.

Head of the state and officials can be liable for crimes even

though they are not carried out the crime.

These principles are now part of customary international law

KDR/RGSOIPL/2008

23


24/47

ICTY

International Criminal Tribunal for the Former Yugoslavia

UN under Article VII SC Res. 808(1993) established the tribunal.

Located in Hague

Jurisdiction over individuals accused of committing in formerYugoslavia.

Gross violation of Geneva Conventions

Genocide

Crimes against humanity

KDR/RGSOIPL/2008

24


25/47

JURISDICTION

A.7 of statute who planned, instigated, ordered, or otherwise

aided and abetted in the planning, preparation or execution of a

crime, is individually responsible for it.

Superiors order does not relieve the accused of responsibility.

It supposed to complete its trails by 2010

KDR/RGSOIPL/2008

25


26/47

ICTR

International criminal tribunal for Rwanda, 1994

SC Res. 955(1994)

Located in Arusha, Tanzania

Jurisdiction over genocide, crimes against humanity and serious

violations of Geneva Conventions.

20 persons have been convicted so far.

KDR/RGSOIPL/2008

26


27/47

SIERRA LEONE SPECIAL

COURT

Established by treaty between Sierra Leone and the UN in 2002.

Located in Freetown, Sierra Leone.

Jurisdiction over serious violations of international humanitarian

law

KDR/RGSOIPL/2008

27


28/47

TERRORISM

28KDR/RGSOIPL/2008


29/47

TERRORISM

1937 League of Nations concluded a Convention on the

Prevention and Punishment of Terrorism.

World war comes and never entered into force.

State terrorism: terrorist acts committed by states against another

E.g. holding hostage of US diplomats in Iran.

Cruelty committed by state against its own people by Hitler, Stalin,etc.

there is no international definition of terrorism.

KDR/RGSOIPL/2008

29


30/47

TERRORISM

Any elements of the use or threat of force and seeking to create a

climate of fear seem to be the agreed definition.

One persons terrorist is anothers freedom fighter.

Resistance to occupation is not prohibited by international law.

Organised resistance is recognized by Geneva conventions.

UN declaration on terrorism (UNGA Res. 49/60.

It condemned terrorism as criminal and unjustifiable, wherever

and by whomever committed.

KDR/RGSOIPL/2008

30


31/47

UN INITIATIONS

criminal acts intended or calculated to provoke a state of terror in

the general public.

States must refrain from all terrorist activities.

It declared that terrorist activity cannot be justified whatever the

motive is.

UNSC Res. 1566(2004)

KDR/RGSOIPL/2008

31


32/47

TERRORISM

1999 International Convention for the Suppression of the

Financing of Terrorism.

A.2 defines terrorism: any other act intended to cause death or

serious bodily injury to a civilian, or to any other person not taking

an active part in the hostilities in a situation of an armed conflict,

when the purpose of such act, by its nature or context, is to

intimidate a population, or to compel a government or aninternational organization to do or to abstain from doing any act.

KDR/RGSOIPL/2008

32


33/47

TERRORISM

This convention does not apply to internal offences.

9/11 changed the definition of terrorism.

Resolution 1373, adopted unanimously on September 28, 2001

First International Legislation by the Security Council

such acts [referring to the 9/11 terrorist attacks], like any act ofinternational terrorism, constitute a threat to international peace

and security.

KDR/RGSOIPL/2008

33


34/47

UNIVERSAL CONVENTIONS

1. Convention for the Suppression of Unlawful seizure of Aircraft

1970. (Hijacking Convention).

2. Convention for the suppression of unlawful acts against safety

of civil aviation 1971 (Montreal Convention).

3. Convention on the Prevention and Punishment of crimes

against Internationally Protected Persons, including Diplomatic

Agents 1973.

KDR/RGSOIPL/2008

34


35/47

INT.N. CONVENTIONS

4. Convention on the Physical Protection of Nuclear Material 1979.

5. International Convention against the taking of Hostages 1979(Hostages Convention).

6. Montreal Protocol on violence against airports.

7. Rome Convention on Maritime Navigation 1988.

8. Bombing Convention 1997

Financing Convention 1999

KDR/RGSOIPL/2008

35


36/47

ACTIVITIES

Weapons of Mass Destruction and Their Delivery Systems

(Prohibition of Unlawful Activities) Act 2005

Export Control on Goods, Technologies, Material and Equipment

related to Nuclear and Biological Weapons and their Delivery

Systems Act, 2004,

KDR/RGSOIPL/2008

36


37/47

TERRORISM

Terrorist acts may occur during armed conflicts or in time of peace.

As international humanitarian law applies only in situations of

armed conflict, it does not regulate terrorist acts committed in

peacetime.

In addition to an express prohibition of all acts aimed at spreading

terror among the civilian population (Art. 51, para. 2, Protocol I;

and Art. 13, para. 2, Protocol II).

KDR/RGSOIPL/2008

37


38/47

TERRORISM

attacks on civilians and civilian objects (Arts. 51, para. 2, and 52, ProtocolI; and Art. 13, Protocol II);

indiscriminate attacks (Art. 51, para. 4, Protocol I);

attacks on places of worship (Art. 53, Protocol I; and Art. 16, Protocol II);

attacks on works and installations containing dangerous forces (Art. 56,Protocol I; and Art. 15, Protocol II);

the taking of hostages (Art. 75, Protocol I; Art. 3 common to the fourConventions; and Art. 4, para. 2b, Protocol II);

murder of persons not or no longer taking part in hostilities (Art. 75,Protocol I; Art. 3 common to the four Conventions; and Art. 4, para. 2a,Protocol II).

KDR/RGSOIPL/2008

38


39/47

WAR ON TERROR

1937 League of Nations Convention on the Prevention and

Punishment of Terrorism.

Never entered into force due to World War.

KDR/RGSOIPL/2008

39


40/47

JURISDICTION

(a) War Crimes there must be an international or non-

international conflict

(b) Crimes against Humanity/Genocide involve questions of scale

and

magnitude, systemisation, and organisation which might not

catch manifestation of modern international terrorism

(c) These crimes have not been designed to catch global

terrorism in the form in which it may more routinely manifest

itself.

KDR/RGSOIPL/2008

40


41/47

INTERNATIONAL CRIME

The behaviour must be universally recognised as/agreed to be

criminal;

- The behaviour must be recognised as/agreed to be a

(a) grave/serious matter/crime

(b) be a crime of international concern;

KDR/RGSOIPL/2008

41


42/47

INTERNATIONAL CRIME

KDR/RGSOIPL/2008

42


43/47

KDR/RGSOIPL/2008

43


44/47

KDR/RGSOIPL/2008

44


45/47

NUCLEAR TERRORISM

CONVENTION, 2005

Nuclear Terrorism..\ICC\financing concention - 1999.pdfConvention:International Convention for the Suppression of Acts of NuclearTerrorism, 2005.

The Nuclear Terrorism Convention calls for states to developappropriate legal frameworks criminalizing nuclear terrorism-relatedoffenses, investigate alleged offenses, and, as appropriate, arrest,prosecute, or extradite offenders.

It also calls for international cooperation with nuclear terrorism

investigations and prosecutions, through information-sharing,extradition and the transfer of detainees to assist with foreigninvestigations and prosecutions.

KDR/RGSOIPL/2008

45


46/47

NUCLEAR TERRORISM

CONVENTION, 2005

While its initial Russian draft was proposed in 1997, the Nuclear

Terrorism Convention is the first anti-terrorism convention

adopted since the attacks of Sept. 11, 2001.

The treaty opens for signature Sept. 14, 2005 and enters into

force thirty days after it is signed and ratified by at least 22

states.

KDR/RGSOIPL/2008

46


47/47

THANK YOU

KDR/IIT KGP/RGSOIPL/-2008

47

Documents

International Criminal Law & Terrorism