INTERNATIONAL LAW FALL 2004 INTERNATIONAL LAW OUTLINE FALL 2004 I. War Crimes and Punishment A. Yugoslavia 1993: The Security Council Votes to Create an International Criminal Tribunal 1. UN Security Council Resolution 808: February 22, 1993 a) “Expressing once again its grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia, including reports of mass killings and the continuance of “ethnic cleansing” b) “Determining that this situation constitutes a threat to international peace and security” c) “Decides that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia territory since 1991” d) Requests a full report e) Remains actively seized of the matter B. Looking for precedents: the Nuremberg War Crimes Tribunal 1. The Foundations a) The Moscow Declaration: November 1, 1943 (1) “Those German officers and men and members of the Nazi party who have been responsible for, or have taken a consenting part in the above atrocities, massacres, and executions, will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries and of the free governments which will be created therein.” (2) “They will know that they will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged” (3) “Let those who hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three allied Powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done” (4) “The above declaration is without prejudice to the case of the major criminals, whose offences have no particular geographical localization and who will be punished by the joint decision of the governments of the Allies” b) The London Agreement: August 8, 1945 (1) Response to need for prosecution of major criminals (2) Art. 1 “There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities” (3) Art. 6 “Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court established or to be established in any allied territory or in Germany for the trials of war criminals” (4) Art 7 in force for one year, and shall continue subject to the right of any Signatory to terminate with one month’s notice c) The Nuremberg Charter (1) Art 2 Tribunal shall have four members, one appointed by each Signatory (UK, US, France, Soviet Union) (2) Art 3 members may not be challenged (3) Art 5 other tribunals may be set up as needed (4) Art 6 crimes: crimes against peace (planning preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or conspiracy), war crimes (violations of the laws or customs of war, i.e. murder, torture, slave trade, plunder, destruction, etc.) , crimes against humanity (murder, extermination, enslavement, deportation, before or during the war, or persecution on political, racial, or religious grounds, whether or not in violation of the domestic law of the country where perpetrated) (5) Art 7 official position shall of accused shall not be a factor (6) Art 8 taking orders will not serve as a mitigating factor (7) Art 11 any person convicted by the tribunal may be charged before a national, military, or occupation court; that court may impose additional punishments (8) Art 12 accused need not be present (9) Art 14 each Signatory shall appoint a Chief Prosecutor and they will rotate (10) Art 16 fair trial provisions (11) Art 17 tribunal powers (12) Art 26 no appeals (13) Art 27 death penalty allowed d) Control Council Law No. 10: December 20, 1945 (1) Filled gaps (2) Art II crimes: crimes against peace, war crimes, crimes against humanity, membership in categories of a criminal group declared criminal by the International Military Tribunal, involved in any capacity (3) punishment = death, imprisonment, fine and imprisonment, forfeiture of property, restitution of property, deprivation of civil rights (4) official position does not free from responsibility (5) “the accused shall not be entitled to the benefits of any statute of limitation in respect of the period from 30 January 1933 to 1 July 1945, nor shall any immunity, pardon, or amnesty granted under the Nazi regime be admitted as a bar to trial or punishment” (6) Art III each occupying authority shall have the right to arrest suspects, find witnesses and evidence, bring criminals to an appropriate tribunal (a) “persons known to be wanted for trial in another Zone or outside Germany will not be tried prior to decision under Art IV unless the facts of their apprehension has been reported” and three months have elapsed (7) Art IV commanders may request delivery to the Zone where the crime was committed (same shall apply to witnesses, evidence, etc.), delineates the priority of court if the accused is wanted in more than one Zone (8) Art V “delivery of criminals to one jurisdiction will not become the means of defeating or unnecessary delaying the carrying out of justice in another place” e) UN General Assembly Resolutions: December 11, 1946 (1) 95(1). Affirmation of the principles of international law recognized by the Charter of the Nuremberg Tribunal (a) Request codification of an international criminal code based on the principles announced in the Charter (2) 96(1). The crime of genocide (a) “Genocide is the denial of the right to existence of entire human groups, as homicide is the denial of the right to live of individual human beings” (b) “Affirms that genocide if a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices – whether private individuals, public officials or statesmen, and whether the crime is committed on religious, racial, political, or any other grounds – are punishable” 2. The High Command Case a) Introduction (1) United States of America v. Wilhelm von Leeb (Case No. 12) (2) Charged with: (a) Crimes against peace: participating in wars and aggressive invasions, violating international laws (b) Participation in conspiracy to commit crimes against peace (c) War crimes and crimes against humanity: murder and ill treatment of POWs (d) Crimes involving the conduct of the German Army, execution, murder, plunder, spoliation of property, slavery, genocide, etc. (3) The Tribunal found none of the ∆s guilty of crimes against peace. Findings of guilt were as to 11 ∆s under the charges of war crimes and crimes against humanity for POWs and the conduct of the German army b) United States v. Von Leeb et. al.: 1948 (1) Argument: not a proper forum; ∆s were POWs and subject only to general court marshal (a) “The only obligation a sovereign state owes to the violator of one of its law is to give him a fair trial in a forum where he may have counsel to represent him…” (b) “The ∆s in these cases have been afforded those rights and privileges” (2) Argument: Geneva Convention requires that POWs be tried by a general court marshal (a) Art 63 of G.C. “Sentencing may be pronounced against a POW only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining power” (b) Crimes were committed before the ∆s were taken as “POWs” by the US (c) “The crimes including the war crimes charged against the ∆s are for violations of international criminal law. This Tribunal by Control Council Law No. 10 is vested with authority to try ∆s for the crimes charged. That such jurisdiction possibly may be exercised by another military court is also of no consequence. If two courts have concurrent jurisdiction to try the same case the first court that exercises jurisdiction may properly dispose of the case” (3) Argument: Superior orders (a) Art II, para. 4(a) and (b) (b) All of the ∆s held official positions and therefore are not excused for their actions (c) Cannot say that Hitler is the only guilty party (d) “the acts set forth in Control Council No. 10 are criminal not because they are therein set forth as crimes but because they then were crimes under international common law. International common law must be superior to and, where it conflicts with, take precedence over national law or directives issued by any national government authority.” (e) “The purpose of all law, national or international, is to is to restrict or channelize the action of the citizen or subject. International law has for its purpose and effect the restricting and channelizing of the action of nations…there can be no effective restriction or channelization of national action except through control of its agents and representatives of the nation” (f) Guilt must be attributed to some person (g) Compliance with orders is not a defense – the ∆s were not in immediate harm (4) Argument: Giving orders (a) “For the first time in history, individuals are being called upon to answer criminally for certain violations of international law” (b) “For a ∆ to be held criminally responsible, there must be a breach or some moral obligation fixed by international law, a personal act voluntarily done with knowledge of its inherent criminality under international law” (c) Art. II para. 4(b) (d) Some orders are simply transmitted; there can be no guilt for those actions; they can assume that their superiors are acting in accordance with the law (e) “to find a field commander criminally responsible for the transmittal of such an order, he must have passed the order to the chain of command and the order must be one which he is shown to have known was criminal” (5) Argument: command responsible for actions committed within his command pursuant to criminal orders passed down independent of him (a) Art II para 2 (b) “Under basic principles of command authority and responsibility, an officer who merely stands by while his subordinates execute a criminal order of his superiors which he knows is criminal violates a moral obligation under international law. By doing nothing he cannot wash his hands of international responsibility. His only defense lies in the fact that the order was from a superior which Control Council Law No. 10 declares constitutes only a mitigating circumstance” (c) “Staff officers were indispensable…and cannot escape criminal responsibility for their essential contribution to the final execution of such orders on the plea that they were complying with the orders of a superior who was more criminal” (d) The orders were criminal on their face (6) Argument: use of POWs for construction of forts? (a) These orders were not criminal on their face (7) Argument: armament industry usage? (a) The field commanders had no control once the POWs were sent away (b) “If a ∆ is to be held accountable for transmitting POWs to the armament industry, the evidence would have to establish that POWs shipped from his area were in fact so used.” (c) Not guilty (8) Argument: treatment of POWs (a) “Most of he provisions of the Hague and Geneva Conventions, considered in substance, are clearly an expression of the accepted views of civilized nations and binding upon Germany and the ∆s on trial before us in the conduct of the war against Russia” (b) Guilty c) The sentences (1) Motion for plenary session denied 3. Building the Nuremberg Tribunal: Recollections from one of the architects a) Norman Silber and Geoffrey Miller, Toward ‘Neutral Principles’ in the Law: Selections from the Oral History of Herbert Wechsler, 1993 4. The Link Between Nuremberg and Sarajevo a) Ambassador Albright on Resolution 808: February 22, 1993 (1) “The lesson that we are all accountable to international law may have finally taken hold in our collective memory” (2) “The world’s response to the violence in the former Yugoslavia is an early and concrete test of how we will address the concerns of the ethnic and religious minorities in the post Cold War world” (3) “the Nuremberg principles on war crimes, crimes against the peace, and crimes against humanity, were adopted by the General Assembly is 1948. By its action today with Resolution 808, the Security Council has shown that the will of this organization can be exercised, even if it has taken nearly half a century for the wisdom of our earlier principles to take hold” C. Back to Yugoslavia 1. From history to current events a) A brief history of the conflict 2. The international community contemplates war crimes a) Letter from UN Secretary General to Security Council: February 10, 1993 (1) Resolution 780 (1992) requested a Commission of Experts to investigate “grave breaches of the Geneva Convention and other violations of humanitarian law committed in the territory of the former Yugoslavia” (2) Highlights of the interim report (a) Violations have been committed, including genocide, rape, pillage, and destruction of property (b) Verification of facts is needed (c) Proposes on-site investigations (d) Want a trust fund (e) Endorses an ad hoc war crimes tribunal (3) Wants Commission to continue work b) Security Council Establishes International Tribunal: Resolution 827: May 25, 1993 (1) “Determining that this situation continues to constitute a threat to international peace and security” (2) An ad hoc tribunal would serve the purpose of putting an end to these atrocities and the restoration and maintenance of peace (a) Redress (3) “Approves the report of the Secretary General” (4) “Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace…” (5) Remains actively seized of the matter 3. The Report of the UN Secretary-General on International Criminal Tribunal a) Introduction (1) Key Resolutions (a) Res. 764 (1992) holds individuals accountable for violating international humanitarian law and the Geneva Convention (b) Res. 771 (1992): grave alarm at widespread terror (c) Res. 780 (1992): request for Commission (d) Res. 808 (1993) adopted as a result of the resolutions of the year before (e) This Report requested in Resolution 827 (2) Legal basis for the establishment of the tribunal (a) Would need a treaty signed by member states (i) However, that would take a lot of time (b) Suggestions have been put forward that the General Assembly should play a significant role in the administration of the tribunal (c) “In light of the disadvantages of the treaty approach in this particular case and of the need indicated in resolution 808 for an effective and expeditious implementation of the decision to establish an international tribunal, the Secretary-General believes that the International Tribunal should be established by a decision of the Security Council on the basis of Chapter VII of the Charter of the UN” (i) To ensure international peace and security (ii) Expeditious and immediately effective (iii) Legally justified as Security Council practice: threat to international peace and recognized violations of international humanitarian law (d) “Security Council would be establishing, as an enforcement measure under Chapter VII, a subsidiary organ within the terms of Article 29 of the Charter, but one of a judicial nature” (i) Must function outside of politics (ii) Life span linked to restoring peace (e) Not legislating law, just enforcing existing law b) The Statute of the International Criminal Tribunal for the Former Yugoslavia: May 1993 (1) Art 1 power to prosecute (2) Art 2 lists grave breaches of the Geneva Convention that the ICTY will prosecute (3) Art 3 violations of the laws or customs of war (4) Art 4 Genocide (5) Art 5 crimes against humanity (6) Art 6 personal jurisdiction (7) Art 7 individual criminal responsibility (a) 1. “a person who planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a crime referred to articles 2 to 5 of the present Statute, shall be individually responsible for the crime” (b) 2. official position does not mitigate (c) 3. superiors are liable for acts committed by subordinates if he knew or should have known or failed to prevent (d) 4. acting pursuant to an order shall not relieve liability, but may be considered in mitigation (8) Art 8 territorial and temporal jurisdiction (9) Art 9 concurrent jurisdiction; ICTY shall have priority over national courts and may ask courts to defer (10) Art 10 non-bis-in-idem (a) 1. cannot be tried in a national court if already tried by ICTY (b) 2. may be subsequently tried in ICTY after national court if: (i) the act for which he was tried was an ordinary crime (ii) national court proceedings were not impartial or independent (c) 3. shall take into account punishments from national court (11) Art 11 organization: chambers, prosecutor, registry (12) Art 12 11 judges (13) Art 15 rules of procedure and evidence shall be adopted by judges (14) Art 16 the prosecutor’s role(s) (15) Art 18 investigation and preparation of indictment (16) Art 21 rights of the accused (17) Art 24 penalties limited to prison time (18) Art 25 appellate proceedings (a) Error on question of law (b) Error of fact (19) Art 26 review proceedings 4. An additional war crime a) Meron, Rape as a Crime Under International Law D. The International Criminal Tribunal for the Former Yugoslavia 1. The Tribunal begins its operations a) Justice Goldstone appointed as prosecutor b) At least the eighth candidate for the position; Russia blocked all NATO appointees c) Annual Report: July 1994 (1) Work has been impeded by length of time to appoint a Prosecutor and unsatisfactory budget arrangements (2) Had to start from scratch! d) First indictment on Nov. 7, 1994 against Dragan Nikolic; unlikely that Bosnian-Serbs would turn him over and the ICTY does not permit trial in absentia e) More fighting was breaking out 2. The First Principal Case: Prosecutor v. Tadic1 a) The Indictment (1) Prosecutor v. Dusko Tadic, February 13, 1995 (2) All crimes took place during the armed conflict and all persons were protected by the Geneva Convention and subject to international laws (3) Charges: (also see fn) (a) Forcible sexual intercourse: (i) Grave breach of Art 2(c) of the ICTY Statute (ii) Violation of customs of war under Art 3 of the statute and Art 3(1) of Geneva (iii) Crime against humanity, Art 5(g) of Statute (b) Torturous treatment of prisoners (i) Willful killing, a grave breach of Art 2(a) and 7(1) of Statute (ii) Murder, a violation of the laws of war under Art 3 and 7(1) of the Statute (iii) Willful causation of serious injury under Art 2(c) and 7(1) of the Statute (iv) Cruel treatment, violation of law of war under Art 3 and 7(1) of Statute and Art 3(1)(a) of Geneva (v) Crime against humanity, Art 5(i) and 7(1) of Statute b) The Tribunal’s Jurisdiction is Challenged (1) Introduction (a) The judgment under appeal (i) Motion challenging jurisdiction was denied (ii) Arguments 1 The Indictment ("Prijedor") Factual allegations: The amended Indictment of 14 December 1995 names both Dusko Tadic and Goran Borovnica, but the latter remains at large. The Indictment generally alleges that in late May 1992, Serb forces attacked Bosnian Muslim and Croat population centres in the Prijedor municipality in Bosnia and Herzegovina. Subsequently the forces unlawfully confined thousands of Muslims and Croats in the Omarska, Keraterm and Trnopolje camps. The Indictment alleges that between late May 1992 and 31 December 1992, Dusko Tadic participated in attacks on and the seizure, murder and maltreatment of Bosnian Muslims and Croats in the Prijedor municipality, both within and outside the camps Charges: The amended Indictment charged the accused on the basis of individual criminal responsibility (Article 7(1) of the Statute) with: • twelve counts of crimes against humanity (Article 5 of the Statute -persecution on political, racial and/or religious grounds; murder; inhumane acts), • twelve counts of grave breaches of the 1949 Geneva Conventions (Article 2 thereof -wilful killing; torture or inhuman treatment; wilfully causing great suffering or serious injury to body or health),and • ten counts of violations of the laws or customs of war (Article 3 thereof -cruel treatment; murder). The Trial Chamber Judgment The Judgment was rendered on 7 May 1997. The Trial Chamber found Dusko Tadic guilty on the basis of individual criminal responsibility (Article 7(1)of the Statute) with: • crimes against humanity (Article 5 of the Statute -persecution on political, racial and/or religious grounds; inhumane acts), • violations of the laws or customs of war (Article 3 -cruel treatment). Sentence: 20 years' imprisonment (handed down on 14 July 1997). Following the determination by the Trial Chamber that the sentences were to be served concurrently, the above mentioned sentence indicate the highest penalty imposed on Dusko Tadic. Appeals Chamber Judgment The Appeals Chamber handed down its judgment on 15 July 1999 denying Dusko Tadic's appeal on all grounds. However, allowing the Prosecution's cross-appeal, the Appeals Chamber reversed the Judgment of the Trial Chamber and found the accused guilty on the basis of individual criminal responsibility (Article 7(1) of the Statute) of: • grave breaches of the 1949 Geneva Conventions (Article 2 of the Statute -willful killing; torture or inhuman treatment; willfully causing great suffering or serious injury to body or health). • crimes against humanity (Article 5 thereof -murder), and • violations of the laws or customs of war (Article 3 thereof-murder). Sentence: the issue of sentencing for the nine additional counts of which Tadic was convicted by the Appeals Chamber was referred to a Trial Chamber assigned by the President. (a) Illegal foundation of the ICTY (b) Wrongful primacy of the ICTY over national courts (c) Lack of jurisdiction ratione materiae2 (iii) Refused to rule on first ground, denied on second two (b) Jurisdiction of the appeals chamber (i) Found (2) Unlawful establishment of the ICTY (a) Is the question at issue political and as such non-justiciable? (i) Court has consistently rejected this argument (ii) “As long as the case before it or the request for an advisory opinion turns on a legal question capable of a legal answer, the Court considers that it is duty-bound to exercise jurisdiction over it, regardless of the political background or the other political facets of the issue” (iii) Interpreting a treaty provision is a judicial task (b) The issue of constitutionality (i) Arguments: (a) ICTY should have been created by treaty or amendment (b) The General Assembly was not involved (c) ICTY was not capable of promoting international peace and should not have been created by a political organ such as the Security Council (d) Primacy was simply wrong (ii) Questions: (a) “Was there really a threat to the peace justifying the invocation of Chapter VII as a legal basis for the establishment of the ICTY? (b) Assuming such a threat exists, was the Security Council authorized, with a view to restoring or maintaining peace, to take any measures at its own discretion, or was it bound to choose among those expressly provided for in Articles 41 and 42 (and possibly Article 40 as well)?3 (c) In the latter case, how can the establishment of an international criminal tribunal be justified, as it does not figure among the ones mentioned in those Articles and is of a different nature? (c) The power of the Security Council to invoke Chapter VII (i) Very wide discretion, although not unlimited 2 By reason of the matter involved 3 CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION Article 39 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 40 In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures. Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. (ii) Art 244 speaks of specific powers, not of “absolute fiat” (iii) The Security Council determines if there is a situation and what the most appropriate reaction is: either making a recommendation or using the “exceptional powers” by ordering measures to be taken (iv) An armed conflict has been taking place in the territory since long before the decision of the Security Council. “If it is considered an international armed conflict, there is no doubt that it falls within the literal sense of the words ‘breach of the peace.’ (v) Even if it were only an ‘internal’ armed conflict, it would still constitute a threat to the peace (Congo, Liberia, Somalia) (d) Range of measures envisaged under Chapter VII (i) Art 39: “decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” (e) The establishment of the ICTY as a measure under Chapter VII (i) Arguments: not within the contemplation of the charter, a political body cannot create a judicial organ, and it did not promote international peace (ii) Falls within Art 41 “measures not involving the use of force” (iii) Political/judicial distinction does not matter here (iv) It .'. was an appropriate measure and is within Chapter VII (f) ICTY not established by law and .'. violates other international treaties which guarantee due process? (i) “Established by law” could mean created “by a body which, though not a Parliament, has a limited power to make binding decisions” i.e. The Security Council under Art 255 (a) “We are of the view that the Security Council was endowed with the power to create [the ICTY] as a measure under Chapter VII in the light of its determination that there exists a threat to the peace” (ii) Could also mean established in accordance with the law (a) “The important consideration in determining whether a tribunal has been ‘established by law’ is not whether it was preestabblishe or established for a specific purpose or situation; what is important is that it be set up by a competent organ in keeping with the relevant legal procedures, and that it observes the requirements of procedural fairness” (b) The ICTY meets all necessary standards of fairness and due process (3) Unjustified primacy of the ICTY over competent domestic courts (a) The States where most of the crimes occurred have expressly accepted the ICTY’s primary jurisdiction (b) “It would be a travesty of law and a betrayal of the universal need for justice, should the concept of State sovereignty be allowed to be raised successfully against human rights. Borders should not be considered as a shield against the 4 Article 24 In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration. 5 Article 25 The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. reach of the la and as a protection for those who trample underfoot the moot elementary rights of humanity.” (4) Lack of subject matter jurisdiction (a) “It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict” (although this was different in Nuremberg) (b) .'. Art 5 of the Statute may be invoked as a basis of subject matter jurisdiction c) Judgment of the trial chamber (1) Applicable law: Articles 2, 3, & 5 of the statute6 (a) Must establish a connection (= closely related) between the crime and the armed conflict (i) Clearly satisfied here (b) “since Art 2 of the Statute is applicable only to acts against ‘protected persons’ within the meaning of the Geneva Conventions, and since it cannot be said that any of the victims, all of whom were civilians, were at any relevant time in the hands of a party to the conflict of which they were not nationals, the accused must be found not guilty of the counts which rely upon that Article” (c) McDonald Dissent: armed conflict was international in character and .'. under the Geneva Convention (2) Article 3 of the Statute (a) “For the purposes of the application of the rules of customary international humanitarian law contained in Art 3, this Trial Chamber finds, in the present case, that: (i) an armed conflict existed at all relevant times in relation to the alleged offences 6 Article 2: Grave breaches of the Geneva Conventions of 1949 The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) wilfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages. Article 3: Violations of the laws or customs of war The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; (e) plunder of public or private property. Article 5: Crimes against humanity The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts. (ii) each of the victims of the acts charged was a person protected by those provisions being a person taking no active part in the hostilities; and (iii) the offences charged were committed within the context of that armed conflict (3) Article 5 of the Statute (a) Article 5 satisfied: “the acts were directed against a civilian population on discriminatory grounds, they were committed on both a widespread basis and in a systematic fashion pursuant to a policy and they were committed in the context of, and related to, an armed conflict” (4) Individual Responsibility under Art 7 (1)7 (a) “The accused will be found criminally culpable for any conduct where it is determined that he knowingly participated in the commission of an offence that violates international humanitarian law and his participation directly and substantially affected the commission of that offence through supporting the actual commission before, during, or after the incident. He will also be responsible for all that naturally results from the commission of the act in question.” (5) Persecution (a) Elements: the occurrence of a persecutory act or omission and a discriminatory basis for that act or omission on one of the listed grounds, specifically race, religion, or politics + elements of crimes against humanity: existence of an armed conflict, acts taken against a civilian population on a widespread or systematic basis in furtherance of policy, and knowledge of the wider context (b) Evidence supports a finding of persecution d) Judgment of the appeal chamber, July 15, 1999 (1) Arguments: (a) No “equality of arms” (i) Appellant has failed to “show that the protection offered by the principle of equality of arms was not extended to him by the Trial Chamber” (b) Did not murder (2 men) (i) “Appellant has failed to show that [witness’s] reliability as a witness is suspect, or that his testimony was inherently implausible. Since the Appellant did not establish that the Trial Chamber erred in relying on the evidence…for its factual finding[s]…the Appeals Chamber sees no reason to overturn the finding” (2) Cross-appeal (a) Erred on Geneva Convention inapplicability (i) An internal armed conflict may become international if another State intervenes or if some of the participants act on behalf of another State (ii) The conflict was international prior to May 19, 1992 7 Article 7: Individual criminal responsibility 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime. 2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment. 3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires. (iii) Post May 1992 depends on whether the Bosnian Serbs were organs of a foreign power (iv) Because these forces were under the control of a foreign power, regardless of whether that power was formally recognized as a State, the Appellant is guilty of the Geneva Convention crimes (b) Erred in finding that the accused must have knowledge of the wider context to be found guilty of persecution (i) Must be relevant to the wider attack – personal attacks are not part of crimes against humanity (c) Erred in finding that discriminatory intent is necessary for all crimes against humanity (i) Discriminatory intent is only applied to Art 5(h), based on language of the Statute, customary law, the Report of the Secretary General, and other legislative history (ii) Not all crimes against humanity require discriminatory intent 3. An American judge looks at the tribunal: Patricia Wald, The International Criminal Tribunal for the Former Yugoslavia: 2001 a) Re-read article 4. Security Council Resolution extending the life of ICTY to 2010: March 26, 2004 5. The Milosevic Trial E. Toward a permanent international criminal court? 1. The International Law Commission a) D.M. McRae, The International Law Commission: Codification and Progressive Development after Forty Years (1) Re-read article b) Working Group Report on a War Crimes Tribunal, Summary and Recommendations: 1992 (1) Proposals for an international criminal court (2) Should be established by treaty (3) Exercise jurisdiction over private persons (4) Limited to crimes of international character (5) Must guarantee due process, independence, and impartiality II. The international criminal court A. Introduction and background 1. Timeline: Establishment of the court a) “Road to Rome” was often long and contentious (1) As far back as 1872, again in 1919 b) 1946: First official call for the ICC and to codify crimes against humanity c) 1994: First draft Statute for the ICC submitted to the General Assembly, final draft submitted later that year, General Assembly establishes an ad hoc committee on the ICC d) 1995: ad hoc committee holds two 2-week meetings; establishes a three year Preparatory Committee (PrepCom) from March 1996-April 1998 to finalize text e) June 15-July 17, 1998: 160 countries participate at UN Conference on the Establishment of the ICC in Rome, Italy f) July 17, 1998: Member states overwhelmingly vote in favor of the Rome Statute of the ICC, creating the treaty establishing the first permanent international criminal court capable of trying individuals accused of genocide, war crimes, and crimes against humanity g) Feb. 2, 1999: Senegal becomes the first State Party to ratify the Rome Statute h) May 13, 1999: The Coalition for the ICC launches a campaign from the Hague calling for the world-wide ratification of the ICC Statute i) December 31, 2000: Deadline for signatures; US joins Iran and Israel as the last states to sign the treaty j) April 30, 2001: Halfway mark toward the 60 ratifications or accessions required to trigger entry into force of the Rome Statute reached k) April 11, 2002: 60th ratification deposited l) May 6, 2002: US government formally announces its intention not to ratify m) July 1, 2002: Treaty enters into force 2. Overview: The ICC and the objectives of the UN a) Why do we need an international criminal court? (1) To achieve justice for all (a) Missing link in the international legal system (b) Without an international court dealing with individual responsibility as an enforcement mechanism, acts of genocide and egregious violations of human rights often go unpunished (2) To end impunity (a) Judgment of Nuremberg Trial: “crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced” (b) Establishes the principle of individual criminal responsibility (3) To help end conflicts (a) Violence begets further violence (b) The guarantee that at least some perpetrators of war crimes or genocide may be brought to justice acts as a deterrent and enhances the possibility of bringing a conflict to an end (4) To remedy the deficiencies of ad hoc tribunals (a) “Selective justice” (b) “Tribunal fatigue” (5) To take over when national criminal justice institutions are unwilling or unable to act (a) May lack political will, or (b) May have collapsed (6) To deter future war criminals (a) Reasonable to think that many criminals thought their crimes would go unpunished 3. The organs of the court8 a) Presidency (1) The Presidency is composed of the President and First and Second Vice-Presidents, all of whom are elected by an absolute majority of the 18 Judges of the Court for a three year renewable term. The judges composing the Presidency serve on a full-time basis. (2) The Presidency is responsible for the proper administration of the Court, with the exception of the Office of the Prosecutor. However, the Presidency will coordinate and seek the concurrence of the Prosecutor on all matters of mutual concern. (3) According to article 38 of the Rome Statute, the 18 judges of the Court elected the Presidency the 11 March 2003. It is composed of Judge Philippe Kirsch (Canada) as President, Judge Akua Kuenyehia (Ghana) as First Vice-President, and Judge Elizabeth Odio Benito (Costa Rica) as Second Vice-President of the Court. b) The Judges 8 The Presidency The Presidency is responsible for the proper administration of the Court, with the exception of the Office of the Prosecutor. However, the Presidency shall coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern. The judicial functions of the Court are carried out in each division by Chambers : The Appeals Chamber The Trial Chamber The Pre-Trial Chamber The Office of the Prosecutor The Office of the Prosecutor shall act independently as a separate organ of the Court. It shall be responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court. The Registry The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor. (1) During its first resumed session held in New York from 3 to 7 February 2003, the Assembly of States Parties elected the eighteen judges of the Court for a term of office of three, six, and nine years. The judges constitute a forum of international experts that represents the world's principal legal systems. (2) Seven were elected from the Western European and others Group of States (WEOG), four from the Latin American and the Caribbean Group of States (GRULAC), three from the Asian Group of States, three from the African Group of States , one from the Group of Eastern Europe. Seven are female and eleven are male judges. (3) The judges were elected from two lists: (a) LIST A: Consisting of candidates with established competence in criminal law and procedures, and the necessary relevant experience, whether as judge, prosecutor, advocate, or in other similar capacity in criminal proceedings. (b) LIST B: Consisting of candidates with established competence in relevant areas of international law, such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court. (4) All the judges are nationals of States Parties to the Rome Statute. (5) The judges can hold office for a term of nine years and are not eligible for re-election, except for the cases provided by the Rome Statute. The judges elected for a term of three years are eligible for re-election. (6) The Presidency, acting on behalf of the Court, can propose to increase the number of the judges, if it is considered necessary and appropriate, the Registry then will circulate the proposal to all States Parties for final discussion by the Assembly of States Parties. c) Chambers (1) The judiciary of the Court is composed of three divisions: (a) Appeals Division (b) Trial Division (c) Pre-Trial Division (2) Each division is responsible for carrying out the judicial functions of the Court. (3) The Appeals Division is composed of the President and four other judges, the Trial Division of the Second Vice President and five other judges, and the Pre-Trial Divisions of the First Vice President and six other judges. d) The Office of the Prosecutor (1) General organisation (a) Headed by the Chief Prosecutor, elected by the Assembly of States Parties and has full authority over the management and the administration of the Office, including the staff, facilities and other resources of the Office. (b) The Chief Prosecutor is Mr. Luis Moreno-Ocampo who has taken office on 16 June 2003 by pledging his solemn undertaking as required by article 45 of the Rome Statute. (c) The Assembly of States Parties may also elect one or two Deputy Prosecutors from a list of candidates provided by the Chief Prosecutor, following the publication of a call for applications or nominations of candidates to that post. (2) Mandate (3) The mandate of the Office is to conduct investigations and prosecutions of crimes that fall within the jurisdiction of the Court, that is, the crime of genocide, crimes against humanity and war crimes. At a later stage, once the States Parties have agreed to a definition of the crime of aggression, the Office will be empowered to investigate and prosecute this crime. (4) Procedure (a) The Chief Prosecutor may start an investigation upon referral of situations in which there is a reasonable basis to believe that crimes have been or are being committed. Such referrals must be made by a State Party or the Security Council of the United Nations, acting to address a threat to international peace and security. In accordance with the Statute and the Rules of Procedure and Evidence, the Chief Prosecutor has to evaluate the material submitted to him before making the decision on whether to proceed. (b) In addition to State Party and Security Council referrals, the Chief Prosecutor may also receive information on crimes within the jurisdiction of the Court provided by other sources, such as individuals or non-governmental organizations. The Chief Prosecutor will conduct a preliminary examination of this information in every case. If the Chief Prosecutor then decides that there is a reasonable basis to proceed with an investigation, he will request the Pre-Trial Chamber to authorize an investigation. (c) As a consequence of its mandate, the Office comprises both Investigation and Prosecution Divisions. (5) The principle of complementarity (a) The Rome Statute assigns the Court a role that is complementary to national systems. (b) Emphasizing the primary responsibility of States to investigate and prosecute international crimes, the Statute provides that a case is inadmissible before the Court where the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The Chief Prosecutor is obliged to consider this requirement of the Statute when deciding whether or not to start an investigation. (6) Independence (a) The Rome Statute provides that the Office of the Prosecutor shall act independently. Consequently, a member of the Office must not seek or act on instructions from any external source, such as States, other international organizations, NGOs or individuals. (7) The Registry (a) It is responsible for the non-judicial aspects of the administration and servicing of the Court and is headed by the Registrar who is the principal administrative officer of the Court, elected by secret ballot by an absolute majority of judges meeting in plenary session. (b) Following the recommendation from the Bureau of the Assembly of States Parties, on the 24 June 2003 Mr. Bruno Cathala from France was appointed first Registrar of the Court, he will hold office for a renewable term of five years and will exercise his functions under the authority of the President. (c) Amongst others, the Registry is responsible for the administration of legal aid matters, court management, victims and witnesses matters, defense counsel, detention unit, and the traditional services provided by administrations in international organizations, such as finance, translation, building management, procurement and personnel. The Rules of Procedure and Evidence also endow the Registrar with the responsibility to receive, obtain and provide information, to establish channels of communication with States and to serve as the channel of communication between the Court and States, Inter-governmental Organizations and Non-Governmental Organizations. B. Jurisdiction of the court: Article 12: Preconditions to the exercise of jurisdiction 1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5. 2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9. Article 13: Exercise of jurisdiction The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. Article 14: Referral of a situation by a State Party 1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation. Article 15: Prosecutor 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the Rome Statute of the International Criminal Court 17 investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence. Article 16: Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. Article 17: Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; Rome Statute of the International Criminal Court 18 (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. Article 18: Preliminary rulings regarding admissibility 1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States. 2. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation. 3. The Prosecutor's deferral to a State's investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State's unwillingness or inability genuinely to carry out the investigation. 4. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82. The appeal may be heard on an expedited basis. 5. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions. States Parties shall respond to such requests without undue delay. 6. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique opportunity to obtain important evidence or there is a significant risk that such evidence may not be subsequently available. 7. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances. Rome Statute of the International Criminal Court 19 Article 19: Challenges to the jurisdiction of the Court or the admissibility of a case 1. The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17. 2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or (c) A State from which acceptance of jurisdiction is required under article 12. 3. The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility. In proceedings with respect to jurisdiction or admissibility, those who have referred the situation under article 13, as well as victims, may also submit observations to the Court. 4. The admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. The challenge shall take place prior to or at the commencement of the trial. In exceptional circumstances, the Court may grant leave for a challenge to be brought more than once or at a time later than the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with the leave of the Court, may be based only on article 17, paragraph 1 (c). 5. A State referred to in paragraph 2 (b) and (c) shall make a challenge at the earliest opportunity. 6. Prior to the confirmation of the charges, challenges to the admissibility of a case or challenges to the jurisdiction of the Court shall be referred to the Pre-Trial Chamber. After confirmation of the charges, they shall be referred to the Trial Chamber. Decisions with respect to jurisdiction or admissibility may be appealed to the Appeals Chamber in accordance with article 82. 7. If a challenge is made by a State referred to in paragraph 2 (b) or (c), the Prosecutor shall suspend the investigation until such time as the Court makes a determination in accordance with article 17. 8. Pending a ruling by the Court, the Prosecutor may seek authority from the Court: (a) To pursue necessary investigative steps of the kind referred to in article 18, paragraph 6; (b) To take a statement or testimony from a witness or complete the collection and examination of evidence which had begun prior to the making of the challenge; and (c) In cooperation with the relevant States, to prevent the absconding of persons in respect of whom the Prosecutor has already requested a warrant of arrest under article 58. Rome Statute of the International Criminal Court 20 9. The making of a challenge shall not affect the validity of any act performed by the Prosecutor or any order or warrant issued by the Court prior to the making of the challenge. 10. If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17. 11. If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation, the Prosecutor may request that the relevant State make available to the Prosecutor information on the proceedings. That information shall, at the request of the State concerned, be confidential. If the Prosecutor thereafter decides to proceed with an investigation, he or she shall notify the State to which deferral of the proceedings has taken place. Article 20: Ne bis in idem 1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice. 1. Lattanzi, The Rome Statute and State Sovereignty a) The responsibility of states’ jurisdictions in the repression of crimes of international concern (1) Competence of the court is restricted to acts of genocide, war crimes, crimes against humanity, and, when they are defined, acts of aggression (2) High threshold of defining crimes (3) Complementary jurisdiction (a) Not like the tribunals which exercised primary jurisdiction (b) Will act only when the national courts are not available or are unwilling to prosecute and punish b) The State participation to the Statute as automatic acceptance of the ICC jurisdiction (1) States who ratified directly accept competence (2) Court is entitled to exercise its jurisdiction over a crime only if at least one State connected with the crime is a party (3) “Opting-out”: a State accepting the Statute may exclude the competence of the Court for a period of seven years starting from the entry into force of the Statute for that State, with regard to war crimes committed by its nationals or on its territory (a) Under Art. 1239, the opt-out can be renewed every seven years c) The jurisdictional links for the exercise of ICC jurisdiction (1) ICC will be in a position to act if it has, at a minimum, the cooperation of certain States having a link with the crime, and it will not be able to exercise its jurisdiction against their will d) The “Trigger-Mechanism” (1) State party, Security Council, and Prosecutor (under strict scrutiny) may begin proceedings e) The power of the UN Security Council to refer a situation to the Court (1) Must first find a threat to the peace and may then take action under Art. 3910 (2) Allows States to control from within the Security Council to maintain sovereignty f) The power of the UN Security Council to suspend the court’s activity 2. The issue of universal jurisdiction a) Scheffer, International Criminal Court: The Challenge of Jurisdiction (March 26, 1999) (1) Art. 12 establishes, as a precondition to Art 5 crimes, that when there is a referral of a situation, either 1) the state of territory where the crime was committed or 2) the state of nationality of the accused, must be a State party to the treaty or have accepted the jurisdiction of the Court with respect to the crime in question (2) .'. Rejects universal jurisdiction (a) Would not need consent (b) Not all crimes within the subject matter jurisdiction of the Court enjoy universal jurisdiction under customary international law (c) Parties make a delegation to the Court when they become a party to the treaty b) An analogy: The Hague Hijacking convention 3. Point Counterpoint: a) Kissinger, The Pitfalls of Jurisdiction b) Roth, The Case of Universal Jurisdiction C. Arrest, Surrender, and the duty of cooperation Article 58: Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear 1. At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) There are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest of the person appears necessary: (i) To ensure the person's appearance at trial; (ii) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or (iii) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the Court and which arises out of the same circumstances. 2. The application of the Prosecutor shall contain: 9 Article 123: Review of the Statute 1. Seven years after the entry into force of this Statute the Secretary-General of the United Nations shall convene a Review Conference to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5. The Conference shall be open to those participating in the Assembly of States Parties and on the same conditions. 2. At any time thereafter, at the request of a State Party and for the purposes set out in paragraph 1, the Secretary-General of the United Nations shall, upon approval by a majority of States Parties, convene a Review Conference. Rome Statute of the International Criminal Court 75 3. The provisions of article 121, paragraphs 3 to 7, shall apply to the adoption and entry into force of any amendment to the Statute considered at a Review Conference. 10 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; (c) A concise statement of the facts which are alleged to constitute those crimes; (d) A summary of the evidence and any other information which establish reasonable grounds to believe that the person committed those crimes; and (e) The reason why the Prosecutor believes that the arrest of the person is necessary. Rome Statute of the International Criminal Court 40 3. The warrant of arrest shall contain: (a) The name of the person and any other relevant identifying information; (b) A specific reference to the crimes within the jurisdiction of the Court for which the person's arrest is sought; and (c) A concise statement of the facts which are alleged to constitute those crimes. 4. The warrant of arrest shall remain in effect until otherwise ordered by the Court. 5. On the basis of the warrant of arrest, the Court may request the provisional arrest or the arrest and surrender of the person under Part 9. 6. The Prosecutor may request the Pre-Trial Chamber to amend the warrant of arrest by modifying or adding to the crimes specified therein. The Pre-Trial Chamber shall so amend the warrant if it is satisfied that there are reasonable grounds to believe that the person committed the modified or additional crimes. 7. As an alternative to seeking a warrant of arrest, the Prosecutor may submit an application requesting that the Pre-Trial Chamber issue a summons for the person to appear. If the Pre-Trial Chamber is satisfied that there are reasonable grounds to believe that the person committed the crime alleged and that a summons is sufficient to ensure the person's appearance, it shall issue the summons, with or without conditions restricting liberty (other than detention) if provided for by national law, for the person to appear. The summons shall contain: (a) The name of the person and any other relevant identifying information; (b) The specified date on which the person is to appear; (c) A specific reference to the crimes within the jurisdiction of the Court which the person is alleged to have committed; and (d) A concise statement of the facts which are alleged to constitute the crime. The summons shall be served on the person. Article 59: Arrest proceedings in the custodial State 1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. 2. A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (a) The warrant applies to that person; (b) The person has been arrested in accordance with the proper process; and (c) The person's rights have been respected. Rome Statute of the International Criminal Court 41 3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender. 4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b). 5. The Pre-Trial Chamber shall be notified of any request for interim release and shall make recommendations to the competent authority in the custodial State. The competent authority in the custodial State shall give full consideration to such recommendations, including any recommendations on measures to prevent the escape of the person, before rendering its decision. 6. If the person is granted interim release, the Pre-Trial Chamber may request periodic reports on the status of the interim release. 7. Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible. Article 89: Surrender of persons to the Court 1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender. 2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the Rome Statute of the International Criminal Court 59 request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility. 3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. (b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain: (i) A description of the person being transported; (ii) A brief statement of the facts of the case and their legal characterization; and (iii) The warrant for arrest and surrender; (c) A person being transported shall be detained in custody during the period of transit; (d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State; (e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time. 4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court. Article 90: Competing requests 1. A State Party which receives a request from the Court for the surrender of a person under article 89 shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person's surrender, notify the Court and the requesting State of that fact. 2. Where the requesting State is a State Party, the requested State shall give priority to the request from the Court if: (a) The Court has, pursuant to article 18 or 19, made a determination that the case in respect of which surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition; or (b) The Court makes the determination described in subparagraph (a) pursuant to the requested State's notification under paragraph 1. 3. Where a determination under paragraph 2 (a) has not been made, the requested State may, at its discretion, pending the determination of the Court under paragraph 2 (b), proceed to deal with Rome Statute of the International Criminal Court 60 the request for extradition from the requesting State but shall not extradite the person until the Court has determined that the case is inadmissible. The Court's determination shall be made on an expedited basis. 4. If the requesting State is a State not Party to this Statute the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court, if the Court has determined that the case is admissible. 5. Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discretion, proceed to deal with the request for extradition from the requesting State. 6. In cases where paragraph 4 applies except that the requested State is under an existing international obligation to extradite the person to the requesting State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to: (a) The respective dates of the requests; (b) The interests of the requesting State including, where relevant, whether the crime was committed in its territory and the nationality of the victims and of the person sought; and (c) The possibility of subsequent surrender between the Court and the requesting State. 7. Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradition of the same person for conduct other than that which constitutes the crime for which the Court seeks the person's surrender: (a) The requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court; (b) The requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the Court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special consideration to the relative nature and gravity of the conduct in question. 8. Where pursuant to a notification under this article, the Court has determined a case to be inadmissible, and subsequently extradition to the requesting State is refused, the requested State shall notify the Court of this decision. Article 92: Provisional arrest 1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. 2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain: (a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location; (b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime; (c) A statement of the existence of a warrant of arrest or a judgment of conviction against the person sought; and (d) A statement that a request for surrender of the person sought will follow. Rome Statute of the International Criminal Court 62 3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible. 4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date. Article 98: Cooperation with respect to waiver of immunity and consent to surrender 1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. 2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender. 1. Rinoldi and Parisi, International Cooperation and Judicial Assistance Between the International Criminal Court and State Parties (1999) a) The scope of the obligation to cooperate with the Court (1) Does not have police, a prison, or even a territory, and thus depends on cooperation of the States to be effective (2) Statute does not provide for trials in absentia (3) The States’ actions as investigators and their search for suspects is determinative (4) Court is recognized as an autonomous organ b) Forms of compliance of the States with requests of cooperation and assistance made by the Court (1) Article 86: General obligation to cooperate: States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court. (2) Cooperation required during both investigation and prosecution (3) Request for surrender always accompanied by request for execution of the arrest warrant (4) Obligation to permit or assist the Prosecutor c) Surrender vs. extradition (1) Article 102: Use of terms: For the purposes of this Statute: (a) "surrender" means the delivering up of a person by a State to the Court, pursuant to this Statute. (b) "extradition" means the delivering up of a person by one State to another as provided by treaty, convention or national legislation. (2) Interstate model adopted permits States to assist one another as well as establish conditions and limitations (a) Cannot legitimately “capture” an individual (3) BUT, a request made by the Court is not the same as a request made by a State (a) Moved away from extradition models only to the extent strictly necessary d) Obligation as to the arrest and surrender of persons: “simplified surrender”, Deferred surrender, conditional surrender (1) Simplified surrender: only applies to State parties or States that enter into agreement to comply (2) Conditional surrender: Art 59 indicates that a request to a State party is not subject to conditions (a) Arrest must take place in accordance with the arrest procedure laws of the requested State (b) State then becomes the custodial State and must promptly bring the arrested to competent judicial authorities (3) Art 89(2) provides that the person arrested may challenge the court on the basis of the principle of neb is in idem11 (4) National court does not have the power to adjudicate these claims; must be heard by the ICC (5) Preceding any national court adjudication, the State is obligated to determine if the proceedings will violate the principle of ne bis in idem (a) Required to surrender the individual arrested if the ICC has begun proceedings or has ruled on admissibility of the case (6) Deferred surrender: Art 89(4) concerns the legal requirements of the custodial State (a) No power to postpone (b) May only delay surrender if the Court has not determined the admissibility of the case e) Provisional arrest (1) In urgent cases, a State may be asked to arrest a person on a provisional basis and not for the purposes of the surrender of that person (2) Imposes certain rules in order to ensure procedural fairness (a) Art 58(1) provides that the Court may request a provisional arrest instead of arrest and surrender (b) Person may consent to surrender if permitted by law of the custodial/requested State f) Competing requests (1) Provision on competing requests constitutes an important pivot upon which the delicate relationship between the jurisdiction of the Court and that of the States hinges (a) Requests may concern (a) the same criminal conduct or (b) different conduct; 11 Known in the Common Law Countries as ‘double jeopardy’; twice for the same thing; the phrase usu. referred to the law forbidding more than one trial for the same offense.; essentially refers to the double-jeopardy bar (b) As to the former, the request for extradition may come from a (c) State which may also be a State party to the Statute or a (d) third State (c) In the latter case, a distinction must be made according to whether (e) the extradition requested under an existing treaty or (f) obligations exist between the two States under an agreement (d) As for the situation of competing requests for different acts, a distinction is made according to whether (g) the request comes from a State bound by a binding obligation to extradite, or (h) from a State not bound by such an obligation (2) Competing requests for the same criminal conduct (a) Art 18 requires the Prosecutor to notify the commencement of investigations to all concerned States (b) Art 90(1) requires a State party that receives a request for the extradition of the same person to another State to notify the Court (c) Court’s request has priority unless the two States are bound by treaty (3) Competing requests for different conduct (a) Requested State, if bound by international obligation to extradite, determines which request is to be allowed (4) Obligation to notify the Court of the decision not to extradite to the requesting State 2. Mochochoko, Limits to the obligation to Cooperate (1999) a) Draft Statute contained 11 grounds for refusal b) Each ground for refusal was dealt with, and the result is that Part 9 of the Statute contains no grounds on the basis of which a State may refuse to surrender a person to the Court (1) As to other forms of cooperation, the only permissible ground for refusal is the protection of sensitive national security information c) Execution of requests under Articles 9312 and 9613 12 Article 93: Other forms of cooperation 1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: (a) The identification and whereabouts of persons or the location of items; (b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court; (c) The questioning of any person being investigated or prosecuted; (d) The service of documents, including judicial documents; (e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court; (f) The temporary transfer of persons as provided in paragraph 7; (g) The examination of places or sites, including the exhumation and examination of grave sites; (h) The execution of searches and seizures; (i) The provision of records and documents, including official records and documents; (j) The protection of victims and witnesses and the preservation of evidence; (k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and (l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court. 2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any Rome Statute of the International Criminal Court 63 restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State. 3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary. 4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security. 5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them. 6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial. 3. Notes on the arrest and surrender provisions a) Operational environment of arrest and surrender provisions (1) Definition of surrender compared to extradition (see earlier notes) (2) Necessary because under Art 63(1) “the accused must be present during the trial” (3) Dependant on State’s duty to cooperate (a) Art 86 covers the general duty of a State to cooperate (b) Arts 59 and 89 specifically discuss a State’s obligation to cooperate in arrest and surrender proceedings (c) Art 87(7)14 and 112(2)(f)15 address a State’s failure to cooperate b) Art 58: Issuing the arrest warrant 7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled: (i) The person freely gives his or her informed consent to the transfer; and (ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree. (b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State. 8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request. (b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence. (c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence. 9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request. Rome Statute of the International Criminal Court 64 (ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90. (b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization. 10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State. (b) (i) The assistance provided under subparagraph (a) shall include, inter alia: a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and b. The questioning of any person detained by order of the Court; (ii) In the case of assistance under subparagraph (b) (i) a: a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State; b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68. (c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute. 13 Article 96: Contents of request for other forms of assistance under article 93 1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a). 2. The request shall, as applicable, contain or be supported by the following: (a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request; (b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided; (c) A concise statement of the essential facts underlying the request; (d) The reasons for and details of any procedure or requirement to be followed; (e) Such information as may be required under the law of the requested State in order to execute the request; and (f) Any other information relevant in order for the assistance sought to be provided. 3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law. 4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court. 14 Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council. 15 An Assembly of States Parties to this Statute is hereby established. Each State Party shall have one representative in the Assembly who may be accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly. The Assembly shall: (f) Consider pursuant to article 87, paragraphs 5 and 7, any question relating to noncooperation; (1) 58(1) authorizes issuance of warrant after investigation and on the grounds of reasonable belief (2) 58(2) lists requirements for warrant application c) The arrest (1) Art 58(5): provisional arrest or arrest and surrender (2) Art 59: immediate steps must be taken (a) Deference to national law (b) Art 89(1) requires cooperation (3) Art 92: concerns provisional arrest (a) Time limit: rule 188 requires the formal requirements for surrender to be met within 60 days or else the person is entitled to release (4) Art 58(7): may instead issue a summons, must be served in person (a) Also defers to national law (5) Art 59(2): once the person is arrested, he must be brought to the proper judicial authority of that State (6) Art 59(3): person has the right to apply for interim release pending surrender (a) 59(4) lists factors to consider d) The surrender (1) Art 89: State parties shall comply (2) Art 59(7): once ordered to be surrendered, person must be delivered to the Court as soon as possible e) Objections to arrest and surrender which may be raised by the accused (1) Art 59(2): the warrant applies to that person! (a) Safeguard (b) Defective warrant claims usually just delay the proceedings (2) An art 58 challenge: either the custodial State or the accused may challenge the substantive grounds of the warrant f) The neb is in idem challenge: accused challenges, State must immediately consult with the Court g) Jurisdictional/admissibility challenge: Art 95 (1) Reading art 19 with art 95, it appears that an individual can raise an art 19 challenge after he is arrested but prior to surrender (2) Court must rule according to art 19 (3) State may then postpone under art 95 pending the Court’s decision h) Objections which may be raised by the custodial state (1) Art 19 objection (2) Art 89(4): crime different from the one to which surrender is sought (3) Art 98 agreements: Court must allow State to comply with international obligations D. The United States and the ICC 1. Early debates: The Senate foreign relations committee (1993) a) Section 1: Congressional findings b) Section 2: Sense of the Congress (1) Establishment of ICC would strengthen international law and thus US interests (2) The US should “make every effort to advance this proposal” c) ICC could serve many useful purposes to halt the atrocities seen in WWII, Bosnia, etc. d) Flaws in the “extradite or prosecute” system (1) Having the option of a neutral body such as the ICC would solve many problems (2) “Political offense” doctrine allows States to refuse to extradite for crimes that are of a political nature: an international criminal court would be required to treat all as equals under the law (3) Abduction problems would be resolved e) Harboring of suspects (1) While a State’s protection of its nationals will lead us to believe that an international criminal court will not solve this problem, “the more an international criminal court comes to be viewed by the international community as a fair-minded and reputable organization, the greater will be the compulsion for all nations to accept and abide by its jurisdiction” (a) “no nation enjoys being permanently branded an international pariah” f) Problems with the “ad hoc” approach (1) Must be built from the ground up every time (2) Incapable of providing assurances that justice is being served even-handedly (3) Cannot be established without the support of major world leaders 2. Scheffer, The United States and the International Criminal Court (1999) a) Question was never whether there should be a court, but what kind of court it should be b) A permanent court would be cost-effective and would ensure uniformity c) U.S. objectives for the Rome Treaty (1) US wanted to work towards a successful conference that resulted in a treaty (2) Our responsibilities for international peace and security had to be factored into the functioning of the court (3) US belief that court would not be well served by a prosecutor with the power to initiate investigations and prosecutions of crimes without referral d) Flaws in the Rome Treaty (1) US would not negotiate fundamental issues of international criminal law and international peace and security (2) Fundamental principle of international treaty law is that only State parties are bound – universal jurisdiction offends this principle (a) “It is simple and logically untenable to expose the largest deployed military force in the world, stationed across the globe to help maintain international peace and security and to defend US allies and friends, to the jurisdiction of a criminal court the US Government has not yet joined and whose authority over US citizens the United States does not yet recognize” (3) Complementarity is not a complete answer (4) Limits ability of human rights interventions – may be subject to politically motivated charges (5) “After state parties decide to add a new crime or change the definition of an existing crime, any state that is a party to the treaty can decide to immunize its nationals from prosecution for the new or amended crime. Nationals of nonparties, however, are subject to potential prosecution. For a criminal court, this is an indefensible overreach of jurisdiction” (6) Crimes of aggression could also be used to “strangle legitimate uses of military force and to do so by targeting individuals” e) “Having considered the matter with great care, the United States will not sign the treaty in its present form. While we firmly believe that the true intent of national governments cannot be that which now appears reflected in a few key provisions of the Rome treaty, the political will remains within the Clinton administration to support a treaty that is fairly and realistically constituted. On December 8, 1998, the United States joined a consensus in the UN General Assembly to adopt a resolution that authorizes the work of the Preparatory Commission in 1999. The next step for the United States will be to discuss with other governments our fundamental concerns about the Rome treaty, many of which have been identified in this report. We believe that these and other problems concerning the Rome treaty are solvable.” 3. Broomhall, Cornerstone or stumbling block? The United States and the International Criminal Court a) The Clinton Administration’s search for a negotiated fix (1) The negotiating environment (a) Momentum made it tough for states to modify (b) Too difficult to negotiate for US concerns and would require US to accept unacceptable fundamental changes (2) US concerns that failed (a) Broadening deference to States through Rule of Procedure and Evidence (b) Exemption from surrender for “official acts” (c) A seven-year opt-out from ICC jurisdiction over war crimes (d) Broader deference to “responsible nations” (3) No realistic prospect of ratification b) The US under the Bush administration (1) US decided to abandon efforts, while other States continued on – not likely that the US will be able to return to negotiations to address concerns and make changes (2) When it was ensured that the Statute would go into effect as it was, the US withdrew (a) “unsigned” under Art 18 of the Vienna Convention on the Law of Treaties 4. The case against the court: Testimony of John R. Bolton a) Problems with the Court’s ability to an effective deterrent and to not be used as a political weapon b) “And if you were to look at a military analogy, using these two courts [ICTY and ICTR] as kind of prototypes of a new weapon system that, to be frank about it, had some problems, I think most reasonable people would say ‘let us order a couple more prototypes before we make a final decision’” c) Justice and reconciliation may not be consistent d) Tangible American interests at risk (1) Unacceptable for the US to be bound by a treaty it didn’t sign (2) Crimes of aggression are a problem – particular risk to US military forces e) “I believe that our American policy toward the International Criminal Court should be three noes. No financial support, directly or indirectly, no collaboration, and no further negotiation with other governments to try and improve it” 5. President Clinton signs the statute but holds up the ratification process (December 31, 2000) a) Decides to sign to remain in negotiations in order to protect US interests, but not able to ratify in light of significant flaws 6. Concurrent resolution urging President Bush not to ratify a) ICC has power to threaten US military action b) Crimes of aggression are not defined and .'. the US would have to receive UN approval before engaging in military action c) Civilians subject to jurisdiction above US courts (1) US constitutional guarantees for citizens are too precious and should outweigh the ICC d) Vienna Convention states that a State may not be bound to a treaty which it has not ratified e) Breaks international norms f) Resolves that: (1) The treaty “undermines United States sovereignty and security, conflicts with the US Constitution, contradicts customs of international law, and violates inalienable rights of self-government, individual liberty, and popular sovereignty” 7. The United States rejects the ICC (2002) a) Letter to UN (1) Unsigns treaty b) Statement of Secretary of Defense (1) US rejects jurisdiction of ICC (2) Objections include: “the lack of adequate checks and balances on powers of the ICC prosecutors and judges; the dilution of the U.N. Security Council’s authority over international criminal prosecutions; and the lack of an effective mechanism to prevent politicized prosecutions of American service members and officials” (3) Especially troubling in the midst of the war on terrorism c) Statement by President Bush (1) July 2, 2002 E. American efforts to protect its interests in an ICC world 1. American Servicemembers protection act of 2002 2. Proposed Text of Art. 98 Agreement (July 2002) a) Persons present in State party territory but not national of a State party shall not be subject to jurisdiction 3. EU Guidelines for Art. 98 negotiations with the US a) Denies issues that US took up with the Rome Statute 4. Bloomfield: Current View of the Bush Administration (September 12, 2003) a) ICC doesn’t operate under the Security Council b) “It is the Court’s lack of ready accountability to governments legitimately empowered to represent the people’s interests to which we object” c) While there were assurances that countries could enter into bilateral agreements with the US, the EU guidelines undermine these efforts d) US position is legally correct, not the EU position e) “the United States is pursuing a legitimate, reasonable course, acting in good faith, and hoping its concerns can be addressed without detracting from the interests of others” F. The United Nations and the ICC 1. The authority to refer a situation a) Article 13: Exercise of jurisdiction: The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. b) Lattanzi, § 6: the power of the UN security council to refer a situation to the Court (1) Pursuant to Art 39 (see above) 2. The authority to defer investigations of prosecutions a) Article 16 Deferral of investigation or prosecution: No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. b) Lattanzi § 7: the power of the UN to suspend the Court’s activity 3. Immunity for personnel of non-party states a) Security council resolution 1422 (July 12, 2002) Acting under Chapter VII of the Charter of the United Nations, 1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a twelve-month period starting 1 July 2002 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise; 2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12-month periods for as long as may be necessary; 3. Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligation; 4. Decides to remain seized of the matter. b) Human rights watch response (April, 2003) (1) Resolution grants immunity to personnel from ICC non-state parties involved in UN established or authorized missions for a renewable 12 month period (2) HRW opposes (a) “it grossly distorts the meaning of Articles 16 and 27 of the Rome Statute in ways that weaken the independence of the court, and (b) by amending a multilateral treaty in this way the Security Council has overstepped its authority under the UN Charter” (3) Art 16 allows for deferral and a formal renewal process (a) Does not sanction future blanket immunity (4) Art 27 establishes that no person is above the law (5) Powers of Security Council are subject to important limitations and this goes too far c) Security Council debate on renewal of Resolution 1422 d) Security Council Resolution 1487 Acting under Chapter VII of the Charter of the United Nations, 1. Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC, if a case arises involving current or former officials or personnel from a contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation, shall for a 12-month period starting 1 July 2003 not commence or proceed with investigation or prosecution of any such case, unless the Security Council decides otherwise; 2. Expresses the intention to renew the request in paragraph 1 under the same conditions each 1 July for further 12-month periods for as long as may be necessary; 3. Decides that Member States shall take no action inconsistent with paragraph 1 and with their international obligations; 4. Decides to remain seized of the matter. e) United States gives up 4. Relationship of the Court with the United Nations a) Article 2: Relationship of the Court with the United Nations: The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf. b) Relationship Agreement c) Article 17: Issues of admissibility 1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; Rome Statute of the International Criminal Court 18 (c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. 3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. G. Reflections on the ICC 1. Goldsmith, The Self-Defeating International Criminal Court H. The Courts begins its work 1. Report of the prosecutor I. Postscript 1. Statute of Iraq Special Tribunal (December 2003) III. Creating international law: the role of custom and treaty A. Introduction to customary law 1. Sources of international law a) Statute of International Court of Justice, Art 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. b) Restatement of FR of US §102: Sources of international law (1) A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world. (2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted. (4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate. 2. The evidence needed to establish international law a) Restatement of FR of US §103: Evidence of international law (1) Whether a rule has become international law is determined by evidence appropriate to the particular source from which that rule is alleged to derive (§ 102). (2) In determining whether a rule has become international law, substantial weight is accorded to (a) judgments and opinions of international judicial and arbitral tribunals; (b) judgments and opinions of national judicial tribunals; (c) the writings of scholars; (d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states. b) Condorelli, The Facts Serving to Establish International Practice (1) Elements to determine customary law: (a) Diplomatic practice (b) Case law and doctrine (international and domestic) (c) National legislation (d) International agreements (2) Present trends are inclined to rely more on codified instruments and recommendations and declarations from major international fora (a) These international bodies will affect the more traditional individualistic patterns of establishing customary law (b) Moving towards “parliamentary diplomacy” (away from bilateral agreements) 3. The law of war as customary law a) United States v. von Leeb (1) Geneva and Hague Conventions are binding on all countries, not based on contracting parties, but as customary international law (2) “Most of the provisions of the Hague and Geneva Conventions, considered in substance, are clearly an expression of the accepted views of civilized nations and binding upon Germany and the ∆s on trial before us in the conduct of war against Russia. These concern: (a) the treatment of prisoners of war (b) the treatment of civilians within occupied territories and spoliation and devastation of property therein (c) the treatment of Red Army soldiers who, under the Hague Convention, were lawful belligerents” (3) Provisions in Geneva Convention show that these are crimes under international customary law B. The law of the sea: the formation of customary law with regard to the continental shelf 1. A traditional perspective: Alexander Higgins and C. John Colombus, The International Law of the Sea (1951) a) § 48: “a State exercises sovereign powers or control [over] land and water and the air space above such land and water” (1) “When a State has a seaboard, a certain portion of the sea adjacent to its coasts is also subject to its jurisdiction” (2) “The sea beyond those limits is the high sea and as it forms no part of the territorial jurisdiction of any State, but is open to the common use of all men, there must needs be some rules governing the acts of ‘those who go down to the sea in shops and occupy their business in great waters’” b) § 73: the seabed of the high sea is incapable of occupation by any State and its legal status is the same as the open waters above it, with a few very narrow exceptions c) § 75: the subsoil may be occupied in order to freely develop communications and trade d) § 75A: questions arose with developments in oil drilling technology (1) US President made statement that the US controlled 250 miles of the continental shelf (2) “It may therefore be doubted whether the right to unilateral occupation of the bed of the sea over extended areas can be regarded as established in international law, in any case where such occupation entails the setting up upon the high seas of installations inconsistent with the common right of free navigation” 2. Early developments a) Louis B. Sohn, Cases and Materials on the law of the sea (1989) b) Truman Proclamation on the Continental Shelf (September 28, 1945) (1) “Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control” (2) Primary concern was protecting natural resources c) Other States’ claims: several other states made similar claims, following the US lead d) Convention on the Continental Shelf of 29 April 1958 Article 1 For the purpose of these articles, the term "continental shelf" is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands. Article 2 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The rights referred to in paragraph 1 of this article are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State. 3. The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. 4. The natural resources referred to in these articles consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. Article 3 The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters. Article 4 Subject to its right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources, the coastal State may not impede the laying or maintenance of submarine cables or pipe lines on the continental shelf. Article 5 1. The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication. 2. Subject to the provisions of paragraphs 1 and 6 of this article, the coastal State is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the exploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection. 3. The safety zones referred to in paragraph 2 of this article may extend to a distance of 500 metres around the installations and other devices which have been erected, measured from each point of their outer edge. Ships of all nationalities must respect these safety zones. 4. Such installations and devices, though under the jurisdiction of the coastal State, do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territ