Law 111 Public International Law

Atty. GILBERT R. HUFANA

Professor

International Criminal Court

(ICC)
 The ICC
It came into being on 1 July 2002the date its
founding treaty, the Rome Statute of the
International Criminal Court, came into force
the first permanent, treaty based, international
criminal court established to help end impunity
for the perpetrators of the most
serious crimes of concern to the
international community
 The ICC
The ICC is an independent international
organization, and is not part of the United Nations
system.
Its seat is at The Hague in the Netherlands.
Although the Courts expenses are funded primarily
by States Parties, it also receives voluntary
contributions from governments, international
organizations, individuals, corporations and other
entities.
The ICC in The Hague
 The Rome Statute

Green: Parties; Yellow: Signed but not ratified; Red: Neither signed nor ratified
 The ICC Today

Seat: The Hague, Netherlands

Official Languages: English, French, Arabic,
Chinese, Russian, Spanish
Statute in force for 122 states
The President of the Court is Judge Sang-
Hyun Song (Republic of Korea). Judge Sanji
Mmasenono Monageng (Botswana) is First
Vice-President, and Judge Cuno Tarfusser
(Italy) is Second Vice-President.
 Jurisdiction
Article 5 of the Rome Statute grants the
Court jurisdiction over four groups of crimes,
which it refers to as the "most serious crimes of
concern to the international community as a
whole": the crime of genocide, crimes against
humanity, war crimes, and the crime of
aggression.
Initiated by a state party, the SC and the prosecutor
on its own/motu propio
 Jurisdiction
The Court has four mechanisms which grant it
jurisdiction:
(1st) if the accused is a national of a State party to the
Rome Statute
(2nd) if the alleged crime took place on the territory of
a State Party
(3rd) if a situation is referred to the Court by the
United Nations Security Council.
(4th) if a State not party to the Statute 'accepts' the
Court's jurisdiction.
 Territorial Jurisdiction
During the negotiations that led to the Rome
Statute, a large number of states argued that the
Court should be allowed to exercise universal
jurisdiction.
However, this proposal was defeated due in
large part to opposition from the United States.
A compromise was reached, allowing the Court
to exercise jurisdiction only under the following
limited circumstances:
 Territorial Jurisdiction
where the person accused of committing a crime
is a national of a state party (or where the
person's state has accepted the jurisdiction of the
Court);
where the alleged crime was committed on the
territory of a state party (or where the state on
whose territory the crime was committed has
accepted the jurisdiction of the Court); or
where a situation is referred to the Court by the
UN Security Council.[
 Temporal jurisdiction
The Court's jurisdiction does not apply
retroactively: it can only prosecute crimes
committed on or after 1 July 2002 (the date on
which the Rome Statute entered into force).
Where a state becomes party to the Rome
Statute after that date, the Court can exercise
jurisdiction automatically with respect to crimes
committed after the Statute enters into force for
that state.
 Complementarity
The ICC is intended as a court of last resort,
investigating and prosecuting only where
national courts have failed. Article 17 of the
Statute provides that a case is inadmissible if:
"(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;
 Complementarity
Article 20, paragraph 3, specifies that, if a
person has already been tried by another court,
the ICC cannot try them again for 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
 Complementarity
(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."
 Complementarity
(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."
 Genocide

the deliberate and systematic destruction,

in whole or in part, of an
ethnic, racial, religious, or national group
any of the following acts committed with
intent to destroy, in whole or in part, a
national, ethnical, racial or religious group,
as such:
killing members of the group;
 Genocide
causing serious bodily or mental harm to
members of the group;
deliberately inflicting on the group conditions
of life, calculated to bring about its physical
destruction in whole or in part;
imposing measures intended to prevent births
within the group; [and]
forcibly transferring children of the group to
another group.
 Crime against humanity
are particularly odious offenses in that they
constitute a serious attack on human dignity or
grave humiliation or a degradation of one or
more human beings
part either of a government policy (although the
perpetrators need not identify themselves with
this policy) or of a wide practice of atrocities
tolerated or condoned by a government or a de
facto authority
 Crime against humanity
Murder; extermination; torture; rape; political,
racial, or religious persecution and other
inhumane acts reach the threshold of crimes
against humanity only if they are part of a
widespread or systematic practice.
Isolated inhumane acts of this nature may
constitute grave infringements of human rights,
or depending on the circumstances, war crimes,
but may fall short of falling into the category of
crimes under discussion.
 War Crimes
serious violations of the laws applicable in armed
conflict (also known as international humanitarian
law) giving rise to individual criminal responsibility
Examples: murder, the ill-treatment or deportation
of civilian residents of an occupied territory to
slave labor camps", "the murder or ill-treatment
of prisoners of war", the killing of prisoners, "the
wanton destruction of cities, towns and villages,
and any devastation not justified by military, or
civilian necessity
 Crime of Aggression
planning, preparation, initiation or execution, by a
person in a position effectively to exercise control over
or to direct the political or military action of a State, of
an act of aggression which, by its character, gravity
and scale, constitutes a manifest violation of the UN
charter
act of aggression means the use of armed force by a
State against the sovereignty, territorial
integrity or political independence of another State, or
in any other manner inconsistent with the Charter of
the United Nations
 Crime of Aggression
invasion or attack by the armed forces of a
State of the territory of another State, or
any military occupation
Bombardment by the armed forces of a State
against the territory of another State or the use
of any weapons by a State against the territory
of another State
blockade of the ports or coasts of a State by
the armed forces of another State
 Crime of Aggression
attack by the armed forces of a State on the
land, sea or air forces, or marine and air fleets of
another State
use of armed forces of one State which are
within the territory of another State with the
agreement of the receiving State, in
contravention of the conditions provided for in
the agreement or any extension of their
presence in such territory beyond the
termination of the agreement
 Crime of Aggression
action of a State in allowing its territory, which it
has placed at the disposal of another State, to
be used by that other State for perpetrating an
act of aggression against a third State
sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which
carry out acts of armed force against another
State of such gravity as to amount to the acts
listed above, or its substantial involvement
therein
 Structure of the Court

The Court is an independent institution.

The Court is composed of four organs.
These are:
the Presidency,
the judicial Divisions,
the Office of the Prosecutor and
the Registry.
 The Presidency
responsible for the overall administration of the
Court, with the exception of the Office of the
Prosecutor, and for specific functions assigned
to the Presidency in accordance with the Statute
composed of three judges of the Court, elected
to the Presidency by their fellow judges, for a
term of three years
The current President of the Court is Judge
Sang-Hyun Song (Republic of Korea).
 Judicial Divisions
consist of eighteen judges organized into the
Pre-Trial Division, the Trial Division and the
Appeals Division
judges of each Division sit in Chambers which
are responsible for conducting the proceedings
of the Court at different stages
Assignment of judges to Divisions is made on the
basis of the nature of the functions each Division
performs and the qualifications and experience
of the judge.
 Office of the Prosecutor
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
Currently, the Office is headed by the
Prosecutor, Mrs. Fatou Bensouda (The Gambia),
who was elected by the States Parties for a term
of nine years.
 Registry
responsible for the non-judicial aspects of the
administration and servicing of the Court
headed by the Registrar who is the principal
administrative officer of the Court
The Registrar exercises his or her functions
under the authority of the President of the Court.
 Other Offices
The Court also includes a number of semi-autonomous
offices such as the Office of Public Counsel for Victims
and the Office of Public Counsel for Defense.
These Offices fall under the Registry for administrative
purposes but otherwise function as wholly independent
offices.
The Assembly of States Parties has also established a
Trust Fund for the benefit of victims of crimes within the
jurisdiction of the Court and the families of these
victims.
 General Principles of Criminal
Law adhered to by the ICC
Nullum crimen nulla poena sine lege
maxim states that there can be no crime
committed, and no punishment meted out,
without a violation of penal law as it existed at
the time
Rule against Ex-post facto law
No person shall be criminally responsible
under this Statute for conduct prior to the
entry into force of the Statute.
 General Principles of Criminal
Law adhered to by the ICC
A person shall be criminally responsible and liable
for punishment for a crime within the jurisdiction of
the Court if that person:
Direct participation
Orders, solicits or induces the commission of
such a crime which in fact occurs or is attempted
In any other way contributes to the commission
or attempted commission of such a crime by a
group of persons acting with a common purpose
General Principles of Criminal
Law adhered to by the ICC
For the purpose of facilitating the commission of
such a crime, aids, abets or otherwise assists in its
commission or its attempted commission, including
providing the means for its commission
directly and publicly incites others to commit
genocide
Attempts to commit such a crime by taking action
that commences its execution by means of a
substantial step, but the crime does not occur
because of circumstances independent of the
person's intentions
 General Principles of Criminal
Law adhered to by the ICC
Individual responsibility
The Court shall have no jurisdiction over any person
who was under the age of 18 at the time of the
alleged commission of a crime.
Crimes under the jurisdiction of the ICC do not
prescribe.
Intent and knowledge is an essential element.
Mistake of fact exemption from criminal liability
Mistake of law - not be a ground for excluding
criminal responsibility
 General Principles of Criminal
Law adhered to by the ICC
Exemption from criminal liability
Person suffering from mental disease or defect
person is in a state of intoxication that destroys
that person's capacity to appreciate the
unlawfulness or nature of his or her conduct
self-defense
caused by duress resulting from a threat of
imminent death or of continuing or imminent
serious bodily harm against that person or
another person
The International Criminal Court

END OF LECTURE