CRIMINAL LAW - RIGONI (CEILS), Appunti di Diritto Penale

Scarica CRIMINAL LAW - RIGONI (CEILS) e più Appunti in PDF di Diritto Penale solo su Docsity! Criminal Law - Rigoni 11/03/24 Principles of jurisdiction How do we decide which courts, or more in general, who intervenes when an international or supranational crime occurs? Criminal law is traditionally very connected to the state it refers to, for this reason it has been very difficult for EU member states to relinquish their sovereignty in this area of law. As a matter of fact, national criminal law is very much rooted in the core values reflected in the constitution or in cultural rationales, this is especially reflected in criminalisation as certain acts are criminalised in a country but not in another (e.g. polygamy, very much linked to the religious side of a system). In addition, some historical key facts might lead to criminalisations of acts correlated to these historical facts (e.g. holocaust). In summary, it is historically difficult to attempt to internationalise and “supranationalise” criminal law due to the aforementioned reasons (historical and cultural reasons + lack of will to relinquish power in this sector of law). However, institutions at one point realised the consequences of an increased globalisation where freedom of movement corresponds also to movement of crimes and of criminals, therefore criminal law and the investigations that come with it have become more and more international, with the need for a cooperation between different systems (e.g. criminal organisations born in Italy which then spread all over the world). ● Transnational crimes: crimes bearing a transnational dimension because the more we move, the more it is possible crimes assume an international dimension; therefore, cooperation between authorities is requested so as to fight crimes at international level. ● International crimes stricto sensu: it encompasses few specific crimes such as war crimes, crimes against humanity, genocide and crime of aggression (terrorism and torture? Included in this notion by some scholars). Criminal jurisdiction How do we know which rules are applicable and which state should go first in prosecuting or investigating? As far as international crimes are concerned, it is essential to recognise that there IS an international court (ICC) but there is no international prison, with convicted individuals being sent to countries within the European borders (not necessarily the one where they are from). Necessity to have these principles of jurisdiction so as to avoid: 1. Conflict of jurisdictions → two countries may claim jurisdiction on a certain crime at the same time. 2. Impunity → the act does not get investigated where no state gets jurisdiction because of lack of clarity on who shall go first. Coordination It is important to avoid conflict of jurisdictions and impunity as well as: - Risk of double jeopardy (ne bis in idem) → no person shall be punished more than once for the same act in different jurisdictions. - Risk of forum shopping → the accused person negotiates which country and which jurisdiction would fit them best and be more convenient (though there are certain cases where the defendant may indeed be enabled to choose). Main criterion for principles of jurisdiction Meaningful (or “genuine”) link → the criminal act shall be meaningfully linked to the state or vice versa: the state trying to prosecute the suspect shall be genuinely linked to the criminal act committed. Principles of criminal jurisdiction Every state is actually free to decide on the scope of application of its national law and on which principles of jurisdiction that state wants to recognise and insert in both its criminal code and its criminal procedural code. Several principles are basically favoured at international level: 1. Territorial principle → a state is entitled to criminal jurisdiction over crimes that occurred within its national territory (in light of the principle of locus commissi delicti). The rationale behind this is that domestic criminal law, very much linked to sovereignty, shall be applicable to any person in the country but it is also where the most part of evidence can be found and where it is easier to carry out investigations. Locus commissi delicti is understood in different ways depending on the systems: - Where the perpetrator acted (conduct) - Where the result of the offence occurred (e.g. online example, the perpetrator has acted in a country but the effects were in other countries as well). - Principle of ubiquity - Preparatory acts What about cyber crimes? Most countries refer to the location of the result, the place where the incriminated content was accessed. What is meant by national territory? We usually refer to international law and to the flag principle. 2. Nationality principle → every offender is subject to their national legal order. The rationale is the duty of allegiance of one person towards the legislation of their country and the solidarity among states (e.g. citizen of A commits a crime in B; I, as A, have the duty to guarantee prosecution in light of solidarity). Important for states that historically refuse to extradite their own nationals and surrender them to prosecution of other countries (e.g. Austria, Germany etc) → Aut dedere aut iudicare, upon refusal to surrender, then the state needs to take on the prosecution to avoid impunity. Who is a national? Nationals (with regard to the nationality principle) are either: - Citizens of a state - Domicile principle, permanent resident (e.g. in common law systems) - Naturalised citizens (this applies to crimes committed before naturalisation) 1 Restrictions - Lex doci (double criminality): the act must be punishable according to the law in force in the state where the crime was committed. In order for the nationality principle to apply (e.g. a German citizen commits a crime in Italy and can be prosecuted in Germany), the crime must be eligible for prosecution also in the other country according to the territoriality principle. - Lex mitior: the penalty imposed by a domestic court must not exceed the penalty provided for by the law of the state where the crime was committed. 3. Protective principles → they grant a state jurisdiction over all offences that violate or endanger its domestic legal interests (regardless of locus commissi delicti and nationality of the offenders). The rationale is that every state has the responsibility to protect its own legal interests and those of its citizens. Sub-principles: a. Protective principle stricto sensu: it refers to the interests of a certain state; a sort of self-defence of the state to take the lead and investigate those crimes which may put in danger the nation’s fundamental interests. The genuine link is very intuitive also because frequently criminal law of the state where the crime has been committed doesn’t protect the interests of the state. E.g. offences related to national security such as espionage, the country where the act takes place might protect its own interests but not that of another country which might be affected by the same act. b. Passive personality principle:it refers to the law of the state of which the person affected by the crime is a national or permanent resident Restrictions: - Lex doci (double criminality): the act must be a crime also under the law of the state of commission - Gravity: seriousness of the crime or list of specific offences in the criminal code so as to limit the jurisdiction of a certain country to only certain crimes. 4. Universality principle → every state is entitled to exercise its own jurisdiction over certain offences (considered at the core of peace within the international community) regardless of the location of the offence, the nationality or the domicile of the perpetrator or the victim. The rationale can be found in common security interests of all states as the legal interest infringed is of a global character (crime that affects values whose protection is considered a common task of the international community as a whole). For the universality principle to be triggered, certain countries require that the suspect finds themself within the borders of that specific country so as to apprehend them and trial them before national courts. E.g. crimes against humanity, genocide, war cries, terrorism, misuse of energy etc. The aim of universal jurisdiction is the avoidance of the risk of impunity (high number of perpetrators, state officials etc). E.g. Judge Garzón issued a warrant to arrest Chilian former Chilian president Pinochet (arrested in London in 1998). The case never went to court because of Pinochet’s death BUT it became an important precedent: possibility to have an effective tool to counter impunity. Convention against Torture, Enforced Disappearance, etc.: every signatory country needs to take responsibility over the crimes object of the convention as it is compulsory to exercise jurisdiction if the suspect is present on the territory of the state (other conventions leave it to national law). 12/03/24 As far as the exercise of universal jurisdiction is concerned, it is up to states to decide whether to take up the investigations of a case. Most countries have the principles of jurisdiction they recognise included in the criminal code or the procedural code. The universal jurisdiction principle is one of the least applied, even though it has known a new beginning for the last few years. This system gives another means to victims to see justice be done; still, it comes with a series of difficulties such as: evidence gathering, apprehending the person, immunities. Certain countries have invested in universal jurisdiction and apply this system systematically with the presence of some specialised units within the judiciary and investigating authorities for that type of investigation and coordination in foreign authorities. Moreover, the role of NGOs has become more and more important for the purpose of initial triggers and bringing cases to the attention of the authority, support in evidence gathering, etc (e.g. European Center for Constitutional Human Rights in Germany). Indeed, one of the most proactive NGOs has been the ECCHR in Berlin, which has actually brought to the investigations and convictions of serious offenders in Germany. - Al Khatib trial, brought to court by the ECCHR in Koblenz (Germany), the first trial on state torture against officers of a regime still in place at the time. - Taha Al-J trial - Moafak D. trial One of the reasons why it is easier to use the principle of universal jurisdiction is because of the important numbers of migrations and flows of refugees. This makes it easier, both at national and supranational level, to apprehend the suspect but also to benefit from the presence of witnesses on the territory where the trial is held who can testify on previous torture due to their being part to facilities where torture was practiced. However, there have been some strong criticisms towards the expansion of criminal law: in certain countries, an increased use of criminal law and of administrative penalties (overlapping with criminal punishment) has verified; this infringes the principle of criminal law as extrema ratio, with criminal law which should be used as the last option in cases where all other measures have previously failed. The universal jurisdiction and the ICC: initially there was a proposal to endow the ICC with universal jurisdiction, this proposal mainly came from Germany and then backed up by other states. Ultimately, it was not granted (especially by the US) due to the fact it was viewed as too intrusive towards national jurisdictions and national systems. The final agreement: territoriality, nationality of the offender (exception granted to allow the investigations of conflicts in areas and offences committed by offenders of countries not within the ICC, safety mechanism to allow the expansion of the jurisdiction of the ICC beyond those cases and referred to the UN SC) → art. 12 and art. 13 Rome Statute. Art. 12 Rome Statute - 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: 2 - Geneva Convention; Established principles (still valid today): ● Individual criminal responsibility for international crimes ● Individual criminal responsibility does not depend on whether the act violates the law of the country in which it was committed ● Acting upon superior’s order does not exclude punishment (can mitigate it) ● Acting as a head of state or government does not exclude punishment ● Every accused has the right to a fair trial The Nuremberg Trials were followed by a series of domestic trials held before national courts of the Allies on the basis of the Control Council Law N. 10 (Dec. 20, 1945). For crimes against humanity, CCL N. 10 included an improvement that permanently affected ICL: the nexus to war crimes or to crimes against peace required by the Nuremberg Charter was eliminated. Here, crimes against humanity became a crime of its own, not needing a link to other crimes. International Military Tribunal for the Far East (IMTE, Tokyo Tribunal) Established by a special proclamation of General MacArthur (19 January 1946; on the same day he adopted the Charter of the IMTFE, following the model set by the Nuremberg trials. It was operational from 1946 until 1948. All 28 defendants were convicted (7 death sentences) Overall development • The attempt to prosecute the Kaiser after WWI • Nuremberg and Tokyo • The age of ‘codification’ • ICTY (1993) and ICTR (1994) • The ICC Criticisms towards ICL ● International criminal institutions are marked by multiple paradoxes. There is a strong discrepancy between reality and expectation. ● The mandates of international criminal courts and tribunals are marked by a considerable degree of ‘goal ambiguity’ (retribution, ending violations and preventing their recurrence, ‘securing justice and dignity for victims’, establishing ‘a record of past events’, promoting national ‘reconciliation’, ‘re-establishing the rule of law’, contributing to the ‘restoration of peace’) ● The ICC has been successful in contexts where it operated with the support of governments. It has struggled to pursue cases challenging the authority of recalcitrant regimes (e.g. Sudan, Kenya). ● Investigations limited to easy targets: non-Western powers or non-armed groups (criticisms that the Court is too consensual). ● Criticisms of colonialism and hypocrisy. ● Struggle for funding. 14/03/24 Transitional justice International criminal law is not the only instrument to form the realm of international criminal justice, which does not either completely overlap with transitional justice. “Transitional justice is the conception of justice associated with periods of political change, characterised by legal responses to confront the wrong-doings of repressive predecessor regimes.” (Teitel, 2003) “The notion of “transitional justice” (...) comprises the full range of processes and mechanisms associated with a society ́s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking (= some courts are called upon to tell the truth about certain regimes without those testimonies being exploitable against them in a trial so as to form collective memory and to gather data for the purpose of negotiations), institutional reform, vetting and dismissals (= removal from office the officials who cooperated with the former regimes or sympathised with the oppressors), or a combination thereof.” (UN SC, 2004) The term “transitional justice” emerged in the years towards the end of the Cold War; before that, “justice after atrocity” or “restorative justice” (it could be applied in domestic contexts and have nothing to do with this use of the term). Evolution of transitional justice: Phase I → Postwar period, especially characterised by the Nuremberg trials and exceptional political conditions where the Allied powers were united with the aim to punish the defeated Nazi regime. Mostly prosecutorial measures at the international criminal law level: - International (fewer national judgements) - Individual judgements (fewer collective sanctions) It was important in this phase to hold the “big fishes” accountable and bring them before justice, only a small number of perpetrators were prosecuted as they decided to focus on those who covered high positions in the chain of responsibility. Furthermore, at the time there was a sort of universal idea of the rule of law, mainly focused on retribution so the Nazi officials had to pay for what they'd done + focus on deterrence so that this degree of violence could not be repeated in the future. Phase II → Post-Cold War period, end of the Cold War (but also Latin American military regimes) with the feature of political fragmentation and so-called “third wave of democratisation” (Huntington, 1991). ➔ First wave, 1820s widening of the suffrage - Fascism ➔ Second wave, 1945 and triumph of the Allies - 60s/70s dictatorships (especially in Latin America) ➔ Third wave, 1991 collapse of Soviet Union / South American military regimes 5 This phase and the end of the dictatorships coincides with a new phase of transitional justice where the international community comes back with the plan to cooperate and punish the perpetrators of human rights violations. This phase is characterised by both international justice and by a higher degree of importance the domestic justice is endowed with (as well as restorative justice). For a long time, there was no involvement of the international community in this kind of affairs and a restraint from intervention before WWII and then we shifted to a strong focus on the role of the international community in the context of the Nuremberg trials. Then, another restraint due to the Cold war and when the international community came back they realised that international intervention as such should not be the only way to intervene in this sort of conflict. The principle of subsidiarity was the main rationale behind this realisation: the closer to the citizens, the closer to the victims, the more likely to have effective measures put into practice. E.g. in Rwanda, the international intervention came after the genocide had occurred therefore Rwanda trialled most of the perpetrators on its own both in domestic courts and through local mechanisms, with all the difficulties coming with it due to the flatness of the system at that point in history. In phase II, the perspective moves from the universal idea of the rule of law focused on retribution and deterrence (typical of phase I) to the pragmatic idea of the rule of law, featured by a tension between punishment and amnesty or the use of alternative mechanisms (e.g. truth and reconciliation commission); there is still a necessity for punishment of perpetrators which is added to that of reconciliation and reparation for victims. In this context, the topic of amnesty was problematic in the Latin American environment marked by the regimes because often negotiations required a grant of amnesty (strongly criticised in Colombia). = Multiple conception of justice → retribution + alternative (sometimes even complementary) paradigms such as reconciliation, restoration, reparation. This phase was also characterised by instruments devoted to the reconstruction of truth and by the idea of a communitarian conception of justice. Furthermore, the opportunity to have domestic and local justice involved gave the victims the chance to take a closer part to the trials (as opposed to international criminal justice, where they are not as involved and this leads to more difficulties in evidence gathering and to a misconception of justice which is conceived as far away from their own national idea of prosecution). The involvement of victims comes with cons as well (their rights may be put in the position to prevail over the offender’s). The role of NGOs increased for the sake of evidence gathering and is still very important alongside the role of private citizens, civil society with the ICC which periodically releases a guideline on how private citizens, research institutions etc can help in gathering evidence and provide an aid to the whole process. This phase is mainly characterised by the intervention at the international level via the ICTY and ICTR which were entrusted with prosecution of perpetrators of mass atrocities respectively in former Yugoslavia and in Rwanda (therefore, coexistence of both types of instrument). Phase III → contemporary situations of persistent conflict, it starts at the end of the XX century and is characterised by globalisation, freedom of movement and a blurring of boundaries between national, supranational and international levels. Furthermore, there is a blurring of sovereignty and of the principle of jurisdiction which then causes uncertainty on who should prosecute crimes. This phase III is defined by political instability and a number of conflicts all around the world, which comes with a strong political fragmentation. Influence of Phase I: ➔ Strong role of the international community with the establishment of the ICC, preceded by the two ad hoc international tribunals BUT these tribunals shall only prosecute limited cases; while the ICTY and ICTR worked on the basis of primacy principle so that they could go first in investigating cases related to those conflicts, in this case the ICC has to wait until the country which has a competence intervenes. Only when those countries do not intervene, can the ICC have a say. ➔ Expansion of the law of war / humanitarian law also in peacetime contexts as already after the Nuremberg Trials, crimes against humanity did not necessarily have to happen in conflictual times but could also be punished in peaceful times. The international community can therefore intervene in peacetime contexts in the affair of the single state through humanitarian law. ➔ Normalisation of transitional justice, it is experienced all the time because of the ongoing conflicts all over the world. Examples of transitional justice: - Hybrid tribunals, subsidiarity is preserved with a local or national court which has some international element as a monitor body in cooperation with the local court to infuse international criminal law and the respect of human rights in these domestic realities (e.g. Special Court for Sierra Leone). - Other: War Crimes Chamber of State Court of Bosnia and Herzegovina, Special Tribunal for Lebanon Goals of transitional justice: 1. Rule of law, its re-establishment after its violation and after conflicts as a peace-building process. 2. Truth, pursued via the establishment of Truth and Reconciliation committees. 3. Justice 4. Peace Mechanisms of Transitional Justice: 1. Prosecutions 2. Reparations, for victims. 3. Truth commissions 4. Amnesties 5. Vetting and dismissals 6. Institutional reforms Challenges of transitional justice: 1. Peace v. Justice debate 2. Collective aspects, there are situations in which the number of victims and perpetrators is very high and it is challenging to bring everybody before justice. This challenge may often resort to alternative measures otherwise it would be impossible to punish everyone and to give reparations to each victim due to the large scale of the crime 3. Weak justice institutions, there may ot be the time to build a new generation of officials and of the whole judiciary. 4. Weak legal frameworks, some systems need to be completely reframed because the legislation in place at the moment does not meet the standards for the respect of human rights in a democratic reality. Elements of crime and criminal responsibility The crime is composed of an objective (actus reus) material element and a subjective element (mens rea). 6 Material element (actus reus) in ICL There is a conduct and a consequence or a result (not necessarily there but in presence of it, there is the need for a causation link between the conduct and the result). The peculiarity in ICL is the presence of a contextual element (chapeau element) → it distinguishes a certain conduct which would amount to crime in domestic legislation and makes this conduct instead an international crime. E.g. Sexual violence is committed as a part of a widespread or systematic attack; this same crime which would amount to “ordinary” sexual violence in domestic law, becomes instead an international crime. Mental element (mens rea) in ICL In ICL, you usually are held accountable for a crime only “with intent and knowledge”. Art. 30 Rome Statute - Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court (i.e. genocide, crimes against humanity, war crimes and the crime of aggression) only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: a. In relation to conduct, that person means to engage in the conduct; b. In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly. In order for somebody to be held accountable, not only for murder as a domestic crime but also murder in the context of international crimes, that person needs to know there is an ongoing widespread or systematic attack against a civilian population. In addition, they need to know they are participating in that attack. There are both a volitional and a cognitive element. Subjective elements: 1. Conduct: intent (the conduct is one of those listed in Artt. 6, 7, 8, 8 bis of the Statute). 2. Consequences/results: knowledge (awareness that a consequence will occur in the ordinary course of events) + intent (person means to cause that consequence or is aware that it will occur in the ordinary course of events). 3. Circumstances: awareness that they exist. Usually there is a distinction drawn between intent and recklessness (dolus eventualis), meaning that I engage in a certain act, I am not necessarily willing to obtain a certain result but I am aware the result is likely. Usually, in international criminal justice, dolus eventualis (recklessness) seems to be rejected and does not amount to responsibility (you need a clear intent); however, there were cases (e.g. Lubanga and Katanga) where the Court has recognised that taking the risk with a high probability of causing a certain event shall suffice to be condemned. Exceptions (“unless otherwise provided”): E.g: Command responsibility has a negligence standard (lower) Genocide requires specific intent (higher) General principles: - Principle of legality, contested in Nuremberg because of the non-retroactivity corollary which was overcome thanks to the argument that the crimes against peace, against humanity and war crimes actually pre-existed (in customary law and previous international conventions) the London Agreement, which had only a declaratory function. (See art. 22, 23 and 24 Rome Statute). - Principle of individual criminal responsibility in ICL, even if one single person commits genocide by launching a nuclear bomb on a village, this may be labelled as genocide. Under international law: only States are held accountable The Nuremberg Trials affirmed for the first time the capacity of individuals to commit crimes under international law and drew the line between responsibility of States and of individuals. Often these crimes are committed as collective actions but it is important to avoid generalisation, collective blame and, later on, fragmentation of societies. On the other hand, by focusing only on the “big fishes”: • Risk of scapegoating, some people are held responsible for everything + risk of dissatisfaction of victims as some perpetrators may end up unpunished (clashes between individual responsibility clashes with collective character of violence). Accountability: Focus on leadership accountability (masterminds): their punishment gives a strong signal and helps in disrupting the whole structure through their being brought down. BUT The process requires significant evidence (high risk of failure) + the victims might want to see their neighbours tried. Three levels of responsibility: - Leadership actors, decision-making powers - Agents, planning/organising individuals. - Executors, materially executing the crime. Modes of liability enshrined in the Rome Statute: 7 “Imminent”: the use of force is about to be carried out, has just started or is still ongoing. “Unlawful”: not justified (under the civil law meaning). On the other hand, the response in self-defence, for it not to be held liable on the ground of self-defence, must be reasonable and proportionate to the degree of danger I, the person I was defending or the property was encountering. The response needs to be: ➔ Necessary, most lenient and at the same time effective response. ➔ Reasonable / proportionate, must not intend to cause greater harm than the one sought to be avoided (just in order to avoid the threat). Art. 31(1)(d) Rome Statute - Grounds for excluding criminal responsibility 1. In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person's conduct: (d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be: (i) Made by other persons; or (ii) Constituted by other circumstances beyond that person's control. Art. 31(1)(d) → necessity and duress, the person commits a crime because of a threat of imminent death or of continuing or imminent serious bodily harm against that person (the defendant) or another person emanating from: • another person (duress); e.g. a person puts a gun to your head and obliges you to kill somebody else. • constituted by other circumstances beyond that person’s control (state of necessity); e.g. shipwreck scenario where, in presence of a single raft, I need to decide whether to save my life or yours (Rose did not even need to give it a second thought </3). Protected interests: a person can be relieved from responsibility if they acted in protection of either: • Theirs or another person’s life; • Bodily integrity; This does not apply to property. There is a need for an objective balancing of the legally protected interests (see above on the requirements of the response). Exclusion does not apply in cases where the person puts themself in a situation in which it is likely they’ll be asked to commit a crime (or of self-induced threat). Art. 32 Rome Statute - Mistake of fact or mistake of law 1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in art. 33. Art. 32 → mistake of fact and mistake of law, in order to be recognised as grounds for excluding responsibility they both need to negate the mental element. 1. Mistake of fact: e.g. a soldier uses certain bullets without knowing the excessively detrimental nature of those munitions (they need to prove they did not know), then their responsibility for the crime might be lifted. 2. Mistake of law: exception to the principle of ignorantia legit non excusat (= normally, a person has to know the law and act according to it). However, there are certain situations where the particular circumstances of the context or of the person make it quite difficult to know the law applicable to that case. What is to be analysed is the following matter: is a reasonable person expected to be aware of the illegality of a particular conduct under international law? Art. 33 Rome Statute - Superior orders and prescription of law 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Government or the superior in question; (b) The person genuinely did not know that the order was unlawful; and (c) The order was not manifestly unlawful. 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful. Nuremberg Principles, Principle IV: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him” (duress excluded, the person was not oblige to act). ICTY and ICTR: no exclusion of responsibility for those acting following superior orders but possible mitigation of punishment. The Rome Statute has codified superior orders at art. 33, which can be applicable only to war crimes and crimes of aggression (manifestly unlawful orders such as genocide and crimes against humanity are not included in the possibility of claim on the basis of art. 33 Rome Statute). Art. 27 Rome Statute - Irrelevance of official capacity 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. Immunities are not a ground for exclusion of responsibility in international criminal law even though they might be in national law. 18/03/24 10 Erdemović case - Erdemović is a 20 year old ethnic Serb, who had voluntarily enlisted in 1994 in the Bosnian Serb army as an auto mechanic. In May 1995, he was transferred to serve as an infantry soldier in the 10th Sabotage Detachment of the Bosnian Serb army. On 6 July 1995, the Bosnian Serb army commenced an attack on the UN “safe area” of Srebrenica. This attack continued through 11 July 1995, when the first units of the Bosnian Serb army entered Srebrenica. On 16 July 1995, buses containing Bosnian Muslim men arrived at the collective farm in Pilica, near Srebrenica. Each bus was full of about 70 Bosnian Muslim men, ranging from 17-60 years of age. After each bus arrived at the farm, the Bosnian Muslim men were removed in groups of about 10, escorted by members of the 10th Sabotage Detachment to a field adjacent to farm buildings and lined up in a row with their backs facing Erdemovic and members of his unit. At first Erdemovic refused to carry out his commander’s order to shoot and kill the Muslim men with his machine gun. But then the commander told him that the alternative was to line up next to the Muslims and be killed. Erdemovic then pulled the trigger, and killed approximately 70 men. When Erdemovic was prosecuted for these killings before the Yugoslavia Tribunal he raised the defence of having acted under duress. Erdemović turned himself in to the ITCY, was cooperative and claimed for mitigation measures. The judges of the Chamber of First Instance found that duress was not applicable as there was no evidence of it, apparently the defence did not provide for enough material proving he was under actual imminent and unlawful threat. Despite aggravating factors (e.g. number of victims), he was still granted some mitigating circumstances based on his age, on the fact he received orders from superiors (not a ground for exclusion but for mitigation), and on the remorse he showed which managed to demonstrate he was no longer a threat. In the first instance, he was sentenced to 10 years for war crimes and crimes against humanity; after the appeal, where he asked again for the application of duress, the court still did not recognise duress as a ground for excluding responsibility but it added it to the other mitigating circumstances. Dissenting opinion by Cassese, an Italian judge who stood against the decision to not grant duress as a ground for excluding responsibility but only as a mitigating factor. Cassese considered four elements: • Immediacy • Absence of alternatives for Erdemovic • Proportionality → can we balance different lives? Could he be held guilty for having wanted to save his life instead of seventy other people’s? • Voluntary causation of the situation • Important factor: the crime would have occurred anyways, even if Erdemović had disobeyed and subsequently died. “Law is based on what society can reasonably expect of its members. It should not set intractable standards of behaviour which require mankind to perform acts of martyrdom, and brand as criminal any behaviour falling below those standards” (ICTY, 1996b, Par. 46) In the appeal, Erdemović was sentenced to a five-year sentence for war crimes. GENOCIDE The core crime of genocide is defined, in the Rome Statute, is defined exactly like in the Genocide Convention and all other documents and statutes of international tribunals. It is often referred to as “crime of crimes” despite the unwillingness to set an hierarchy of crimes which would equate a hierarchy of victims. The field of studies devoted to the area of genocide involves a multidisciplinary perspective, which is something that does not happen with the other three core crimes. “Genocide” originates from the terms “genos” (= race or tribe) and “caedere” (= to kill). The first definition dates back to 1944, before the end of WWII, and is provided by Raphael Lemkin, a German-Polish lawyer: “(...) A coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.” - R. Lemkin This is a broad definition and in the years after the adoption of the Genocide Convention, this definition was slightly reduced first by the GA and then by the Convention itself, resulting in the following definition: “Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the light to live of individual human beings” - (General Asemmbly Res. 96.1) Several factors included in the first ever definition by Lemkin were removed, starting from the cultural and the linguistic elements (despite the criticisms, nowadays we cannot talk about a cultural genocide as a sub-form of it). According to the definition given by the GA, genocide is compared to a homicide on a bigger scale and pertaining to a group rather than to a single individual. In this context, destruction was interpreted in a strong holistic sense (political, social destruction, national feelings, religion and economic existence) thus genocide was and still is meant as an attack to the detriment of a group for being, not so much for materially having committed something. The first codification of the crime of genocide occurred much later than the codification of any other international core crime as genocide it is generally committed or tolerated by the states, alongside a slight reluctance to punish perpetrators. The other crimes, such as war crimes or the crime of aggression, were codified much earlier because they would amount basically to aggressions coming from other states (= international relations) that people did want to punish. Crimes against humanity, for instance, was for a long time punished only if in connection with other crimes and it was only after the war that it became punishable on its own (also in cases where states committed crimes against humanity against their own citizens). Genocide and crimes against humanity, in this sense, came long later because of states being reluctant to punish themselves and their own officials. Nevertheless, nowadays genocide is regarded as a ius cogens norm as well as an erga omnes obligation (ICJ, 1951). What were the first attempts to prosecute genocide? At the end of WWI, there was an attempt with the Treaty of Versailles (1919) and with the setting up of the Commission to investigate the responsibility of the authors of the war and on enforcement of Penalties (especially to investigate the violations of international law committed by Germany). There was some evidence brought by the Commission that both Germans, Austrians and Bulgarians had tried to denationalise the inhabitants of occupied territories (Serbia in particular) by prohibiting the use of the language, starvation etc. There was a recommendation by this Commission to establish a high tribunal that could judge those offences against both the laws and customs of war and the “laws of humanity” (the language is different but it can amount to conducts currently falling under the definition of crime of genocide). These attempts did not achieve great results and the expression of “crimes against Laws of Humanity” was proposed by the Greek members of the commission to punish also the massacres of the Armenians committed by the Ottoman empire (1915). However, this was interpreted as retroactive law. The new crime (against laws of humanity) was proposed by the Greek members of the commission to punish also the massacres of the Armenians committed by the Ottoman Empire (1915). However, this was interpreted as retroactive law. 11 The results of the work of the Commission were unsuccessful: - Kaiser Wilhelm II fled to the Netherlands - Treaty of Lausanne granted an amnesty for crimes committed between 1914 and 1922. Genocide in Nuremberg Holocaust punished under crimes against humanity, in particular the conducts of: “murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population” and “persecution on political, racial or religious grounds” (art. 6(c) London Charter). The court did not have to prove the specific intent to destroy a peculiar group. The term genocide was used during the pleading by the prosecutor but not in the judgement as there was some degree of reluctance to use it due to both political and legal reasons as crimes against humanity were easier to prove. Although, the Nuremberg Trial did not condemn for the crime of genocide, it helped shedding light on genocidal policies and this contributed to the drafting of the Genocide Convention, considered the first human rights document approved by the UN. “The crimes prosecuted by the Nuremberg Tribunal, namely the holocaust of the Jews or the 'Final Solution', were very much constitutive of genocide, but they could not be defined as such because the crime of genocide was not defined until later” (ICTR, Kambanda, 1998) Sources of the definition of “genocide”: UN GA Res. 96(I) (1946) was much broader in scope as it encompassed further groups (cultural, physical, biological genocide) and aimed at formalising universal jurisdiction as well as at instituting a leverage to oblige every national jurisdiction (not really possible) to insert universal jurisdiction for the crime of genocide in their national system. During the drafting of the Convention, the scope was reduced and now we are left with the same definition which appeared first in the 1948 Genocide Convenetion and, in the same form, in both the ICTY and the ICTR. Furthermore, some ICJ judgements established, especially in 2006 and 2007, the prohibition of genocide as a norm of ius cogens and as a norm of customary international law to reinforce its value and broaden its scope towards other countries which might not have signed the Genocide Convention, the ICC Statute etc. The genocide involves a two-fold responsibility: the individual’s for committing a genocide (judged before the ICC; in the past before the ICTY or the ICTR) and that of the state (judged before the ICJ). The Genocide Convention (1948, entered into force in 1951) Aims: (1) obligation for state parties to criminalise and punish genocide; (2) establishment of judicial cooperation for suppression of the crime (including cooperation among the signatory states in preventing and prosecuting genocide (e.g. by facilitating the extradition of génocidaires from one country to the other). (3) extension of the protection to both times of war and peace, both the genocide and the crime against humanity are punishable also in times of peace. Definition we find in the Genocide Convention: Art. 2 Genocide Convention In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. What are the protected groups? (1) National, (2) Ethnic, (3) Racial and (4) Religious. Some groups are not protected within the Genocide Convention because protected groups shall have a high degree of stability so as to avoid people “jumping” from one group to the other to claim the crime of genocide. Another reason behind this decision, especially that of not protecting political opponenets is that, given that during WWII the USSR had committed numerous massacres, the fear was that the Soviet Union may be held responsible for the genocide of political opponents. The Genocide convention provides for a minimum level of protection that every state signing and ratifying the Convention need to adopt within their own national systems whilst being entitled to broaden the scope of the definition by adding new groups. It is not always clear to understand if someone is actually a member of a group, thus jurisprudence has served some indications on how to fit people into categories. “(The group must be) constituted in a permanent fashion and membership of which is determined by birth, with the exclusion of the more “mobile” groups which one joins through individual voluntary commitment, such as political and economic groups. Therefore, a common criterion in the four types of groups protected by the Genocide Convention is that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.” Akayesu, 1998 (ICTR) Objective elements-groups (in Akayesu, 1998) ● National group: a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties ● Ethnic group: a group whose members share a common language or culture ● Racial group: based on hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors ● Religious group: one whose members share the same religion, denomination or mode of worship (watch out for the possibility to change religion). “The preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognized, before the Second World War, as 'national minorities', rather than to refer to several distinct prototypes of human groups. To attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention” (ICTY, Krstić) Also the jurisprudence has doubts on the utility of differentiation of groups. Precisely because of the difficulty in distinguishing among objective characteristics of the groups, of the members and non-members of the groups, the jurisprudence has also added subjective elements. 12 ‘The obligation to prevent the commission of the crime of genocide is imposed by the Genocide Convention on any State party which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide.... The obligation to prevent genocide places a State under a duty to act which is not dependent on the certainty that the action to be taken will succeed in preventing the commission of acts of genocide, or even on the likelihood of that outcome’ (par. 461). → each state has to restrain the indirect commission of genocide (e.g. by avoiding to provide weapons) The Eichmann Trial First national trial adjudicating the genocide, after the approval of the 1948 Genocide Convention. The trial was held in Jerusalem (passive personality principle?) after Eichmann was abducted in Argentina by the Israeli secret services, in 1950. Eichmann was an SS Lieutenant and Head of the section “Jewish Affairs and Emigration” and singled out and identified in Nuremberg as one of the main responsible for the final solution. He fled to Argentina after a few years spent in Europe. Jurisdiction of the court: The protective principle in the form of passive personality plays a role and universal jurisdiction also applies. Israel had passed. In 1950, a law which basically aimed at punishing Nazis and their collaborators and recognised jurisdiction under universal principle for such crimes (also crimes committed against non-Jewish); In addition, the jurisdiction was based on the protective principle (stricto sensu) and passive personality principles, both for the victims and for the interests of Israel itself in prosecuting this case. Indictments for which Eichmann was prosecuted: - Crimes against Jewish people in the formulation of 1950 law which was “specific case of genocide” - Crimes against humanity - War crimes - Membership in a criminal organisation (SS, SD and Gestapo) Defence arguments employed by Eichmann: - Contested jurisdiction of the the court both for the sovereignty (the competence of the court) and the retroactivity of 1950 Law as it was enacted after the facts had taken place + in Nuremberg, the genocide argument was not used as an argument to avoid the retroactivity problem related to it, instead in this case it was used under a different name. - Immunity of state officials → in international law, though, there is no immunity for state officials even if they commit crimes whilst carrying out their functions. Conversely, before national courts, several forms of immunity apply. - Superior orders All defences were rejected so the idea of genocide was already a crime under international law (irrespective of the fact it was deemed as such or as falling under the category of crimes against humanity). What Eichmann often contested is that he was only executing orders; however, what the evidence showed is that he had wide discretionary powers and he also performed devotedly his duties. This trial was viewed as a consolidation of the legacy of Nuremberg and as a milestone for universal jurisdiction and for the fact it was a conviction by a national tribunal of a foreign official acting in this capacity (extremely innovative for the time) Perpetrator typology: Smeulers refers to people like Eichmann with the definition of “devoted warrior”, a character with a very submissive ideology, going even beyond the call of duty, wanting to excel in the performance of their duties. During this crucial trial, Arendt started an investigation on the mind of perpetrators and the study of the criminology of international crimes, coming up with the conceptualisation of the “banality of evil”. According to this conceptualisation, these people we expected to be inhumane were just ordinary men that when put in extraordinary circumstances could perform atrocious actions, because of the absence of critical thinking and empathy towards the duties he was called upon to perform. CRIMES AGAINST HUMANITY In the definition of crimes against humanity there is a long list of conducts which shall fall under the category of crimes against humanity. Origins of crimes against humanity: humanitarian principles that govern armed conflicts; nowadays, humanitarian law refers mostly to war crimes (not only, though!). The term was used for the first time in 1915 to refer to the Armenian mass killings by the Ottoman Empire and employed by the French, the British and the Russian states. The expression was first codified in art. 6 Nuremberg Charter, the first time a conduct of a state against its own citizens became a matter of international law. Furthermore, right after Nuremberg it also became a crime performed in times of peace; up until that moment, it was still linked to war crimes and crimes of aggression. Later it was enshrined in the Nuremberg principles, the ICTY, the ICTR and the ICC Statutes. Progressively, it broadened its scope, with the number of types of conducts falling under the category of crimes against humanity grew extraordinarily. However, there is not yet an ad hoc convention. Art. 6(c) Nuremberg Charter - Crimes against humanity The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organisations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (c) Crimes against humanity - namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Requirements in Nuremberg: - They should be committed during an international armed conflict - Crimes against humanity should be committed in connection with war crimes or crimes against peace. They were viewed as an extension of war crimes while already encompassing in the definition also crimes committed by a state against its own citizens. Requirements in the ad hoc tribunals: 15 - ICTY: this tribunal limited its jurisdiction in the realm of crimes against humanity to those committed in an armed conflict, whether international or internal in character, as part of a widespread or systematic attack. - ICTR: this tribunal limited its jurisdiction in the realm of crimes against humanity to those committed as part of a widespread or systematic attack directed against civilian population on national, political, ethnic, racial or religious grounds (discrimination element). Nowadays these criteria are no longer valid and crimes against humanity can be committed in times of peace and without any discriminatory grounds to be met. Art. 7 Rome Statute For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: [...] 1. A list of acts 2. “Committed as part of a widespread or systematic attack” 3. “Directed against any civilian population” 4. “With knowledge of the attack” There is no nexus required to an armed conflict, neither a national nor an international one and there is no need to commit that crime on the basis of discrimination (exceptions!!). It also enlarges the categories of punishable conducts which fall under the category of crimes against humanity, with the aim of broadening the protection of civilians in every situation (not only conflictual times but also in times of peace). New conducts included in the definition by art. 7 Rome Statute: ● Apartheid ● Enforced disappearance ● Gender crimes and sexual violence + Open clause: it allows courts to add new crimes into the category on the condition that they reach a certain threshold otherwise this would cause problems to the principle of legality. Normative theories about the protected interests behind the qualification of crimes against humanity, mainly concerning the protection of non-combatants: 1. Laws of humanity: crimes against humanity are international crimes because they represent an attack on humanity and on the individual as a human being; 2. International peace and security: they threaten the peace, security and well-being of the world (human coexistence); 3. State or organisation policy: right of the individuals to be protected from abuse of state power (as crimes against humanity are often the result of state policies that promote or tolerate such crimes). However, even non-state actors can commit crimes against humanity. Material element (actus reus) in international criminal law: - Conduct - Consequence / result (if required) - causation + In international criminal law, contextual elements of the crime (“chapeau” element) → e.g. the most peculiar in international crimes is that of crimes against humanity, “an act shall be performed as part of a widespread or systematic attack directed against any civilian population”. This draws the distinction between domestic and international crimes: many crimes listed in art. 7 are also listed in domestic legislation as non-international crimes. However, when committed as part of a widespread or systematic attack, they become an international crime and within the definition of crimes against humanity. Art. 7(1) Rome Statute contains a list of conducts that might fall within the category of crimes against humanity (letters a-k, including an open clause) Two types of conducts: • Murder type: most of them are also criminalized within domestic systems (murder, extermination, enslavement, deportation or forcible transfer, torture, sexual offences, enforced disappearance, etc.); • Persecution related: not always prohibited by national law. Persecution on the basis of racial, religious or political grounds (modern slavery, sex-related persecution, etc.). They do not historically form the core of national criminal codes. Contextual element (chapeau element): “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population” “Attack” does not necessarily mean there is a need to use armed forces but it might refer to any other form of mistreatment; “civilian population” must be the primary target of the overall attack. This definition of target includes also former combatants, wounded people, etc (irrespective of the nationality), not only “pure” civilians are taken into account. Two alternative characteristics of the attack, it shall be either (1) widespread or (2) systematic: (1) “Widespread” (quantitative): the attack shall be conducted on a large scale and cause a large number of victims. The consequences of the attack must concern only the targeted population. What is more is that, in order to assess whether the attack was indeed widespread, the gravity of the consequences has to be evaluated. This is just a combination of factors but it might be that an attack committed in a small geographical area causes a large number of victims anyways. (2) “Systematic” (qualitative): the violence used by the perpetrators in the attack shall be organised in nature and must form a pattern (e.g. repetition of similar conducts or several conducts different from one another but with a common target). There must be a plan, policy and ideology behind the attack. The presence of high level military or political leaders is not required but often present, it makes it easier to prove the feature of systematicity. Examples of systematicity: • Akayesu: the attack was 1. thoroughly organised 2. following a regular pattern 3. on the basis of a common policy 4. involving substantial public or private resources. • Blaškić: the attack had 1. a plan or objective 2. large scale or continuous commission of linked crimes 3. significant resources 4. implication of high-level authorities. ICC: in order to prove the systematic character it is to look at “'the organised nature of the acts of violence and the improbability of their random occurrence” Important elements to look for when trying and proving the systematicity: 16 - Organisation - Patterns - Continuous commissions - Use of resources by either public or private organisations - Planning - Political objectives The attack does not necessarily need the use of armed forces and it can also encompass a mistreatment of the civilian population (e.g. sexual violence does not involve the use of armed force, there must be some level of coercion). Indicators of an attack (highly criticised): ● Minimum scale → occurrence of multiple acts (different from the case of genocide where there usually are multiple acts but only one conduct could theoretically amount to genocide if capable of destroying in whole or in part a certain group). ● Minimal level of collectivity → policy element that involves several people (organisational element): highly controversial because we don’t know how many people are needed for a certain pattern to be recognised as crimes against humanity. However, the presence or absence of the two main elements of widespreadness and systematicity should help in excluding those acts that do not amount to crimes against humanity from the definition. This excludes isolated crimes and unconnected crimes, not recognised as widespread or systematic attacks. During the second half of the XX century there was a tendency to consider crimes against humanity that were at least encouraged by states or those based on a governmental policy. Nowadays, there is a tendency to enlarge the protection: even in absence of systematicity or of a state organisation behind it, if the crimes show a sufficient level of widespreadness then they can be considered as full crimes against humanity due to the presence of a sufficient degree of coordination of the conducts (case-by-case approach). NB: Even non-state actors can be prosecuted for crimes against humanity. State or organisation? - Political parties? - Terrorist organisations? - Criminal organisations? ICC broad view: no requirement of state involvement but “any collective effort to inflict massive crimes on a civilian population”. Mental element (art. 30 Rome Statute): - Intent and knowledge of the individual act - Knowledge of the contextual element (“widespread and systematic attack directed against any civilian population”) - Specific intent required for “persecution” and “enforced disappearance” (general intent is normally applied but some crimes require the specific one). Art. 30 Rome Statute - Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly. Single act: • It must form part of the widespread or systematic attack. • It can in itself constitute and attack if it is of great magnitude (e.g. use of biological weapons). Need for several attacks but if you can prove that the number of victims is high to the point the attack is widespread, even if the act is single and not systematic, then you might be liable on your own for a crime against humanity (theoretical case, hypothèse d’école). • It can also be a different act with regard to the other acts that form part of the attack (e.g. if everybody is acting with sexual violence and I, as a perpetrator, act performing a murder I can still be held responsible for crimes against humanity when joining the attack by means of a different conduct, different from the one of other perpetrators). 20/03/24 Art. 7 Rome Statute - Crimes against humanity 1. For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. 17 ● Any conduct not included in art. 7 can still be inserted thanks to art. 7(1)(k) through the open clause Art. 7(1)(h) Rome Statute - Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in para. 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court ● Peculiar crime that is not usually present in domestic jurisdictions ● Persecution involves the intentional and severe deprivation of fundamental rights, against an identifiable group or collectivity on prohibited discriminatory grounds (similar to genocide but not the same). ● Discriminatory grounds: political, racial, national, ethnic, cultural, religious or gender related or even “other grounds that are universally recognized as impermissible under international law” → Specific intent on the basis of discriminatory grounds!! ● Severe deprivation of fundamental rights: (1) a gross or blatant denial (2) on discriminatory grounds (3) of a fundamental right, laid dawn in international customary or treaty law, and (4) reaching the same level of gravity as other crimes against humanity Neither international treaty law nor case law provides a comprehensive list of illegal acts encompassed by the charge of persecution, and persecution as such is not known in the world's major criminal justice systems. Thus the crime of persecution needs careful and sensitive development in light of the principle of nullum crimen sine lege. ● [Basically: un genocidio che non ci ha creduto abbastanza] ● Persecution needs to be in connection to other acts: (a) any crime within the jurisdiction of the Court; or (b) any other act listed in Article 7(1) ● Examples of acts of persecution: previous list (when committed with a discriminatory intent) murder, extermination, imprisonment, deportation, transfer of populations, torture, enslavement and beatings “conduct that severely deprives political, civil, economic or social rights. This includes the passing of discriminatory laws, restriction of movement and seclusion in ghettos, the exclusion or members of an ethnic or religious group from aspects of social, political and economic life, including exclusion from professions, business, educational institutions, public service and inter-marriage” “Systematic destruction of monuments or buildings representative of a particular social, religious, cultural or other group” ● Mental element: intent related to the act and a specific intent of discrimination ● Difference from genocide: different special intent and difference in the actus reus ● Difference from other crimes against humanity: special intent of discrimination Art. 7(1)(i) Rome Statute - Enforced disappearance ● Arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of law for a prolonged period of time ● Elements of crime: (a) by arresting, detaining or abducting a person, with knowledge that a refusal to acknowledge or give information would be likely to follow in the ordinary course of events; or (b) by refusing to acknowledge the deprivation of freedom to provide information on the fate or whereabouts, with knowledge that such deprivation had occurred ● Surrounding people are additional victims of the crime (friends and families) 21/03/24 Art. 7(1)(j) Rome Statute - Apartheid “Inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime” - Rome Statute → Domination and systematic oppression by one racial group over the other + specific intent (dolus specialis) Art. 7(1)(k) - Other inhumane acts ● Closed lists are restrictive so art. 7 and the ICC give the possibility to include new inhumane acts within the list (not the case for war crimes, listed in a close list of art. 8). E.g. need to encompass future technologies within crimes against humanity and to be large enough to provide protection ● Infringement of the principle of legality, especially determinacy and prohibition of analogy. To limit the risk of analogical application of this article is the imposition of some criteria. ICC: inhumane acts to be recognised as new crimes under the open clause must (1) be of a similar character to prohibited acts; and (2) cause great suffering or serious injury to body or to mental or physical health. Tribunals have already specified that new crimes shall be of “similar gravity and seriousness” to other prohibited acts; e.g. crime of forced marriage inserted as an independent crime by the ICC (Ongwen case). Other conducts which may be inserted thanks to art. 7(1)(k): Mutilation, severe bodily harm, beatings, serious physical and mental injury, inhumane or degrading treatment falling short of the definition of torture, imposing inhuman conditions in concentration camps, forced nudity and forced marriage. International convention? In the field of crimes against humanity there is not an international document, alongside the Rome Statute. The lack of an international instrument which may bind states which are not parties to the ICC Statute is tried to be coped with. 20 What they came up with are the Draft articles on Prevention and Punishment of Crimes against Humanity (2019), drafted by the ILC and subsequently submitted to the UN GA. There have been legal delegations for each nation in order to provide for enlargements or reductions of the scope, for instance. Here some articles: Art. 1 Draft - Scope The present draft articles apply to the prevention and punishment of crimes against humanity. Art. 2 Draft - Definition of crimes against humanity 1. For the purpose of the present draft articles, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: [*same list we find in art. 7 Rome Statute*] Art. 3 Draft - General obligations 1. Each State has the obligation not to engage in acts that constitute crimes against humanity. 2. Each State undertakes to prevent and to punish crimes against humanity, which are crimes under international law, whether or not committed in time of armed conflict. 3. No exceptional circumstances whatsoever, such as armed conflict, internal political instability or other public emergency, may be invoked as a justification of crimes against humanity. → the obligations in the Rome Statute directly address the individual perpetrator; here, the obligations are directly addressed to the State (= international law document). Art. 4 Draft - Obligation of prevention Each State undertakes to prevent crimes against humanity, in conformity with international law, through: (a) effective legislative, administrative, judicial or other appropriate preventive measures in any territory under its jurisdiction (CAH must be criminalised in the national jurisdictions); and (b) cooperation with other States, relevant intergovernmental organisations, and, as appropriate, other organisations. → Effective, dissuasive and proportionate ways are the criteria states should meet when acting in prosecution. The Convention also aims at smoothening the cooperation among states in acting and preventing crimes against humanity. Art. 5 Draft - Non-refoulement 1. No State shall expel, return, surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights or of serious violations of international humanitarian law. Art. 7(1) Draft - Establishment of national jurisdiction 1. Each State shall take the necessary measures to establish its jurisdiction over the offences covered by the present draft articles in the following cases: (a) when the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) when the alleged offender is a national of that State or, if that State considers it appropriate, a stateless person who is habitually resident in that State’s territory; (c) when the victim is a national of that State if that State considers it appropriate. → The goal would be to include universal jurisdiction in the Convention so that everybody could prosecute and punish CAH (not very likely to be accomplished). In reality, the prohibition of CAH is customary international law and the breach of it allows each state to decide to prosecute under universal jurisdiction the perpetrators of CAH. The Draft tried to include the three principles enshrined in art. 7(1). Art. 7(2) Draft - Establishment of national jurisdiction 2. Each State shall also take the necessary measures to establish its jurisdiction over the offences covered by the present draft articles in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite or surrender the person in accordance with the present draft articles. → “Aut dedere, aut iudicare” (aka “representative principle”) principle which concerns some countries (e.g. Austria and Germany) that do not extradite their citizens. If the country decides not to surrender the suspected perpetrator of a CAH that the country finds in its territory - due to their being a national that the country does not want to extradite or due to their being a political refugee who might face human rights violations in the state asking for extradition - in order to avoid impunity, the country shall take the lead, prosecute, possibly convict the person and eventually enforce the punishment. Art. 7(3) Draft - Establishment of national jurisdiction 3. The present draft articles do not exclude the exercise of any criminal jurisdiction established by a State in accordance with its national law. → open clause leaving the possibility for universal jurisdiction to be applied by states, in a way the universal jurisdiction is recognised although other principles are listed first. Art. 10 Draft - Aut dedere aut iudicare The State in the territory under whose jurisdiction the alleged offender is present shall, if it does not extradite or surrender the person to another State or competent international criminal court or tribunal, submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State. Art. 15 Draft - Settlement of disputes 1. States shall endeavour to settle disputes concerning the interpretation or application of the present draft articles through negotiations. 2. Any dispute between two or more States concerning the interpretation or application of the present draft articles that is not settled through negotiation shall, at the request of one of those States, be submitted to the International Court of Justice, unless those States agree to submit the dispute to arbitration. 3. Each State may declare that it does not consider itself bound by paragraph 2 of this draft article. The other States shall not be bound by paragraph 2 of this draft article with respect to any State that has made such a declaration. 4. Any State that has made a declaration in accordance with paragraph 3 of this draft article may at any time withdraw that declaration. → settlement of disputes: after the failure of negotiations, states rely on the competence of the ICJ unless states opt for arbitration. [see “child soldiers”, Lain] 21 22/03/24 WAR CRIMES Ius ad bellum vs ius in bello ● Ius ad bellum: rules that regulate the waging of a war, the start and mainly pertains to rules of international law (UN Charter + crime of aggression). ● Ius in bello: it encompasses humanitarian international law, it regulates rules once the conflict has already started (IHL). IHL applies to all conflicts, irrespective of whether a conflict is in breach of international law or in cases of justified conflicts (e.g. self-defence). Legal basis of war crimes: IHL IHL regulates the conducts of the parties engaged in an armed conflict so as to regulate the obligations and the rights of the states and the behaviour of the individuals engaged in the war (e.g. military leaders). It aims at balancing military considerations and humanitarian considerations so as to avoid unnecessary harm. It is deemed as an attempt at humanisation of humanitarian law through stricter rules, more protected victims, broader application). War crimes constitute grave breaches of international humanitarian law (IHL) but not every breach of IHL amounts to a war crime. Moreover, IHL overall addresses states whereas war crimes specifically address individuals. Within the context of IHL, a balance must be struck between the avoidance of consequences on certain groups of people and the reduction of consequences on groups of people that cannot be taken away from suffering (e.g. combatants). For these two goals, two regimes have been built: ● Hague law: - Limits the consequences of harm on the enemy, it basically protects soldiers for instance by prohibiting the use of means and methods that are particularly dangerous - Conferences at the Hague in 1899 and 1907 on the “Laws and Customs of War on Land” in order to regulate “the right of belligerents to adopt means of injuring the enemy is not unlimited” ● Geneva law: - Protects victims of armed conflicts (e.g. civilians) - Other categories of persons (e.g. prisoners of war, detainees, humanitarian aid workers) - The Geneva law derives from a series of conventions signed in Geneva at first in 1864 (after creation of the International Committee for the Red Cross, body of reference for IHL, institution entitled to provide interpretation of this legislation), 1929 and then in 1949 (Four Geneva Conventions, approved after the Nuremberg Trials) - 1977 Additional Protocols These documents - the 1907 Hague Relations, the 1949 Geneva Conventions as well as other provisions of the Additional protocols - now obtained the status of customary law despite certain states not having ratified the Rome Statute or the additional protocols. Being these documents part of customary law, they can be applied to non-ratifying states, too. The protected interests are the protection of fundamental individual rights in armed conflicts (if possible, to avoid harm or to reduce unnecessary damages) and the idea that, irrespective of what happened during a conflict, restoration should anyways be feasible. War crimes as severe violations of IHL principles among which: 1. Protection of non-combatants: which is the aim of the Geneva Convention which protects civilians, prisoners of war, wounded people, etc. + property protection (especially 2. Principle of distinction: obligation combatants to distinguish civilians from members of the military (only military objectives); attacks cannot target civilians’ objectives. 3. Principle of proportionality (collateral damages), if the number of civilians is very high, it might be difficult to justify the military aims under proportionality principle also on the basis of the military gains resulting from the attack. 4. Prohibition of employing certain weapons causing unnecessary suffering 5. Prohibition of the use of child soldiers Definition of war crimes: ❖ Geneva Conventions: “grave breaches” of the Conventions constitute war crimes. ❖ ICTY (Tadić, 1995): “breach of a rule protecting important values and involving grave consequences for the victim” constitutes a war crime. Here the conditions for a certain conduct to reach the threshold of war crime: - Infringement of IHL rule - Rule found in customary law or in an applicable treaty - It must be a serious violation - It must entail individual responsibility Contextual element: armed conflict For a conduct to reach the international criminal status, a conduct has to be committed: → crimes against humanity: as part of a widespread or systematic attack against a civilian population → war crimes: as part or in connection with an armed conflict (nexus element) In the past only breaches taking place within international armed conflicts were considered as war crimes. Nevertheless, the ICTY (Tadić, 1995) has nullified this distinction because now also violations within internal conflicts, of non-international character, can indeed reach the threshold of war crimes. Currently also violations within internal conflict are punished as war crimes but there are some differences shrinking the scope. There are two lists of conducts amounting to war crimes and they respectively apply to violations within international conflicts and to non-international conflicts: the gravity required in non-international conflicts is slightly higher. NB: Amendment to the Rome Statute with the aim of nullifying the distinction but few states have ratified it yet. 22 Art. 8 bis Rome Statute - Crime of aggression 1. For the purpose of this Statute, “crime of aggression” means the 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. 2. For the purpose of para. 1, “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 UN Charter (ch. 7 about the regulation of the use of force). Any of the following acts, regardless of a declaration of war, shall, in accordance with UN GA resolution 3314 (XXIX) of 14 Dec. 1974, qualify as an act of aggression: [see list] Origins of the crime of aggression: Art. 6(a) London Charter: crimes against peace (a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. Now, the prohibition of the crime of aggression has become part of customary international law. ICC Statute negotiations Difficulties met during the negotiations of the crime of aggression within the ICC Statutes can be summarised in these three questions: ● whether the crime of aggression should be included in the Statute at all; ● how it should be defined; ● how and whether a role for the Security Council should be reflected in the Statute. Former version of art. 5(2) ICC Statute The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the UN Charter. → the ICC would not easily depart from an interpretation by the UN SC or the ICJ because they usually tend to align. The Kampala Conference (2010) added art. 8 bis in an amendment ratified by not every country which is party to the Rome Statute. This implies that the jurisdiction of this crime by the Court is partial and may be exercised only in relation to those states having ratified the protocol, meaning the acts of aggression occurring in their territory (see definition in art. 8 bis). Material element of the crime of aggression Crime committed: (1) by a perpetrator in a leadership position in a State (2) who has participated (= the state) (3) in an act of aggression committed by the State (4) which by its character, gravity and scale, constitutes a manifest violation of the UN Charter. Perpetrator’s characteristics: ● Leader and/or high-level policy-maker ● In a position to effectively exercise control over or to direct the political or military action (of the State that commits the act of aggression) The ICC excludes persons who are not political leaders but nonetheless have the power to shape and influence policy, a de facto leader is not held responsible on the basis of art. 8 bis. “Planning, Preparation, Initiation or Execution” via art. 8 bis ● Link between the act of aggression and the act of perpetrator; you need to be an official + direct control. Art 25(3bis) DI QUALE DOCUMENTO?? In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State ● The prosecutor will have to show that a policy-level accused “planned, prepared, initiated or executed an act of aggression” that was in fact committed, and that the accused fulfilled the of a made of liability under art. 25. ● Defences: art. 31 (grounds for excluding criminal responsibility) + defences under public international law relating to the collective act of aggression (e.g. art. 51 UN Charter, self-defence). In cases of self-defence, the act does not fall under the definition of aggression. Act of aggression: ● “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”. ● Exclusion of acts by individual mercenaries not sponsored by a State or to other non-State actors ● The act of aggression belongs to international law, not to criminal law as such. Thus, the criteria defining what an act of aggression is derive from international law. Prohibition of the use of force: The definition of the legality of the use of force rests upon the UN SC, according to art. 2(4) UN Charter where war is defined as a no longer legitimate means of politics (there are exceptions, though!!) = ius ad bellum. Art. 2(4) UN Charter The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the 25 Purposes of the United Nations. Exceptions which make the use of force lawful: ● Individual or collective self-defence (necessary and proportionate), art. 51 Art. 51 UN Charter nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. ● Force authorised by the UN SC (e.g. UN peacekeeping/peace-enforcement missions coalitions of forces of States) For the purpose of the crime of aggression, the act must be unlawful (not falling under any of the two categories) and a manifest violation of the UN Charter. Manifest violations of the UN Charter: ● Participation in an act that by its character, gravity and scale, constitutes a manifest violation of the UN Charter. ● Customary law: tendency to only consider “war” as attacks in this sense. “The three components of character, gravity and scale must be sufficient to justify a 'manifest' determination. No one component can be significant enough to satisfy the manifest standard by itself” (Kampala) → the three criteria must all be met. The article contains a list of attacks, there might be others which fulfil the conditions and therefore might be recognised as amounting to the same character, gravity and scale as the ones inserted in the Rome Statute. Jurisdiction for the crime of aggression: ● Optional sort of jurisdiction, “opt out” clause because the states having ratified the Rome Statute are not touched upon by the crime of aggression unless they have ratified the amendment in the Kampala agreement. ● Ratione loci / personae: only for those state parties that have ratified the Kampala resolution. ● Ratione temporis: until one year after the ratification by at least 30 states of the Kampala agreement, the jurisdiction would not be exercised. It started its exercise from July 2017 for those states which had ratified the agreement. For all other states, the jurisdiction relates to the single state’s ratification. Trigger mechanisms for the ICC: ● State referrals (including self-referral) ● UN SC referrals ● Proprio motu approach → the prosecutor of the ICC decides whether to investigate a case. Controversies between the ICC and the UN SC are solved once the SC denounces there is an act of aggression going on and asks for the ICC to decide on this. In other cases where the state asks the Court to intervene or the Court itself decides to prosecute or to investigate a case of aggression, there is the necessity for a further authorisation which shall come either from the UN SC within six months since the referral by the State or by the prosecutor; or there should be a pre-trial division authorisation to be sure the act fulfils all the criteria for it to be defined as a manifest violation of the UN Charter. 26/03/24 International Criminal Tribunal for the former Yugoslavia (ICTY) Dayton Agreements (1995) End of the war with a proposal of a new geographical and political organisation, the Federation of Bosnia and Herzegovina, the agreement came to the recognition of two entities: ● Bosniak-Croats Federation ● Republika Srpska At the end of the war, in fact, the arrangement of Bosnia-Herzegovina was at the foundations of the decisions to be made after the end of the conflict. The agreements were signed with the aid of the international community, a strong international supervision by the EU and the UN stabilisation force together with the aid of the High Representative until 2010.. In former Yugoslavia there was a really early engagement of the international community, of the EU and of the NATO, differently from the context of Rwanda where the international community intervened only afterwards. Evidence: The international community started gathering evidence, already during the conflict, of commission of violations of international humanitarian law and of international crimes. This being acknowledged, the international community was in some ways morally obliged to act upon this. The UN SC, several months after the beginning of the conflict, established a commission of experts to gather evidence about what was going on in the conflict and the commission suggested the establishment of an ad hoc tribunal. Evidence of crimes: Mass killings and population transfers, organized rape and torture, imprisonment of civilians and attacks on non-combatant populations, the destruction of towns and cultural property, and ethnic cleansing. Why was specifically the ad hoc tribunal the way to go? ● Possibility to avoid a lengthy procedure of the ratification of a treaty ● Possibility to require state cooperation Factors: ● New form of cooperation within the international community on the subject with a high level of activity at the UN SC following the end of the Cold War. ● Development of IHL and ICL which provided for a body of applicable existing rules upon which the ICTY’s statute could be grounded on ● Interpretation of “threat to international peace and security” to include intra-State conflict and widespread violations of basic human rights 26 Legal bases: ● UN SC Res. 808 (1993) adopted under Chapter VII of the UN Charter, art. 39 ● UN SC Res. 827 (1993) adopted under Chapter VII of the UN Charter, art. 39 Art. 39 UN Charter The SC 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 Art. 41 and 42, to maintain or restore international peace and security. The resolution model was chosen because it would offer an immediate creation, without a demand for a lengthy procedure of signature or ratification (certain countries would not have even ratified a potential treaty, the resolution instead granted jurisdiction on territories of former Yugoslavia). Furthermore, the UN SC requires the states to cooperate with the ad hoc tribunal, including within the notion of cooperation the duty to surrender indicted people. This comes with the mandatory powers and possible sanctions of the UN SC, although enforcement remains problematic. Aims of the ICTY, established during the ongoing conflict, this impacted on the following aims: ● Deterrence from the commission of further crimes as the conflict was still ongoing ● Contribution to the restoration of peace and reconciliation within the society ● Holding responsible individual accountable before justice + avoiding collective responsibility Establishment of the ICTY: ● Established in 1993 in the Hague and its prosecutorial activity lasted from 1994 to 2017. ● Official languages: English and French Organisation of the ICTY: ● Judges were not local ● 16 permanent judges of different nationalities and elected by the UN GA on the basis of propositions of states. ● 4-year mandate (with possibility of re-election) ● 27 judges ad litem ● President elected by the permanent judges (2-year term) ● Vice president On the basis of which qualifications were ICTY judges appointed? Art. 13 ICTY Statute - Qualifications of judges The permanent and ad litem judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers and sections of the Trial Chambers, due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law. Chambers: ● Three trial chambers, each of which composed of three permanent judges + max 9 ad litem judges ● Each trial Chamber is composed of 3 permanent judges + maximum of 9 ad litem judges (one internal president elected) ● Chambers can split into sections of 3 judges ● Appeal Chamber composed of 5 permanent judges Prosecution and registry: ● Prosecutor appointed by the UN SC on nomination of the UN Secretary General (4-year term) ● Assisted by the office of the ● Registry: responsible for administration Jurisdiction: ● Ratione personae: crimes committed by natural persons ● Ratione loci: crimes committed in the territory of the former Socialist Federal Republic of Yugoslavia fell under the ICTY jurisdiction ● Ratione temporis: crimes committed from Jan. 1, 1991 to 2001. ● Ratione materiae: - Grave breaches of the Geneva Convention (art. 2 ICTY Statute) - Any serious violation of the law and customs of war (art. 3 ICTY Statute), including violations of Hague law, infringements of the Geneva Conventions not classified as “grave breaches”, and violations of common art. 3 GC and other customary rules in internal conflicts. - Genocide (art. 4 ICTY Statute) - Crimes against humanity committed during an armed conflict (art. 5 ICTY Statute). The jurisdiction of the court is limited because the period considered by the court was more or less viewed as a period of armed conflict, overall at least. Domestic vs international jurisdiction: ● ICTY > national courts on the basis of primacy principle; the ICTY could start a proceeding regardless of the potential willingness of the national court to investigate the same case; the iCTY could also ask to defer the proceedings to the ICTY even if the national court had already began proceedings. ● Possibility of asking to defer proceedings ● Possibility of re-trying a person if the national proceeding was: - For ordinary crimes - Not impartial or independent - Designed to shield the accused from international criminal responsibility - Not diligently prosecuted ● Duty of states to cooperate 27 ● Perceived fairness of the procedure (procedural justice) because people are much more involved in the procedure (especially if compared to “ordinary” court law). ● Availability (geographical proximity) ● Lower costs ● Duration of proceedings ● Attention to social peace and the reconstruction and rebuilding of social peace and of social bonds (restorative rather than retributive justice or deterrence) Consequences and dangers of informal mechanisms: ● Legal uncertainty ● Stigmatisation of the victim for a certain crime, the victim may be ostracised by the community if a woman has been raped, for istance. ● Human rights concern: the informal character of these instruments makes it difficult to verify the compatibility of their procedures and outcomes (e.g. death penalty) with international human rights standards. ● However: Gacaca courts were set up and disciplined by law (they are not completely informal) + there are some minimum standards they need to comply with. Goals of the Gacaca: ● Identifying the truth around the genocide ● Speeding up the trials. However, courts could not try everybody due to the high number of perpetrators ● Fighting against the culture of impunity ● Contributing to national unity and reconciliation process due to the high involvement of the community ● Demonstrating the capacity of Rwandan people to resolve their own national problems. The participation of the international community was restricted in order to improve the Rwandan process of transitional justice and to show some national pride. Composition and functioning of the Gacaca court: ● Pyramidal organisation: cell, sector, district and province (appeal was possible) ● Possibility of appeal to a higher level ● Initial phase: collection of evidence and categorisation of perpetrators by the general assembly by listening to people testifying and by categorising the perpetrators thanks to the witnesses’ testimony. ● Each court had 19 lay judges and 5 substitutes ● At least 15 needed to be present (then reduced to 7 to speed up the proceedings) for a decision to be officially valid ● Presence of witnesses ● Hearings once a week ● Sentences: prison sentence, reparations, community work etc (confession entailed a strong mitigation of punishment) ● No possibility of death penalty Characteristics: ● Restorative justice is based on the voluntary feature of participation both on the part of the perpetrator and of the victim. In this case there is no voluntary basis as perpetrators were forced to participate and victims were not given the possibility to withdraw from the process (when restorative justice ought to give the possibility to withdraw). ● Neither completely informal nor restorative. Problems linked to the Gacaca courts in terms of procedural guarantees: ● Absence of fair trial standards ● No right to a defence lawyer ● Crimes committed by the Rwandan Patriotic Front after 1994 were not tried and this negatively affected the potential achievement of social reconciliation as many crimes went unpunished. Summary of the three levels of jurisdiction: ICTR 1.1.1994 - 31.12.1994 1, 2, 3, 4 (primacy principle was never applied because of the idea that transitional justice should take place at the local level) NATIONAL COURTS 31.10.1990 - 31.12.1994 1, 2, 3, 4 (2, 3, 4 were partly left to Gacaca courts because of the high workload) GACACA COURTS 31.10.1990 - 31.12.1994 2, 3, 4 (no possibility of application of death penalty) 04/04/24 The International Criminal Court (ICC) The establishment of the ICC followed a long process of negotiations and debates in terms of procedural law. Finally, in 1998, the ICC Statute was adopted, counting now 124 state parties; it entered into force on July 1, 2002. Jurisdiction ratione materiae: ● Genocide ● Crimes against humanity ● War crimes ● Aggression (only for those states having ratified the Kampala agreement) 30 Universal aspiration of the ICC: ● Permanent character ● The ICC had a universal aspiration both geographically and in terms of a long-term activity. ● Specifically, it is supposed to be a court for the entire international community. ● Consensual elements in the ICC: every element of the Statute was negotiated, the result is not an imposed body as the ICTY or the ICTR. ● Binding only to the parties to the Statute. Consensual nature is reflected in several aspects: 1. Jurisdiction: - No universal jurisdiction (though there were discussions on its possible adoption) - Principles (art. 12 Rome Statute): (1) territoriality and (2) active nationality - The minimum age for a person to be considered responsible is18 (at the time the crime was committed) - UN SC can extend this jurisdiction (in addition to territoriality and active nationality) and refer a case to the ICC even in case where the conflict is taking place outside a country which has ratified the Statute and where the suspects are of a different nationality from the one of the country which has ratified the Statute. The procedure of the SC can be vetoed by the permanent members. - Art. 12(3) is another possibility to extend jurisdiction whereby a country declares to a registry to not be party to the Rome Statute yet to accept the jurisdiction of the ICC for a period being or for a certain conflict. Art. 12 Rome Statute - 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. 2. Trigger mechanisms to activate this jurisdiction (art. 13 Rome Statute); how does the Court start intervening?: Art. 13 Rome Statute - 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. 1. State referral (including self-referral) whereby a certain state party to the Statute can point out a potential situation. 2. UN SC Referral, in cases where a conflict is occurring in a country which is not party to the Statute or perpetrators are nationals of a country which is not party to the Statute, the crime may be referred to the ICC (e.g. Darfur and Libya). However the veto power can be exercised. 3. Proprio motu referral by an ICC prosecutor themself who decides to investigate on their own in a certain context: to ensure impartiality and control over the work of the ICC, the authorisation by the pre-trial chamber is required (for the sake of checks and balances). 3. Principle of complementarity (art. 17 Rome Statute): - States have primary responsibility to investigate and prosecute international crimes (sovereignty preservation). - National jurisdiction goes first and the ICC intervenes only when national courts are inactive (different from the contexts of ad hoc tribunals, which could even take away cases from national courts) - When does the Court intervene? (1) in cases where domestic courts have decided not to investigate; (2) where internal courts have investigated only to shield the perpetrator (see art. 17). - Two-step verification carried out by the Court: (1) If no domestic investigations or prosecutions are initiated: automatic jurisdiction of the ICC; (2) If there are investigations or prosecutions: the Court shall anyways check that domestic institutions are able and willing. - In order for the Court to be prevented from intervening and for the ne bis in idem criterion to be met, there needs to be a substantial overlap between the conduct and the person accused - Need for overlap at the two levels. The exercise of jurisdiction before the ICC: ● Both the ICC and the states have jurisdiction when criteria are met, namely: territoriality, active nationality or art. 20(3). Principle of complementarity does not define jurisdictions Principle of complementarity does define the exercise of jurisdictions ● The Statute contains rules (art. 17 Rome Statute) concerning the admissibility of a case. The Court cannot exercise the jurisdiction that it has if a case is inadmissible thus all criteria need to be met for the case to be admissible. ● To sum up, conditions to be met: (1) Jurisdiction conditions (2) Trigger mechanisms 31 (3) Principle of complementarity if the Court can still intervene Challenges to the activity of the ICC: ● Lack of enforcement power: the ICC relies on state cooperation both to investigate, to acquire evidence and to enforce its decision ● Intervention in ongoing conflicts: problems for prosecutors and consequences of their action on the conflict ● Selectivity: focus on Africa and extension of cases investigated by the Court within African borders. Who can challenge the admissibility of a case? Art. 19 Rome Statute serves two functions: ● To protect State sovereignty (guaranteed by the principle of complementarity) ● To protect individuals’ rights where the ne bis in idem principle is infringed Art. 19 Rome Statute - Challenges to the jurisdiction of the Court or the admissibility of a case Challenges to the admissibility of a case on the grounds referred to in art. 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 art. 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 art. 12. ● The final decision on the admissibility is made by the pre-trial Chamber based on a case-by-case approach. Penalties, art. 77 Rome Statute: Art. 77 Rome Statute - Applicable penalties 1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute: (a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or (b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. 2. In addition to imprisonment, the Court may order: (a) A fine under the criteria provided for in the Rules of Procedure and Evidence; (b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties. The ICC and the international community reject the death penalty and the Court has decided to impose other punishments enshrined in art. 19. Main actors: see table slide 15 Prosecutors: ● Elected by the Assembly of state parties ● Start the case ● Assist the judges in discovering the truth ● Bound by objectivity ● Must take into account the needs of victims ● Independent ● ICC: decision to entrust the prosecution with the power to take action proprio motu (under control of the pre-trial chamber) Defence: ● Right to a fair trial ● Equality of arms ● Integrity of the proceeding and process of truth finding However, Lack of substantive equality because the accused usually has less means and resources, finds out later about investigations against them and does not enjoy a complete cooperation of state authorities for their individual investigations. Counsels: ● Appointed and funded by the ICC if the defendant lacks means to afford attorneys ● Suspects/accused: right to represent themselves (self-representation), however not illimited if the person misbehaves in trial. ● Interest of the client but not obstruction of justice ● Accused must be present during trial (in absentia possibility only as an exception if the person is notified about investigations and the trials going on but they are under other obligations which oblige them to be absent for a certain period, it is just for exceptions). Judges: ● 18 judges (for 9 years) ● Elections are regulated by art. 36 Rome Statute ● Not everyone was a judge before ● Elected by the Assembly of State Parties ● Equitable geographical and gender representation They shall be “persons of high moral character, impartiality and integrity who possess the required qualifications in their respective states for the highest judicial offices” ● Knowledge of criminal law or international law 32