ICL

INTERNATIONAL CRIMINAL LAW

OMAR AL BASHIR AND THE CASE OF SUDAN

OBLIGATIONS OF NON-STATE PARTIES

COURTROOM AT THE ICC

Article 12 (3)

Preconditions to the exercise of jurisdiction

If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Article 13 (b)

Exercise of jurisdiction

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;

ADMISSIBILITY OF CASES AT THE ICC

TUTORIAL

IPHR, Class No. 2, Term 2

January 13, 2015

Article 17 of the Rome Statute

Defines the different situations in which a case is inadmissible

1. The case is being investigated or prosecuted by a State which has jurisdiction over it

2. The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned

3. The person concerned has already been tried for conduct which is the subject of the complaint

4. The case is not of sufficient gravity to justify further action by the Court

ICC, The Hague (Netherlands)

Different courts and tribunals and the region/conflict/key issues they deal with

HYBRID/SPECIAL COURTS

Interesting novelty in the international criminal law is the emergence of “third-generation” of criminal bodies - internationalized or hybrid criminal bodies.

Currently, there are four such jurisdictions, in East Timor, Kosovo, Sierra Leone, Cambodia (the so called Extraordinary Chambers in the Courts of Cambodia).

Internationalized criminal bodies form a family on their own, which sets them apart from all other cognate entities. In some cases they are part of the judiciary of a given country, while in others, they have been grafted onto the local judicial system. But in all cases their nature is mixed, incorporating at the same time international and national features. They all are composed of international and local staff (both judges, prosecutors, support staff), and apply a compound of international and national substantial and procedural law.

AD HOC CRIMINAL TRIBUNALS

The United Nations has established special international criminal tribunals in Rwanda and Yugoslavia to prosecute those responsible for atrocities during times of war and genocide.

Article 35 of the Vienna Convention on the Law of Treaties, adopted on 23 May 1969, clearly provides that ‘‘An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.’’

To state parties the ICC ‘‘is entitled’’ to present ‘‘co-operation requests’’ and they are obliged to ‘‘co-operate fully’’ with it in ICC investigations and prosecutions of crimes. But as for non-party states, the ICC only ‘‘may invite’’ them to ‘‘provide assistance’’ on the basis of an ad hoc arrangement.

International Residual Mechanism for Criminal Tribunals (UNMICT)

Since the Tribunal started its work, 78 individuals, or 48% of the 161 accused, had charges of sexual violence included in their indictments.

International Criminal Tribunal for Rwanda (ICTR)

ICTY Webpage

http://www.icty.org

Broad Overview

Formal name: International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994.

Established by Security Council resolution 955 (1994) of 8 November 1994

Located in Arusha, United Republic of Tanzania.

The ICTR’s jurisdiction is limited to acts of genocide and crimes against humanity, as defined in its Statute, and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II committed in Rwanda, or by Rwandan nationals in neighboring States, between January 1, 1994 and December 31, 1994.

The work of the ICTY and ICTR will soon be completed, however some tasks, including archiving of the case materials, will be carried out by a new body, the International Residual Mechanism for Criminal Tribunals. This body calls itself the UN Mechanism for International Criminal Tribunals (UNMICT).

Established by Security Council resolution 1966 (2010).

Located in Arusha and The Hague.

Reports to the Security Council.

International Criminal Tribunal for the Former Yugoslavia (ICTY)

Formal name: International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991.

Established by Security Council resolution 827 (1993) of 25 May 1993

Located in The Hague, The Netherlands

In accordance with its Statute, the ICTY has jurisdiction over the territory of the former Yugoslavia from 1991 onwards. It has jurisdiction over individual persons and not organisations, political parties, army units, administrative entities or other legal subjects. The Tribunal has authority to prosecute and try individuals on four categories of offences: grave breaches of the 1949 Geneva conventions, violations of the laws or customs of war, genocide and crimes against humanity.

Although the ICTY and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former Yugoslavia, the ICTY can claim primacy and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. It can also refer its cases to competent national authorities in the former Yugoslavia.

Most common criticism: Africa focus?

What is the jurisdiction of the ICC?

Rome Statute of the ICC

PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW

Article 51

Crimes within the jurisdiction of the Court

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

Consciousness raising

Feminist practical reasoning

• This method offers a means of testing the validity of accepted legal principles through the lens of the personal experience of those directly affected by those principles.

• Consciousness-raising is an interactive and collaborative process of articulating one's experiences and making meaning of them with others who also articulate their experiences.

• Like the woman question and practical reasoning, consciousness-raising challenges the concept of knowledge. It presupposes that what I thought I knew may not, in fact, be "right."

Conclusion

Asking the woman question

• This method is designed to expose how the substance of law may silently and without justification submerge the perspectives of woman and other excluded groups.

• In law, asking the woman question means examining how the law fails to take into account the experiences and values that seem more typical of women than of men or how existing legal standards and concepts might disadvantage women.

• The question assumes that some features of the law may be not only non-natural in a general sense, but also "male" in a specific sense. The purpose of the woman question is to expose those features and how they operate, and to suggest how they might be corrected.

Using listed above methods, feminists often challenge assumptions about women that underlie numerous laws and demonstrate how laws based upon these assumptions are not rational and neutral, but rather irrational and discriminatory.

When engaged in these challenges, feminists operate from a rational/empirical position that assumes that the law is not objective, but that identifying and correcting its mistaken assumptions can make it more objective.

http://www.unictr.org/

Investigations:Uganda, Democratic Republic of the Congo, Central African Republic, Darfur, Sudan, Kenya, Libya, Côte d’Ivoire, Mali. http://www.icc-cpi.int

International Criminal Court (ICC)

The International Criminal Court (ICC) is an independent judicial body with jurisdiction over persons charged with genocide, crimes against humanity and war crimes.

Located in The Hague, The Netherlands. Governed by the Rome Statute (A/CONF.183/9), by the treaty, and adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998, entered into force on 1 July 2002. The ICC is an independent international organisation, and is not part of the United Nations system.

In accordance with Article 13(b) of the Rome Statute the UN Security Council can refer certain situations to the Prosecutor of the ICC.

Editors:

MAJA PEĆANAC

JOANNE PUDUSSERY