Introduction to ICC

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
Semester: eight Semester
Name of the Subject:
ihl
Introduction to ICC

Introduction
The International Criminal Court (commonly referred to as the ICC or ICCt)
is the world's first permanent, international judicial body capable of bringing
perpetrators to justice and providing redress to victims when states are unable or
unwilling to do so.1
The International Criminal Court (ICC) was formed during one of the
bloodiest decades in human history, after the Rwandan and Bosnian genocides.
The establishment of a permanent International Criminal Court in 2002
represented a major breakthrough in international justice. The Court is the only
one of its kind that can investigate and prosecute genocide, crimes against
humanity, and war crimes when national authorities are unable or unwilling to do
so.

The ICC is a court of last resort. It will not act if a case is investigated
or
prosecuted by a national judicial system unless the national
proceedings are not
genuine, for example if formal proceedings were undertaken solely to
shield a
person from criminal responsibility. In addition, the ICC only tries those
accused
of the gravest crimes.
In all of its activities, the ICC observes the highest standards of
fairness and
due process. The jurisdiction and functioning of the ICC are governed
by the Rome
Statute.2
As of May 2013, 122 states have ratified the Court's treaty, the Rome
Statute -- including all of South America, nearly all of Europe and
roughly half the
countries in Africa. Today, the ICC is taking on its first cases.

Pursuant to the Rome Statute, the Prosecutor can initiate an
investigation
on the basis of a referral from any State Party or from the United
Nations Security
Council. In addition, the Prosecutor can initiate investigations proprio
motu on the
basis of information on crimes within the jurisdiction of the Court
received from
individuals or organizations (“communications”).
To date, four States Parties to the Rome Statute – Uganda, the
Democratic
Republic of the Congo, the Central African Republic and Mali – have
referred
situations occurring on their territories to the Court. In addition, the
Security
Council has referred the situation in Darfur, Sudan, and the situation
in Libya –
both non-States Parties.3

The Court is an independent institution. The Court is not
part of the United
Nations, but it maintains a cooperative relationship with
the U.N. The Court is
based in The Hague, the Netherlands, although it may
also sit elsewhere. The
Court is composed of four organs. These are:
the Presidency,
the judicial Divisions,
the Office of the Prosecutor and
the Registry
Structure of the Court

The Statute encourages States to exercise their jurisdiction over the ICC
crimes. Its Preamble states that the effective prosecution of the ICC crimes
must
be ensured by taking measures at the national level and by enhancing
international cooperation. In addition, it is the duty of every State to exercise its
criminal jurisdiction over those responsible for international crimes.
Nevertheless,
there is nothing explicit in the Statute imposing an obligation to prosecute the
ICC crimes. This obligation can be found in other treaties, for some of the
crimes
listed in the Statute, but not for all of them. Under the four Geneva Conventions
of 1949, States Parties undertake to enact any legislation necessary to provide
effective penal sanctions for persons committing grave breaches of the
Conventions. Under article 5 of the Genocide Convention, States Parties
undertake to enact the necessary legislation to give effect to the provisions of
the Convention and to provide effective penalties for persons guilty of genocide
Jurisdiction Of ICC

The history of the second half of the 20th century shows us that this obligation
was only minimally respected.
Nevertheless, the Statute does not deprive States of the power to
prosecute the perpetrators of international crimes. Further, the ICC’s
jurisdiction defers to that of States Parties. While the Statute does not relieve
States of the power to prosecute perpetrators of crimes within its jurisdiction, it
institutes a Court that will do so in the event that States Parties neglect to
prosecute these criminals or do not possess the means to do so.
Under the principle of complementarity, the ICC only exercises its jurisdiction
when States Parties fail to investigate or undertake judicial procedures in good
faith, after a crime covered under the Statute has been committed. The ICC
cannot hear a case when a State has decided to act.

States which are not State Parties can make a declaration under Article
12(3) of the Statute, accepting the Jurisdiction of the ICC for particular
crimes.
The Jurisdiction of the ICC would then be from the date of declaration (
Article 11(2)).7
According to Article 5, “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.”

Chapter Two of the International Criminal Court Statute ("ICC
Statute") 1
dealing with "Jurisdiction, Admissibility and Applicable Law"
became the focus
of the most profound controversies that attended the meetings in
New York and Rome for the establishment of an International
Criminal Court (ICC).
This applied-admittedly in different degrees-to all four components
of the concept of jurisdiction, these are:
Temporal (ratione temporis) jurisdiction
Personal (ratione personae) jurisdiction
Territorial (ratione loci) jurisdiction
Subject-matter (ratione materiae) jurisdiction
Forms of Jurisdiction

Temporal Jurisdiction
Temporal jurisdiction is the time when a given crime was committed.
According to article 11 of the Rome Statute, the ICC has jurisdiction only
on crimes committed after the entry into force of Rome Statute. This
provision is based on the universally accepted principle of criminal law:
nullum crimen and nulla poena sine lege, which forbids prosecution of the
crimes not considered as such when they were committed.
The temporal jurisdiction of the ICC is not like that of ICTY or ICTR, the
latter two are both explicitly provided by the UN. For instance, the ICTY
has jurisdiction over the crimes committed after January 1,1991, which
symbolises the beginning of war in the territory of former Yugoslavia.[9]
Thus, the ICC is not only the first permanent international court but also
the first one to prosecute the crimes that will be committed after its
institution.

Personal Jurisdiction
Personal jurisdiction refers to the persons that the ICC will have jurisdiction
over. The ICC presently has jurisdiction only over person who is more than 18
at the time of the alleged commission of a crime. Due to the purpose and spirit
of the Rome Statute, the ICC rejects the concept of immunity by stating that
“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”.
It is worth mentioning that persons falling into the jurisdiction of the ICC
are not limited to nationals of states parties, the court can also prosecute
individuals who are nationals of non-party states if the non-party state accepts
the court’s jurisdiction or when the appropriate decision is made by the Security
Council.

Territorial Jurisdiction
Territorial jurisdiction refers to the territory over which the ICC may
exercise its functions and powers. According to the stipulation of Rome
Statute,
the ICC may exercise its functions and powers on : (1) the territory of
any State Party. Because when a state becomes a state to Rome
Statute, it thereby accepts the jurisdiction of the ICC, and (2) on the
territory of any other State that has accepted the jurisdiction of the ICC
by special agreement.
Compared to that of a national court, the territorial jurisdiction of the ICC
displays the character of uncertainty, which derives from the contract
nature of Rome statute and the independence of sovereign states.

the basis of Rome Statute, consequently, it can only
exercise its powers on the territory of states parties and
the non-party states that have accepted its
jurisdiction. Sovereign states are entitled to accede to or
withdraw form Rome Statute and determine
independently whether to accept the jurisdiction of the
ICC for the purpose of maximizing their national interests.
[5]The accession to or withdrawal from Rome Statute of
sovereign states will doubtlessly lead to extension or
reduction of the territorial jurisdiction of the ICC, then
result in the uncertainty character of the jurisdiction of the
ICC.

Subject-matter Jurisdiction
Subject matter jurisdiction refers to the types of
international crimes that will be prosecuted by
the ICC.
Currently, the ICC will have jurisdiction over four
categories of international crimes, which are
considered as “the most serious
crimes of concern to the international
community as a whole”.*11+ They are
genocide, crimes against humanity, war crimes
and crime of aggression, which will be
specifically explored in the following
paragraphs.

Genocide
The core of the crime of genocide is the “intent to destroy in
whole or part a national, ethnical, racial or religious group as
such.” When the intent is to destroy all members of a group
simply because they are members of the group,
then the crime is genocide.
[13] Part of the definition of genocide includes acts intended to
prevent births within a group. Robertson says that this addition
to the definition was added at the insistence of the Vatican, and
the author takes a dim view of its inclusion as
part of the meaning of genocide. According to Robertson,
imposing birth control as a means to extinguish an entire group
is a genocidal act, though imposing birth control by law to
control population or for health reasons is outside the scope of
what the crime of genocide is about.

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council
of India
Crimes against Humanity
The Rome Statute contains the authoritative definition of crimes against
humanity. The jurisdiction of the International Criminal Court does not cover
just any cruel, violent or heinous act. Individuals are capable of committing
these types of crimes, but they are not international crimes. To be considered
an international crime, there are three conditions:
The acts must be part of a widespread or systematic attack. Crimes
committed on the spur of the moment are not covered.
They must be directed against a civilian population. Treatment of soldiers is
covered under the definition of war crimes.
They must be carried out as a way to further the policy of a state or
organization. [14]
Individuals are prosecuted, but only insofar as they are instruments of a state
or organization.

of India
Some Examples of Crimes against Humanity
Article 7 of the Rome Statute provides a list of the most heinous
offenses,
which includes:
Enforced disappearance, defined as the detention or abduction
of people(with the acquiescence of the state) along with a
refusal to acknowledge their whereabouts or fate,
Apartheid, Rape, sexual slavery, forced pregnancy and
enforced prostitution and sterilization,
Deportation or forcibly transferring a population,
Persecution, defined as the intentional and severe deprivation
of
fundamental rights.

of India
War Crimes
There are two types of crimes defined in the Rome Statute as war
crimes: crimes at times of international conflict and at times of internal
armed conflict. So, a crime can be considered a war crime even if it
does not involve multiple countries. In large measure, the substance
of the crimes are stated in the Geneva
Conventions. However, the statute includes other crimes as well,
including enlisting children soldiers, engaging in systematic sexual
violence and targeting UN peacekeepers or humanitarian workers.
Some crimes not covered under the war crimes definition include:
The use of anti-personnel land mines (covered under another treaty),
The use of nuclear weapons, Internal disturbances and tensions such
as riot and unrest. Robertson says that using nuclear weapons falls
easily within the statute definition banning methods of warfare “which
are of a nature to cause superfluous injury or unnecessary suffering
or which are inherently [16] indiscriminate.” However, using nuclear
weapons was consciously omitted from the statute. Robertson says,
however, that nuclear weapons may be included in the next version of
the statute when it is reviewed in 2009.

ihl
Introduction to Geneva
Convention

Purpose
To provide “rules” dictating the treatment of
prisoners and civilians during war.

Laws of War
We will not inflict unnecessary destruction or
Suffering.
We will treat prisoners of war, captured or
detained personnel, and civilians humanely.
We will not obey orders whose execution are in
violation of the laws of war.
We are responsible for our unlawful acts.
We are entitled to humane treatment if captured.

Four Conventions
I. Geneva Convention dealing with wounded
and sick in armed forces in the field.
II. Geneva Convention dealing with wounded,
sick and shipwrecked members of armed
forces at sea.
III. Geneva Convention dealing with treatment
of prisoners of war.
IV. Geneva Convention dealing with the
protection of civilian persons in time of war.

Additional Protocols from 1977
Protocol I: deals withthe protection of victims of
international armed conflicts.
Protocol II: deals with the protection of victims of
non-international armed conflicts.

Some of the basics
Signatories must abide by the rules, even if the
enemy does not.
Prisoners and Civilians must be treated
Humanely.
Property must be respected to the greatest
extent possible.

What you can not do
No taking of hostages
No “cruel treatment or torture”
No summary executions
No humiliating or degrading treatment

What constitutes a P.O.W.?
Members of a recognized military
Members of a recognized militia
Must have a responsible leader
Must have distinguishable uniform / insignia
Must carry arms openly
Must conduct operations w/in the laws of war
Correspondents / News media / Contractors
Merchant sailors
Interned civilians of an occupied territory

What is Torture?
The Geneva Convention
Article 17
“No physical or mental torture, nor any other form of
coercion, may be inflicted on prisoners of war to secure
from them information of any kind whatever. Prisoners of
war who refuse to answer may not be threatened,
insulted, or exposed to any unpleasant or
disadvantageous treatment of any kind.”
--August, 1949

The Geneva Convention
Article 130
“Grave breaches to which the preceding Article relates shall
be
those involving any of the following acts, if committed against
persons or property protected by the Convention: willful killing,
torture or inhuman treatment, including biological experiments,
willfully causing great suffering or serious injury to body or
health,
compelling a prisoner of war to serve in the forces of the hostile
Power, or willfully depriving a prisoner of war of the rights of fair
and
regular trial prescribed in this Convention.”
--August, 1949

Rome statute of the International Criminal
Court,
1998 "Torture“
means the intentional infliction of
severe pain or suffering, whether physical or
mental, upon a person in the custody or under
the control of the accused; except that torture
shall not include pain or suffering arising only
from, inherent in or incidental to, lawful
sanctions;”

Gonzales Definition
U.S. Justice Department: “"Physical pain amounting to torture
must be equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of
bodily function, or even death. For purely mental pain or
suffering to amount to torture (under U.S. law), it must result in
significant psychological harm of significant duration, e.g.,
lasting for months or even years. . . . We conclude that the
statute, taken as a whole, makes plain that it prohibits only
extreme acts.''

Arguments in Support
Gain valuable information quickly
“Jack Bauer vs the ticking time bomb”
Everyone else is doing it
They are not prisoners of war

They are not POWs” argument
Geneva Convention restrictions apply to prisoners of
war, i.e., soldiers from other countries’ armies.
Terrorist groups are not nation states and thus not
deserving of Geneva Convention protections
Terrorist groups do not respect the Geneva
Convention and are not signatories to it.
Sees morality as a contract and some people
(terrorists) as not accepting the contract.

Arguments Against Torture
The Inefficiency Argument
It doesn’t work
“I’ll tell you anything just make it stop!”
The Slippery Slope
The Reciprocity Argument
If we do it, so will our enemy
The Consistency Argument
If we do it we are saying it is ok to do it
The Dignity Argument
We lose the moral advantage
John McCain’s argument

IHL
Introduction war crimes

Punishment of individuals for international crimes has the following
goals:
What are international crimes: definition and elements
A definition: “International crimes are crimes which are as such
established by international law and which invoke individual
criminal responsibility
- to acknowledge that crimes have been committed and to seek truth
- to deter commission of further crimes – international criminal law is law
and will be implemented against lawbreakers
- to provide for restoration of peace and reconciliation of communities
- to bring justice to the victims

• How can we make a difference between crimes on the national
level and international crimes?
In July 2014 in an
American city a man had a
quarrel with his wife and
brutally killed her
In 1988 in a military operation
led by Saddam Hussein's
Ba’athist regime against the
ethnic Kurds of northern Iraq at
least 100,000 Kurds were
killed through the use of
chemical weapons and aerial
attacks

• The distinction between crimes under national and under
international law is based on the elements of the crime

• Core international crimes are:
a. war crimes
b. crimes against humanity
c. genocide
d. a crime of aggression

a. War crimes
Ongoing conflicts
Brown - Major wars, 10,000+ deaths in current or past
year
Red - Wars, 1,000–9,999 deaths in current or past year
Orange - Minor conflicts, 100–999 deaths in current or past
year
Yellow - Skirmishes and clashes, fewer than 100 deaths in
current or past year

•Which elements indicate that a war crime has been committed?
war crimes take place only during an international or internal armed
conflict
they can be committed by military and civilians
victims are civilians, civilian property and military not actively participating
in fighting and which belong to the opposing party
the act of an individual should be linked to the armed conflict
more than 50 different crimes can be war crimes:
- atrocities against the civilian population, looting and destruction of
civilian property, use of poisons weapons, mutilation, cruel treatment
and torture; taking of hostages; intentionally directing attacks against
buildings dedicated to religion, education, art, science or charitable
purposes, historical monuments or hospitals; pillaging; rape, sexual
slavery, forced pregnancy or any other form of sexual violence

Crimes against humanity – “ particularly odious offences, serious attack
on human dignity or grave humiliation or a degradation of huma
beings”:
- a widespread or systematic attack directed against any civilian population –
nationals and non-nationals
- can take place during an armed conflict and in peacetime
- can be committed by military and civilians
- murder; extermination; enslavement; deportation or forcible transfer of
population; imprisonment; torture; rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity; persecution against an identifiable
group on political, racial, national, ethnic, cultural, religious or gender
grounds; enforced disappearance of persons; the crime of apartheid; other
inhumane acts of a similar character intentionally causing great suffering or
serious bodily or mental injury

Genocide:
Extermination of a national, ethnical, racial or religious
group
- can be committed by: killing members of the group; causing
serious bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part; imposing
measures intended to prevent births within the group; forcibly
transferring children of the group to another group
- the victim is the member of a group
- incitement to commit genocide is also punishable
- responsibility of States?

… “Internationalized” or hybrid ad hoc courts and
tribunals
The Special Court for
Sierra Leone
(2002-2013)
The Special Panels of the Dili
District Court (East Timor)
(2000-2006)

• International Criminal Court
- universal, 123 States are parties to the Rome Statute
(main document of the Court)
- States Parties: 34 African States, 19 Asia-Pacific
States, 18 Eastern European, 27 Latin American and
Caribbean States, 25 Western European and other
States
- States not Parties: USA, China, Russia, Egypt,
Israel, Libya, Lebanon, Indonesia, Iran, Iraq, Syria,
Morocco ….

• Individuals! Which individuals?
i. Persons which committed crimes in the territory of the
State party to the Rome Statute – all persons including
foreigners which commit international crimes on the
territory of a State Party can be prosecuted
ii. Nationals of the State which is Party to the Rome
Statute commit crimes elsewhere in the world
iii. Nationals of the State which is referred to the Court by
the United Nations Security Council
• Persons younger than 18 cannot be prosecuted by the
International Criminal Court. What happens to them?

• What about Heads of State or Government? Can
they also be prosecuted? Do they enjoy immunities?
Different rules of international law. The International
Criminal Court: Heads of State or Government do not
enjoy immunities and can be prosecuted
Omar al Bashir, President of the Republic of Sudan since 1993; indicted for war crimes, crimes against humanity and
genocide; two warrants of arrest (2009 and 2010)

• Can organizations and organizational groups be prosecuted by the
International Criminal Court?
• Can States be prosecuted by the International Criminal Court?
For States – different (State and not criminal) responsibility & different
court (ICJ). E.g. genocide in Bosnia and Herzegovina
• Which sentences the persons convicted by the International Criminal
Court can get? Where they can serve their sentence?

• Apart from the International Criminal Court, national courts
can also prosecute international crimes
These are:
- States on whose territory an international crime was
committed
- States whose nationals are perpetrators of crimes
- States whose nationals are victims of crimes
- All States in the world if the crime is so serious to give
the right to States to prosecute it. “No place should be a
save heaven for those who have committed certain
crimes”, such as genocide, crimes against, humanity, war
crimes, torture, forced disappearance …

IHL
Introduction

Traditionally: International law regulates the
relationship between States
States are the core subjects of international law; states
have rights and obligations
But individuals can to a certain extent be subjects
(duty-bearers and rights-holders) under international
law
International humanitarian law a good example
International humanitarian law is a part of international
law
International humanitarian law as a part of
international law

Sources in international law
Statute of the ICJ, Art. 38:
(a) international conventions, whether general or
particular, establishing rules expressly recognized by
the contesting states;
(b) international custom, as evidence of a general
practice accepted as law;
(c) the general principles of law recognized by
civilized nations;
(d) judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of
law.

Method of interpreting treaties
Vienna Convention on the Law of Treaties
Art. 31. General rule of interpretation.
1.A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
Art. 32. Supplementary means of interpretation.
Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable

Jus ad bellum and jus in bello
Jus ad bellum are the international rules pertaining to
to which extent the use of military force against
another state is allowed.

Brief history of IHL
Many examples of humanitarian rules of warfare
throughout history (and many examples of the
opposite): Use of poisoned or concealed
weapons, killing of prisoners etc.
The origins of modern IHL:
The battle of Solferino (1859)
Henri Dunant: “The Memory of Solferino” (1862)
The first Geneva Convention 1864
The Lieber Code 1863

Main Sources of IHL
“Geneva law”
“Hague law”
International customary law

Geneva Law (primarily pertaining to protection)
The four Geneva Conventions (1949):
1.Wounded and sick soldiers on land
2.Wounded and sick soldiers on sea
3.Prisoners of war
4.Protection of civilians and occupation
The two Additional Protocols (1977):
Additional rules on means and protection
1.In international armed conflicts
2.In non-international armed conflicts

Hague Law (primarily pertaining to means of war)
The St. Petersburg Declaration 1868
Hague Regulations of 1899 and 1907
Gas protocol of 1925
NPT (non-proliferation of nuclear weapons) 1968
Biological weapons 1972
Convention on inhuman weapons (CCW) 1980
Chemical weapons 1993
Anti Personnel Mines 1997
Cluster Munitions 2008

International Customary Law
ICJ Statutes, Article 38(1).b: “..international
custom, as evidence of a general practice
accepted as law;”
Usus and opinio juris
The ICRC Study on international
humanitarian law was commissioned by
State Parties to the Geneva Conventions in
1995
Three volumes in 2005:
1) The rules (161 rules)
2 and 3) State practice

Scope of application
PERSONAL scope of application (to which subjects
does IHL apply?)
MATERIAL and TEMPORAL scope of application (in
which situations does IHL apply?)
Material: To which situations?
Temporal: When does the applicability start and
end?

Personal scope of application
To which subjects do IHL apply?
Who is bound by IHL?
Who is protected by IHL?
States (parties to the conflict and to IHL instruments)
Non-state armed groups (parties to the conflict)
Individuals (belonging to parties to the conflict):
Civilians and other protected persons (soldiers hors de
combat) (have rights and obligations)
Combatants (have rights and obligations)
Distinction between combatants and non-combatants to
be discussed later
International organisations

Material scope of application
1) International armed conflict and occupation
2) Non-international armed conflicts:
2.1) Wars of national liberation
2.2) Civil war
2.3) Other non-international armed conflicts
3) Internal disturbances not amounting to armed conflict
4) Peace

Temporal scope of application
When does the applicability of IHL begin?
The moment of the first hostile act that puts at stake a
provision in IHL
When does the applicability of IHL end?
The end of military operations
But when is this?

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of
NCT of Delhi & Bar Council of India
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Introduction to ICC

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