International Criminal Law

Transcription

1 International Criminal Law Sources: 1. The International Criminal Court 2. The Rome Statute - 3. OJEN

2 International Criminal Court Became a permanent fixture of the UN with the adoption of the Rome Statute - July 17, countries (full force and effect 2002; can t prosecute for anything prior to that date) Independent, permanent, and treaty-based; not part of the UN Established to prosecute most serious crimes for the international community, and aid national jurisdictions in carrying out justice Funded by the States Parties and by voluntary contributions from governments, international organisations, individuals, corporations and other entities The Court does not have its own police force. Accordingly, it relies on State co-operation, which is essential to the arrest and surrender of suspects.

3 120 countries For a new State Party, the Statute enters into force on the first day of the month after the 60th day following the date of the deposit of its instrument of ratification, acceptance, approval or accession.

4 International Criminal Court ICC - e%20court.aspx Rome Statute /283503/RomeStatutEng1.pdf

5 Jurisdiction When a State becomes a party to the Rome Statute, it agrees to submit itself to the jurisdiction of the ICC with respect to the crimes enumerated in the Statute. Also, a State not party to the Statute may decide to accept the jurisdiction of the ICC. The ICC does not replace national criminal justice systems; rather, it complements them. It can investigate and, where warranted, prosecute and try individuals only if the State concerned does not, cannot or is unwilling genuinely to do so. This might occur where proceedings are unduly delayed or are intended to shield individuals from their criminal responsibility.

6 International Criminal Court Judges: 18 judges elected for 9 year non-renewable terms organized into 3 divisions: Pre-Trial, Trial, and Appeals. must be fluent in either English or French Candidates must be nationals of states that are state parties to the Rome Statute; each State can put forward any candidate from their state or otherwise Secret ballot is held; 18 candidates picked must have obtained highest number of votes and a two thirds majority of the States present and voting It s the aim that this will reflect most member states.

7 Cases History

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9 Cases happen in 5 or 6 stages: 1. Preliminary Investigations a. The Office of the Prosecutor must determine whether there is sufficient evidence of crimes of sufficient gravity falling within the ICC s jurisdiction, whether there are genuine national proceedings, and whether opening an investigation would serve the interests of justice and of the victims. 2. Investigations After gathering evidence and identifying a suspect, the Prosecution requests ICC judges to issue: 1. an arrest warrant: the ICC relies on countries to make arrests and transfer suspects to the ICC; or 2. a summons to appear: suspects appear voluntarily (if not, an arrest warrant may be issued). 3. Suspects are detained in detention centres in the Hague

10 Cases happen in 5 or 6 stages: 3. Pre-Trial Stages Initial appearance: Three Pre-Trial judges confirm suspect's identity and ensure suspect understands the charges. Confirmation of charges hearings: After hearing the Prosecution, the Defence, and the Legal representative of victims, the judges decide (usually within 60 days) if there is enough evidence for the case to go to trial. 4. Trial Stage Before three Trial judges, the Prosecution must prove beyond reasonable doubt the guilt of the accused. Judges consider all evidence, then issue a verdict and, when there is a verdict of guilt, issue a sentence.

11 Cases happen in 5 or 6 stages: 5. Appeals Stage Both the Prosecutor and the Defence have the right to appeal a Trial Chamber's decision on the verdict (decision on guilt or innocence of the accused) and the sentence. The victims and the convicted person may appeal an order for reparations. An appeal is decided by five judges of the Appeals Chamber, who are never the same judges as those who gave the original verdict. The Appeals Chamber decides whether to uphold the appealed decision, amend it, or reverse it. 6. Enforcement of Sentence: Sentences are served in countries that have agreed to enforce ICC sentences.

12 Serious International Crimes The ICC s jurisdiction is limited to the following crimes: 1. Genocide 2. Crimes against humanity 3. War crimes 4. The crime of aggression

13 Elements of a Crime Each crime is defined by the ICC Prosecution must prove that the elements of the crime were knowingly (or ought to know) committed/intended by the perpetrator in order to achieve a guilty verdict - (similar to mens rea) Elements of a crime are outlined in a separate document; Elements of a Crime has been uploaded to the website

14 Elements of a Crime: example How would you prove the elements of the crime in this example:

15 Bringing the Accused to Trial Article 13 states that cases are referred to the court by a State Party and then prosecuted A case can also be brought forward by the prosecution if sufficient evidence can be found and reasonable case can be made This also requires the cooperation of state parties (article 17) If a summons or warrant for arrest is given, the judges must have: the name of the person; and a description of the crimes the person is believed to have committed; a concise summary of the facts (the acts alleged to be crimes); a summary of the evidence against the person; the reasons why the Prosecution believes that it is necessary to arrest the person.

16 A few more Regulations Article 26 no one under 18 can be tried by the ICC Article 25 - The court has jurisdiction over anyone found to commit a crime (within the court s jurisdiction), aids/abets a crime, or intends to commit the crime (among other things) Article 28 Superiors/commanders are criminally responsible if they commit a crime, fail to do everything reasonable to prevent/suppress a crime, or fail to reasonably control their subordinates (who commit a crime) Grounds for exclusion of criminal responsibility Mental state (Similar to NCR) Reasonable self-defence limits set out in ICC Under threat or duress

17 The Trial Process There is always a presumption of innocence until proven guilty (basic tenants of the justice system speedy trial, right to silence, disclosure of evidence to their representative, free communication with lawyer and time to prepare defence) The accused is informed of his/her rights, and has a variety of services available to them, if needed - equality (lawyer, translator, language rights) At trial, the Prosecution and Counsel for the Defence have the opportunity to present their case. The Prosecution must also disclose to the accused any evidence which may show that he or she is innocent. Once the Prosecution has presented all its evidence, it is the turn of the accused, with the assistance of his or her counsel, to present his or her defence.

18 Evidence Both sides present evidence (physical, scientific, expert, witness testimony) to demonstrate their case They use a variety of questioning techniques in order to evoke specific response that build their argument Defence can also question prosecutor witnesses Rules of evidence (admissibility, disclosure, etc) must be followed and not be obtained in such a way that violates the rights of the accused Article 69 (7) Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

19 Victims Role in the Trial In Canada, victims of crimes can only make victim impact statements, and can subsequently proceed with civil proceedings for reparations At certain times, the victims can participate in the trial (themselves or through lawyers) and request reparations. They can may be called as witnesses, and can also make statements about their views during the trial ature=

20 Penalties Once guilt is determined, the ICC can impose one of the following: 1. Prison may not exceed 30 years (**Unless in extreme circumstances, then a term of life imprisonment can be assigned) 2. Additionally, the ICC can award reparations from the convicted person s property, assets, and proceeds Trust Funds can also be set up/ordered to assist in reparations for victims Is it legal for states to impose their own penalties as well? Article 80 - Non-prejudice to national application of penalties and national laws Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.

21 Appeals Both the Prosecutor and the Defence parties can appeal the decision based on mistakes in the proceedings, error of law, or error of fact The Defence can also appeal on other grounds that may have affected the fairness of the proceedings What might these fair grounds be? How would they establish the criteria for this?

22 Article Study 1. Read over the case file for Prosecutor v. Omar Hassan Ahmad Al Bashir Summarize his alleged role in the conflict (reasons for him being charged?) Possible penalty? Implications of non-cooperation of nation states? 2. Define Imperialism; do you think the ICC could be a tool of modern imperialism? Why or why not? Refer to the comic below.