Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.6 Genocide/Crime de génocide

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

Customary Law ◽

Applicable Law ◽

Definition Of

This chapter comments on Article 6 of the Rome Statute of the International Criminal Court. Article 6 defines the crime of genocide, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. The first important ruling on genocide by one of the ad hoc tribunals — the September 2, 1998 judgment of a Trial Chamber of the International Criminal Tribunal for Rwanda in Prosecutor v. Akayesu — was issued several weeks after the adoption of the Rome Statute. Since then there have been several important judicial pronouncements by the Appeals Chambers of the ad hoc tribunals addressing a range of issues relevant to the interpretation of article 6 as well as two judgments of the International Court of Justice. The Court has indicated that the definition of genocide in article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (and therefore article 6 of the Rome Statute) reflects customary law.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.28 Responsibility of commanders and other superiors/Responsabilité des chefs militaires et autres supérieurs hiérarchiques

10.1093/law/9780198739777.003.0033 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

Customary Law ◽

Military Commanders ◽

Superior Responsibility

This chapter comments on Article 28 of the Rome Statute of the International Criminal Court. Article 28 consists of two paragraphs; the first addressing superior responsibility in a military context, the second dealing with the issue with respect to civilians. Unlike the superior responsibility liability that attaches to military commanders, which was well accepted, application of the concept to civilians proved to be very controversial. Some Trial Chambers at the ad hoc tribunals have referred to article 28 as a basis for the view that the ‘distinction between military commanders and other superiors embodied in the Rome Statute is an instructive one’, although this is a rather isolated opinion. Nevertheless, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has acknowledged that whether the liability of civilian superiors ‘contains identical elements to that of military commanders is not clear in customary law’.

The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽

10.1017/s2398772300009107 ◽

2016 ◽

Vol 110 ◽

pp. 245-250

Author(s):

Bing Bing Jia

Keyword(s):

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

Decision Makers ◽

International Criminal Law ◽

International Tribunal

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

War Crimes in International Versus Non-International Armed Conflicts: "New Wine in Old Wineskins"?

International Criminal Law Review ◽

10.1163/156753608x265312 ◽

2008 ◽

Vol 8 (1-2) ◽

pp. 319-329 ◽

Cited By ~ 2

Author(s):

Gauthier de Beco

Keyword(s):

Rome Statute ◽

International Criminal ◽

War Crimes ◽

Trial Chamber ◽

Criminal Court ◽

Armed Conflicts ◽

International Humanitarian Law ◽

Humanitarian Law

AbstractThis note discusses the distinction between international and non-international armed conflicts in the prosecution of war crimes before the International Criminal Court. It analyses the international humanitarian law applicable to both kinds of conflict, and the way in which the International Criminal Tribunal for the former Yugoslavia succeeded in prosecuting war crimes committed in non-international armed conflicts. It also studies the two war crimes regimes provided for in the Rome Statute of the International Criminal Court. The note then examines how Pre-Trial Chamber I dealt with this issue in its Decision on the confirmation of charges against Thomas Lubanga Dyilo and the problems it faced in doing so. It concludes with a plea for the abolition of the distinction between international and non-international armed conflicts with respect to war crimes in the Rome Statute of the International Criminal Court.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.15 Prosecutor/Le Procureur

10.1093/law/9780198739777.003.0018 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

Applicable Law

This chapter comments on Article 15 of the Rome Statute of the International Criminal Court. Article 15 sets out the rules applicable to the exercise of proprio motu (that is, on the Prosecutor's own initiative) triggering of the jurisdiction of the Court. It is closely associated with article 53, dealing with the ‘[i]nitiation of an investigation’. Article 53 confirms that the Prosecutor has the discretion to decide to proceed with an investigation. This issue is partly addressed by article 15 because it contemplates the ‘triggering’ of an investigation by the Prosecutor and the mechanism by which authorization for this is provided by a Pre-Trial Chamber.

Part 6 The Trial: Le Procès, Art.74 Requirements for the decision/Conditions requises pour la décision

10.1093/law/9780198739777.003.0078 ◽

2016 ◽

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

International Military Tribunal ◽

Military Tribunal

This chapter comments on Article 74 of the Rome Statute of the International Criminal Court. Article 74 deals with several aspects of the trial itself. It requires members of the Trial Chamber to be present at all stages of the trial, but also allows for alternates to be designated. It indicates that the decision be adopted by a majority, and that the deliberations remain secret. The decision must contain a full and reasoned statement. This is far more specificity than any other international criminal tribunal has required. The Charter of the International Military Tribunal said that the judges must ‘give the reasons on which it is based’. Nowhere did it specify whether the deliberations should be in secret, or whether the decision should be by majority or unanimity, or whether there should be dissenting opinions, yet the judges did essentially what is provided for in article 74 of the Rome Statute.

Transformation of Customary Law Through ICC Practice

AJIL Unbound ◽

10.1017/aju.2018.55 ◽

2018 ◽

Vol 112 ◽

pp. 182-186 ◽

Cited By ~ 2

Author(s):

Fausto Pocar

Keyword(s):

International Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

Customary Law ◽

Customary International Law

Article 21 of the Rome Statute, in defining the applicable sources of law for the International Criminal Court (ICC), breaks with the practice of the ad hoc tribunals by treating customary international law as only a secondary authority. Nonetheless, customary international law still has an acknowledged role in ICC jurisprudence in filling lacunae in the Rome Statute and aiding in its interpretation. One can also predict other instances in which the application of customary international law will be required. It remains to be seen, however, whether the ICC's use of customary law will lead to that law's further fragmentation or whether that use will instead modify customary law to reflect the ICC Statute.

Prosecutor v. Laurent Koudou Gbagbo: Judgment on the Appeal Against the Decision of Pre-Trial Chamber I on Jurisdiction and Stay of the Proceedings (Int’l. Crim. CT.)

International Legal Materials ◽

10.5305/intelegamate.53.3.0477 ◽

2014 ◽

Vol 53 (3) ◽

pp. 477-501

Author(s):

Inbal Djalovski

Keyword(s):

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

Fundamental Rights ◽

First Time ◽

Party State

On December 12, 2012, the Appeals Chamber of the International Criminal Court (Court) in the case of Prosecutor v. Laurent Koudou Gbagbo unanimously confirmed the Pre-Trial Chamber I decision to dismiss Mr. Gbagbo’s challenge to the jurisdiction of the Court. In the Judgment, the Appeals Chamber, for the first time, was called to interpret Article 12(3) of the Rome Statute (Statute), which allows a non-party State to accept the jurisdiction of the Court on an ad hoc basis without acceding to the Statute. The Judgment further includes two procedural issues. Firstly, the Appeals Chamber found that although the Pre-Trial Chamber erred by not rendering a separate decision on Côte d’Ivoire’s request for leave to submit its observations, this error did not materially affect the Pre-Trial Chamber’s decision. Secondly, the Appeals Chamber dismissed, in limine, Mr. Gbagbo’s request for a stay of proceedings based on allegations of violations of his fundamental rights, since it was not jurisdictional in nature and thus fell outside the scope of the appealable matter.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.18 Preliminary rulings regarding admissibility/Décision préliminaire sur la recevabilité

10.1093/law/9780198739777.003.0023 ◽

2016 ◽

Cited By ~ 1

Author(s):

Schabas William A

Keyword(s):

Rome Statute ◽

International Criminal ◽

Trial Chamber ◽

Criminal Court ◽

State Party ◽

Applicable Law

This chapter comments on Article 18 of the Rome Statute of the International Criminal Court. Article 18 applies when a situation has been referred to the Court by a State Party and the Prosecutor has deemed that there is reasonable basis to commence an investigation. The Prosecutor is required to notify both States Parties and ‘those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned’. Within one month of receiving notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts relating to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.

The International Criminal Court: Promise and Politics

Proceedings of the ASIL Annual Meeting ◽

10.5305/procannmeetasil.109.2015.0269 ◽

2015 ◽

Vol 109 ◽

pp. 269-272

Author(s):

Makau Mutua

Keyword(s):

Civil Society ◽

Criminal Law ◽

Rome Statute ◽

Ad Hoc ◽

International Criminal ◽

Criminal Court ◽

International Criminal Law ◽

International Criminal Tribunals

The International Criminal Court (ICC or Court) is an institution born of necessity after a long and arduous process of many false starts. The struggle to establish a permanent international criminal tribunal stretches back to Nuremberg. The dream, which was especially poignant for the international criminal law community, for a permanent international criminal tribunal was realized with the adoption in 1998 of the Rome Statute of the International Criminal Court. The treaty entered into force in 2002. Those were heady days for advocates and scholars concerned with curtailing impunity. No one was more ecstatic about the realization of the ICC than civil society actors across the globe, and particularly in Africa, where impunity has been an endemic problem. Victims who had never received justice at home saw an opportunity for vindication abroad. This optimism in the ICC was partially driven by the successes, however mixed, of two prior ad hoc international criminal tribunals—the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.

Security Council Referrals to the International Criminal Court as Quasi-Legislative Acts

Max Planck Yearbook of United Nations Law Online ◽

10.1163/18757413-00190006 ◽

2016 ◽

Vol 19 (1) ◽

pp. 142-175

Author(s):

Alexandre Skander Galand

Keyword(s):

Security Council ◽

Rome Statute ◽

International Criminal ◽

Criminal Court ◽

Customary International Law ◽

Applicable Law ◽

Definition Of ◽

Domestic Law ◽

Principle Of Complementarity

In 1998, the international community decided to establish the first permanent International Criminal Court (ICC) with jurisdiction over persons for the most serious crimes of international concern, as referred to in the Rome Statute. As noted by many observers, some of the specific crimes within the Rome Statute are not grounded on customary international law but are more germane to treaty-based crimes. Thus, the exercise of treaty-based jurisdiction over non-party States would conflict with the principle pacta tertiis nec nocent nec prosunt. While the ICC jurisdiction is limited to crimes committed in the territory or by nationals of its States Parties, the Court may, where a situation is referred by the UN Security Council under Chapter VII of the UN Charter, exercise jurisdiction over crimes committed in the territory and by nationals of States not party to the Statute. Since the Rome Statute may go beyond existing applicable law, the referrals to the ICC are thus normative in their character. They impose new rules to be observed by any actors in the situations referred. This paper argues that this feature of a Security Council referral fits the definition of an international legislative act. The paper also inquires whether the obligation to cooperate fully with the Court arising from the Security Council resolution and the principle of complementarity require the State to modify its domestic law.