Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.24 Non-retroactivity ratione personae /Non-rétroactivité ratione personae

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Simple Manner ◽  
The Subject ◽  
The Law ◽  
Principle Of Legality

This chapter comments on Article 24 of the Rome Statute of the International Criminal Court. Preceded by two provisions that entrench two Latin maxims described collectively as the principle of legality, article 24 completes the treatment of the subject in Part 3 of the Rome Statute. Article 24 promises the accused that if there is a change in the law applicable to a given case prior to a final judgment, ‘the law more favourable shall apply’. However, this rule giving the defendant the benefit of the ‘more favourable’ provision is not without difficulties. It is not always a simple manner to determine which rule is in fact more favourable. Moreover, there may be an important element of subjectivity, in that individuals may differ in their assessment.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.22 Nullum crimen sine lege

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Human Rights ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Substantive Law ◽  
Principle Of Legality

This chapter comments on Article 22 of the Rome Statute of the International Criminal Court. According to the ‘principle of legality’, a person may not be punished if incriminating acts, when they were committed, were not prohibited by law. The rule is one of the rare provisions set out as a non-derogable norm in all of the major human rights conventions. Article 22 is the first of three provisions dealing with issues of retroactivity. A Trial Chamber explained that ‘[r]ead together, these three provisions pertain to the substantive law, such as the crimes set out in Articles 5 to 8bis of the Statute. The principle of non-retroactivity is more applicable to matters of substance than to those of procedure’.

Sexual Slavery and Members of a Terrorist Group – What is the Future of the 'Boko Haram' Trial at the International Criminal Court?

2020 ◽  
Vol 1 (2) ◽  
pp. 229-253
Author(s):  
Michala Chadimova
Keyword(s):  
Human Trafficking ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Boko Haram ◽  
Sexual Slavery ◽  
Preliminary Examination ◽  
The Subject ◽  
Principle Of Complementarity

Crimes committed by the members of Boko Haram in Nigeria are not only the subject of national trials but also of preliminary examination at the International Criminal Court (ICC). This article focuses on the sexual slavery perpetrated by Boko Haram, describes how the crimes are viewed within the national Nigerian criminal process and addresses the possibility of prosecution of the crimes at the ICC.<br/> This article analyses the legal terminology used to describe the crimes connected to Boko Haram – enslavement, sexual slavery, human trafficking and terrorism – and their interaction. While providing an overview of the ICC's current preliminary examination into the situation in Nigeria, this article discusses how the principle of complementarity is potentially holding the OTP back from the formal investigation.<br/> Furthermore, an overview of cases at the ICC that have involved charges of sexual slavery or enslavement will be provided. By analysing the Court's findings in relation to elements of sexual slavery, this article provides an insightful view into the Court's rhetoric on this crime. Similarly, this article discusses modes of liability that have been employed in the Katanga/Chui and Ntaganda cases and provides a learning opportunity for future cases of sexual slavery as both a crime against humanity (Article 7(1)(g) of the Rome Statute) and a war crime (Article 8(2)(e)(vi) of the Rome Statute; 8(2)(b)(xxii) of the Rome Statute).

scholarly journals The Legacy of the ICTY and ICTR in China

AJIL Unbound ◽  
2016 ◽  
Vol 110 ◽  
pp. 245-250
Author(s):  
Bing Bing Jia
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
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.

Physical and Legal Inability under Article 17(3) of the Rome Statute

2015 ◽  
Vol 15 (1) ◽  
pp. 101-123
Author(s):  
Ahmed Samir Hassanein
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Judicial System ◽  
Clear Distinction ◽  
Physical Factors ◽  
Depth Analysis ◽  
Two Factors ◽  
The Subject

While the complementary regime of the International Criminal Court (icc) has been the subject of extensive examination in the literature, this article offers a new reading of the inability scenario that establishes a clear distinction between two different forms of inability under Article 17(3) of the Rome Statute. An in-depth analysis of this article as this review suggests, would show that the reason behind the inability of a national judicial system is attributed to one of two factors or even the two together; first, physical factors, in the case of ‘total or substantial collapse’, and second, legal factors, in the case of ‘unavailability of national judicial system’. Significantly, the aforementioned distinction is not limited to theoretical debate, but it has pivotal legal ramifications as the emerging practice of the icc shows, or rather does not show, as it seems that the icc confuses the two forms of inability.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.27 Irrelevance of official capacity/Défaut de pertinence de la qualité officielle

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
International Criminal Law ◽  
Customary International Law ◽  
Head Of State

This chapter comments on Article 27 of the Rome Statute of the International Criminal Court. Article 27 consists two paragraphs that are often confounded but fulfil different functions. Paragraph 1 denies a defence of official capacity, i.e. official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall not exempt a person from criminal responsibility under the Statute. Paragraph 2 amounts to a renunciation, by States Parties to the Rome Statute, of the immunity of their own Head of State to which they are entitled by virtue of customary international law. In contrast with paragraph 1, it is without precedent in international criminal law instruments.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.8bis Crime of aggression/Crime d’agression

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Secretary General ◽  
State Party ◽  
Applicable Law ◽  
The Subject ◽  
One Year

This chapter comments on Article 8bis of the Rome Statute of the International Criminal Court. Article 8bis defines the crime of aggression, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. The provision is part of a package of amendments adopted at the Kampala Review Conference in 2010. It entered into force in accordance with article 121(5) one year after ratification of the amendments by the first State Party. Liechtenstein was the first State Party to ratify the amendments, on May 8, 2012. Consequently, the amendment entered into force on May 8, 2013. On that date, the amendment was registered by the depository, the Secretary-General of the United Nations. However, exercise of jurisdiction by the Court over article 8bis is subject to article 15bis and article 15ter.

scholarly journals Sexual Exploitation and Beyond: Using the Rome Statute of the International Criminal Court to Prosecute UN Peacekeepers for Gender-based Crimes

2011 ◽  
Vol 11 (4) ◽  
pp. 803-827 ◽  
Author(s):  
Melanie O'Brien
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Sexual Exploitation ◽  
Real Life ◽  
Criminal Court ◽  
International Criminal Law ◽  
Applicable Law ◽  
Gender Based

AbstractAllegations and confirmed cases of misconduct by peacekeeping personnel have been revealed by non-governmental organisations, the press and UN investigations. The majority of misconduct has fallen under the term 'sexual exploitation and abuse'. Sexual exploitation and abuse has encompassed rape, sex with minors, trafficking, prostitution-related conduct, sexual exploitation, and other sexual abuse. This article discusses accountability in international criminal law for such conduct, first exploring the development of gender-based crime in international criminal law. The core of this article consists of an examination of the applicable law under the Rome Statute of the International Criminal Court, to determine whether or not the provisions could be used to prosecute peacekeepers for the crimes of rape, sexual slavery, sexual exploitation, prostitution-related conduct, and trafficking. Real life examples of criminal conduct by peacekeeping personnel will be given to test the applicability of the Rome Statute provisions.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.7 Crimes against humanity/Crimes contre l’humanité

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Organizational Policy ◽  
Applicable Law ◽  
Contextual Elements ◽  
The Subject ◽  
The Individual

This chapter comments on Article 7 of the Rome Statute of the International Criminal Court. Article 7 defines crimes against humanity, one of four categories of offence within the subject-matter jurisdiction of the International Criminal Court. The classic definitions of crimes against humanity, in such instruments as the Charter of the Nuremberg Tribunal, are vague and open-ended, leaving courts to interpret the scope of such expressions as ‘persecution’ and ‘inhumane acts’. Out of concern with the uncertain parameters of the crime, the drafters of the Rome Statute included extra language designed to restrain efforts at generous or liberal interpretation. The five distinct ‘contextual elements’ of crimes against humanity are: (i) an attack directed against any civilian population; (ii) a State or organizational policy; (iii) an attack of a widespread or systematic nature; (iv) a nexus between the individual act and the attack; and (v) knowledge of the attack.

Preamble: Préambule, Preamble/Préambule

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Justice ◽  
General Philosophy ◽  
Final Version ◽  
Underlying Principle ◽  
The Subject

This chapter comments on the Preamble to the Rome Statute of the International Criminal Court. The Preamble consists of eleven paragraphs and some 305 words. It addresses several of the important principles that underpin the Statute, such as complementarity and gravity, the commitment to address impunity, and the obligations of States with respect to international justice in general. The Preamble also provides an appropriate place for the Statute to make reference to such instruments as the Charter of the United Nations. Although the final version of the Preamble provides indications as to the general philosophy animating the Statute, the earlier versions actually influenced the drafting process, most notably in the debate as to whether complementarity was merely an underlying principle or whether it required specific provisions and mechanisms for its implementation, and as regards the importance of gravity or seriousness in establishing the subject-matter jurisdiction of the Court.

Part 3 General Principles of Criminal Law: Principes Généraux Du Droit Pénal, Art.31 Grounds for excluding criminal responsibility/Motifs d’exonération de la responsabilité pénale

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Criminal Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Criminal Court ◽  
Criminal Justice Systems ◽  
A Charge ◽  
General Provision ◽  
Self Defence

This chapter comments on Article 31 of the Rome Statute of the International Criminal Court. Article 31 describes what is known in most criminal justice systems by the terms ‘defences’, ‘excuses’, and ‘justifications’ for excluding criminal responsibility. It addresses several defences: insanity, intoxication, self-defence, duress, and necessity. It is followed by two other provisions, articles 32 and 33, defining specific defences. It is not apparent why articles 32 and 33 were not consolidated into the general provision, article 31. To the extent that they refute a charge, age (article 26), immunity (article 27), statutory limitation (article 29), and lack of mens rea (article 30) also operate as defences.

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