The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues

2012 ◽  
Vol 12 (2) ◽  
pp. 115-153 ◽  
Author(s):  
Kai Ambos
Keyword(s):  
International Criminal Court ◽  
Armed Conflict ◽  
International Criminal ◽  
Case Law ◽  
Trial Chamber ◽  
Criminal Court ◽  
Comprehensive Analysis ◽  
Legal Issues ◽  
Mental Element ◽  
Evaluation Of Evidence

On 14 March 2012, Trial Chamber I (hereinafter ‘the Chamber’) of the International Criminal Court (‘ICC’ or ‘the Court’) delivered the long awaited first judgment of the Court (‘the judgment’). This comment focuses exclusively on the legal issues dealt with in the judgment but pretends to do this comprehensively. It critically analyses the following five subject matters with the respective legal issues: definition and participation of victims; presentation and evaluation of evidence; nature of the armed conflict; war crime of recruitment and use of children under fifteen years (Article 8(2)(e)(vii) ICC Statute); and, last but not least, co-perpetration as the relevant mode of responsibility, including the mental element (Articles 25, 30). While this article follows the order of the judgment for the reader’s convenience and to better represent the judgment’s argumentative sequence, the length and depth of the inquiry into each subject matter and the respective issues depend on their importance for the future case law of the Court and the persuasiveness of the Chamber’s own treatment of the issue. The article concludes with some general remarks on aspects of drafting, presentation and referencing.

scholarly journals IMPORTANCE OF THE BEMBA CASE FOR THE INSTITUTE OF PERSONAL RESPONSIBILITY OF COMMANDERS AND OTHER SUPERIORS FOR THE COMMITMENT OF CRIMES AGAINST INTERNATIONAL LAW BY THEIR SUBORDINATES

2021 ◽  
pp. 109-114
Author(s):  
B. I. Nedilko
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Personal Responsibility ◽  
Trial Chamber ◽  
Criminal Court ◽  
International Criminal Law ◽  
First Case

This article is devoted to the analysis of the Jean-Pierre Bemba Gombo case of the International Criminal Court. He was a Congolese politician, as well as the founder and the head of non-governmental armed group, named “Movement for the Liberation of Congo”, which members committed number of crimes during armed conflict in Central African Republic. The importance of this case lies in the fact, that it was the first case of the International Criminal Court, where the accused was charged with crimes, committed by his subordinates, and not by the accused himself. This article reveals the main contradictions between the judgments of the Trial Chamber, which found Bemba guilty, and the Appeals Chamber, which acquitted him. The legal basics of the institute of personal responsibility of commanders and other superiors in international criminal law, which were formed in the decision of the Appeals Chamber in the Bemba case, are highlighted therein. The author addresses and analyzes the grounds for recognizing commanders and other superiors guilty for committing crimes by their subordinates. It was discovered, that Article 28 of the Rome Statute requires the commanders to take only necessary or reasonable measures to prevent or punish the crimes, committed by their subordinates, not all possible measures at the relevant time. The Trial Chamber should specify what exactly the accused had to do to prevent or punish the crimes, as well as inform the accused of it prior to the hearing. It is also necessary to take into account objective circumstances, that could prevent the commander from adequately responding to the commission of crimes by his subordinates, especially if they operated in the territory of another state. The commander's ability to take the necessary or reasonable measures to prevent or punish the crimes, committed by his subordinates, should be analyzed in relation to each individual crime he is charged with, and not in relation to all the actions of subordinates as a whole. At last, the Appeals Chamber provided an exhaustive list of criteria for determining whether the measures, taken by the commander, were sufficient.

Burden and Standard of Proof in Defence Challenges to the Jurisdiction of the International Criminal Court

2015 ◽  
Vol 28 (1) ◽  
pp. 133-155
Author(s):  
MICHAIL VAGIAS ◽  
JANOS FERENCZ
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Case Law ◽  
Fair Trial ◽  
Criminal Court ◽  
Legal Issues ◽  
Standard Of Proof ◽  
Current State ◽  
The Law

AbstractThe jurisdiction of the International Criminal Court has remained largely uncontested during the first 10 years of its operation. Today, the jurisdictional cooling-off period seems to have run its course. The Prosecutor has opened the first Article 15 investigations and prosecutions in Kenya. The defence has been active in challenging the jurisdiction of the Court. Judges at the pre-trial stage have taken a more inquisitive approach to jurisdictional assessments. This awakening has led to the identification of novel legal issues. One of them is the applicable burden and standard of proof for defence challenges to jurisdiction. So far, this issue has been addressed largely through interpretation of the Statute. The Court's first decisions seem to fluctuate significantly on this point. From pronouncements accepting that such burden and standard do exist and seeking to articulate them, to rulings implying that they do not exist altogether, the Court's case law reveals a measure of inconsistency and a lack of reasoning. This article seeks to expose the different positions assumed on the matter, typically as a result of the judges’ efforts to balance procedural efficiency and fair trial considerations. In doing so, we will reflect critically on the causes and effects of the current state of the law and propose a reorientation of the case law through the use of other relevant international jurisprudence.

Situation in the Islamic Republic of Afghanistan (Int'l Crim. Ct. App. Chamber)

2020 ◽  
pp. 1-23
Author(s):  
Ryan Vogel
Keyword(s):  
International Criminal Court ◽  
Armed Conflict ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Islamic Republic

On March 5, 2020, the Appeals Chamber of the International Criminal Court (ICC) delivered its unanimous Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan. The decision came after an appeal of the Pre-Trial Chamber II's unanimous decision in April 2019 rejecting the Prosecutor's request to proceed with an investigation. The Appeals Chamber's decision allows the prosecutor to immediately begin an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.”

State of Exception

2020 ◽  
Author(s):  
Ardi Imseis
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Of Exception ◽  
Critical Examination ◽  
Territorial Jurisdiction ◽  
Preliminary Examination ◽  
Occupied Palestinian Territory ◽  
Palestinian Territory

Abstract In December 2019, the Prosecutor of the International Criminal Court concluded her preliminary examination into the situation in Palestine, determining there is a reasonable basis to initiate an investigation into the situation. Instead of doing so, she first decided to seek a ruling from the Pre-Trial Chamber on the scope of the Court’s territorial jurisdiction, specifically aimed at confirming her view that the ‘territory’ over which the Court may exercise its jurisdiction comprises the Occupied Palestinian Territory (OPT). This article focuses on the amici curiae observations and other communications made by eight states parties in the proceedings — Australia, Austria, Brazil, Canada, Czech Republic, Germany, Hungary and Uganda. A critical examination of these observations and communications reveals that they did not answer the question posed by the OTP, but rather advanced a number of strained arguments aimed, inter alia, at impugning the very notion that the Court has any jurisdiction at all on the basis that Palestine is not a state. When juxtaposed against the ostensible commitment of these states parties to the object and purpose of the Statute, their observations and other communications reveal a conspicuous hypocrisy. If accepted by the Court, these observations and communications would operate to not only affirm the continued contingency of the state of Palestine on the international plane, but, even worse, to shield persons known to have committed or be committing crimes of the gravest concern to the international community with impunity.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

Individual Criminal Responsibility before the International Criminal Court

2012 ◽  
Vol 12 (1) ◽  
pp. 1-70 ◽  
Author(s):  
Barbara Goy
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Ad Hoc ◽  
International Criminal ◽  
Criminal Responsibility ◽  
International Criminal Tribunal ◽  
Case Law ◽  
Criminal Court ◽  
Former Yugoslavia ◽  
Individual Criminal Responsibility

For more than 15 years the two ad hoc Tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), have interpreted the requirements of different forms of individual criminal responsibility. It is thus helpful to look at whether and to what extent the jurisprudence of the ICTY/ICTR may provide guidance to the International Criminal Court (ICC). To this end, this article compares the requirements of individual criminal responsibility at the ICTY/ICTR and the ICC. The article concludes that, applied with caution, the jurisprudence of the ICTY/ICTR – as an expression of international law – can assist in interpreting the modes of liability under the ICC Statute. ICTY/ICTR case law seems to be most helpful with regard to accessorial forms of liability, in particular their objective elements. Moreover, it may assist in interpreting the subjective requirements set out in Article 30 ICC Statute.

Better Late than Never: Reparations for Sexual Violence in the Ntaganda case before the International Criminal Court

2021 ◽  
Vol 2 (1) ◽  
pp. 27-47
Author(s):  
Sunneva Gilmore
Keyword(s):  
Sexual Violence ◽  
International Criminal Court ◽  
International Criminal ◽  
Child Soldiers ◽  
Trial Chamber ◽  
Criminal Court ◽  
Crimes Against Humanity ◽  
Medical Background ◽  
Modest Contribution ◽  
First Time

The Prosecutor v Bosco Ntaganda case at the International Criminal Court (ICC) represents the long awaited first reparation order for sexual violence at the court. This will hopefully see the implementation of reparations for the war crimes and crimes against humanity of rape and sexual slavery among civilians and former child soldiers, after previous cases such as against Jean-Pierre Bembe and Laurent Gbagbo were acquitted of rape. This article drawing from the author's role as a reparation expert in the case, is a reflection on the challenges of designing and providing reparations at the ICC against convicted individuals, as well as amidst insecurity and the COVID-19 infectious disease pandemic. It begins by discussing how the Ntaganda reparation order expanded reparation principles for the first time since the Lubanga case, in particular for crimes of a sexual nature. This is followed by an outline of some of the harms as a result of sexual violence from the perspective of an expert with a medical background. The analysis then turns to the appropriate reparations in this case and the details contained within the chamber's reparation order. Final conclusions consider how the procedural and substantive elements of reparations in this case will be instructive to future cases that address sexual violence. Ultimately, key insights are offered on the modest contribution an appointed reparation expert can do in assisting a trial chamber in the reparation process.

Theory and practice of mixing procedural models in the Pre-trial Chamber of the International Criminal Court mechanism of functioning

2020 ◽  
Vol 10 (4) ◽  
pp. 100-111
Author(s):  
Denis Pechegin
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Balance Of Power ◽  
Trial Chamber ◽  
Criminal Court ◽  
Theory And Practice ◽  
International Standards ◽  
Legal Proceedings ◽  
Honorary Doctor

The increasing interpenetration of the main models of the process and the approval of international standards for the production of criminal cases raise the question of the development and improvement of the form of legal proceedings in the category of the most relevant in modern science. On the one hand, the attention of many scientists is focused on strengthening the competitive core of the process and ensuring, as far as possible, a balance of power between the parties. On the other hand, it is stated that legal proceedings that do not pursue the goal of achieving material truth, especially due to the absolute nature of the principle of competition, lead to excessive formalism that has nothing to do with fair trial. The solution to the problem of combining trial models (the balance of adversarial and investigative cores) is seen in the International Criminal Court. The procedure of criminal proceedings in the International Criminal Court is the result of special scientific modeling taking into account the indicated doctrinal trends, and the degree of generalization of approaches of leading legal families in the structure of the Rome Statute of the International Criminal Court is so high that it allows us to speak about the universality of this procedural system. If the predecessors of the International Criminal Court preference were really given only one started (so, the ICTY was based on the example of the Anglo-Saxon adversarial procedure model with the “American accent”), the Rome Statute of the International Criminal Court reflected the trend to the initial formation of a balanced trial procedures designed to overcome the deviations in the balance of power by introducing an adversarial process with “inquisitorial” elements: for example, the Pre-trial Chamber, duties of the Prosecutor fully and objectively investigate the circumstances of the case, the duties of the court of first instance to establish the truth in the case. However, this does not mean any disregard for the adversarial core at the pre-trial stage. The article is devoted to theoretical and practical aspects of the combination of adversarial and investigative cores in the activities of the pre-trial Chamber of the International criminal court and reflects the results of a study led by professor Anita Ušacka, honorary doctor of law, in the preparation of a Commentary to the Rome Statute in Russian.

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