scholarly journals THE INTERNATIONAL CRIMINAL COURT AS A VERITABLE TOOL FOR THE PROTECTION OF THE RIGHTS OF ETHNIC MINORITIES: EXAMINING THE ICC’S DECISIONS REGARDING THE PEOPLE OF ROHINGYA

2021 ◽  
Vol 14 (1) ◽  
pp. 65-90
Author(s):  
Ikechukwu P. Ugwu
Keyword(s):  
Ethnic Minorities ◽  
Rome Statute ◽  
Minority Groups ◽  
Trial Chamber ◽  
Criminal Court ◽  
Applicable Law ◽  
The People ◽  
History Of ◽  
Descriptive Method ◽  
Party State

Notwithstanding obstacles to the power and jurisdiction of the ICC, the judges’ posture is that the court is ever ready to protect ethnic minorities against any form of violations. Regarding the situation of the Rohingya people in Myanmar, the Pre-Trial Chamber 1 and III of the ICC held that the ICC could exercise jurisdiction over Myanmar, a non-party State to the Rome Statute, for the deportation of the Rohingya people to Bangladesh. With these decisions, international observers hope for accountability for those responsible for the crimes committed against the Rohingya people. It examines the applicable law and history of discrimination of the Rohingya people using the descriptive method and then examines the jurisprudence behind these rulings using the analytical method. Finally, this article suggests that the Rome Statute should be consistently interpreted by the ICC judges to advance the Rome Statute’s intention, especially when ethnic minority groups are involved.

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

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
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 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.6 Genocide/Crime de génocide

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
Ad Hoc ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
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.

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.)

2014 ◽  
Vol 53 (3) ◽  
pp. 477-501
Author(s):  
Inbal Djalovski
Keyword(s):  
International Criminal Court ◽  
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.12 Preconditions to the exercise of jurisdiction/Conditions préalables à l’exercice de la compétence

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United States ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
General Rule ◽  
The United States ◽  
Criminal Court ◽  
State Party ◽  
Applicable Law ◽  
Party State

This chapter comments on Article 12 of the Rome Statute of the International Criminal Court. Article 12 was ‘[p]erhaps the most difficult compromise in the entire negotiations’. At the Rome Conference, there was a range of views on the ‘preconditions’ for jurisdiction, ranging from the narrow proposals of the United States restricting the Court's jurisdiction to nationals of States Parties, to a form of universal jurisdiction by which the Court would be able to prosecute any crime committed anywhere, providing that it could obtain custody over the offender. Article 12 establishes a general rule by which the Court may exercise jurisdiction over crimes committed on the territory of a State Party and, furthermore, over crimes committed by its nationals anywhere. The Court may also exercise jurisdiction if a non-party State has made a declaration pursuant to article 12(3).

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

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
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.

(Mis)interpreting the Statute? The International Criminal Court, the Sentence of Life Imprisonment and Other Emerging Sentencing Issues: A Comment on the Trial Chamber I Decision on the Sentence in Prosecutor v. Thomas Lubanga Dyilo

2013 ◽  
Vol 13 (5) ◽  
pp. 1037-1045
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Life Imprisonment ◽  
History Of

On 14 March 2012, Trial Chamber I of the International Criminal Court, ICC, in its first ever decision, convicted Mr Thomas Luganga Dyilo, as a coperpetrator, of ‘conscripting and enlisting children under the age of fifteen years into the UPC/FPLC and using them to participate actively in hostilities…’ On 10 July 2012, the Trial Chamber sentenced him to an effective term of 14 years’ imprisonment. In passing the sentence, the Trial Chamber held, inter alia, that in terms of the Rome Statute of the ICC, in cases where it sentences an offender to prison for a specified number of years, the sentence must not exceed 30 years’ imprisonment. The Trial Chamber also equated life imprisonment with ‘whole life.’ It is argued that in the light of the drafting history of the Rome Statute, the Trial Chamber incorrectly interpreted the Statute in those two respects. It is also argued that the ICC should have indicated which purpose the sentence it imposed was meant to serve.

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.

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.

Part 2 Jurisdiction, Admissibility, and Applicable Law: Compétence, Recevabilité, Et Droit Applicable, Art.16 Deferral of investigation or prosecution/Sursis à enquêter ou à poursuivre

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
Security Council ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
International Human Rights ◽  
Applicable Law ◽  
Governmental Organizations ◽  
Non Governmental Organizations ◽  
International Human ◽  
The Relationship

This chapter comments on Article 16 of the Rome Statute of the International Criminal Court. Article 16 addresses the tension that may exist between the Court and the Security Council, where the latter is of the view that a prosecution should not proceed. The Security Council can also refer a situation to the Court, but the Prosecutor is under no obligation to proceed. Finally, the relationship between the Court and the Security Council may arise should the Court be empowered to exercise jurisdiction over the crime of aggression. As the travaux préparatoires indicate, the relationship between the Court and the Security Council was extremely contentious. Article 16 represents a compromise but one with which many States were not pleased. Moreover, international human rights non-governmental organizations opposed article 16, viewing it as an unacceptable encroachment upon the independence of the Court.

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.

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