International criminal court & regional actors JUSTIN Judicial Studies Institute Masaryk University Katarína Šipulová Brno, 13 October 2021 ICC_DeutscheWelle.jpg International criminal law (recap) •Crime under international law •Legal concept •Article 1 Convention on prevention and punishment of the crime Genocide 1948 • Principles of International Law recognized by Nuremberg Tribunal Charter 1950 •Draft Code of Crimes against the Peace and Security of Mankind 1996 •Nuremberg Charter: 3 categories of crimes •Crimes against peace •War crimes •Crimes against humanity •International ad hoc tribunals: grave violations of international law •International crime v crime under international law • International criminal law (recap) •Crime under international law 1.Crimes against peace •UN Charter, A 2.4 prohibition of the use of force •ICJ: Military and Paramilitary Activities in and against Nicaragua 1986 •Nuremberg, Tokyo, crime of aggression 2.Grave violations of humanitarian law •Customary law •Discussed in International Court of Justice case: Barcelona Traction •A common article 3 of Geneva convention (humanitarian minimum) prohibiting •Attacks on life and health, murder, torture, mutilation •wounded, sick and shipwrecked be collected and cared for • It grants the ICRC the right to offer its services to the parties to the conflict. • It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through so-called special agreements. 3.Crime of genocide/against humanity •Widespread systematic attack against civil population •Intention to exterminate protected group 4.War crimes •Existence of an armed conflict • International Criminal Court • •The idea immediately after WW2 •1947 Nuremberg Laws (ILC) •1954 first attempt – lack of consensus, put ad acta •Committee for International law – proposal in 1994 •1996 Preparatory Committee of the UN General Assembly tasked to prepare a statute •PROBLEMS •Diverse preferences of states •Extent of jurisdiction •Czechia supports stronger competences of the court •International conference in Rome, 15-17 July 1998 •ICC Statute •Signed by 120 of 148 states •Effective ratification: 60 countries, achieved on 11 April 2002 •Today: 123 contracting parties • •Drawbacks: •Speed •Agenda linkage •diplomacy icc International Criminal Court • •COMPOSITION •Article 34: four bodies •Presidency •Three divisions •Appeal •Trial •Pre-Trial •The Office of the Prosecutor •The Registry • •Article 36.1: minimum 18 judges •Selection: high moral quality, impartiality, integrity, the qualifications required in their respective states for appointment to highest judicial offices •Competence in criminal law and procedure (experience as judge, prosecutor, advocate) •Competence in relevant areas of IL •Every state nominates 1 candidate (not necessarily a national) •Election: 2 lists of candidates according to qualifications •Election by secret ballot at a meeting of the Assembly of States Parties •No two judges may be nationals of the same state • •Consideration on representation of principal legal systems, geographical representation, gender •9 years, cycle by 3 •The Office of the Prosecutor: a 42: separate independent body of the Court •Responsible for receiving referrals and information on crimes within the jurisdiction of the ICC, examining them, conducting investigations and prosecutions before the Court US Team Welcomed at International Criminal Court Review Meeting ICC: Jurisdiction (Article 5) • •The crime of genocide •Crimes against humanity •War crimes •The crime of aggression •Inserted by resolution 6 of 11 June 2010 •Invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force •Bombardment by the armed forces of a state against the territory of another state •The blockade of the ports or coasts •Attack by the armed forces on the land, sea, or air forces, or marine and air fleets •TIME: crimes after 1 July 2002 • • ICC - Controversies • •Initiation of investigation •Referral by a treaty party (information to Prosecutor) •Referral by UN Security Council (Chapter VII) •Prosecutor on his own motion (proprio motu) A15 (Kenya) • •Conditions: •Ratification of the statute •Competence of the court acknowledged (ad hoc) by at least 1 of the states •Principle of complementarity • • icc.jpg Principle of complementarity states, rather than the International Criminal Court (ICC), will have priority in proceeding with cases within their jurisdiction. This principle means that the Court will complement, but not supersede, national jurisdiction. ICC - Controversies • •Execution of punishments •Part 7. •Imprisonment (life or 30 years) •Financial punishment •Forfeiture of property etc. • •Part 10 •List of countries willing to take convicted •ICC oversees •Conditions: based on national legal order • • ICC - Controversies • •Cooperation with member and third countries •Part 9. •Implementation of international commitments •Core responsibilities •Cooperation on investigation and prosecution •Compatibility of national laws and cooperation •It cannot give commitments to third countries, but it can asked them for help ad hoc •Arrest and surrender •Rule of specialty •Domestic immunities not applicable •Generally, state can refuse the cooperation only when hands over information on the threat to its own security • • • Rule of speciality 1. A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered. ICC - Controversies • •Cooperation with third countries: USA •Clinton’s role •BIAS – bi-partisan agreements on immunity (Article 98 of the Statute) •ASPA – the right of the President to take soldiers from the ICC jurisdiction •Criticism •Conflicting authority outside of a classical constitutional system of compliance enforcement •Elastic jurisdiction •Lack of definitions of crimes in the Statute •No act of terrorism •Fear of prosecution of their own soldiers – My Lai? •Too independent Prosecutor •Ineffective •Outside of UN •Violation of the traditional concept of state sovereignty •Due process (no jury trials, retrials allow errors of fact, hearsay evidence, no bail…) • • • CLINTON: standing behind preparation of the Rome statute, signing the Statute in 2000 in 1998 vote on the Rome Statute: 7 countries against: Iraq, Israel, Libya, China, Qatar, Yemen, USA …Clinton argues he would ratify only after USA has a chance to observe the functioning of the Court, but, he supported the proposed role of ICC: The United States should have the chance to observe and assess the functioning of the court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor, submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied. Nonetheless, signature is the right action to take at this point. I believe that a properly constituted and structured International Criminal Court would make a profound contribution in deterring egregious human rights abuses worldwide, and that signature increases the chances for productive discussions with other governments to advance these goals in the months and years ahead BUT – he did not submit the Statute to the Senate for the ratification. GWBush: explicitly against. Sent a note to UN Secretary General in May 2002: no longer intend to ratify and does not recognize any obligation towards the Rome Statute – withdrawa from the depository list Majority of scholars belief that Rome statute is compatible with the US Constitution. Counter –opinion: it would allow he trial of US citizens for crimes committed on US Soil – within the judicial power of US Obama: re-establish the cooperation as an observer. 2009. Repeated support voiced also on the ground of UN, plus support of investigation in Sudan. Sanctions to BIAs removed US delegation in Kampala, plus promise to help prosecute atrocity crimes and investigation of rebel group Lord’s Resistance Army and Joseph Kony (Uganda) TRUMP: very critical of the court in UN and UN HRCouncil. USA withdrew the visa of the Prosecutor Fatou Bensouda (anticipation of the investigation into possible war crimes committed by US forces during the War in Afghanistan – authorized in March 2020) Biden: lifted sanctions against heads of ICC’s jurisdiction, Complementarity and Cooperation Division. Still object to ICCC’s jurisdiction over personnel of non-state parties such as US and Israel, but: they want to engage ASPA: American Service-Members’ Protection Act (of 2002) -A number of provisions -President can use all means necessary to bring about any release of any US or allied personnel detained by, on behalf of or at the request of the ICC PLUS probihiting the US providing military aid to countries which had ratified the treaty establishing the court. (if they do not have BIA). -Prohibition of US co-operation with ICC BIAs Bilateral Immunity Agreements -A98 of the Statute: prohibits ICC from requesting assistance or th surrender of a person to the ICC if to do so would require the state to act inconsistently with its obligations under IL -US: its citizens cannot be transferred to the ICC by any state that has signed a bilateral agreement with the US prohibiting such a transfer, even if the state is a member -Article drafted because of the concern wht will happen with existing agreements (status of forces and status of mission) -After Mali, Namibia, South Africa, Tanzania and Kenya publicly rejected BIAs in 2003 – development aid funding cut by more than 89 million dollars -2009 Obama: laws cutting aid unless BIAs were no longer in place -One of the first countries: Romania – EU requested it not to sign -> common position by the CEU 2002: permitting members tates to enter into A98 agreements with the USA but only concerning military personnel of US, diplomatic or consular officials …not the general citizens ICC - Controversies • • • • International Criminal Court building (2019) in The Hague 01 (cropped).jpg ICC - Controversies • • • • •Finances: contributions from state parties (same as UN contributions system: country’s capacity to pay / national income and population) •Maximum: 22% of Court’s budget (Japan in 2008) • • • ICC Funding pie chart ICC - Controversies • • • • • Many ICC countries are not paying – Justice Hub ICC - Controversies • • • • •Western imperialism: •ICC punishes only leaders from small, weak states while ignoring crimes committed by richer and more powerful states •Kenya – withdrawal of support (AU summit 2013) When Omar al-ashir visited several African countries, he was not arrested despite the ICC warrant Ivory Coast opted not to extradite the first lady Simone Gbagbo and try her at home •AU: withdrawal proposal 2015 • • • ICC - Controversies • •Czech Republic enters as the very last EU member and candidate country •1 October 2009 •10 year long journey to ratification (signatory from 1999) • Constitution and Rome Statute 1. immunities (President, Senators, Constitutional justices) 2.Presidential amnesties 3.X extradition of nationals • • • . ICC – Biggest cases • •Prosecutor: investigations in 13 situations •Most famous: •Libya •Al-Bashir & Darfur •Côte d'Ivoire •Palestine •Kenya •Bangladesh •Lubanga (DRC) •Investigations: Colombia, Guinea, Nigeria, the Philippines, Ukraine, Bolivia, Venezuela •45 indicted people, 19 ongoing cases, 12 fugitives • ICC – Prosecutors • Ocampo - Bensouda - Khan (June 2021) • luis_moreno-ocampo-image-from-jurisnovus ICC Prosecutor, Fatou Bensouda, requests judicial authorisation to commence an investigation into the situation in Bangladesh/Myanmar Karim A. A. Khan QC | Wilson Center Recommendation • Kevin Jon Heller: The Nuremberg Military Tribunals and the Origins of International Criminal Law 9780199554317_450 ICC – Biggest cases • Lubanga •First charged to stand before the ICC •War crime of hiring child soldiers • •Activism of the Prosecutor? Council of Europe • European Court of Human Rights European Convention on Human Rights Entry conditions - democratic constitution • Hungary: constitution of 1949? •Existence of a Constitutional review •Compliance and compatibility of national legal order with the Convention •Reforms of judiciaries, depoliticization, etc. •Why? •Democratization •integration European Court of Human Rights • Post-transition problems •Prosecution of leading authorities of totalitarian regimes •External control of de-communisation •Lustration •Restitutions of property •Privatisation processes •Racial discrimination European Court of Human Rights • Criminal Accountability •Streletz, Kessler, Krenz v Germany •K.-H.W. v Germany •Kononov v Latvia •Korbely v Hungary •Kolk and Kislyiy v Estonia •Bazorkina v Russia European Court of Human Rights • Streletz, Kessler, Krenz 3 applicants: senior officials of GDR Streletz: Deputy Min of Defence Kessler: Min of Defence Krenz: President of the Council of State K.—H.W. – German national, member of GDR’s National People’s Army – a border guard. All four convicted by the courts of the FRG after the unification: imprisonment for intentional homicide as indirect principals (participation of the regime for the policing of GDR’s border) W: intentional homicide: using his firearm What was the problem? TIME Their actions at that time did not constitute offences under the law of the GDR OR IL. Conviction: breached A7: no punishment without law, and principle of retroactivity European Court of Human Rights • Streletz, Kessler, Krenz although the aim of the GDR’s State practice had been to protect the border between the two German States “at all costs” in order to preserve the GDR’s existence, which was threatened by the massive exodus of its own population, the reason of State thus invoked had to be limited by the principles enunciated in the Constitution and legislation of the GDR itself; above all, it had to respect the need to preserve human life, enshrined in the GDR’s Constitution, People’s Police Act and State Borders Act Even a private soldier could not show total, blind obedience to orders which flagrantly infringed not only GDR’s own legal principles, but also internationally recognized HR FLAGRANT INFRINGEMENT OF HR and RtoLIFE, the SUPREME VALUE IN THE INTERNATIONAL HIERARCHY of HR, could not be covered by the protection of A7!! European Court of Human Rights • Bazorkina v Russia (2006) •Russian national, lodging the complaint on behalf of her son who left for Chechnya in 1999 •On 2 February 2000: interrogation captured by TV news (Russian officer, capturing of Yermolovka village – finish off instruction) •August 2000: applicant informed her son is not held in any prison in Russia •November 2000: military prosecutor decided not to open the criminal investigation of disappearance •2001: application to the ECtHR •Detained in 2/2000, handed over to MinJus transportation, did not arrive to any pre-trial detention centre •Article 2: presumed death: detained persons are in a vulnerable position and authorities are under a duty to protect them. It is undisputed that he was detained •Absence of plausible explanation of Russian government – liability is attributable to the Russian government – violation of Article 2 A3: applicant suffered distress and anguish. Her treatment by the official authorities was inhuman A5: unlawful detention, incompatible with Article 5 (no official trace of his fate The Inter-American HR Regime •The American Declaration of the Rights and Duties of Man • •Adopted by the GA of the Organization of American States in April 1948 • •Not binding • •Crucial era: 70s-80s (democratization) • •The 1969 American Convention on Human Rights •Adopted by the GA of the Organization of American States in April 1948 •In force from 1978 •Ratified by 24 countries •Inter-American Democratic Charter 2001 • The Inter-American HR Regime and TJ •Velásquez Rodríguez v. Honduras (1988): •The countries are oblidged to oversee compliance with HR and fight against impunity with any means possible • •Amnesties •Barrios Altos v Peru (2001): two acts on amnesties (Alberto Fujimori awarded amnesty to himself) – contrary to right of victims to a fair trial and articles 1 and 2 of the Convention •Almonacid v Chile •Act on :amnesties regarding the Pinochet regime of 1978 need to be abolished. The Inter-American HR Regime and TJ •Overall, no consistent approach towards the transitional justice •Paraguay: Alfredo Stroessner regime: •Historical memory, establishment of the TRC – willingness to address TJ questions domestically • •TRC in Chile •Even if collecting the evidence on HR violations, it does not substitute the court and fair trial • • Thank you for your attention Katarína Šipulová katarina.sipulova@law.muni.cz Masaryk University