The International Criminal Court
Order ID: 89JHGSJE83839 Style: APA/MLA/Harvard/Chicago Pages: 5-10 Instructions:
1. (Statute, Art. 7)
a. What innovative elements concerning crimes against humanity are introduced in the ICC Statute?
b. Can crimes against humanity be perpetrated in peacetime?
c. The Nuremberg trials established that for an accusation of crimes against humanity, there must be a nexus between the accused and a State engaged in an armed conflict. Does this nexus still exist under the ICC Statute? Can a non-State actor be punished and prosecuted under the Statute for crimes against humanity? Can a member of a rebel group that controls part of a territory be punished for crimes against humanity if inhumane acts were committed? Did the drafters of the ICC Statute draw on the ICTY and ICTR judgements to reach the solution they chose?
d. Does the Statute’s definition of crimes against humanity include new elements? Which ones? Could it be argued that the expanded list of inhumane acts further clarifies the definition of crimes against humanity? Does this list have to be interpreted as being exhaustive, or only as illustrative of elements of crimes against humanity?
e. To consider one specific element, when do rape and forced pregnancy constitute crimes against humanity? Is this a new rule?
2. (Statute, Art. 8)a. Is the Court competent for all war crimes? For all grave breaches of IHL? (GC I-IV, Arts 50/51/130/147 respectively; P I, Arts 11(4) and 85)
b. Does the Statute clarify for which grave breaches of IHL the Court is competent? Is Art. 8(1) of the Statute compatible with the principle of nullum crimen sine lege?
c. Does the definition of war crimes correspond to the detailed provisions of the Hague and Geneva Conventions? Does the Statute’s definition of war crimes add innovative elements? Which ones?
d. Does the Statute include war crimes in non-international armed conflicts? Are they the same as those covered in international armed conflicts? Are the differences in terms of the threshold of applicability between the crimes defined in Art. 8(2)(c) and those defined in Art. 8(2)(e) necessary under IHL? Are those differences reasonable? Does the threshold of applicability for war crimes in non-international armed conflicts listed in Art. 8(2)(e) correspond to that of Protocol II? Do you think that this threshold of applicability is too high? Among the twelve war crimes listed under this provision, starvation of the civilian population is not mentioned. Why not? Are any of the twelve crimes listed not prohibited by Protocol I?
e. Could it be argued that war crimes as defined in the Statute are customary international law? For which crimes do you have doubts? Must the Statute codify customary law in the definition of crimes in order to respect the principle of nullum crimen sine lege? Or may the Statute add new crimes? May it add new war crimes to the list in the Geneva Conventions and Protocols even though they may not be crimes under customary law?
f. May the Court try a person for a crime which falls under the formulation of a crime according to Art. 8 of the Statute but not under the formulation of that same crime by Protocol I, even though Protocol I is applicable to it? In view of Art. 21(1)(b), may the Court conversely try a person for a crime that falls under the formulation of Protocol I, but not under the Statute? At least if the act concerned has become a crime under customary law?
g. Does Art. 10 bar an accused from arguing that a provision of Art. 8 has been abrogated by a new rule of customary law?
3. (Statute, Art. 9)a. Are the elements of crimes to be defined under Art. 9 binding for the Court? At least in the sense that the Court may not sentence a person who does not fulfil them? Why did States want to define such elements?
b. Is the definition of elements of crimes according to Art. 9 useful? Will it develop IHL? May it criminalize further forms of behaviour?
4. (Statute, Arts 11-19)a. Who may trigger the Court’s jurisdiction with regard to a specific crime? A State? An individual? The Prosecutor? The UN Security Council?
b. Who decides that an alleged crime needs to be investigated? The Prosecutor? The Court? The Security Council? What are the powers of each body in investigating a specific crime?
c. Concerning the role of the Prosecutor, would you qualify his powers as being too broad? May the Prosecutor initiate an investigation independently of the Security Council? Does the Prosecutor need the formal approval of the Pre-trial Chamber to proceed with an investigation?
d. What are the checks and balances of his powers? What are the exact terms and conditions in that regard? Do you consider that Art. 16 of the Statute is a check on the powers of the Prosecutor? Which concerns do you think some States have expressed in that regard? What could have prompted the inclusion of Art. 16? Is it justifiable? Is Resolution 1487 (2003) an example of the application of Art. 16 (see also question 19)? Is the Court independent in spite of Art. 16? If a person who has allegedly committed a grave breach of IHL is captured by a State, but the Security Council under Art. 16 adopts a resolution releasing the alleged offender, may or must the State bring him or her before its own courts? Could a resolution adopted by the Security Council under Chapter VII of the UN Charter also oblige or allow a State party to the Geneva Conventions not to prosecute an alleged perpetrator of a grave breach? (GC I-IV, Arts 49(2)/50(2)/129(2)/146(2) respectively; UN Charter, Art. 103 [see http://www.un.org])
e. Concerning the issue of admissibility, to what extent may the Court investigate an individual who has committed a crime which has already been investigated and prosecuted by a State? Does Art. 17(1)(b) of the Statute provide a safeguard against “mock trials”?
f. Can an accused expect to be tried without undue delay under Art. 67(1)(c), in spite of Arts 15-19?
5.
a. Is the non-retroactivity of the Court’s jurisdiction over crimes committed before ratification of the Statute necessary under international law? Is it a consequence of the principle of nullum crimen sine lege? Could it be a sine qua non condition for certain States to ratify the Statute?
b. Is the “opting-out clause” in Art. 124 of the Statute acceptable under IHL? For which reasons could it have been introduced? May a national of a State that has opted out be tried by the Court if the State on the territory of which he or she has committed the crime has not opted out? What are the obligations of States party to the Conventions when a grave breach has been committed on the territory of a State, or by a national of a State, that has opted out? (GC I-IV, Arts 49(2)/50(2)/129(2)/146(2) respectively)
6.
a. Is Art. 12(2) of the Statute compatible with IHL? Is the agreement of the State on whose territory the crime has been committed, or of the State of which the accused is a national, necessary under IHL? Or under other rules of international law? May or must a national court prosecute a person accused of grave breaches of IHL even if both the State on whose territory the grave breaches allegedly occurred and the State of nationality of the accused object? (GC I-IV, Arts 49(2)/50(2)/129(2)/146(2) respectively) What is the consequence of this limitation for war crimes committed in non-international armed conflicts?
b. Is the fact that even a national of a non-party State or a crime committed on the territory of a non-party State may be brought before the Court (if the other State concerned is party to the Statute), compatible with international law? Is it a violation of the principle that only States Parties are bound by a treaty? Is a non-party State bound by it if one of its nationals commits a crime on the territory of a State Party and is prosecuted by the Court? Are the Geneva Conventions binding on a national from a non-party State with regard to his actions on the territory of a State Party? May (must) the latter institute proceedings for grave breaches, in accordance with its own penal procedures? May it extradite him to a third State under an extradition treaty concluded between the two States, but non-binding on the remand prisoner’s State of origin?
c. Has a State a right to exclude its soldiers from being brought before international or foreign courts for war crimes, or a legitimate interest in doing so? When is this interest legitimate? Does the Statute take this interest into account? Has an accused a human right to be brought before the court competent under national or international law to prosecute for his or her crime at the time of the crime?
7. What is the exact progression of a case through the system, from the first emergence of information that a war crime has been committed to trial and judgement? Please try to draw a flow chart.
8. (Statute, Arts 27 and 98)a. Does the Statute provide immunity to heads of States from prosecution? Can the Court prosecute an incumbent head of State? Can it obtain that person’s transfer from a third State? Even without the agreement of the State of which he or she is the head? May the Security Council overrule Art. 98?
b. If a non-party State concludes, with a State party to the Statute, a treaty providing immunity for its nationals acting on the latter’s territory, has it achieved immunity for its nationals before the Court, despite Art. 12(2) of its Statute, for crimes committed on the territory of the State Party? Even if the treaty was agreed to after the ratification of the Statute? Do all “Agreements on the Status of Forces” concluded with a country for the deployment of international forces have this effect?
9. Do Arts 22-25 and 30-32 reflect the general principles of criminal law? Should a person accused of war crimes before a national court benefit from the same guarantees? Would those principles also apply before the courts of your country? (GC I-IV, Arts 49(4)/50(4)/129(4)/146(4) respectively)
10. Does Art. 28 of the Statute correspond to the rules of Arts 86 and 87 of Protocol I? Can its application by the Court ever be incompatible with Protocol I? May the Court in that case apply Art. 28?
11.
a. Could the grounds for excluding criminal responsibility listed in Art. 31 also be applied by a national court without violating the obligation to prosecute perpetrators of grave breaches of IHL? Do all those grounds exist in the national legislation of your country?
b. Does the ground for excluding responsibility formulated in Art. 31(1)(c), despite the last sentence of the paragraph, allow jus ad bellum arguments to be invoked? Or is this defence only available against a use of force unlawful under IHL? May a soldier commit a war crime to defend his life? To defend the lives of comrades? To defend the lives of civilians? May a soldier violate IHL in response to a violation of IHL threatening him or another person? Is there a difference between this defence and the IHL prohibition of reprisals? (GC I, Art. 46; GC II, Art. 47; GC III, Art. 43; GC IV, Art. 33; P I, Art. 51(6))
c. Does the ground for excluding responsibility formulated in Art. 31(1)(d) imply that a state of necessity may justify war crimes? That a soldier may commit war crimes if this is necessary to save the lives of fellow citizens? That an interrogator may torture a suspect thought to have information about an imminent attack?
12. Does Art. 33 fairly codify the rules of IHL on superior orders?
13. Has the Statute changed or developed substantive IHL? Has it added an implementation mechanism? Is the prosecution of war crimes before an international court provided for in IHL? Is it compatible with IHL? (GC I-IV, Arts 49/50/129/146 respectively; P I, Art. 88)
14. Why is the establishment of the Court important for IHL? Will the Court’s existence eliminate the necessity to try war crimes before national courts? When should a case be brought before the Court? Is your answer in line with Art. 17 of the Statute?
15. What is your overall assessment of the Statute from the point of view of IHL?
16.
a. Why did the United States adopt a law (ASPA) which protects their personnel from possible penal action by the Court?
b. As the United States is not party to the Rome Statute, may cases concerning its nationals, and more specifically soldiers, still be referred to the Court? Is this possibility changed by the United States’ position as a permanent member of the UN Security Council? Is the situation different for US nationals who are members of UN forces?
c. Is the law applicable only to US nationals and allies engaged in operations decided or authorized by the Security Council?
d. May the United States, under international law, “protect” Egyptian, Israeli or Taiwanese allied nationals (to give just a few examples of allied nationals of States not party to the Statute) who have allegedly committed war crimes on the territory of a State Party?
17. Under Section 2008 of the ASPA the US President is granted the authority to order, if necessary, a military intervention to set free US nationals held in the Netherlands following an indictment or a sentence by the Court. Is this authority compatible with international law?
18. In which conditions are soldiers of UN forces and nationals of a State not party to the Rome Statute liable to be prosecuted by the Court?
19.
a. What do you think of Security Council Resolution 1487 in light of general international law? In light of the United Nations Charter [see www.un.org]? In light of the Court’s Statute, and specifically of Art. 16?
b. Did Resolution 1487 cover the members of forces which were not under UN command and control, but for which the use of force was authorized by the Security Council (such as the Coalition forces during the 1990-91 Gulf war)? The members of KFOR in Kosovo? [See Case Study, Armed Conflicts in the former Yugoslavia]
c. How do you explain that Resolution 1487 was adopted by the Security Council acting under Chapter VII of the United Nations Charter, as stipulated by Art. 16 of the Rome Statute, when that chapter applies to cases of “threats to the peace, breaches of the peace, and acts of aggression”?
RUBRIC
Excellent Quality
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Introduction 45-41 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Literature Support
91-84 points
The background and significance of the problem and a clear statement of the research purpose is provided. The search history is mentioned.
Methodology
58-53 points
Content is well-organized with headings for each slide and bulleted lists to group related material as needed. Use of font, color, graphics, effects, etc. to enhance readability and presentation content is excellent. Length requirements of 10 slides/pages or less is met.
Average Score
50-85%
40-38 points
More depth/detail for the background and significance is needed, or the research detail is not clear. No search history information is provided.
83-76 points
Review of relevant theoretical literature is evident, but there is little integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are included. Summary of information presented is included. Conclusion may not contain a biblical integration.
52-49 points
Content is somewhat organized, but no structure is apparent. The use of font, color, graphics, effects, etc. is occasionally detracting to the presentation content. Length requirements may not be met.
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0-45%
37-1 points
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75-1 points
Review of relevant theoretical literature is evident, but there is no integration of studies into concepts related to problem. Review is partially focused and organized. Supporting and opposing research are not included in the summary of information presented. Conclusion does not contain a biblical integration.
48-1 points
There is no clear or logical organizational structure. No logical sequence is apparent. The use of font, color, graphics, effects etc. is often detracting to the presentation content. Length requirements may not be met
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The International Criminal Court