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Schabas - Introduction to the International Criminal Court

Introduction

  • Author: William A. Schabas

  • Context: The genesis and framework of the International Criminal Court (ICC) are discussed, providing insights into its historical background and legal context.

Table of Contents

  • Preface

  • List of abbreviations

  • Key Chapters:

    • Creation of the Court

    • Crimes prosecuted by the Court

    • Jurisdiction and admissibility

    • General principles of criminal law

    • Investigation and pre-trial procedure

    • Trial and appeal

    • Punishment and the rights of victims

    • Structure and administration of the Court

    • Appendices (including the Rome Statute and Elements of Crimes)

Creation of the Court

  • Historical Context:

    • Prosecution of war criminals dates back to ancient times, establishing a baseline for accountability.

    • Philosophy and religion point towards common values even in wartime conduct, suggesting universal principles.

  • Legal Precedence:

    • Classical texts document early laws of war, leading to accountability measures for transgressions.

    • Francis Lieber’s codification for the American Civil War set precedents for the prosecution of war crimes.

  • Limitations of National Courts:

    • National systems often fail to prosecute effectively, especially when the perpetrators are in power.

    • Historical context limits prosecutions to the defeated or rogue elements, exemplified by Peter von Hagenbach’s trial in 1474.

    • The Peace of Westphalia (1648) emphasized state sovereignty, limiting international accountability.

  • Emergence of International Prosecution:

    • Initial calls for an international court materialize in the mid-19th century with humanitarian proposals stemming from the Geneva Conventions.

    • The Hague Conventions (1899, 1907) introduced crucial principles but did not institute personal liability for war crimes.

    • The Martens clause highlights the expectation of humane treatment during conflicts, emphasizing evolving obligations in international law.

  • Continued Efforts in the 20th Century:

    • Following World War I, there were pushes for accountability through the Versailles Treaty, although the trials met with limited success.

    • The inadequacy of the Leipzig Trials reflects broader challenges in achieving justice for war crimes.

  • Post-World War II Developments:

    • The Nuremberg and Tokyo trials laid legal foundations for modern international criminal law, establishing precedence for the prosecution of severe human rights abuses.

    • The legal challenge revolved around ex post facto laws but shifted opinions towards the necessity of punishing crimes against humanity.

  • Role of the United Nations:

    • The UN played a pivotal role in initiating war crimes tribunals and continues to shape discourses surrounding state obligations.

    • The establishment of the Tribunal for the Former Yugoslavia and the Rwanda Tribunal highlighted the international community's response to ethnic cleansing and genocide.

    • Both tribunals emphasized the evolution of legal interpretations and expanded the definitions of war crimes and crimes against humanity.

The Drafting of the ICC Statute

  • The Path to the ICC:

    • In 1994, the UN General Assembly took steps towards establishing the ICC based on earlier legal frameworks.

    • Debates emphasize the need for a permanent tribunal, moving beyond ad hoc measures.

  • Key Provisions and Challenges:

    • The principle of complementarity redefined the ICC's role, ensuring national jurisdictions remained primary unless they failed to act.

    • Defining crimes such as genocide and crimes against humanity became central to negotiations.

    • Differentiating between the statute and its associated code comprised ongoing discussions, ultimately conflating issues of criminal definitions with institutional authority.

  • Negotiation Dynamics:

    • The Diplomatic Conference in Rome witnessed significant participation from member states, NGOs, and legal scholars, reflecting broad international interest.

    • Emerging coalitions, such as the "like-minded" group, sought to refine and promote core ICC principles, ultimately impacting the court's final architecture.

  • Resulting Statutory Framework:

    • The ICC Statute reflects a convergence of international legal norms and human rights stipulations, signaling a commitment to justice.

    • The Statute includes detailed provisions for procedural fairness, highlighting the complexity and ambition of the ICC's mandate.

Conclusion

  • Significance of the ICC:

    • The establishment of the ICC represents a monumental development in international law, reflecting a global consensus on human rights and accountability.

    • The ongoing evolvement of global legal standards and domestic implementations previews the future of international criminal jurisprudence.