Comprehensive Notes on International Criminal Law and the International Criminal Court (ICC)

Introduction to International Criminal Justice

• Foundations and Course Context:

  • The lecture serves as a companion to the compulsory podcast featuring Matthew Nelson and the lecturer. Both sources are required to understand the international criminal justice segment of the course.
  • The field of international criminal justice began significantly with the Nuremberg trials following the Second World War.
  • Historicity is essential to understanding the modern regime, including the development of ad hoc international criminal tribunals created for specific atrocities, such as those in the Former Yugoslavia and Rwanda.

• The Rome Statute and the ICC:

  • The International Criminal Court (ICC) was established by the Rome Statute.
  • Per Article 1, the key purpose of the ICC is to bring to account or create justice regarding the "most serious crimes of international concern."

• Member States and Global Participation:

  • There are currently $123$ countries that are state parties to the ICC.
  • The Kampala Amendment (concerning the crime of aggression) has been signed by $44$ member states.
  • Backlash and Withdrawals:
    • The court has faced criticism for being "Africa-focused."
    • Burundi was the first country to officially leave the ICC.
    • The Philippines left the ICC following the court's scrutiny of former President Duterte.
  • Major Powers as Non-Parties: Several significant military and economic powers are not parties to the Rome Statute, including:
    • The United States.
    • Russia.
    • China.
    • India.

The Four Core Crimes of the ICC

• Genocide (Article 6):

  • Defined as acts committed with the "intent to destroy, in whole or in part, a national, ethnic, racial, or religious group as such."
  • Challenges in Prosecution: It is exceptionally difficult to prove because it requires establishing high specific intent ($dolus specialis$) beyond the underlying conduct of murder or killing.

• Crimes Against Humanity (Article 7):

  • Involves a range of acts (murder, etc.) committed as part of a "widespread or systematic attack directed against any civilian population."
  • Includes a mandatory knowledge requirement regarding the attack.

• War Crimes (Article 8):

  • The ICC has jurisdiction especially when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
  • Relates fundamentally to International Humanitarian Law (IHL) and the Geneva Conventions.
  • IHL applies during armed conflict and includes obligations such as:
    • Not targeting civilian populations.
    • Prohibiting the use of indiscriminate weapons.
    • Ensuring the proper treatment of prisoners of war.

• Crime of Aggression (Article 8 bis):

  • Added later via the Kampala Amendment.
  • It is a "leadership crime," meaning it targets individuals in a position to exercise control over the political or military action of a state.
  • Defined as a "manifest violation of the Charter of the United Nations" involving the use of armed force against the sovereignty, territorial integrity, or political independence of another state.
  • A formal declaration of war is not required for this crime to be charged.

Jurisdictional Triggers and Limitations

• Exercise of Jurisdiction (Articles 12 and 13):

  • Referral by a State Party: A member state refers a situation to the Prosecutor.
  • Security Council Referral: The UN Security Council refers a situation under Chapter VII of the UN Charter. However, the veto power of permanent members often creates a significant hurdle.
  • Proprio Motu: The Prosecutor initiates an investigation independently.

• Jurisdictional Nexuses:

  • Territorial Nexus: Crimes committed on the territory of a state party.
  • Nationality Nexus: Crimes committed by a national of a state party.
  • The ICC's jurisdiction is limited and not universal, as it depends on these specific boundaries.

Head of State Immunity and Article 27

• Tension with Customary International Law (CIL):

  • Under CIL, heads of state and foreign ministers possess absolute immunity from prosecution while in office.
  • Article 27 of the Rome Statute explicitly rejects this, stating that official capacity (as a head of state, member of government/parliament, etc.) shall not exempt a person from criminal responsibility.

• The Case of Omar Al Bashir (Sudan):

  • Al Bashir was the President of Sudan when an arrest warrant was issued in $2009$ for war crimes and crimes against humanity in Darfur.
  • The Jordan Controversy: The ICC sought cooperation from Jordan to arrest Al Bashir while he attended a summit there. Jordan failed to do so, leading a Pre-Trial Chamber to refer Jordan to the Security Council.
  • Appeals Chamber Ruling: The ICC found that Al Bashir did not possess immunity before an international court. This aligns with precedents like those of Charles Taylor (Liberia) and Milosevic.
  • Horizontal vs. Vertical Relationships:
    • Horizontal: Relationships between equal sovereign states where CIL immunity is usually absolute.
    • Vertical: The relationship between the ICC and its member states. The court argued that horizontal immunities cannot be used to "circumvent" the vertical jurisdiction of the ICC.

• Critique by Dapo Akande:

  • The prominent international lawyer Dapo Akande criticized the court's reasoning as "legal gymnastics."
  • He argued the court undermined a strong rule of CIL and that such decisions might stiffen opposition to the court from figures like John Bolton (former US National Security Adviser).

Victim Participation and Institutional Critiques

• Victims in the Rome Statute:

  • Article 68(3): Allows victims to participate in proceedings where their personal interests are affected.
  • Article 75: Establishes a reparation regime where the court can order a convicted person to pay compensation or use a trust fund for victims.
  • This is a significant innovation compared to earlier ad hoc tribunals, aiming to give victims a voice and help record history.

• Critique of Performance (Guilfoyle):

  • Guilfoyle noted poor results: only $3$ convictions in over $20$ years of operation.
  • The efficiency and speed of the court have been called into question.

• Internal Institutional Issues:

  • Lack of Collegiality: Internal friction among judges of the ICC has been reported.
  • Personnel Matters: Issues with management and the effective performance of the workforce.

• Selective Prosecution and the Afghanistan Case:

  • Situation in Afghanistan: The Prosecutor sought to investigate alleged crimes by both the Taliban and The US.
  • Pre-Trial Chamber Decision: Initially declined the investigation, citing that it would not serve the "interest of justice" because it was unlikely to lead to meaningful results.
  • Appeals Chamber Reversal: Overruled the lower chamber, stating that if a "reasonable factual basis" exists, the investigation must be authorized.
  • Political Pressure: The US, under then-Secretary of State Mike Pompeo, threatened the ICC with visa denials and economic sanctions over the Afghanistan case.
  • Outcome: The current Prosecutor, Karim Khan, has decided to deprioritize investigations into US forces and focus on the Taliban and ISIS, leading to renewed allegations of selective justice.

The Principle of Complementarity

• Definition (Article 17):

  • The ICC is "complementary to national criminal jurisdictions."
  • It sits at the "apex" of the system and only intervenes when a domestic state is "unable or unwilling" to genuinely prosecute the crimes.
  • If a domestic system is functioning properly, the ICC must defer to it.

• Current Application:

  • The principle is currently central to the Afghanistan investigation, as the ICC has determined that the Taliban regime is unable or unwilling to prosecute the alleged international crimes genuinely.
  • The lecturer emphasizes that the future of the ICC depends on its performance and managing the current backlash to prevent the potential collapse of the institution.