International Criminal Law

Mr. Jean Marie V. NYIRURUGO, LL.M

Lecturer in Laws, ULK
Mob. +250788438384/738438384
Course outline

• The concept of “international crime”

• The history and development of International Criminal Law
• Sources and Objectives of International Criminal Law
• The fundamental principles of International Criminal Law
• The Statute of the International Criminal Court (The Rome
Statute)
• Transitional justice : Peace vs Justice (the Dilemma).
Suggested Reading materials
• Affirmation of the Principles of International Law recognized by the Charter of the
Nuremberg Tribunal (United Nations General Assembly resolution 95 (I) of 11 December
1946)
• Convention on the Prevention and Punishment of the Crime of Genocide, 1948
• International Convention on the Suppression and Punishment of the Crime of Apartheid,
1973
• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984.
• United Nations Security Council resolution 827 (1993) of 25 May 1993
• United Nations Security Council resolution 955 (1994) of 8 November 1994
• Rome Statute of the International Criminal Court, 1998
• Rules of Procedure and Evidence of the International Criminal Court, 2002
• Elements of Crimes, ICC
 Cont’d…
• Amendments to article 8 of the Rome Statute (Resolution RC/Res.5, Assembly of
States Parties to the Rome Statute of the International Criminal Court), Kampala,
10 June 2010.

• The crime of aggression (Resolution RC/Res.6, Assembly of States Parties to the

Rome Statute of the International Criminal Court) Kampala, 11 June 2010.

• Agreement between the United Nations and the Government of Sierra Leone on
the Establishment of a Special Court for Sierra Leone (with Statute), 2002.

• United Nations Security Council resolution 1400 (2002) of 28 March 2002.

• Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia

for the Prosecution of Crimes Committed During the Period of Democratic
Kampuchea, with inclusion of amendments as promulgated on 27 October 2004,
NS/RKM/1004/006.
 Cont’d…
• Statute of the International Criminal Tribunal for the former Yugoslavia (as amended),
1993.

• Rules of Procedure and Evidence of the International Criminal Tribunal for the former
Yugoslavia (as amended), 2010.

• United Nations Security Council resolution 1966 (2010) of 22 December 2010.

• Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over
Serious Criminal Offences, United Nations Transitional Administration in East Timor,
UNTAET/REG/2000/15, 6 June 2000.

• Agreement between the United Nations and the Lebanese Republic on the establishment
of a Special Tribunal for Lebanon (with Statute) (United Nations Security Council
resolution 1757 (2007) of 30 May 2007, annex).
 Introduction
What Is International Criminal Law?
• International criminal law is a subset of public international law.

• International criminal law is a body of international rules prescribing

international crimes and regulating principles and procedures
governing the investigation, prosecution and punishment of
these crimes.

• International criminal law imposes on perpetrators direct individual

criminal responsibility (not states or organisations) for international
crimes.
 General characteristics of international criminal law

• It is a combination of international law and domestic

criminal law.

• It deals with individual criminal responsibility.

• It criminalizes acts prohibited under international law.

• There is no uniform codification of international criminal

law.
Types of International Criminal law

The body of rules of international criminal law can therefore be divided into:

• Substantive International Criminal Law:

• Material acts which amount to international crimes.
• Subjective or mental elements of international crimes.
• The circumstances which may excuse the accused from individual criminal liability.
• The conditions under which the States may or must, under international rules,
prosecute persons accused of international crimes.

• Procedural International Criminal Law: regulate various stages of

international trials (investigation, prosecution, pre-trial, trial, appeal,
sentencing, enforcement of judgments) and other related matters such as
admission of evidence and the protection of victims and witnesses.
 CHAPTER I: THE NOTION OF INTERNATIONAL CRIMES

What is an international
crime?
 What is an international crime?

• Crimes which violate or threaten fundamental values or

interests protected by international law and which are of
concern to the international community as a whole.

• An offence which is created by international law itself,

without requiring the intervention of domestic law.
 Cont’d…
For a crime to be recognised as an international crime stricto sensu, the following
cumulative elements must be present:

1. The conduct must be established as a crime under “customary international law.”

2. Such rules of customary law are intended to protect values considered important by the
international community as a whole.

3. Customary international law grants to all states “universal jurisdiction” over that
crime;

4. The crime entails the obligation to states to extradite or prosecute (aut dedere aut
judicare or aut punire aut dedere).
 Cont’d…

• Under contemporary international law, the crimes that are considered

as “core” international crimes (international crimes stricto
sensu), are: genocide, war crimes, crimes against humanity,
and the crime of aggression.
 International Crime v. Internationalised crimes

• There are crimes that have actual or potential effect across national borders and crimes that are
intrastate but offend fundamental values of the international community.

• What makes these crimes “international” is not so much that these crimes are regarded as being
committed against the “values considered important by the whole international community”, but
rather because international cooperation is needed for their suppression.

• It is thus more fitting to call these crimes “transnational crimes” or “internationalised

crimes” rather than international crimes.

• These crimes are, for example, illicit traffic in narcotic drugs and psychotropic substances;
unlawful arms trade; the smuggling of nuclear and other potentially deadly materials; money
laundering, terrorism and terrorism financing, etc.
 Cont’d…
These crimes not international crimes truly speaking:

• Offences and Certain Other Acts Committed on Board Aircraft

• Unlawful Acts Against the Safety of Civil Aviation

• Unlawful Acts Against the Safety of Maritime Navigation

• Crimes Against Internationally Protected Persons, Including Diplomatic

Agents

• Taking of Hostages

• Counterfeiting Currency

• Recruitment, Use, Financing and Training of Mercenaries

• Etc.
THE HISTORY AND DEVELOPMENT OF INTERNATIONAL
CRIMINAL LAW
 International Criminal Law before 1945

• In many ways, international criminal justice for the atrocity crimes of genocide,
crimes against humanity, and war crimes truly begin with post-World War II trials,
most notably the International Military Tribunal at Nuremberg (Nuremberg
Tribunal).

• As momentous and influential as the Nuremberg Tribunal were and continue to be

on the field, international criminal justice is also the product of numerous other
important events, including events that occurred pre-Nuremberg.
• In 1870, Gustav Moynier, one of the founders of the International Committee of
the Red Cross, proposed a permanent international court in response to the
devastation of the Franco-Prussian War.

• In 1910, following World War I, the negotiators of the Treaty of Versailles

proposed establishing an international court to try the Kaiser and German war
criminals.

• Though the Kaiser was never tried, the proposal remained in Article 227 of the
Treaty of Versailles. Watch Prof. William Schabas in his Lecture on the Trial of
Kaiser, available at https://www.youtube.com/watch?v=9tc9Zj93qts

• In 1940, the United States and its Allies signed the Moscow Declaration of 1943
and the Potsdam Declaration of 1945, which discussed the need to punish war
crimes committed by German and Japanese governments respectively.
International Criminal Law after 1945

The Nuremberg (1945) and Tokyo (1946) International Criminal Tribunals

• At the end of World War II in 1945, Allied governments created the International
Military Tribunal in Nuremberg, Germany and indicted 24 Nazi leaders.

• This was the first time that leaders of a major state had been put on trial by the
international community for committing crimes against peace and humanity.

• It was a watershed in strengthening the rule of law internationally by acknowledging

the existence of crimes against humanity.

• A similar court was created in 1946, the International Military Tribunal for the Far
East, in order prosecute Japanese war criminals.
Adoption of the Genocide Convention

• On the heels of the Nuremberg ( 20th Nov.1945-1st Oct. 1946) and Tokyo
Tribunals (3rd May 1946-23rd Jan. 1947) came the adoption of the Convention
on the Prevention and Punishment of the Crime of Genocide (Genocide
Convention) in 1948, which officially recognized genocide as a crime under
international law.

• Following the adoption of the Convention, the General Assembly invited the
International Law Commission to explore the possibility of establishing an
international judicial organ to try those charged with genocide.
• The Commission concluded that such a judicial organ was both
possible and desirable, and a subsequent committee drafted
statutes in 1951 and 1954.

• Despite these early efforts, the General Assembly postponed

considering the question, and the Cold War prevented further
development of international criminal law for several decades.
Principles of International Law Recognized in the Charter
of the Nüremberg Tribunal and in the Judgment of the
Tribunal, 1950

• Under General Assembly Resolution 177 (II), paragraph (a), the

International Law Commission was directed to "formulate the
principles of international law recognized in the Charter of the
Nüremberg Tribunal and in the judgment of the Tribunal.“

• With these Principles, the concepts of individual criminal

accountability for crimes under international law, end to impunity,
equality before the law, fair trial rights were universally recognized.

• Moreover, the crimes against peace, war crimes and crimes against
humanity were defined.
 The 1950 “Nuremberg Principles”
Principle I: Any person who commits an act which Principle V: Any person charged with a crime under
constitutes a crime under international law is
international law has the right to a fair trial on the
responsible thereof and liable to punishment.
facts and law.
Principle II: The fact that internal law does not
impose a penalty for an act which constitutes a Principle VI: The crimes hereinafter set out are
crime under international law does not relieve the
punishable as crimes under international law:
person who committed the act from responsibility
under international law. • Crimes against peace

• War crimes
Principle III: The fact that a person who
committed an act which constitutes a crime under • Crimes against humanity
international law acted as Head of State or
responsible Government official does not relieve him Principle VII: Complicity in the commission of a
from responsibility under international law. crime against peace, a war crime, or a crime against
humanity as set forth in Principle VI is a crime under
Principle IV: The fact that a person acted international law.
pursuant to order of his Government or of a
superior does not relieve him from responsibility
under international law, provided a moral choice
was in fact possible to him.
 The Establishment of International Criminal Courts and Tribunals

The establishment of ad hoc international The establishment of a permanent

International Criminal Court (ICC)
criminal tribunals

• The ICTY (May 1993) and ICTR ( November • The Statute (hereafter referred to as the Rome
1994) were created for the purpose of Statute) establishing the International Criminal
prosecuting persons responsible for serious Court (ICC) was adopted at a 1998 Diplomatic
violations of human rights committed in the Conference in Rome. Of 120 attendees, seven
former Yugoslavia and Rwanda, respectively. states voted against the formation of the ICC: the
United States, China, Israel, Qatar, Libya, Iraq,
• Despite charges of inefficiency and “glacial” and Yemen.
slowness in completing trials, the tribunals have
made some noteworthy achievements, securing • The Rome Statute entered into force in 2002,
the first genocide conviction against a former with its ratification by the 60th state. As of January
head of government and helping to establish the 2023, there were 123 state parties to the Rome
precedent that rape can be a tactic of genocide. Statute.
•
International Residual Mechanism for Criminal
Tribunals (IRMCT)

• IRMCT (2010) was mandated to perform a number of essential

functions previously carried out by ICTR(8/11/1994-31/12/2016)
and ICTY (25/5/1993-31/12/2017).

• Arusha Branch (1/7/2012), Hague Branch(1/7/2013).

• The UN Security Council reviews the progress of the work of the

mechanism every 2 years.
 The hybrid international criminal tribunals
• In addition to the purely international criminal tribunals; several “hybrid”
international criminal tribunals have been also established to try violators of
International Criminal Law.

• These hybrid tribunals have been created for the purpose of one particular
conflict situation.

• They are composed of international and domestic judges and use a blend of
international and domestic criminal law.

• Hybrid courts include:

• the East Timor Special Panels (ETSC), 2000.

• the Extraordinary Chambers in the Courts of Cambodia (ECCC),
2001.
• the Special Court for Sierra Leone (SCSL), 2002.
• the Special Tribunal for Lebanon (STL), 2009.
• The Extraordinary African Chambers in Dakar for Hissene Habre,
2013.
FUNDAMENTAL PRINCIPLES OF INTERNATIONAL
CRIMINAL LAW
Universal jurisdiction
• The primary methods of judicial enforcement of the provisions of International
Criminal Law are the domestic courts of the state where the crime occurred.

• However, this method of enforcement of human rights may fail because

international crimes are often committed by state agents as part of a state
policy, and so governments do not routinely prosecute their own officials
engaged in such action.

• International criminal tribunals may not have the necessary means (in
terms of financial and human resources). A recourse to domestic courts is of
paramount to serve as fora for the enforcement of international criminal law.
•
• However, it must first be established whether such a state has jurisdiction, as
a matter of international law, to subject the issue to adjudication in its courts.
This question relates to the legal concept known as “universal jurisdiction”.
Universal jurisdiction over international crimes
• With regard to crimes which are regarded as international, the
jurisdictional limitation imposed by the concept of sovereignty is lifted.

• The fact that an offence is a crime under international law implies that
they are of common concern to all states, which gives them the right to
bring perpetrators to justice, regardless of territory and the nationality
of the perpetrator or the victim.

• Therefore, the term universal jurisdiction refers to jurisdiction

established over a crime without reference to the place of perpetration,
the nationality of the suspect or the victim or any other recognised
connecting factor between the crime and the prosecuting state.

• It is linked to the idea that international crimes affect the international

legal order as a whole.
Absolute or pure universal jurisdiction v conditional
universal jurisdiction

• Universal jurisdiction can be exercised in two ways: “absolute” or

“pure” universal jurisdiction and “conditional” universal jurisdiction.

1. Pure universal jurisdiction arises when a state asserts jurisdiction over

an international crime while the suspect is not present in the territory of
that state.

2. Conditional universal jurisdiction is universal jurisdiction exercised

when the suspect is already in the state asserting jurisdiction.
The principle of territoriality

• The Criminal jurisdiction of a state under international law is “primarily

territorial.” Under the territoriality principle, states have the right to exercise
criminal jurisdiction over all acts that occur within their territories and over
all persons responsible for such criminal acts, whatever their nationality.

• Subjective Territoriality V. Objective Territoriality: E.g. Rocket from state A

to state B
Extra-territorial jurisdiction

Lotus Case
 Lotus Case… cont’d..
• A collision occurred on the high seas between a French vessel – Lotus – and a
Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals
on board the Turkish vessel. The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey on board the Lotus.

• In Turkey, the officer on watch of the Lotus (Demons), and the captain of the
Turkish ship were charged with manslaughter. Demons, a French national, was
sentenced to 80 days of imprisonment and a fine.

• The French government protested, demanding the release of Demons or the

transfer of his case to the French Courts. Turkey and France agreed to refer this
dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).

• Did Turkey violate international law when Turkish courts exercised jurisdiction
over a crime committed by a French national, outside Turkey? If yes, should
Turkey pay compensation to France?
• France alleged that the flag State of a vessel has exclusive jurisdiction over
offences committed on board the ship in high seas. The Court disagreed.
It held that France, as the flag State, did not enjoy exclusive territorial
jurisdiction in the high seas in respect of a collision with a vessel carrying
the flag of another State.

• The Court held that Turkey and France both have jurisdiction in
respect of the whole incident: in other words, there
was concurrent jurisdiction.

• States exercise extraterritorial jurisdiction to cases where there is a

sufficient connecting factor between the case in question and the
prosecuting state. The commonly accepted connecting factors for
extraterritorial criminal jurisdiction are the protective principle and the
nationality principle.
The protective principle
• A state may exercise jurisdiction over aliens who have committed
acts abroad that are considered prejudicial to its safety and
security.

• Under the protective principle, a state may also assert jurisdiction

over crimes that, although committed on foreign soil, create
“effects” upon the territory of a state.

• For example, a state my exercise jurisdiction on such crimes such

as conspiracy to commit a crime which is perpetrated on the
territory of that state, even if the conspiracy took place outside the
territory of the state in question.
Nationality Principle
• A state’s criminal court may try its national for a crime he committed in a
foreign state (active nationality)

e.g. In Mharapara case, where an ex-Zimbabwean diplomat was convicted of theft from the
Zimbabwean court committed while he was in the Zimbabwe diplomatic mission in Belgium.
The court exercised jurisdiction on the ground of nationality, holding that: a state has
jurisdiction with respect to any crime committed outside its territory by a person or persons
who is or they are its nationals at the time when the offence was committed or when he is
or they are prosecuted and punished.

• Under the nationality heading, states are also permitted to exercise criminal
jurisdiction over a person who commits an offence abroad against a national of
that state (passive personality).
The principle of aut dedere aut judicare: The duty to
prosecute or extradite

• The cornerstone of international criminal enforcement system is the principle

(actually a legal norm) of aut punire (aut judicare) aut dedere, according to
which countries that discover an individual who has violated a norm of
international criminal law are required either to investigate and prosecute the
suspect, or else to send him/her to a country that is willing to do so.

• With respect to war crimes, this principle was clearly set out in the form of an
obligation for State Parties to the four Geneva Conventions of 1949 relating to
the conduct of armed conflict. Read the provisions of these conventions as
provided in articles 49, 50, 125 and 146 respectively.
Inapplicability of statutes of limitations to international
crimes

• International criminal law does not accept statutes of limitation that

prevent a person from being tried. This rule was captured in article
29 of the Rome Statute which, in keeping with customary
international law, provides that “[t]he crimes within the jurisdiction
of the Court shall not be subject to any statute of limitations.”

• A statute of limitations is the length of time a civil or a criminal case

can be brought to legal proceedings. After the statute of limitations
has passed, the parties in dispute can no longer take legal action.
 Irrelevance of immunities before international criminal
tribunals
• The position before international courts is that the official position of a state
agent, including an incumbent Head of State at the time is not a bar to his
prosecution by an international court.

• Examples include the International Criminal Tribunal for the for the Former
Yugoslavia, and the International Criminal Tribunal for Rwanda, established
pursuant to Security Council resolutions under Chapter VII of the United
Nations and the future International Criminal Court created by the 1998 Rome
Convention. The latter’s Statute expressly provides that, in Article 27,
paragraph 2, “Immunities or special procedural rules which may attach to the
official capacity of a person, whether under national or international law, shall
not bar the Court from exercising its jurisdiction over such a person.
 Act of State doctrine

• This doctrine refers to the principle that the courts of one nation will not judge
the validity of the acts of a foreign government committed within that foreign
government’s territory.

• When international crimes are committed as the orders of the sovereign state,
those who participated in such acts must personally account for them and
cannot shelter behind the official character of their task or mission, or behind
the ”laws” of the state by virtue of which they purported to act.
THE INTERNATIONAL CRIMINAL COURT
ICC
• On 17 July 1998, representatives of 120 States convened in Rome,
Italy, and voted to adopt the Rome Statute of the International
Criminal Court (hereinafter referred to as the Rome Statute).
• The Rome Statute sets out the structure and powers of the first
ever permanent international criminal tribunal which has
jurisdiction to try persons accused “core” international crimes,
namely genocide, crimes against humanity, war crimes and
aggression.
Main Organs of the International Criminal Court

ICC is mainly based in The Hague and the Netherlands with four
dominant divisions:
• The Presidency,
• The Judicial Divisions,
• The Office of the Prosecutor,
• The Registry.
• The Presidency of the International Criminal PRESIDENCY
Court deals with administrative work like
some legal and indicial affairs, and also
external relations regarding public
awareness. Normally, the Presidency
assigns legal cases to Chambers, reviews
and concludes final agreements with States.

• The Presidency is one of the four Organs of

the Court. It is composed of the President
and First and Second Vice-Presidents, all of
whom are elected by an absolute majority
of the Judges of the Court for a three year
renewable term. The judges composing the
Presidency serve on a full-time basis.
Judge Tomoko Akane (Japan),
President
The Chambers has in total 18
judges in the Pre-Trial CHAMBERS
Division, the Trial Division,
and the Appeals Division.
Each of the division undertakes
specific situations at
different steps in terms of a
general judicial procedure.
Usually, the Pre-Trial Chamber
decides whether to process the
charges against any potential
situations. The Trial Chamber
determines whether to impose a
sentence on a convicted
individual. And finally, the
Appeals Chamber may reverse
the decision.
 PRE-TRIAL JUDGES
 Generally 3 judges per case

 Decide if there is enough evidence for a case to go to trial, and if so, confirm the charges and commit the case to
trial

 Issue arrest warrants or summonses to appear

 Preserve evidence, protect suspects, and safeguard information affecting national security

 Guarantee the rights of all persons during the investigation phase, including suspects, victims and witnesses

 Grant protection measures for victims and witnesses

 Appointing counsel or other support for the defense

 Ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the
Prsoecutor, and decide on requests for interim release pending trial

 Authorise the Prosecutor to open investigation proprio motu, or to continue an investigation when a State
requests that the Court defer to national investigations, or to take steps in an investigation without State
cooperation

 Review the Prosecutor's decision not to investigate where there is a referral

 Decide on a challenge to jurisdiction or the admissibility of a case

 TRIAL JUDGES
•Generally 3 judges per case
•Conduct fair trials
•Decide if there is enough evidence to prove beyond a reasonable
doubt that the accused is guilty as charged
•Sentence those found guilty, and pronounce the sentence in public
•Order reparation to victims, including restitution, compensation and
rehabilitation
 APPEALS
 Five judges
 Handle appeals filed by Parties
 Confirm, reverse or amend a decision on guilt or innocence or on the
sentence and, if necessary, order a new trial before a different Trial Chamber
 Ensure that the conviction was not materially affected by errors or by
unfairness of proceedings
 Ensure the sentence is proportionate to the crimes
 Confirm, reverse or amend an order for reparations
 Revise the final judgment of conviction or the sentence, for example, if new
evidence is later found
 Hear appeals on a decision on jurisdiction or admissibility, interim release
decisions and interlocutory matters
OTP of the International Criminal
Court is generally responsible for
collecting and analyzing any details
on crimes and conducting related The office of the
investigations before the Court. Prosecutor (OTP)

Only in case of adequate evidence

then a case will be processed to the
next stage of the Court. An
investigation would not be carried
out if the case does not meet the
jurisdictional requirements.

Mr. Karim Khan KC

The Registry is a neutral organ of the Court that provides
services to all other organs so the ICC can function and
conduct fair and effective public proceedings. The Registry is
responsible for three main categories of services:
 judicial support, including general court management Registry
and court records, translation and interpretation, counsel
support (including lists of counsel and assistants to
counsel, experts, investigators and offices to support the
Defence and victims), the detention centre, legal aid, library
services, support for victims to participate in
proceedings and apply for reparations, for witnesses to
receive support and protection;

 external affairs, including external relations, public

information and Outreach, field office support, and victims
and witness support; and

 management, including security, budget, finance, human Peter Lewis

resources and general services.
 Trust Fund for
Victims (TFV)
Though the Trust Fund for Victims is
separate from the Court, it was created
in 2004 by the Assembly of States
Parties, in accordance with article 79 of
the Rome Statute. The Fund's mission is
to support and implement programmes
that address harms resulting from
genocide, crimes of humanity, war crimes
and aggression. To achieve this mission,
the TFV has a two-fold mandate:
(i) to implement Court-Ordered
reparations and,
(ii) to provide physical, psychological,
and material support to victims and
their families. By assisting victims to
return to a dignified and
contributory life within their
communities, the TFV contributes to
realizing sustainable and long-lasting
peace by promoting restorative
justice and reconciliation.
JURISDICTION OF THE ICC

• Jurisdiction ratione loci (Territorial jurisdiction)

• Jurisdiction ratione temporis
• Jurisdiction ratione personae
• Jurisdiction ratione materiae
• Jurisdiction based on nationality
• Jurisdiction based on a referral by the Security Council
• Jurisdiction based on a State’s acceptance of the ICC jurisdiction over a situation
Jurisdiction ratione loci (Territorial jurisdiction)

• The territorial jurisdiction of the ICC is limited to the

crimes committed in the territory of a state party.

• The term “State Party” means any nation which has

ratified, accepted, or acceded to the Convention.

• A ‘state party’ to a treaty “is a country that has ratified

or acceded to that particular treaty, and is therefore
legally bound by the provisions in the instrument.”
• 124 countries are States Parties to the
Rome Statute of the International Criminal
Court. Out of them 33 are African States, 19 are
Asia-Pacific States, 19 are from Eastern Europe,
28 are from Latin American and Caribbean States,
and 25 are from Western European and other
States.
 Jurisdiction ratione temporis
• Jurisdiction ratione temporis refers to the effect of time on a
tribunal's powers pursuant to a treaty. Such effects are usually
directly dictated by express language contained in the applicable
treaty.
• The Court has jurisdiction only with respect to crimes committed
after the entry into force of this Statute.
• Rome Statute was adopted at a diplomatic conference in Rome,
Italy on 17 July 1998 and it entered into force on 1 July 2002.
• If a State becomes a Party to this Statute after its entry into force,
the Court may exercise its jurisdiction only with respect to crimes
committed after the entry into force of this Statute for that State,
unless that State has made a declaration under article 12,
paragraph 3.
 Jurisdiction ratione personae
• Ratione personae is a Latin term. It literally means by
reason of his person or by reason of the person
concerned.

• The ICC has jurisdiction over any individual accused of

a crime within the jurisdiction of the ICC, except for any
person who was under the age of eighteen at the time of
the alleged commission of the crime (Statute, Art. 26).
Jurisdiction based on nationality

• Before the ICC can act, the state of territory or nationality of

the accused must be a party to the ICC treaty or accept the
Court's jurisdiction (Article 12).

• Art.90, 6(b) the nationality of the victims and of the person

sought: The state party of the victim should be a party to
the Rome Statute as well as the Suspect’s state. Either state
can claim jurisdiction so is the ICC.
Jurisdiction based on a referral by the Security Council

• The United Nations Security Council (UNSC) may also

refer a situation to the Prosecutor, who will open an
investigation if the legal criteria are met.
• To date, this happened in the situations of Darfur (Sudan)
and Libya.
Jurisdiction based on a State’s acceptance of the ICC jurisdiction
over a situation

• A State not Party to the Statute may also accept the

exercise of jurisdiction on an ad hoc basis, by
submitting a declaration pursuant to article 12(3) of
the Rome Statute.
 The principle of complementarity

• The principle of complementarity is based both on respect for the primary jurisdiction of States and
on considerations of efficiency and effectiveness, since States will generally have the best access to
evidence and witnesses and the resources to carry out proceedings.

• The jurisdiction of the ICC is complementary to national criminal jurisdiction and States retain
primary responsibility for the repression of international crimes. The ICC only has jurisdiction to
investigate and prosecute crimes when the State which has jurisdiction over it is “unwilling” or
“unable” genuinely to carry out the investigation or prosecution. Thus, the ICC has no jurisdiction
when the case “is being investigated or prosecuted by a State which has jurisdiction over it.” The
complementarity regime of the Rome statute also has the advantage of easing the burden of the
ICC’s caseload.
 Assignment

Competing requests from the ICC and a State

 Trigger Mechanisms

• The Court may exercise its jurisdiction with respect to a crime over which it has
jurisdiction if:

• A case s referred to the Prosecutor by a State Party;

• The Prosecutor initiates an investigation proprio motu;

• A case is referred to the Prosecutor by the Security Council acting under

Chapter VII of the Charter of the United Nations.

• A non-party state accepts the ICC jurisdiction over a particular situation (in
accordance with article 12(3).
 Deferral of investigation or prosecution

• According to article 16 of the Rome Statute, no investigation or prosecution may

be commenced or proceeded with before the ICC for a period of 12 months after
the Security Council, in a resolution adopted under Chapter VII of the Charter of
the United Nations, has requested the Court to defer it. That request may be
renewed by the Council under the same conditions.

• Criminal prosecutions, although generally enhance peace initiatives, may

sometimes constitute a threat to peace and endanger the lives of the people
living conflict territories. The article clearly envisages this scenario and empowers
the UN Security Council to order the ICC Prosecutor not to proceed with an
investigation or prosecution if it establishes that such action would provoke a
war or extend an existing conflict.
 Ne bis in idem
• Article 20(3) of the Rome Statute recognises the principle that a
person who has been tried for a crime may not be retried again
with respect to the same conduct. This rule is generally known
as “ne bis in idem”, “non bis in idem” or “the protection against
double jeopardy.”
 Exception to the Principle
• The principle of ne bis in idem contained in the Rome Statute allows for
two exceptions. Article 20(3) provides that the ICC would retry a case if

1. the proceedings at the national level were undertaken “for the

purpose of shielding the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court”, or

2. were conducted in a manner which, in the circumstances, was

“inconsistent with an intent to bring the person concerned to
justice”.
Can You raise the Principle of Ne Bis in Dem on Simone Gbagbo?
• Convicted in 2015 of undermining
state security by an Ivorian court and
sentenced to serve 20 years in
prison. However, ICC appeals judges
found that the domestic proceedings did
not cover the same crimes as those
covered by the ICC case and that Côte
d’Ivoire remains obliged to surrender her
to The Hague.
• An ICC arrest warrant issued in early
2012 alleges that Simone Gbagbo, as an
indirect co-perpetrator, contributed to a
plan to commit crimes against humanity
in Abidjan: murder; rape and other
sexual violence; persecution; and other
inhuman acts.
 Admissibility of a case before the ICC
• A case is not admissible before the ICC where:
(a)The case is being investigated or prosecuted by a State which has jurisdiction over it,
unless the State is unwilling or unable genuinely to carry out the investigation or
prosecution;

(b) The person concerned has already been tried for conduct which is the subject of the complaint
(and a trial by the Court is not permitted under article 20, paragraph 3: Ne bis in idem);

(c) The case has been investigated by a State which has jurisdiction over it and the State has decided
not to prosecute the person concerned, unless the decision resulted from the unwillingness
or inability of the State genuinely to prosecute;

(d) The case is not of sufficient gravity to justify further action by the Court.
Challenges to the jurisdiction of the Court or the
admissibility of a case
• Challenges to the admissibility of a case on the grounds referred to the
previous slide (in accordance with article 17) or challenges to the
jurisdiction of the Court may be made by:
(a) An accused or a person for whom a warrant of arrest or a summons to appear has been
issued (a suspect);

(b) A State which has jurisdiction over a case, on the ground that it is investigating or
prosecuting the case or has investigated or prosecuted; or

(c) A State from which acceptance of jurisdiction is required under article 12.

• The Court may also, on its own motion, determine the admissibility of a
case in accordance with article 17 of the Rome Statute.
 Assignment

Essay on Africa and the ICC: Is the ICC targeting Africa?

( Minimum 2 pages ( Font: times new roman; Size: 12;
Spacing: 1; Margin: Normal)
Mode of Liability
Authors, co-authors and
accomplices

Command
responsibility (or
superior responsibility)
• Under the principle of command responsibility, military commanders can be held responsible for the
crimes of persons under their charge if they knew (intention), or had reason to know (conscious
or unconscious negligence), that their subordinates were committing crimes and failed to take all
feasible steps to prevent or stop the violations, or to submit the matter to the competent
authorities for investigation and prosecution (material element).

• For civilian superiors, criminal responsibility is established if:

(i) The superior either knew (intention), or consciously disregarded (Conscious negligence)
information which clearly indicated, that the subordinates were committing or about to commit such
crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the
superior (material element);

(iii) The superior failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to the competent authorities for
investigation and prosecution (material element).
Defences
Lack of Criminal Capacity
(Mental disease &Intoxication)

Private defence (war crime only)

Duress (necessity)

Mistake of Facts

Mistake of Law

Superior orders and prescription of law

 Conditions for these orders

• The person was under a legal obligation to obey orders of

the Government or the superior in question;
• The person did not know that the order was unlawful; and
• The order was not manifestly unlawful.
 Sentence

Applicable Sentence: Max of 30 years/ Life

Imprisonment

Cumulating Sentence
in case of
Concomitance of
crimes

Additional Sentence: Fine& forfeiture of

proceeds
States Cooperation
• A general obligation for State
Parties to cooperate with the ICC
is contained in article 86 of its
Statute
• Cooperation with respect to
waiver of immunity and
consent to surrender (Article
98) to be read in comparison with
article 27(1&2) of the statute.
 ICC proceeding summary
• Preliminary examinations
• Investigations
• Pre-Trial stage
• Trial stage
• Appeals stage
• Enforcement of sentence
 Preliminary examinations:
After crimes have occurred
• The Office of the Prosecutor must determine whether there is
sufficient evidence of crimes of sufficient gravity falling within
the ICC’s jurisdiction, whether there are genuine national
proceedings, and whether opening an investigation would serve
the interests of justice and of the victims.

• If the requirements are not met for initiating an investigation,

or if the situation or crimes are not under the ICC’s jurisdiction,
the ICC’s Prosecution cannot investigate.
 Investigations
• After gathering evidence and identifying a suspect, the
Prosecution requests ICC judges to issue:
1. an arrest warrant: the ICC relies on countries to make arrests
and transfer suspects to the ICC; or
2. a summons to appear: suspects appear voluntarily (if not, an
arrest warrant may be issued).
• If the requirements are not met for initiating an investigation,
or if the situation or crimes are not under the ICC’s jurisdiction,
the ICC’s Prosecution cannot investigate.
• The Prosecution may seek again the confirmation of charges, by
presenting new evidence.
Pre-trial Stage
• Initial appearance: Three Pre-Trial judges confirm
suspect's identity and ensure suspect understands the
charges.
• Confirmation of charges hearings: After hearing the
Prosecution, the Defence, and the Legal representative of
victims, the judges decide (usually within 60 days) if there
is enough evidence for the case to go to trial.
• If the suspect is not arrested or does not appear, legal submissions can be
made, but hearings cannot begin.
 Trial Stage
• Before three Trial judges, the Prosecution must prove beyond reasonable
doubt the guilt of the accused.

• Judges consider all evidence, then issue a verdict and, when there is a
verdict of guilt, issue a sentence. The judges can sentence a person to up
to 30 years of imprisonment, and under exceptional circumstances, a life
sentence.

• Verdicts are subject to appeal by the Defence and by the Prosecutor.

• Judges can also order reparations for the victims.

• If there is not enough evidence, the case is closed and the accused is released.
• Acquittals are subject to appeal by the Defence and by the Prosecutor.
 Appeals Stage
• Both the Prosecutor and the Defence have the right to
appeal a Trial Chamber's decision on the verdict
(decision on guilt or innocence of the accused) and
the sentence.
• The victims and the convicted person may appeal an
order for reparations.
• An appeal is decided by five judges of the Appeals
Chamber, who are never the same judges as those
who gave the original verdict.
• The Appeals Chamber decides whether to uphold the
appealed decision, amend it, or reverse it. This is
thus the final judgment, unless the Appeals Chamber
orders a re-trial before the Trial Chamber.
 Enforcement of sentence
• Sentences are served in
countries that have agreed
to enforce ICC sentences.
• If a verdict of guilt is not
upheld, the person may be
released.
 TRANSITIONAL JUSTICE: PEACE V JUSTICE

• Transitional justice refers to the set of judicial and non-judicial

measures that have been implemented by different countries in
order to redress the legacies of massive human rights abuses.

• Transitional justice aims to provide recognition to victims, enhance

the trust of individuals in State institutions, reinforce respect for
human rights and promote the rule of law, as a step towards
reconciliation and the prevention of new violations.
 Measures/Initiatives
• The many problems that flow from past abuses are often too
complex to be solved by judicial measures—such as trials—alone.
Other initiatives should include:
 Criminal prosecutions are judicial investigations of those responsible for human rights violations.
Prosecutions frequently give great weight to investigating those considered most responsible for massive
or systematic crimes.

 Truth commissions are ad hoc commissions of inquiry established in, and authorized by, states for the
primary purposes of investigating and reporting on key periods of recent past abuse. They often make
recommendations to remedy such abuse and to prevent its recurrence.

 Reparation programs are state-sponsored initiatives that aim to contribute to repairing, on a massive
scale, the material and moral consequences of past abuse experienced by certain classes of victims. They
typically distribute some mix of material and symbolic benefits to victims.
• The many problems that flow from past abuses are often too
complex to be solved by judicial measures—such as trials—
alone. Other initiatives should include:
 Security system reform consists of wide-ranging programs to transform the military, police,
judiciary, and related state institutions from instruments of repression and corruption into
instruments of public service and integrity.

 Memorialization efforts include museums, memorials, and other means of preserving public
memory of the victims and of raising moral consciousness about past abuse, in order to build a
bulwark against its recurrence
 Conclusion
• Obviously, there is no single formula for dealing with a past
marked by massive and systematic abuse. Each society
should—indeed must—choose its own path.

• Transitional justice is not a special form of justice. It is, rather,

justice adapted to the often unique conditions of societies
undergoing transformation away from a time when human
rights abuse may have been a normal state of affairs.

• In some cases, these transformations will happen suddenly

and have obvious and profound consequences. In others, they
may take place over many decades.
 GENERAL CONCLUSION
• International Criminal Justice is a long journey that is on going. One of its main flag-
bearers, the International Criminal Court (ICC), has come under severe criticism for
its – perceived – underperformance in delivering justice.
• Recent criticism of the ICC is poignant because it comes from those who have been
supporters of the ICC, keen on enforcing and contributing to the system of ICJ. Its
failure to prosecute and investigate where it should (the like of Afghanistan) is one of
the major critiques. However, its contribution to the service of International Criminal
Justice cannot also be ignored.
• The influence of International Criminal Law to national legislations is also something
that deserves an applause. For future international criminal lawyers and scholars,
there are still too much too explore in this field, like the impact of ICC to transitional
justice.
Thank YOU