The Personal Nature of Individual Criminal Responsibility and the ICC Statute

By affirming criminal responsibility of the individual, theICC Statute recognizes a distinction from the internationalresponsibility of states, which is the basis of modern internationalcriminal law. The importance of the principle is evident notonly in the breadth and analytical nature of the provision dealingwith it, i.e. Article 25 of the Statute, but by its being placedin the part of the Statute devoted to the ‘General Principlesof Criminal Law’. After an introductory considerationof the context of the Article and of its general implications,this article analyses the contents of the regulation and thetype of responsibility outlined in it. The principle that emergescould be called the ‘personal nature’ of internationalcriminal responsibility. Although the general principles setout in the ICC Statute are rather rudimentary in comparisonwith what is to be found in the ‘General Part’ ofmost national criminal laws, the principle of personal responsibilityemerging from the Statute is nevertheless in the best traditionsof criminal law. It serves both as the foundation and as thelimitation of international criminal responsibility, so helpingto ensure that modern international criminal law is not a toolfor oppression but rather an instrument of justice.     

The Implementation of the ICC Statute in Argentina

Argentina ratified the International Criminal Court (ICC) Statutein November 2000 and adopted an Implementation Law in December2006. The Law introduces into domestic legislation the crimesfalling under ICC jurisdiction by means of renvoi to the Statute.Such procedure avoids the risk of a unilateral definition ofthe crimes. In addition, the Law provides for a range of penaltiesincluding incarceration. Regrettably penalties envisaging restitution,reparation or rehabilitation of the victim are not providedfor in the Law. In terms of cooperation with the ICC, the Lawestablishes mechanisms for an open and efficient relationshipwith the Court in case of arrests and surrender of persons,as well as requests for assistance and preliminary rulings.     

Interactions between National and International Criminal Law in the Preliminary Phase of Trial at the ICC

The author discusses the interaction between international andnational law in determining whether a case is admissible fromthe viewpoint of complementarity (Article 17 of the Statuteof the International Criminal Court) and with regard to theconcept of ‘interests of justice’ (Article 53 ofthe same Statute). Complementarity does not separate nationalfrom international criminal jurisdiction; nor does it put themin conflict with each other — rather, it favours the aforementionedinteraction. In addition, the concepts of ‘ability’and ‘willingness’ tend to ensure an indirect harmonizationof national criminal systems around common international criteria.As for reliance on the notion of ‘interests of justice’when determining whether to initiate proceedings, accordingto the author, Article 53 envisages a compromise between prosecutorialdiscretion and strict legality, thereby enshrining a hybridizationbetween various national traditions. The author notes that thedecision to open investigations should be objective and foreseeable;to this end, she suggests some general criteria, which are intendedto serve as guidelines for establishing whether, in a specificcase, the interests of justice warrant the initiation of proceedings.     

The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC

The conflict in the former Yugoslavia set a precedent in modernhistory for having a multinational military force being empoweredand directed to execute arrest warrants issued by an internationalcriminal tribunal. On legal grounds, the International CriminalTribunal for the former Yugoslavia (ICTY) attained this resultby relying on the broad wording of its governing Statute coupledwith the ICTY's own rule-making powers. In contrast, the draftersof the International Criminal Court (ICC) Statute elaboratedon the nature of the cooperation from international forces insignificantly more details but at the same time opted for reducingthe ICC's powers vis-à-vis these forces. Therefore, theICC Statute now runs contrary to the ICTY's case law recognizinga judicial power to order an international force to executean ICTY arrest warrant. This deferential stance towards collectiveenterprises of states not only infringes upon the States Parties’general obligation to cooperate with the ICC, but, in the end,weakens the ICC's ability to enforce international criminaljustice.     

Remarks on the General Part of International Criminal Law

After decades of little reflection on the General Part of InternationalCriminal Law (‘ICL’), the practice of the Ad HocTribunals and Part III of the ICC Statute both offer a uniqueopportunity and create a necessity to give more thought to therules of attribution for international crimes. Indeed, the aimof further research must be to develop a more refined systemof attribution. This is especially important in ICL, since itis primarily concerned with high level perpetrators who rarelycommit the crimes themselves but use mid- or low-level perpetratorsto execute their criminal plans. While ICL ‘in action’is recognized today as primarily criminal law, the rules ofattribution are still underdeveloped. Some rules developed bythe case law even violate, when applied in their extreme form,fundamental principles of criminal law. Identifying and applyingthese principles, specifically the principles of legality andculpability, will be the first step in constructing a more legitimatesystem of attribution.     

Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court

The question to what extent amnesties and pardons may bar criminalinvestigations or prosecutions under the Statute of the InternationalCriminal Court (the Statute) has been left unresolved by theRome process. This essay seeks to develop some general guidelinesthat may help the Court to address this problem, should it arisein a specific case. It suggests four basic principles to dealwith the issue of amnesties and pardons: (i) the Court has interpretativeautonomy to decide whether an amnesty or a pardon is permissibleunder the Statute; (ii) exemptions from criminal responsibilityfor the core crimes within the jurisdiction of the Court byamnesties or pardons should generally be considered incompatiblewith the Statute; (iii) prosecution by states and by the Courtmay be limited to the most serious crimes and the most responsibleperpetrators (targeted prosecution); (iv) amnesties or pardonsshould, if it all, only be permitted in exceptional cases, namelywhere they are conditional and accompanied by alternative formsof justice.     

India and the ICC

The Statute of the International Criminal Court (ICC Statute)would have been more acceptable to India if it had containedan opt-in provision whereby a state could accept the jurisdictionof the ICC by declaration (possibly for a specified period),and this might be limited to particular conduct or to conductcommitted during a particular period of time. The lack of sucha provision, and the inherent jurisdiction which replaced it,are perceived as representing a violation of the consent ofstates, and thus a threat to sovereignty. India's resistanceto accepting the inherent jurisdiction of the ICC is explained,in part, by anxieties about how investigation, prosecution andcriminal proceedings in the Indian system may be judged by aninternational court. The inclusion of ‘armed conflictnot of an international character’ in defining ‘warcrimes’ in Article 8 ICCSt. constitutes another reasonfor India's concern (that the conflicts that persist in Kashmir,the North-East and as was experienced in Punjab, as well asthe violence of more recent vintage in Gujarat, could be referredto the ICC). Further elements giving rise to India's misgivingsare the fear that the Court might be used with political motives,the power conferred on the Prosecutor to initiate investigationsproprio motu and the role allotted to the Security Council.     

Great Expectations: The Implementation of the Rome Statute in Italy

This article first explores whether Italy is under an obligationto implement the Rome Statute that it ratified in 1999. It thenidentifies the general sets of inconsistencies between Italianlegislation and the Rome Statute and analyses whether and towhat extent the former needs to be amended or integrated inorder to implement the substantive provisions of the latter,in particular in relation to the definition of crimes, generalprinciples of criminal responsibility, defences and other barsto prosecution. Finally, the exercise of jurisdiction by Italiancourts over crimes in the Rome Statute is discussed in the lightof the principle of complementarity on which the jurisdictionof the International Criminal Court is based.         Mere dreams,mere dreams!         W.B. Yeats,Meditations in Time of Civil War, I (1928)     

Participation of Victims in Pre-Trial Proceedings of the ICC

Victims’ participation is usually celebrated as one ofthe major innovations of the International Criminal Court (ICC)system. It has been regulated in great detail by the draftersof the Rome Statute and the Rules of Procedure and Evidenceof the ICC in relation to trial proceedings. However, few thoughtshave been devoted to the question of how victims’ issuesare dealt with before the commencement of the trial. This contributionseeks to close this gap. It argues that victims have a roleto play in the ICC process from the very beginning of proceedings.Moreover, it seeks to clarify how some of the participatoryrights of victims may be addressed in practice.     

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Given that the Rome Statute does not provide jurisdiction totry corporations for breaches of international criminal law,it has been suggested that national jurisdictions might be usedto fill this impunity gap. The author presents several arguments.First, the international criminal law system, including theRome Statute — and particularly the principles of universaljurisdiction and complementarity — provides the theoreticalgrounding for states to assert jurisdiction over internationalcrimes wider than the International Criminal Court (ICC). Second,Canada, owing to interactions between its domestic legislationimplementing the ICC Statute and existing national criminallaw, is now able to prosecute corporations for breaches of internationalcriminal law. Finally, this increased jurisdiction of Canadiancourts is consistent with the current status of corporationsunder international criminal law. What is really interestingabout Canada's approach, however, is not so much that it hascreated a new legal principle, but rather that it is one ofthe first countries to establish jurisdiction over internationalcrimes committed by corporate entities which were previouslycommitted with impunity.

By stating that I could not guaranteethat the army is not using forced labour, I certainly implythat they might, (and they might) but I am saying that we donot have to monitor the army's behaviour: we have our responsibilities;they have their responsibilities; and we refuse to be pushedin to assuming more than what we can really guarantee. Aboutforced labour used by troops assigned to provide security onour pipeline project, let us admit between Unocal and Totalthat we might be in a grey zone.¹

     

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

The Alien Tort Statute: Blackstone and Criminal/Tort Law Hybridities

The importation of criminal law concepts into the area of civillaw is attracting increasing interest. The United States’Alien Tort Statute (ATS), though principally known for enablinginternational human rights suits to be filed in the domesticcourts of the United States, also imports criminal law notionsinto civil litigation. This article explores the hybrid natureof the ATS in the context of the development of internationallaw, and raises the question of whether ‘grandeur’is a principal reason for the ATS’ existence.     

Polluting Environment, Polluting Constitution: Is a 'Polluted' Constitution Worse than a Polluted Environment?

The Indian Supreme Court has been praised as one of the mostsocially active courts in the world, especially so in the environmentalfield. Yet it is arguable that many of the benefits claimedfor judicial involvement are far from real. Three phases ofacti­vism are identified. In the 1970s, the Court developedthe concept of environmental rights based on ensuring that thedirective principles of state policy and the funda­mentalright to life contained the Constitution worked in mutual support.This was followed by a period when the Court extended liabilityprinciples. The most recent and most controversial phase hasinvolved the Court increasingly acting in an exec­utivefunction and effectively both making and implementing policies.The Court’s enthusiasm in environmental matters has nowdented India’s institutional balance. By being preparedto judicialise all problems of life into problems of law, theCourt has undermined the strength of citizens to engage collectivelywith institutions of the State—the Court should now withdrawfrom its self-imposed alchemist role.     

国际刑事法院的司法能动主义:实践、反思及限制

国际刑事法院对《罗马规约》近年来的解释中呈现出司法能动主义的趋势,即背离约文的字面含义和立法者的原意,扩张国际刑事法院管辖下犯罪的定义和可受理案件的范围。国际刑法的混合性质、先前国际刑事法庭的司法能动主义政策以及《罗马规约》适用法条款和解释规则的不确定性都是导致国际刑事法院司法能动主义的原因。作为非经授权的司法立法行为,国际刑事法院的司法能动主义不但违背国家主权原则和罪刑法定主义,而且损害了国际社会通过其追究国际犯罪的信心。构建对其司法能动主义进行规制的关键在于厘清和协调《维也纳条约法公约》中的解释规则、罪刑法定原则下的严格解释以及存疑有利于被告解释方法三者在《罗马规约》解释中的适用范围及适用关系。     

国家与国际刑事法院的国际合作与司法协助义务述评

国际刑事法院是否成功的关键取决于《罗马规约》的缔约国和国际社会与之真诚的国际合作与司法协助。反之 ,国家也应根据国际法的基本原则善意履行其自愿承担的义务 ,向国际刑事法院提供国际合作与司法协助。本文通过阐述《罗马规约》有关国家与国际刑事法院的国际合作与司法协助方面的实体性和程序性规定 ,说明国家在国际刑事法院调查、起诉和惩治国际社会关注的最严重的国际犯罪中的作用和义务     

To Be (Present) or Not To Be (Present): Trials In Absentia before the Special Tribunal for Lebanon

One feature of the Special Tribunal for Lebanon (‘STL’)differentiating it from other international criminal tribunals(except for the Nuremberg International Military Tribunal) isthat its Statute allows for trials in absentia. The Statutepermits such trials when an accused failed to appear in courtor even to appoint a defence lawyer, but only on the conditionthat, where the indictment could not be served or notified tothe accused, it was duly publicized through the media or communicatedto the state of residence or nationality of the accused. Followingthe case law of the European Court of Human Rights, Article22(3) of the STL Statute allows for retrial, except where anabsent defendant was represented at trial by counsel of hisor her own choosing. The author argues this right to retrialshould not be applied either where (i) the accused expresslywaived in writing his right to be present, but then failed toappoint counsel of his choosing; or (ii) a state's failure tohand the accused over to the STL does not cure the accused'srefusal to voluntarily surrender to the STL. She also arguesthat the right of retrial following trials in absentia oughtto accrue to Lebanese courts, notwithstanding Article 5(1) ofthe Statute, which seems to prohibit Lebanese courts retryingindividuals convicted by the STL. Finally, she takes into accountthe position of states that prohibit trials in absentia, butare requested to surrender a person convicted in absentia bythe STL for the purpose of executing his sentence, suggestingan ad hoc agreement between the state in question and the STLmay be required as a remedy.     

Proof of use, continuity of functions in inter partes proceedings, and three-dimensional marks: Europe in review

Legal context: This article reviews the recent CFI and ECJ case law on proofof use and continuity of functions in the context of oppositionproceedings as well as the strict approach to three-dimensionalmarks. Key points: Unlike the situation in many common law jurisdictions, the Communitytrade mark regime is not a use-based system. Nevertheless, oncea mark has been registered for more than five years, the rightsthat it seeks to protect may only be enforceable to the extentthat the sign has been used for the goods and services it covers.In the context of opposition proceedings, applicants may callfor evidence that the opponent has actually used the mark onwhich the opposition is based. The concept of ‘genuineuse’ - which must be demonstrated in order to show thata mark has actually been used - has come before the Court ofJustice for further clarification. Where proof of use is adducedfor the first time before the Board of Appeal, the Court ofFirst Instance believes that, because of the principle of thecontinuity of functions, it is not out of time. That analysishas not been supported by the recent opinion of Advocate GeneralSharpston in the Arcol case and there is now considerable uncertaintypending a final pronouncement on the issue by the Court of Justice.In the meantime, the case law from Luxembourg continues to insiston three dimensional marks being like any other type of mark,whilst taking a very strict approach to the registrability ofsuch signs. Practical significance: The evidence of use to be adduced need not be quantatively significantand the ‘hurdle to be jumped’ is somewhat ‘lower’than was previously the case. Whether negligent representativesmay continue to use the continuity of functions principle tojustify recouping missed deadlines on appeal (particularly,when presenting proof of use), remains to be seen. However,what is certain is that three-dimensional marks will continueto be difficult to register.     

The ICC and Russian Constitutional Problems

The Statute of the International Criminal Court (the ICC Statute)has not yet been submitted to the Russian parliamentary chambers,the Duma, and the Council of the Federation. However, an Inter-AgencyPanel led by the Ministry of Justice has been set up, with aview to drafting amendments to current Russian legislation andfacilitating Russia's cooperation with the ICC. Major problemsstanding in the way of Russia's ratification include certainprovisions of Russia's Constitution, which, for instance, donot provide for an international court substituting nationalcourts, and lay down the right to jury trial and the right toseek pardon. However, there are various ways of reconcilingthe Constitution with the ICC Statute. In short, there are noinsurmountable legal hurdles to harmonizing the Russian Constitutionand laws with the ICC Statute: the question of Russia's ratificationis mostly a question of political will.     

On the Principle of Complementarity in the Rome Statute of the International Criminal Court

The Rome Statute of the International Criminal Court (the RomeStatute or the Statute) entered into force on 1 July 2002, withthe satisfaction of Article 126 of the Statute.¹ Up until 24 September 2004, 139 States have signed the Statuteand 97 States have become the Parties. Under such circumstances,China, as one of the permanent members of the Security Councilof the United Nations and a non-party State playing a greatrole in international affairs, needs to acquire a better understandingand also makes a detailed study on the Statute. One of the mostunique characters of the International Criminal Court (the ICCor the Court)—as reflected in the principle of complentarity—willbe discussed and analysed in the following essay.     

Reparations To Victims Before The International Criminal Court: Lessons From International Mass Claims Processes

The implementation of the rights of victims under the Rome Statute of the International Criminal Court presents momentous challenges to the Court. Given the nature of the crimes falling under the Court's jurisdiction, victims' reparation claims are often likely to number thousands, if not tens of thousands. Under the Statute, it is the Court's task to organize and determine the modalities of victims' participation in the reparation proceedings. The Court is well advised to closely examine the approaches and solutions developed by modern international and national mass claims programs that have faced similar challenges. The paper analyses in detail these challenges and outlines the options available to the Court. The authors are attorneys with Lalive, an international law firm based in Geneva, Switzerland. For further information see http://www.lalive.ch.