Individuals and intl law ICC

1
Individuals and intl lawICC

• Lecture 24
• March 13

2
ASSIGNMENTS

• Monday, March 16
• International Organizations and International
  Law (continued)
• www.un.org UN - Main Bodies
• Bring your charts of the UN system. Download from
  the class website
• The Reparations Case p.469
• UN Reform
• UN World Summit 2005 document
• http//www.un.org/ga/59/hlpm_rev.2.pdf
• Based on document In Larger Freedom
• http//www.un.org/largerfreedom/
• NGOs p.503
• Next International Law and the Use of Force
• MARCH 16 Quiz-3
• Wednesday, April 1
• Final draft of paper due
• Guest Speaker

3
INTERNATIONAL CRIMINAL COURT

• http//www.icc-cpi.int/Menus/ICC?lanen-GB
• Rome Statute of the International Criminal Court
• http//www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752
  -4F84-BE94-A655EB30E16/0/Rome_Statute_English.pdf
• Entered into Force 1 July 2002 in accordance with
  Art. 126 of Rome Statute - 60 days after 60
  states had become parties to the statute through
  ratification or accession
• Judges http//www.icc-cpi.int/chambers/judges.htm
  l

4
INTERNATIONAL CRIMINAL COURT

• What are the 4 goals advanced by the creations of
  an intl criminal ct.?
• 1. justice and punishment
• 2. deterrence
• 3. record-keeping
• 4. the progressive development of intl law

5
WHAT YOU WANT TO FOCUS ONKnow the pertinent ICC
Statute articles

• Complimentarity principle - national courts and
  ICC
• Which crimes are within the jurisdiction of the
  ICC?
• Who can be brought before the court?
• Jurisdiction of the ICC
• Relationship to UN
• Judges qualifications
• US concerns
• Reservations no reservations may be made
• Opt-out provision for war crimes
• Non-retroactivity
• No immunity for heads of state

6
Jurisdiction ratione temporis

• Art. 11 of Rome Statute
• 1.         The Court has jurisdiction only with
  respect to crimes committed after the entry into
  force of this Statute.  
• 2.         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.

7
Timeline

• Dec 31, 00- Clinton signs the Rome Statute
• Feb 01-gt September 01- Minimal US participation
  at ICC preparatory committee meetings1,2
• May 6, 02 -Bush Administration notifies the UN
  that it recognizes no legal obligations with
  regards to the Rome Statute3 See VCLT Art.18.
• July 1, 02- The ICC enters into force
• July 12, 02- The US gains a 1 year exemption for
  peacekeepers from ICC jurisdiction after
  threatening continued Security Council veto of
  Bosnian Missions
• August 8, 02 - American Service Members
  Protection Act in passed into law.

8
Ratification of the ICC

• 108 States have Ratified
• Canada
• Most EU member States
• 30 are African Countries, 14 are from Asia, 16
  are from Eastern Europe, 23 are from Latin
  America and the Caribbean, and 25 are from
  Western Europe and other states.

• Countries that have not
• U.S
• China
• India
• Russia
• Qatar,
• Yemen
• Israel
• Iraq

9

• US Opposition to the ICC - Concerns
• The Effect of the Court on the U.S. military
  personnel, its commanders, and its operations
• The threat that it conflicts/ overrides the U.S
  Constitution. Specifically the Bill of Rights
  (ICC has not jury)
• Unchecked power of the prosecutor
• U.S. has less control of ICC vs. ad hoc tribunals
  set up by UNSC.

10
Arguments for the U.S. joining the ICC

• It does not violate the U.S. Constitution
• The accused individuals have extensive due
  process rights many of which were secured through
  efforts of U.S. negotiators
• The Prosecutor has to get authorization from the
  Pre-Trial Chamber before s/he commences an
  investigation

11
Rights found in both U.S. Constitution and Rome
Statute

• Presumption of innocence (Rome Statute Art. 66)
• Right to counsel (Art. 67)
• Right to present evidence and to confront
  witnesses (Article 69(3))
• Right to remain silent (Art. 55(2)(b))
• Right to be present at trial (Art.63)
• Right to have charges proved beyond a reasonable
  doubt (Art.66(3))
• Protection against double jeopardy (Art. 17)

12
Right to trial by jury

• This is the only right missing from the ICC
  statute.
• However, U.S. has already accepted that its
  citizens will not get juries when accused of a
  crime in Japan or France, etc.
• Other international criminal courts do not have a
  jury

13
Protection against double jeopardy

• It is more likely that U.S. military personnel
  would be tried in a U.S. national military
  tribunal
• Due to double jeopardy they would not be allowed
  to be tried again in the ICC

14
National Jurisdictions first ICC only if
unwilling or unable

• Rome Statute Art.17 (Art. 19(2)(b))
• Challenges to the admissibility of a case
• A State which has jurisdiction over a case, on
  the ground that it is investigating or
  prosecuting the case or has investigated or
  prosecuted
• Any nation can avoid prosecution of its citizens
  by the ICC by using its own courts to prosecute
  genocide, war crimes and crimes against humanity

15
ICC PENALTIES Note in case of extreme gravity
there is LIFE IMPRISONMENT

• Penalties for Art. 5 Crimes
• Rome Statute Art. 77
• 1. Court may impose one of the following
  penalties on a person convicted of a crime
  referred to in Art.5
• a) Imprisonment for a specified number of years,
  which may not exceed a maximum of 30 years OR
• b) A term of life imprisonment when justified by
  the extreme gravity of the crime and the
  individual circumstance of the convicted person
• 2. In addition
• a) A fine under criteria provided
• b) Forfeiture of proceeds, property and assets
  derived directly or indirectly from that crime

16
Where will they serve their sentence

• Rome Statute of the ICC
• Art. 103
• A sentence of imprisonment shall be served in a
  State designated by the Court from a list of
  States which have indicated to the Court their
  willingness to accept sentenced persons

17
U.S. bilateral agreements

• Agreements made under Art. 98 of the Rome Statute
  of the ICC
• Giving immunity to US citizens from ICC
  jurisdiction
• U.S. is threatening to withhold military aid and
  money from countries who do not sign the
  bilateral agreement

18

• The Philippines According to Philippine
  government officials, quoted in the local media,
  the United States has linked 30 million in
  additional military assistance to prevent Manila
  from ratifying the ICC Treaty. Philippines not a
  Party
• Bosnia Bosnian Foreign Minister Mladen Ivanic
  said that the U.S. message was that it would be
  "very difficult to continue military and other
  assistance" if Bosnia did not sign. We
  understand that Bosnia was told that the
  Department of State would review "dispensable
  programs," including economic aid. Bosnia is a
  Party of the Rome Statute.

19
The American Service Members Protection ActAct
22 U.S.C

• Art. 7423 - U.S government officials are
  prohibited from co-operating with the ICC
• Art. 2427 - Armed forces cant be used in
  peacekeeping missions unless the relevant party
  is not an ICC party or signed bilateral agreement
  with the US, unless the Security Council exempted
  US peacekeepers from the ICC investigation
• Art 7426 - No military assistance to ICC parties
  with the exception of NATO countries, major
  allies, or countries with bilateral agreements.
• Art 7427Presidential use of all means necessary
  and appropriate to free US government employees
  and certain other categories of individuals from
  ICC detainment is authorized