lecture 7 - ICL

Question 1

Steps for the ICC

Answer 1

1. Jurisdiction
2. Elements (crime)
3. Perpetrator or co-perpetration (Lubanga case)

Question 2

The jurisdiction of the ICC

step 1

Answer 2

i. Temporial ➞ art 11 Rome Statute
ii. Material ➞ art 5 Rome Statute
iii. Territorial/personal ➞ art 12 Rome Statute

Question 3

Temporial

part of jurisdiction of the ICC

Answer 3

art 11 Rome Statute
a. Entry into force Rome Statute (par 1) (July 1 2002); or
b. Moment of ratifying the Rome statue (par 2); or
c. Declaration under art 12(3) Rome statute (par 2) ➞ where the prosecutor wants to investigate, then the state which has a link to the crime, can accept the jurisdiction to this specific crime

Question 4

Material

part of jurisdiction of the ICC

Answer 4

➞ art 5 Rome Statute
About the ‘crimes’ within the jurisdiction of the court ➞ to say which acts have been criminilized

art 6-8bis

Question 5

Territorial or personal

part of jurisdiction of the ICC

Answer 5

➞ art 12 Rome Statute
Territorial: where the crime was committed. Green state = court has jurisdiction
Personal: based on the nationality of the perpotrator (of state party of the Rome statue), even when it was committed on the territory on a state which isn’t part ➞ this helps the criminal law system

Question 6

Exceptions - other grounds for jurisdiction of the ICC

Answer 6

Complementary jurisdiction = ‘who’ is going to prosecute ➞ art 17(1)(a) Rome Statute
- If there is a state that wants to investigate, the ICC can’t step in. Unless a state is unwilling or unable, then the ICC can step in
UN SC referrals = a situtaiton can be referred by (art 13 Rome statue)
- A situation = usually an armed conflict
- In the situation the prosecutor finds cases, and they are always against individuals ➞ states cannot be tried against the ICC

Question 7

Elements (crime)

step 2 (icc)

Answer 7

About the act which was committed and if it was intended etc
Steps:
1. Actus Reus: (guilty act) - articles 6-8bis
2. Mens Rea: (guilty mind) - article 30
- Intent ➞ not by accident. Problem is: ‘unless otherwise provided’
- Intent to commit the actus reus + special intent (for genocide for eg you need to show how you want to get rid for all the others as well, and that this is the way for doing so…) this makes it difficult as well, especially for genocide
- Knowlegde ➞ Al-Bashir Arrest Warrant case (knowing that there is this special intent, and behauviour)
3. Contextual: (usually in the article) ➞ elements/thresholds/victims - art 6-8bis (national, ethnical, racial or religious group for genocide) ➞ see ICTR Akayesu case. The definitions are controversial

Question 8

Genocide ➞ elements of crime

Answer 8

• Actus Reus: art 6
• Mens rea: the intent to commit the actus
  reus in question + dolus specialis
  (special intent)
• Contextual element: pattern of similar
  conduct directed against the targeted
  group (ICC Al-Bashir Arrest Warrant case)
• Victims: ‘group’; national, ethnical, racial
  or religious (closed list) (see ICTR
  Akayesu)

Question 9

Crimes against humanity ➞ elements of crime

art 7

Answer 9

• Guilty mind: intent to commit the actus reus + knowledge that the act was part of a widespread or systematic attack against any civilian population (so mens rea also already included here)
• Widespread: large-scale, many victims, OR
• Systematic: thoroughly organized, planned, pattern
  
  • widespread or systematic: to distinguist domestic crimes from international ones
• Attack: course of conduct involving multiple commission of acts
• Victims: any civilian population (or combatants hors de combat)

Sub k = rest categorie

For chemical weapons and actus reus (art 7(1)(a), but also k, because yhere can also be horrible injuries and not killing

Question 10

War crimes ➞ elements of crime

art 8

Answer 10

• Contextual element: the existence of an armed conflict (IAC or NIAC) (See ICTY, Tadic
  (interlocutory decision, 1995) + nexus between act and armed conflict
• Victims: depending on the act in question (civilians, combatants, hors de combat)
• Mens rea: intent to commit the actus reus + knowledge of the existence of the armed conflict
• You need to have a link between the act and armed conflict ➞ this needs to be proven

If it is a NIAC, we must depend on art 8(2)(c or e)

Question 11

Crime of aggression ➞ elements of crime

Answer 11

• Added after the Kampala Review Conference (2010)
• Crime against peace (violation of ius ad bellum), leadership crime
  ➞ you need both of the ratifications of the countries
• Actus reus: planning, perpetration, initiation or execution (of an act of aggression, see GA Res
  3314 (1974))
• Threshold: by its character, gravity and scale constitute a manifest violation of the UN Charter
• Mens rea: intent to commit the actus reus
• Victims: states (?)

Question 12

Modes of liability
Perpetrator or co-perpetration (Lubanga case)

step 3

Answer 12

Art 25(3) Rome Statute

Lubanga case - to convict a leader - steps
Actus Reus
- Pluraty of persons (para 980)
- Common plan or purpose (98q1) with at least a critical element of criminality (984)
- Essential contribution (999)
Mens Rea
- Normal mens rea of the crime committed ➞ zeggen dat je deze al hebt aangetoond bij step 2
- Realization that the common plan will result in the crime
- Awareness of the circumstances that allow the co-perpetrators to jointly control the crime

Chain of command helps you show that there is a systematic structure and the there is pluradrity of persons ➞ so it is helpfull.