International Justice: between Utopia and Realism

EURAC European Academy of Bolzano • International Justice: • between Utopia and Realism • The experience of the International Criminal Court • Bolzano, 25 June 2010 • Cuno J. Tarfusser, Judge at the ICC

Outline • Historical context • Origins of the International Criminal Court • Main procedural features: • Applicable law • Jurisdiction • Complementarity • Pre-Trial Chambers • Some substantive features: • Official capacity • Individual and command responsibility • Superior orders • The Victims at the ICC

Historical context • 1945/1947: the Nuremberg and Tokyo military Tribunals • The cold war • 1993/1994: ICTY and ICTR ad hoc Tribunals

Historical context • Different ILC’s appointed by the UN to prepare a Draft Statute for an ICC and Draft Code of Crimes Against the Peace and Security of Mankind (last 1994-1996) • 15.6 – 17.7.1998: the Rome Conference

Historical context • After 1998: establishment of “hybrid” courts : • Special Court for Sierra Leone • Extraordinary Chambers in the Courts of Cambodia • Iraqi Special Tribunal • War Crimes Chamber in the Court of Bosnia and Herzegovina • District Court of Dili in East Timor • Special Tribunal for Lebanon

Origins of the ICC • 15th June to 17th July:The Rome Conference • 18th July 1998: adoption of the Rome Statute (120 positive votes/21 abstentions/7 negative votes) • 1st July 2002: Rome Statute entered into force (at the ratification of the 60th State)

States Parties • 111 States Parties today • (Bangladesh joining last on March 23rd 2010) • African States: 30 • Asian States: 15 • Eastern European States: 17 • Latin American and Caribbean States: 24 • So called WEOG States: 25

The organs of the Court • Assembly of States Parties(legislative and administrative controlling organ) • Judges(18 divided in 3 Divisions, pre-trial, trial and appeal, and in Chambers) • OTP(Prosecutor and one Deputy) • Registrar(legal and administrative support)

Applicable law and principals • Hierarchy of the legal sources: • ICC constitutive instruments (RS; RPE; EoC, RoC); • Applicable treaties and principles and Rules of International law; • General principles of law derived from national laws of legal systems of the world • Precedents of the Court • All sources of law have to be applied and construed consistently with internationally recognized human rights

Main procedurale features of the ICC • Jurisdiction • ratione materiae • ratione loci • ratione temporis • Triggering mechanisms • Complementarity • Pre-Trial Chambers • Victims

Jurisdiction ratione materiae • The crime of Genocide • Crimes against Humanity • War Crimes • [The crime of Aggression]

Jurisdiction ratione personae • The person accused of the crime is a national of a State party, or • The State of which the accused is a national accepts ICC jurisdiction

Jurisdiction ratione loci • The conduct occurred on the territory of a State party, or • The State where the conduct occurred accepts ICC jurisdiction

Jurisdiction • No territorial or personal link is necessary when the situation is referred by the UN Security Council acting under Chapter VII of the Charter of the United Nations

Jurisdiction ratione temporis • The Court has jurisdiction only over crimes committed after 1st July 2002

Triggering mechanisms of ICC jurisdiction • Referral by a State Party • Referral by the Security Council • Prosecutor acting motu proprio, subject to authorization by the PTC

Complementarity • Rules governing the relationship between the Court and national jurisdictions • Primacy recognized in principle to national jurisdictions, unless • national action is lacking, or • the relevant State is unwilling or unable genuinely to carry out national proceedings

Function of complementarity • Reconcile the States’ persisting duty to exercise criminal jurisdiction over international crimes with the establishment of a permanent court having jurisdiction over the same crimes • Division of labour between national Courts and the ICC • Fundamental objective: “to put an end to impunity” for crimes of concern to the international community as a whole and “thus … contribute” to their prevention (Statute, Preamble)

Role of Pre-Trial Chambers • Filter • Only solid and grave cases should go to trial; art. 15 • Safeguard • Of the rights of the suspect, the defense and the victims. Principle of fair trial. • Impulse • Confirm (or not) the charges against the accused and thus mark the transition from pre-trial to trial proceedings with all preliminary questions solved

Substantive features concerning criminal responsibility • Irrelevance of official capacity • Individual criminal responsibility • Command responsibility • Superior orders and prescriptions of law

The victims • At the International Criminal Court the term • Victims • is somehow coincident with the term • Minorities

The victims • The ICC is the first and only international criminal Tribunal foreseeing: • Victims participation • Victims reparation • Victims Trust Fund • (Victims protection)

The victims • ICC offices dealing with victims • VPRS – Victim Participation and Reparation Section (support in the field) • VWU – Victims and Witnesses Unit (protection, logistic, psychological support) • OPCV – Office of the Public Counsel of Victims (legal support) • Trust Fund – (dealing with reparation)

The victims as minorities • Genocide • Acts committed “with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such” • Therefore, to be part of a minority group is a constitutive element of the crime of genocide

The victims as minorities • Crimes against humanity • Acts committed “as part of a widespread or systematic attack directed against any civilian population…” • In particular the crime of persecution committed “against any identifiable group or collectivity on political, racial, national, ethnical, cultural, religious, gender…or other grounds that are universally recognized as impermissible under international law…”

The victims - definition • Victims as natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court. • Victims as organizations and institutions that have sustained direct harm to any of their property witch is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

The victims definition • the victim as a natural person • the victim must have suffered harm • The origin of the harm must be a crime falling within the jurisdiction of the Court • Causal nexus between crime and harm suffered

The victims participation • General provision in the Statute • Where the personal interests of the victims are affected, the Court shall permit their concerns and views to be presented and considered at stages of the proceedings … in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial…

The victims participation • Participation through legal representatives • Attend and participate in the proceedings • Participate in hearings • Make opening and closing statements • Question witnesses, experts, suspects • Present evidence

The victims protection • Victims protection is a responsibility of the Court • Measures to protect the safety, physical and psychological well-being, dignity and privacy: • Redactions • Anonymity • Voice distortion • Closed session hearings • Relocations

The victims reparation • The ICC may make an order • Directly against the convicted person • Indirectly through the Trust Fund • Upon request or on its own motion • On an individualized or on a collective basis

The victims reparation • Forms of reparation • Restitution • Compensation • Rehabilitation

Thank you for your attention

International Justice: between Utopia and Realism