Irish Centre for Human Rights

Irish Centre for Human Rights Summer Course on the International Criminal Court 2011 Part 3: General Principles of Criminal Law by Kamran Choudhry kamran.choudhry@gmail.com

Introduction: The Concept of General Principles • Part 3 of the Rome Statute sets out fundamental principles applicable for international crimes. • Previous tribunals such at the International Military Tribunals of Nuremberg and Tokyo and even the ICTY and ICTR do not contain anything similar. • Reasons why no previous attempt: • In the days of the International Military Tribunals, the concept of international criminal law was relatively new. The ICC Statute is the result of evolution in this field. • Previous tribunals were a spontaneous political creation. • Previous tribunals were established to deal with crimes that had already happened. They had a limited mandate both in terms of situation and time. • The ICC is a court for future crimes and more importantly is a permanent court.

Introduction: The Concept of General Principles • Part 3 is a major achievement. It represents an attempt to merge several criminal justice systems into one legal instrument. It attempts for the first time to codify concepts such as modes of criminal participation, the mental element required for crimes and the defences that are available. • Potential advantages: • Judges discretion to develop principles of criminal law will be limited • Provide a legal framework for the Court • Ensure Predictability – has an effect on rights of accused • Promote consistent jurisprudence and practise.

Article 21: Applicable law • Article 21 is an important and exciting innovation. It creates its own regime of sources of law and ranks them: • (a) Statute, Elements of Crimes and its Rules of Procedure and Evidence. • (b) Applicable treaties and the principles and rules of international law including the established principles of the international law of armed conflict. • (c) General principles of law derived from national laws of legal systems of the world including as appropriate the national laws of the States that would normally exercise jurisdiction over the crime. • Previous international criminal tribunals make no reference to the sources of law. • Previous international criminal tribunals have tended to turn to Article 38 of the International Court of Justice: • international treaties. • international custom. • general principles of law recognised by civilised nations.

Article 21: Applicable law • Article 21(1)(a): The Rome Statute, together with its Rules of Procedure and Evidence and Elements of Crimes, are the primary source or law. • Art 9 and Art 51 state that the Statue overrides the RPE and Elements in the case of conflict • Bashir: The Court can not look to other sources of law unless • lacuna in the Statute, Rules and Elements • lacuna can not be filled by interpreting the Statute in accordance with Article 31 and 32 of the Vienna Convention on the Law of Treaties • Article 21(1)(b): • Corresponds to Art 38 of the ICJ • Expressly refers to the international law of armed conflict - Perhaps an opportunity to recognise certain defences not included in the Statute (e.g. reprisals and military necessity).

Article 21: Applicable law • Article 21(1)(c) General principles of law derived from national laws … including as appropriate the national laws of the States that would normally exercise jurisdiction over the crime. • Hugely controversial. • Can the ICC apply the national law of the State where the crime was committed? • Concern: law might vary depending on place of crime/nationality of accused. • Special Court for Sierra Leone • Concerns are exaggerated • Judges will be extremely reluctant to adopt the national criminal laws of a particular country. • Lubanga • “general principles” = adopting a comparative approach to criminal law. • ICC will be reluctant to automatically import approaches taken by other ad hoc tribunals: “precedents of the ad hoc tribunals are in no way binding and that procedural rules and jurisprudence of the ad hoc tribunals are not automatically applicable without analysis”.

Articles 22 to 24: Nullum crimen • Articles 22 to 24 of the Rome Statute address the principle of legality: • Article 22 sets out the principle of nullum crimen sine lege = an individual may only be criminally responsible for conduct which was unambiguously criminal at the time of its commission. • Article 23 sets out the principle of nulla poena sine lege = an individual may only be punished in accordance with the law. • Article 24 sets out the principle of non-retroactivity = no individual shall be criminally responsible under the Statute for conduct prior to its entry into force (1 July 2002).

Articles 22 to 24: Nullum crimen • Articles 22 to 24 are a gigantic step forward in international criminal law: • Previously, the principle of legality was applied with a degree of flexibility: See France et al. v. Goering: • the maxim nullum crimen sine lege … is a general principle. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished”. • Reasons for the flexible approach: • There was no significant body of international criminal law to draw from. • Other tribunals were set up after the fact in order to deal with past crimes. Flexibility was needed to pursue moral justice. • The principle of legality has developed since the Second World War. See: • Art 11 of Universal Declaration of Human Rights • Art 15 of the ICCPR

Articles 22: Nullum crimen Superiority of the Rome Statute • Article 22: nullum crimen sine lege • In contrast to other ad hoc tribunals, the Rome Statute contains a very detailed list of crimes and combines the Statute with the Element of Crimes. • Prohibits the extension of crimes by analogy: See Bemba case = recklessness is excluded from Article 30 of the Statute. • However, the ban on analogy faces a difficulty with Article 7(1)(k) of the Statute which provides for the crime of “other inhumane acts of a similar character”. • Article 23: nulla poena sine lege • Part 7 of the Rome Statute provides for imprisonment of up to 30 years or life, fine and forfeiture. • Does the Rome Statute go far enough? • Current sentencing is heavily influenced by Judges personalities. • Sentencing should be consistent.

Article 26:Exclusion of jurisdiction over persons under eighteen • Article 26 “The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime”. • Some countries (such as Israel) argued that the age should be lower and should correspond to the age permitted for recruitment into the armed forces. • With the exception of the Special Court for Sierra Leone, no other international criminal tribunal has included a minimum age provision in its Statute. • This Issue has caused much moral debate.

Article 26:Exclusion of jurisdiction over persons under eighteen • Special Court for Sierra Leone • The minimum age for prosecution is 15. • The age of 15 was supported by former Secretary General Annan • With the exception of Amnesty International, several child rights groups and Unicef objected. • ICC • International criminal law enforcement is directed at those who bear the greatest responsibility for the core crimes. • It is unlikely that an accused would be under the age of 18. • Prosecutor is going to be very reluctant to indict a juvenile. • Prosecution of juveniles is complicated. • Juveniles have to be tried differently • Rehabilitative sentences need to be considered

Article 27: Irrelevance of official capacity • 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. 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.

Article 27: Irrelevance of official capacity • Art 27 – Contains two distinct concepts (official capacity and personal immunity). • Art 27(1) - doctrine of “official capacity”: State officials cannot be subjected to criminal responsibility for acts carried out in the name of the State. • Article 7 of the Charter of the International Military Tribunals provides: • “The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment” • Articles 6(2) and 7(2) of the ICTR and ICTY respectively contain a similar provision: • “The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” • ICTR has gone even further in holding that an accused’s official capacity may in fact be an aggravating factor. See Kambanda

Article 27:Irrelevance of official capacity • Art 27(2) - personal immunities under customary international law: “a reciprocal respect among states for their sovereignty and the right to protect officials representing foreign states abroad from possible abuses by the territorial state”. per Professor Gaeta. • No other international criminal tribunal has a similar provision in its Statute. • Democratic Republic of Congo vs Belgium (Arrest Warrant Case) • An incumbent or former Minister for Foreign Affairs may be not subject to criminal proceedings before a national court but may be subject to prosecution in international criminal courts. The Court relied on Article 27(2) in making its finding. • Special Court for Sierra Leone – Charles Taylor • The Court interpreted the Arrest Warrant case as consisting of an exception to personal immunity when international crimes are involved.

Article 27: Irrelevance of official capacity • ICC – Omar Al-Bashir • An arrest warrant was possible because: • The purpose of the ICC was to end impunity. • Article 27 was a core principle of the Rome Statute. • Chamber need only to apply the ICC Statute. • The Security Council accepted that the Court would exercise it authority in accordance with its Statute. • The reasoning has been criticised • Rome Statute is based on a treaty which requires consent. • State Parties to the ICC have waived their immunity. • Bashir decision fails to distinguish betweens the ICC’s powers to issue an arrest warrant and the duties of States to comply with it. • Art 27(2) does not apply to Non-State parties. Art 98(1) of the Rome Statute is evidence of this: • “The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity …”

Article 27: Irrelevance of official capacity • Libya: Colonel Muammar Gaddafi • An arrest warrant is currently being sought. • Libya is not a signatory to the Rome Statute • Several countries such as Turkey have offered him guarantees should he leave • Are these guarantees enforceable? Does it make a difference if the guarantor State is a signatory to the Rome Statute? • Adopting the current approach in Bashir –it is uncertain. • It is arguable that such a guarantee is possible, even if made by a State Party to the ICC.

Article 28:Responsibility of commanders and other superiors • Art 28(1): A military commander or person effectively acting as a military commander shall be criminally responsible for crimes committed by forces under his or her effective command and control, or effective authority and control where: • (i) That military commander or person either knew or should have known that the subordinates were committing or about to commit such crimes; and • (ii) That military commander or person 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. • Art 28(2): all other superiors - A superior shall be criminally responsible for crimes committed by subordinates under his or her effective authority and control, where: • (i) The superior either knew, or consciously disregarded 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; and • (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.

Rome Statute Art 28 distinguishes between civilian and military superiors. Art 28 mental standard is the superior knew, should have known or consciously disregarded the fact that subordinates were about to or were committing crimes. Art 28 requires a causation element linking the superior’s failures to the crimes committed. Art 28 has no express provision requiring a superior to punish for offences already committed. Other Ad Hoc Tribunals The ad hoc tribunals make no such distinction. ICTY (Art 7(3)) and ICTR (Art 6(3)) - knew or had reason to know that the subordinate was about to commit such acts or had done so. The ad hoc tribunals have no such requirement. ICTY (Art 7(3)) and ICTR (Art 6(3)) - expressly state that liability may be imposed on a superior for failing to punish crimes already committed by subordinates. Article 28:Responsibility of commanders and other superiors

Article 33:Superior orders and prescription of law • Article 33 of the Rome Statute provides an accused who has acted pursuant to an order of a Government or of a military or civilian superior, with the defence of superior orders provided that: • (a) The accused was under a legal obligation to obey the orders of the Government or the superior in question; • (b) The accused did not know that the order was unlawful; and • (c) The order was not manifestly unlawful. • Article 33(2) provides that orders to commit genocide or crimes against humanity are manifestly unlawful.

Article 29:Non-applicability of statute of limitations • Article 29 confirms that there is no statute of limitations for crimes within the jurisdiction of the Court. • The extreme gravity of the crimes involved mean that society has an indefinite interest in prosecution and punishment. • This Article acts as a bar to States who might refuse to surrender an individual to the Court on ground that offence was time barred under national jurisdiction. per Professor Schabas

Article 30: Mental element • Unless otherwise stated the mental requirement for crimes within the jurisdiction of the Court is: • Intent = to engage in a certain conduct or with respect to a consequence when a person means to cause that consequence or is aware that it will occur in the ordinary course of events. • Knowledge = awareness that a circumstance exists or a consequence will occur in the ordinary course of events. • Professor Ambos contends that this provision could have gone further as modern criminal law distinguishes between, purpose, knowledge, recklessness and negligence. • However, many of the crimes contain their own definition of mens rea. e.g. genocide – requires specific intent.

Article 31:Grounds for excluding criminal responsibility • Articles 31 to 33 set out possible defences to crimes within the jurisdiction of the Court. • The Rome Statute is the first ICL instrument to attempt to codify defences. • Article 31 provides an non-exhaustive list of defences: • Insanity • Intoxication • Self-Defence • Duress/Necessity

Article 31:Grounds for excluding criminal responsibility Insanity • Similar to the M’Naughton rules, a person shall not be criminally responsible if at the time of the offence, he or she: • Suffered from a mental disease; • Suffered from a mental defect; • Their capacity to appreciate the unlawfulness or nature of their conduct is destroyed; or • Their capacity to control their conduct to conform to the law is destroyed. • This defence will be rarely invoked – ICC is focused on leaders. • The Rome Statute is silent as to who bears the burden of proof required to assert this defence and to what degree. Article 67 of the Statute prevents “any reversal of the burden of proof or any onus of rebuttal”.

Article 31:Grounds for excluding criminal responsibility Intoxication • A person shall not be criminally responsible if at the time of the offence, he or she: • Are in a state of intoxication • That destroys their capacity to appreciate the unlawfulness or nature of their conduct; OR • Their capacity to control their conduct to conform to the law is destroyed. • UNLESS: the person was voluntarily intoxicated • Concern among States about allowing voluntary intoxication for international crimes. • This defence will be rarely invoked – ICC focused on leaders not foot soldier.

Article 31:Grounds for excluding criminal responsibility Self-Defence • A person shall not be criminally responsible if at the time of the offence: • There existed an imminent and unlawful danger to a person or property by unlawful force; and • The accused’s reaction was proportionate • Applies to defence of self, another or property. • In the case of defending property: • Confined to war crimes. • Defence of property must be essential for the survival of the person or another person. • Article 31(1)(c) - This is not collective self-defence which applies to States and is governed by Article 51 of the UN Charter. • Objective Test – Professor Ambos suggests that this has the effect of barring pre-emptive strikes from being considered as self-defence.

Article 31:Grounds for excluding criminal responsibility Duress/Necessity • A person shall not be criminally responsible if at the time of the offence there exists: • A threat of imminent death or continuing or imminent serious bodily harm against the person concerned or a third person made by other persons or by circumstances beyond that person’s control; • The person’s response is a necessary and reasonable reaction to avoid this threat; and • The person does not intend to cause a greater harm than the one sought to be avoided person • Article 31(1)(d) of the Rome Statute collapses this distinction between duress and necessity. • Inclusion resurrects the defence of duress and necessity which was rejected in the ICTY case of Erdemovic.

Article 32: Mistake of fact or mistake of law • Article 32 provides that a mistake of fact or law may be a defence. However, this defence is based on the common law understanding of mistake of fact or law. • A mistake is only relevant when it can be shown that the mistake has negated the mental element of the offence. • Heavily criticised by academics and practitioners: • Article 32 is superfluous and repetitious. It merely restates the principles outlined in Article 30 of the Statute. • It fails to appreciate the various nuances and types of mistakes that may exist. • Mistake of law: • Ignorance of the law is no excuse • Expressly makes exception for the defence of superior orders

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