The Rome Statute only recognizes personal jurisdiction over natural persons who are over the age of 18. There is no such thing as corporate criminal liability under the Rome Statute. In other words, there's no jurisdiction over legal persons like corporations, partnerships, businesses, international organizations, only over natural persons, that is human beings. In addition, there's no such thing as juvenile international justice. Juvenile prosecutions cannot take place at the International Criminal Court. Anyone who is under the age of 18 who's involved in something like a war crime, a crime against humanity, or genocide, is by law deemed to be a child soldier and child soldiers are victims of mass atrocity, not perpetrators. Liability for acts committed by child soldiers will fall on the adults who recruited them, who order them, or who otherwise directed their actions. This has been a challenge in some cases and when we talk of reparations, this adds a layer of complexity, who are the victims who are seeking reparations against the perpetrator? Are they the people, the community who suffered the harm? Or are they the child soldiers, who carried out the harm but were recruited against their will or conscripted or something like that? Who are the actual victims entitled to reparations? We'll address that question again when we talk about reparations later in this presentation. In addition, the Rome statute does not recognize sovereign immunity. That means, a head of state cannot claim to be immune from prosecution simply because they were carrying out the official acts of state. Heads of state acting in their official capacity may still be prosecuted. This is different than a domestic court. For instance, you can't go to federal court and claim that you can't sue for instance, George W Bush for invading Iraq or Obama for invading Libya, because those are official acts of state carried out pursuant to their official capacity as President of the United States. That isn't true in international prosecutions, there's no such thing as sovereign immunity. One of the most noteworthy aspects of the Rome Statute is the degree to which it includes gender justice issues in its text in many ways. This reflects the importance of women's rights organizations at the Rome Conference as part of that NGO coalition. First, gender and sexual-based violence is included in the definitions of the core crimes, including genocide crimes against humanity and war crimes. This builds on the Rwanda precedent that as we'd said, mass rape for instance can be a tool of genocide and was used as such in for instance Yugoslavia, where Serbian troops would rape Bosnian Muslim women in order to give birth to Serbian children and thereby exterminate the Bosnian Muslim community. That type of violence is specifically included in the definitions of the core crimes in the Rome Statute. In addition, the Rome Statute make special provision for victims of physical and psychological sexual abuse. That victims of sexual violence and sexual abuse may provide testimony electronically for instance, so that they don't have to confront the perpetrator face-to-face. In addition, the Rome Statute provides for fair representation of women and men for both the judges and the staff who are hired by the court. This doesn't strictly mean that half of all judges at the ICC must be women, currently we're just short of that now. Judicial terms have staggered and so the gender proportion does change. But the Rome Statute does require that women be fairly represented on the bench among the judges in the Office of the Prosecutor, and in the administrative staff. It's the only international tribunal that is like that. In addition, the Rome Statute requires the judges and staff be hired who have an expertise in sexual and gender-based violence issues. Currently, the court has all female leadership actually, the prosecutor is a woman, the president of the court's a woman and that and the first second vice presidents are both women, up until recently the registrar was also a woman. There's no other international tribunal or even any other international organization like that. The Judicial Division is composed of 18 judges sitting in the Pre-Trial Chamber, the Trial Chamber, and the Appeals Chambers. Notice the influence of the inquisitorial tradition on this structure, that like in the legal systems for instance of France and Germany, judges are involved at the very beginning. In the earliest stages of a case, to confirm charges ensure the prosecutor has enough evidence to proceed, and make sure that she's not engaged in a fishing expedition or some frivolous prosecution. This is the equivalent of an investigating judge in the French system. The Trial Chamber by contrast, operates under a more adversarial system, that the parties lead presentation of evidence. However, truth is frequently seen as the ultimate goal, not necessarily a conviction. The prosecutor has a duty to investigate both inculpatory evidence and exculpatory evidence, that makes her more akin to a civil law procurator, and not just an adversarial common law prosecutor. International criminal trials are inherently messy. Frequently, defendants like Saddam Hussein at the Iraqi High Tribunal or Slobodan Milošević at the Yugoslavia Tribunal, will try to disrupt the proceedings, delay decisions and incite violence even from the stand. They are very lengthy. Trials can last for years. Now the Nuremberg and Tokyo trials did not have a system of appeal. Yugoslavia and Rwanda Tribunals did have an Appeals Chamber, they shared one in The Hague. The right to appeal is now seen in the international realm as a due process requirement. The Appeals Chamber can reverse remanded decision or sentence, it can also hear appeals from the Pre-Trial Chamber. If the Pre-Trial Chamber for instance, finds that the prosecutor does not have enough evidence to proceed, the prosecutor can appeal that to the Appeals Chamber. Both the defendant and the prosecutor can appeal to the Appeals Chambers, victims cannot appeal as we'll see. The court is both strong and weak. It's strong because it can choose the cases that it selects and develop evidence in those cases, but it's weak because it can't enforce its own decisions. The court has no police force. It requires member states to cooperate with it, and a member state that's uncooperative can undermine the courts prosecution, that happened for instance in the Kenyan case. The court cannot arrest suspects and transfer them to Hague on its own. Now, some domestic laws can, including by the way, that of the United States, can prohibit the government from arresting a foreign head of state because those heads of states have sovereign immunity under domestic law. This has made it very challenging for the court to acquire jurisdiction over someone like Omar al-Bashir, the president of Sudan, who's wanted in the dark for genocide case. Omar al-Bashir has sovereign immunity when he travels to certain countries, even those who are members of the court. Those countries are reluctant to arrest him and send him to the Hague. There's a little bit of reciprocity at stake here. Governments don't want to arrest foreign heads of state because they could endanger their own head of state when they travel to those countries. Criminal procedure at the ICC is a mixture of adversarial, inquisitorial, and participatory. We've already noticed one inquisitorial element, which is that judges are involved in the proceeding from the very beginning, and the prosecutor has this duty to investigate exculpatory evidence like in a common law trial. In absentia, trials are not permitted at the International Criminal Court, unless the defendant absconds. Indictments can change after proceedings begin. That's different than a common law trial, that would be seen as misconduct. But it's allowed in civil law trials because truth is the ultimate goal, and if the prosecutors theory changes as she uncovers evidence, then so be it, you can update the indictment. You wouldn't be able to do that in a common law system. Due process rights are very strictly protected. That's typical of a common law proceeding. Defendants who cannot afford an attorney have one appointed for them like in a common law system. But, the court also has a participatory element. Victims have representation throughout the trial. Victims are allowed to make statements at all points and a victim's representative participates in all stages the preceding. This makes the case something similar to a class action lawsuit, where the victims are represented by a class representative. Victims cannot appeal decisions of the judges unlike defendants and the prosecutor. But victims can participate, and that makes ICC criminal procedure in this triangular three-way fashion, that makes ICC criminal procedure quite unique. I've listed here the current situations that are pending before the court. There's one more the most recent investigation into the Russia-Georgia war which we'll talk about a little bit later. Georgia is a state party to the court and when Russia invaded in 2008, there were allegations of war crimes and crimes against humanity on both sides. That case is at a very early stage of development. But the others are eight countries listed here, a total of nine situations are all based in Sub-Saharan Africa. The Democratic Republic of the Congo was the court's first case and the Court's first convictions against Thomas Lubanga and Germain Katanga, who were warlords in Eastern Congo for things like recruitment of child soldiers. The Central African Republic, actually has two separate situations that are unrelated. The first involves the overthrow of president Patasse in 2003. When President Patasse was being overthrown, he called in Jean-Pierre Bemba, a Congolese warlord to defend him, and Jean-Pierre Bemba is on trial for crimes committed on the territory of the Central African Republic when he invaded to protect the regime of Patasse. Patasse was eventually overthrown by his Chief of Staff Francois Bozize, and that's what the second situation is they overthrow Bozize in 2014 by the Seleka rebels. So two separate unrelated situations in the Central African Republic that are both under investigation now, and the Bemba trial is already underway, the trial involving the Seleka rebels is still in the investigation phase. Uganda, for the Lord's Resistance Army in Northern Uganda, in particular for Joseph Kony, the leader of the LRA. He's still at large, likely in the Congo, but some of his subordinates are on trial already in the Hague, including Dominic Ongwen who turned himself in. That's an interesting case, because Dominic Ongwen was himself a child soldier that was forcibly recruited into the LRA as a child and he grew up in the LRA. Is being a child soldier a defense to war crimes or crimes against humanity? We'll find out in the Ongwen case. Sudan involves the Darfur genocide. No one is in custody for that case yet. One of the defendants of course is President al-Bashir himself. That case is the only one right now that involves charges of genocide in addition to war crimes and crimes against humanity. That was a UN Security Council referral. The Bush administration pushed that referral and abstained on the actual votes. But the Darfur genocide was something that mobilized evangelical Christians in the US, which was part of the base of Bush's support. The US did not oppose that referral for the Darfur genocide, but the court has been really hampered in trying to get control over al-Bashir. He's still Presidents of Sudan. He's been president Sudan for 10 years after these indictments. So other countries including other states parties are reluctant to arrest him. The case against Kenya, involving the election violence in 2007 has fallen apart. There are no more pending charges, they have been withdrawn. Kenya's not being cooperative. The primary suspects in that case including Uhuru Kenyatta, who was then vice president, but now has been elected president. Since Kenyatta is President of Kenya, the government of Kenya won't cooperate with the court, won't turn over evidence and witnesses. There's a lot of witness tampering, bribery, falsification of evidence, and it's been very hard for the courts to get traction in that case. The court eventually had to withdraw those charges because they couldn't get anywhere. Essentially, the 2007 election violence involves a campaign between a very, very close campaign between Mwai Kibaki, who's president of Kenya running for re-election, and his primary challenger Raila Odinga. Odinga likely won the election. In fact, Odinga's party won a majority in parliament a huge majority in parliament, wiped out a lot of the cabinet seats and yet he still didn't win. That's really a peculiar results. The way that the vote trickled in, there really probably was elections tampering in that case, and it probably did make a difference for the election outcome. More than 1,000 people died in the violence that followed, which led unfortunately to serious situations involving ethnic cleansing. The Libya case was triggered by Gaddafi's Arab Spring crackdown in 2008. Gaddafi was killed in the violence that followed, but his son, Saif Al-Islam Gaddafi and his son-in-law Al-Senussi, the Intelligence Chief, are both wanted by the International Criminal Court for abuses. Cote d'Ivoire is another election violence case. Laurent Gbagbo, the President of Cote d'Ivoire lost his re-election and refused to leave office. It wasn't until the challenger, Ouattara, amassed a huge army to blast him out that Gbagbo was finally forced out of office and sent to the Hague for trial. Mali State referral case. This involves the Tuareg rebels and their attack on the ancient city of Timbuktu, a UNESCO World Heritage site. This case, including it's first defendant Ali Mahdi, is the first time that the courts ever prosecuted destruction of cultural heritage as a war crime for the attack on Timbuktu. So new law being made as we speak. In this segment, we'll talk about the basic sentencing and punishment provisions of the court. Now, international criminal sentencing is different than domestic criminal sentencing for several reasons. First, not all the sentencing goals that applying the domestic realm really make sense in the international realm. For instance, we don't really talk much about rehabilitation of war criminals. That seems odd. Really, criminal sentencing at the international realm is about retribution and deterrence. We wanted to deter future atrocities by showing that even heads of state are not immune from prosecution for abuses. Punishment in the international realm is by incarceration. There is no death penalty in international criminal trials. There's no corporal punishment, there's no alternative sentencing schemes, there's no equivalence for instance of probation or parole in the international realm, it's only by incarceration. That's partly because incarceration is a least common denominator of sentencing worldwide, and partly because international law disfavors the death penalty. There's also no sentencing guidelines or mandatory minimums in international law. Because there's no consensus about what goals should be pursued and the length of sentences, it's hard to get Norway in North Korea to agree on anything, let alone lengths of criminal sentences for instance. The result, very wide variation among sentences in international criminal tribunals. The Rwanda Tribunal for instance had a reputation for passing relatively severe sentences, whereas the Yugoslavia Tribunal passed relatively light sentences even for similar conduct. That wasn't just explained by the fact that Rwanda was also prosecuting genocide in addition to crimes against humanity. A sentence ranged from 11 months at the Yugoslavia Tribunal, 252 years for Charles Taylor by the Special Court for Sierra Leone, without much consistency. In addition, international law, international criminal law does not recognize command responsibility. This is the Nuremberg precedent. That a defendant cannot claim that they were simply following orders. There is not a defense in international criminal law. It could be a defense in domestic law, but it's not a defense in international criminal law. That's the Nuremberg principle. Liability increases as you go up the chain of commands. Officials with knowledge of what their subordinates are doing are responsible for the acts of their subordinates. As in domestic systems, judges way aggravating and mitigating factors. Things like intoxication, diminished capacity, insanity, duress, these could be considered defenses in international criminal law just like they are in domestic law, but judges are quite inconsistent about which factors they consider and the weights that they give those factors let's say. It does seem like genocides punished more harshly, it's is the crime of crimes. But besides that, it's hard to come up with any clear sentencing rules in the international realm. The basic punishment provision in the Rome Statute is that a sentence of imprisonment may not exceed 30 years except where the offenses are "extremely grave", then life imprisonment is permitted. A sentence of imprisonment may not exceed 30 years except if the offenses are "extremely grave", then life imprisonment is permitted. This means that the court can pick a sentence up to 30 years or life. There's no provision for a sentence longer than 30 years, but shorter than life. The Rome Statute does not define what extremely grave means. It is a peculiar phrase, because what is an extremely graved genocide? I mean, genocide already has to be grave. It has to meet the gravity threshold at all for the courts to even prosecuted. What does extremely grave mean? The Rome statute does not say. Presumably, this was a concession to death penalty states. It was very hard to come up with the punishment provision at the Rome conference. Some states have the death penalty, including in domestic law for genocide. The United States by the way is one of them. Our federal genocide act punishes genocide with death, and that's US federal law. Many states have the death penalty for genocide, including states that don't have it even for ordinary murder. Yet in some cases, the death penalties have been abolished, and even life imprisonment has been abolished in most of the Spanish and Portuguese speaking world. In fact, it's unconstitutional in countries like Brazil. So states that don't have life imprisonment oppose to having a life imprisonment provision at all. In fact, Brazil and Portugal threatened to vote down the Rome Statute simply because it included life imprisonment. So if you're trying to come up with a compromise between states that have the death penalty and states that don't have the death penalty or life imprisonment, this was the solution; a sentence of imprisonment may not exceed 30 years except when the offenses are extremely grave, then life imprisonment is permitted. So that provision is really quite wonky because it's a deliberately negotiated compromise. The enforcement of a sentence. States parties volunteer to accept prisoners and they are responsible for taking that prisoner, paying the costs of incarceration, and transferring the prisoner home at the end of the sentence. Currently, there's probably about a dozen countries that have signed up to take prisoners. Countries like Austria, Norway, Niger. If no state volunteers to take a prisoner, the Netherlands must take them. That is part of the Netherlands cooperation agreement with the ICC. The court rents space in Dutch prisons to keep defendants there during trial. If no state volunteers to take a defendant after trial, the Netherlands must take them, the headquarters agreement. The sentence is binding on the state of enforcement. In other words, the state that volunteers. The state that volunteers cannot alter the sentence. It cannot release the defendant early for instance. However, the court can release a prisoner early if the defendant for instance assists in later cases or pays reparations to victims. But the court has to make that decision, not the state of enforcement.

1. What forms of punishment does the International Criminal Court use to punish perpetrators? What forms of punishment exist in domestic law but don't exist in international criminal law?

2. Although the criminal procedure used at the International Criminal Court is generally adversarial, it does have inquisitorial elements. What are some of the Court's inquisitorial elements?

 

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1The International Criminal Court primarily uses i... View the full answer