52 research outputs found
Challenges to the jurisdiction of the court or the admissibility of a case
No full textThe 1994 International Law Commission’s Draft Statute of the International Criminal Court (ILC Draft Statute) included a provision (article 34) permitting challenges to the Court’s jurisdiction, in accordance with the rules, ‘to ensure that the Court adheres carefully to the scope of jurisdiction defined by the Statute’. Challenges to jurisdiction could be made ‘prior to or at the commencement of the hearing, by an accused or any interested State’ and,
‘at any later stage of the trial, by an accused’. In addition, article 24 stated that ‘[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it’. Independently of these two provisions, article 35 of the ILC Draft Statute also provided that the Court might, ‘on application by the accused or at the request of an interested State, at any time prior to the
commencement of the trial, or on its own motion, decide, having regard to the purposes of this Statute, that a case before it is inadmissible’ on grounds which are now found, in a more detailed and modified form, in article 17 of the Rome Statute. The ILC Draft Statute provided that the accused and an interested State had the right to be heard and that the challenges would be decided by the Trial Chamber, or the Appeals Chamber, if the Trial Chamber considered that because of the importance of the issues they should be referred to that Chamber. This scheme, although modified in a number of important respects, in
particular, by the addition of the separate article 18 procedure (based on a US proposal) for challenging admissibility at an earlier stage than the article 19 procedure, has largely been retained in the Rome Statute. One particular problem that has been carried over from the ILC Draft Statute (and occurs in other articles), is that ‘Court’, which is defined in article 34 as having six organs, is sometimes used in the Rome Statute to mean simply the Pre-Trial
Chamber or the Trial Chamber, and sometimes it appears to include the Office of the Prosecutor and other organs as well. In article 19, the term ‘Court’ is used in both its broader and narrower senses, as indicated below
An observational study of the macro‐ and micro‐haemodynamic implications of epidural anaesthesia in children
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The principle of complementarity: the admissibility of cases before the international criminal court
No full textRegarded as the most important international institution established since the United Nations, the International Criminal Court (ICQ was created to help end impunity. With its jurisdiction based on the principle of complementarity, it will only act when States are found unwilling or unable to investigate or prosecute perpetrators of serious international crimes. The provision that reflects the complementarity principle, article 17, stipulates the grounds for establishing whether a situation or a case is admissible before the Court. The said article defines the unwillingness and inability criteria, but had not provided any directive concerning instances where a State had remained inactive in relation to a crime that is under the jurisdiction of the ICC. Nevertheless, the Pre-Trial Chamber of the ICC held that a case in which a State had remained inactive is admissible. Satisfying the prerequisites of the unwillingness criteria, laid under article 17, is a difficult task which the Prosecutor must bear. It requires examining the genuineness or the bona fide, or the lack thereof, of States in initiating proceedings. Inability, the other criteria of admissibility, appears to have provided clear conditions as when it can be said that a State is unable to carry out a genuine investigation or prosecution. Whilst helpful, inability’s strict guidelines may restrain the admissibility of cases. Apart from the decision made by the Pre-Trial Chamber relating to cases of inaction, there is no admissibility determination applying article 17 which the Court had made. There are, nevertheless, significant questions that can be raised, and which relate to how article 17 might be construed and applied in practice. The essence of this study is to explore those questions and speculate possible answers
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No full textA/HRC/21/50
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V. International criminal law
14. International criminal law provides the means of enforcement at the international level of penalties for grave violations of customary law, IHRL and serious violations of IHL which are recognized as attracting individual liability. As noted, the ICC tries persons accused of such crimes, namely genocide, crimes against humanity, aggression and war crimes.13 The Rome Statute had been joined by 121 countries as of July 2012.14 Although the Syrian Arab Republic has signed the text, it has not yet become a party. Pursuant to its Article 13 (b), the Security Council can refer the situation of the Syrian Arab Republic to the ICC Prosecutor for investigation. At the time of writing, no such referral has been made.
15. War crimes: A complete listing of which actions constitute war crimes under the Rome Statute is contained within its Article 8. In the context of non-international armed conflict, this comprises serious violations of Common Article 3 and Protocol II, as well as other serious violations of international law.
16. Crimes against humanity: Crimes against humanity are those crimes which ―shock the conscience of humanity‖. Under the Rome Statute, crimes against humanity occur where certain acts are undertaken as part of a widespread or systematic attack against a civilian population where the perpetrator has knowledge of the attack.15 The elements of crimes against humanity are well established in international criminal law:16
1. There must be one or more attacks;
2. The acts of the perpetrator must be part of the attack(s);
3. The attack(s) must be directed against any civilian population;
4. The attack(s) must be widespread or systematic;
5. The perpetrator must know that his or her acts constitute part of a pattern of widespread or systematic crimes directed against a civilian population and know that his or her acts fit into such a pattern.
The underlying ―acts‖ — or crimes — referred to in the above paragraph (2) have been enumerated in the Rome Statute.17 The list includes a number of the violations described elsewhere in this report, for example, unlawful killings;18 enforced disappearances;19 torture
13 See William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford, Oxford University Press, 2010), Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court: Observers‟ Notes, Article by Article 2nd ed., (Oxford, Hart Publishing, 2008) and M. Cherif Bassiouni, International Criminal Law (3 vols.) 3rd ed., (Boston, Martinus Nijhoff, 2008).
14 See http://www.icc-cpi.int.
15 Article 7, Rome Statute. See M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Practice (Cambridge, Cambridge University Press, 2011).
16 The ―Elements of Crimes‖ applied to cases at the International Criminal Court, Available from http://www.icc-cpi.int. See also Prosecutor v. Kunarac et al., IT-96-23-T & IT-96-23/1-T, Judgement, Trial Chamber, 22 February 2001.
17 The list in the Statute includes murder, extermination, enslavement, forcible transfer of population, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence, persecution, enforced disappearance, apartheid and other inhumane acts. See Article 7 (1) (a–k).
18 Listed as murder under Article 7 (1) (a) of the Rome statute. See annex V.
19 Article 7 (1) (h) of the Rome statute. See annex VII
As companhias militares privadas e o direito internacional criminal: o reconhecimento da responsabilidade criminal e da personalidade jurídica dos dirigentes corporativos segundo o Estatuto de Roma
No full textDissertação (mestrado) - Universidade Federal de Santa Catarina, Centro de Ciências Jurídicas, Programa de Pós-Graduação em Direito, Florianópolis, 2012Este trabalho trata das Companhias Militares e de Segurança Privadas, tema o qual vem ganhando relevância no direito e nas relações internacionais, mas ainda não foi recebido adequadamente por tais ciências. A questão das CMSPs é estudada a partir do marco teórico que existem no direito internacional sujeitos ainda não reconhecidos, dentre os quais se encontrariam tais empresas. Para distinguir as CMSPs de outros sujeitos, é realizado um estudo tanto histórico, quanto conceitual de tais empresas e do mercenarismo de um modo mais amplo. Em seguida, busca-se analisar como o direito internacional tenta dar conta de tal fenômeno novo, restando demonstrada a insuficiência dos instrumentos de direito internacional atuais para tratar das CMSPs e a necessidade de aprovação e reforço dos projetos atuais. Finalmente, testam-se as hipóteses de aplicação de institutos do direito criminal internacional a tais CMSPs, possibilitando de certa maneira a sua recepção pelo direito, como novos sujeitos, uma vez que detentores de obrigações.Abstract : This dissertation studies the Private Military and Security Companies, a subject which is gaining relevance in international law and international relations, but has not yet been given a proper reception by those sciences. The issue of the PMSCs is studied from the starting point that there are unrecognized subjects in international law and these corporations are one of them. To distinguish PMSCs from other subjects, a historical and conceptual research is done, not only regarding these companies but also regarding mercenarism within a broader sense. Furthermore, it is sought to analyze how international law attempts to deal with such new phenomenon, resting proven the insufficiency of international law instruments to deal with CMSPs and the need to approve and enforce the current projects on the subject. Finally the possibilities of applying international criminal law mechanisms to PMSCs are tested, allowing somehow for its reception in law, as new subjects, for they hold obligations under international criminal law
A detailed analysis of the problems and pitfalls facing the international criminal court with regards to its jurisdiction over the crime of aggression
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