CRJU309 Cheat Sheet (DRAFT) by Isla23456

1. Court has jurisd­iction over indivi­duals from state-­par­ties; 2. a person who commits a crime within jurisd­iction of ICC = indivi­dually respon­sible & liable for punishment under Statute

Limited to most serious crimes of concern to the intern­ational community = gravity threshold; genocide (genocide conven­tion), CAH (Nuremburg tribunal), war crimes (customary practice), aggression (product of post-war tribun­als); all offences establ­ished in customary int. law

Developed for prosec­ution purposes; broke defini­tions of offences into actus reus & mens rea

1. Signing = accepting jurisd­iction over crimes in Art 5; 2. State Parties - if a state party has either territ­orial (2(a)) or nation­ality (2(b)) jurisd­iction; 3. non-state parties may accept the Jurisd­iction of the ICC by declar­ation.

Arrest warrants for Netanyahu & Hamas leaders - Jurisd­iction = offences take place within territory of state party (Pales­tine); pre-trial chamber determ­ining jurisd­iction: Key argument against jurisd­iction = Palestine not recognised in int. law as a state & territory of non-state cannot est. court jurisd­iction; Counter argument = secretary general has accepted Palestine regist­ration, & UN GA has passed resolution recogn­ising Palestine as a state.

Violation of pacta tertiis rule (you cannot in int. law, adjudicate over the actions of a state that is not a party to the treaty without that states consent). e.g., Monetary Gold case - ICJ refused jurisd­iction b/c state wasn't a party to UN charter. counter argument not violating pacta tertiis rule b/c not over the actions of another state, b/c prosec­uting indivi­duals not entire states. Delegation of jurisd­iction to ICC pro ICC: you can do anything regarding jurisd­iction unless there is a specific rule stopping you (rely on SS Lotus)

referral to prosecutor by (a) state party [must refer whole situation] (b) Security Council acting under Ch VII powers [ gives non-pa­rties authority to refer situations to ICC, or (c) prosecutor launches invest­igation

1. Prosecutor can initiate invest­iga­tions based on info (often from NGOs) 2. Must analyse serious of info 3. Must conclude reasonable basis for invest­igation & submit to PTC for author­isation [if PTC says no, prosecutor can request again w/ new evidence

Relati­onship Agreement betw/ the ICC and UN & RS Art 4: ICC designed to be indepe­ndent instit­ution; stands outside of UN. SC powers under RS: referral (13(b)), deferral (16) [political interf­erence eroding the indepe­ndence]

Gravity Test - 17(1)(d) - "­suf­ficient gravity to justify further action by the court" tested by quant & qual factors re: scale, nature, modus operandi, impact and/or high rank of accused. Comple­men­tarity - Art 17(1) inadmi­ssible if: (a) Case is being invest­iga­ted­/pr­ose­cuted by a state with jurisd­iction, or State is unwilling or unable to genuinely invest­iga­te/­pro­secute, or (b) Case has been invest­igated by a state that has decided not to prosecute, unless the decision resulted from unwill­ingness or inability to genuinely prosecute.

1. Is there activity at nat. level? - Muthara: domestic & ICC invest­iga­tions must contain substa­ntially the same conduct. 2. is qual of activity sufficient to meet the threshold in Art 17. • Comple­men­tarity = aimed at balancing CRJU with state sovere­ignty

Unwill­ingness 17(2)*1. Procee­dings used to shield accused 2. unjust­ified delay 2. procee­dings not indepe­nde­nt/­imp­artial. Inability 17(3) 1. total/­sub­sta­ntial collapse of state’s CRJU 2. unavai­lab­ility of CRJU = state cannot obtain the accuse­d/e­vid­enc­e/o­the­rwise proceed.

P v William Samoei Ruto et al: Kenya challe­nging arrest warrants re: nat. activity. 1. case inadmi­ssible if same suspects invest­igated for substa­ntially same conduct. 2. Being invest­igated = mere prepar­edness not enough, must prove to have taken sufficient invest­igatory action

General duty to comply (86) & finding of non-co­mpl­iance (87(7)) Non-co­mpl­iance by Sth Africa re: request for arrest & surrender of Al-Bashir exceptions to 86: 98(1) if state would have to act incons­ist­ently with the diplomatic or State immunity of a third state; 98(2) if compliance = requested State to act incons­ist­ently with its obliga­tions under intern­ational agreements [US used SOFA agreements to undermine jurisd­iction of ICC]. Punishment 103(1)(a) sentences serves in designated states willing to accept accused

contextual elements link crimes to specific situations - war crimes = violation of rules of armed conflict. Structural requir­ements of applying IHL 1. Must be armed conflict 2. Must be a nexus between crime & armed conflict. 3. Must prove that accused was aware that there was an armed conflict 4. there must be a victim

Hague law - restricts conduct in war: 1. distin­ction between civilian [lawful] & military [unlawful] targets [surre­ndered military = unlawful] 2. minimal military suffering 3. minimal collateral damage. Geneva Law - protection of person­s/p­roperty potent­ially affected: protection of all non-co­mba­tants incl. POWs, injured combatants

1. violation of IHL - must be custom or treaty 2. must be serious (gravity). 3. must entail individual criminal respon­sib­ility. "AC = resort to armed force betw/ states or armed violence betw/ govt & organised armed groups in state

Art 2 Geneva Conv. = armed conflict betw/ states of any gravity including an occupation that meets no resist­ance. catego­ris­ation difficulty 1. wars of national liberation [Addit­ional Protocol I, article 1(4) - fighting against colonial domina­tio­n/alien occupa­tio­n/r­acist regime = int. AC]. 2. Intern­ati­ona­lised non-int. AC - Tadic appeal chamber re: Belgrade involv­ement = "­overall control test"

Art 3 Geneva Conv.: Threshold = enough control over a territory to be able to apply humani­tarian law to themse­lves. If there is a threshold of territory & activity in order to apply law, some degree of organi­sation must exist. P v Ljube Boskoski & John Tarcul­ovski facts of the conflict (frequency of AC, heavy weaponry, etc.) used to est. intensity threshold & relevant facts (no. of members, leadership structure) used to est. organi­sat­ional level. Akayesu: control of territory not necessary but indica­tive. P v Bosco Ntaganda: non-int. AC = at least two organised armed groups + armed violence of a certain intensity.

Art 3 of ICTY = crime closely related to AC. P v Kunarac = 1. entire territ­ories of warring states or parties in internal conflicts 2. Violations of war laws can occur in places­/times without active fighting, if related to conflict. 3. Crimes geogra­phi­cal­ly/­tem­porally remote from combat still = war crimes if tied to hostil­ities elsewhere. 4. AC doesn’t need to cause the crime but must play a signif­icant role in its execution. 5. Acting in furthe­rance of the conflict is enough to link crimes to the conflict.

P v Kordic: nullum crimen sine lege principle does not require accused knowing specific legal definition of each element of a crime he committed; sufficient = aware of the factual circum­stances

Geneva law: distin­ction between lawful targets [military] and victims of AC who are protected [civil­lians, wounded etc.] Hague law: distin­ction between lawful­/un­lawful means/­methods of warfare. victim reflected in these distin­ctions