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Jurisdiction and Admissibility in International Criminal Law

Learn about the concepts of jurisdiction and admissibility in International Criminal Law, including subject matter jurisdiction, territorial jurisdiction, personal jurisdiction, and issues of deferral and universal jurisdiction.

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Jurisdiction and Admissibility in International Criminal Law

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  1. International Criminal Law Master in Laws Cje Lecture III Jurisdiction and Admissibility Karolina Kremens, LL.M., Ph.D. Department of Criminal Procedure Faculty of Law, Administration and Economics University of Wrocław

  2. JURISDICTION AND ADMISSIBILITY • Content 1. JURISDICTION 2. ADMISSIBILITY 3. CRIMINAL RESPONSIBILITY • individual criminal responsibility • command responsibility • mens rea • exclusions of criminal responsibility

  3. JURISDICTION

  4. JURISDICTION AND ADMISSIBILITY • JURISDICTION • rationemateriae (subjectmatter) • ratione temporis (time) • rationeloci (space) • rationepersonae (overindividuals) • issue of deferral • issue of universaljurisdiction • art. 12 (3) of the Rome Statute

  5. JURISDICTION AND ADMISSIBILITY • SUBJECT MATTER JURISDICTION • art. 5 of the Rome Statute • genocide • crimes against humanity • war crimes • aggression (!)

  6. JURISDICTION AND ADMISSIBILITY • TEMPORAL JURISDICTION • art. 11 and art. 126 of the Rome Statute • ICC cannot exercise jurisdiction over crimes committed prior to the entry into force of the Rome Statute • problematic issues: • inability of the ICC to reach into past • nullum crimen sine lege and nullum poena sine lege • „continous crimes”

  7. JURISDICTION AND ADMISSIBILITY • TERRITORIAL JURISDICTION • art. 12 (2) (a) of the Rome Statute • ICC has jurisdiction over crimes committed on the territory of State parties regardless of the nationality of the offender • problematic issues: • meaning of the „territory” • concept of the behaviour creating effects upon the territory • problems of boundaries and dependant territories

  8. JURISDICTION AND ADMISSIBILITY • PERSONAL JURISDICTION • art. 12 (2) (b) of the Rome Statute • ICC has jurisdiction over nationals of State party who are accused of a crime committed under the Rome Statute • problematic issues: • immunities (art. 27 of the Rome Statute) • minors (art. 26 of the Rome Statute)

  9. JURISDICTION AND ADMISSIBILITY • ISSUE OF DEFERRAL • art. 16 of the Rome Statute • deferral – the ICC may be prevented from exercising its jurisdiction when so directed by Security Council • problematic issues: • political decision – highly controversial • SC Resolution 1422 of 12 July 2002

  10. JURISDICTION AND ADMISSIBILITY • ISSUE OF UNIVERSAL JURISDICTION • any State is empowered to bring to trial persons accused of certain international crimes regardless of the place of commission and nationality of the offender or victim • problematic issues: • objections, US opposition • final decision • message from ratifing countries

  11. JURISDICTION AND ADMISSIBILITY • ACCEPTANCE OF JURISDICTION BY THE NON-STATE • the possibility of a non-State party accepting the jurisdiction of the Court on an ad hoc basis • lodging a declaration with the Registrar – declarationacceptingjurisdiction „with respect to the crime in question” • obligation to cooperate with the ICC

  12. ADMISSIBILITY

  13. JURISDICTION AND ADMISSIBILITY • ADMISSIBILITY • tricky problem – how to coordinateactions of the internationaltribunals and courts with nationalcourts • concurrentjurisdiction • primacy of jurisdiction • complementaryjurisdiction

  14. JURISDICTION AND ADMISSIBILITY • ADMISSIBILITY • art. 1 of the Rome Statute • complementarity – ‘ICC […] shall be complementary to nationalcriminaljurisdictions’ • The Court isrequired to rule a caseinadmissiblewhenitisbeingappropriatelydealt with by a nationaljurisdiction (art. 17) • admissibilityarisesafterjurisdiction (‘situations’ and ‘cases’)

  15. JURISDICTION AND ADMISSIBILITY • INADMISSIBLE CASES • caseisinvestigatedorprosecuted by a Statethathasjurisdictionoverit (art. 17 (1)(a)) • casehasbeenalreadyinvestigated and the Statehasdecided not to prosecute (art. 17 (1)(b)) • ne bis in idem (art. 17 (1)(c)) • the caseis not of sufficientgravity (art. 17 (1)(d))

  16. CRIMINAL RESPONSIBILITY

  17. JURISDICTION AND ADMISSIBILITY • CRIMINAL RESPONSIBILITY • individualcriminalresponsibility • responsibility of commanders and othersuperiors • mens rea(mental element) • defences (exclusions of the criminalresponsibility)

  18. JURISDICTION AND ADMISSIBILITY • INDIVIDUAL CRIMINAL RESPONSIBILITY • art. 25 (1) – the Court shallhavejurisdictionovernaturalpersonspursuant to thisStatute • art. 25 (2) – individualcriminalresponsibility • issue of corporatecriminalliability • art. 25 (3) – forms: • commits a crime • orders, solicits, induces • aids, abets and otherwiseassists • commonpurposecomplicity (joint criminalenterprise) • incitement to commitcrime of genocide

  19. JURISDICTION AND ADMISSIBILITY • RESPONSIBILITY OF COMMANDERS AND SUPERIORS • responsibility of commander in absence of proof of order • twoways of prosecuting in case of lack of direct proof • presumptionthatcommandersaredeemed to haveordered the crimescommitted by subordinate • prosecutingcommander for beingnegligent to preventcrime and not for orderingit – approach from art. 28 of the Rome Statute • militarycommanders v. civiliansuperiors

  20. JURISDICTION AND ADMISSIBILITY • MENS REA (MENTAL ELEMENT) • art. 30 of the Rome Statute • intent and knowledge • intent – with respect to conduct and respect to consequences • knowledge – awarnessthat a circumstanceexistsor a consequencewilloccur • but usually in the Rome Statuteeachcrimehasitsownbuild-in mens rea, e.g. intent to destory (genocide) • issue of the actusreus

  21. JURISDICTION AND ADMISSIBILITY • DEFENCES (EXCLUSIONS OF CRIMINAL RESPONSIBILITY) • allgroundswhich for one reasonoranother, hinder the sanctioning of anoffence – despite the factthat the offencehasfulfilledalldefinitionalelements of a crime • art. 31 – grounds for excludinginternationalcriminalresponsibility • art. 32 – mistake of factor law • art. 33 – superior orders and prescription of law • art. 31 (3) – the Court mayacceptotherdefences • art. 67 (1)(e) – right of the accused to raisedefences

  22. JURISDICTION AND ADMISSIBILITY • DEFENCES (EXCLUSIONS OF CRIMINAL RESPONSIBILITY) • excludeddefences • officialcapacity – art. 27 • lack of knowledge (in case of commandresponsibility) – art. 28 • superior orders (in case of genocideorcrimesagainsthumanity) – art. 29

  23. JURISDICTION AND ADMISSIBILITY • DEFENCES (EXCLUSIONS OF CRIMINAL RESPONSIBILITY) • alloweddefences • insanity – art. 31 (1)(a) • intoxication – art. 31 (1)(b) • self-defence and defence of another person – art. 31 (1)(c) • duress – art. 31 (1)(d) • mistake of facts and law • superior orders and prescription of law

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