International Criminal Law - International Bar Association [PDF]

International Criminal Law A Facilitator’s Guide on International Criminal Law for Judges, Prosecutors and Lawyers Supported by a grant from the Open Society Foundations

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INTERNATIONAL CRIMINAL LAW

A Facilitator’s Guide on International Criminal Law for Judges, Prosecutors and Lawyers

Principal Author: Dr Miša Zgonec-Rožej Consultant: John RWD Jones QC

Other Contributors: The IBA wishes to acknowledge and thank Dr Triestino Mariniello for his invaluable assistance in reviewing and providing comments on the present Guide. The publication of the Facilitator’s Guide on International Criminal Law for Judges, Prosecutors and Lawyers was supported by a grant from the Open Society Foundations Material contained in this Guide may be freely quoted or reprinted, provided that credit is given to the IBA.

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INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

CONTENTS List of Acronyms

5

1. Purpose and Use of the Facilitator’s Guide

7

2. Suggested Training Schedule

9

3. Preparation for Delivering Training

11



3.1 Personal preparation

11



3.2 Joint preparation between co-facilitator(s)

11



3.3 Training tips

12



3.3.1 Effective presentation techniques for facilitators

12



3.3.2 Setting the tone

15



3.3.3 Establishing confidence

16



3.3.4 Facilitating discussion

16



3.3.5 Ending

20

4. Opening the Course: Introductory Session

23



4.1 Opening

23



4.2 General objectives of the course

23



4.3 Specific objectives of the introductory session

23



4.4 Main points to be made and key issues for discussion

24



4.5 Session planning chart for the introductory session

25



4.6 Training material

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5. Overview and Questions

27



5.1 Main points to be made and key issues for discussion

27



5.2 Session planning chart for the introductory session

27



5.3 Training material

27

6. Closing Session

29



6.1 Main points to be made and key issues for discussion

29



6.2 Session planning chart for the introductory session

29



6.3 Training material

29

7. Training Sessions



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7.1 Chapter 1: Introduction to international criminal law

31



7.2 Chapter 2: Historical development and the establishment of international courts and tribunals

37



7.3 Chapter 3: Substantive law on international crimes: definitions

50



7.4 Chapter 4: Individual criminal responsibility

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7.5 Chapter 5: Prosecution before national courts 

81



7.6 Chapter 6: Prosecution before international courts and tribunals 

87



7.7 Case studies

100

8. Annexes

111



8.1 International crimes as defined in the Rome Statute of the ICC 

111



8.2 Individual criminal responsibility in the Rome Statute of the ICC

114



8.3 Useful links

119

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INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

List of Acronyms CAR

The Central African Republic

DRC

The Democratic Republic of Congo

ECCC

Extraordinary Chambers in the Court of Cambodia

EEC

Emergency Executive Committee (in case studies)

IBA

International Bar Association

ICC

International Criminal Court

ICC Statute

Rome Statute of the International Criminal Court

ICL

international criminal law

ICTBC

International Criminal Tribunal for Bestania and Cestania (in case studies)

ICTR

International Criminal Tribunal for Rwanda

ICTY

International Criminal Tribunal for the former Yugoslavia

IHL

International Humanitarian Law

IMT

International Military Tribunal

IMTFE

International Military Tribunal for the Far East

JCE

joint criminal enterprise

NGO

non-governmental organisation

SCSL

Special Court for Sierra Leone

STL

Special Tribunal for Lebanon

TFV

Trust Fund for Victims

UN

United Nations

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INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

1. Purpose and Use of the Facilitator’s Guide The training material on International Criminal Law developed by the IBA comprises the International Criminal Law Manual (the ‘Manual’) and the present Facilitator’s Guide. Together, they support the organisation of training on international criminal law for legal professionals, including judges, prosecutors and lawyers. The purpose of these educational resources is to familiarise legal professionals with international criminal law or strengthen their existing knowledge in order to promote understanding of international crimes and how they should be tried. The material aims to enable legal professionals to effectively apply international criminal law principles in their daily professional activities. The ultimate goal is to strengthen international criminal justice worldwide and to assist in capacity-building domestically in order to enable domestic institutions to fight impunity. The Manual provides basic information on international criminal law and jurisprudence of international criminal courts and tribunals. Each chapter addresses a specific area of international criminal law. Each chapter concludes with exercises and case studies of different levels of difficulty. Given the abundance of the material, facilitators will need to use their best judgement to select the most relevant topics, exercises and case studies, which will depend on the duration and nature of the course and the background of participants. The Facilitator’s Guide aims to assist training managers and facilitators engaged in organising the course and is to be used in conjunction with the Manual. The Facilitator’s Guide uses a training methodology that encourages participants to play an active role, contributing their professional expertise to the collaborative study of how to apply international criminal law principles effectively. The Facilitator’s Guide closely follows the structure of the Manual, builds on the content of the Manual by providing additional exercises and case studies, and suggests answers to the exercises and case studies contained in the Manual. The Facilitator’s Guide provides a detailed training schedule for individual training sessions, instructions on how to conduct training sessions and guidance on objectives, and sets out key issues to be discussed during the training. The Facilitator’s Guide also provides sample computer slide presentations to accompany the Manual. These tools should in no way limit the facilitator’s freedom to introduce other useful and thought-provoking questions and exercises, provided they are aimed at meeting the learning objectives of the various sessions. As always, it is for the facilitators to use their experience and talents to guide the audience through the course and at all times assess and reassess the needs of the participants. Accordingly, the materials presented should be used with a substantial degree of flexibility and presentations, examples, exercises, case studies and role-plays provided in the Manual and Facilitator’s Guide may need to be tailored and customised to address the issues of particular interest. The proposed questions are merely indicative of what can be asked. There may be occasions when it might be preferable to ask questions in a more indirect way.

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The session planning charts are only indicative of how the time available can be organised. The time spent on each session will depend on the length of the course itself. The charts are thus examples of what can be done and might need to be adjusted by the organisers in accordance with the time available and the needs of the audience. The Facilitator’s Guide includes three Annexes, the material in which is designed to assist the participants during the training programme, particularly when considering exercises and case studies, and to provide further resources in the field of international criminal law: • International Crimes as Defined in the Rome Statute of the ICC (the ‘ICC Statute’), which provides a list of general (chapeau) elements and a list of underlying (specific) offences of each specific international crime under the ICC Statute; • Individual Criminal Responsibility in the ICC Statute, which provides a list of objective and mental elements of each specific form of international criminal responsibility; and • Useful links to the most important international criminal law documents, international criminal courts and tribunals, online manuals and electronic sources, NGOs and other sources.

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INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

2. Suggested Training Schedule The schedule of each training session depends on the time available. It is recommended that the course should not be shorter than three days. For a three-day course, the proposed training schedule is structured around lectures, each of which is followed by an interactive practical session comprising exercises and case studies and concluded by plenary discussion. Some of the topics for lectures are provided in alternative; the chosen topic will depend on whether the course is delivered to judges, prosecutors or lawyers.

Three-day training course Day 1 0830 – 0900

Registration

0900 – 0930

Opening the course: introductory session

0930 – 1000

Lecture

International criminal law: general Introduction (the Manual: Chapter 1)

1000 – 1100

Lecture

Historical development and the establishment of international courts and tribunals (the Manual: Chapter 2)

1100 – 1115

Break

1115 – 1215

Exercises

Establishment of international courts and tribunals (7.2 of this Guide)

1215 – 1245

Case study

Establishment of international courts and tribunals (7.2 of this Guide)

1245 – 1300

Plenary discussion on the case study

Establishment of international courts and tribunals (7.2 of this Guide)

1300 – 1400

Lunch break

1400 – 1600

Lecture

1600 – 1615

Break

1615 – 1715

Exercises

1715 – 1730

Overview and questions

Substantive law on international crimes: definitions (the Manual: Chapter 3)

Substantive law on international crimes: definitions (7.3 of this Guide)

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Day 2 0830 – 1000

Case study

Substantive law on international crimes: definitions (7.3 of this Guide)

1000 – 1100

Plenary discussion on the case study

Substantive law on international crimes: definitions (7.3 of this Guide)

1100 – 1115

Break

1115 – 1145

Lecture

General principles of criminal law (the Manual: Chapter 4, pp 239–247)

1145 – 1300

Lecture

Forms of individual criminal responsibility (the Manual: Chapter 4, pp 251–292)

1300 – 1400

Lunch break

1400 – 1500

Lecture

Grounds for contesting criminal responsibility (the Manual: Chapter 4, pp 293–238)

1500 – 1600

Case study

Individual criminal responsibility (7.4 of this Guide)

1600 – 1615

Break

1615 – 1715

Plenary discussion on the case study

1715 – 1730

Overview and questions

Individual criminal responsibility (7.4 of this Guide)

Day 3 0830 – 0900

Lecture

Relationship between international and national jurisdictions (the Manual: Chapter 6, pp 380–386)

0900 – 0930

Lecture

Organisation of the international tribunals (the Manual: Chapter 6, pp 391–405)

0930 – 1100

Lecture

Procedure – international criminal trials (the Manual: Chapter 6, pp 407–451)

1100 – 1115

Break

1115 – 1200

Exercises

Prosecution before the international courts and tribunals (7.6 of this Guide)

1200 – 1300

Case study

Prosecution before the international courts and tribunals (7.6 of this Guide)

1300 – 1400

Lunch break

1400 – 1500

Plenary discussion on the case study

Prosecution before the international courts and tribunals (7.6 of this Guide)

1500 – 1530

Lecture

Prosecution before national courts (the Manual: Chapter 5, pp 333–376)

1530 – 1600

Case study

Prosecution before national courts (7.5 of this Guide)

1600 – 1615

Break

1615 – 1645

Plenary discussion on the case study

1645 – 1715

Overview and questions

1715 – 1730

Closing session

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Prosecution before national courts (7.5 of this Guide)

INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

3. Preparation for the Training 3.1 Personal preparation Preparation by facilitators is key to delivering successful training. Here are some guidelines to help facilitators assess whether they know the material well enough to deliver effective training. Take your time Standard preparation time is three hours’ preparation for every hour of speaking. This may seem excessive, but a commitment to preparation is worth the time spent. Learn your material Know the material inside and out. As you prepare, make notes on the information so you can use the training material as a resource, not a crutch, and can answer questions correctly and confidently with an ability to refer participants to appropriate sections of the Manual if required. Aim not to read from a script working instead from notes or bullet points; you will sound more natural and you will find it easier to maintain eye-contact with the audience. Use your own words The training sessions will be more interesting for participants, and you will be more confident in delivering your material, if you know the key points well enough to be able to express them in your own style. Use your experience to illustrate the point Personalising information with your own anecdotes, stories and examples will bring the training material to life and make content more memorable. Recommended reading Reviewing the recommended reading for your lectures and seminars will improve your overall knowledge of the subject and is good preparation for Q&A sessions.

3.2 Joint preparation between co-facilitators Most training sessions will be conducted by more than one person, in which case it is important for co-facilitators to work as a team. It is advisable for facilitators to agree how best to support each another during the training sessions. While some facilitators do not mind co-facilitators interjecting during their seminar, others may feel offended by such behaviour. To avoid any misunderstanding or offence, facilitators should agree a strategy during the preparation phase. At the very least, ask permission from the facilitator leading the training session before speaking. INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

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Withhold all constructive criticism or corrections on your co-facilitator’s seminar until after the training when you have a chance to debrief in private. Never undermine your co-facilitator in front of the participants, unless what they have said is offensive or plainly wrong. Be sensitive when vocalising your concerns and try to provide positive criticism rather than being openly critical. The following are some questions to discuss with your co-facilitator(s): • How do you want to divide up the lectures and practical trainings sessions (unless this has been done by the organiser)? • Do you mind if I interject with my own anecdotes, ideas or responses to questions while you are teaching? • Do you mind if I prepare the material for the next lecture while you are teaching? • Do you want me to keep notes while you lead the discussions? • If we are running short on time, which areas in the training schedule or presentations can be omitted? • How can I best support you? • When the presentations and practical training sessions are over, shall we debrief and give each other feedback?

3.3 Training tips 3.3.1 Effective presentation techniques for the facilitators In order to ensure that your presentation is effective, you must consider the following techniques:

Appearance

Delivery

Organisation

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INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

Appearance Confident communication

• Aim to look confident, pleasant and relaxed. • Take a few deep breaths before speaking to control nerves and to project your voice better. The importance of non-verbal communication

• Appearance: dress in a way that is appropriate to the audience; in most contexts, this will mean professional attire. • Posture: stand up straight, relax your shoulders and hold your head high; a confident posture will give you confidence and instil confidence in your audience. • Eye contact: maintain eye contact with participants, as this will encourage discussion and allow you to see whether participants are engaged. • Move towards participants and walk around every now and again if you are standing to present to keep participants’ attention. • Gestures: hand gestures can reinforce words; use gestures to foster enthusiasm and to show that you are open to participation. But avoid fidgeting, as it may distract the audience from the content of your seminar. • Smile: participants are more likely to speak openly in a friendly and welcoming environment. How to use visual aids

• Stick to what is relevant: presentation slides should support, not substitute, what you are saying. • Visualise the verbal: ensure content aids understanding and memorisation. • Unambiguity: the content of the message behind the presentation slides should be clear to both you and participants. • Visibility: ensure the presentation slides can be seen by all participants. • Clarity: ensure you can explain the content of your presentation slides. • Patience: let the audience read the content on the presentation slides before you begin speaking so that they have time to assimilate the information. • Courtesy: use limited written content on the presentation slides where the session is delivered though interpreters.

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Delivery Voice projection

• Ensure the audience can hear you; test the microphone or ask for confirmation before you start presenting. • Vary the tone of your voice to keep the audience alert and to emphasise key sections of your presentation. • Use silence to your advantage; a pause can emphasise the importance of what you are saying and allow participants time to digest the information and interject. Working through interpreters

• Speak more slowly than you would normally to allow for interpretation. • Avoid using words and expressions that are ambiguous or idiomatic, unless explained clearly, for the sake of the audience as much as interpreters. • Allow the interpreter to finish the section being interpreted before you start speaking again. • Where citing lengthy texts, pause after reading individual sections to allow the interpreter to interpret one section at a time. • Provide interpreters in advance with any written material to be used during presentations to give them time to consider the text and its translation. • Consider the qualifications and background of your interpreters carefully; the interpreters’ ability to converse in participants’ own dialect will facilitate understanding, while the ethnicity or political leaning of interpreters, if different from the group, may hamper free discussion. • Be thankful to the interpreters; they have a difficult job and are invaluable in ensuring the smooth flow of dialogue. Communication ethics

• Create a welcoming atmosphere that is conducive to interactive learning. • Be courteous and sensitive to the nuance of terms and words used. • Deliver a balanced seminar, or be prepared to justify bias. • Present facts fairly and accurately and acknowledge your sources. • Use simple and clear but professional language. • Engage with the person asking a question by listening actively; this means nodding, making encouraging noises and maintaining eye contact with the speaker. • Apologise when needed.

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INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

• Be honest and straightforward and encourage participants to be likewise. • Praise more and criticise less. Organisation Whiteboards and flipcharts

• Write up content ahead of time if possible. • Avoid turning your back to the audience while writing on the board. • Use legible and appropriately-sized handwriting. • Follow a logical sequence when placing information on the board. • Clean the board when done. Visual aids

• Use presentation slides to provide a structure to your presentation and to highlight key points. • Use pictures, drawing and posters to provide light relief during a presentation and make information easier to memorise. Microphone and podium

• Ensure the microphone works in advance before the session starts and contact the venue host if there are any problems. • Ensure that you can see your notes when standing at the podium. Equipment

• Ensure that you understand how to work all equipment that you will be using during the seminar. • Ensure electrical cables trailing across the floor are covered with tape as a safety-precaution. • Prepare a back-up plan in case of technical problems. 3.3.2 Setting the tone Know your audience Find out as much as you can about your audience in advance; for example, gender ratio and professional and religious backgrounds. Make a powerful start Think of creative ways to start the session – ask the audience a question, deliver a thought-provoking statement or tell an anecdote.

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Icebreakers These are short activities that get participants energised and feeling comfortable with each other. They help set an enthusiastic tone for the training and encourage active engagement with content to follow. Invite participants to suggest their own icebreaker to make it a more fun and proactive exercise for the group. 3.3.3 Establishing confidence Reassure yourself The participants are not there to see you perform; they are there to learn. People are not scrutinising you or waiting for you to make a mistake. The participants want you to succeed because that means the training session will be more interesting and valuable for them. Nerves Do not apologise for nervousness; just keep moving through the material. Indeed, your audience are unlikely to notice that you are nervous. Reframe Feeling nervous and feeling excited are very similar. Harness your nervous energy and turn it into enthusiasm. Be natural Resist imitating another’s style; concentrating on presenting like someone else will take your focus away from the material, which creates anxiety. Know your first line and the transition to the main point Memorising the introduction to the training can dissipate anxiety and help you begin with confidence. Rest up and eat well Training requires a lot of energy, enthusiasm and focus. Presenting for several hours can be mentally and emotionally exhausting; eat and rest well so that you are physically and psychologically alert. 3.3.4 Facilitating discussion Including time for discussion during the seminar is often more effective than simply delivering a lecture because participants’ own experiences and reflections become part of the learning process. Actively engaged participants are also more likely to recall and use the information outside the confines of the training. However, leading an interactive training can be challenging and requires confident facilitation skills. 16

INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

Leading or directing The role of the facilitator is to lead the discussion, not direct it. As a leader, you should focus on eliciting ideas from participants, rather than dominating the discussion with your own ideas and experiences. The following tips should help you facilitate rather than direct: • Be enthusiastic about the topic and the training programme. • Ask and encourage questions and observations. • Be polite when rejecting an incorrect answer. • Keep your own contributions brief during group discussions. Let participants respond to each other’s questions first. • Use silence to give participants time to think about a response to a question before you tell them the answer. Count to ten; if you do not get a response, rephrase the question. If still no response, prompt the group with an answer and ask for other contributions. • Encourage the participation of people who have been quieter. One way to do this is to state the participant’s name first and ask the participant an opinion question with no correct answer. You can avoid putting the participant on the spot by asking a question you know they can easily respond to. Questions To encourage audience interaction, it is incumbent upon facilitators to pose stimulating and intriguing questions or topics for discussion. Here are some tips for asking questions that stimulate discussion: • Ask ‘what’, ‘where’, ‘when’, ‘why’ and ‘how’ questions in place of those only eliciting a ‘yes’ or ‘no’ answer. • Ask participants to reflect on their past experiences instead of imagining a hypothetical situation (for example, introduce ‘think back’ questions) when trying to engage participants in a discussion about their own experiences. • Ask clear and concise questions and make sure that your questions only cover one issue at a time. • Phrase questions in a way that does not betray your opinion and that does not guide participants’ answer. • If no one responds to your question, ask the question in a different way or suggest an answer and ask for alternatives. • Listen actively even if someone gives an incorrect response. Then, politely indicate where the information is incorrect and redirect the question to the whole group. • As a facilitator, one of the most common questions you will ask is: ‘Does anyone have any questions?’ If, in response, you are asked questions you think the group can answer, redirect them to the group to encourage active learning.

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Checking comprehension It is important to ensure that participants understand what you are saying and can follow the content of lectures and seminars. You should regularly check that participants comprehend what has been said. • Ask the occasional question based on seminar content to check understanding and remind participants to indicate if something is unclear. • When setting an exercise, explain instructions clearly and slowly and ask for confirmation that instructions are clear. • Participants also need to understand their colleagues’ interventions. If an intervention is unclear, ask the speaker to repeat themselves or summarise the remarks yourself. If a participant is speaking too quietly, remind the participant to speak louder so that everyone can hear. Summarising Close each presentation or seminar by reviewing what has been discussed and so collating key issues and ideas and establish the basis for further discussion. Ideally the facilitator should sum up at regular intervals throughout the discussion to ensure that participants understand what is being discussed and the direction the discussion is moving in. Managing Q&A sessions Time is allocated at the end of each presentation for questions from participants and general discussion. Q&A sessions will need to be managed carefully by the facilitator or by the session chair to ensure that as many participants as possible are able to contribute. Where a number of participants wish to contribute, it is advised to have a strategy in place to stagger questions. • Ask those who want to contribute to raise their hand. • Assign each contributor with a number; the participant will then pose his or her question according to the number allocated. • The facilitator calls on people when it is their turn. • Take three questions at a time and respond to these questions first before inviting others from the floor. • When the last person has spoken, the facilitator checks for additional speakers. Difficult situations Discussion dominators, irrelevant or off-topic interventions

Time is limited during training sessions and it is therefore important for all participants to have the opportunity and be encouraged to contribute. Where one participant speaks a disproportionate amount or where interventions are not relevant to discussion focus, this limits time for free contribution from other group members, therefore limiting participants’ active learning. It may seem

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INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

intimidating to minimise irrelevant interventions or the number of interventions by the same few participants, but it is important to do so. Wait for a natural pause in the contributor’s intervention and interject; respectfully acknowledge the contribution and suggest that it is time to hear from other group members or, depending on context, that the contribution is not directly relevant to the present discussion and should be offered at a later stage. Silence

Questions that stimulated interesting discussions with one group may provoke no response from another. Do not worry; groups of participants with a similar background may be interested in different topics or have had different experiences. It may however be helpful to try to understand why participants are not responding. The following rhetorical questions might help you understand the silence. Did you ask a question that was difficult for the participants to understand?

Rephrase or reword the question; alternatively, ask a complex question as a series of shorter questions. Did you ask a sensitive question?

Prepare participants before introducing sensitive topics. This should be done during the seminar introduction or while the group is setting ground rules. Acknowledge that you recognise that elements of the topic may be difficult to discuss, but emphasise that it is important to explore such issues to promote understanding. Do participants have no more to say about the topic?

Check that discussion on the topic has indeed been exhausted and break or proceed to the next topic. Do people feel uncomfortable talking in a group setting?

Revisit the suggestions on ‘Communication ethics’ above and the need to create a welcoming environment. If participants are unwilling to speak, introduce a topic for discussion that will put participants at ease or encourage general discussion. Return to the content of the training session only when participants seem ready to engage with the topic. Side conversations

Stress that private conversation during presentations or plenary is disrupting and distracting. Only if appropriate signs to those engaged in the side conversation have no effect should you call for the side conversation to stop, as requesting silence may disrupt the main speaker. You might subsequently respectfully remind participants that private conversation should be limited to break times.

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Interpersonal conflict

Do not allow arguments between participants as they necessarily disrupt the seminar and are likely to exclude the majority of the group. If two or more people in the group begin a heated discussion, call for order immediately. If you can, defuse the situation with humour and make it clear that such a form of discussion is not appropriate. If the argument becomes aggressive, ask the individuals involved to leave the room. 3.3.5 Ending Powerful ending End your session in a way that maximises the participants’ level of recall. For example, repeat or summarise important points or end with a quotation or wise saying. Thanking Thank everyone for their interventions and attention and, if appropriate, thank interpreters for their hard work. Introducing the next session Inform participants of the topics and activities that will follow in the next session so they can prepare. Debriefing Utilise the time allocated for debriefing in the suggested training schedule during the closing session. Debriefing is essential for obtaining feedback from participants and is not only beneficial for the facilitators, who can use the feedback to improve subsequent training, but also for participants, as an opportunity to express their views on the programme. Some guidelines for a successful debriefing include: Make the objective clear

Ensure participants understand that the debriefing helps you gain an understanding of whether their expectations were met and how the training can be improved for future participants. Keep the discussion focused

Ask for constructive feedback relating to the current training programme only. Encourage feedback

Tell the participants how much you value their observations and ideas, thanking each person for their contribution.

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INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

Debriefing should be mandatory

Ensure debriefing takes place during the allocated period so that participants do not leave before providing feedback. Closing At the end of the session, instead of immediately collecting your materials or leaving the room, make yourself available to speak to participants who have further questions or comments they did not want to share with the group, or who want to thank you. A training programme will be far more effective if participants feel able to flag important issues in private.

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4. Opening the Course: the Introductory Session 4.1 Opening Once everyone is seated, the facilitator should welcome everyone to the course. Those leading or coordinating the session should then introduce themselves and the course. The facilitator should invite all participants to introduce themselves to the group, giving their name and profession, and their nationality if the training is organised for participants from more than one country. It may be helpful if participants are also asked to outline their professional and/or academic experience in international criminal law and to state their expectations from the course.

4.2 General objectives of the course The overall objectives of the course for judges, prosecutors and lawyers are for participants to: • Understand international crimes and forms of individual criminal responsibility; • Understand how those responsible for international crimes should be brought to justice; • Integrate this new knowledge into participants’ legal thinking and recognise the relevance of international criminal law to their professional activities; • Develop the skills necessary to transform that knowledge into practice; • Recognise their professional role in the fight against impunity and understand the mechanisms for ensuring accountability for international crimes; and • Contribute to the evaluation of the course and its improvements.

4.3 Specific objectives of the introductory session The specific objectives of the introductory session are to: • Open the training programme and create a welcoming collaborative working environment; • Introduce participants to programme objectives; • Outline the topics to be covered; • Outline the methodology to be used; • Emphasise the importance of participants’ taking an active part in the course; • Allow participants to introduce themselves and outline their expectations for the training programme; and • Set the ground rules (see 4.4 below).

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4.4 Main points to be made and key issues for discussion The facilitator should give an overview of the training programme and introduce the training material, including the Manual, the ICC Statute and Annexes to this Facilitator’s Guide. The training programme schedule should be posted on the wall of the conference room and copies distributed to participants. The facilitator should explain the structure of the training programme, namely that each training session is structured around lectures with exercises and case studies to supplement and build on content. The facilitator should clarify the role of the participants as active contributors and outline the nature of the tasks expected of them. It may be useful to set ground rules at the outset of the training programme. Ground rules help to establish a respectful and professional working environment and are a reminder of the way participants are expected to interact with one another and the facilitators. The ground rules might include: • Everyone is encouraged to participate; • Priority to be given to those participants who have not yet contributed during a session; • Participants to return from breaks on time so that seminars can start punctually; • Silence to be interpreted as agreement; • Everyone is both an expert and learner; • Disagreement is acceptable, but it is unacceptable to be disagreeable; • There may be no right or wrong answer; • All responses are of equal value; and • There is to be an atmosphere of respect and patience. Participant introductions The focus of the training programme should be dictated by the professional background and needs of participants. It is therefore useful to allow several minutes for participants to introduce themselves and outline their expectations for the training programme. These brief introductions will also help facilitators evaluate whether the programme met its objectives and expectations.

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4.5 Session planning chart for the introductory session Key points/activities

Method

1. Welcome participants and introduce presenters

• Presentation

3 minutes

2. Introduction of participants

• Presentation

7 minutes

3. Introductory session:

• Presentation and discussion

Flipchart, computer slides, training programme schedule

10 minutes

• Presentation and discussion

Flipchart

10 minutes

a. general objectives of the course; b. specific topics; c. outline of course methodology;

Media

Time

d. outline of course materials and sessions; and e. evaluation and feedback. 4. Participant interventions: a. expectations from the course; b. relevant experiences in international criminal law; and c. outline of a recent international criminal law event/element in their work.

• Facilitator or participants summarise main points on flip chart • Time should be left for questions and answers

Total time: 30 minutes

4.6 Training material Computer slides • Introductory session • Learning objectives • Topics covered by the training on international criminal law • Methodology Handouts (to be prepared by the facilitator for each course) • Facilitators’ biographies (brief) • Attendance list for signature by participants at the start of each session • List containing participants’ names and addresses, for correction if necessary • Training programme schedule

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5. Overview and Questions The last 30 minutes of each session should be reserved for a period of reflection on the day’s discussions.

5.1 Main points to be made and key issues for discussion The facilitator should do the following: • Revisit key topics discussed during the session; • Highlight the most important issues; • Invite participants to ask any remaining questions; and • Invite participants to make last comments or observations. Before participants leave, provide a brief overview of the session for the following day and encourage participants to familiarise themselves with the topic to be considered.

5.2 Session planning chart for the introductory session Key points/activities

Method

Media

Time

1. Overview of:

• Presentation

Flipchart, computer slides

5 minutes

• Q&A and discussion

Flipchart

5 minutes

• Presentation

Flipchart, computer slides

5 minutes

a. all the major topics discussed; and b. the most important issues that have arisen during the discussions. 2. Q & A:

• Facilitators summaries main points on flipchart

a. outstanding questions; and b. additional comments. 3. Overview of the next day’s session.

Total time: 15 minutes

5.3 Training material 3-day training Computer slides 1. Overview 2. Overview: day 1 3. Overview: day 2 4. Overview: day 3

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6. Closing Session 6.1 Main points to be made and key issues for discussion Use the closing plenary to obtain an overall assessment of the training programme. Invite participants to provide feedback on the content and delivery of individual training sessions and the organisation of the course as a whole and to suggest improvements. For this purpose, distribute a training programme evaluation form, which participants must complete before leaving. The evaluation form should ask the participants to assess each lecture and practical session, the knowledge and delivery of facilitators and effectiveness of the training and to give specific recommendations for improvement of the training. Finally, thank the participants for their attention and contributions during the training.

6.2 Session planning chart for the introductory session Key points/activities

Method

Media

Time

1. Assessment of the training

Participants complete training programme evaluation questionnaire

Evaluation form

13 minutes

2. Closing of the training

Presentation

2 minutes Total time: 15 minutes

6.3 Training material An evaluation questionnaire is to be distributed to each participant.

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7. Training Sessions 7.1 Chapter 1: Introduction to international criminal law Note to facilitators Chapter 1 of the Manual describes the origin and meaning of international criminal law, the concept of an international crime and sources of international criminal law. It also explains the scope of international criminal law and its relationship with other areas of law and the concept of ‘transitional justice’. It concludes by examining the role of the legal profession in bringing to justice perpetrators of international crimes. Participants may be familiar with the basic issues dealt with in Chapter 1 so the facilitator will have to assess how much time to dedicate to revision. Participants must however understand all the basic concepts discussed in Chapter 1 from the outset, since these concepts provide the basis and the framework for the questions dealt with in following chapters. Chapter 1 issues are presented in the format of one 30-minute lecture. It is important to engage participants in the discussion and invite them to share their experience on the subjects raised. In order to facilitate the discussion example questions are provided below. Objectives of the chapter/session The objectives of Chapter 1 are to ensure that participants: • Understand the origin, meaning and the general characteristics of international criminal law; • Understand the meaning and the general characteristics of an international crime, including the similarities and differences between ‘core’ crimes, falling within the jurisdiction of international criminal tribunals, and international crimes in the broader sense, as well as the distinction between core crimes and ordinary crimes, punishable before domestic courts; • Are familiar with the sources of international criminal law; • Understand the scope of international criminal law, particularly its relation to international law concerning state responsibility, criminal law, transnational criminal law, human rights law, law on use of force and IHL; • Understand the concept of ‘transitional justice’; and • Appreciate the important role the legal profession has to play in bringing to justice perpetrators of international crimes and how international criminal law is relevant to their own national context.

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Main points to be made and key issues for discussion The points to be made and issues to be discussed will depend on the knowledge and experience of the audience and are likely to vary from course to course. However, the main points to be brought out and key issues to be raised during the consideration of Chapter 1 will be: • The concept of international criminal law, including its origin, meaning and purpose; • The concept of an international crime, including the similarities and differences between core crimes, falling within the jurisdiction of international criminal courts, and international crimes in the broader sense as well as the distinction between the core crimes and ordinary crimes, punishable by domestic courts; • Why international criminal law is important at the national and international levels; • The sources of international criminal law, including international treaties, customary international law, general principles and subsidiary means; • The scope of international criminal law and its relation to international law concerning state responsibility, criminal law, transnational criminal law, human rights law, law on use of force and IHL (law of war or law of armed conflicts); • The concept of ‘transitional justice’ involving other mechanisms to ensure accountability, justice and reconciliation; • The legal sources of international criminal law relevant to the countries in which the participants carry out their professional activities; and • The ways of using international criminal law before the domestic courts and other authorities in the countries in which the participants carry out their professional activities.

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Session planning chart for the introductory session Key points/activities

Method

Media

Time

1. Objectives of the chapter

• Presentation

Computer slides

5 minutes

2. Presentation of Chapter 1 points to be made and issues to be discussed:

• Presentation by facilitators

Flipchart, computer slides

25 minutes

Flipchart

(30–60 minutes)

a. the origin, meaning and scope of international criminal law; b. the meaning of an international crime; c. the sources of international criminal law; and

• Presentation by participants who received the Manual prior to the trainings and have prepared a presentation • Facilitators summarise and clarify/ correct substantive law • Discussion

d. the role of the legal profession in the implementation of international criminal law. 3. Case study (optional)

• Group work • Group rapporteurs report back on group discussion • Whole group discussion • Facilitators summarise and clarify/ correct substance

Total time: 30 minutes (60–90 minutes)

Training material Computer slides 1. Introduction to international criminal law 2. Learning objectives 3. Overview 4. International criminal law I 5. International criminal law II 6. International criminal law III 7. International crime I 8. International crime II 9. Sources of international criminal law 10. International treaties 11. International treaties I 12. Customary international law II 13. General principles

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14. Subsidiary means 15. Scope of international criminal law: ICL versus state responsibility 16. Scope of international criminal law: ICL versus criminal law 17. Scope of international criminal law: ICL versus human rights I 18. Scope of international criminal law: ICL versus human rights II 19. Scope of international criminal law: law on use of force versus law of war 20. Scope of international criminal law: ICL versus law on the use of force 21. Scope of international criminal law: ICL versus IHL I 22. Scope of international criminal law: ICL versus IHL II 23. ‘Transitional justice’ I 24. ‘Transitional justice’ II Questions for discussion The following are examples of the questions that may be asked to the participants in order to facilitate discussion (more questions are provided on p 23 of the Manual): • Why did you want to join the course? • Why is international criminal law important? • Has your country been involved in a conflict, either of an international or internal character? • Have those responsible for international crimes been brought to justice? • Why is international criminal law important in the country where you are professionally active? • How do you, as judges, prosecutors and/or lawyers, see your role in promoting understanding of international crimes and how should they be tried in the exercise of your professional duties? • What specific problems, if any, have you faced with regard to bringing to justice perpetrators of international crimes? • Are there any alternatives to international criminal law? • What are the most effective means for ensuring justice for international crimes? Handouts • Rome Statute of the ICC (the ‘ICC Statute’), available at www.icc-cpi.int/NR/rdonlyres/ ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf; and • United Nations Charter, available at www.un.org/en/documents/charter. • Computer slides printed as handouts (optional). 34

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Case study Instructions Have participants read Scenario No 1 which is provided at pp 43–45 of the Manual and on p 101 of this Guide. Divide the audience into small groups of three to five. Each group should assign a rapporteur, whose task will be to report back on the group’s discussion during plenary. The groups should have a flipchart available for their work. As a group, participants should discuss the questions below with reference to the ICC Statute. If time is limited, allocate a selection of questions to each group. On return to plenary, invite group rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions 1. What crimes were committed in the conflict: a. by Astanian army forces? b. by Bestanian army forces? c. by Bestanian rebel army? d. by Bata? e. by Zeba? 2. Who can be held responsible for the crimes committed during the conflict? 3. Does it matter for the prosecution of war crimes whether a person acts as an agent of state (in an official capacity) or in a private capacity? 4. Does the declaration of war render armed conflict legally justified? Can the declaration of war prevent prosecution for the crime of aggression? 5. Which court would be competent to try each of the crimes above? 6. Would domestic courts of the states in armed conflict be competent to try war criminals? If so, under what conditions? 7. What was the nature of the conflict? Does international criminal law apply only to international conflicts or does it also cover internal conflicts?

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Answers Commentary

The purpose of this case study is for participants to enhance their understanding of international crimes and the distinction between core international crimes and other international crimes and ordinary crimes. At this stage, participants will not be familiar with definitions of core international crimes so it is not expected that they will recognise specific elements of these crimes. Do not expect participants to refer to specific provisions in the ICC Statute, as they will be asked to do so during the Chapter 3 case study. Answers 1. Crimes committed: a. by Astanian army forces: core international crimes including war crimes, crimes against humanity, genocide (by Colonel Butel) and possibly aggression; b. by Bestanian army forces: core international crimes, including war crimes and crimes against humanity and possibly aggression; c. by Bestanian rebel army: core international crimes, including war crimes and crimes against humanity; d. by Bata: robbery (note, this is an ordinary crime, not an international crime); e. by Zeba: drug trafficking (note: this is an international crime in a broader sense, but not a core international crime). See also the Manual, pp 26–29. 2. International criminal law does not merely hold responsible the person who ‘pulls the trigger’, meaning the one who directly perpetrates the crime, but also holds people criminally responsible on the basis of other forms of individual criminal responsibility. For example, political leaders and military commanders rarely directly perpetrate an international crime, but they may commit international crimes through other individuals or participate in the commission of crimes in other ways such as by ordering or planning the commission of the crime. Forms of individual criminal responsibility will be discussed during the case study exercise under Chapter 4 of this Guide. 3. In order to prosecute a war crime, it does not matter whether a person acts as an agent of a state (in official capacity) or in a private capacity. See the Manual, p 25. 4. A declaration of war does not render armed conflict legally justified. The declaration of war cannot prevent prosecution for the crime of aggression. See the Manual, pp 40–41. 5. The ICC could deal with the international crimes falling within its jurisdiction provided that the states involved in the conflict had ratified the ICC Statute; if these states have not ratified the ICC Statute, the Security Council may refer the situation in these states to the ICC. Alternatively, the Security Council may set up an ad hoc international criminal tribunal under Chapter VII

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of the UN Charter to prosecute and try the crimes committed during the conflict. Another option is for the states involved to conclude an agreement with the UN to establish a mixed or internationalised criminal court. See further the Manual, Chapter 2, pp 47–80. 6. Domestic courts of states in armed conflict are competent to try war criminals provided that they are independent and impartial. It is important for states to incorporate in their domestic legislation definitions of international crimes and to ensure the protection of fair trial principles with full respect of the rights of the accused. 7. The conflict between the Astanian army forces and Bestanian rebel group is prima facie internal armed conflict. However, as soon as Bestanian army forces intervene in the conflict and send army troops into Astania to assist Bestanian rebel forces, the conflict becomes international armed conflict. International criminal law applies to international as well as internal armed conflicts.

7.2 Chapter 2: Historical development and the establishment of international courts and tribunals Note to facilitators Chapter 2 of the Manual describes the historical background of international criminal law and provides an overview of international courts and tribunals as well as of mixed and internationalised criminal court or tribunals, their establishment, jurisdiction and organisation. Chapter 2 also describes alternatives to criminal prosecution, including Truth and Reconciliation Commissions and amnesties. Chapter 2 material is presented in the format of a lecture, Q&A exercises and a case study with plenary discussion. Objectives of the chapter/session The objectives of Chapter 2 are to: • Familiarise participants with the historical background of international criminal law, attempts to bring war criminals to justice and the conduct of international war crimes trials after the Second World War; • Familiarise participants with the second generation of international courts and tribunals, including the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda and the ICC; • Familiarise participants with internationalised or mixed criminal courts and tribunals, their common characteristics and their modalities; and • Provide an understanding of alternatives to criminal prosecution.

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Main points to be made and key issues for discussion The points to be made and issues to be discussed will depend on the knowledge and experience of the audience and are likely to vary from course to course. However, the main points to be brought out and key issues to be raised during the consideration of Chapter 2 will be: • The purpose, role and the goals of international criminal courts; • The legacy and achievements of the first generation of international criminal tribunals, the Nuremberg and Tokyo tribunals; • The legal basis, structure, jurisdiction and organisation of the various international criminal courts and tribunals, particularly the ICC; • The advantages and disadvantages of specific modalities of the establishment of an international criminal tribunal; and • The relevance of alternatives to criminal prosecution, including the role of Truth and Reconciliation Commissions and amnesties. Session planning chart for chapter 2 Key points/activities

Method

Media

Time

1. Objectives of the chapter

• Presentation

Computer slides

5 minutes

2. Presentation of Chapter 2 points to be made and issues to be discussed:

• Presentation by facilitators

Flipchart, computer slides, handouts

55 minutes

Flipchart

60 minutes

a. the role, purpose and goals of international criminal courts; b. Nuremberg and Tokyo trials c. ICTY & ICTR; e. ICC;

• Presentation by the participants who received the Manual prior to the trainings and have prepared a presentation • Facilitators summarise and clarify/ correct substantive law • Discussion

d. mixed international criminal courts; and f. alternatives to criminal prosecution. 3. Exercise No 1

• Group work;

Exercise No 2 (optional)

• Group rapporteurs report back on group discussion

(Optional exercise: 30–60 minutes)

• Whole group discussion • Facilitators summarise and clarify/ correct substance 4. Case study

• Group work

Flipchart

5. Plenary discussion on the case study

• Group rapporteurs report back on group discussion

30 minutes 15 minutes

• Whole group discussion • Facilitators summarise and clarify/ correct substance Total time: 165 minutes (195–225 minutes)

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Training material Computer slides 1. Historic development and the establishment of international courts and tribunals 2. Learning objectives 3. Overview 4. Why do we need international courts? 5. Historical background 6. IMT: Nuremberg war crimes trial 7. IMTFE: Tokyo war crimes trial 8. First generation of international tribunals 9. Second generation of international tribunals 10. International Criminal Tribunal for the Former Yugoslavia (ICTY) 11. ICTY jurisdiction 12. International Criminal Tribunal for Rwanda (ICTR) 13. ICTR jurisdiction 14. Legal basis: ICTY and ICTR 15. ICTY versus ICTR 16. Key figures (March 2013) (to be updated by facilitators) 17. International Criminal Court (ICC) 18. Characteristics of the ICC 19. States Parties to the ICC Statute 20. ICC jurisdiction 21. ICC jurisdiction ratione temporis 22. Accepting jurisdiction 23. Accepting jurisdiction: examples 24. Initiating proceedings 25. Role of the UN Security Council I 26. Role of the UN Security Council II 27. Deferral

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28. Article 98 agreements 29. State referrals 30. Investigations proprio motu 31. Preliminary investigations (to be updated by the facilitators) 32. Mixed courts I 33. Mixed courts II 34. Special Court for Sierra Leone (SCSL) 35. SCSL jurisdiction 36. SCSL: cases 37. Special Tribunal for Lebanon (STL) 38. STL jurisdiction 39. STL: cases 40. Cambodia: Extraordinary Chambers (ECCC) 41. ECCC jurisdiction 42. ECCC: cases 43. Alternatives to criminal prosecution Questions for discussion The following are examples of the questions that may be asked to the participants in order to facilitate discussion (more questions are provided on p 47 of the Manual): • How was your country involved or affected by the First and Second World Wars? • Have the achievements of the first international military tribunals been reflected in your country’s criminal legal systems? • Has your country been involved in any other armed conflict of an international or internal nature? • Who has competence to prosecute and conduct trials for perpetrators of international crimes? • What is the legal basis for the establishment of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda? • Has your country participated in the creation of the ICC? Is your country a party to the ICC Statute? • What is meant by ‘mixed’, ‘internationalised’ or ‘hybrid’ international criminal courts or tribunals? What do they have in common? • Have you worked at any of the international, mixed or internationalised courts or tribunals? If so, what was your function and what lessons did you take from the experience? 40

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Handouts • Security Council Resolution 827 (1993) on the establishment of the ICTY (available at http:// daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/306/28/IMG/N9330628.pdf?OpenElement) • Security Council Resolution 955 (1994) establishing the ICTR (available at http://daccess-dds-ny. un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097.pdf?OpenElement) • Security Council Resolution 1757 (2007) establishing the STL (available at http://daccess-dds-ny. un.org/doc/UNDOC/GEN/N07/363/57/PDF/N0736357.pdf?OpenElement) • The Office of the Prosecutor of the International Criminal Court, Report on Preliminary Examination activities 2012 (to be updated by the facilitators) (available at www. icc-cpi.int/NR/rdonlyres/C433C462-7C4E-4358-8A72-8D99FD00E8CD/285209/ OTP2012ReportonPreliminaryExaminations22Nov2012.pdf) • Agreement between the United Nations and the Government of Sierra Leone on the establishment of a Special Court for Sierra Leone (2002)(available at www.sc-sl.org/LinkClick. aspx?fileticket=CLk1rMQtCHg%3d&tabid=176) • Agreement Between The United Nations And The Royal Government Of Cambodia Concerning The Prosecution Under Cambodian Law Of Crimes Committed During The Period Of Democratic Kampuchea (2003) (available at www.eccc.gov.kh/sites/default/files/legaldocuments/Agreement_between_UN_and_RGC.pdf) • Computer slides printed as handouts (optional). Exercises Instructions The two exercises provided below deal with the questions discussed in Chapter 2. Whether one or both exercises are considered depends on the time available and the participants’ level of knowledge. The purpose of Exercise No 1 is for participants to reflect on the importance and relevance of international criminal courts and tribunals, to enhance their knowledge of the establishment, jurisdiction and organisation of various international courts and tribunals and to improve their understanding of the various relationships between international criminal courts and domestic courts. Exercise No 2 is intended to improve participants’ understanding of the jurisdiction of the ICC and its trigger mechanisms for the initiation of the proceedings before the ICC. It is designed for courses where students are asked to prepare the answers to the questions beforehand. If participants have access to the internet during the training sessions, encourage them to find the answers to Exercise No 2 questions on the ICC website. In the following exercises, have participants read the provided questions below. Divide the audience into small groups of three to five. Each group should assign a rapporteur whose task will be to report back on the group’s discussion during plenary. Each group should discuss the allocated questions for about 10–20 minutes and have a flipchart available for their work. On return to plenary, invite group

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rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions Exercise No 1

1. Why do we need international tribunals and what are their role and purpose? 2. What is the legacy of the Second World War trials? 3. What is the importance of the UN General Assembly’s affirmation of the principles of the Nuremberg Charter and the judgment? 4. What are the possible ways to establish an international tribunal and what circumstances warrant each modality? 5. Why were the ad hoc tribunals for the former Yugoslavia and Rwanda established by Security Council resolutions? 6. What is the main challenge with regard to the establishment and the lawfulness of the ICTY and the ICTR? 7. What are the main differences between the ICTY and ICTR, and what is their relationship to the national courts? 8. What are the main differences between the ad hoc tribunals and the ICC? 9. What is the ICC’s jurisdiction and its relationship with the national courts? 10. How and in what circumstances can proceedings before the ICC be initiated? 11. What forms of the ‘internationalised’ tribunals exist and what are their characteristics? 12. Is a state or a Truth and Reconciliation Commission entitled to grant amnesties to serious crimes perpetrators? 13. What are the main goals of the international criminal courts and tribunals? Exercise No 2 (not included in the Manual)

1. Is the ICC competent to deal with crimes under international law allegedly committed in the following countries: Mali, Libya, Cote d’Ivoire, Palestine, Kenya, DR Congo, Syria, Columbia, Uganda, Sudan, Georgia, Central African Republic, Bahrain? 2. If the answer is yes, what is the basis for the ICC’s jurisdiction? If no, what are the obstacles for the ICC’s jurisdiction?

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Answers Exercise No 1

1. The purpose and the role of the international criminal tribunals is to achieve justice and end impunity, deter future crimes, end conflicts, and to conduct the investigation and prosecution of international crimes when national criminal justice institutions are unwilling or unable to act. 2. The Legacy of the Nuremberg and Tokyo tribunals is that they conducted the first trial before an international judicial body and therefore contributed to the historical record of the Second World War. The trials established a number of key international criminal law principles, including individual responsibility for crimes and the responsibility of a commander. They excluded the defence of superior orders and the act of state defence, and contributed to the establishment of crimes against peace and crimes against humanity as well as the guarantee of certain fundamental rights to ensure fair trials. See further the Manual, pp 50–53. 3. The principles of international criminal law recognised in the Nuremberg Charter and the Nuremberg judgment were affirmed by the UN General Assembly in Resolution 95(I). Although never endorsed by the General Assembly in the form of a binding legal instrument, the principles have played an important role in the development of international criminal law. See further the Manual, pp 54–55. 4. The permanent international criminal court was established by an international convention, the ICC Statute. Ad hoc criminal tribunals are established by the UN Security Council, acting under Chapter VII of the UN Charter, when states involved in the conflict do not wish to bring to justice those responsible for international crimes and do not agree to the establishment of a mixed or hybrid criminal tribunal. Mixed or hybrid criminal tribunals are established by an agreement between the UN and the government of the state where the conflict occurred. 5. Ad hoc tribunals were established in response to ethnic cleansing and other atrocities, which occurred during the conflicts in the former Yugoslavia and Rwanda. At that time, efforts to establish a permanent international criminal court were underway but incomplete. The idea of creating the tribunal by treaty was rejected due to the time required to draft and agree such a treaty. There was also no guarantee that all the relevant states, particularly the former Yugoslav Republic, given its ongoing war, would ratify the treaty. The Security Council therefore established the tribunals as an enforcement measure under Chapter VII of the UN Charter to ensure violations were halted and effectively redressed. See further the Manual, pp 55–59. 6. It was argued by the defendants at the ICTY and ICTR that the Security Council does not have competence to establish ad hoc tribunals as an enforcement measure in order to restore and maintain international peace and security under Chapter VII of the UN Charter because the establishment of an ad hoc tribunal was never a measure contemplated by Chapter VII, including by Article 41 of the UN Charter. The ICTY and ICTR both rejected this argument in Tadić and Kanyabashi and held that the tribunals had been lawfully established. See further the Manual, pp 59–60.

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7. The ICTY deals with both international and non-international armed conflict while the ICTR deals with a non-international armed conflict. The ICTY’s seat is in The Hague (Netherlands) while ICTR’s seat is in Arusha (Tanzania). The two courts now have different Prosecutors. As regards the definitions of crimes, the ICTR Statute provides for an additional element for crimes against humanity, discrimination, while the ICTY Statute establishes that crimes against humanity can be committed only during an armed conflict (nexus with an armed conflict). The relationship of both ad hoc tribunals with national courts is based on the principle of primacy. The principle of primacy means that the tribunals and the national courts have concurrent, not exclusive, jurisdiction to prosecute international crimes. The tribunals however have primacy over national courts. See further the Manual, Chapter 6. 8. Ad hoc tribunals are temporary, while the ICC is a permanent criminal court. The tribunals are part of and funded by the UN, while the ICC is not part of the UN and is funded mainly by the States Parties to the ICC Statute. Ad hoc tribunals deal with past crimes, the majority having been committed after establishment of the tribunal. The ICC, on the other hand, is a prospective court and only has jurisdiction over crimes committed after the entry into the force of the ICC Statute. Finally, ad hoc tribunals are based on the principle of primacy while the ICC is based on the principle of complementarity. The ICC also allows victims to participate in the proceedings, which is a novelty in international criminal proceedings. 9. The ICC has jurisdiction over nationals of States Parties, regardless of where the acts were perpetrated, and over crimes committed on the territory of States Parties, regardless of the nationality of the offender. The ICC has jurisdiction over genocide, war crimes and crimes against humanity. The ICC may exercise its jurisdiction over aggression after the amendments adding it to the ICC Statute come into force – 30 States Parties must ratify or accept the definition of this crime – and after the States Parties take a further decision in 2017. The ICC only has jurisdiction over crimes committed after the entry into force of the ICC Statute on 1 July 2002. The ICC is based on the principle of complementarity, which means that the ICC does not have primacy over national courts, but the exercise of its jurisdiction is subsidiary or complementary to that of domestic courts. Only when domestic courts are unable or unwilling to carry out the prosecutions can the ICC exercise its jurisdiction. See Articles 1 and 17 of the ICC Statute. See further the Manual, Chapter 6. 10. This question concerns the trigger mechanisms regulated in Article 13 of the ICC Statute. Proceedings before the ICC might be initiated by a referral by a State Party to the ICC (see also Article 14 of the ICC Statue), referral by the UN Security Council acting under Chapter VII of the UN Charter or upon the initiation of an investigation by the Prosecutor acting on its own initiative (proprio motu) (see also Article 15 of the ICC Statute). Importantly, the Pre-Trial Chamber must authorise the commencement of the investigation when the investigation has been initiated by the Prosecution; this is not the case when the investigation is initiated under the trigger mechanisms regulated in Article 13(a) and Article 13(b) of the ICC Statute. The Security Council may also refer situations involving crimes committed on the territory of a nonState Party or by its nationals.

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11. Mixed or internationalised tribunals can be divided into several groups. The first group consists of the tribunals established by an agreement between the UN and the government of the state where the conflict occurred, for example, the Special Court for Sierra Leone (SCSL), or the Extraordinary Chambers (ECCC) in the Court of Cambodia; however, unlike the SCSL, the ECCC forms part of the national court system and is staffed by a majority of local, not international, judges. The second group of mixed or internationalised tribunals are tribunals established by UN international administrations, which temporarily assume authority over territories in conflicts relating to self-determination, such as East Timor and Kosovo, in order to assist them in the transition to self-governance. The War Crimes Chamber in Bosnia, established by the Office of the High Representative following the Dayton Peace Agreement, also falls within this group. The third group, for example the Iraqi High Tribunal and the War Crimes Chamber in Serbia, comprises courts, which, although domestic in nature and established by a state, have received some form of international support. See further the Manual, pp 65–76. 12. A state or a Truth and Reconciliation Commission is not entitled to grant amnesties to perpetrators of serious crimes because amnesties for international crimes are prohibited under international law. If such an amnesty is granted, the ICC may itself, in accordance with the principle of complementarity, exercise its powers to prosecute those allegedly responsible for international crimes. 13. The main goal of the international criminal courts and tribunals is to ensure that the crimes of most serious concern to the international community must not go unpunished. See also the answer to the first question on the role and purpose of the international criminal courts and tribunals provided above. Exercise No 2

The answers in this section are provided on the basis of the information available as of March 2013. It is therefore important for facilitators to ensure that the information detailed below remains accurate and updated when preparing training session content. The jurisdiction of the ICC is regulated by Article 11 (Jurisdiction ratione temporis) and Article 12 (Preconditions to the exercise of jurisdiction) of the ICC Statute. All States Parties to the ICC Statute accept the jurisdiction of the ICC with respect to crimes defined in Article 5 of the Statute when committed on their territories or by their nationals. Pursuant to Article 124 of the Statute, a state, on becoming a party to the ICC Statute, may declare that, for a period of seven years after the entry into force of this Statute, it does not accept the jurisdiction of the ICC with respect to the category of war crimes when a crime is alleged to have been committed by its nationals or on its territory. States that are not party to the ICC Statute may accept the ICC’s jurisdiction on an ad hoc basis by lodging a declaration to that effect with the ICC Registrar in accordance with Article 12, Paragraph 3 of the ICC Statute. Article 11(2) of the ICC Statute, which regulates jurisdiction of the ICC for a particular state, provides that the ICC has jurisdiction for crimes committed after the entry into force of the ICC Statute in that state unless the state has made a declaration under Article 12(3) of the ICC Statute. Article 12(3) provides that states that became parties to the ICC Statute after the Statute entered into force on

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1 July 2002 may elect to accept the ICC’s jurisdiction for crimes committed after July 2002, but before the Statute entered into force for that particular state. Article 12(3) declarations relate only to the scope of the ICC’s jurisdiction and do not trigger an investigation. An investigation can only be opened following the referral of a situation to the Prosecutor by a State Party to the ICC Statute or to the Prosecutor by the UN Security Council, or the authorisation by a Pre-Trial Chamber of three judges to the Prosecutor to open an investigation. These are the ‘trigger mechanisms’, which may initiate the proceedings before the ICC in accordance with Article 13 of the ICC Statute (Exercise of jurisdiction). To date, two declarations have been lodged with the Registrar accepting the exercise of the jurisdiction of the ICC pursuant to Article 12, Paragraph 3 of the ICC Statute: one declaration by Cote d’Ivoire and one by Palestine. Mali

Mali is a party to the ICC Statute having ratified the Statute on 17 July 1998. Mali deposited its instrument of ratification of the ICC Statute on 16 August 2000. The situation in Mali was referred to the Prosecutor by Mali on the basis of Article 14 of the ICC Statute on 13 July 2012, being a referral of a situation by a State Party. The referral concerned crimes within the ICC jurisdiction against humanity and war crimes committed since January 2012 within the Malian territory. On 16 January 2013, the Prosecution instigated an investigation into the alleged crimes. Libya

Libya is not a party to the ICC Statute. On 26 February 2011, the UN Security Council, in its resolution 1970 (2011), referred the post-15 February 2011 situation in Libya to the ICC. On 3 March 2011, the ICC Prosecutor announced his decision to open an investigation into the situation in Libya. On 27 June 2011, the Pre-Trial Chamber issued arrest warrants for Muammar Gaddafi, Gaddafi’s son, Saif al-Islam Gaddafi, and Libya’s intelligence chief, Abdullah Senussi. Gaddafi was later killed while his son was arrested in Libya. On 31 May 2013, the Pre-Trial Chamber rejected Libya’s challenge to the admissibility of the case against Saif al-Islam Gaddafi and requested Libya to surrender the accused to the ICC. The appeal against Pre-Trial Chamber decision on admissibility is currently pending. Senussi was arrested in Mauritania and extradited to Libya on 5 September 2012. Cote d’Ivoire

Cote d’Ivoire ratified the ICC Statute on 15 February 2013. Before ratification, the ICC had jurisdiction on the basis of Article 12(3) of the ICC Statute. On 1 October 2003, Cote d’Ivoire lodged, via a note verbale, a declaration dated 18 April 2003 accepting the exercise of jurisdiction of the ICC Court under Article 12 (3) with respect to alleged crimes committed after 19 September 2002. On 14 December 2010, President Ouattara indicated that he confirmed the declaration accepting the exercise of jurisdiction by the ICC lodged on 18 April 2003. The Prosecutor initiated proprio motu investigations into crimes allegedly committed in Cote d’Ivoire under Article 13(c) of the ICC Statute. On 3 October 2011, the Pre-Trial Chamber granted the Prosecutor’s request for authorisation to open investigations proprio motu into the situation in Côte d’Ivoire with respect to alleged crimes 46

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occurring within the jurisdiction of the ICC Court and committed since 28 November 2010, as well as with regard to crimes that may be committed in the future in the context of this situation. On 23 November 2011, the Pre-Trial Chamber issued an arrest warrant for Laurent Gbagbo in the case The Prosecutor v Laurent Gbagbo for crimes against humanity. On 29 February 2012, the Pre-Trial Chamber issued an arrest warrant for Simone Gbagbo (the wife of Laurent Gbagbo) in the case Prosecutor v Simone Gbagbo. Palestine

On 22 January 2009, Dr Ali Khashan, the Minister of the Palestinian National Authority, lodged a declaration recognising the jurisdiction of the ICC under Article 12(3) of the ICC Statute with respect to acts committed on the territory of Palestine since 1 July 2002. The Registrar acknowledged receipt of the declaration ‘without prejudice to a judicial determination on the applicability of Article 12 paragraph 3’ to the declaration. The Prosecutor received several communications related to the situation in the Occupied Palestinian Territory and started a preliminary examination to determine whether there was a reasonable basis to proceed with an investigation. On 3 April 2012, the Prosecutor issued an update on the preliminary examination where he discussed the question of jurisdiction. The Prosecutor concluded that it was for the relevant bodies at the UN or Assembly of States Parties to make a legal determination whether Palestine qualifies as a state for the purpose of acceding to the ICC Statute and thereby enabling the exercise of jurisdiction by the Court under Article 12(1). He said that any state seeking to become a State Party to the ICC Statute must deposit an instrument of accession with the Secretary-General of the UN (Article 125 ICC Statute). When it is unclear whether the applicant constitutes a state, the Secretary-General seeks the General Assembly’s guidance. The Prosecutor concluded that the competence for determining the term ‘state’ within the meaning of Article 12 of the ICC Statute rests, in the first instance, with the UN Secretary-General who, in case of doubt, will defer to the guidance of General Assembly. The Prosecutor has also noted that his office could in the future consider allegations of crimes committed in Palestine, should the competent bodies of the UN or eventually the Assembly of States Parties resolve the issue of Palestinian statehood or if the Security Council referred the situation to the ICC. See further: www.icc-cpi.int/NR/rdonlyres/9B651B80-EC43-4945-BF5A-FAFF5F334B92/284387/ SituationinPalestine030412ENG.pdf. Kenya

Kenya is a party to the ICC Statute, having ratified the Statute on 11 August 1999. Kenya deposited its instrument of ratification on 15 March 2005. The Prosecutor initiated proprio motu investigations into crimes allegedly committed in Kenya during the post-elections violence under Article 13(c) of the ICC Statute. On 31 March 2010, the Pre-Trial Chamber II granted the Prosecutor request to open an investigation proprio motu in the situation in Kenya. The Pre-Trial Chamber confirmed the charge of crimes against humanity against Samoei Ruto, Joshua Arap Sang, Francis Kirimi Muthaura and Uhuru Muigai Kenyatta. The Prosecutor withdrew the charges against Francis Kirimi Muthaura before the beginning of the trial. Charges against Mohammed Hussein Ali and Henry Kiprono Kosgey were not confirmed. INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

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The Democratic Republic of Congo

The Democratic Republic of Congo (DRC) is a party to the ICC Statute, having ratified the Statute on 8 September 2000. DRC deposited its instrument of ratification of the ICC Statute on 11 April 2002. The situation in DRC was referred to the Prosecutor by DRC on the basis of Article 13(a) and Article 14 of the ICC Statute. The following cases relate to DRC: • Prosecutor v Thomas Lubanga Dyilo (judgment was delivered on 14 March 2012, sentenced to 14 years imprisonment, currently on appeal); • Prosecutor v Bosco Ntaganda (second arrest warrant delivered by the Pre-Trial Chamber II on 13 July 2012; transferred to the ICC in March 2013); Prosecutor v Germain Katanga (ongoing); • Prosecutor v Mathieu Ngudjolo Chui (acquitted); Prosecutor v Callixte Mbarushimana (charges were not confirmed); • Prosecutor v Sylvestre Mudacumura (on 13 July 2012, the Pre-Trial Chamber II issued a warrant of arrest for Sylvestre Mudacumura). Syria

Syria is not a party to the ICC Statute. The ICC does not therefore have jurisdiction over crimes committed in Syria. Colombia

Colombia is a party to the ICC Statute, having ratified the Statute on 10 December 1998. Colombia deposited its instrument of ratification of the ICC Statute on 5 August 2002. Uganda

Uganda is a party to the ICC Statute, having ratified the Statute on 17 March 1999. Uganda deposited its instrument of ratification of the ICC Statute on 14 June 2002. The situation in Uganda was referred to the Prosecutor by Uganda on the basis of Article 13(a) and Article 14 of the ICC Statute. There is currently one case involving four suspects relating to the situation in Uganda: Prosecutor v Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen. All four individuals have yet to be arrested and brought to trial. Sudan

Sudan is not a party to the ICC Statute. The UN Security Council, by resolution 1593 (2005), referred the situation in Darfur since 1 July 2002 to the ICC on 31 March 2005. The following cases before the ICC concern Sudan: • Prosecutor v Ahmad Harun and Ali Kushayb, Prosecutor v Omar al-Bashir, Prosecutor v Abdel Raheem Muhammad Hussein (arrest warrants issued for all four individuals, but they have yet to be arrested and brought to trial); • Prosecutor v Bahr Idriss Abu Garda (the charges were not confirmed);

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• Prosecutor v Banda Abakaer Nourain and Jerbo Jamus (confirmed charges against both individuals). Georgia

Georgia is a party to the ICC Statute, having ratified the Statute on 18 July 1998. Georgia deposited its instrument of ratification of the ICC Statute on 5 September 2003. The Central African Republic

The Central African Republic (CAR) is a party to the ICC Statute, having ratified the Statute on 7 December 1999. CAR deposited its instrument of ratification of the ICC Statute on 3 October 2001. The situation in CAR was referred to the Prosecutor by CAR on the basis of Article 13(a) and Article 14 of the ICC Statute. There is one case before the ICC concerning CAR: Prosecutor v Jean-Pierre Bemba Gombo (the trial is ongoing). Bahrain

Bahrain is not a party to the ICC Statute. The ICC does not therefore have jurisdiction over crimes committed in Bahrain. Case study Instructions Have participants read Scenario No 1 which is provided at pp 43–35 of the Manual and on p 101 of this Guide and the additional information provided in Scenario No 3 (on p 104). Divide the audience into small groups of three to five. Each group should assign a rapporteur, whose task will be to report back on the group’s discussion during plenary. As a group, participants should discuss the questions below. If time is limited, allocate a selection of questions only to each group. The group should have a flipchart available for their work. On return to plenary, invite group rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions 1. Consider how the crimes committed during the conflict might be dealt with. Would you consider domestic prosecution, the establishment of an ad hoc international criminal tribunal or an international tribunal of hybrid nature to be the most appropriate structure of tribunal? Provide arguments for your choice. 2. Does the ICC have jurisdiction over the crimes committed in the conflict? If so, which crimes could be prosecuted before the ICC from the perspective of personal and territorial jurisdiction? 3. If, hypothetically, Bestania became a State Party to the ICC Statute, would that change the ICC jurisdiction with regard to the crimes committed during the conflict? 4. Can the amnesty granted to Colonel Butel be challenged? How?

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Answers 1. On the basis of the facts, it can be assumed that domestic prosecution of the crimes committed during the conflict before domestic courts of either state involved in the conflict is not feasible. Both states deny the crimes and are unwilling to transfer nationals suspected of involvement in international crimes to the domestic courts of the other state involved in the conflict for prosecution. The only likely way to bring to justice those responsible for international crimes is to prosecute them before an international criminal tribunal or an international tribunal of hybrid nature. 2. Given that Astania is a party to the ICC Statute, the ICC could prosecute international crimes committed after the entry into force of the ICC Statute (1 July 2002) in the territory of Astania and crimes committed by nationals of Astania. The Security Council may also refer a situation in Bestania to the ICC or establish an ad hoc tribunal to prosecute crimes committed in Bestania and crimes committed by Bestanian nationals. Although Bestania expressed interest in becoming a party to the ICC, Bestania has not ratified the ICC Statute and is therefore not bound by the ICC Statute. 3. If Bestania became a party to the ICC Statute, the ICC could also prosecute crimes committed during the conflict in the territory of Bestania and crimes committed by nationals of Bestania. This, however, would be possible only for crimes committed after the entry into force of the ICC Statute (1 July 2002) provided that Bestania made a declaration under Article 12(3) of the ICC Statute. It is important to note that the ICC only deals with the most serious crimes of international concern, which means that the ICC cannot prosecute all crimes committed during the conflict, only the most serious ones. See the Preamble of the ICC Statute, Article 1, Article 17(1)(d) of the ICC Statute. 4. Amnesties for international crimes, including genocide, crimes against humanity and war crimes, are prohibited under international law. See further the Manual, pp 77, 303–305.

7.3 Chapter 3: Substantive law on international crimes: definitions Note to facilitators Chapter 3 of the Manual examines substantive law of international crimes and analyses definitions of international crimes as provided in the statutes of international courts and tribunals. It provides an overview of elements of crimes as they have been defined in the jurisprudence of international courts and tribunals. Chapter 3 material is presented in the format of a lecture, Q&A exercises and a case study with plenary discussion.

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Objectives of the chapter/session The objectives of Chapter 3 are to: • Familiarise participants with the substantive law of international crimes, particularly with the definitions of war crimes, crimes against humanity, genocide and aggression; • Familiarise participants with the main differences in definitions of international crimes under the various international criminal tribunals, particularly the ICC and the ICTY or ICTR; • Explain the relationship between international humanitarian law and war crimes; • Provide a basic understanding of the mental and physical elements of international crimes along with other elements that need to be proved in order to establish individual responsibility for the crimes; and • Explain the importance of effective implementation of the definition of international crimes in national legislation. Main points to be made and key issues for discussion The points to be made and issues to be discussed will depend on the knowledge and experience of the audience and are likely to vary from course to course. However, the main points to be brought out and key issues to be raised during the consideration of Chapter 3 will be: • The definitions of international crimes with a special focus on definitions provided in the ICC Statute; • The relationship between international criminal law and international humanitarian law; • The legal bases for war crimes, including the Geneva Convention, its two Additional Protocols, and the laws and customs applicable in armed conflict; • The elements of war crimes, including general requirements and the elements of specific or underlying offences; • The evolution of crimes against humanity; • The elements of crimes against humanity, including general requirements and the elements of specific (underlying) offences; • The evolution of the crime of genocide; • The definition of genocide, including the general requirements and the elements of specific (underlying) offences; • The evolution of the crime of aggression and its relation to the definition of aggression in UN General Assembly Resolution 3314 (XXIX); and • The definition of the crime of aggression under the ICC Statute. Note: the presentation on the computer slides focuses on the definitions of the crimes as provided in the ICC Statute. Depending on the audience and location of the training, the facilitators may wish to include the definitions provided in the statutes of other international criminal courts and tribunals. INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

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Session planning chart for Chapter 3 Key points/activities

Method

Media

Time

1. Objectives of the chapter

• Presentation

Computer slides

5 minutes

2. Presentation of Chapter 3 points to be made and issues to be discussed:

• Presentation by facilitators

Flipchart, computer slides, handouts

15 minutes

Flipchart

60 minutes

a. war crimes; b. crimes against humanity; c. genocide; and d. aggression.

• Presentation by participants who received the Manual prior to the trainings and have prepared a presentation • Facilitators summarise and clarify/ correct substantive law • Discussion

3. Exercises

• Group work • Group rapporteurs report back on group discussion • Whole group discussion • Facilitators summarise and clarify/ correct substance

4. Case study

• Group work

Flipchart

90 minutes

5. Plenary discussion on the case study

• Group rapporteurs report back on group discussion

Flipchart

60 minutes

• Whole group discussion • Facilitators summarise and clarify/ correct substance Total time: 230 minutes

Training material Computer slides 1. Substantive law on international crimes: definitions 2. Learning objectives 3. Overview 4. War crimes: background 5. Terminology 6. Sources of IHL I 7. Sources of IHL II 8. Sources of IHL III 9. Geneva law + Hague law = IHL 10. ICL versus IHL I 11. ICL versus IHL II

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12. Scope of application of IHL 13. Classification of armed conflicts 14. Internal disturbances 15. Armed conflict: applicable law 16. Common Article 3 of the Geneva Conventions 17. General principles of IHL 18. War crimes: Article 8 of the ICC Statute 19. IHL versus ICC Statute 20. Amendment to Article 8 of the ICC Statute 21. War crimes: elements 22. War crimes: general requirements 23. Existence of an armed conflict I 24. Existence of an armed conflict II 25. Nexus between the crime and the armed conflict 26. The perpetrator 27. Victim and object of the crime I 28. Victim and object of the crime II 29. Seriousness or gravity of the crime 30. Specific/underlying offences: elements 31. Mental elements 32. Underlying offences: examples I 33. Underlying offences: examples II 34. Underlying offences: examples II 35. Crimes against humanity: background I 36. Crimes against humanity: background II 37. Crimes against humanity: Article 7 of the ICC Statute 38. Crimes against humanity: elements 39. Crimes against humanity: general requirements 40. Existence of an attack

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41. Widespread or systematic 42. Directed against any civilian population 43. Underlying offence is part of the attack 44. Knowledge that the offence is part of the attack 45. Additional requirements 46. Specific/underlying offences: elements 47. Underlying offences under the ICC Statute 48. Underlying offences: an example 49. Genocide: background I 50. Genocide: background I 51. Genocide: background II 52. Definition of genocide I 53. Definition of genocide II 54. Genocide: elements 55. Genocide: general requirements 56. Definition of the protected group: exhaustive list 57. Contextual element (ICC) 58. Specific intent (dolus specialis) 59. Specific intent (dolus specialis): elements 60. Specific/underlying offences: elements 61. Genocide: underlying offences 62. Underlying offences: an example 63. Genocide against one member of the group 64. Crime of aggression 65. Crime of aggression: ICC I 66. Crime of aggression: ICC II 67. UN General Assembly resolution 3314 (XXIX): definition of aggression 68. Crime of aggression: definition under the ICC Statute 69. Act of aggression under the ICC Statute I

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70. Act of aggression under the ICC Statute II 71. Exercise of jurisdiction over the crime of aggression 72. GA resolution 3314 versus crime of aggression under the ICC 73. Crime of aggression: elements Questions for discussion The following are examples of the questions that may be asked to the participants in order to facilitate discussion (more questions are provided on p 81 of the Manual): • Have you, in the exercise of your professional activities as a judge, prosecutor or lawyer, ever been involved in criminal proceedings alleging the commission of international crimes? • Were the proceedings before an international court or a tribunal or a domestic court? • What substantive law applied to the criminal proceedings? • In case of a domestic trial, did you refer to any international instruments or case-law of the international courts or tribunals defining international crimes? • Did you encounter any problems regarding the substantive law of international crimes; for example, gaps or imprecision in the definition of the crimes? • What was the outcome of the case? Handouts • ICC Elements of Crimes, available at www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B45BF9DE73D56/0/ElementsOfCrimesEng.pdf; • War Crimes under the ICC Statute and their source in International Humanitarian Law, Comparative Table, available at www.icrc.org/eng/assets/files/other/en_-_war_crimes_ comparative_table.pdf; • Amendments to the ICC Statute, Resolution RC/Res.6, The crime of aggression, available at www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf; • Rule 156. Definition of War crimes, Customary International Humanitarian Law, International Committee of the Red Cross, available at www.icrc.org/customary-ihl/eng/docs/v1_cha_ chapter44_rule156; • Table with elements of international crimes under the ICC Statute (Annex to the Facilitator’s Guide). • Computer slides printed as handouts (optional).

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Exercises Instructions Have participants read the questions relating to each of the international crimes below. Divide the audience into small groups of three to five. Each group should assign a rapporteur whose task will be to report back on the group’s discussion during plenary. If time is limited, allocate a selection of questions only to each group. Each group should discuss the allocated questions. The groups should have a flipchart available for their work. On return to plenary, invite group rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions War crimes

1. What is the relationship between international humanitarian law and international criminal law? 2. What are the sources of international humanitarian law? 3. How is international armed conflict to be proved? 4. Does international humanitarian law only offer protection during armed conflicts? 5. Does any internal disturbance qualify as an internal conflict? How do you define armed conflict for the purpose of international humanitarian law? 6. Apart from grave breaches of the 1949 Geneva Convention, do any other violations of international humanitarian law amount to war crimes under the ICC Statute? 7. What is the threshold for a breach of international humanitarian law to qualify as a war crime falling within the ICC jurisdiction? 8. What elements have to be proved for a conviction for a war crime? 9. What are the elements which are common to all war crimes? 10. Can a civilian be found responsible for a war crime? 11. Which groups are protected under international humanitarian law? 12. Can you name five underlying offences that may amount to war crimes? Crimes against humanity

1. What is the distinction between a war crime and a crime against humanity? 2. Does an offence need to be linked to an armed conflict in order to amount to a crime against humanity? 3. Who must be targeted by the crime against humanity? Can an offence against a military personnel amount to crimes against humanity and, if yes, under what conditions?

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4. What elements have to be proved for a conviction for a crime against humanity? 5. Does an underlying offence need to be committed on discriminatory grounds to qualify as a crime against humanity? 6. Can you name five underlying offences which may amount to crimes against humanity? Genocide

1. What kind of intent must be proved in order for a person to be convicted of genocide? 2. Which groups are protected by the Genocide Convention? Can any other group enjoy the same protection as the one provided by the Genocide Convention? 3. What are the conditions for the victim to be considered a member of the protected group? How do we prove that a group constitutes, for example, an ethnic group which differs from the ethnicity of the perpetrators? 4. Does every perpetrator have to have a specific intent to destroy or is it sufficient, either for all or at least for non-leaders, that the perpetrator has knowledge of a collective plan and foresees that their conduct will further it? 5. What is a distinction between special intent and normal intent? 6. Is motive relevant? 7. Does the plan to destroy a group have to be proven for the conviction of genocide? 8. What is the ‘whole’ or ‘part’ of a group? 9. What is the meaning of ‘destroy’ for the purpose of special intent? 10. What sort of proof will suffice to prove specific intent to destroy a group in whole or in part, with respect to a high level perpetrator such as a senior military or political leader? 11. How can a scale of destruction be proved effectively? 12. Does the commander have to have specific intent in order to be convicted for genocide for the acts amounting to genocide committed by his subordinates? 13. Can any kind of participation constitute genocide? Which specific (underlying) acts can result in genocide and what are their elements? Aggression

1. Has the crime of aggression ever been prosecuted before any international courts and tribunals? 2. In which instrument was war prohibited for the first time? 3. Is the use of force under Article 2(4) of the UN Charter absolutely prohibited? 4. Does the ICC’s jurisdiction extend over the crime of aggression?

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5. Do you think that the UN Security Council’s determination of the existence of an act of aggression should be a precondition for triggering the prosecution for the crime of aggression? Answers War crimes

1. International humanitarian law is one of the main sources of international criminal law. The relationship between the two areas of law can be described as two partly overlapping circles. The overlap concerns the definition of serious violations of the laws and customs of armed conflict, which are criminalised as war crimes under international criminal law. In other words, war crimes are serious violations of the laws and customs of armed conflict. See further the Manual, Chapter 1, pp 40–41, and Chapter 3, p 82. 2. The main sources of international humanitarian law are the bodies of law so-called ‘Geneva Law’ and ‘Hague Law’. Geneva Law comprises a number of treaties, including the four Geneva Conventions of 1949 and two Additional Protocols of 1977, which intend to protect military personnel no longer taking part in fighting and people not involved in hostilities. Hague Law comprises, among others, the Hague Conventions of 1899 and 1907, a great part of which has been incorporated in the Additional Protocols of 1977. Hague Law establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means and methods of warfare. See further the Manual, Chapter 3, pp 84–87. 3. For international armed conflict to be proved, there must be fighting between the armed forces of at least two states. Wars of national liberations, as defined in Article 1 of Protocol I to Geneva Conventions of 1977, are classified as international armed conflicts. Fighting on the territory of a state between the government armed forces and identifiable non-state armed groups, or between such groups fighting one another may qualify as a non-international armed conflict if the fighting reaches a certain level of intensity and if it extends over a certain period of time. See further the Manual, Chapter 3, p 87. 4. International humanitarian law offers protection only during armed conflicts. This means that it does not apply during serious disruption of internal order resulting from acts of violence such as riots, struggles between factions or against the authority, internal disturbances and tensions, isolated or sporadic acts of violence. See further the Manual, Chapter 3, pp 87, 106–107. 5. Not all internal disturbances, such as simple riots, unorganised and short-lived insurrections or terrorist activities, qualify as internal conflict. In order to establish whether the disturbance falls within the definition of an armed conflict, there must be an examination of the intensity of the conflict and the level of military organisation of the parties. See further the Manual, Chapter 3, p 107. 6. In addition to grave breaches of the 1949 Geneva Convention, Article 8 of the ICC Statute qualifies the following crimes as war crimes:

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• Other serious violations of the laws and customs of wars applicable in international armed conflict; and • In the case of a non-international armed conflict, serious violations of Article 3 common to the four Geneva Conventions of 1949 and other serious violations of the laws and customs applicable in armed conflicts not of an international character.

See further: Article 8 of the ICC Statute.

7. For a breach of international humanitarian law to qualify as a war crime falling within the ICC jurisdiction, the violations must be serious, in that they must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. The ICC Statute, as opposed to the ICTY and ICTR, provides an exhaustive list of the crimes which qualify as ‘serious’. See further the Manual, Chapter 3, pp 96, 99–104, 109. 8. For a conviction for a war crime, the following elements must be satisfied: the general or common elements and the physical and mental elements of a specific or underlying offence. See further the Manual, Chapter 3, p 105. 9. The elements that are common to all war crimes are general or chapeau elements. The following general elements must be satisfied for war crimes: that the nexus between the crime and the armed conflict has been determined; that the perpetrator, who may be a member of an armed forces or a civilian at the time the criminal act was committed, was in association with the armed conflict; that the crime was committed against the protected persons or property; and that the crime is of sufficient seriousness or gravity. 10. Civilians can be found responsible for a war crime where they commit a crime in association with the armed conflict. The nexus with the armed conflict plays an important role in determining whether a crime by a civilian constitutes an ordinary crime or a war crime. See further the Manual, Chapter 3, pp 106–108. 11. Under international humanitarian law, the following groups enjoy protection (see further the Manual, Chapter 3, p 109): • Wounded or sick combatants; persons treating those wounded and sick; medical establishments and mobile medical units, medical transport; wounded, sick and shipwrecked combatants at sea; religious, medical and hospital personnel of hospital ships; hospital ships; lifeboats; prisoners of war; civilians; civilian hospitals, medical transport; objects necessary for religious worship; real or personal property belonging to individually or collectively to private persons; humanitarian aid (under the Geneva Conventions); • ‘… persons no longer taking active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or other cause’ (Article 3 common to the Geneva Conventions). • Other serious violations of law and customs of war: civilian population, civilian objects, personnel involved in humanitarian assistance, buildings dedicated to religion or education (Article 8(2)(b) and (e));

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• Combatants as victims of crimes: ‘killing and wounding treacherously individuals belonging to the hostile nation or army’ (Article 8(2)(b)(xi)); 12. This question is intended to familiarise the participants with various war crimes, so allow sufficient time for participants to review Article 8 of the ICC Statute and select a number of underlying offences. Crimes against humanity

1. The main distinction between a war crime and a crime against humanity is that a crime must be committed during an armed conflict to qualify as a war crime; on the other hand, there is no requirement for armed conflict for a crime against humanity to have been committed. As an exception, the ICTY Statute requires the existence of an armed conflict even for crimes against humanity. For crimes against humanity, there is an explicit requirement that they must be committed as part of a ‘widespread’ or ‘systematic’ attack against any civilian population. See further the Manual, Chapter 3, pp 133–136. 2. Under the ICC Statute and the ICTR, an offence does not need to be linked to an armed conflict in order to amount to a crime against humanity. The Nuremberg Tribunal did not treat crimes against humanity as a self-standing crime, since Article 6(c) of the Nuremberg Charter required that crimes against humanity be committed in connection with another crime within the jurisdiction of the tribunal, being war crimes or crimes against peace. Although the ICTY Statute restricted crimes against humanity to those committed during armed conflict, crimes against humanity nonetheless took on an independent existence as a distinct category of crimes. See further the Manual, Chapter 3, pp 133–136. 3. The target of the attack must be the ‘civilian population’. This includes those that have been rendered hors de combat due to wounding, illness, detention or other cause. The civilian population need only be predominantly civilian in nature and the presence of certain noncivilians in the civilian population does not change the character of population. See further the Manual, Chapter 3, p 140. 4. For a conviction for a crime against humanity, general or chapeau requirements must be proven. These include: the existence of an attack; that the attack is widespread or systematic; that the attack was directed against a civilian population; that the perpetrator’s conduct was part of a widespread or systematic attack; and that the perpetrator was aware of the link between his or her acts and a widespread or systematic attack. Article 7(2)(a) of the ICC Statute establishes also the policy element: the widespread or systematic attack against a civilian population must be committed pursuant to or in furtherance of a state or organisational policy. In addition to these general requirements, the physical and mental elements relating to the specific underlying offences must be satisfied. 5. Generally, the statutes of international courts and tribunals do not require that an underlying offence be committed on discriminatory grounds in order to qualify as a crime against humanity. An exception to this is provided by the ICTR Statute and the Law on the Establishment of the ECCC. See further the Manual, Chapter 3, p 135.

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6. This question is intended to familiarise the participants with various crimes against humanity. Allow sufficient time for participants to review Article 7 of the ICC Statute and select a number of underlying offences. Genocide

1. For a person to be convicted of genocide it must be proved that he or she had specific intent (dolus specialis) that is, ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. See further the Manual, Chapter 3, pp 181–193. 2. The Genocide Convention protects ‘national, ethnical, racial and religious groups’. This list is exhaustive and therefore no other group enjoys protection under the Genocide Convention. See further the Manual, Chapter 3, p 175. 3. While the list of groups remains confined to national, ethnic, racial or religious classifications, there is still uncertainty as to how group membership is determined and which body should make such determinations. There is no internationally recognised definition of any of the terms used by the Genocide Convention. For the determination of an ethnic group, which differs from the ethnicity of the perpetrators, the ICTY and ICTR apply an objective test, considering ethnic groups to be those that are ‘stable’ and ‘permanent’ and/or apply a subjective test focused on the perception of the members of the group itself, or others, including the perpetrators. See further the Manual, Chapter 3, pp 175–179. 4. Some forms of criminal liability, including command responsibility, aiding and abetting and the ‘third category’ of joint criminal enterprise (JCE III) do not require proof of the accused’s specific intent to commit genocide. However, an accused may be convicted of genocide through JCE III if it was reasonably foreseeable from the common purpose of the JCE that a criminal act would be committed with specific intent to commit genocide and the accused was aware of this possibility when he or she participated in the JCE. See further the Manual, Chapter 3, pp 187–189. 5. Normal intent is less rigid than specific intent because it only requires an awareness of the conduct and the general course of events, but not the clear intention to commit genocide. Under Article 30 of the ICC Statute, normal intent requires that a person ‘means to engage in the conduct’ and ‘means to cause that consequence or is aware that it will occur in the ordinary course of events’. Specific intent, on the other hand, requires ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. See further the Manual, Chapter 3, pp 182–186. 6. Existence of personal motive does not preclude a finding of a specific intent and thus cannot be raised a defence to genocide. See further the Manual, Chapter 3, pp 191–192. 7. The plan ‘to destroy’ is one of the components of specific intent to commit genocide which must be proven for the conviction for genocide. See further the Manual, Chapter 3, pp 189–190. 8. The ‘whole’ or ‘in part’ of a group is one of the components of the specific intent to commit genocide. There is no clear-cut method for determining what is a ‘whole’ and how many people would constitute a substantial ‘part’ of this whole. The ‘whole’ can be interpreted as the population

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of a village, a state, a region or all of the global communities. The term ‘in part’ implies a reasonably significant number relative to the total of the group as a whole or else a significant section of a group such as its leadership. See further the Manual, Chapter 3, pp 190–191. 9. The meaning of ‘destroy’ speaks of physical or biological destruction, but the prohibited acts can fall short of causing the deaths of individuals. ‘Destroy’ can include, for example, not providing detention camp inmates with adequate food, providing insufficient medical care, subjecting inmates to poor conditions, or forcible transfer of population. See further the Manual, Chapter 3, pp 189–190. 10. In the absence of direct explicit evidence, special intent may be inferred from the surrounding circumstances, which may include the general context in which the crimes occur; the general political doctrine that gave rise to the underlying crimes; the perpetration of other culpable acts systematically directed against the same group; the scale of atrocities committed; the systematic targeting of victims on account of their membership of a particular group; or the repetition of destructive and discriminatory acts. See further the Manual, Chapter 3, pp 186–187. 11. As held by the Appeals Chamber in Krstić, the evidence must show that the perpetrator intended to destroy at least a substantial part of the protected group. The determination of at which point the targeted part is substantial enough to meet this requirement may involve the following considerations: the numeric size of the targeted part of the group; the prominence of the targeted portion within the group; whether a specific part of the group is emblematic for the overall group or is essential to its survival; the area of the perpetrators’ activity and control; and the possible extent of their reach. See further the Manual, Chapter 3, pp 190–191. 12. The responsibility of a commander or superior is a form of responsibility that does not require proof of intent to commit a crime on the part of a commander or superior before criminal liability can attach. It is therefore necessary to distinguish between the mens rea required for the crime perpetrated by the subordinates and that required for the superior. In order to be held responsible for genocide on the basis of responsibility of a commander or superior, it must be proven that the superior knew or had reasons to know that his subordinates were about to commit or had committed genocide and that the subordinates possessed the requisite specific intent. See further the Manual, Chapter 3, pp 187–188. 13. The following underlying acts can be considered as genocide under the ICC Statute: • genocide by killing; • genocide by causing serious bodily or mental harm; • genocide by deliberately inflicting conditions of life calculated to bring about physical destruction; • genocide by imposing measures intended to prevent births; • genocide by forcibly transferring children. For the elements of various underlying acts of genocide, see the Manual, Chapter 3, pp 193–198.

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Aggression

1. The crime of aggression, as a ‘crime against peace’, has been prosecuted before the Nuremberg Tribunal. Article 6(a) of the Nuremberg Charter defined ‘crimes against peace’ as planning, preparation, initiation or waging of a war of aggression, a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. See further the Manual, Chapter 3, pp 198–201. 2. The first instrument to prohibit war is the Kellogg-Briand Pact of 1928. The Pact condemned recourse to war as a solution to international controversies, and renounced war as an instrument of national policy in international relations. See further the Manual, Chapter 3, pp 199 and 205. 3. Article 2(4) of the UN Charter does not provide a complete prohibition on the use of force by states as there are certain instances under which the use of force is deemed permissible, namely the use of force when a state is acting in self-defence in accordance with Article 51 of the UN Charter and the use of force authorised by the UN Security Council when acting under Chapter VII of the UN Charter. 4. The crime of aggression falls within the jurisdiction of the ICC Statute. However, the definition of the crime of aggression was not initially included in the ICC Statute. Article 5(2) of the ICC Statute provided that the ICC would exercise jurisdiction over the crime of aggression once a provision defining the crime and setting out the conditions under which the ICC would exercise jurisdiction with respect to this crime was adopted. The definition of the crime of aggression and the conditions for the exercise of jurisdiction over the crime of aggression were adopted during the Kampala review conference in 2010. See further: Resolution RC/Res.6, The Crime of Aggression, available at www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.6-ENG.pdf. 5. Whether the UN Security Council’s determination of the existence of an act of aggression should be a precondition for triggering the prosecution for the crime of aggression is considered and regulated by Article 15 bis of the ICC Statute, as adopted at the Kampala review conference in 2010. By Article 15 bis, where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the state concerned. The Prosecutor shall notify the UN Secretary-General of the situation before the Court, including any relevant information and documents. Where the Security Council has made such a determination, the Prosecutor may proceed with the investigation in respect of a crime of aggression. Where no such determination is made within six months after the date of notification, the Prosecutor may proceed with the investigation in respect of a crime of aggression, provided that the Pre-Trial Division has authorised the commencement of the investigation in accordance with the procedure contained in Article 15, and the Security Council has not, in accordance with Article 16, decided otherwise. A determination of an act of aggression by an organ outside the Court shall be without prejudice to the Court’s own findings under the ICC Statute. The ICC may exercise its jurisdiction over aggression after the amendments adding it to the ICC Statute come into force – 30 States Parties must ratify or accept the definition of this crime – and after the States parties take a further decision in 2017. See further: www.icc-cpi.int/iccdocs/asp_docs/ Resolutions/RC-Res.6-ENG.pdf.

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Case study Instructions Have participants read Scenario No 1 (provided at pp 43–45 of the Manual and on p 101 of this Guide) or Scenario No 2 (on p 103). Divide the audience into small groups of three to five. Each group should assign a rapporteur, whose task will be to report back on the group’s discussion during plenary. As a group, participants should discuss the allocated questions with reference to the ICC Statute and the Elements of Crimes under the ICC Statute (these might help the students identify the crimes). For the crime of aggression the students should refer to the Amendments to the ICC Statute on the crime of aggression. The groups should have a flipchart available for their work. On return to plenary, invite group rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions Scenario No 1

On the basis of the facts, you should ascertain whether there are sufficient grounds for bringing charges of international crimes against the actors involved in the conflict. Please consider the appropriate charges with respect to the following crimes: • crimes committed during the conflict between the Bestanian rebel forces and Astanian army forces (paragraphs 2 and 3); • crimes committed by Colonel Butel and his forces/speaker (paragraph 3); • crimes committed by Bestanian forces in the east part of Astania (paragraph 4); • crimes committed in the village Selia (paragraph 5); • crimes committed during the air attack and ground offensive by the Astanian armed forces (paragraph 6); • crimes committed by Astanian forces after the fall of the Bestanian City (paragraph 7); • crimes committed by the local militant groups (paragraph 8); • crimes committed by Bata and Zeba (paragraph 9). Scenario No 2

You are working as a Legal Officer for the Prosecution and you are asked by the Chief Prosecutor to provide legal advice on the following questions: • What needs to be proved for each of the criminal charges proposed as an answer to the previous question? • What evidence is there that is relevant to those charges and currently supports those charges? What further evidence, for both the Prosecution and Defence, should the Prosecutor seek to find that is relevant to those charges? 64

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Answers Scenario No 1

The following charges under the ICC Statute may be brought in respect of offences committed during an armed conflict. Crimes committed during the conflict between Bestanian rebel forces and Astanian army forces (paragraphs 2 and 3)

• Bestanian rebel army: attacks on army bases and police station are legitimate attacks on military objectives provided that the attacks are carried out proportionally; and killing and injuring hundreds of Astanian civilians: – grave breaches of the Geneva Conventions, here wilful killing of a protected person (civilians) under Article 8(2)(a)(i); – grave breaches of the Geneva Conventions for causing serious injury to body or health of a protected person, here civilians, under Article 8(2)(a)(iii); – other serious violations of the laws and customs applicable in international armed conflict by intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; – depending on the facts, there might be other crimes as well, for example those defined under Article 8(2)(b)(iv); – if attacks are part of a widespread or systematic attack against a civilian population pursuant to or in furtherance of a state or organisational policy, they can be crimes against humanity, for example, murder under Article 7(1)(a) or inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health on national, ethnic grounds under Article 7(1)(k). • Astanian army forces: destroying villages, including houses of Bestanian civilians, schools and churches: – other serious violations of the laws and customs applicable in international armed conflict under Article 8(2)(b)(i), that is, intentionally directing attacks against the civilian population (the principle of discrimination between military and civilian objects); – other serious violations of the laws and customs applicable in international armed conflict under Article 8(2)(b)(ii), namely intentionally directing attacks against civilian objects (the principle of discrimination between military and civilian objects); – other serious violations of laws and customs applicable in international armed conflict under Article 8(2)(b)(v), for example, by attacking villages which are not military objectives; – other serious violations of the laws and customs applicable in international armed conflict under Article 8(2)(b)(ix), for example, by intentionally directing attacks against buildings dedicated to religion, education, art and science;

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– If the attacks are part of a widespread or systematic attack against a civilian population, pursuant to or in furtherance of a state or organisational policy, they can be crimes against humanity, on grounds of persecution on national, ethnic grounds under Article 7(1)(h). Crimes committed by Colonel Butel and his forces/speaker (paragraph 3)

• The execution of Bestanian minority group members: – the crime of genocide, namely killing members of a national or ethnical group under Article 6(a); – crimes against humanity, namely murder under Article 7(1)(a); – crimes against humanity, namely extermination under Article 7(1)(b); – grave breaches under Article 8(2)(a)(i), namely wilful killing of protected persons. • Crimes committed at the radio station: – direct and pubic incitement to commit genocide under Article 6 in connection with Article 25(3)(e). Crimes committed by Bestanian forces in the east part of Astania (paragraph 4)

• Mistreatment of captured soldiers: – grave breaches of the Geneva conventions, namely wilful killing of protected persons, here prisoners of war, under Article 8(2)(a)(i); – grave breaches of the Geneva conventions, namely torture or inhuman treatment of protected persons, here prisoners of war, under Article 8(2)(a)(ii); – grave breaches of the Geneva conventions by wilfully causing great suffering or serious injury to protected persons, here prisoners of war, under Article 8(2)(a)(iii); – crimes against humanity, namely murder, under Article 7(1)(a), torture, under Article 7(1)(f), and other inhumane acts, under Article 7(1)(k). • The transfer of non-Bestanians to other parts of Astania and Cestania: – other serious violations of laws and customs applicable in international armed conflict under Article 8(2)(b)(viii); if they are an occupying force, the crimes of deportation (that is across the state border, by Cestania) or transfer (that is within the state, by Astania); – crimes against humanity under Article 7(1)(d), namely deportation (by Cestania) or forcible transfer (by Astania).

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Crimes committed in the village Selia (paragraph 5)

• Killing of two sons by Bestanian locals in civilian clothes: – grave breaches of the Geneva conventions under Article 8(2)(a)(i), namely wilful killing, provided that the victims may be considered as being in the hands of a party to the conflict (here, Bestania) of which they are not nationals, on the basis that the Bestanian perpetrators may be considered as agents of Bestania, even though they are probably Astanian nationals of Bestanian origin (see further: Tadić, Čelebići); – serious violations of Article 3 common to the four Geneva conventions under Article 8(2)(c) (i), namely murder, provided that it is established that the conflict in that geographical area is internal and the victims were ‘taking no active part in the hostilities’; – crimes against humanity under Article 7(1)(a), namely murder, provided that the crime is committed as part of a widespread or systematic attack against a civilian population in furtherance of a state or organisational policy. Crimes committed during the air attack and ground offensive by the Astanian armed forces (paragraph 6)

• Attack on training camps and weapons stores are legitimate military targets. • Attack on Bestanian City, killing 15,000 civilians: – a violation of the laws and customs applicable in international armed conflict, under Article 8(2)(b)(iv), by intentionally launching an attack that will cause incidental loss of life or injury to civilians or damage to civilian objects which will clearly be excessive in relation to concrete and direct overall military advantage anticipated (the principle of proportionality); – crimes against humanity, namely murder, under Article 7(1)(a), persecution, under 7(1)(h), and other inhumane acts, under 7(1)(k). • Crimes committed during the ground offensive and siege of Bestanian City: – other serious violations of the laws and customs applicable in international armed conflict, under Article 8(2)(b)(i), by intentionally directing attacks against civilian population; – other serious violations of the laws and customs applicable in international armed conflict, under Article 8(2)(b)(iv), by intentionally launching an attack which will cause excessive loss of civilian life; – other serious violations of the laws and customs applicable in international armed conflict, under Article 8(2)(b)(xxv), by intentionally using starvation of civilians as a method of warfare; – other serious violations of the laws and customs applicable in international armed conflict by employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices (Article 8(2)(b)(xviii)).

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Crimes committed by Astanian forces after the fall of the Bestanian City (paragraph 7)

• Imprisoning prisoners of war (POW) in camps is not a war crime in itself but the treatment of POW must be in accordance with the Geneva Convention (III) relative to Treatment of Prisoners of War. • Mistreatment, disappearances and rape of POWs: – crimes against humanity, namely murder, under Article 7(1)(a); – crimes against humanity, namely imprisonment in violation of international law, under Article 7(1)(e); – crimes against humanity, namely torture, under Article 7(1)(f); – crimes against humanity, namely rape, under Article 7(1)(g); – crimes against humanity, namely enforced disappearances, under Article 7(1)(i); – grave breaches of the Geneva conventions, namely the wilful killing of protected persons, here prisoners of war, under Article 8(2)(a)(i); – grave breaches of the Geneva conventions, namely the torture or inhuman treatment of protected persons, here prisoners of war, under Article 8(2)(a)(ii); – grave breaches of the Geneva conventions by wilfully causing great suffering or serious injury to protected persons, here prisoners of war, under Article 8(2)(a)(iii). Crimes committed by local militant groups (paragraph 8)

• Recruiting children: – Other serious violations of laws and customs applicable in international armed conflict, under Article 8(2)(b)(xxvi), namely by conscripting or enlisting persons under the age of 15 years into the national armed forces or using them to participate actively in hostilities. • Forcing children to use addictive drugs: – Crimes against humanity and other inhumane acts, under Article 7(1)(k), causing great suffering or serious injury to body or to mental or physical health. Crimes committed by Bata and Zeba (paragraph 9)

• Bata: burglary, theft and criminal damage (ordinary crimes); and • Zeba: international trafficking in illicit drugs (international crime in a broader sense not falling within the ICC’s jurisdiction) and murder (ordinary crime punishable before domestic courts).

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Scenario No 2

The following crimes may have been committed during the attack on the village of Security: • war crimes under Article 8 of the ICC Statute. General requirements for war crimes are as follows: • the existence of armed conflict, either international or internal; • nexus with armed conflict, thereby distinguishing war crimes from ordinary crimes; • there is a victim and an object of the crime; the crimes must be committed against protected persons (for example, civilians) or protected property (for example, hospitals); • the seriousness or gravity of the crimes is such that there is a serious violation of the Geneva Conventions or other international humanitarian law instruments. The requirement for crimes under Article 8(2)(a) and (b) is the existence of an international armed conflict. In this situation, the armed conflict could be qualified as an international armed conflict between Diplomacy and Law, two states which became independent following the break-up of Utopia (a parallel might be drawn with the former Yugoslavia). The acts committed in the village Security could be qualified as the following war crimes: • grave breaches of the Geneva Conventions under Article 8(2)(a)(i), namely wilful killing, (‘killing … several Lawyer civilians…’); • grave breaches of the Geneva Conventions under Article 8(2)(a)(ii), namely torture or inhuman treatment, (‘women were raped’); • grave breaches of the Geneva Conventions under Article 8(2)(a)(iii), namely wilfully causing great suffering, or serious injury to body or health, (‘wounding several Lawyer civilians’, ‘men were severely beaten’); • other serious violations of the laws and customs applicable in international armed conflict, under Article 8(2)(i), by intentionally directing attacks against the civilian population as such or against individual civilians not taking part in hostilities (attacking ‘Lawyer civilians’); • other serious violations of the laws and customs applicable in international armed conflict, under Article 8(2)(b)(ii), by intentionally directing attacks against civilian objects (‘shooting at Lawyers’ houses’); • other serious violations of the laws and customs applicable in international armed conflict, under Article 8(2)(b)(xxi), namely committing outrages upon personal dignity, in particular humiliating and degrading treatment (‘ordered to sing Diplomacy’s national anthem’, ‘men were severely beaten’); • other serious violations of the laws and customs applicable in international armed conflict, under Article 8(2)(b)(xxii), here committing rape (‘women were raped’).

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Crimes against humanity under Article 7 of the ICC Statute

The crimes might also be qualified as crimes against humanity. In order to qualify acts as crimes against humanity they must be ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. However, it is important to emphasise that the commission of a single act, such as one murder or one rape, in the context of a broader campaign against the civilian population, can also constitute a crime against humanity. Scenario No 2 indicates that the attack by Diplomacy’s forces was directed against the civilian population, thereby meeting the second element of the test (‘against any civilian population’). The attack also seems to satisfy the requirement of ‘widespread (ie, ‘large scale’) or systematic’ (ie, the organised nature of the acts of violence) because the ‘Minister of Defence proposed that Diplomacy seize the ten villages in the border area and expel all the Lawyers from the occupied territory’ and consequently, the Diplomacy’s forces attacked ‘numerous villages in the border area’. Even the policy element under Article 7(2)(a) of the ICC Statute was met, as the attack against the civilian population took place pursuant to or in furtherance of a State policy supporting the commission of such attack. The attack on the village Security was therefore part of a widespread or systematic attack against Lawyer civilian population. Potential crimes as follows: • murder, under Article 7(1)(a); • deportation or forcible transfer of population, under Article 7(1)(d) (if we assume that the Lawyer population from Security was subsequently expelled from the village); • imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, under Article 7(1)(c) of the ICC Statute; • torture, under Article 7(1)(f); • rape, under Article 7(1)(g); • persecution of Lawyers, under Article 7(1)(h); and • other inhumane acts of a similar character, under Article 7(1)(k) of the ICC Statute (‘ordered to sing Diplomacy’s national anthem’). Crime of aggression under Article 8 bis of the ICC Statute

The crime of aggression means the planning, preparation, initiation or execution of an act of aggression, by a person in a position effectively to exercise control over or to direct the political or military action of a state. The act of aggression must, by its character, gravity and scale, constitute a manifest violation of the UN Charter. According to the understandings regarding the amendments to the ICC Statute on the crime of aggression, ‘the determination whether an act of aggression has been committed requires consideration of all circumstances of each particular case, including the gravity of the acts concerned and their consequences, in accordance with the UN Charter’. Further, in order to establish whether an act of aggression constitutes a ‘manifest’ violation of the UN Charter, the three

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components of character, gravity and scale must be sufficient to justify a ‘manifest’ determination. No one component can be significant enough to satisfy the manifest standard by itself. Although there is no jurisprudence on the crime of aggression by the ICC, the attacks on the villages, including the village of Security, seem to meet the requirement of a ‘manifest’ violation of the UN Charter: • the invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, under Article 8 bis (1)(a) of the ICC Statute; • bombardment by the armed forces of a state against the territory of another or the use of any weapons by a state against the territory of another state, under Article 8 bis (1)(b) of the ICC Statute; and/or • an attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state, under Article 8 bis (1)(d) of the ICC Statute. Let the participants discuss possible evidence which could be used to prove different elements of international crimes from the scenario.

7.4 Chapter 4: Individual criminal responsibility Note to facilitators Chapter 4 of the Manual is divided into three parts. Part 1 provides an introduction to general principle of criminal law. Part 2 explains various forms of individual criminal responsibility and provides an overview of all the elements that have to be proven for each specific form of individual criminal responsibility. Part 3 explains various grounds for contesting criminal responsibility. Chapter 4 material is presented in the format of a lecture, Q&A exercises and a case study with plenary discussion. Objectives of the chapter/session The objectives of Chapter 4 are to: • familiarise participants with the principle of legality (nullum crimen, nulla poena sine lege) and non bis in idem; • provide a basic understanding of the different modes of liability by which individuals and members of a group can be prosecuted for international crimes; • set out the elements of each mode of liability which the prosecution need to establish in order to prove individual criminal responsibility for such crimes; and • provide an overview of grounds for contesting or mitigating criminal responsibility.

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Main points to be made and key issues for discussion The points to be made and issues to be discussed will depend on the knowledge and experience of the audience and are likely to vary from course to course. However, the main points to be brought out and key issues to be raised during the consideration of Chapter 4 will be: • the principle of legality and the core guarantees that can be discerned from this principle, including the principles of nullum crimen, the nulla poena, non-retroactivity, specificity, the favour rei principle and the ban on analogy; • the principle of non bis in idem principle, which prohibits double jeopardy (a person to be tried or punished more than once for the same crime); • the forms of individual criminal responsibility prosecuted at the international courts and tribunals; • the distinction between modes of liability and inchoate crimes; • direct and individual perpetration of international crimes; • perpetration of international crimes through a group, including joint criminal enterprise (JCE) and co-perpetration doctrines; • modes of liability of ordering, instigating, soliciting, inducing and planning; • modes of liability of aiding, abetting or otherwise assisting; • complicity in genocide; • superior or command responsibility; • the three principal grounds for contesting criminal responsibility; • challenges to jurisdiction, including immunity, minority, and amnesty; • challenges to proof, including alibi, consent, mistake of fact or law; and • defences, including mental incapacity, intoxication, defence of the self, another, or certain property, duress, superior orders, military necessity, tu quoque and reprisals.

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Session planning chart for Chapter 4 Key points/activities

Method

Media

Time

1. Objectives of the chapter

• Presentation

Computer slides

5 minutes

2. Presentation of Chapter 4 points to be made and issues to be discussed:

• Presentation by facilitators

Flipchart, computer slides, handouts

25 minutes

Flipchart, computer slides, handouts

75 minutes

Flipchart, computer slides, handouts

30 minutes

a. general principle of criminal law; b. the principle of legality; c. the principle of non bis in idem.

• Presentation by participants who received the Manual prior to the trainings and have prepared a presentation • Facilitators summarise and clarify/ correct substantive law • Discussion

3. Presentation of Chapter 4 continues: a. various forms of individual criminal responsibility b. overview of all the elements that have to be proven for each specific form of individual criminal responsibility.

• Presentation by facilitators • Presentation by participants who received the Manual prior to the trainings and have prepared a presentation • Facilitators summarise and clarify/ correct substantive law • Discussion

4. Presentation of Chapter 4 continues: a. grounds for contesting criminal responsibility; b. challenges to jurisdiction; c. challenges to proof; d. defences.

• Presentation by facilitators • Presentation by participants who received the Manual prior to the trainings and have prepared a presentation • Facilitators summarise and clarify/ correct substantive law • Discussion

5. Case study

• Group work

Flipchart

90 minutes

6. Plenary discussion on the case study

• Group rapporteurs report back on group discussion

Flipchart

60 minutes

• Whole group discussion • Facilitators summarise and clarify/ correct substance Total time: 285 minutes

Training material Computer slides 1. Individual criminal responsibility 2. Learning objectives 3. Overview 4. General principles of criminal law 5. The principle of legality I

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6. The principle of legality II 7. Core guarantees of the principle of legality I 8. Core guarantees of the principle of legality II 9. The non bis in idem principle I 10. The non bis in idem principle II 11. The non bis in idem principle at the ICC 12. Individual criminal responsibility I 13. Individual criminal responsibility II 14. Forms of individual criminal responsibility (ICC Statute) 15. Article 25 of the ICC Statute 16. Forms of responsibility versus inchoate crime 17. Forms of responsibility: elements to be proved 18. Example: aiding and abetting murder as a crime against humanity 19. Inchoate crimes I 20. Inchoate crimes II 21. Inchoate crimes III 22. Perpetration 23. Joint criminal enterprise (JCE) I 24. Joint criminal enterprise (JCE) II 25. Joint criminal enterprise (JCE) III 26. Joint criminal enterprise (JCE) IV 27. JCE and the ICC Statute 28. Other forms of perpetration through a group 29. Ordering, instigating, soliciting, inducing and planning 30. Planning 31. Instigating 32. Ordering 33. Aiding and abetting or otherwise assisting 34. Responsibility of commanders and other superiors I

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35. Responsibility of commanders and other superiors II 36. Grounds for contesting individual criminal responsibility 37. Challenges to jurisdiction 38. Challenges to jurisdiction: immunities I 39. Challenges to jurisdiction: immunities II 40. Challenges to jurisdiction: minority 41. Challenges to jurisdiction: amnesty 42. Challenges to proof 43. Challenges to proof: alibi 44. Challenges to proof: consent 45. Challenges to proof: mistake of fact or law 46. Defences I 47. Defences II Questions for discussion The following are examples of the questions that may be asked to the participants in order to facilitate discussion (more questions are provided on p 239 of the Manual): • Which principles of criminal law apply in your domestic criminal law? • Have you, in the exercise of your professional activities as a judge, prosecutor or lawyer, ever been involved in determining the modes of liability which should be applied to proceedings alleging the commission of international crimes? • What modes of liability were applied and how were these modes chosen? • Did you encounter any problems regarding the application of these modes of liability to the individuals alleged to have committed the crimes; for example, gaps or imprecision in their application? • What was the outcome of the case? • What grounds for contesting criminal responsibility exist in your domestic criminal law? Handouts • Table with elements of individual criminal responsibility under the ICC Statute (provided in the Annex to the present Facilitator’s Guide). • Computer slides printed as handouts (optional).

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Case study Instructions Have participants read Scenario No 1 (provided at pp 43–35 of the Manual and (on p 101 of this Guide) and the additional Scenario No 4 provided at the end of Chapter 4 of the Manual and on p 104 of this Guide. Alternatively, you may use Scenario No 2 (on p 103). Divide the audience into small groups of three to five. If you choose Scenario Nos 1 and 4, ask each group to read one or more of the eight situations on pp 104–106; for example, if there are four groups, have each group analyse two situations (for example, Situation A and Situation B) and answer the questions provided for each of the situations below. If you choose Scenario No 2, you may wish to ask each group to answer all three questions. Each group should assign a rapporteur, whose task will be to report back on the group’s discussion during plenary. The groups should have flipcharts available for their work. On return to plenary, invite group rapporteurs to summarise their group’s response to questions addressed. Once the rapporteurs have completed their presentation, invite general observations or provide commentary on responses given. Questions Scenario Nos 1 and 4 Situation A

You work for the ICC Prosecutor and have been asked to assist in the preparation of the indictment for General Bader’s participation in war crimes and crimes against humanity. You are asked to advise on relevant offences and modes of liability relating to the incidents in Nohm-Orr and Upsala. You are asked to comment on whether General Bader can rely on military necessity in any respect. Situation B

Superintendent Loaff’s role in the events that transpired in East Astania has always been difficult to determine. However, a friendly intelligence service has provided the ICC Prosecutor with the minutes of several EEC meetings. These detail numerous occasions on which he exhorted General Bader to ‘do a thorough job’, to ‘settle this matter once and for all’, and even to ‘kill those Bestanian beggars’. You are asked to advise on whether an indictment should be prepared for Superintendent Loaff, and on what basis. Situation C

You work for the ICC Pre-Trial Chamber and have been asked to write a preliminary opinion on the merits of the written application for an indictment of General Bader for review by the judges. You note that the application indictment makes especially vague reference to his responsibility for crimes committed in the village of Dombed (in East Astania). What form of responsibility might the ICC Prosecutor have in mind and on what sorts of issues might the Pre-Trial judges require additional submissions from the Prosecutor?

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Situation D

You work for the newly appointed ICTBC Prosecutor. Rather to the surprise of all concerned, five Cestanians have been detained while holidaying on a Mediterranean island. They were identified by a number of ethnic Bestanians, who had received asylum there, and their presence reported to the police. The island authorities then commenced a prosecution under national law. However, the name of one of the men, Mr Caius, also features in 16 sacks’ worth of documents, which were rescued from incineration and passed to the ICTBC by an enterprising TV news crew. You are asked to advise on whether an indictment should be prepared for Mr Caius, on what basis, and whether there will be any impediment to his trial before the ICTBC. Situation E

You have been instructed as counsel for Mr Norris in Prosecutor v Caius, Norris and Thompson (Mr Thompson is a guard at one of the Dunfor camps). They have all been charged with responsibility for the range of inhuman and degrading treatment which was perpetrated at the Dunfor internment camps. The indictment against them alleges that: Lars CAIUS, Quigley NORRIS and Walter THOMPSON are individually responsible for the crimes charged against them in this indictment, pursuant to Article 7(1) of the Statute of this Tribunal. As defined by Article 7(1), individual criminal responsibility includes planning, instigating, ordering, committing, or otherwise aiding and abetting in the planning, preparation or execution of any acts or omissions set forth below. The term ‘participation’, as used in the Counts hereunder, is intended to incorporate any and all forms of individual criminal responsibility as set forth in Article 7(1). On the basis of a preliminary assessment of the evidence, which of the modes of liability alleged might be of most relevance to Mr Norris? Later on, in the course of a conference with your client, Mr Norris also informs you that he was drunk on most occasions he visited the camps. On three separate occasions, he drove his van into the side of the guard hut at the gate, while making deliveries. He asks whether this might help his case? Situation F

Would Mr Patko be liable for the crimes of the Black Cats on the basis of joint criminal enterprise? Situation G

The ICC Prosecutor indicted Ernest for his participation in genocide. Can Ernest invoke any of the available defences provided in the ICC Statute? Situation H

The ICC Prosecutor indicted the commander for failing to prevent or punish the murders of the prisoners of war on the basis of command responsibility for the acts of his subordinate who omitted to protect the prisoners of war from mistreatment by the civilians. Should he be convicted? What are the arguments for and against?

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Scenario No 2 Under what form of responsibility could the following individuals be charged: 1. A soldier participating in the offences committed in the village Security; 2. A commander of the military unit of Diplomacy; 3. The Prime Minister of Diplomacy. Answers Scenario Nos 1 and 4 Situation A

The modes of responsibility on the basis of which General Bader could be prosecuted include ordering, soliciting and adducing, indirect perpetration or command responsibility. As regards the question whether General Bader can rely on military necessity in any respect, see the Manual, pp 322–324. Situation B

Superintendent Loaff could be held responsible as an ‘indirect co-perpetrator’ under Article 25(3) (a) or 25(3)(d) of the ICC Statute. The form of responsibility under Article 25(3)(a) is characterised by the accused’s use of agents to carry out the tasks assigned to them in the common criminal plan, which includes the commission of a crime. The accused does not have to commit the crime him/herself but s/he uses others to carry out the tasks; however s/he must carry out essential contributions in a coordinated manner, which result in the fulfilment of the material elements of the crimes. It is essential to evidence that the accused exercised control over the criminal conduct. It is not completely clear from the case study whether Superintendent Loaff exercised control over the criminal conduct but we may assume that he did, given his position. It is clear, however, that he agreed to the common criminal plan. The form of responsibility under Article 25(3)(d) of the ICC Statute is similar to the ‘joint criminal enterprise’, which has been used in the jurisprudence of the ad hoc tribunals (ICTY and ICTR). The requirements include: the plurality of persons; a common purpose that involves a commission of a crime within the jurisdiction of the ICC; the accused’s contribution to the crime in any way other than those set out in Article 25(3)(a) of the ICC Statute; and that said contribution was intentional and made either with the aim of furthering the criminal activity or criminal purpose of the group or in the knowledge of the intention of the group to commit the crime. It is clear that there was a plurality of persons and a common criminal plan to which Superintendent Loaff contributed with the aim of furthering the criminal activity.

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Situation C

General Bader might be held responsible on the basis of command responsibility under Article 28(a) of the ICC Statute. However, the Pre-Trial judge might require additional submissions from the Prosecutor explaining evidence relating to each of the specific elements of this form of responsibility, including: evidence that there was a ‘superior–subordinate’ relationship between General Bader and Kleptopian Citizens’ Militia who committed the crimes; evidence that General Bader had effective command and control, or effective authority and control over Kleptopian Citizens’ Militia; evidence that General Bader either knew or, owing to the circumstances at the time, should have known that Kleptopian Citizens’ Militia were committing or about to commit such crimes; evidence that General Bader had failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. See further the Manual, pp 283–292. Situation D

The ICTBC Statute is a duplicate of the ICTY Statute, so the principles relating to the relationship between the ICTY and domestic courts as provided in the ICTY Statute should apply in this case. The ICTBC, like the ICTY, has primacy over domestic courts. However, in accordance with the non bis in idem principle, Article 10 of the ICTY Statute provides that a person who has been tried by a national court for acts constituting serious violations of IHL may be subsequently tried but only where: the act for which he was tried was characterised as an ordinary crime; the proceedings were not impartial or independent; the proceedings were designed to shield the accused from international criminal responsibility; or where the case was not diligently prosecuted. On the other hand, Article 13 of the ICTY Rules of Procedure and Evidence provide that when the President of the Tribunal receives reliable information to show that criminal proceedings have been instituted against a person before a court of any state for a crime for which that person has already been tried by the tribunal, a Trial Chamber shall issue a reasoned order requesting that court permanently to discontinue its proceedings. If that court fails to do so, the President may report the matter to the UN Security Council. See further the Manual, pp 247–249. As regards the possible charges in the indictment, Caius could be held responsible on the basis of the second form of JCE, also referred to systematic JCE or concentration camp JCE, which is characterised by the existence of an organised criminal system, as in the case of detention camps in which the prisoners are misused pursuant to a common plan. See further the Manual, pp 266–274. Situation E

The forms of liability which may be relevant for Mr Norris include: ‘committing’ a crime of inhumane acts as a crime against humanity or inhumane treatment as a grave breach of the Geneva Conventions; aiding and abetting, provided that it was proven in accordance with the Perišić Appeals Chamber judgment that the aid given by Mr Norris was specifically directed to the commission of crimes in the camps; or, alternatively, participation in the second form of JCE, because by delivering bread free of charge, Mr Norris made a substantial contribution to the maintenance and functioning of the camps, and he knowingly and intentionally contributed to the furtherance of the JCE at the

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camps. The evidence that he gave would not really help his case given that he had access to the camp and visited a camp even when he was not making a delivery. The fact that he was drunk on most occasions would not satisfy the conditions of the defence of intoxication and would therefore not exclude his responsibility. See further the Manual, pp 313–314. Situation F

Mr Patko could be held responsible for the crimes of the Black Cats on the basis of the third form of the JCE, known also as extended JCE or JCE III. According to this form of responsibility, the accused may be responsible for crimes committed by other participants in the JCE, even though those crimes were outside the common purpose of the JCE, if it is proved that these further crimes were reasonably foreseeable to the accused and that the accused willingly took that risk, even without directly intending the further crimes himself. He could be held responsible if he knew that the local commander deployed the Black Cats and if he was aware of the Black Cats’ reputation. However, it is questionable whether there existed a common plan to commit one or more particular crimes, given that the transfer of civilian population was required in order to ensure their security. According to the Fourth Geneva Convention, deportation and forcible transfer of civilian population is prohibited, unless the security of the civilians involved or imperative military reasons so demand it. Situation G

Ernest may invoke the defence of duress, which is provided in Article 31(1)(d) of the ICC Statute. See further the Manual, pp 316–320. Situation H

The facts in this case resemble the facts in the case of Naser Orić, who was acquitted for the alleged crimes by the Appeals Chamber of the ICTY. For a conviction on the basis of command responsibility, the Prosecution must prove that there was a superior–subordinate relationship between the commander Nasor and the perpetrators. However, as the Trial Chamber held in Orić, the direct perpetrators of a crime for which the superior is charged with responsibility under command responsibility need not necessarily be subordinates of that superior. Moreover, culpable omissions by subordinates fall within the scope of the underlying crime. The Prosecution must also prove that Nasor knew or, owing to the circumstances at the time, should have known his subordinates were about to commit or had committed the crimes in the prison. It appears that Nasor did not know that the crime had been committed. However, once he learnt about the crimes, he should have taken all necessary and reasonable measures within his power to submit the matter to the competent authorities for investigation and prosecution. See further the Manual, pp 283-292.

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Scenario No 2 1. A soldier participating in the offences committed in the village, Security: The soldier would be responsible for committing a crime as a direct perpetrator under Article 25(3) (a) of the ICC Statute. 2. The commander of the military unit of Diplomacy: The commander would be responsible on the basis of command responsibility under Article 28(a) of the ICC Statute. It is clear from the case study that the commander had effective control over the soldiers. He knew that his subordinates had committed the crimes. He found out about the crimes after they had been committed so he was unable to prevent them. However, he had the ability to punish the subordinates, namely to ‘submit the matter to the competent authorities for investigation and prosecution’, but he failed to do so and asked the soldiers not to talk about the crimes. 3. The Prime Minister of Diplomacy: There seem to be two possible forms of responsibility under which the Prime Minister may be held responsible under the ICC Statute. He could be held responsible as an ‘indirect co-perpetrator’ under Article 25(3)(a) of the ICC Statute. This form of responsibility is characterised by the accused’s use of agents to carry out the tasks assigned to them in the common criminal plan which includes the commission of a crime. The accused does not have to commit the crime him/ herself: rather s/he uses others to carry out the tasks. It is essential that the accused exercised ‘joint control’ over the criminal conduct. It is not completely clear from facts of Scenario No 2 whether the Prime Minister exercised any control over the criminal conduct but we may assume that he did, given his position. It is clear, however, that he agreed to the common criminal plan to seize the villages in the border area and expel all the Lawyers from the occupied territory. He could also be held responsible under Article 25(3)(d) of the ICC Statute. This form of responsibility is similar to the JCE which has been used in the jurisprudence of the ad hoc Tribunals (ICTY and ICTR). The requirements include the plurality of persons, a common purpose that involves a commission of a crime within the jurisdiction of the ICC, and the accused’s contribution to the commission of such crime. It is clear that there was a plurality of persons and a common purpose to seize the villages in the border area and expel all the Lawyers from the occupied territory. Although there is not much information with regard to specific acts or omissions of the Prime Minister it could be assumed he contributed to the common plan.

7.5 Chapter 5: Prosecution before national courts Note to facilitators Chapter 5 of the Manual describes how international crimes may be prosecuted in national courts. It explains the concept of universal jurisdiction, impact of international law on national legislation and prosecution, legal impediment to the exercise of national jurisdiction and state cooperation with respect of national proceedings.

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Chapter 5 material is presented in the format of a lecture, Q&A exercises and a case study with plenary discussion. Objectives of the chapter The objectives of Chapter 5 are to: • provide participants with an understanding of how national prosecutions of international criminal law can be undertaken; • alert participants to the fundamental value of national prosecutions of international criminal law; and • familiarise participants with the various difficulties that arise in national prosecutions of international criminal law and the possible ways in which such difficulties can be overcome. Main points to be made and key issues for discussion The points to be made and issues to be discussed will depend on the knowledge and experience of the audience and are likely to vary from course to course. However, the main points to be brought out and key issues to be raised during the consideration of Chapter 5 will be: • the meaning of jurisdiction, forms of jurisdiction and the traditional heads of legislative jurisdiction; • the meaning of universal jurisdiction and its role in bringing to justice those that are allegedly responsible for international crime; • the impact of international law on national legislation and prosecution; • legal impediments to the exercise of national jurisdiction; and • state cooperation with respect to national proceedings.

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Session planning chart for Chapter 5 Key points/activities

Method

Media

Time

1. Objectives of the chapter

• Presentation

Computer slides

5 minutes

2. Presentation of Chapter 5 points to be made and issues to be discussed:

• Presentation

Computer slides

25 minutes

Flipchart

(30 minutes)

• Q&A and discussion

a. concept of universal jurisdiction; b. impact of international law on national legislation and prosecution; c. legal impediments to the exercise of national jurisdiction; and d. state cooperation with respect of national proceedings. 3. Exercises

• Group work

Exercise No 2 (Optional)

• Group rapporteurs report back on group discussion • Whole group discussion • Facilitators summarise and clarify/ correct substance

4. Case study

• Group work

Flipchart

30 minutes

5. Plenary discussion on the case study

• Group rapporteurs report back on group discussion

Flipchart

30 minutes

• Whole group discussion • Facilitators summarise and clarify/ correct substance

Total time: 90 minutes (120 minutes)

Training material Computer slides 1. Prosecution before national courts 2. Learning objectives 3. Overview 4. Jurisdiction 5. Traditional heads of legislative jurisdiction 6. Universal jurisdiction I 7. Universal jurisdiction II 8. Impact of international legislation on national legislation 9. Impact of international law on national prosecution

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10. Impediments 11. State cooperation 12. Extradition 13. Mutual legal assistance 14. Enforcement of foreign judgments Questions for discussion The following are examples of the questions that may be asked to participants in order to facilitate discussion (more questions are provided on p 333 of the Manual): • How does international criminal law become a part of the domestic law in your country? • Has your country implemented in its domestic law its international treaty obligations to criminalise certain conduct and provide jurisdiction over such crimes to its national courts? • Has your country undergone a regime change and if so due to what circumstances? • Have you been involved in a national prosecution of international criminal law? If so, did this involve any cooperation with other countries? Handouts • Universal jurisdiction: a preliminary survey of legislation around the world, Amnesty International, 2011, available at www.amnesty.org/en/library/asset/IOR53/004/2011/en/ d997366e-65bf-4d80-9022-fcb8fe284c9d/ior530042011en.pdf. • Computer slides printed as handouts (optional). Exercises Instructions Divide the audience into small groups of three to five. Each group should assign a rapporteur whose task will be to report back on the group’s discussion during plenary. The groups should have a flipchart available for their work. As a group, participants should discuss the questions below and in Chapter 5 of the Manual on p 377, relating to each of the international crimes discussed in Chapter 3. If time is limited, allocate a selection of questions to each group. On return to plenary, invite group rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions 1. What forms of jurisdiction exist and what are traditional heads of jurisdiction? 2. Does universal jurisdiction require any link between the crime and the forum state?

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3. Are you in favour of universal jurisdiction? What are the advantages and disadvantages of universal jurisdiction? 4. Once a state ratifies an international treaty dealing with international criminal matters, does it have to modify its domestic laws in order to implement the treaty? 5. Does the ICC Statute require of States Parties that they harmonise their domestic criminal laws with the ICC Statute? 6. Does the jurisprudence of the international courts and tribunals influence the prosecution of international crimes in your country? 7. Are states allowed to enact amnesties for genocide, crimes against humanity and war crimes? What about pardons? 8. Can an acting Head of State be arrested on the basis of an arrest warrant for his or her alleged involvement in the commission of international crimes (genocide, crimes against humanity, war crimes) when travelling abroad? What about a Minister for Interior Affairs who is attending a diplomatic conference abroad or a former Head of State while spending a holiday abroad? 9. Can a national court try a person who has already been tried by the international court or tribunal? Answers 1. There are three forms of jurisdiction: legislative, adjudicative and enforcement jurisdiction. The traditional heads of legislative jurisdiction include territoriality, active nationality, passive national, and the protective principle. 2. Universal jurisdiction does not require any link to the forum state. See further the Manual, p 338. 3. Let the participants discuss the advantages and disadvantages of the universal jurisdiction. Make sure that you discuss the practical problems of prosecutions based on universal jurisdiction, the Manual, pp 345–346. 4. In order to implement a treaty, states must adopt a new law or modify existing laws. See further the Manual, pp 346–351. 5. Yes, states are obliged to harmonise their domestic criminal laws with the ICC Statue; this will enable them to conduct domestic trials in accordance with the principle of complementarity and to fulfil their obligation to cooperate with the ICC. 6. Let the participants discuss the practice in their own countries. See also the Manual, pp 353–356. 7. International law prohibits amnesties for crimes under international law, including genocide, crimes against humanity, and war crimes. The same should apply for pardons. See further the Manual, pp 356–359. 8. An acting Head of State enjoys personal immunity that is absolute so he cannot be arrested while travelling abroad. Although the practice is not uniform, it appears that a Minister of Interior is not entitled to the personal immunities of senior state officials that are, in accordance with the INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

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Arrest Warrant case, enjoyed by Heads of State, Prime Ministers and Ministers of Foreign Affairs. He may also not be entitled to functional immunity if charged with crimes under international law though the practice on this issue is not uniform. The former Head of State is not entitled to personal immunity so he could be arrested while spending a holiday abroad. 9. A national court may not try a person who has already been tried by an international court or tribunal if that trial concerns the same criminal conduct. Case study Instructions Have participants read Scenario No 5 (p 106). Divide the audience into small groups of three to five. Each group should assign a rapporteur, whose task will be to report back on the group’s discussion during plenary. As a group, participants should discuss the questions below relating to each of the four situations. The groups should have a flipchart available for their work. On return to plenary, invite group rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions 1. What is the basis of jurisdiction for the prosecution of former Astanian President Veva in Dastania? 2. Can Dastania assert jurisdiction over all crimes alleged? 3. What is the impact of the amnesty granted by former President Veva? 4. Does it matter that former President Veva was a serving Head of State at the time of commission of the alleged crimes? 5. What factors did Estania have to take into account before granting the extradition request of former President Veva to Dastania? Answers 1. The former Astanian President Veva in Dastania could be prosecuted on the basis of universal jurisdiction. See further the Manual, pp 334–339. 2. The ICC does not confer universal jurisdiction. However, the Torture Convention provides for universal jurisdiction for torture so Veva could be prosecuted for torture on the basis of universal jurisdiction. It is not clear whether Dastania has ratified the Geneva Convention; however, these conventions have been considered to be part of customary international law. This is important because Dastania made provisions for the possible prosecution of crimes under customary international law. Accordingly, Veva could be prosecuted for grave breaches of the Geneva Conventions on the basis of universal jurisdiction. It is not clear whether customary international law provides for universal jurisdiction for crimes against humanity and other serious breaches of laws and customs of war.

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3. Amnesties for international crimes, including genocide, crimes against humanity and war crimes, are prohibited under international law so amnesty granted by former President Veva should prevent his prosecution for the alleged crimes. See further the Manual, pp 356–358. 4. As a former head of State, Veva is not entitled to personal immunity; in accordance with the House of Lords in the Pinochet case, he is also not entitled to functional immunity in relation to torture and arguably also in relation to other crimes under international law. 5. Estania took into account Destania’s assurance that the death penalty, which remains in force in Dastania, would not be imposed. See further the Manual, pp 369–371.

7.6 Chapter 6: Prosecution before international courts and tribunals Note to facilitators Chapter 6 of the Manual is divided into three parts. Part 1 explains the relationship between international and national jurisdictions. Part 2 describes the organisation of international courts and tribunals. Part 3 explains international criminal proceedings and provides details on various stages of proceedings. Chapter 6 material is presented in the format of a lecture, Q&A exercises and a case study with plenary discussion. Objectives of the chapter/session The objectives of Chapter 6 are to: • provide participants with an understanding of how international prosecutions of international criminal law can be undertaken; • alert participants to the fundamental value of international prosecutions of international criminal law; • provide participants with an understanding of the relationship between the international criminal courts and domestic courts, namely the principle of primacy and the principle of complementarity; • to familiarise participants with the responsibility of states to cooperate with international criminal courts and tribunals, particularly with the ICC; • familiarise participants with the organisation and functioning of various international courts and tribunals, namely the structure of their organs, various stages of their procedures and the nature of cooperation between the courts and tribunals and states; and • familiarise participants with the various difficulties that arise in international prosecutions of international criminal law and the possible ways in which such difficulties can be overcome.

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Main points to be made and key issues for discussion The points to be made and issues to be discussed will depend on the knowledge and experience of the audience and are likely to vary from course to course. However, the main points to be brought out and key issues to be raised during the consideration of Chapter 6 will be: • the relationship between international and national jurisdictions and the distinction between the principle of primacy and the principle of complementarity; • the obligation to cooperate with the ICC by States Parties to the ICC Statute and the sanctions for non-cooperation; • the structure of international courts and tribunals and the role of their various organs, Judges (Chambers), the Prosecution, the Registry, the Presidency, the Defence; • the role of amicus curiae before international courts and tribunals; • international criminal proceeding and the rules of procedure and evidence; • the general principles of international criminal proceedings and the distinction between adversarial and inquisitorial system; • stages of the international criminal proceedings, including investigation, Pre-Trial, trial, sentencing, appeal; • protection of victims, witnesses and victims’ participation in the proceedings and reparations to victims; • review proceedings, enforcement of sentences, early release, pardon or commutation of sentence; • compensation for unlawful arrests and convictions.

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Session planning chart for Chapter 6 Key points/activities

Method

Media

Time

1. Objectives of the chapter

• Presentation

Computer slides

5 minutes

2. Presentation of Chapter 6 points to be made and issues to be discussed:

• Presentation

Computer slides

25 minutes

Computer slides

30 minutes

Computer slides

90 minutes

Flipchart

45 minutes

• Q&A and discussion

a. primacy and complementarity; b. admissibility under the ICC Statute; and c. cooperation with international courts. 3. Presentation of Chapter 6 continues: a. the structure of international courts;

• Presentation • Q&A and discussion

b. the Judges; c. the Presidency; d. the Prosecution; e. the Registry; f. the Defence; g. the role of amicus curiae before international courts. 4. Presentation of Chapter 6 continues: a. adversarial and inquisitorial systems;

• Presentation • Q&A and discussion

b. general principles governing international proceedings; c. stages of the proceedings; d. protection of victims and witnesses; e. victims participation in the proceedings; and f. reparations to victims. 5. Exercises

• Group work • Group rapporteurs report back on group discussion • Whole group discussion • Facilitators summarise and clarify/ correct substance

6. Case study

• Group work

Flipchart

60 minutes

7. Plenary discussion on the case study

• Group rapporteurs report back on group discussion

Flipchart

60 minutes

• Whole group discussion • Facilitators summarise and clarify/ correct substance Total time: 315 minutes

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Training material Computer slides 1. Prosecution before international courts and tribunals 2. Learning objectives 3. Overview 4. Relationship between international and national jurisdictions 5. Primacy versus complementarity 6. Primacy 7. Complementarity 8. Issues of admissibility I 9. Issues of admissibility II 10. Issues of admissibility: ‘unwillingness’ 11. Issues of admissibility: ‘inability’ 12. Government of Kenya admissibility challenge 13. Cooperation with the ICC 14. Sanctions for non-cooperation with the ICC 15. Organisation of international court and tribunals 16. Structure of the ICC and ICTY/ICTR 17. Judges (Chambers) 18. Judges: ICC I 19. Judges: ICC II 20. Presidency/Bureau 21. Office of the Prosecutor (OTP) 22. The Registry: ICTY/ICTR 23. The Registry: ICC 24. The Defence 25. The Defence Counsel 26. The Office of Public Counsel for the defendant (ICC) 27. Amicus curiae

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28. International criminal proceedings 29. Rules of Procedure and Evidence 30. Adversarial versus inquisitorial system 31. General principles governing international proceedings 32. Stages of proceedings 33. Investigation I 34. Investigation II 35. Pre-Trial: indictment 36. Pre-Trial: preparation for the trial 37. Trial 38. Requirements for the decision 39. Sentencing I 40. Sentencing II 41. Appeal 42. Grounds of appeal 43. Protection of victims and witnesses 44. Victims’ participation in the proceedings 45. Reparations to victims 46. Trust Fund for Victims (TFV) 47. Review proceedings I 48. Review proceedings II 49. Enforcement of sentences 50. Early release, pardon or commutation of sentence 51. Compensation for unlawful arrest/convictions Questions for discussion The following are examples of the questions that may be asked to the participants in order to facilitate discussion (more questions are provided on p 379 of the Manual): • Do you think that international criminal courts should always have primacy over national courts? • Has your country been involved in cooperation with the international courts and tribunals? Do you know of any particular example of such cooperation? INTERNATIONAL CRIMINAL LAW: A FACILITATOR’S GUIDE ON INTERNATIONAL CRIMINAL LAW FOR JUDGES, PROSECUTORS AND LAWYERS

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• Have any of the international courts or tribunals had jurisdiction over international crimes committed in your country or by the nationals of your country? • Have you been involved in an international prosecution of international crimes? If so, in what capacity? • Are you familiar with the procedures before the international courts and tribunals? Are they similar to or do they differ from the procedures before the domestic courts of your country? Handouts • The Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, Judgement on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, available at www.icc-cpi.int/ iccdocs/doc/doc1223134.pdf. • ICC Rules of Procedure and Evidence, available at www.icc-cpi.int/en_menus/icc/legal%20 texts%20and%20tools/official%20journal/Documents/RPE.4th.ENG.08Feb1200.pdf. • A Guide for the Participation of Victims in the Proceedings of the Court, available at www.icc-cpi. int/en_menus/icc/structure%20of%20the%20court/victims/participation/Pages/booklet.aspx. • Computer slides printed as handouts (optional). Exercises Instructions In the following exercises, have participants read the questions provided under each exercise below. Divide the audience into small groups of three to five. Each group should assign a rapporteur whose task will be to report back on the group’s discussion during plenary discussion. If time is limited, allocate a selection of questions, relating to each of the international crimes discussed in Chapter 3, to each group. The groups should have a flip chart available for their work. On return to the plenary discussion, invite group rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions 1. Which of the two principles, the principle of primacy and the principle of complementarity, apply to the ICC and to other international criminal tribunals, including the international criminal tribunals for Yugoslavia and Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon? 2. What are the advantages of the principle of complementarity as opposed to the principle of primacy and vice versa?

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3. What factors would you take into account in assessing whether a state is unwilling or unable genuinely to carry out the investigation or prosecution of crimes under international law? 4. Can the ICC exercise its jurisdiction in the following cases? Assume that all states involved are parties to the ICC. i. A state has been investigating crimes against humanity allegedly committed by its own nationals during an armed conflict that ended ten years ago. The investigation officially began three years ago; however, nobody has yet been indicted for the crimes in question. ii. Three men were tried together before a domestic court for crimes against humanity, war crimes and genocide. After a three-month trial, they were acquitted of genocide but found guilty of war crimes and crimes against humanity. They were given an aggregate sentence of two years for these two offences. iii. A state has investigated a crime against humanity allegedly committed by its own national. After two years of investigations, the Prosecutor decides not to prosecute the person concerned due to insufficient evidence. The victims, who have since moved to a neighbouring country, object to the Prosecutor’s decision and claim that they have been repeatedly urging the Prosecutor to consider their evidence against the perpetrator. iv. In a trial before the ICTY, an accused was found guilty of war crimes and sentenced to two years of imprisonment. On appeal, the Appeals Chamber reversed the conviction and found him not guilty of the charges. Two years after the accused returned to his home country, the domestic authorities, unconvinced by the decision of the ICTY, decided to prosecute him for war crimes. Are they entitled to do so? What about if they found new evidence? 5. If the accused refuses to enter a plea, does it mean that he is admitting his crime? What must the court do? 6. What are the most fundamental rights of the accused during the criminal proceedings? 7. In light of the principle of equality of arms, is the accused entitled to the same level of funding and the same number of lawyers as the Prosecution? 8. Can the ad hoc tribunals and the ICC always appoint a defence counsel to the accused despite the fact that the accused insists on defending himself? 9. What are the main differences between the Pre-Trial proceedings before the ICTY/ICTR and the ICC? 10. Can a person who is formally a suspect of war crimes be arrested before his or her indictment or before the charges are confirmed during the Pre-Trial phase at the ICTY/ICTR or ICC? 11. What obligations do the parties have in the proceedings before the ICTY/ICTR or ICC as regards disclosure? 12. What are most common protective measures available to victims and witnesses? 13. Can the victims participate in the proceedings before the international courts and tribunals?

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14. What is the standard of proof for convicting a person at the international courts and tribunals? Can an appeal be brought against a decision on acquittal? 15. Can the appeal be brought against the sentence only? 16. Can a person request the revision of a conviction five years after the delivery of the judgment if he discovers new evidence which, if it had been proved at trial, might have resulted in a different verdict? What are the conditions for a revision? Answers 1. The principle of ‘complementarity’ applies to the ICC, while the principle of primacy applies to the other tribunals above-listed. 2. The principle of complementarity is designed to ensure that the sovereignty of states remains respected while encouraging states to ratify the ICC Statute and implement it effectively. It allows the national courts, which are generally better equipped, to prosecute and try suspects, particularly where the crimes were committed on their territory, to assume jurisdiction on the basis of territoriality or nationality (or possibly on the basis of universal jurisdiction). The principle encourages states to bring those responsible for crimes under international law to justice. According to Article 1 of the ICC Statute, the ICC has power to exercise its jurisdiction over persons for the most serious crimes of international concern. Although the ICC Statute gives the Prosecutor discretion to select individuals to bring before the Court, in accordance with Article 17(1)(d) of the ICC Statute, the cases must be of sufficient gravity to justify further action by the Court. The principle of complementarity should also prevent the court from becoming overloaded.

Primacy, on the other hand, ensures that international crimes are prosecuted effectively; it gives the tribunal discretion to decide which cases it will prosecute and which cases the domestic courts should defer to it and it may refer a case to the national court.

3. The question whether a state is unwilling or unable genuinely to carry out the investigation or prosecution of international crimes concerns the question of admissibility, which is regulated in Article 17 of the ICC Statute. The determination of unwillingness is defined in Article 17(2) of the ICC Statute and the question of inability is regulated in Article 17(3) of the ICC Statute. The question is to what extent fair trial rights should be part of the admissibility test. So far the ICC jurisprudence has not provided an answer to this question. 4. The answers are as follows: i. The ICC has jurisdiction over the crimes given that the state is a party to the ICC Statute. The question, however, is whether the cases are admissible. The state has been investigating the case for a number of years yet no trials have been conducted so far. Arguably, the state is unwilling to carry out prosecution in which situation the case is admissible in accordance with Article 17 of the ICC Statute. In accordance with the Kenya admissibility decision, the state, in order to succeed with the admissibility challenge, would have to provide specific evidence showing that the national proceeding encompasses both the same person and the same conduct investigated before the ICC.

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ii. The short length of the trial, as well as the low sentences for war crimes and crimes against humanity, indicate in all likelihood that the domestic trial was for the purpose of shielding the person concerned from criminal responsibility for alleged crimes. iii. In accordance with Articles 17(1)(c) and 20(3) of the ICC Statute, the case would be admissible before the ICC In accordance with Article 17(1)(b) of the ICC Statue, it appears that the case would be admissible before the ICC provided that it was proved that the state is unwilling genuinely to prosecute. iv. The state may not prosecute the accused after his acquittal by the ICTY. If new evidence were to be found, the state authorities should send the new evidence to the ICTY Prosecutor, who could start a review proceeding. 5. At the ICTY, if the accused does not want enter a plea, the Presiding Judge of the Trial Chamber enters a plea of not guilty. The Judge designates from among the members of the Trial Chamber a Pre-Trial judge responsible for Pre-Trial proceedings. See further the Manual, pp 430–431. 6. The rights of suspects and the accused are described in the Manual, pp 410–421, Articles 55 and 67 of the ICC Statute. 7. Although in practice the imbalance between the funding available to the Prosecution and the funding available to the Defence, particularly in light of the participation of victims, may put the defendant at disadvantage, it has been held in theory that equality of arms does not mean equality of means and resources. 8. Generally, the accused enjoys a right to self-representation; however, this right is not absolute and it can be restricted under certain conditions. See further the Manual, pp 416–419. 9. The differences between the Pre-Trial proceedings before the ICTY/ICTR and the ICC are explained in the Manual, pp 426–435. 10. The suspect may be arrested before the confirmation of his/her indictment (in the ICTY/ICTR) or the confirmation of charges (in the ICC). See further the Manual, p 424, Rule 54 of the ICTY/ ICTR Rules of Procedure and Evidence and Article 57(3) of the ICC Statute. 11. Disclosure obligations are described in the Manual, p 431–435. 12. Protective measures are described in the Manual, pp 439–440. The most common ones include: the use of a pseudonym, closed proceedings and facial/voice distortion. 13. Victims can participate in proceedings before the ICC, but not before the ICTY or ICTR. See further the Manual, p 441. 14. The standard of proof for conviction is ‘beyond a reasonable doubt’. 15. An appeal can be brought against both acquittal and conviction but it may be against the sentence only. See further the Manual, pp 446–448. 16. Yes, a person can request the revision of a conviction in this situation. The conditions for a revision are described in the Manual, pp 448–449.

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Case study Instructions Have participants read one or more of the situations in Scenario No 6 (provided at the end of Chapter 6 of the Manual and on p 107 of this Guide). Divide the audience into small groups of three to five. Each group should assign a rapporteur whose task will be to report back on the group’s discussion during plenary. Each group should discuss the allocated questions. The groups should have a flipchart available for their work. On return to plenary, invite group rapporteurs to summarise their group’s response to questions addressed. Once all questions have been addressed, invite general observations or provide commentary on responses given. Questions Situation A

1. Can Rumpole oppose the Prosecution Motion for Protective Measures? If so, how would he do so procedurally? On what grounds could he oppose the Motion? If the Chamber does not wish to grant or refuse the Prosecution Motion outright, what might be a compromise solution? 2. Should Rumpole be allowed to withdraw from the case if he considers that his professional duty requires him to do so? 3. Is the right to defend oneself absolute? If not, under what circumstances may the right be infringed? 4. Was the Trial Chamber right to acquit Rumpole of an offence against the administration of justice? 5. Did Rumpole approach the question of alibi correctly? Did the Trial Chamber? Situation B

In order to obtain further information, the victims have contacted you and asked you to provide legal advice on the following questions: 1. Can the victims participate in the proceedings? If so, during what stages? 2. Can the victims participate in the proceedings personally or must they have a legal representative? 3. Can the victims give evidence before the ICC? 4. Can the victims request protective measures to prevent disclosure of their identities if they testify before the ICC? 5. Can the victims request any reparation(s) from the persons convicted before the ICC who were responsible for the injuries, losses or harm suffered by the victims?

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Situation C

The ICC Trial Chamber convicted Buda for deportations as a crime against humanity. However, there have been some disagreements between the judges of the Trial Chamber in their consideration of the appropriate sentence for Buda’s criminal conduct. You are working as a Legal Officer in the Trial Chamber which has been dealing with Buda’s case. In order to resolve the disagreements, the presiding judge of the Trial Chamber asks you to prepare a proposal for the appropriate sentence by analysing all the factors that should be taken into account pursuant to the ICC Statute and the Rules of Procedure and Evidence. Buda has no prior convictions. Situation D

Your assistant has prepared a first draft of some of the provisions. Your task is to review these provisions and make any corrections, if necessary, to ensure that they are in line with the ICC Statute. Draft Penal Code (selected provisions) Article 8 (War crimes)

1. A war crime must be committed as part of a plan or policy or as part of a large-scale commission of such crimes. 2. War crimes, namely any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention, are grave breaches of the Geneva Conventions of 12 August 1949: (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) wilfully causing great suffering, or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (f) wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement; (h) taking of hostages. Article 9 (Crimes against humanity)

A crime against humanity means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, on national, political, ethnic, racial or religious grounds:

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1 Murder; 2. Extermination; 3. Enslavement; 4. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; 5. Torture; 6. Persecution; 7. Enforced disappearance of persons; 8. The crime of apartheid; 9. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. Article 10 (Genocide)

1. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious, political or social group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Forcibly transferring members of the group to another group. Article 20 (Responsibility of commanders)

1. A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control, as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (a) the military commander or person either knew or, owing to circumstances at the time, should have known that the forces were committing or about to commit such crimes; and (b) the 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.

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Article 25 (Defence of superior orders)

1. The fact that a crime in the Penal Code has been committed by a person pursuant to an order of a government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless: (a) the person was under a legal obligation to obey orders of the government or the superior in question; (b) the person did not know that the order was unlawful; and (c) the order was not manifestly unlawful. Answers Situation A

• Rumpole can, of course, oppose the Prosecution Motion for Protective Measures. Procedurally, he would do so in his Response to the Prosecution Motion. He can argue that his right to have adequate time to prepare for trial is infringed if the identity of a witness, especially a key witness, is revealed only 30 days before the witness testifies. That leaves too little time for the Defence to conduct investigations in relation to the witness’s evidence. It also means that Rumpole might have cross-examined the other prosecution witnesses who gave evidence previously differently had the identity of witness’ Mr X been disclosed prior to the start of trial. Therefore, Rumpole can argue that if the Prosecution Motion is granted, it would violate the right to a fair trial. As a compromise that the Chamber might order would be that Mr X’s identity be disclosed to the defence 30 days before the start of trial, rather than 30 days before the witness testifies. • An advocate should be allowed to withdraw from a case if he or she considers that it is his or her professional duty to do so. Judges should only overrule an advocate in that case for extremely good reasons of an imperative nature. • Jurisprudence from the ICTY and other tribunals establishes that the right to defend oneself is not absolute, but may have to give way to other considerations. If the accused shows by his or her conduct that he or she intends to disrupt the proceedings by unruly or abusive behaviour, this is one circumstance where a lawyer may be appointed over the wishes of the accused. See further Milošević and Šesšlj jurisprudence. • The Chamber was right to acquit Rumpole. The fact that a witness disclosed the name of a protected witness does not make him responsible for criminal conduct, not least since he did not intend for the witness’ name to be made public. • Rumpole is bound by the ICC Rules and so he should have disclosed the alibi, even if tactically he saw an advantage in keeping quiet about the alibi defence until trial. However, the ICC Chamber must not find a man guilty, whom they would otherwise have found not guilty, simply to punish him for not giving notice of an alibi defence in accordance with the Rules. On the other hand, if a late disclosure of the alibi defence led the Chamber to doubt its credibility, and the evidence did not establish an alibi to the requisite standard of proof, then the Chamber would be right not to

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accept the defence. However, it could still only convict Flashman if the evidence established his guilt beyond a reasonable doubt, irrespective of the defence raised. Situation B

The answers regarding the victims’ participation in the proceedings can be found in the Manual, p 441. Further information is available in the following document: A Guide for the Participation of Victims in the Proceedings of the Court (distributed to the participants). Situation C

The factors that have to be taken into consideration for the determination of the sentence are provided in Article 78 of the ICC Statute as well as Rule 145 of the ICC Rules of Procedure and Evidence. See further the Manual, pp 442–446. Situation D

Participants should compare the provisions of the Draft Penal Code (the Draft) with the ICC Statute and correct the text so that it corresponds to the text of the ICC Statute. For example, Article 8(1) of the Draft provides that a war crime must be committed as part of a plan or policy or as part of a large-scale commission of such crimes. According to Article 8(1), however, a war crime does not necessarily have to be committed as part of plan or policy or as part of a large-scale commission of such crimes. Further, Article 8 of the Draft only contains grave breaches of the Geneva Convention but no other serious violations of the laws and customs applicable either in international armed conflict or armed conflicts not of an international character. Article 9 of the Draft requires that a crime against humanity be committed on national, political, ethnic, racial or religious grounds, while Article 7 of the ICC Statute provides no such requirement. Article 9 of the Draft also omits two other underlying offences of crimes against humanity: deportation and forcible transfer under Article 7(1) (d) of the ICC Statute; and rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity under Article 7(1)(g) of the ICC Statute. Article 10 of the Draft includes a political or social group as being among the groups that may be subject to genocide, while the definition in Article 6 of the ICC Statute is limited to a national, ethnic, racial or religious group. Article 10 of the Draft also omits one underlying offence that is included in Article 6(d) of the ICC Statute, imposing measures intended to prevent births within the group. Article 20 of the Draft is limited to the responsibility of commanders but does not contain any provisions on the responsibility of other superiors as provided in Article 28 of the ICC Statute. As regards Draft Article 25, the provision in Article 33(2) of the ICC Statute should be added.

7.7 Case studies Instructions There are two main hypothetical scenarios available for the trainings: • Scenario No 1 is included in the Manual at pp 44–45. Each chapter of the Manual includes questions relating to Scenario No 1 as relevant to the chapter content. The Manual also includes

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additional complementary scenarios which relate to the subject matter covered in a particular chapter. The text of Scenario No 1 is provided below for the convenience of facilitators. The additional scenarios from the Manual are also provided under the relevant chapters below for ease of reference. • Scenario No 2 has been designed for shorter trainings, those that run for fewer than three days, or where the participants have very basic or no understanding of law in general. This scenario is not included in the Manual and must therefore be distributed to participants at the beginning of the course in addition to the Manual. Participants should read the appropriate scenario in advance of the course or before commencing the first case-study exercise. Encourage participants to reread the case study at the beginning of each subsequent case-study exercise to refresh their memory. Scenarios Scenario No 1 (Manual, pp 43–45)

Stania was a federal country comprising three republics: Astania, Bestania and Cestania. Each republic had minorities from other republics living in the respective border areas, which often caused tensions between the majority population and the minorities. These tensions culminated in armed conflict taking place in various parts of Stania. Consequently, Stania broke apart and the three republics became the independent states of Astania, Bestania and Cestania. The formerly republic borders became the state borders among the new states. After independence, a substantial minority of Bestanians who lived in the eastern part of Astania complained about the discriminatory treatment of the members of their minority by the Astanian authorities. They called for greater autonomy and active participation in the government of Astania. Astania, however, refused to accommodate the requests of the Bestanian minority. They argued that their minority was sufficiently represented by two members of the parliament whose seats were permanently reserved for their minority. As a result, the Bestanian minority asked Bestania to intervene on their behalf and to try to convince Astania to grant the Bestanian minority more rights. Bestania first held diplomatic negotiations with Astania, which did not however produce any results. During that period, members of the Bestanian minority set up their own governmental authority with an aim to secede from Astania and join Bestania. They also organised a rebel army, which carried out attacks on army bases, police stations and other buildings belonging to Astanian authorities that were located in the eastern part of Astania, which was predominantly populated by the members of Bestanian minority. During these attacks, rebels killed and injured hundreds of Astanian civilians. Astanian authorities reacted by launching an armed attack against the rebel army. During the attack, the Astanian army forces destroyed a number of villages occupied by the rebel forces, including houses belonging to Bestanian civilians, schools and churches. Colonel Butel was a commander of a unit whose task was to capture the rebels in the largest town in the east part of Astania, called Sidea. He declared that the conflict would never end if the entire ethnic Bestanian group was not destroyed. Consequently, his soldiers gathered all the members of Bestanian minority in Sidea and executed them. The

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commander also seized a radio station and hired a speaker who called upon Astanian civilians to destroy all members of the Bestanian minority. In response to the conflict, Bestania sent its armed troops to Astania in order to assist Bestanian rebel forces and to protect the Bestanian minority. Bestanian armed forces entered Astania in order to expel all army forces from the east part of Astania where the Bestanian minority was situated. Bestanian armed forces captured a number of members of the Astanian army. As a result of mistreatment, many Astanian soldiers died or were seriously injured by members of the Bestanian army. Bestanian armed forces also helped the rebels to transfer and deport everyone who was not of Bestanian ethnicity from the eastern area of Astania; those of Astanian origin were transferred to other parts of Astania and those of Cestanian origin were deported to neighbouring Cestania. Astania, in response, declared war on Bestania. In a village called Selia, located in the east of Astania, the Bestanian minority constituted half of the village population. All the Bestanian men from the village of Selia supported the Bestanian rebel groups. One night, a group of Bestanian locals from Selia wearing civilian clothes entered a house of an elderly man of Astanian origin and kidnapped his two sons both in their 20s. Their bodies were found two days later in a nearby stream. The post-mortem examination revealed that they had sustained a number of fatal injuries. After this incident, the local police, who were of Astanian origin, gathered all Bestanian men from Selia village and marched them to an abandoned house at the edge of the village. They pushed them into the house, locked the doors and set the house on fire. Only a few men managed to escape; the rest died in the fire. Astanian armed forces launched a massive air attack against a variety of locations in Bestania. Some of these locations were training camps of the Bestanian rebel army and others were weapons stores. There was also a large-scale attack on the Bestanian capital, in which an estimated 15,000 civilians were killed. Following the air attacks, the Astanian armed forces launched a ground offensive. They invaded Bestania and laid siege to the capital, Bestanian City, surrounding it for 100 days, cutting off food and water, and terrorising the population with constant shelling and sniping. Over the course of the invasion, there was widespread use of chemical weapons. These were primarily directed against the Bestanian forces, but an estimated 8,000 civilians were killed or injured by the chemical weapons. After 100 days, the Astanian forces captured Bestanian City and arrested the military leadership of Bestanian forces. All captured military commanders were taken into prison camps in Astania. They joined other prisoners who were captured by the Astanian forces after the government launched a regime of terror against those suspected of supporting Bestanian rebel forces. Astanian officials interrogated thousands of suspects, many of whom subsequently disappeared and were never seen again. Some of the guards would occasionally kick the prisoners, take them out and beat them. The prisoners were kept in very crowded conditions. There was limited water, and the prisoners were fed thin soup twice a day. Many became ill, but the doctor only came occasionally. Guards would also take imprisoned women out of the prison cells; some of them alleged they were raped or sexually assaulted. Back in Astania, the government reinforced its operation in the eastern part of the country. Due to enlarged military operations, which were now extended from the east of Astania to Bestania, the attacks by the Astanian forces were assisted by local informal militia groups. These often included ‘soldiers’ who were under 18 years of age, and in many cases under 15 years of age. It was well known

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that these children were targeted by the local militia groups for recruitment, and that substantial sums of money were paid to their families in return for their joining up. Some of these boys were forced to take addictive drugs in order to render them dependent on the commanders of the units. The militia groups received financial support from the Astanian government. In one village in the eastern part of Astania, Kleptopia, an Astanian villager called Bata entered the house of his neighbour of Bestanian origin, Zeba, while he was away. He used force to enter and destroyed the lock on the doors. After entering, he took some money from the bedroom and groceries from the kitchen and left. At the time, Zeba was meeting his cousin from Bestania who had crossed the Astanian border in order to give Zeba a parcel containing illicit drugs. Zeba’s task was then to travel to Cestania and hand the parcel to another person, who would subsequently sell the package to local drug dealers. When Zeba tried to cross the border to Cestania, the customs police officer stopped him. When the police officer tried to search his car, Zeba pulled out a gun, shot the officer and fled. Scenario No 2 (not in the Manual)

Utopia was a federal state comprising two republics, Diplomacy and Law. Each republic consisted of ethnic majority populations (Diplomats and Lawyers) with minorities from each republic living in the other republic’s border areas, a situation that often caused tensions between the majority population and the minorities. These tensions culminated in armed conflict taking place in various parts of Utopia. Consequently, Utopia broke apart and the two republics became independent states of Diplomacy and Law. After the dissolution of Utopia, Diplomat minorities living in ten villages in the border area of Law called for better protection of their minority rights and adequate representation in Law’s governmental bodies. However, Law refused to accommodate their requests, arguing that they enjoyed sufficient protection in accordance with international law. At that point the Prime Minister of Diplomacy called a meeting with the Minister of Foreign Affairs, the Minister of Internal Affairs, the Minister of Defence, the Army Chief of Staff and the Police Commissioner, at which they discussed how to protect its minority in Law against discriminatory treatment meted out by the authorities of Law. The Minister of Defence proposed that Diplomacy seize the ten villages in the border area and expel all the Lawyers from the occupied territory. Other participants at the meeting agreed with the plan. Consequently, the Minister of Defence ordered armed forces of Diplomacy to cross the border with Law and attack numerous villages in the border area purportedly in order to protect Diplomat minorities. When they approached the villages, they first fired over the house of the villages in order to scare the inhabitants. Then they entered the villages and ordered the Lawyers to take their belonging and leave the villages. In a village called Security, located in Law about 10km from the border with Diplomacy, the Diplomat minority constituted almost half of the village population. One evening, ten soldiers belonging to a military unit of Diplomacy entered the village and started shooting at Lawyers’ houses, killing and wounding several Lawyer civilians who were living there. Those who survived the shooting were taken

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to one house at gunpoint and ordered to sing Diplomacy’s national anthem. The women were raped and the men were severely beaten. The next morning, the commander of the unit found out about the killings, rapes and beatings from a soldier who was present at the incident but did not actively participate in the offences. The commander was visibly upset and he warned the soldiers that they should never do anything like that again and should only act under his command. He also told them to never speak about the incident again. Scenario No 3 (Manual p 88)

The conflict between Astania and Bestania is ongoing. The international community is considering how to end the conflict and bring to justice the perpetrators of international crimes. Both states deny any responsibility for the crimes committed during the armed conflict. Both seem reluctant to transfer their nationals suspected of being involved in the commission of the war crimes for the prosecution to other criminal courts or tribunals, either national or international. However, Astania is a party to the ICC Statute of the ICC. Bestania is not a State Party to the Statute although it had expressed, before the start of the conflict, its intention to become bound by the ICC Statute. In May 2009, as a part of the efforts to bring about peace in Astania and Bestania, Colonel Butel was granted an amnesty from prosecution for any offences committed during the conflict. Scenario No 4 (Manual p 335–340)

The conflict between Astania and Bestania soon spilled over into Cestania, a region located to the south of Astania and Bestania, which borders both countries. Many people of Bestanian origin and some of Astanian origin live in northern Cestania. Crimes of international concern are widely reported to have occurred on the territory of all three states. Suspicion, fear, and old prejudices have led parties within all three states to make an attempt at ‘ethnic cleansing’. The international community has responded with alarm. As we have already noted, Astania is a party to the ICC. Bestania and Cestania are not. For internal political reasons, the UN Security Council decided against referring the situation in Bestania and Cestania to the ICC. Instead, determining that the conflict between Bestania and Cestania poses a threat to international peace and security, the Security Council created, under Chapter VII of the UN Charter, the International Criminal Tribunal for Bestania and Cestania (ICTBC). The Statute of the ICTBC is a precise duplicate of the Statute of the ICTY. The attack by Astanian army forces (‘Operation Salvage’) on the Bestanian rebels in East Astania was commanded by General Bader. Forces under his command included the 2nd Astanian Rifles, the 17th Light Infantry Brigade (the ‘Fightin’ Badgers’), and elements of the 7th Brigade of Engineers. A group known as the Kleptopian Citizens’ Militia had followed behind the first wave of General Bader’s forces entering the East Astania theatre of operations.

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Situation A

Before launching Operation Salvage, General Bader issued an order to his officers and men, exhorting them to engage the enemy forces aggressively. Instructing the men of the 17th Light Infantry to push right through to the Bestanian border, he told them that they could afford to give ‘no quarter’ to the enemy forces that they encountered (ie, they could not accept their surrender), and that they would not be able to deal with prisoners. He ordered the men of the 2nd and 7th, who would follow the 17th’s advance and secure the area, to ‘make sure we don’t have a problem with the media’. In the course of the 17th’s advance, a number of Bestanian rebels surrendered near Nohm-Orr. The rebels were disarmed and summarily executed. In the wake of the 2nd and 7th’s occupation of the towns swept by the 17th, a number of ethnic Bestanian civilians organised impromptu protests. In the town of Upsala, a number of demonstrators were heard to mention ‘atrocities’ caused by Astanian forces. In the small hours of the following morning, a company of the 2nd detained all the people who had demonstrated in Upsala, and removed them to a secret detention centre. Situation B

Superintendent Loaff, the commander of the East Astanian Police, had consulted with General Bader throughout Operation Salvage. The two men met daily in the ‘Emergency Executive Committee’ (EEC), discussing the progress of the campaign in East Astania and the maintenance of law and order in the newly reoccupied areas. They should have been joined by the Governor of East Astania, but she always found a reason not to attend. Situation C

The Kleptopian Citizens’ Militia moved into the village of Dombed (in East Astania), in force, and proceeded to loot and burn all the houses. The Bestanian residents of Dombed were forced to flee further to the east. No members of the Kleptopian Citizens’ Militia were seen in the company of members of the Astanian armed forces. Situation D

In Cestania, the municipal council of the town of Dunfor (in northern Cestania), is composed exclusively of ethnic Cestanians. They have decreed that all ethnic Bestanians must be interned, and have commandeered three local secondary schools for the purpose. Once interned, Bestanians in all three camps are subjected to beatings, other physical assaults and jeers by their guards. Caius worked as a clerk for the municipal council of the town Dunfor. He was ordered to set up an administrative office for internee affairs. He was highly efficient and quickly set to work. Guard rosters, requisitions for spare police uniforms and equipment, rosters of internee details and the like flew from his desk. He never visited any of the camps and was sensitive about discussing what occurred there.

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Situation E

Norris is a baker in Dunfor (in northern Cestania). He volunteers to provide bread for the guards at the three internment camps, free of charge, and makes two deliveries to each camp per day. In return, the guards permit Norris ‘access all areas’ to the camps. On one occasion, he is seen to visit a camp while not making a delivery. He sees a man who used to be the other baker in the town, Kato. He jeers at Kato’s condition, and spits at him. Situation F

A leading northern Cestanian politician, Mr Patko, agrees with fellow politicians that the members of the Astanian minority living in a nationalistic town in northern Cestania should be evacuated for the inhabitants’ own safety during the course of the war. The plan is that they be removed into Astania but that they be allowed to return to their homes at the end of the war. For these purposes, a welldisciplined brigade (the 1st brigade) is chosen to conduct the evacuation operation. This brigade has an excellent reputation for compliance with international humanitarian law (IHL). Shortly before the operation is due to begin, however, a surprise attack on the other front is made and the 1st brigade is deployed to deal with it. The local commander instead deploys a Military Police Unit – the ‘Black Cats’ – well-known for their violent behaviour, to conduct the evacuation. The Black Cats carry out the evacuation with a great deal of brutality; murders and mistreatment of civilians occur as a result. Situation G

Ernest was one of the soldiers under command of Colonel Butel. (As described in Chapter 1, Butel was a commander of a unit whose task was to capture the rebels in the largest town in the east part of Astania, called Sidea). Ernest, whose parents were of Bestanian origin, refused to participate in the massacre of the members of the Bestanian minority in Sidea. However, Colonel Butel told Ernest that if he failed to comply with Butel’s orders, his wife and two children would be executed. Therefore, frightened for the life of his wife and children, Ernest decided to follow the orders and he eventually executed 15 members of the Bestanian minority. Situation H

Subordinates of the Astanian military commander Nasor guard a prison cell where Bestanian prisoners of war are kept. One evening, when only one guard is on duty, Astanian civilians – angered at an atrocity committed against them by the Bestanian enemy that day – break into the prison, overpower the guard and beat several prisoners of war to death. The commander Nasor does not learn of the deaths until many months later, when the prison has been disbanded. Scenario No 5 (Manual p 388)

After a period of time, peace was restored in the region and a Peace Agreement was signed by the Astanian and Bestanian authorities. President Veva of Astania enacted an amnesty law granting amnesty to all Astanians, including the militia forces, who had participated in the war. The amnesty law included

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President Veva himself. Shortly after, President Veva decided to go into retirement and, having learnt of an international arrest warrant issued against him, fled to a secret island in his private jet. The arrest warrant had been issued by prosecutors in Dastania, after a group of Bestanians initiated proceedings against former Astanian President Veva in the Dastanian courts. The group of Bestanians consisted of a number of civilians who had managed to escape to Dastania after the 100-day siege of the capital city. They had all been victims of the chemical weapon attacks on the city and had suffered serious burns as a result. In addition, the group consisted of a number of Bestanian soldiers who had been captured and subsequently mistreated in the prison camps in Astania. Therefore, the arrest warrant was for charges of war crimes, crimes against humanity and torture. Since becoming a State Party to the ICC Statute, Dastania has criminalised in its domestic law all of the conduct in the ICC Statute in exact terms. Dastania has also made provision for the possible prosecution of crimes under customary international law. Furthermore, Dastania has been a State Party to the Torture Convention since 1 January 1990 and has carried out all of its obligations under the Convention. After a few years, former President Veva fell ill and travelled to Estania for medical treatment. While there, though he was using a false identity, he was arrested under the authority of the international arrest warrant. Dastania immediately sought his extradition for the purposes of prosecution. However, Estania was at first reluctant to surrender former Astanian President Veva because Dastania still had the death penalty. Nonetheless, Estania surrendered former President Veva to Dastania since the Dastanian authorities had made assurances that the death penalty would not be imposed. Scenario No 6 Situation A (Manual pp 459–460)

Horace Rumpole, a criminal barrister from London, decides that he would like to defend a case at the ICC in The Hague as a change from his normal practice. He applies to be put on the list of persons willing to be assigned as counsel maintained by the ICC Registry pursuant to Rule 21 of the ICC Rules of Procedure and Evidence, completes the requirements and then sits and waits for a case to come along. After a year or so, he gets a call from the Registry. They want to know if he would be interested in defending an Astanian mercenary who fought in East Astania, Osman Flashman, who has so far been defending himself and whose trial is due to start in eight weeks. Flashman has, however, been so unruly and so abusive during the Pre-Trial proceedings – shouting abuse at the judges, calling the prosecuting attorneys ‘smurfs’ and such like – that the judges have decided that he may no longer defend himself and so they wish to appoint Rumpole as Flashman’s Defence Counsel for the trial. Rumpole is interested at the prospect of getting involved in an ICC trial, but he has reservations about defending someone who wants to defend himself. So he agrees and flies out to The Hague to see what the situation is. Rumpole arrives at the ICC, obtains a copy of the Statute and the Rules of Procedure and Evidence, and discusses with the Registry about how he will be paid his fees and travel expenses. He discovers that he is entitled to a Co-Counsel, an investigator and a legal assistant. He chooses Joseph Petrocelli from the Nevada Bar to be his Co-Counsel, as Petrocelli’s mother is from Astania and speaks the language. He also chooses an investigator and a legal assistant.

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Rumpole receives from the Prosecution: • disclosure of the names and statements of prosecution witnesses who will be called to testify at trial (Rule 76(1)); and • disclosure of exculpatory material (Article 67(2)), which tends to suggests that Flashman might have a cast-iron alibi. Rumpole also receives a Prosecution Motion for Protective Measures, lodged under Rule 87, requesting that the Prosecution be permitted to disclose the name and statement of a key Prosecution witness, Mr X, only 30 days before he testifies. Rumpole is not very happy with the Prosecution Motion – how can he prepare the case if he does not know the name of a key Prosecution witness until potentially well into the trial? Rumpole tries to schedule a meeting with his client in the prison. Rumpole is dismayed to discover that Flashman absolutely refuses to see him, as he considers that his right to defend himself is being infringed. Flashman threatens to kill any lawyer who defends him against his will. Perplexed by these developments, Rumpole decides to resign from the case. Rumpole files a motion before the Trial Chamber stating that his client does not wish to have his services and requesting to be allowed to withdraw from the case. To Rumpole’s astonishment, the Trial Chamber refuses his application and orders him to continue in the case as Flashman’s court-appointed defence lawyer. Rumpole then files a motion before the Trial Chamber, arguing with reference to copious case law that imposing Defence Counsel on an accused violates his fundamental human right to defend himself. The Trial Chamber refuses the Motion, arguing that the right to defend oneself is not absolute and may have to give way to other considerations, such as the right to a speedy trial. Rumpole is unconvinced by this reasoning, so he applies to the Trial Chamber, pursuant to Rule 155, to be given leave to appeal its decision before the Appeals Chamber. The Trial Chamber refuses to do so. Furious, Rumpole applies directly to the Appeals Chamber, hoping that the Appeals Chamber will see sense. In the meantime, Flashman, who has been following all of this, is impressed by Rumpole’s vigorous campaigning for his rights and decides that, after all, he will be happy to have Rumpole defending him. Flashman and Rumpole are reconciled and they begin to prepare for trial. Rumpole’s investigator has found a number of good defence witnesses, and so Rumpole is confident of an acquittal. The defence increasingly looks like one of alibi. Although Rule 79(1)(a) requires the Defence to provide notification of the defence of alibi, Rumpole notes that no specific time-limit has been set for disclosure of the defence of alibi; he decides to keep quiet about it for the moment and see how the Prosecution case develops. The Trial Chamber grants the Prosecution Motion to protect the identity of Mr X. Flashman tells Rumpole not to worry; he knows very well that Mr X is, in fact, Dirk Darkovic, and he knows what his evidence will be. Rumpole speaks to Defence witnesses about Mr X and his likely evidence. One witness speaks to the press and blurts out that Mr Darkovic will be a witness for the Prosecution in the case against Flashman. The Prosecution initiates proceedings against Rumpole for an offence against the administration of justice (Article 70) for revealing the name of a protected witness, thereby interfering with his attendance. Fortunately, Rumpole is acquitted on the grounds of lack of mens rea.

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The case goes to trial. When the defence case starts and alibi witnesses come forward, Rumpole is asked by the Chamber why he did not give proper notice of the alibi defence. His answer is not found to be convincing. The Chamber convicts Flashman, stating that it has given little weight to the alibi evidence, since proper notice was not given. Flashman appeals, still instructing Rumpole to defend him, his confidence in Rumpole’s talents undiminished, notwithstanding Rumpole’s failure to save him from conviction. Situation B

A number of refugees of Astanian ethnicity, who were expelled by Bestanian armed forces from East Astania during the conflict between Astania and Bestania, moved to the UK, where they were given political asylum. The victims have heard that Astania is a party to the ICC and that the crimes committed in East Astania may be prosecuted before the ICC. One of the victims has heard from her daughter who has been studying international law at the Columbia University School of Law in New York that the ICC allows the victims to be involved in its proceedings. Situation C

Buda, a 22-year-old police officer, was nominated as Police Chief of a small police station in one of the villages in the East Astania during the conflict between Astania and Bestania. Buda’s parents died in a car accident about 19 years ago. Since his parent’s death, Buda was in foster care until he joined the Bestanian police academy at the age of 15. During the armed conflict, Buda and his officers were ordered to participate in ‘Operation Freedom’ carried out jointly by the army and police forces. ‘Operation Freedom’ was aimed at cleansing East Astania of everyone who was not of Bestanian ethnicity. Although Buda did not feel comfortable with the new assignment, he knew he had to obey the orders of superiors, otherwise he would lose his job. In order to get enough courage to carry out the assignment, Buda drank five glasses of whisky. Buda and his officers then went to the assigned village where they gathered all the inhabitants who were not of Bestanian origin and ordered them to walk, at gunpoint, to the border with Astania. Buda and his police officers deported about 100 people of Astanian origin, of which one-third were children. Situation D (not in the Manual)

Your country has only ratified the ICC Statute. You are working for the Ministry for Justice and you are asked to draft a new Penal Code which would implement the provisions of the newly ratified ICC Statute.

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Annexes 8.1 International crimes as defined in the Rome Statute of the ICC International Crimes

General (Chapeau) Requirements

Underlying (Specific) Offences

• Victims must belong to a particular national, ethnical, racial, or religious group;

Killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.

Genocide: Article 6 of the ICC Statute A set of acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such.

• Conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect the group’s destruction; • Perpetrator intended to destroy, in whole or in part, the national, ethnical, racial, or religious group, as such (‘specific intent’).

Crimes against humanity: Article 7 of the ICC Statute A set of acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

• Existence of an attack; • Attack must be widespread or systematic; • Attack directed against any civilian population; • Perpetrator’s conduct was part of a widespread or systematic attack; • Perpetrator aware of the link between his acts and a widespread or systematic attack.

Murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3 (of Article 7) or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; enforced disappearance of persons; the crime of apartheid; and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

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War Crimes: Article 8 of the ICC Statute Categories:

Grave breaches of the Geneva Conventions of 1949 during an international armed conflict (ICC Statute Article 8(2)(a))

• Existence of an international armed conflict; • Conduct committed in the context of, and associated with, an international armed conflict; • Perpetrator was aware of the factual circumstances that established the existence of an armed conflict; • Conduct committed against persons or property regarded as ‘protected’ by one or more of the 1949 Geneva Conventions; • Conduct constitutes a ‘grave’ breach of the 1949 Geneva Conventions.

Other serious violations of the laws and customs applicable in international armed conflict (ICC Statute Article 8(2)(b))

• Existence of an international armed conflict; • Conduct committed in the context of, and associated with, an international armed conflict; • Perpetrator was aware of the factual circumstances that established the existence of an armed conflict; • Conduct committed against persons or property regarded as ‘protected’ by one or more of the 1949 Geneva Conventions; • Conduct constitutes a ‘serious’ violation of international humanitarian law.

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Wilful killing; torture or inhuman treatment, including biological experiments; wilfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or other protected person to serve in the forces of a hostile power; wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; taking of hostages.

Intentionally directing attacks against the civilian population as such or civilian objects, personnel or objectives involved in a humanitarian assistance or peacekeeping mission, undefended places or protected objects; excessive incidental death, injury, or damage; killing or wounding a combatant who has surrendered at discretion; improper use of a flag, insignia or uniform of the UN, or of the distinctive emblems of the Geneva Conventions; transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; physical mutilation or medical or scientific experiments; treacherously killing or wounding individuals belonging to the hostile nation or army; denying quartes; destroying or seizing the enemy’s property;

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depriving the nationals of the hostile power of rights or actions; compelling participation in military operations; pillaging; employing poison, poisoned weapons, prohibited gases, liquids, materials, devices or bullets; employing weapons, projectiles or materials or methods of warfare listed in the Annex to the Statute; committing outrages upon personal dignity; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and other sexual violence; using protected persons as shields; attacking objects or persons using the distinctive emblems of the Geneva Conventions; starvation as a method of warfare; using, conscripting or enlisting children.

Serious violations of Article 3 common to the four Geneva Conventions during a noninternational armed conflict (ICC Statute Article 8(2)(c))

• Existence of a non-international armed conflict; • Conduct committed in the context of, and associated with, a noninternational armed conflict; • Perpetrator was aware of the factual circumstances that established the existence of an armed conflict;

Violence to life and person, including murder of all kinds, mutilation, cruel treatment and torture; committing outrages upon personal dignity, in particular humiliating and degrading treatment; taking hostages; sentencing or execution without due process.

• Conduct committed against persons or property regarded as ‘protected’ by one or more of the 1949 Geneva Conventions; and • Conduct constitutes a ‘serious’ violation of common Article 3 of the Geneva Conventions.

Other serious violations of the laws and customs applicable in noninternational armed conflicts (ICC Article 8(2)(e))

• Existence of a non-international armed conflict; • Conduct committed in the context of, and associated with, a noninternational armed conflict; • Perpetrator was aware of the factual circumstances that established the existence of an armed conflict; • Conduct committed against persons or property regarded as ‘protected’ by one or more of the 1949 Geneva Conventions; • Conduct constitutes a ‘serious’ violation of international humanitarian law.

Intentionally directing attacks against the civilian population as such; intentionally directing attacks against objects or persons using the distinctive emblems of the Geneva Conventions; intentionally directing attacks against personnel or objects involved in a humanitarian assistance or peacekeeping mission; intentionally directing attacks against protected objects such as buildings dedicated to religion; pillaging; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other forms of sexual violence; using, conscripting and enlisting children; ordering displacement of civilians; treacherously killing or wounding a combatant adversary; denying quarter; physical mutilation or medical or scientific experiment.

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8.2 Individual criminal responsibility as defined in the Rome Statute of the ICC Forms of Responsibility

Relevant provisions of the ICC Statute

Objective elements (actus reus)

Mental elements (mens rea)

Individual perpetration

25(3): In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

The accused’s deliberate conduct formed an integral part of the actus reus of the offence.

The accused intended the offence or was aware of the substantial likelihood that a crime would be committed as a consequence of his or her conduct.

Joint perpetration

25(3)(a): Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.

1. A plurality of persons involved in the commission of a crime;

1. The accused must be mutually aware that implementing their common plan will result in the realisation of the physical elements of the crime;

(‘Co-perpetration’)

2. Common plan or agreement, expressed or implied, which amounts to or involves the commission of a crime; 3. Coordinated essential contribution by each coperpetrator resulting in the realisation of the objective elements of the crime.

2. The accused intended the offence, or must be aware of that realisation of the physical elements will be will be a consequence of his or her acts in the ordinary course of events; 3. The accused was aware of the factual circumstances enabling him or her to jointly control the crime.

Perpetration by means (‘indirect perpetration’)

1. A crime within the jurisdiction of the Court was committed by a person or persons other than the accused; 2. The existence of a unitary chain of command and the exertion by the indirect perpetrator of some controlling predominance over the direct perpetrator; 3. The accused used such direct perpetrator as an instrument or tool to commit the relevant crime.

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1. The accused must be aware that implementing their common plan will result in the realisation of the physical elements of the crime; 2. The accused intended to use the direct perpetrator instrument or tool to commit the relevant crime, or must be aware that the realisation of physical elements will be a consequence of his or her acts in the ordinary course of events.

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Ordering

25(3)(b): Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted.

1. A crime within the jurisdiction of the Court was attempted or committed by a person or persons other than the accused, with or without the participation of the accused;

The accused intended to order the commission of a crime or was aware of the substantial likelihood that the commission of a crime would be a consequence of his or her act.

2. The accused gave an express or implied order to a subordinate or other person over whom the accused was in a position of authority. Soliciting or inducing

1. A crime within the jurisdiction of the Court was attempted or committed by a person or persons other than the accused, with or without the participation of the accused;

The accused intended to solicit or induce the commission of a crime; or was aware of the substantial likelihood that the commission of a crime would be a consequence of his or her act.

2. The accused commanded, authorised, urged, incited, requested, or advised another person to commit the crime. In the case of inducing: the accused persuaded or influenced another person to commit the crime. Facilitating, aiding and abetting or otherwise assisting

25(3)(c): For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission.

Aided, abetted or otherwise assisted in the commission of the crime.

1. Purpose of facilitating the commission of the crime; 2. Accomplice must have had a double general intent with regard to: – his or her own assisting conduct; and – the principal’s intentional commission of the crime.

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Contribution to the commission of a crime by a group of persons acting with a common purpose (‘joint criminal enterprise’)

25(3)(d): In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: a Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

1. A plurality of persons;

1. Intentional;

2. A common purpose that involves the commission of a crime within the jurisdiction of the Court;

2. With the aim of furthering the criminal activity or criminal purpose of the group;

3. Contribution to the commission of such crime ‘in any other way’.

3. Knowledge of the intention of the group to commit the crime.

1. The accused directly and publicly incited another person or persons to commit genocide;

1. The intent to directly prompt or provoke another to commit genocide;

b Be made in the knowledge of the intention of the group to commit the crime. Direct and public incitement to commit genocide

25(3)(e): In respect of the crime of genocide, directly and publicly incites others to commit genocide.

2. The accused intended to prompt other person(s) to commit genocide;

2. The person who incited genocide must have had the specific intent to commit genocide himself.

3. The accused incited such person(s) in furtherance of the intent to destroy, in whole or in part, that national, ethnical, racial or religious group, as such. Attempt

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25(3)(f): Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

The accused performed an action commencing the execution of the crime, by means of a substantial step.

The accused must have had both a conception of the crime (that is, he must have anticipated all of the elements of the crime to be committed), and have taken an unconditional decision to carry out the criminal act to full completion.

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Command responsibility

28(a): A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: a. That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and b. 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.

1. A crime within the jurisdiction of the Court was committed;

Knew or, owing to the circumstances, should have known.

2. The accused was a ‘military commander, or person effectively acting as a military commander’; 3. The accused had effective command and control/ effective authority and control; 4. The crime was committed as a result of the military commander’s failure to exercise control properly; 5. The crime concerned activities that were within the effective responsibility and control of the accused; 6. The accused failed to take all necessary and reasonable measures within his or her power.

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Non-military superior responsibility

28(b): With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: a. The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; b. The crimes concerned activities that were within the effective responsibility and control of the superior; and c. 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.

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1. A crime within the jurisdiction of the court was committed; 2. There existed between the accused and the person who committed the crime a superior and subordinate relationship not described in paragraph (a);

The accused knew, or consciously disregarded information that clearly indicated that subordinates were committing, or about to commit, such crimes.

3. The accused exercised effective authority and control over the perpetrator of the crime; 4. The crime was committed as a result of the accused’s failure to exercise control properly over his subordinates; 5. The crimes concerned activities within the effective responsibility and control of the accused; 6. The accused failed to take all necessary and reasonable measures within his power.

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8.3 Useful links International criminal courts and tribunals International Criminal Court (ICC)

www.icc-cpi.int

Basic Legal Texts and Tools of the ICC

www.icc-cpi.int/en_menus/icc/legal%20texts%20and%20tools/Pages/ legal%20tools.aspx

Rome Statute of the International Criminal Court

www.icc-cpi.int/en_menus/icc/legal%20texts%20and%20tools/official%20 journal/Pages/rome%20statute.aspx

The Official Records of the Assembly of States Parties

www.icc-cpi.int/en_menus/asp/sessions/official%20records/Pages/11thsession--Official-Records.aspx

Assembly of States Parties to the Rome Statute of the ICC (ASP)

www.icc-cpi.int/en_menus/asp/assembly/Pages/assembly.aspx

International Criminal Tribunal for Rwanda (ICTR)

www.unictr.org

UN Security Council Resolution 955 (1994) (established the ICTR)

http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N95/140/97/PDF/N9514097. pdf?OpenElement

ICTR Case Summaries

www.unictr.org/Cases/tabid/204/Default.aspx

ICTR Rules of Procedure and Evidence

www.unictr.org/Legal/RulesofProcedureandEvidence/tabid/95/Default.aspx

International Criminal Tribunal for the Former Yugoslavia (ICTY)

www.icty.org

Special Court for Sierra Leone

www.sc-sl.org

Special Tribunal for Lebanon

www.stl-tsl.org

Extraordinary Chambers of the Courts of Cambodia

www.eccc.gov.kh/en

Online manuals IBA International Criminal Law Manual

www.ibanet.org/Human_Rights_Institute/HRI_Publications/HRI_Training_ Manuals_.aspx

Representing Victims Before the ICC: A Manual for Legal Representatives

www.icc-cpi.int/iccdocs/PIDS/tmp/Representing%20Victims%20before%20 ICC.PDF

Genocide, War Crimes and Crimes Against Humanity: A digest of the case law of the ICTR

www.hrw.org/node/87652

Genocide, War Crimes and Crimes Against Humanity: A topical digest of the case law of the ICTY

www.hrw.org/node/11277

The domestic implementation of International Humanitarian Law: a manual

www.icrc.org/eng/resources/documents/publication/p4028.htm

ICRC Comparative Table: War Crimes under the Rome Statute of the ICC and their Sources in International Humanitarian Law

www.icrc.org/eng/assets/files/other/en_-_war_crimes_comparative_table.pdf

ICC Manual for the Ratification and Implementation of the Rome Statute (3rd Edition, 2008)

www.iccnow.org/documents/ICC_Manual_-_March_2008_-_ICLR.pdf

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Electronic sources ASIL Guide to Electronic Resources for International Law

www.asil.org/crim1.cfm

The Avalon Project: Documents in Law, History and Policy

http://avalon.law.yale.edu

Frederick K Cox International Law Center War Crimes Research Portal

http://law.case.edu/war-crimes-research-portal

Draft Code of Offences against the Peace and Security of Mankind

http://untreaty.un.org/ilc/texts/7_3.htm

Electronic Information System for International Law (EISIL)

www.eisil.org

ICC: Resources in Print and Electronic Format

www2.lib.uchicago.edu/~llou/icc.html

International Criminal Courts for the Former Yugoslavia, Rwanda and Sierra Leone: A Guide to Online and Print Resources

www.nyulawglobal.org/globalex/International_Criminal_Courts1.htm

Guide to Foreign and International Legal Databases: International Criminal Law

www.law.nyu.edu/library/research/foreign_intl/internationalcriminallaw/ index.htm

Treaties and customary international humanitarian law

www.icrc.org/eng/war-and-law/treaties-customary-law/index.jsp

Treaties and Documents on War Crimes and Crimes against Humanity, Including Genocide (University of Minnesota)

www1.umn.edu/humanrts/instree/auox.htm

UN Documentation: Research Guide

http://research.un.org/en/docs/law

NGOs/monitoring groups The American NGO Coalition for the International Criminal Court

www.amicc.org

American Society of International Law

www.asil.org

Amnesty International

www.amnesty.org www.amnesty.org/en/international-justice/issues/international-criminal-court

Balkan Investigating Reporting Network

http://birn.eu.com

Coalition for the ICC

www.iccnow.org

Human Rights First

www.humanrightsfirst.org

Human Rights Watch

www.hrw.org

Institute for War and Peace Reporting

http://iwpr.net

International Center for Transitional Justice

www.ictj.org/en/index.html

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Justice Information Center, National Criminal Justice Reference Service

www.ncjrs.gov

Word Justice Information Network (WJIN)

www.wjin.net

Other The 2010 Review Conference of the Rome Statute in Kampala, Uganda

www.kampala.icc-cpi.info

Preparatory Commission for the International Criminal Court

http://untreaty.un.org/cod/icc/prepcomm/prepfra.htm

UN Conference of Plenipotentiaries on the Establishment of an ICC

http://untreaty.un.org/cod/diplomaticconferences/icc-1998/icc-1998.html

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Principal Author: Dr Miša Zgonec-Rožej Consultant: John RWD Jones QC Other Contributors: The International Bar Association wishes to acknowledge and thank Dr Triestino Mariniello for his invaluable assistance in reviewing and providing comments on the present Guide. The publication of the Facilitator’s Guide on International Criminal law for Judges, Prosecutors and Lawyers Guide was supported by a grant from the Open Society Foundations.

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