International Criminal Court
International Criminal Court CRIM 405-002
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This 0 page Class Notes was uploaded by Cailyn Notetaker on Monday November 2, 2015. The Class Notes belongs to CRIM 405-002 at George Mason University taught by Andrew Novak in Fall 2015. Since its upload, it has received 35 views. For similar materials see Law and Justice Around the World in Criminology and Criminal Justice at George Mason University.
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Date Created: 11/02/15
International Criminal Court 0 The workings of the court 0 Sentencing o Restorative Justice Mechanisms 0Africa and Palestine The Workings of the Court Review ofJurisdiction 0 Limited role for UN Security Council Security Council cannot veto a prosecution but can defer a prosecution for one renewable year Security Council can refer nonmembers to the Court ad has priority for the crime against aggression 0 Personal Jurisdiction Court can only punish natural persons over age 18 Perpetrators who are under 18 are deemed to be child soldiers and therefor victims not perpetrators No jurisdiction over legal persons such as corporations No sovereign immunity GenderJustice 0 Women s rights groups were powerful at the Rome Conference Effective lobbying on sexual and gender violence won important concessions Gender and sexual based violence is included in the de nitions of the core crimes including genocide crimes against humanity and war crimes Speci c provisions for physical and psychological protection of victims of sexual violence Fair representation requirement requires that half of the lCC s judges and staff be women Must selectJudges and staff with expertise in sexual and gender violence Judicial Division 0 PreTrial Chamber Equivalent of investigating judge in civil law criminal proceeding Con rms charges and requires that Prosecutor has enough evidence to proceed with trial oTrial Chamber Parties lead presentation of evidence but truth is the ultimate goal International criminal trials are messy and often lengthy oAppeals Chamber Right to appeal is now due process right Can reverse of amend decision or sentence or order a new trial Can hear appeals from either PreTrial Chamber or Trial Chamber Wrongfully convicted defendants entitled to compensation Criminal Procedure 0 Arrest and transfer of suspect to the Hague Sentencing 0 Court has no police force or military Domestic law may prohibit some states from arresting foreign heads of state because they may have immunity Procedure is mixture of adversarial inquisitorial and participatory Introduction to International Criminal Sentencing Unique characteristics of international criminal sentencing Goals primarily based on retribution and deterrence not rehabilitation Punishment by incarceration No sentencing guidelines or minimums since no consensus Command responsibility the harshness of a sentence increase as one goes up the chain of command Basic Punishment Provision 0 Basic punishment provision Sentence of imprisonment may not exceed 30 years except where the offenses are extremely grave then life imprisonment is permitted 0 Rome Statute does not de ne what quotextremely gravequot means Statute does not authorize sentences longer than 30 years but shorter than natural life imprisonment This provision was a compromise between states that have the death penalty states that have life imprisonment and states that have neither the death penalty nor life imprisonment 0 Enforcement of a sentence States parties volunteer to accept prisoners and are responsible for conditions payment of costs and transfer at end of sentence If no state volunteers the Netherlands must accept the prisoner under the Headquarters Agreement between the ICC and Dutch government Sentence is binding on the state of enforcement and the state cannot alter the sentence or release prisoner early However the Court can release a prisoner early if heshe provides reparations or assists in later cases Restorative justice Mechanisms Victim participation 0 Permitted at all stages of a proceeding Victims entitled to make their views known Victim testimony must conform to the rules of evidence for witness testimony Reparations 0 Rome Statute allows victims of crimes that fall within its jurisdiction to le applications for reparations compensation for injury return of property No provision in the Rome Statute for state reparations from governments or corporate criminal liability Only individual reparations are authorized Prior compensation schemes for mass atrocity have included onetime payments at pensions individual claims for damages usually for death or serious injury and computerized sampling or statistical modeling often for property crimes or lost pro ts ICC may use a variety of methods to properly apportion reparations 0 Thomas Lubanga case involving child soldiers Court Because direct victims are the child soldiers not the people whom the child soldiers terrorized or killed quotindirect victimsquot only child soldiers are eligible for reparations Lubanga only responsible for reparations where child soldiers can show that he individually played a role in their recruitment or use Trust Fund for Victims o The Rome Statute creates the Trust Fund for Victims raising voluntary contributions to bene t victims and communities Can include antiretroviral treatment for persons with HIVAIDS in cases involving sexual violence or building a community health clinic or school Administered by the Registry Africa and Palestine The quotAfricaquot Problem 0 Concern In a world of power politics Prosecutor shies away from direct confrontation with powerful states like Russia and the United States African countries are easy targets since Great Power interests usually not at stake unlike Palestine Georgia or Afghanistan Prosecutor has indicted heads of state Omar aIBashir Sudan and Uhuru Kenyatta Kenya causing internal political turmoil Reinforces Africa s subordinate position in international politics 0 Response African Union has called on members to stop cooperating with ICC African Union has proposed a Criminal Chambers at the new African Court ofJustice and Human Rights oPunish international crimes and crimes by multinational corporations Double Jeopardy Rome Statute doesn t provide for complementarity with regional criminal tribunals The Palestine Problem 0 Rome Statute de nes as quotwar crimequot transfer of ethnic population into militarily occupied territory in order to change demographic reality Are the Palestinian territories quotmilitarily occupiedquot by Israel after 1967 0 International law provides no clear answer and ICC is not in good position to decide the queonn Israel would argue that Occupied Territories were already unlawfully occupied by Egypt Jordan and Syria before 1967 o If it is occupied territory Israeli settlement activity is a war crime 0 Palestine s membership is effective April 1 2015 and retroactive tojune 13 2014 so encompasses August 2014 war with Israel Palestine ineligible to join until November 29 2012 when General Assembly upgraded Palestine to non member observer state 0 Palestine s alleged war crimes easy to prove and obvious Using human shields ring bottle rockets at civilian areas 0 Israel s alleged war crimes dif cult to prove and messy matters of degree Not providing enough warning before attacking civilian buildings where combatants were hiding tolerating too much collateral damage for lowlevel ghters building settlements for Israeli civilians in Palestine