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ICC Case Simulation Exercise: Prosecutor v Five Pilots from Blueland and Whiteland
Published online by Cambridge University Press: 06 March 2019
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During the process of the establishment of the International Criminal Court (ICC), a voluminous set of rules was elaborated to ensure that the Court will become an effective instrument for the enforcement of international law. These rules and provisions were drafted and approved in the abstract, but how would they actually work in practice? – We hear that the USA has undertaken an enormous diplomatic effort to limit the jurisdiction of the ICC. To what extend would the outcome of these efforts create an obstacle for the Court to exercise its jurisdiction? – The new ICC Prosecutor has just been sworn in, and several hundred incidents have been reported to the Court where crimes falling under the Rome Statute of the International Criminal Court might have been committed. Still, it might take some months, if not years until the Court sees its first indictment or trial and until the statute and rules of the Court are applied for the first time.
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- Copyright © 2003 by German Law Journal GbR
References
1 Cf. the Rome Statute of the International Criminal Court (ILM 37 (1998) p. 1002), the Rules of Procedure and Evidence (UN Doc. PCNICC/2000/1 of 12 July 2001), the Elements of Crimes (UN Doc. PCNICC/2000/1/Add.2 of 2 November 2000).Google Scholar
2 Cf. Article 5 para. 1 of the Rome Statute (n. 1).Google Scholar
3 “A New World Order? – International Criminal Law”, Seminar by ELSA-Würzburg e.V. (The European Law Students’ Association), University of Würzburg, 22-25 May 2003.Google Scholar
4 Lee, Roy S.: LL.M., Ph.D.; Special Senior Fellow, UNITAR; Adjunct Professor, Columbia University, New York; formerly director of the Codification Office of the Office of Legal Affairs, United Nations; Executive Secretary of the Rome Diplomatic Conference for the Establishment of an International Criminal Court (1998).Google Scholar
5 For further information on ELSA and its projects related to international criminal law, please visit www.elsa-pinil.org (ELSA Project on ICC National Implementation Legislation).Google Scholar
6 The materials for the simulation exercise can be obtained from the authors of the present article. Authorisation by Roy Lee should be sought before use.Google Scholar
7 Para. 10 of the Preamble of the Rome Statute (n. 1).Google Scholar
8 Security Council Resolution 1422 of 12 July 2002. Please note that the Resolution has just been renewed for another year on 12 June 2003 (Resolution 1487) with 12 votes in favour and France, Germany and Syria abstaining.Google Scholar
9 Article 9 UN-Charter: “The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression…”Google Scholar
10 Article 16 of the Rome Statute reads as follows: “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the council under the same conditions.”Google Scholar
11 Case concerning application of the Convention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Further requests for the indication of provisional measures, Order of 13 September 1993, 1993 I.C.J. Rep., Separate opinion of Ad Hoc Judge Elihu Lauterpacht, para. 100 (citing both the judgment in this case and the Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 ICJ Rep. 22).Google Scholar
12 Cf. especially “The unlawful attempt by the Security Council to give US citizens permanent impunity from international justice”, Amnesty International, May 2003, AI Index: IOR 40/006/2003.Google Scholar
13 Compare Article 31 para. 3 lit. b) with Article 32 of the Vienna Convention on the Law of Treaties (1155 UNTS p. 331).Google Scholar
14 The wording of these agreements seems to be more or less identical in each case. For the purpose of the simulation exercise, the text of the USA-East Timor agreement was used (signed 23 August 2002).Google Scholar
15 53 particpants (with no dissents) were of the opinion that the Court had jurisdiction over the case. 42 participants (with three dissents) opined, however, that the case would not have been admissible. 41 participants thought that the Security Council Resolution could not bind the Court, whereas 18 thought it could. Only three participants thought that the Article 98 Agreement should have had any binding effect on the Court.Google Scholar
16 While Article 8 (2) lit. (c) and (e) of the Rome Statute apply to non-international conflicts, the much more extensive lit. (a) and (b) apply to international armed conflicts.Google Scholar
17 Article 8 (2) (a) (i): Wilful killing; (b) (i): Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (b) (ii): Intentionally directing attacks against civilian objects, that is, objects which are not military objects; (b) (iv): Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.Google Scholar
18 Article 8 (2) (c) (i): Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (e) (i): Intentionally directing attack against the civilian population as such or against individual civilians not taking direct part in hostilities; (e) (ii): Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.Google Scholar
19 Note that section 43a of the German Criminal Code, which provided for the imposition of fines in addition to imprisonment similar to Article 77 (2) (a) of the Rome Statute, was declared null and void by the German Federal Constitutional Court (Bundesverfassungsgericht) in its decision 2 BvR 794/95 of 20 March 2002 (105 BVerfGE (2003) p. 135 et seq.), since it was seen to be in violation of the principle of nulla poena sine lege certa (Article 103 para. 2 of the German Basic Law). In contrast to German law, however, Rule 146 of the ICC Rules of Procedure and Evidence contains a detailed catalogue of criteria which the Court has to take into account in determining whether to order a fine and in fixing the amount of the fine. This catalogue would probably meet the concerns of the German Federal Constitutional Court.Google Scholar
20 Again, it was interesting to observe the participants’ analysis of the issues in dispute in their private capacity. The final results mirrored the decisions taken by the judges. 26 participants thought the conflict was of an international character, 16 thought it was internal. 37 participants were of the opinion that the attack had been continuous, only eight thought the bombings starting on 10 July and those on 20 July were separate events. In relation to the individual crimes, only four participants thought that crimes against humanity had been committed, whereas 23 thought that war crimes in an international conflict had been committed, one thought war crimes in an internal conflict had been committed and three thought that war crimes in both an international and internal conflict had been committed. Lastly, 40 participants believed that the victims had the right to claim reparation regardless of culpability, and two thought that the Court should take interim measures to seize property of the defendants in order to guarantee compensation. 38 participants felt that an amount in excess of $10m should be paid to the victims for death and injury and loss to farmland, whereas 17 felt that the pilots should be fined.Google Scholar
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