- Public International Law Bar Reviewer -

www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
Chapter XV
INTERNATIONAL CRIMINAL LAW
A. GENERAL PRINCIPLES
Q. What is an international crime?
A. An international crime is such act universally recognized as criminal,
which is considered a grave matter of international concern and for
some valid reason cannot be left within the exclusive jurisdiction of
the State that would have control over it under ordinary
circumstances. (U.S. v. List, Trials of War Criminals Before the
Nuremberg Military Tribunals, February 19, 1948)
Q. May a person be punished for an act or conduct which did not
constitute a crime at the time it was committed?
A. No, International Criminal Law applies the principle of nulla poena
sine culpa. No person shall be punished for an act or conduct where
there is no law punishing it as a crime at the time it was committed.
This is expressed in Article 15 of the International Covenant on Civil
and Political Rights which states that:
No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence, under national or international law, at the time when it
was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time when the criminal offence
was committed. If, subsequent to the commission of the offence,
provision is made by law for the imposition of the lighter
penalty, the offender shall benefit thereby.
Article 11(2) of the Universal Declaration of Human Rights also
provides that:
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
No one shall be held guilty of any penal offence on account of
any act or omission which did not constitute a penal offence,
under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one
that was applicable at the time the penal offence was
committed.
Q. What is the ne bis in idem rule?
A. Ne bis in idem (Latin for not twice for the same) is the
equivalent of the constitutional prohibition against double jeopardy
in municipal law. As applied in international criminal law, it consists
of the following principles:
a) No person shall be tried twice before an international court or
tribunal with respect to the same offence for which he or she
has already been convicted or acquitted by the said court or
tribunal.
b) No person shall be tried before a national court for offences for
which he or she has already been tried by an international court
or tribunal.
c) No person who has been before a national court may be
subsequently tried by an international court or tribunal, unless
the proceedings before the national court were not impartial or
independent, were designed to shield the accused from
international criminal responsibility, or the case was not
diligently prosecuted. (See Rome Statute, Art. 20; ICTY Statute,
Art. 10, ICTR Statute, Art. 9)
Q. Is the principle of actus non facit reum, nisi mens sit rea
applicable in international criminal law?
A. Yes, this principle which translates as the act is not culpable unless
the mind is also guilty also applies in international criminal law. It
embodies the fundamental principle that every crime there is an
actus reus, or the physical act that constitutes the crime, and the
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
mens rea, or the mental element of varying standards that is held by
the perpetrator.
Article 30 of the Rome Statute of the International Criminal Court
embodies this principle. It states that unless otherwise provided, a
person shall be criminally responsible and liable for punishment for
a crime only if the material elements are committed with intent and
knowledge.
Q. When does individual criminal responsibility attach?
A. Under Article 25 of the Rome Statute, individual criminal
responsibility attaches if a person:
a) Commits a crime, whether as an individual, jointly with
another or through another person, regardless of whether that
other person is criminally responsible;
b) Orders, solicits or induces the commission of such a crime
which in fact occurs or is attempted;
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;
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.
e) In respect of the crime of genocide, directly and publicly
incites others to commit genocide;
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
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
person completely and voluntarily gave up the criminal
purpose.
Q. What is the Command Responsibility?
A. Under Article 28(a) of the Rome Statute, command responsibility
renders a military or person effectively acting as a military
commander criminally responsible for crimes 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. It has three
essential elements:
a) the existence of a commander-subordinate relationship of
effective command and control between the accused and the
perpetrator of the crime;
b) the knowledge, or constructive knowledge, of the accused that
the crime was about to be, was being, or had been committed;
and
c) the failure of the accused to take the necessary and reasonable
measures to prevent or stop the crime, or to punish the
perpetrator. (Prosecutor v. Bagilishema, ICTR-95-1A-T, June
7, 2001, par. 38)
Q. What is Superior Responsibility? Distinguish it from Command
Responsibility.
A. Under Article 28(b) of the Rome Statute, superior responsibility
makes a civilian superior criminally responsible for crimes
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. It is distinguished from Command
Responsibility as follows:
a) Superior responsibility applies to civilian superiors, while
command responsibility applies to military commanders;
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
b) Superior responsibility requires authority and control over the
subordinates, while command responsibility requires command
and control;
c) Superior responsibility requires that the civilian superior either
knew, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to
commit such crimes, while command responsibility requires
only that the military commander either knew or, owing to the
circumstances at the time, should have known that the forces
were committing or about to commit such crimes.
Q. Are war crimes and crimes against humanity subject to a statute
of limitations?
A. No. It is an established principle in international criminal law that no
period of limitation shall apply to war crimes and crimes against
humanity to secure their universal application. This principle has
been codified in the following international conventions:
a) Article 1 of the 1968 Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against
Humanity that states that no statutory limitation shall apply to
the following crimes, irrespective of the date of their
commission:
1. War crimes as they are defined in the Charter of the
International Military Tribunal, Nrnberg, of 8 August
1945, particularly the grave breaches enumerated in the
Geneva Conventions of 12 August 1949 for the protection
of war victims;
2. Crimes against humanity whether committed in time of war
or in time of peace as they are defined in the Charter of the
International Military Tribunal, Nrnberg, of 8 August
1945, eviction by armed attack or occupation and inhuman
acts resulting from the policy of apartheid, and the crime of
genocide as defined in the 1948 Genocide Convention,
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
even if such acts do not constitute a violation of the
domestic law of the country in which they were committed.
b) Article 29 of the Rome Statute of the International Criminal
Court that provides that the crimes within the jurisdiction of
the Court shall not be subject to any statute of limitations.
Q. May a person be convicted for different crimes charged in the
indictment based on the same conduct?
A. Yes, under the Doctrine of Cumulative Convictions, convictions for
different crimes charged in the indictment based on the same
conduct are permissible if each crime involved has a materially
distinct element not contained in the other. An element is materially
distinct from another if it requires proof of a fact not required by the
other. (Delalic Appeal Judgment, ICTY-IT-96-21-A, 20 February
2001)
To illustrate: Convictions for violations of the laws and customs of
war (war crimes) and for crimes against humanity based on the same
conduct are permissible, as each contains a materially distinct
element. The materially distinct element required by war crimes is
the requirement that there be a close link between the acts of the
accused and the armed conflict. That required by crimes against
humanity is that the offence be committed within the context of a
widespread or systematic attack directed against a civilian
population.
Q. What is the standard of sentencing in case of cumulative
convictions?
A. Whenever cumulative conviction is based on the same conduct, the
Court must ensure that the final or aggregate sentence reflects the
totality of the criminal conduct and overall culpability of the
offender. The prejudice that an offender will or may suffer because
of cumulative convictions based on the same conduct has to be taken
into account when imposing the sentence. (Kunarac Trial Judgment,
ICTY-IT-96-23-T & ICTY-IT-96-23/1-T, 22 February 2001)
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
Q. What are the courts or tribunals that have been established to
enforce International Criminal Law?
A. Two international military tribunals (IMT) were established by the
victors of World War II to punish international crimes committed
during the war; two international criminal tribunals were established
by the U.N. Security Council; and one International Criminal Court
was established outside of the U.N. system.
In addition, several hybrid courts, which enforce a combination of
domestic and international criminal law and comprise both local and
international judges, prosecutors and administrative staff, operate in
Kosovo, East Timor and Sierra Leone and were established under
U.N. authority. The U.N. has agreed to participate in a hybrid court
in Cambodia as well.
The major ones are the following:
a) International Military Tribunal (IMT) at Nuremberg
established by the Allied Powers through the London
Agreement (August 8, 1945) for the Prosecution and
Punishment of the Major War Criminals of the European
Axis.
b) International Military Tribunal for the Far East established
through an Executive Order of Gen. Douglas McArthur on
April 26, 1946 for the punishment of war criminals of the Far
East;
c) International Criminal Tribunal for the Former Yugoslavia
(ICTY) established by the adoption of its Statute by U.N.
Security Council Resolution 827 (May 25, 1993) for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of
the Former Yugoslavia since 1991;
d) International Criminal Tribunal for Rwanda (ICTR)
established by the adoption of its Statute by U.N. Security
Council Resolution 955 (November 8, 1994) for the
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
Prosecution of Persons Responsible for Genocide and Other
Serious Violations of International Humanitarian Law
Committed in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighboring States, between 1
J anuary 1994 and 31 December 1994;
e) International Criminal Court (ICC) established by the
States which participated in the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of an
International Criminal Court.
B. THE NUREMBERG PRINCIPLES
Q. What are the Nuremberg Principles?
A. The Nuremberg Principles are a set of guidelines adopted by the
U.N. International Law Commission in 1950. The basic premise of
the principles is that no person, no matter what their office, stands
above International Law.
a) Principle I - Any person who commits an act which constitutes
a crime under International Law is responsible therefore and
liable to punishment.
b) Principle II - The fact that internal law does not impose a
penalty for an act which constitutes a crime under International
Law does not relieve the person who committed the act from
responsibility under International Law.
c) Principle III - The fact that a person who committed an act
which constitutes a crime under International Law acted as
Head of State or responsible Government official does not
relieve him from responsibility under International Law.
d) Principle IV - The fact that a person acted pursuant to order of
his Government or of a superior does not relieve him from
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
responsibility under International Law, provided a moral
choice was in fact possible to him.
e) Principle V - Any person charged with a crime under
International Law has the right to a fair trial on the facts and
law.
f) Principle VI - The crimes hereinafter set out are punishable as
crimes under International Law:
1. Crimes against peace: Planning, preparation, initiation or
waging of a war of aggression or 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 said acts.
2. War crimes: Violations of the laws or customs of war
which include, but are not limited to, murder, ill-treatment
or deportation to slave-labor or for any other purpose of
civilian population of or in occupied territory, murder or
illtreatment of prisoners of war, of persons on the seas,
killing of hostages, plunder of public or private property,
wanton destruction of cities, towns, or villages, or
devastation not justified by military necessity.
3. Crimes against humanity: Murder, extermination,
enslavement, deportation and other inhuman acts done
against any civilian population, or persecutions on political,
racial or religious grounds, when such acts are done or such
persecutions are carried on in execution of or in connection
with any crime against peace or any war crime.
g) Principle VII - Complicity in the commission of a crime
against peace, a war crime, or a crime against humanity as set
forth in Principles VI is a crime under International Law.
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
C. THE INTERNATIONAL CRIMINAL COURT
Q. What is the International Criminal Court?
A. The International Criminal Court (ICC) is the first permanent, treaty
based, international criminal court established to promote the rule of
law and ensure that the gravest international crimes do not go
unpunished. It shall be a permanent institution and shall have the
power to exercise its jurisdiction over persons for the most serious
crimes of international concern, as referred to in the Rome Statute,
and shall be complementary to national criminal jurisdictions. (Rome
Statute, Art. 1)
It was established by the Rome Statute of the International Criminal
Court on 17 J uly 1998, when 120 States participating in the United
Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court adopted the
Statute. The Statute entered into force on J uly 1, 2002 and anyone
who commits any of the crimes under the Statute after this date will
be liable for prosecution by the Court.
Q. What is the Rome Statute? Is the Philippines a party to it?
A. The Rome Statute established the International Criminal Court. The
Statute was opened for signature by all states in Rome on J uly 17,
1998 and had remained open for signature until December 31, 2000
at the United Nations Headquarters in New York. The Statute
entered into force on J uly 1, 2002.
The Philippines is not yet a party to the Statute. While the Philippine
Mission to the United Nations, through Charge d Affairs Enrique
Manalo, signed the Rome Statue on December 28, 2000, the same
however was not signed by the President and submitted to the Senate
for ratification. Without ratification, the Philippines cannot be a
party to the Statute. In fact, Art. 125(2) of the Statute provides that it
is subject to ratification, acceptance or approval by signatory States.
(Pimentel vs. Office of the Executive Secretary, G.R. No. 158088,
July 6, 2005)
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
Q. On December 28, 2000, the Philippines signed the Rome Statute
of the International Criminal Court on December 28, 2000
through Charge d Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations. However, it was not signed by the
President of the Philippines.
May the Executive Secretary and the Department of Foreign
Affairs be compelled by mandamus to transmit to the Senate the
copy of the Rome Statute signed by a member of the Philippine
Mission to the United Nations even without the signature of the
President?
A. No, it is beyond the jurisdiction of the Courts to compel the
executive branch of the government to transmit the signed text of
Rome Statute to the Senate. Under our Constitution, the power to
ratify is vested in the President, subject to the concurrence of the
Senate. The role of the Senate is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence, it
is within the authority of the President to refuse to submit a treaty to
the Senate or, having secured its consent for its ratification, refuse to
ratify it. Although the refusal of a state to ratify a treaty which has
been signed in its behalf is a serious step that should not be taken
lightly, such decision is within the competence of the President
alone, which cannot be encroached by the Courts via a writ of
mandamus. (Pimentel vs. Office of the Executive Secretary, G.R. No.
158088, July 6, 2005)
Q. May the provisions of the Rome Statute be given retroactive
effect?
A. No. the Rome Statute applies the principle of non-retroactivity
ratione personae. Article 24 of the Statute states that no person
shall be criminally responsible under this Statute for conduct prior to
the entry into force of the Statute. The Rome Statute entered into
force on J uly 1, 2002 and therefore crimes committed prior to that
date will no be liable for prosecution by the International Criminal
Court.
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
Q. Where is the seat of the ICC?
A. The seat of the Court is The Hague in The Netherlands. The Court
will be temporarily housed at "de Arc" on the outskirts of The Hague
before moving to its permanent premises at the Alexanderkazerne.
(Id., Art. 3)
Q. Does the ICC have international legal personality?
A. Yes, the Court shall have international legal personality. It shall also
have such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes. (Id., Art. 4)
Q. What are the crimes falling under the jurisdiction of the ICC?
A. The jurisdiction of the Court shall be limited to the most serious
crimes of concern to the international community as a whole. The
Court has jurisdiction in accordance with this Statute with respect to
the following crimes:
a) The crime of genocide;
b) Crimes against humanity;
c) War crimes;
d) The crime of aggression.
Q. What are the jurisdictional rules applicable to the ICC?
A. The Rome Statute provides for the following rules on jurisdiction:
a) Jurisdiction ratione materiae (subject matter) The
jurisdiction of the Court shall be limited to the most serious
crimes of concern to the international community as a whole.
The Court has jurisdiction in accordance with this Statute with
respect to the following crimes: (i) Genocide; (ii) Crimes
against humanity; (iii) War crimes; (iv) Crime of aggression.
(Art. 5)
b) Jurisdiction ratione loci (place of the commission of the
crime) Once a State becomes a party to the Statute, it accepts
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
the Court's jurisdiction with respect to crimes under the Rome
Statute. However, for the Court to exercise its jurisdiction, the
territorial state (the state on whose territory the situation
which is being investigated has taken or is taking place), or the
nationality state (the state whose nationality is possessed by
the person who is being investigated) must be a party to the
Rome Statute. (Art. 12)
c) Jurisdiction ratione personae (over the person of the accused)
The Court shall have jurisdiction over the person of an
accused only if the crime was committed in the territory of a
State that is a party to the Rome Statute or if the accused is a
national of a State that is party to the Rome Statute. (Art. 12)
However, the Court shall have no jurisdiction over any person
who was under the age of 18 at the time of the alleged
commission of a crime. (Art. 26)
The Statute shall apply equally to all persons without any
distinction based on official capacity. In particular, official
capacity as a Head of State or Government, a member of a
Government or parliament, an elected representative or a
government official shall in no case exempt a person from
criminal responsibility under this Statute, nor shall it, in and of
itself, constitute a ground for reduction of sentence. (Art. 27)
d) Jurisdiction ratione temporis (time of commission of the
crime) A person shall not be criminally responsible under the
Rome Statute unless the conduct in question constitutes, at the
time it takes place, a crime within the jurisdiction of the Court.
(Art. 22) The Court has jurisdiction only with respect to crimes
committed after the entry into force of the Rome Statute, i.e.,
on J uly 1, 2002. (Art. 11)
Q. Would the ICC replace national or domestic criminal courts?
A. No, the ICC will not replace national courts, but will be
complementary to national criminal jurisdictions. The Court will
only investigate and prosecute if a State is unwilling or unable to
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
genuinely prosecute. This will be determined by the judges.
Unjustified delays in proceedings as well as proceedings which are
merely intended to shield persons from criminal responsibility will
not render a case inadmissible before the ICC. (Id., Art. 17)
Q. Is mistake of fact a valid defense in a prosecution before the
ICC?
A. Yes, a mistake of fact shall be a ground for excluding criminal
responsibility but only if it negates the mental element required by
the crime. (Id., Art. 32[1])
Q. Is mistake of law a valid ground for excluding criminal
responsibility in a prosecution before the ICC?
A. A mistake of law as to whether a particular type of conduct is a
crime within the jurisdiction of the Court shall not be a ground for
excluding criminal responsibility.
However, a mistake of law may be a ground for excluding criminal
responsibility if it negates the mental element required by such a
crime. (Id., Art. 32[2])
Q. Is following orders of a superior a valid defense in a prosecution
before the ICC?
A. The fact that a crime within the jurisdiction of the Court 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.
For the purposes of this article, orders to commit genocide or crimes
against humanity are manifestly unlawful. (Id., Art. 33)
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
Q. May the accused be tried in absentia before the ICC?
A. No. The Rome Statute applies the principle of presence. Article 63
of the Statute states that the accused shall be present during the trial.
However, if the accused, being present before the Court, continues to
disrupt the trial, the Trial Chamber may remove the accused and
shall make provision for him or her to observe the trial and instruct
counsel from outside the courtroom, through the use of
communications technology, if required. Such measures shall be
taken only in exceptional circumstances after other reasonable
alternatives have proved inadequate, and only for such duration as is
strictly required.
Q. Is the rule on presumption of innocence applicable to the ICC?
A. Yes. Article 66 of the Rome Statute affirms the rule on presumption
of innocence until proved guilty before the Court in accordance with
the applicable law. The onus (burden) is on the Prosecutor to prove
the guilt of the accused and in order to convict the accused, the Court
must be convinced of the guilt of the accused beyond reasonable
doubt.
Q. May the ICC impose the death penalty?
A. No. Article 77 of the Rome Statute only allows the imposition of the
following penalties on a person convicted of a crime under the Rome
Statute:
a) Imprisonment for a specified number of years, which may not
exceed a maximum of 30 years; or
b) Life imprisonment when justified by the extreme gravity of the
crime and the individual circumstances of the convicted
person.
In addition to imprisonment, the Court may impose a fine and order
the forfeiture of proceeds, property and assets derived directly or
indirectly from that crime, without prejudice to the rights of bona
fide third parties.
- Public International Law Bar Reviewer -
www.attyralph.com
SAMPLE CHAPTER
/ [email protected]

Copyright 2006 Ralph A. Sarmiento, All Rights Reserved.
Q. Where will the penalty of imprisonment be served?
A. Article 103 of the Rome Statute provides that a sentence of
imprisonment shall be served in a State designated by the Court from
a list of States which have volunteered to enforce the sentence in
their territory. However, if no State is designated by the Court or if
no State is willing to enforce the sentence, the sentence of
imprisonment shall be served in a prison facility made available by
the host State, i.e., The Netherlands.
Q. Have victims the personality to participate in the proceedings
before the ICC?
A. Yes, for the first time in the history of international criminal justice,
victims have won the right in the Rome Statute of the International
Criminal Court to make representations to the Pre-Trial Chamber
(Art. 15), to make submissions directly as well as through counsel
(Art. 19), and to make applications for reparation and to appeal the
same (Art. 82). This is because the victims before the two ad hoc
tribunals for the former Yugoslavia and Rwanda were considered as
mere witnesses who have no independent participation in the
proceedings, but are only called on to give evidence by the parties to
the proceedings.