Module: INTERNATIONAL CRIMINAL LAW (ICC)

What Is International Criminal Law?

International criminal law is a specialized branch of public international law. It encompasses a
body of international rules that define international crimes and outline the principles and procedures
for the investigation, prosecution, and punishment of these crimes. Unlike other areas of law that may
focus on states or organizations, international criminal law holds individuals directly responsible for
committing international crimes.
International criminal law has several defining characteristics:
1. Relatively New Body of Law: International criminal law is still a developing field, with many
foundational rules in the early stages of formation and continuous evolution.
2. Combination of International Law and Domestic Criminal Law: It merges principles from
both international law and domestic criminal law to address crimes that have a broad, cross-
border impact.
3. Focus on Individual Criminal Responsibility: Unlike traditional international law, which
primarily deals with state responsibility, international criminal law focuses on holding
individuals accountable for actions that violate international standards.
4. Criminalization of Acts Prohibited under International Law: It specifically targets actions
recognized as offenses under international law, such as genocide, war crimes, crimes against
humanity, and aggression.
5. Lack of Uniform Codification: There is no single, cohesive code for international criminal law.
Instead, it relies on treaties, customary international law, and principles drawn from various legal
systems.
6. Absence of a Truly Universal Court: Although courts like the International Criminal Court
(ICC) exist, they do not have universal jurisdiction over all states, as some states are not
members, and there are limitations on enforcement.

Types of International Criminal law

International criminal law can be divided into two main categories, each with specific elements:
1. Substantive International Criminal Law
o Material Acts that Amount to International Crimes: Defines specific actions
considered international crimes, such as genocide, crimes against humanity, war crimes,
and the crime of aggression.
o Subjective or Mental Elements of International Crimes: Covers the mental state or
intent (mens rea) required to establish individual criminal responsibility. For example,
intent, knowledge, and recklessness may all play roles in determining liability.
o Excusing Circumstances: Considers situations or defenses that may excuse the accused
from criminal liability, such as duress, self-defense, or mental incapacity.

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 oConditions for State Prosecution Obligations: Sets out when states are required or
permitted, under international law, to prosecute individuals accused of international
crimes. This includes principles of universal jurisdiction and obligations stemming from
international treaties.
2. Procedural International Criminal Law
o Regulates the various phases of international trials, including:
 Prosecution: Guidelines on initiating charges and preparing for trial.
 Pre-Trial: Procedures for preliminary hearings, investigation, and evidence
gathering.
 Trial: Conduct of the trial itself, including the presentation of evidence,
examination of witnesses, and cross-examinations.
 Appeal: Processes for challenging or reviewing trial outcomes.
 Sentencing and Enforcement: Rules for sentencing convicted individuals and
enforcing judgments.
o Related Matters: Includes specific protocols on admitting evidence, safeguarding the
rights of the accused, and providing protection and support to victims and witnesses to
ensure fair and safe trial proceedings.

What is international crime????????????

An international crime generally refers to acts that violate essential values or interests protected by
international law and are considered of concern to the international community as a whole. Key points
regarding international crimes include:
1. Lack of Universally Accepted Definition: There is no single, universally agreed-upon
definition or comprehensive criteria that definitively determine what constitutes an international
crime. The definition and scope vary based on context and jurisdiction.
2. Crimes That Threaten Fundamental Values or Interests: These are crimes that violate or
pose a threat to the core principles upheld by international law, such as human rights, peace,
security, and human dignity. Examples include genocide, war crimes, crimes against humanity,
and aggression, as they impact not only individual victims but also threaten global order and
moral principles.
3. Offenses Created by International Law: International crimes are offenses established directly
by international law, independent of domestic legal systems. This means that international law
itself, through treaties or customary norms, identifies and criminalizes these acts, allowing for
prosecution under international jurisdiction even if specific domestic laws do not cover the
crime.
International crimes are typically prosecuted through international tribunals, such as the International
Criminal Court (ICC), or in national courts under universal jurisdiction, reflecting the global
commitment to address acts that affect the international community at large.

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Qualification of International crime

To qualify as an international crime stricto sensu (strictly speaking as an international crime), a crime
must meet the following cumulative criteria:
1. Recognition as a Crime under Customary International Law: The conduct must be widely
accepted and established as a crime by customary international law, which is derived from the
general and consistent practices of states followed out of a sense of legal obligation.
2. Protection of Values Important to the International Community: The rules criminalizing
this conduct under customary law are specifically aimed at safeguarding values deemed
fundamental by the international community as a whole, such as human rights, peace, and
security.
3. Universal Jurisdiction Granted by Customary International Law: Customary international
law grants all states the right to exercise universal jurisdiction over the crime, allowing any state
to prosecute the offender, regardless of where the crime occurred or the nationality of the
perpetrator or victims.
4. Obligation of States to Extradite or Prosecute: There is a binding duty on states to either
extradite or prosecute the individual accused of the crime (known as the principle of aut dedere
aut judicare or aut punire aut dedere). This obligation reflects the seriousness of the crime and
the commitment to ensure accountability.
Crimes currently recognized as international crimes stricto sensu include:
1. Genocide
2. War crimes
3. Crimes against humanity
4. Crime of aggression
Other crimes often considered as part of this core group include torture, piracy, and, by some
interpretations, slavery.

THE 1950 “NUREMBERG PRINCIPLES”

The 1950 Nuremberg Principles are foundational guidelines established after World War II to define
responsibility and accountability for crimes under international law. These principles underscore the
individual liability for international crimes, irrespective of national laws or official status, and emphasize
fair trial rights. Here is a summary of each principle:
1. Principle I: Individual Responsibility for Crimes under International Law
Any individual who commits an act deemed a crime under international law is personally
accountable and subject to punishment.

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 2. Principle II: Irrelevance of Domestic Law
The absence of a penalty for an act under a country's domestic law does not absolve the
individual from responsibility under international law.
3. Principle III: Irrelevance of Official Position
Holding a high-ranking position, such as Head of State or government official, does not
exempt an individual from liability under international law for crimes they commit.
4. Principle IV: Orders from a Government or Superior
Following orders from a government or a superior does not excuse an individual from
responsibility under international law if a moral choice was available to them.
5. Principle V: Right to a Fair Trial
Individuals accused of international crimes are entitled to a fair trial, ensuring their rights to
due process concerning the facts and the law.
6. Principle VI: Categories of Punishable Crimes
The following are recognized as punishable crimes under international law:
o Crimes against Peace: Acts such as planning, initiating, or waging wars of aggression
or in violation of international treaties.
o War Crimes: Violations of the laws and customs of war, including mistreatment of
prisoners, killing civilians, and targeting non-combatants.
o Crimes against Humanity: Atrocities such as murder, extermination, enslavement,
deportation, and other inhumane acts against civilian populations.
7. Principle VII: Complicity in International Crimes
Assisting or participating in the commission of crimes against peace, war crimes, or crimes
against humanity (as defined in Principle VI) is itself a crime under international law.
These principles established a foundational basis for international criminal law by emphasizing that
individuals are accountable for international crimes and that certain defenses, such as official position
or following orders, do not provide immunity from prosecution. The principles also set the stage for
subsequent international tribunals and the development of the International Criminal Court (ICC).

What is NOT Considered an International Crime Stricto Sensu?

Other treaty-based crimes are often mistaken for international crimes but lack the defining elements that
would classify them as such. These crimes do not necessarily infringe upon values essential to the entire
international community but instead require international cooperation for effective suppression. These
are better described as transnational crimes or internationalized crimes and include:
 Illicit trafficking in narcotics and psychotropic substances
 Unlawful arms trade
 Smuggling of nuclear or other deadly materials
 Money laundering
 Slave trade (for some scholars)

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Additional examples include:
 Offenses committed on board aircraft
 Unlawful acts against civil aviation safety
 Acts threatening maritime navigation safety
 Crimes against internationally protected persons (e.g., diplomats)
 Hostage-taking
 Counterfeiting currency
 Recruitment, financing, and training of mercenaries
These crimes require international frameworks and cooperation but do not fall under the strict
classification of international crimes aimed at protecting universal values, as they are primarily governed
by treaties and rely on states' mutual agreements to suppress them.

Sources and Objectives of International Criminal Law

Sources (Art. 21 of the Rome Statute)
1. Treaties: Formal agreements between states, such as the Geneva Conventions, which outline
specific international crimes and legal obligations.
2. Customary International Law: Legal norms that have evolved through widespread, consistent
practices of states acting out of a sense of legal obligation.
3. General Principles of Law: Recognized principles shared across legal systems and utilized
when treaty and customary laws do not provide guidance.
Objectives
1. Retribution: To ensure justice by punishing those who commit grave crimes.
2. Deterrence: To discourage others from committing similar offenses.
3. Incapacitation: To prevent offenders from committing further crimes by depriving them of their
power.
4. Rehabilitation: To reintegrate offenders into society, focusing on restoration.
5. Denunciation/Education: To publicly condemn international crimes, reinforcing the values of
the global community.

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Fundamental Principles of International Criminal Law
1. Universal Jurisdiction: Allows states to prosecute certain crimes (e.g., genocide, war crimes)
regardless of where the crime occurred or the nationality of the perpetrator. It’s based on the idea
that such crimes are of universal concern.
2. The Principle of Territoriality: States have primary jurisdiction over crimes committed within
their territories, covering acts and persons within their boundaries, regardless of nationality.
o Subjective Territoriality: Jurisdiction over acts initiated within the state but completed
outside.
o Objective Territoriality: Jurisdiction over acts that start outside but have effects within
the state.
3. Extra-Territorial Jurisdiction: The ability of states to prosecute crimes occurring outside their
territory if a sufficient connection exists.
o Example: Lotus Case, where Turkey exercised jurisdiction over a collision involving a
Turkish ship on the high seas.
4. Protective Principle: A state may assert jurisdiction over foreign nationals who commit acts
abroad that threaten its security or fundamental interests.
5. Nationality Principle:
o Active Nationality: A state may prosecute its nationals for crimes committed abroad.
o Passive Personality: Allows a state to prosecute foreign nationals for crimes against its
citizens.
6. Aut Dedere Aut Judicare (Extradite or Prosecute): States are obliged to either prosecute
offenders of international crimes within their jurisdiction or extradite them to another state
willing to prosecute.
7. Inapplicability of Statutes of Limitations: No time limits apply for prosecuting international
crimes like genocide and war crimes, as codified in Article 29 of the Rome Statute.
8. Irrelevance of Immunities: Officials, including Heads of State, cannot use their official
positions as protection against prosecution by international courts (e.g., Article 27 of the Rome
Statute).
9. Act of State Doctrine: Courts of one country generally refrain from assessing the legality of
actions taken by a foreign government within its own territory. In the context of international
crimes, individuals cannot claim immunity based on state orders or official status.

Types of Universal Jurisdiction

1. Absolute or Pure Universal Jurisdiction: Allows a state to prosecute an international crime
without the suspect being present in its territory.
2. Conditional Universal Jurisdiction: Requires the suspect to be present within the state
asserting jurisdiction before prosecution can commence.
This framework enables accountability for severe international crimes and reinforces the international
community's commitment to justice, regardless of borders or official status.

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Main Organs of the International Criminal Court
ICC is mainly based in The Hague and the Netherlands with four dominant divisions:
1. The Presidency,

2. The Judicial Divisions,

3. The Office of the Prosecutor,

4. The Registry.

Structure of the ICC

1. The Presidency
o Functions: Handles the ICC’s administrative tasks, including legal, judicial affairs, and
external relations. It oversees public awareness efforts, enhances the court’s
relationship with States, and upholds its international presence.
o Judicial Management: Assigns cases to the Judicial Divisions, reviews, and finalizes
agreements with States for cooperation.
o Composition: Consists of the President, First Vice-President, and Second Vice-
President. These officials are elected by an absolute majority of ICC judges for a
renewable three-year term.
o Current Leadership: Piotr Józef Hofmański is the current President.
2. The Judicial Divisions
o Divided into three Chambers: Pre-Trial, Trial, and Appeals Divisions, with specific
roles in the judicial process. These divisions have a total of 18 judges elected to oversee
cases at different procedural stages.
o Pre-Trial Division
 Role: Ensures that there is sufficient evidence to bring a case to trial, confirms
charges, issues warrants or summonses, and commits cases for trial if
warranted.
 Functions: Protects the rights of suspects, victims, and witnesses, preserves
evidence, and oversees the initial phase of legal proceedings.
 Powers: Can authorize the Prosecutor to open investigations proprio motu (on
their own initiative) or proceed with investigations despite national
investigations, if state cooperation is lacking.
 Judges: Typically, three judges per case decide if there’s adequate evidence to
confirm charges and refer cases to the Trial Division.
o Trial Division
 Role: Conducts trials to determine the guilt or innocence of the accused based
on evidence provided.

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 Functions: Ensures fair trials, upholds the rights of the accused, and confirms
evidence beyond a reasonable doubt before rendering a verdict.
 Judges: Generally, three judges per case. They also determine sentences and
may order reparations, such as restitution, compensation, and rehabilitation for
victims.
o Appeals Division
 Role: Reviews appeals on decisions regarding guilt, innocence, or sentencing. It
has the authority to confirm, reverse, or amend decisions from the Trial
Division.
 Functions: Ensures no material error or unfairness affected the trial or sentence,
reviews orders for reparations, and can order a new trial if necessary.
 Judges: Usually, five judges per case.
3. The Office of the Prosecutor (OTP)
o Purpose: Independently investigates and prosecutes individuals responsible for crimes
under the ICC’s jurisdiction, ensuring that cases proceed based on sufficient evidence.
o Functions:
 Collects, analyzes, and secures evidence of alleged crimes.
 Determines whether to proceed with cases based on the jurisdictional
requirements and evidentiary support.
 Can decline to investigate if jurisdictional thresholds are unmet.
o Jurisdictional Independence: The OTP can initiate investigations even in cases not
directly referred to it by a State Party or Security Council, but must have sufficient
grounds to proceed.
4. The Registry
o Role: Supports all ICC organs to ensure effective and impartial court functioning.
o Key Services:
 Judicial Support: Manages court administration, including record keeping,
translation, interpretation, and legal aid. Provides counsel and assists the
defense and victims, as well as maintaining a detention center.
 External Affairs: Manages external relations, public outreach, and field offices
to ensure support and protection for witnesses and victims.
 Management Services: Oversees security, budget, finance, human resources,
and general services to ensure smooth court operations.
o Current Registrar: Peter Lewis.

Trust Fund for Victims (TFV)

Mandate: Established by the Assembly of States Parties, the Trust Fund for Victims (TFV) under
Article 79 of the Rome Statute plays a vital role in providing reparative and rehabilitative support to

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individuals and communities harmed by crimes within ICC jurisdiction. It functions both
independently and in coordination with the Court to assist victims in their recovery and reintegration.
Functions
1. Court-Ordered Reparations
o The TFV is responsible for implementing reparations ordered by the ICC after a
conviction. These reparations can be financial compensation, physical rehabilitation,
symbolic acts of restoration, or any other forms the Court deems appropriate. This
process ensures that justice extends beyond punishment to actively address the harm
done to victims.
o Reparations may include restitution (returning victims to their original state),
compensation (financial support for lost income or physical injury), and rehabilitation
(medical, psychological, and social assistance).

2. Victim Support Programs

o In addition to reparations, the TFV provides physical, psychological, and material
support to victims and affected communities even in cases where reparations orders are
not given. This involves therapeutic support, healthcare services, educational programs,
and livelihood assistance to help victims regain stability.
o By addressing physical and psychological needs, the TFV contributes to empowering
victims, enabling them to rebuild their lives and reintegrate with dignity into their
communities.
3. Long-term Impact and Restorative Justice
o The TFV’s support contributes to long-lasting peace by promoting restorative justice
and reconciliation. Beyond individual healing, these programs help rebuild social
cohesion and promote collective healing within communities devastated by crimes like
genocide, crimes against humanity, and war crimes.
o This restorative approach helps to transform victimized communities, creating
sustainable peace by fostering forgiveness, understanding, and reintegration.

ICC Jurisdiction and Trigger Mechanisms

The ICC has limited jurisdiction defined by several jurisdictional principles and may act only when
certain conditions are met.
Jurisdiction Types
1. Territorial Jurisdiction (Ratione Loci)
o The ICC can prosecute crimes committed within the territory of a State Party or on
vessels and aircraft registered to State Parties.
o This jurisdiction ensures accountability for crimes regardless of where they occur
within a member state, affirming the ICC’s commitment to upholding international
justice.

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 2. Nationality-Based Jurisdiction
o If the state of the accused’s or victim’s nationality is a party to the Rome Statute, the
ICC has the jurisdiction to prosecute crimes involving its nationals, even if the crime
occurs outside its territory.
o This provision broadens the ICC’s reach and ensures justice for victims and
accountability for accused individuals regardless of where the crime took place.
3. Security Council Referral
o Under Chapter VII of the UN Charter, the Security Council can refer situations to the
ICC, enabling it to investigate crimes in non-State Parties.
o This referral process allows the ICC to intervene in situations of serious international
concern, regardless of national boundaries, ensuring that the most severe crimes do not
escape scrutiny.

4. State Acceptance
o A state not party to the Rome Statute can accept ICC jurisdiction for specific incidents,
enabling the ICC to address crimes within its borders or by its nationals.
o This acceptance allows the ICC to assist non-member states facing serious crimes when
they are willing to permit ICC intervention.
5. Temporal Jurisdiction (Ratione Temporis)
o The ICC can only address crimes committed after July 1, 2002, when the Rome Statute
came into effect, and for states joining later, from the date of their accession.
o This jurisdictional limit ensures that ICC interventions are legally grounded in the
statute’s authority, preventing retrospective criminalization.
6. Personal Jurisdiction (Ratione Personae)
o The ICC has jurisdiction over individuals, but not over those under 18 years old at the
time of the crime.
o This principle holds accountable all who are of age and complicit in international
crimes, affirming the ICC’s stance against impunity for severe crimes.
7. Subject Matter Jurisdiction (Ratione Materiae)
o The ICC addresses crimes of the gravest international concern: genocide, crimes
against humanity, war crimes, and the crime of aggression.
o This focus ensures that the ICC concentrates on prosecuting only the most severe
violations of international law.

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Principle of Complementarity
 The ICC acts only when a state is unwilling or unable to genuinely prosecute. It acts as a court
of last resort, relying on national jurisdictions to address crimes whenever possible.
 This principle respects state sovereignty while providing an international avenue for justice,
ensuring that severe crimes do not go unpunished due to political or practical constraints within
the state.

Trigger Mechanisms
The ICC's jurisdiction is activated by several mechanisms, ensuring that cases align with its
jurisdictional mandate.
1. State Referral
o States that are parties to the Rome Statute can refer cases directly to the ICC, prompting
the Prosecutor to investigate crimes within that state’s borders or involving its
nationals.
o This process allows states to seek ICC assistance in addressing crimes they may be
unable to handle on their own.
2. Prosecutor’s Initiative (Proprio Motu)
o The Prosecutor can initiate an investigation independently when evidence suggests
crimes under ICC jurisdiction. However, this requires approval from the Pre-Trial
Chamber to ensure accountability.
o This mechanism allows the ICC to pursue justice even without a referral, ensuring the
Prosecutor can address significant crimes under ICC jurisdiction.
3. Security Council Referral
o Acting under Chapter VII of the UN Charter, the UN Security Council can refer cases
to the ICC, enabling the court to intervene in situations posing a threat to peace and
security.
o This mechanism allows the ICC to address severe crimes even in non-member states,
extending its jurisdiction to uphold global justice.
4. Deferral Mechanism
o Under Article 16, the Security Council can defer ICC investigations or prosecutions for
12 months if they threaten peace or security, renewable annually.
o This deferral provision reflects the ICC’s commitment to peace and stability, allowing
the court to pause proceedings when they may harm larger peace initiatives.

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Key Legal Principles
1. Ne Bis in Idem (Double Jeopardy)
o This principle prevents individuals from being tried twice for the same crime. Once
tried and acquitted or convicted, an individual cannot face retrial by the ICC for the
same conduct.
o Exceptions: The ICC may retry a case if:
 Shielding: National proceedings were intended to shield the accused from
accountability.
 Unjust Trials: National proceedings were conducted in a way that does not
genuinely seek justice.
o This ensures that justice is both fair and final but provides a safeguard against misuse of
national legal systems to evade accountability.
2. Principle of Complementarity
o This principle upholds that the ICC only acts as a secondary institution, intervening
only if national jurisdictions cannot genuinely prosecute.
o It respects state sovereignty while ensuring that severe international crimes face
prosecution, either by national courts or by the ICC.
3. Prosecutorial Discretion
o The Prosecutor has the authority to decide whether to proceed with investigations and
charges based on evidence and jurisdictional limits.
o This discretion ensures that cases align with the ICC’s mandate and resources, focusing
only on significant and actionable cases.

Can You raise the Principle of Ne Bis in Dem on Simone

Gbagbo?
To raise the principle of ne bis in idem (double jeopardy) for Simone Gbagbo, we must examine
whether her prosecution by Côte d'Ivoire in 2015 for undermining state security sufficiently overlaps
with the crimes covered by the ICC's case, such that ICC proceedings would be barred under Article
20(3) of the Rome Statute. This article states that a person cannot be tried by the ICC if they have
already been tried by a competent national court for the same conduct, except if the national
proceedings were not conducted genuinely or covered different criminal acts.
In Gbagbo's case:
1. Domestic Conviction: In 2015, Gbagbo was convicted by an Ivorian court for crimes related
to undermining state security and was sentenced to 20 years in prison.
2. ICC Charges: The ICC's arrest warrant (issued in 2012) concerns alleged crimes against
humanity committed during post-election violence in Abidjan. These charges include murder,

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 rape, other forms of sexual violence, persecution, and inhumane acts, involving her as an
indirect co-perpetrator. These specific crimes are distinct from the domestic charges of
undermining state security.
3. ICC Ruling: The ICC Appeals Chamber concluded that the domestic proceedings did not
cover the same criminal conduct as the ICC charges. Therefore, the ICC does not consider
these to be the "same conduct" under Article 20(3), and the principle of ne bis in idem does not
apply here.
4. Admissibility: According to Article 17 of the Rome Statute, a case is not admissible if it is
being investigated or prosecuted by a state with jurisdiction, except when the state is unwilling
or unable to genuinely conduct the prosecution. Since Côte d'Ivoire’s proceedings did not
address the crimes under the ICC's jurisdiction, the ICC retains jurisdiction over Gbagbo's
case.
5. Obligation to Cooperate: Côte d'Ivoire remains under an obligation to cooperate with the
ICC, including surrendering Gbagbo, as the crimes alleged by the ICC are separate from the
domestic charges and fall within the ICC's jurisdiction.
Thus, invoking the principle of ne bis in idem would not succeed here since the charges addressed in
Côte d'Ivoire’s court do not encompass the specific crimes alleged by the ICC. The ICC is therefore
justified in pursuing Gbagbo’s case independently.

Challenges to the jurisdiction of the Court or the admissibility

of a case
To challenge the jurisdiction or admissibility of Simone Gbagbo's case before the ICC, several key
factors and processes are relevant:
1. Challenges to Admissibility
Under Article 17 of the Rome Statute, a case can be deemed inadmissible if:
 National Prosecution: Côte d'Ivoire (or any state with jurisdiction) is already prosecuting or
has prosecuted the case genuinely. However, the ICC Appeals Chamber has noted that the
national proceedings against Gbagbo did not cover the same criminal acts (e.g., crimes against
humanity) as those in the ICC’s case. Therefore, this challenge is unlikely to succeed.
 Double Jeopardy (Ne Bis in Idem): Gbagbo’s domestic conviction for undermining state
security does not cover the specific ICC charges (murder, rape, persecution, and other inhuman
acts). Consequently, ne bis in idem would not apply.
 State Decision Not to Prosecute: If Côte d'Ivoire had investigated and decided not to
prosecute the alleged crimes under ICC jurisdiction, a challenge might be viable, provided the
decision was genuine.

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  Gravity: If the case is not of "sufficient gravity" for the ICC, this can also be grounds for
challenge. However, the nature of the crimes in question generally meets the ICC’s gravity
threshold.
2. Who Can Challenge the Case?
 Simone Gbagbo (the Accused): She has the right to challenge the case’s admissibility or the
ICC’s jurisdiction, asserting that Côte d'Ivoire’s national proceedings cover the conduct in
question or addressing any other jurisdictional concerns.
 Côte d'Ivoire (the State): As a state with jurisdiction over Gbagbo’s case, Côte d'Ivoire could
challenge admissibility, arguing it is conducting genuine national proceedings. However, given
the ICC’s previous ruling on the distinct nature of the cases, this may not be a successful
avenue.
 Other Relevant States: States from which jurisdiction is accepted under Article 12 of the
Rome Statute can also submit challenges.
3. Command Responsibility
 Indirect Co-Perpetrator: The ICC has charged Gbagbo as an indirect co-perpetrator, alleging
her involvement in planning and coordinating crimes against humanity. In cases of command
or superior responsibility, individuals (civilian or military leaders) can be held liable if they
either intended or consciously disregarded knowledge of crimes by subordinates and failed to
take preventive or corrective measures. This liability is central to the ICC’s case against her,
given her alleged indirect command role.

4. ICC’s Own Motion to Determine Admissibility

 The ICC can, on its own, evaluate the admissibility of a case under Article 17. Even without a
formal challenge from Gbagbo or Côte d'Ivoire, the Court may independently review
admissibility if new evidence or legal arguments emerge.
5. State Cooperation and Enforcement
 Article 86 obligates state parties, including Côte d'Ivoire, to cooperate fully with the ICC,
particularly in surrendering suspects. Given the ICC’s jurisdictional ruling, Côte d'Ivoire
remains bound to comply unless a new successful admissibility or jurisdictional challenge
arises.
In summary, challenges to the ICC’s jurisdiction or admissibility could be raised by Gbagbo or Côte
d'Ivoire, particularly on grounds of national prosecution or ne bis in idem. However, given the
distinction between the national charges and the ICC's charges, previous rulings suggest the ICC is
likely to retain jurisdiction over the case.

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The principle of command responsibility, also referred to as superior responsibility, holds military
commanders and civilian superiors accountable for crimes committed by their subordinates under
specific conditions. This mode of liability requires demonstrating both knowledge and failure to act
appropriately by the superior.
1. Command Responsibility for Military Commanders
Military commanders can be held criminally liable if:
 Knowledge (Intention): The commander knew that subordinates were committing or about to
commit crimes.
 Reason to Know (Negligence): Even if the commander did not directly know, they had reason
to know due to conscious or unconscious negligence (e.g., circumstances or reports suggesting
such acts were occurring).
 Failure to Act (Material Element): The commander failed to take all feasible steps to prevent
these crimes, stop them, or submit the matter to appropriate authorities for investigation and
prosecution.
2. Command Responsibility for Civilian Superiors
For civilians in positions of authority, criminal responsibility is similarly established under these
conditions:
 Knowledge or Conscious Disregard (Intent or Negligence): The civilian superior either knew
of the criminal acts or consciously disregarded information that clearly indicated subordinates
were committing or planning to commit such crimes.

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  Effective Responsibility and Control (Material Element): The criminal activities were within
the scope of the superior’s effective control and responsibility.
 Failure to Act (Material Element): The superior failed to take necessary and reasonable
measures within their power to prevent the crimes, repress them, or report them to competent
authorities for investigation and prosecution.

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Conditions for these orders
The conditions for obeying orders as a defense against criminal liability, particularly in the context of
international criminal law, are established under specific circumstances. To claim this defense, the
following conditions must be met:
1. Legal Obligation to Obey
o The person was under a legitimate, recognized legal duty to obey the orders of the
government or the superior issuing the order. This means the individual must have been
in a position where compliance was required by law or military duty.
2. Lack of Knowledge of Unlawfulness

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 o The individual genuinely did not know that the order was unlawful. This defense requires
that the person acted under the belief that the order was lawful and did not have
knowledge that it involved criminal acts.
3. Order Not Manifestly Unlawful
o The order must not be manifestly unlawful, meaning it should not have been obviously
illegal. A manifestly unlawful order is one that any reasonable person would recognize
as illegal, such as orders to commit atrocities like genocide or torture.
If these conditions are met, the defense of following orders can be raised. However, if an order is
manifestly unlawful, this defense generally does not apply, as individuals are expected to refuse blatantly
illegal commands, especially those involving serious violations of human rights or international
humanitarian law.

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State Cooperation with the ICC
1. General Obligation to Cooperate
o Article 86 of the ICC Statute establishes a broad duty for all State Parties to cooperate
fully with the Court. This includes assistance in investigations, the arrest and surrender
of suspects, and compliance with ICC requests.
2. Waiver of Immunity and Consent to Surrender (Article 98)
o Article 98 addresses situations involving immunity, where the ICC may require consent
from a state to proceed, particularly if the accused holds diplomatic or state immunity.
Article 98 must be read alongside Article 27, which states that official capacity does not
exempt individuals from ICC jurisdiction, ensuring that high-ranking officials can still
be subject to prosecution.
ICC Proceedings Overview
The ICC follows a structured process through various stages:
1. Preliminary Examinations
o The Office of the Prosecutor assesses if there is enough evidence of crimes of sufficient
gravity that fall within ICC jurisdiction. It also checks for genuine national proceedings
and whether an investigation would serve the interests of justice and the victims.
2. Investigations
o If the case meets the criteria, the Prosecution gathers evidence and identifies suspects,
requesting judges to issue:
 An arrest warrant, where the ICC relies on states to arrest and transfer the
suspect.
 A summons to appear, if the suspect is likely to comply voluntarily.
o If jurisdictional or evidential requirements are unmet, the investigation cannot proceed.
3. Pre-Trial Stage
o Initial Appearance: Three Pre-Trial judges confirm the suspect’s identity and charges.
o Confirmation of Charges Hearing: After hearing arguments from the Prosecution,
Defense, and victim representatives, judges decide if there’s enough evidence to proceed
to trial, typically within 60 days. If the suspect is not present, legal submissions continue
in absentia.
4. Trial Stage
o Three judges oversee the trial, where the Prosecution must prove guilt beyond a
reasonable doubt. Following the evidence review, the judges issue a verdict. Upon a
guilty verdict, they impose a sentence, which can be up to 30 years or, in exceptional
cases, life imprisonment. Reparations may also be ordered for victims.

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 5. Appeals Stage
o Both the Prosecutor and Defense can appeal a verdict or sentence. The Appeals
Chamber, composed of five judges, reviews and may uphold, amend, or reverse the
decision. This is generally the final judgment unless a retrial is ordered.

6. Enforcement of Sentence
o Sentences are enforced in countries that have agreed to uphold ICC sentences. If the
Appeals Chamber overturns a conviction, the individual may be released.

CHAPTER V: TRANSITIONAL JUSTICE - PEACE VS.

JUSTICE
Definition of Transitional Justice: Transitional justice is a comprehensive approach involving judicial
and non-judicial measures to address legacies of mass human rights abuses. The aim is to:
Recognize and restore justice to victims.
Rebuild trust in state institutions.
Promote human rights and the rule of law as foundations for reconciliation and prevention of
future violations.
Measures and Initiatives: Because past abuses are often deeply complex, transitional justice requires
more than just judicial measures. Key initiatives include:
1. Criminal Prosecutions: These involve judicial investigations and trials of individuals most
responsible for grave human rights violations, focusing on those accountable for systemic or
widespread crimes.
2. Truth Commissions: These are temporary, state-authorized commissions designed to
investigate and report on specific periods of abuse. They also make recommendations to help
repair past harms and prevent future violations.
3. Reparation Programs: State-sponsored initiatives providing material and symbolic reparations
to victims, aiming to address both the physical and moral impacts of past abuses.
4. Security System Reform: These programs work to transform institutions like the military,
police, and judiciary from instruments of repression to entities of public service and integrity.
5. Memorialization Efforts: Includes museums, memorials, and other forms of public memory to
honor victims and foster societal awareness, helping to prevent the recurrence of abuses.
Conclusion on Transitional Justice: There is no universal approach for societies grappling with
legacies of mass abuse. Each society must adapt justice to its unique circumstances as it transitions from
a period where human rights abuses were often normalized. Transitional justice, therefore, represents
justice modified for societies in transformation, with some experiencing abrupt changes and others
transitioning over decades.

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General Conclusion on International Criminal Justice
International Criminal Justice (ICJ) remains a continuous journey, with the ICC as a primary institution.
The ICC has faced significant criticism, especially from supporters, regarding its perceived failure to
prosecute certain cases (e.g., Afghanistan). Despite this, its contribution to ICJ and its influence on
national legislation are commendable achievements. Future scholars and lawyers have much to explore,
including how the ICC impacts transitional justice efforts globally.

RECAP EXERCISES- THE LIST IS NOT EXHAUSTIVE

Reason why ICC is not an African court

1. Global Jurisdiction: The ICC has jurisdiction over crimes committed in the territories of its
member states or by their nationals, as well as cases referred to it by the United Nations Security
Council. This jurisdiction is not limited to Africa.
2. Diverse Cases: While many of the ICC's cases have indeed involved African nations (such as
Uganda, Democratic Republic of the Congo, Sudan, Central African Republic, Kenya, Libya,
Côte d'Ivoire, and Mali), the court also has investigations and cases in other regions, including
Georgia, Bangladesh/Myanmar, Afghanistan, State of Palestine, Republic of the Philippines,
Venezuela, and Ukraine.
3. Member State Participation: The ICC's activities are driven by the situations referred to it by
member states or the UN Security Council. The focus on African cases partly reflects the
willingness of African states to engage with the court.
4. Global Membership: The Rome Statute, the ICC's founding treaty, has been ratified by 123
countries from all continents, demonstrating its global membership.
5. Independent Prosecution: The ICC's Office of the Prosecutor is an independent body that
decides on investigations and prosecutions. Its decisions are based on legal criteria and the
availability of evidence, not the geographic location.
6. Universal Crimes: The ICC prosecutes genocide, crimes against humanity, war crimes, and the
crime of aggression, which are considered universal crimes under international law. The court's
focus is on these crimes, not specific regions.
7. Cooperation with Non-African States: The ICC works with and receives referrals from states
outside Africa. For instance, the situations in Ukraine and Georgia were referred by these
countries themselves, indicating the court's interactions with European nations.
8. Diverse Judiciary and Staff: The ICC's judges and staff come from a variety of countries
worldwide, reflecting its international character and not a singular focus on Africa.
9. Referrals and Self-Referrals: Several African cases at the ICC have been self-referred by the
African states themselves, indicating their trust in the institution.

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 10. Participation of Non-African Countries: Many non-African countries are State Parties to the
Rome Statute and actively participate in the Assembly of States Parties, influencing the court's
policy and administration.

Cases
African Cases
1. Situation in the Republic of Uganda: The ICC has investigated and prosecuted crimes against
humanity and war crimes allegedly committed in Uganda since 2002. The Court has issued arrest
warrants for five individuals, including former Ugandan Lord's Resistance Army (LRA)
commander Joseph Kony.
2. Dominic Ongwen (Uganda): Also associated with the Lord's Resistance Army like Kony,
Ongwen was indicted on charges of war crimes and crimes against humanity, including murder,
enslavement, and inhumane acts. He was sentenced to 25 years in prison on 16 January 2015.
3. Jean-Pierre Bemba (DRC): Indicted on 23 May 2008 for crimes against humanity and war
crimes, including murder and rape. He was acquitted on 8 June 2018.
4. Situation in Darfur, Sudan: The ICC has investigated and prosecuted crimes against humanity
and war crimes allegedly committed in Darfur, Sudan, between 2003 and 2008. The Court has
issued arrest warrants for five individuals, including Sudanese President Omar al-Bashir.
5. Situation in the Republic of Côte d'Ivoire: The ICC has investigated and prosecuted crimes
against humanity and war crimes allegedly committed in Côte d'Ivoire since 2010. The Court
has issued arrest warrants for four individuals, including former Ivorian President Laurent
Gbagbo and his wife, Simone Gbagbo
6. Situation in the Republic of Kenya: The ICC has investigated and prosecuted crimes against
humanity allegedly committed in Kenya following the 2007 presidential election. The Court has
issued arrest warrants for six individuals, including Kenyan President Uhuru Kenyatta and his
Deputy President, William Ruto.

Non-African Cases
1. Gamlet Guchmazov (Georgia): Indicted on 24 June 2022 for war crimes, currently a fugitive.
2. Mikhail Mindzaev (Georgia): Also indicted on 24 June 2022 for war crimes and is a fugitive.
3. David Sanakoev (Georgia): Indicted on the same date for war crimes and is a fugitive.
4. Maria Lvova-Belova (Ukraine): Indicted on 17 March 2023 for war crimes, currently a fugitive
.
5. Vladimir Putin (Ukraine): Indicted on 17 March 2023 for war crimes, currently a fugitive.
6. Situation in the Islamic State of Iraq and the Levant (ISIL), Iraq/Syria: The ICC has investigated
and prosecuted crimes against humanity and war crimes allegedly committed by ISIL in Iraq and
Syria since 2014. The Court has issued arrest warrants for two individuals.

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 7. Situation in Libya: The ICC has investigated and prosecuted crimes against humanity and war
crimes allegedly committed in Libya since 2011. The Court has issued arrest warrants for nine
individuals, including former Libyan leader Muammar Gaddafi.

As a noun, a fugitive is a person who is running away or hiding, usually in order to avoid being
caught by the police. For example, a convicted criminal who escapes from prison is a fugitive.

These cases illustrate the ICC's global jurisdiction and its commitment to prosecuting crimes of
international concern, regardless of where they occur. The list of cases covers a variety of charges,
including genocide, crimes against humanity, and war crimes, reflecting the court's role in addressing
serious violations of international law across different continents.
the context of international criminal law:

What is the ICC and when was it established?

 The ICC is an international tribunal established on July 1, 2002, to prosecute individuals
for genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC
is based in The Hague, Netherlands, and has jurisdiction over crimes committed on the
territory of or by nationals of States Parties to the Rome Statute, the treaty that established
the Court.
Primary functions and jurisdiction of the ICC?
 The ICC prosecutes individuals for the most serious offenses of international concern:
genocide, war crimes, crimes against humanity, and aggression. It has jurisdiction over
crimes committed in the territory of a State Party or by its nationals.
Crimes under the ICC's jurisdiction?
 Genocide, crimes against humanity, war crimes, and the crime of aggression.
Explain the principle of complementarity.
 The ICC acts as a court of last resort, intervening only when national courts are unwilling
or unable to prosecute criminals.
What is the Rome Statute?
 The Rome Statute is the treaty that established the ICC, adopted in 1998 and came into
force in 2002.

Structure and components of the ICC?

 The ICC is composed of four main organs: the Presidency, the Judicial Divisions, the
Office of the Prosecutor, and the Registry.

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 How are cases referred to the ICC?
 Cases can be referred to the ICC by a State Party, the United Nations Security Council,
or the Prosecutor can initiate investigations proprio motu (on their own initiative).
Role of the UN Security Council in the ICC?
 The UN Security Council can refer situations to the ICC and defer investigations or
prosecutions for one year under Article 16 of the Rome Statute.
Explain universal jurisdiction in relation to the ICC.
 Universal jurisdiction allows the ICC to prosecute certain crimes that are of international
concern, regardless of where they were committed and the nationality of the perpetrators
or victims.

Challenges faced by the ICC in enforcing international

criminal law?
 Challenges include state non-cooperation, political pressure, jurisdictional limitations,
and resource constraints.

How does the ICC ensure fair trial rights?

 The ICC follows due process standards set by international law, ensuring rights like the
presumption of innocence, legal representation, and the right to a fair and public trial.
Role of victims in ICC proceedings?
 Victims can participate in proceedings, present their views and concerns, and request
reparations.
Enforcement mechanism for ICC judgments?
 ICC judgments are enforced through the cooperation of State Parties, as the ICC lacks its
own enforcement mechanism.
Criticisms and controversies surrounding the ICC?
 Criticisms include alleged bias against African nations, questions about its effectiveness
and political independence, and non-universality of its jurisdiction due to non-ratification
by some countries.

Interaction of State Parties with the ICC?

 State Parties cooperate with the ICC in investigations, provide financial contributions,
and implement its rulings and arrest warrants.

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 Significance of the Assembly of States Parties?
 The Assembly of States Parties provides management oversight to the ICC and assists in
budgetary and administrative matters.
Impact of non-member states on the ICC's effectiveness?
 Non-member states can limit the ICC’s reach and effectiveness by not cooperating with
investigations or extraditions.
ICC’s contribution to international criminal law development?
 The ICC contributes to the development of international criminal law by setting
precedents, defining legal terms, and promoting international norms of justice.

Examine a landmark ICC case.

 One landmark case is the prosecution of Thomas Lubanga Dyilo, the first person
convicted by the ICC. He was found guilty in 2012 of conscripting and enlisting children
under the age of 15 into armed groups and using them to participate actively in hostilities
in the Democratic Republic of Congo.

How does the ICC's jurisdiction differ from that of national

courts?
The ICC's jurisdiction differs from that of national courts in several ways. First, the ICC has jurisdiction
over crimes of international concern, which are not typically addressed by national courts. Second, the
ICC can only exercise jurisdiction over crimes committed on the territory of or by nationals of States
Parties to the Rome Statute. Third, the ICC is a court of last resort, meaning that it can only intervene if
national courts are unable or unwilling to genuinely investigate and prosecute the crimes in question.

The principles of complementarity and subsidiarity are two important

principles that guide the ICC's investigations and prosecutions. Explain
 Complementarity means that the ICC should only intervene if national courts are unable or
unwilling to genuinely investigate and prosecute the crimes in question. This principle is
designed to ensure that the ICC does not interfere with national justice systems.
 Subsidiarity means that the ICC should only prosecute cases where national courts are not
effectively investigating or prosecuting the crimes in question. This principle is designed to
ensure that the ICC focuses on its most important work.

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What are the different stages of an ICC case, from investigation to trial
to appeal?
The different stages of an ICC case are as follows:
 Investigation: The ICC's Prosecutor investigates allegations of crimes within the Court's
jurisdiction. If the Prosecutor finds that there is sufficient evidence to support a prosecution, she
or he may request an arrest warrant from a Pre-Trial Chamber.
 Pre-Trial: The Pre-Trial Chamber is responsible for deciding whether to issue an arrest
warrant, confirm the charges against the accused, and ensure that the accused's rights are
protected.
 Trial: The Trial Chamber is responsible for hearing the evidence and making a determination
on the guilt or innocence of the accused.
 Appeal: The Appeals Chamber is responsible for reviewing the decisions of the Trial
Chamber.

What are the rights of the accused in an ICC trial?

The rights of the accused in an ICC trial include:
 The right to be presumed innocent until proven guilty
 The right to be informed of the charges against them
 The right to legal representation
 The right to be present at their trial
 The right to cross-examine witnesses
 The right to remain silent
 The right to an appeal

What is the role of the ICC's Prosecutor and Defense Counsel?

 The ICC's Prosecutor is responsible for investigating and prosecuting crimes within the Court's
jurisdiction. The Prosecutor has the authority to request arrest warrants, file charges, and present
evidence at trial.

 The Prosecutor's primary responsibility is to uphold the interests of justice and to hold those
responsible for crimes of international concern accountable.
 The ICC's Defense Counsel represents the accused in ICC proceedings.

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  Defense Counsel is responsible for ensuring that the accused's rights are protected and for
presenting evidence and arguments in their defense. Defense Counsel plays a crucial role in
ensuring that the ICC's proceedings are fair and impartial

What are the different types of sentences that can be imposed by the ICC?
The ICC can impose a variety of sentences, including:
 Imprisonment
 Fines
 Forfeiture of assets
 Repair and compensation for victims
 Restitution

How does the ICC ensure the protection of victims and witnesses?
The ICC has a number of measures in place to protect victims and witnesses, including:
 Witness protection programs
 Confidential hearings
 Pseudonyms
 Relocation
The ICC also has a Victims and Witnesses Unit that provides support and assistance to victims and
witnesses throughout the proceedings.

What is the role of the ICC's Trust Fund for Victims?

The ICC's Trust Fund for Victims provides assistance to victims of crimes within the Court's jurisdiction.
The Trust Fund provides financial assistance to victims, including reparations, medical care, and
psychological counseling. The Trust Fund also supports projects that help to restore the dignity and well-
being of victims.

What are the different ways in which the ICC can cooperate with national
courts?
The ICC can cooperate with national courts in a number of ways, including:
 Sharing evidence and information
 Providing expertise and training
 Assisting with investigations and prosecutions
 Deferring cases to national courts
The ICC's cooperation with national courts is essential for ensuring that crimes of international concern
are effectively investigated and prosecuted.

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What is the relationship between the ICC and the United Nations Security
Council?
The ICC is a separate and independent institution from the United Nations. However, the UN Security
Council has the power to defer an ICC investigation or prosecution. The Security Council has used this
power on two occasions, in the cases of Sudan and Libya.

What are the challenges faced by the ICC in securing the cooperation of
non-State Parties?
The ICC has faced a number of challenges in securing the cooperation of non-State Parties, including:
 Lack of ratification of the Rome Statute
 Political opposition
 Insufficient resources
 Lack of capacity

What are the different criticisms that have been leveled against the ICC?
The ICC has been criticized for a number of reasons, including:
 Its focus on Africa
 Its perceived bias against developing countries
 Its lack of resources
 Its ineffectiveness in deterring crimes of international concern

How does the ICC contribute to the development of international

criminal law?
The ICC contributes to the development of international criminal law in a number of ways, including:
 Establishing new precedents and legal principles
 Promoting the harmonization of national criminal laws
 Providing a forum for the interpretation and application of international criminal law

What are the different ways in which the ICC can promote international
criminal justice?
The International Criminal Court (ICC) can promote international criminal justice in various ways,
including:
1. Investigating and Prosecuting Crimes of International Concern

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 o The ICC has the authority to investigate and prosecute individuals responsible for serious
international crimes, such as genocide, war crimes, crimes against humanity, and the
crime of aggression. By holding perpetrators accountable, the ICC seeks to deter future
crimes and uphold justice.
2. Promoting Cooperation Among National Courts
o The ICC encourages national courts to prosecute international crimes within their
jurisdictions, strengthening the principle of complementarity (whereby the ICC acts only
when national courts are unwilling or unable to prosecute). By fostering this
collaboration, the ICC enhances global judicial capacity to address international crimes.
3. Providing Training and Assistance to National Courts
o The ICC supports national judicial systems through training, technical assistance, and
capacity-building programs. This enables local courts to better handle cases involving
international crimes and aligns national practices with international standards.
4. Raising Awareness of International Criminal Justice
o The ICC engages in outreach and awareness campaigns to educate the public,
governments, and legal professionals about international criminal law and the importance
of justice for international crimes. By increasing awareness, the ICC promotes the rule
of law and fosters a culture of accountability.
5. Influencing National Legislation
o Through its jurisprudence and the Rome Statute, the ICC sets standards that influence
national laws on criminal justice, particularly in countries that incorporate ICC principles
into their legal systems, leading to stronger laws on crimes of international concern.
6. Encouraging Victims' Participation and Reparations
o The ICC includes provisions for victims to participate in proceedings and to receive
reparations, recognizing their rights and promoting restorative justice. This victim-
centered approach strengthens the ICC's role in delivering justice and reconciliation.
7. Deterrence and Prevention
o By bringing perpetrators of serious crimes to justice and by being a constant presence in
international affairs, the ICC serves as a deterrent. Its existence reminds would-be
offenders of the legal and social consequences of committing international crimes.

Discus the Importance of ICC

1. Holding individuals accountable for the most serious crimes of international concern: The
ICC is the first permanent international court that has the jurisdiction to prosecute individuals
for genocide, crimes against humanity, war crimes, and the crime of aggression. This is a
significant step forward in the fight against impunity for these crimes.

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 2. Promoting the rule of law: The ICC's investigations and prosecutions help to uphold the rule
of law by sending a clear message that no one is above the law, regardless of their position or
status. This can help to deter future crimes and promote respect for human rights.
3. Providing victims with a voice and access to justice: The ICC provides victims of crimes of
international concern with a forum to have their voices heard and to seek justice for the harm
they have suffered. This is an important step in the process of healing and reconciliation.
4. Contributing to the development of international criminal law: The ICC's decisions and
precedents are helping to shape the development of international criminal law. This is important
for ensuring that there is a consistent and effective framework for prosecuting the most serious
crimes of international concern.
5. Promoting peace and reconciliation: The ICC's work can help to promote peace and
reconciliation by bringing perpetrators of crimes to justice and by providing victims with a sense
of justice. This can help to break cycles of violence and to build a more just and peaceful world.
6. Complementing National Legal Systems: The ICC operates on the principle of
complementarity, meaning it intervenes only when national courts are unable or unwilling to
prosecute. This encourages states to strengthen their legal systems to address serious
international crimes, promoting the rule of law at a national level.
7. Deterring Future Crimes: The existence of the ICC and its ongoing work serve as a deterrent
to potential perpetrators. The knowledge that international crimes will be prosecuted and
punished can dissuade individuals and leaders from committing such offenses.
8. Advancing International Human Rights and Humanitarian Laws: The ICC's prosecutions
reinforce international human rights and humanitarian laws. By holding individuals accountable
for violations of these laws, the ICC helps to affirm and develop these important legal
frameworks.
9. Victim Participation and Reparations: Unlike many traditional criminal courts, the ICC
allows victims to play a role in the proceedings and seek reparations. This focus on victims'
rights and needs helps to address the harm they have suffered and aids in their healing process.

Discuss the jurisdiction of the International Criminal Court (ICC):

see above
Can You raise the Principle of Ne Bis in Dem on Simone Gbagbo?
See above
The International Criminal Court (ICC) is composed of four
primary organs each with its distinct function, as established by the
Rome Statute: see above
Some cases that are pending before the ICC

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Omar Hassan Ahmad Al Bashir (Al Bashir): Al Bashir remains at large with two arrest warrants
issued against him, one in March 2009 and another in July 2010. The case is still in the Pre-Trial stage,
pending his arrest and transfer to the ICC.

Saif Al-Islam Gaddafi: Gaddafi, charged with crimes against humanity, has been at large since the
issuance of an arrest warrant on 27 June 2011. The case remains in the Pre-Trial stage pending his
transfer to the Court.
Joseph Kony et al.: In this case, warrants of arrest were issued under seal on 8 July 2005 and unsealed
on 13 October 2005. The suspects, including Joseph Kony, are still at large. The case remains in the Pre-
Trial stage until their arrest and transfer to the ICC.
Situation in the Republic of Côte d'Ivoire: Former Ivorian President Laurent Gbagbo and his wife,
Simone Gbagbo, are on trial for crimes against humanity committed in Côte d'Ivoire since 2010.

Distinguish the ICC from ICJ

The International Criminal Court (ICC) and the International Court of Justice (ICJ) are both
prominent institutions in the field of international law, but they have distinct roles, structures, and
jurisdictions. Here’s a comparison of their key differences:
1. Purpose and Jurisdiction
 ICC (International Criminal Court)
o Purpose: The ICC prosecutes individuals for serious international crimes, including
genocide, war crimes, crimes against humanity, and the crime of aggression.
o Jurisdiction: The ICC has jurisdiction over individuals, not states. Its role is to hold
individuals criminally responsible for these crimes and operates under the principle of
complementarity, meaning it intervenes only when national jurisdictions are unable or
unwilling to prosecute.
 ICJ (International Court of Justice)
o Purpose: The ICJ settles legal disputes between states and provides advisory
opinions on international legal questions referred to it by the United Nations (UN)
and other specialized agencies.
o Jurisdiction: The ICJ has jurisdiction over states, not individuals. It cannot prosecute
individuals or entities and does not handle criminal matters. Instead, it resolves disputes
between states and offers advisory opinions on legal issues.

2. Relationship with the United Nations

 ICC

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 o The ICC is an independent international organization and is not a part of the UN
system. However, it maintains a cooperative relationship with the UN and can receive
referrals from the UN Security Council.
 ICJ:
o The ICJ is the principal judicial organ of the UN, established by the UN Charter. All
UN member states are automatically parties to the ICJ Statute, and the ICJ's role is closely
tied to the UN's mandate for maintaining international peace and security.

3. Legal Authority and Founding Treaties

 ICC
o The ICC was established by the Rome Statute of 1998, which outlines its functions,
jurisdiction, and structure. Only those countries that are parties to the Rome Statute or
those referred by the UN Security Council fall under its jurisdiction.
 ICJ
o The ICJ was created by the UN Charter in 1945 and operates under its own Statute,
which is an integral part of the UN Charter. All UN member states are subject to the ICJ’s
jurisdiction under certain conditions.
4. Type of Cases
 ICC
o The ICC deals with criminal cases against individuals accused of the most serious
international crimes. Its focus is on accountability and justice for victims of these
crimes.
 ICJ
o The ICJ handles civil cases involving disputes between states on issues such as
territorial boundaries, diplomatic relations, treaty interpretations, and other state-level
legal matters.
5. Enforcement of Decisions
 ICC
o The ICC relies on member states to enforce its arrest warrants, transfer suspects, and
implement its sentences. It has no police force of its own and depends on international
cooperation to carry out its mandates.
 ICJ:
o The ICJ’s decisions are binding on states that have consented to its jurisdiction. If a state
fails to comply with an ICJ ruling, the matter can be taken to the UN Security Council,
which can decide on further action.

6. Composition and Structure

 ICC

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 o The ICC consists of 18 judges elected by the Assembly of States Parties to the Rome
Statute. The judges serve nine-year terms and are specialized in criminal law and
international humanitarian law.
 ICJ
o The ICJ has 15 judges elected by the UN General Assembly and the UN Security
Council for nine-year terms. Judges may be re-elected and are experts in general
international law.
In essence, the ICC is focused on criminal accountability for individuals, whereas the ICJ is
concerned with resolving disputes and providing legal guidance between states.

Distinguish the establishment of ad hoc international criminal tribunals

from the establishment of a permanent International Criminal Court
(ICC).
Ad hoc international criminal tribunals and the International Criminal Court (ICC) represent two distinct
approaches to prosecuting serious international crimes. Here’s a comparison between the two in terms
of establishment, jurisdiction, purpose, and structure:
1. Establishment and Legal Foundation
o Ad Hoc Tribunals: Ad hoc tribunals, like the International Criminal Tribunal for the
former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR),
were created by specific United Nations Security Council (UNSC) resolutions under
Chapter VII of the UN Charter. These tribunals were established in response to specific
conflicts and were given a temporary mandate to address crimes arising from those
conflicts.
o ICC: The ICC was established as a permanent institution through the Rome Statute, an
international treaty adopted in 1998 and entering into force in 2002. The ICC is
independent of the UN and is based on international consensus rather than a specific
UNSC mandate. Its creation reflects a long-term commitment to address international
crimes beyond any single conflict.
2. Purpose and Mandate
o Ad Hoc Tribunals: These tribunals were created to address specific conflicts and
situations. Their purpose was to bring justice to perpetrators of crimes committed during
particular conflicts, aiming to ensure accountability, promote peace, and deter future
atrocities in those regions. Their mandates were limited to specific time frames, locations,
and types of crimes.
o ICC: The ICC’s mandate is broader and ongoing, aimed at prosecuting individuals for
genocide, war crimes, crimes against humanity, and the crime of aggression wherever
they occur, provided they fall within the ICC’s jurisdiction. The ICC serves as a court of
last resort, intervening only when national courts are unwilling or unable to prosecute.

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 3. Jurisdiction
o Ad Hoc Tribunals: Jurisdiction was limited to specific regions and time periods related
to particular conflicts (e.g., the ICTY had jurisdiction over crimes committed in the
former Yugoslavia after 1991, and the ICTR focused on crimes in Rwanda during the
1994 genocide). These tribunals could not prosecute crimes outside these predefined
boundaries.
o ICC: The ICC has a broader, ongoing jurisdiction that applies to member states of the
Rome Statute and individuals accused of crimes within the court’s mandate, regardless
of geographic boundaries. Additionally, the ICC can gain jurisdiction through UNSC
referrals, allowing it to prosecute crimes in non-member states when international
security is threatened.
4. Structure and Duration
o Ad Hoc Tribunals: These tribunals were temporary institutions set up with specific end
goals and anticipated closure dates. After completing their mandates, they were
dissolved, with residual mechanisms (such as the IRMCT) created to handle remaining
cases, appeals, and sentences.
o ICC: The ICC is a permanent institution designed to function indefinitely. It operates
through four main organs: the Presidency, the Judicial Divisions, the Office of the
Prosecutor, and the Registry. Its structure is built to handle a continuous caseload as
international crimes arise, providing a lasting framework for global criminal justice.
5. Legal Influence and Precedent
o Ad Hoc Tribunals: The ICTY and ICTR contributed significantly to the development
of international criminal law, setting precedents on issues like genocide, crimes against
humanity, and war crimes. These tribunals played a foundational role in shaping modern
international criminal justice, which informed the establishment of the ICC.
o ICC: As a permanent court, the ICC builds upon the legal foundations of the ad hoc
tribunals and continues to develop international criminal law, offering a continuous
stream of precedents that influence both international and national courts.
6. Funding and Resources
o Ad Hoc Tribunals: The ad hoc tribunals were funded through contributions from UN
member states and administered as UN entities. Their resources were often allocated
based on specific UN budget cycles.
o ICC: The ICC is funded by its member states, with additional voluntary contributions
from governments, international organizations, and individuals. It operates
independently of the UN, though it collaborates with the organization.

Guiding questions for the Module

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a. Fundamental Concepts and Definitions
1. What is international criminal law, and how does it differ from other branches of international
law?
2. Explain the principle of individual criminal responsibility in international criminal law.
3. Discuss the differences between substantive and procedural international criminal law. Provide
examples of each.
4. Define international crimes and list the main types of crimes within the ICC's jurisdiction.
5. Explain the significance of the Nuremberg Principles and how they have influenced modern
international criminal law.
6. Discuss the types of Universal Jurisdiction
7. Discuss the sources and objectives of international criminal law.

b. The Role and Functioning of the ICC

7. What is the ICC, and what types of crimes fall under its jurisdiction?
8. Explain the principle of complementarity and its importance in the functioning of the ICC.
9. What are the primary organs of the ICC, and what role does each organ play in the court’s
operations?
10. Describe the different stages of an ICC case from investigation to enforcement of sentences.
11. Discuss the types of sentences the ICC can impose and how they differ from national courts.
12. Explain the concept of deferral of investigation or prosecution under Article 16 of the Rome
Statute. Under what conditions can the UN Security Council defer an ICC investigation or
prosecution, and what are the implications?
13. What are the different trigger mechanisms by which the ICC can gain jurisdiction over a case?
Describe the process and significance of proprio motu investigations by the ICC Prosecutor.
14. Discuss the impact of the ICC’s Trust Fund for Victims and how it supports the court's mission.
15. Explain the criteria for admissibility of a case before the ICC.
16. Identify and discuss hybrid international criminal tribunals and their significance.
17. Discuss the mandate of the International Residual Mechanism for Criminal Tribunals (IRMCT).
c. Jurisdiction and Legal Principles
18. What are the fundamental principles of international criminal law?
19. Differentiate between the ICC and the International Court of Justice (ICJ) in terms of
jurisdiction, purpose, and cases handled.
20. Define universal jurisdiction and explain how it applies to international criminal law.

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 21. Explain the principle of ne bis in idem (double jeopardy) and how it might affect cases before
the ICC. Provide an example.
22. Discuss the jurisdiction of the ICC.
23. Describe the conditions under which the ICC can assert jurisdiction over a case.
24. Discuss the principles of territoriality and nationality in relation to the ICC’s jurisdiction.
25. Outline the ICC proceedings from preliminary examination to appeals.
26. Describe the main organs of the ICC and their specific functions.
27. How are ICC sentences enforced, and what challenges arise in their enforcement?

d. Key Concepts and Theories

28. Define transitional justice and describe its primary goals.
29. List and explain the different types of measures used in transitional justice.
30. Discuss the peace vs. justice dilemma in the context of international criminal justice.
31. What are the challenges in balancing retributive justice with restorative justice in transitional
justice?
32. Explain command responsibility in international criminal law and the criteria for holding
superiors accountable.

e. Case Studies and Real-World Applications

33. Provide an analysis of a landmark case tried by the ICC and explain its significance for
international criminal law.
34. Describe the main criticisms of the ICC’s focus on cases from African nations. Do you think
these criticisms are justified? Why or why not?
35. Discuss a case where the ICC applied the principle of complementarity and explain how the case
was handled.
36. Explain how the ICC addresses the rights of victims and witnesses. What measures are in place
to ensure their protection?
37. Discuss a non-African case before the ICC and its implications for the court’s global jurisdiction.
38. Give an example of a case in which the ICC had to exercise its jurisdiction due to the inability
or unwillingness of a national court to prosecute.

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f. Challenges, Criticisms, and Future Directions
39. What are some of the primary challenges faced by the ICC in enforcing its judgments and arrest
warrants?
40. Discuss the role of the UN Security Council in ICC proceedings. How does this relationship
benefit or hinder the ICC?
41. How do political considerations and state cooperation impact the effectiveness of the ICC?
42. Identify and discuss at least three criticisms of the ICC.
43. What future reforms could strengthen the ICC and improve its effectiveness?
44. How does the ICC approach situations where cooperation from member states is limited or
withheld?

g. Impact and Contributions to International Criminal Law

45. How has the ICC contributed to the development of international criminal law?
46. Discuss the impact of the ICC on national legal systems and its role in harmonizing international
criminal law standards.
47. Explain how the ICC has helped to raise awareness and promote accountability for serious
international crimes.
48. What role does the ICC play in advancing human rights and humanitarian law on a global scale?
49. Discuss the ICC's influence on global norms related to impunity and accountability.

h. Miscellaneous Questions
50. Analyze the principle of aut dedere aut judicare (extradite or prosecute) and its relevance to
international criminal law.
51. What role does customary international law play in the prosecution of international crimes?
Provide examples.
52. Explain the challenges the ICC faces in securing the cooperation of non-State Parties and discuss
potential solutions.
53. How does the ICC handle cases where state leaders are implicated in international crimes?
Provide examples.
54. What are the limitations of using judicial measures alone to address mass human rights abuses,
and how do non-judicial measures complement these efforts?
55. Explain the legal and procedural steps the ICC takes to protect the rights of the accused.
56. Discuss the impact of the ICC’s sentencing and reparation policies on international perceptions
of justice.

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