TRAINING SESSION IN INTERNATIONAL HUMAN RIGHTS LAW Tbilisi (Georgia), 16-20 October 2017 Introduction to International Criminal Law 19 October 2017 Dr Antoine P. Kaboré

PART I: FUNDAMENTAL ELEMENTS OF INTERNATIONAL CRIMINAL LAW

A) What is ICL? A body of international rules designed both to proscribe certain categories of conduct and to make those persons who engage in such conduct criminally liable: war crimes, crimes against humanity, genocide, torture, aggression, international terrorism) Substantive ICL: set of rules indicating what acts are prohibited: definition of crimes (objective and subjective elements +forms of criminal responsibility) Procedural ICL: set of rules regulating international proceedings before international criminal tribunals: govern actions by prosecuting authorities and the various stages of international criminal trials. ICL as branch of public international law (PIL)

B) ICL as a new branch of international law For a long time before the 2WW, only war crimes were prosecuted before domestic tribunals Response to the atrocities of the 2WW: creation of Nuremberg and Tokyo tribunals with new crimes: crimes against humanity, crimes against peace (wars of aggression) Genocide Convention in 1948 Creation of ad hoc and hybrid tribunals: ICTY, ICTR, SCSL, ECCC, STL Creation of permanent international criminal tribunal: ICC

C) Relationship between ICL and other branches With Public international law With International Humanitarian Law With International Human Rights Law

C) Sources of ICL Statutes and Rules of International Criminal Courts Applicable Treaties Customary International Law General Principles of Criminal Law recognized in Domestic Legal Systems The Role of Judicial Decisions and Opinions of Scholars

II. The Fundamental Principle of Legality in ICL The rational of the Principle of Legality in Criminal Law The Principle of Legality before the Nuremberg Tribunal The Principle of Legality in Human Rights Instruments The Corollaries of the Principle of Legality Strict interpretation of criminal law Prohibition of analogy and expansive interpretation of criminal law The Principle of non retroactivity

PART II: SUBSTANTIVE ICL: DEFINITION OF INTERNATIONAL CRIMES

Genocide Crimes against Humanity War crimes

A) Genocide The Notion of Genocide The Objective Elements of Genocide The Subjective Elements of Genocide The “Protected Groups”

1) The Notion of Genocide Convention on the Prevention and Punishment of the Crime of Genocide, adopted in 1948. “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group”. Same definition in: ICTY Statute, Art. 4(2); ICTR, Art. 2(2); ICC, Art.6

2) The Objective Elements of Genocide The objective elements of Genocide are those included in the definition: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

3) The Subjective Elements of Genocide A general mental element required for each specific act of genocide. Every specific act must be committed intentionally. The specific mental element necessary to consider those acts as amounting to genocide. In genocide, the victim is not targeted because of his quality of person, but because he belongs to a “targeted group” Therefore, in addition to the general intent for each specific act, specific mental intent must added, which is the “intent to destroy, in whole or in part” one of the enumerated groups “as such”.

4) The “Protected” or “Targeted Groups” Exhaustive enumeration of the “Protected Groups” in the Genocide Convention Exclusion of other groups such as “political groups” or “cultural groups”. Need to have a certain degree of stability of the “Protected Groups” Two major problems: How to define the notion of group? How to identify the “Protected Group”?

B) Crimes against Humanity Different Definitions in the Statutes of ICT Objective Elements 3) The subjective Elements

1) Different Definitions Statute of IMT of Nuremberg, Art. 6(c) The following acts committed against civilian population in the context of another crime covered by the jurisdiction of the tribunal: Murder Extermination Enslavement Deportation Persecution on political, racial and religious grounds

Statute of the ICTY, Art.5 The following acts committed in the context of armed conflict and directed against civilian population: Murder Extermination enslavement Deportation Imprisonment Torture Rape Persecutions on political, racial and religious grounds Other inhuman acts

Statute of the ICTR, Art. 3 The following acts committed in the context of a widespread et systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: Murder Extermination enslavement Deportation Imprisonment Torture Rape Persecutions on political, racial and religious grounds Other inhuman acts

Statute of the ICC, Art. 7(1) The following acts committed in the context of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law …

2) Contextual/Objective Elements Contextual Elements Attack Widespread or Systematic Directed Against Civilian Population Underlying Acts Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment …

2) Subjective Elements The mental element (intention) for each underlying crime, and The awareness of the existence of a widespread or systematic attack

3) War Crimes The Notion of War Crimes and the Criminalization of the Serious Violations of Rules of IHL The objective Elements The Subjective Elements The Nexus with the Armed Conflict

War crime as serious violation customary or treaty rule of IHL 1) Notion of War Crimes and the Criminalization of the Serious Violations of Rules of IHL War crime as serious violation customary or treaty rule of IHL Three condition according to ICTY, Tadic, 1995, §94: War crime must consist of a serious violation of of IHL rule protecting important values; The rule violated must either belongs to customary of treaty IHL The violation must be criminalized by treaty or customary rule.

2) Objective Elements of War Crimes War crimes committed in IAC War crimes committed in NIAC Both categories of war crimes include the following : Crimes committed against persons not taking part, or no longer taking part, in hostilities; Crimes against enemy combatants or civilians, committed by resorting prohibited methods of warfare; Crimes against enemy combatant and civilians, involving the use of prohibited means of warfare; Crimes against specially protected persons or objects; Crimes consisting of improperly using protected signs and emblems; Conscripting or enlisting children under the age of 15 years or using them to participate directly in the hostilities

3) Subjective Elements and Nexus with the conflict Every war crime must be committed wilfully, which means with intention. Nexus with the conflict.

PART III MODES OF CRIMINAL LIABILITY

A) Perpetration Joint Criminal Enterprise: JCE Legal basis No explicit provision in statutes of ICT… …but developed by the ICTY ( Tadic, 1999) General definition: criminal liability of participants in a common criminal plan. Three constitutive elements: Involvement of a plurality of persons in the commission of the crime; Existence of a common plan, design or purpose which amount to, or involve, the commission a crime; and The participation of the accused in the JCE in the form of a significant contribution to the crime.

Three forms of JCE JCE I or simple form of JCE: All co-defendants, acting pursuant to a common design, possess the same criminal intention (Tadic, 1999, § 196). JCE II or variation of JCE I of systemic form of JCE: Criminal liability for participation in a criminal design that is implemented in the framework of an institution such as an internment, detention or concentration camp (Tadic, 1999, § 202). JCE III of extended form of JCE: The extended form arises when one or more members of JCE I or II, commit an additional act which was not included in the original common criminal plan (Tadic, 1999, § 204)

2) Co-Perpetration or Co-Action based on Joint Control Legal Basis: ICC Statute, Art. 25(3)(a) Constitutive elements: Co-perpetrators share control over le commission of the crime Each co-perpetrator depends on the others to complete the crime All co-perpetrators are principal perpetrators (not accessories) of the crime Each co-perpetrators know that their joint action may result in the realization of the crime in the ordinary course of the events Each o-perpetrators know that his is providing an essential contribution in the commission of the crime.

3) Indirect Perpetration Legal Basis: ICC Statute, Art. 25(3)(a) Constitutive elements: The accused (indirect perpetrator) uses another person (direct perpetrator) to physically commit the crime The “perpetrator” behind the “perpetrator” Example: The accused (indirect perpetrator) has an effective control over members of organization: There is a hierarchical link between the accused (leader) and the members of the organization; and The members of the organization automatically comply with the will of the accused a

B) Omission Liability and Superior Responsibility Culpable Omission Legal basis: No specific legal basis in the statutes of ICT, but: ICTY, Tadic, 1999, § 188; ICC, Lubanga, Confirmation of charges, §§ 152, 351-2; ICTR, Ntagerura and others, § 659. Constitutive Elements: The accused has a duty to act provided by a criminal rule; The accused has the ability to act; The accused, intentionally, fails to act; and The failure to act results in the commission of the crime

2) Superior Responsibility Legal Basis: ICTY Statute, Art. 7(3); ICTR Statute, Art. 6(3); ICC Statute, Art. 28. Constitutive elements Existence of relationship of subordination between the accused and those committing the crime The accused has effective control over the subordinates The accused knew or should have known the involvement of the subordinates in the commission of the crime The accused failed to prevent the commission of the crime or to punish the subordinates

C) Other Modes of Criminal Liability Aiding and Abetting or Complicity Legal Basis: ICC Statute, Art. 25(3)(c), See also ICTY, Blaskic, AC, §45 ss; ICTR, Mpambara, TC, §22) Constitutive Elements: The aider and abetter gives assistance to the perpetrator; The assistance must have a substantial effect on the perpetration of the crime The aider and abetter know that his action contributes to the commission of the crime The aider and abetter does not need to be present at the crime scene The aider and abetter does not need to share the mental element of the crime even if he knows that his action contributes to the commission of the crime

2) Ordering Legal Basis: ICC Statute, Art. 25(3)(b), see also ICTY, Kodric and Cerkez, AC, §28; ICTR, Semanza, AC, §363. Constitutive Elements: A person who is in a position of authority gives instructions to a perpetrator to commit a crime; The order must have a direct and substantial effect on the commission of the crime The person who gives the order know that the execution of his order will result in the commission of a crime It is not necessary to prove a hierarchical relationship. It suffices to prove the existence of a factual authority of the person who gives the order over the perpetrator.

3) Instigating Legal Basis: ICTY Statute, Art. 7(1); ICTR Statute, Art. 6(1); ICC Statute, Art. 25(3)(b). Constitutive Elements: The instigator prompt someone to commit a crime The prompting must make a substantial contribution to the conduct of the perpetrator The investigator accepts the risk that his prompting my result in a commission of a crime

PART IV: THE ESTABLISHMENT OF INTERNATIONAL TRIBUNALS: The Case of the ICC