International Criminal Law Mock Exam 2013

Jo Stigen

Oslo, 29 April 2013

Please answer all four questions below:

In 2000-01, Petunian governmental forces committed widespread and systematic crimes amounting to crimes against humanity against an ethnic minority group, the Minorians. Petunia’s Minister of Foreign Affairs, Mr. Petru, was widely believed to have personally ordered some of the gravest crimes, including a massacre in August 2001, were approximately 1,200 innocent Minorians were killed.

In October 2003, Mr. Petru went on a holiday to Spain, to ride his bicycle in the Pyrenees. The minister said he was confident that Spanish authorities would not arrest him, as he was immune to such arrest. To his surprise, however, Mr. Petru was arrested by Spanish police once he put his foot on Spanish soil.

Two months later, in December 2003, a Spanish Juge d’instruction decided that Mr. Petru be prosecuted. Mr. Petru, who was still incumbent Minister of Foreign Affairs, appealed the decision. He argued that Spanish courts lacked jurisdiction and that he was immune under international law.

The Spanish Chief Prosecutor, on his part, argued that the issues of jurisdiction and immunity could not be invoked by the minister himself, only by his home state. In any case, Petunian authorities had remained silent on the matter, and this should be seen as a tacit waiver of both jurisdiction and immunity, preventing the minister from raising the issues.

1. Can the Minister of Foreign Affairs raise the issues of jurisdiction and immunity before Spanish courts?

• This is a question of who can invoke a violation of state soverignty in an individual criminal trial

• Who other than the criminal court ex officio and the state concerned (before the ICJ)?

• Does the individual have locus standi?

• (National court vs. human rights courts)

• Eichmann (Israel, 1961):

“The right to plead violation of the sovereignty of a State is the exclusive right of that State. Only a sovereign State may raise the plea or waive it, and the accused has no right to take over the rights of that State.”

• Noriega (USA, 1990)

“As a general principle of international law, individuals have no standing to challenge violations of international treaties in the absence of a protest by the sovereign involved.”

• Tadic (ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 1995):

- Tadic has an individual right to invoke lack of jurisdiction:

“Authoritative as [Eichmann and Noriega] may be, those pronouncements do not carry, in the field of international law, the weight which they may bring to bear upon national judiciaries. Dating back to a period when sovereignty stood as a sacrosanct and unassailable attribute of statehood, this concept recently has suffered progressive erosion at the hands of the more liberal forces at work in the democratic societies, particularly in the field of human rights.”

“Whatever the situation in domestic litigation, the traditional doctrine upheld and acted upon by the Trial Chamber is not reconcilable, in this International Tribunal, with the view that an accused, being entitled to a full defence, cannot be deprived of a plea so intimately connected with, and grounded in, international law as a defence based on violation of State sovereignty.”

“To bar an accused from raising such a plea is tantamount to deciding that, in this day and age, an international court could not, in a criminal matter where the liberty of an accused is at stake, examine a plea raising the issue of violation of State sovereignty. Such a startling conclusion would imply a contradiction in terms which this Chamber feels it is its duty to refute and lay to rest.”

• Have Petunian authorities, by remaining silent on the matter, tacitly waived jurisdiction and immunity?

• Waiver would “bind” Mr. Petru

• A waiver must be sufficiently clear and express

• Silence is clearly not sufficient; Petunia can at any point raise the issues before the ICJ (which they later do)

Conclusion:

Mr. Petru can raise the issues of jurisdiction and immunity before Spanish courts.

After a Spanish court in May 2004 had found that Spanish courts had jurisdiction and that the minister was not immune, the Petunian government, which initially had not wanted to intervene in the matter, decided to bring the matter before the International Court of Justice.

Here Petunia argued that because the alleged crimes had been committed outside Spain and neither the minister nor any of the victims were Spanish citizens, Spanish courts lacked jurisdiction under international law. The fact that the Spanish penal code provided for jurisdiction was irrelevant. Spain, on its part, argued that Spanish courts had jurisdiction due to the gravity of the crimes.

2. Do Spanish courts have jurisdiction over the alleged crimes?

UNIVERSALITY PRINCIPLE

- no link to forum state

- only the crime’s gravity

- huge potential

- controversial: idealists vs. realists?

• Significance of the fact that Spanish law provides for universal jurisdiction

• Necessary, but not sufficient

• The conflict between Petunia and Spain is regulated by international law

CONVENTIONS

• No general convention on (universal) jurisdiction

• Geneva Conventions and Torture Convention provide for treaty based universal jurisdiction

• No convention on Crimes against Humanity

CUSTOMARY INTERNATIONAL LAW

• National legislation

Quite a few states; including e.g. Aserbajdsjan, Australia, Belgium, Canada, Netherlands, Norway, United Kingdom and Germany [and more]

• All in all: not so many states yet

National case law

• legislation does not necessarily reflect the true opinio juris of states

• it is question of a right, not a duty; so too much should not be required

• national cases after WW2; mostly passive nationality and protection

• Some states, e.g. Higaniro (Belgium, 2001), Ndombasi (Belgium, 2000), Finta (Canada, 1989), Knesevic (Netherlands, 1997), Bouterse (Netherlands, 2001), Grabez (Switzerland, 1997), Niyonteze (Switzerland, 2004) and Sawoniuk (United Kingdom, 1999)

• All in all: not so many states yet

• States will often not wish to object to the exercise of universal jurisdiction

• E.g. Congo in the Arrest Warrant case – but there was no doubt that Congo did not agree that Belgium had jurisdiction

• Other relevant arguments for the existence of an international custom

• Nuremberg Tribunal:

”done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special tribunals to administer law”.

• But there was the territorial principle + passive nationality

• ICTY and ICTR in Furundzija, Tadic, and Bagaragaza

• But they represent specific agendas…

• Princeton Principles (2001)

• Krakow Resolution (2005)

• Separate opinions before the ICJ by judges Guillamue and by Higgins, Kooijmans and Buergenthal in the Arrest Warrant case

• But other ICJ-judges’ opinions were sceptic

• Does the jus cogens status of the crimes imply universal jurisdiction?

Suggested in Eichmann: ”The crimes of genocide committed against the Jewish People and other peoples were crimes under international law. It follows, therefore, in the light of the acknowledged principles of international law, that the jurisdiction to try such crimes is universal.”

• Lord Browne-Wilkonson in Pinochet:

”The jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state […].”

• Also ICTY in Furundzija

• Yet: Jus cogens might imply erga omnes right (state v. state) but hardly a right of any state to prosecute the individual

• States seem to increasingly accept universal jurisdiction

• Important step towards more effective fight against impunity

• Widely accepted that core international crimes must be prosecuted; but the jurisdictional rules are less developed than the prohibitions

• Kirgis: “Custom on a Sliding Scale” (1987):

“[A reasonable rule] is always more likely to be found reflective of state practice … than is an unreasonable”

• A development towards customary universal

jurisdiction for i.a. crimes against humanity; but not sufficient state practice yet

Conclusion:

Spanish courts do not have jurisdiction over the alleged crimes of Mr. Petru

(The conclusion is controversial)

Petunia further argued that even if Spanish courts had jurisdiction, an incumbent Minister of Foreign Affairs enjoyed absolute immunity before national courts. Spain argued, on its part, that the crimes in question were personal acts and therefore not covered by any immunity rule.

3. Is the Minister of Foreign Affairs immune before Spanish courts?

• This question is solved by the ICJ in the Arrest Warrant case (DRC v. Belgium, Judgment 14 February 2002):

• Immunity before courts of foreign states

• Personal immunity (incumbent “prominent threesome”):

(The immunity is absolute):

”the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual against any act of authority of another State which would hinder him or her in the performance of his or her duties”.

(Exception for international crimes?)

“The Court has carefully examined State practice [...]. It has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.”

• Head of state must be recognised:

E.g. United States v. Noriega and Others:

”In order to assert Head of State immunity, a government official must be recognized as Panama’s Head of State either under the Panamanian Constitution or by the United States.”

Conclusion:

The Minister of Foreign Affairs is immune before Spanish courts.

In January 2006, a new democratic government came to power in Petunia. This government soon initiated investigations into the crimes committed by the former regime. Upon investigation, the Petunian Chief Prosecutor decided to prosecute inter alia Captain Marco. In January 2000 the Captain had, as member of a military group, participated in a campaign with the purpose to rid a certain region of Minorians. During this campaign, in which thousands of Minorians were forcibly transferred out of the region, more than 200 Minorians were killed.

All though it was clear that Captain Marco had not personally participated in any of the killings, the Chief Prosecutor argued that he could be held responsible for them because it was foreseeable that such a campaign could lead to killings.

4. Explain how a person like Captain Marco can

be brought to justice under the doctrine of joint criminal enterprise. What are the main criteria for holding someone responsible under this doctrine? Does the Petunian penal code, which has material penal provisions that are practically identical to those of the Rome Statute of the International Criminal Court, cover such responsibility?

• The doctrine considers each member of an organized group individually responsible for crimes committed by group within the common plan or purpose. For example, if three people commit a bank robbery and one fatally shoots a person in the process, the law considers all guilty of murder.

• Such concept of ‘collective liability’ where more than one person can share liability and punishment for the actions of another person is not universally accepted and is considered by some to be a form of human rights abuse, while others believe it is just.

• The concept has in particular been developed in ICL; first in the post-WW” cases (common purpose)

• Above all before the ICTY (e.g. Tadic case)

• Here, three forms of JCE has evolved

• The forms apply to different situations and have different criteria

• Three types of JCE:

(1) Responsibility for acts agreed upon when making the common plan or design. All participants shared the intent to commit the concerted crime, although only some of them may have physically perpetrated the crime.

(2) Responsibility for carrying out a task within a criminal design that is implemented in an institutional framework such as an internment or a concentration camp. Also those who discharge administrative duties indispensable for the achievement of the camp’s main goals (e.g. register the incoming inmates, provide them with food etc.) may incur criminal liability. They bear this responsibility so long as they are aware of the serious abuses being perpetrated (knowledge) and willingly take part in the functioning of the institution.

(3) Responsibility of those participants who agreed to the main goal of the common criminal design (e.g. the rid of civilians from an occupied territory) but did not share the intent that one or more members of the group entertained to also commit crimes incidental to the main concerted crime (e.g. killing civilians in the process of their expulsion). Liability only arises if the participant (who did not have the intent to kill), was nevertheless in a position to foresee its commission and willingly took the risk.

• Does the ICC statute provide for JCE?

• Article 25: Individual criminal responsibility:

(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. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime

• Cassese:

”It has been rightly noted that the Statute of the International Criminal Court, while embracing the notion of joint participation in a criminal enterprise in Article 25(3)(d), always requires intent as the necessary subjective element necessary for a finding of criminal liability. It follows that the ICC, while generally authorized to rely upon the doctrine under discussion, would be barred from applying the third category of JCE.”

“It would, however, seem that a broad interpretation of the expression ‘intentional participation’ could prove warranted. By requiring that the contribution of an individual to crimes ‘by a group of persons acting with a common purpose’ be intentional, the provision at issue may be construed as requiring that the intent be referred to the common criminal plan, and, as such, may also embrace acts performed by one of the participants outside that criminal plan, provided that another participant had a certain degree of awareness and foresight of the commission of such acts.”

“This expansive interpretation of Article 25(3)(d) would be justified by the need to punish criminal conduct that otherwise would not be regarded as culpable. In addition, it would not be contrary to the principle of personal culpability, for in any case the person at issue (i) would be guilty of intentionally participating in a criminal purpose or plan, (ii) his mens rea concerning the additional, not previously concerted crime, would have to be proved by the Prosecution and (iii) his lesser culpability would have to be taken into account at the sentencing stage.”

• Several commentators argue that the ICC cannot apply JCE (3)

• The question is not settled; for the ICC judges to decide

• Remember: Cassese was considered as rather progressive…

Conclusion:

The Petunian penal code covers JCE (1) and (2), but not (3).

(The conclusion is controversial.)