Chapter 15 Guidance on Answering the Questions in the Book

Question 1:
Conceptually, what is the difference between an ‘international’ and a ‘national’ criminal court?

Guidance:
The question asks the students to consider the conceptual differences between international and national criminal courts discussed in the book. The book does not apply the terms ‘hybrid’ or ‘internationalized’ criminal courts but instead classifies a criminal court as either international or national depending on the legal nature of the document that establishes or founds the court. Thus, a court is termed an “international” court if it derives its existence and legal authority from an instrument of international law. However, if it derives its existence from a national law instrument, it is referred to as a national court.

Question 2:
Why are some international crimes referred to as ‘core’ crimes?

Guidance:
The question seeks to engage the students with the different categories of international crimes. The book notes that there is no authoritative definition of an international crime in international law. However, certain crimes are referred to as “core” international crimes because they are directly criminalized under international law. The book notes that these crimes are the following four crimes: genocide, crimes against humanity, certain war crimes, and aggression. It may be noted that the book follows a more expansive definition of an international crime that also include offenses that states are obliged by international law to criminalize and prosecute domestically.

Question 3:
What does the principle of ‘complementarity’ in the Rome Statute mean?

Guidance:
The question concerns the important issue of complementarity in the International Criminal Court. Complementarity essentially means that a case is inadmissible before the Court if it is being investigated or prosecuted by a state that has jurisdiction over it ‘unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’. As the book notes, the principle means that national criminal jurisdiction takes precedence over the jurisdiction of the ICC. It also notes that the ICC on that point differs from both the ICTY and the ICTR that both had primacy over national courts.

Question 4:
The United States is not a party to the Rome Statute. What would it require for US servicemen to be prosecuted before the ICC?

Guidance:
The question asks the students to apply the principles of the ICC’s jurisdiction to the United States and its servicemen. At the outset it can be noted that United States is not a party to the Rome Statute and that it has generally been highly critical of the Court. The question is, then, when a non-party state can be brought before the Court. In practice, this may occur in the following circumstances. First, the Court may have jurisdiction over a member of the Armed Services of the United States if he or she has committed a crime covered by the ICC’s jurisdiction on the territory of a state party. Second, the ICC would have jurisdiction if the United States were to accept the jurisdiction of the Court in a specific case. Third, a member of the US Services could be brought before the Court if a case is referred by the UN Security Council to the ICC Prosecutor pursuant to the powers of the Council under Chapter VII of the UN Charter. In practice, of course, this is highly unlikely because of the veto power of the United States.

Question 5:
What are the differences between the three forms of Joint Criminal Enterprise (JCE)? Why is the third form deemed to be controversial?

Guidance:
The question asks the students to discuss the concept of Joint Criminal Enterprise (JCE). As the book notes, JCE is a form of criminal liability in international criminal law that applies in cases where there is more than one person involved in the commission of the crime. The book also refers to the three forms of JCE that have been created. Under JCE I, all the accused individuals act under a common design and possess the same criminal intention. JCE II is applied to offenses committed by members of a military or administrative unit who have acted pursuant to a concerted plan. JCE III is when an individual is found to be criminally liable for participation in a ‘common design to pursue one course of conduct where one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose’. The book notes that JCE III is controversial because it means that individuals can be prosecuted for an offence that was not directly intended, but merely a foreseeable result of a common design.

Question 6:
The power of the Security Council to refer a situation to the ICC Prosecutor includes a situation that involves nationals of a state that is not a party to the Rome Statute. Why does a Council referral not violate the consensual nature of the jurisdiction of the ICC?

Guidance:
The question concerns the basis for the Security Council’s authority to refer a situation to the ICC Prosecutor that involves nationals of a non-party to the Statute. The book notes that the basis for the jurisdiction of the ICC is state consent and that consent may be given explicitly or implicitly. The reason why a referral by the Security Council involving nationals of a state that is not a party to the ICC Statute does not violate the consensual principle is that Art. 25 of the Charter stipulates that the members of the UN accept the decisions of the Security Council and that all members of the UN have therefore given its implied consent to accept the decisions of the Security Council.