STAPPENPLAN VRAAGSTUKKEN
JURISDICTION
JURISDICTION TEMPORIS
Art 11: crimes committed after the entry into force of the Rome Statute
Art 12(3): state can make declaration that crimes before ratification can be covered (but never before
general entry into force). Can also accept jurisdiction with respect to that crime in question
Art 127: the withdrawal shall take effect one year after the date of receipt of the notification
JURISDICTION LOCI
Art 12(2)(a): crimes committed on the territory of a state party
or
JURISDICTION PERSONAE
Art 12(2)(b): persons who are nationals of a state party to the RS
JURISDICTION MATERIAE
Art 5: possibility that / does it appears that an international crime has been committed
ADIMISSIBILITY
1) TRIGGER MECHANISMS (art 13 RS)
a. State party referrals (art 13(a) jo. 14 RS): States which are parties to the statute mat refer
situations to the Court
b. Security Counsil referrals (Art 13(b) RS): referral by using its powers to maintain national peace and
security
c. Initiation by prosecutor / proprio motu (art 13(c) jo. 15 RS): needs authorization of the PTC
All three triggers lead to an preliminary examination power of prosecutor is limited
2) PRELIMINARY EXAMINATION STAGE (art 53 RS)
a. Look at seriousness of information received
b. Jurisdiction: material, territorial, personal and temporal
c. Admissibility: complementarity and gravity
d. Interest of justice: are there grounds not to proceed
B: JURISDICTION
Temporis (art 11) – crimes committed after the entry into force of the Rome Statute
Personae (art 12.2b) – persons who are nationals of a state party to the Rome Statute (= active nationality
jurisdiction)
Loci (art 12.2a) – crimes committed in the territory of a state party (= territorial jurisdiction)
Materiae (art 5) – genocide, crimes against humanity, war crimes and crimes of aggression
C: ADMISSIBILITY – COMPLEMENTARITY
1) Are national authorities investigating the same case as the ICC? (art 17(1)(a)RS)
yes proceed to assessment of the genuineness of the proceedings (state’s willingness and
ability)
no Case is admissible before the ICC
2) Have national authorities investigated the same case as the ICC (art 17 (1)(b) RS)
Kenya Situation:
for a national proceeding to concern the same case, the national investigations must cover
the same individuals and substantially the same conduct as alleged in the proceedings
before the Court.
The mere preparation to initiate such investigations to do so in the future for suspects other
than the specific individuals before the ICC, would be insufficient
In the pre-trial stage, there must be a potential same case. In the trial stage, there must be
a concrete same case
Libya Situation:
The same case test requires that the case that the State is investigating sufficiently mirrors
the one the Prosecutor is investigating
yes have the national authorities decided not to prosecute, as that term should be
understood in this context?
o Yes Proceed to assessment of the genuineness of the proceedings (state’s
willingness and ability)
o No See scenario 3
No ICC case is admissible
3) Only basis on which case can still be admissible is when there has been a national prosecution on the
same issue, but with the intention to shield the accused or if it cannot be established that the case was
conducted impartially/independently with the intent to bring the accused to justice.
Kenya situation: the term being investigated requires that a State actually be taking
concrete steps, and that general assurances of an intent to start investigating are not enough
, Libya: in general, complementarity is concerned with proceedings which will lead to the
suspect evading justice. However, in extreme cases, where due process violations are so
egregious that the proceedings cannot be regarded as providing any genuine justice, then it
could be said that the accused is not in fact being brought to justice.
ADMISSIBILITY – GRAVITY
A case must be of sufficient gravity to justify further action by the Court
Flotilla case:
Involves a generic assessment of whether the groups of persons capture those who may
bear the greatest responsibility for the alleged crimes committed and
Gravity must be assessed from both a quantative and qualitative viewpoint and factors
such as scale (number of victims and crimes), nature of crimes, manner of their
commissions (systematic, cruelty, abuse of power etc) and their impact
Prosecutor decides discretion of prosecutor
D: INTERESTS OF JUSTICE
The final factor that must be considered in situation or case selection is whether there are nonetheless
substantial reasons to conclude that an investigation or prosecution would not be in the interest of justice:
age or infirmity of accused, whether the persons rights have been seriously infringed by a State, whether
the person has already been prosecuted for other related crimes and the interests of victims
Afghanistan Situation:
Negative criterion: invoked only if they are of view that an investigation is not in the
interest of justice
Relevant factors: time elapsed between alleged crimes and request, scarce cooperation and
examination is based on information rather than evidence, likelihood that both relevant
evidence and potential relevant suspects might still be available within reach of the
prosecution’s investigative efforts.
Interest of justice is not part of PTC decision under art 15(4)
CRIME OF GENOCIDE
1) ACTUS REUS
a. Act in the article e.g. killing
2) PROTECTED GROUP
a. Victims are part of a protected group national, ethnical, racial or religious (list is exhaustive)
b. In whole or in part substantial part = must be significant enough to have an impact on the group
as a whole. Can also be in a particular region (if the intent is to destroy them in that specific area)
3) MENS REA – MENTAL GROUP
a. Intent: general intent for underlying act (art 30) & special intent for genocide (Al Bashir)
i. General intent (art 30): knowledge-based meant to engage in the conduct and be aware
of the consequences of the conduct. Could also be a consequence of your non-action
1. Meant to engage in conduct
2. Aware of context of consequences of conduct
3. Aware of genocidal policy
ii. Special intent: to destroy In whole or in part a protected group as such
1. Purpose-based approach: collective intent AND individual intent
a. Collective intent: manifested in overall genocidal plan or campaign
b. Individual intent: knowledge of the plan know that your actions are
supporting that
iii. Destruction of buildings is not itself a genocidal act, but can help prove intent
b. To destroy: the physical (mass killing) or biological (destruction of reproductive capacity)
destruction of a group.
i. Transfer of members of a group that results in splitting up the group is genocide, if done
with the intent to physically destroy the group
c. In whole or in part (Al Bashir)
i. Substantive: must be significant enough to have an impact on the group as a whole
ii. Opportunity: intent to destroy the group within a geographically limited area
iii. Qualitative: a specific part of the group is essential to its survival
d. As such: victims are singles out BECAUSE of their membership of a national, ethnical, racial or
religious group discriminatory purpose
e. Proof of special intent: tribunals have deduced intent from circumstantial evidence, including the
actions and words of the perpetrator
4) CONTEXTUAL ELEMENT
a. Conduct took place in the context of a manifest pattern of similar conduct directed against that
group OR
i. The pattern must be a clear one and not one of a few isolated crimes occurring over a
period of years
b. conduct that could itself effect such destruction
i. This could occur where a group is particularly small or where the accused has access to
powerful means of destruction (such as use of nuclear of biological weapon) with genocidal
intent
JURISDICTION
JURISDICTION TEMPORIS
Art 11: crimes committed after the entry into force of the Rome Statute
Art 12(3): state can make declaration that crimes before ratification can be covered (but never before
general entry into force). Can also accept jurisdiction with respect to that crime in question
Art 127: the withdrawal shall take effect one year after the date of receipt of the notification
JURISDICTION LOCI
Art 12(2)(a): crimes committed on the territory of a state party
or
JURISDICTION PERSONAE
Art 12(2)(b): persons who are nationals of a state party to the RS
JURISDICTION MATERIAE
Art 5: possibility that / does it appears that an international crime has been committed
ADIMISSIBILITY
1) TRIGGER MECHANISMS (art 13 RS)
a. State party referrals (art 13(a) jo. 14 RS): States which are parties to the statute mat refer
situations to the Court
b. Security Counsil referrals (Art 13(b) RS): referral by using its powers to maintain national peace and
security
c. Initiation by prosecutor / proprio motu (art 13(c) jo. 15 RS): needs authorization of the PTC
All three triggers lead to an preliminary examination power of prosecutor is limited
2) PRELIMINARY EXAMINATION STAGE (art 53 RS)
a. Look at seriousness of information received
b. Jurisdiction: material, territorial, personal and temporal
c. Admissibility: complementarity and gravity
d. Interest of justice: are there grounds not to proceed
B: JURISDICTION
Temporis (art 11) – crimes committed after the entry into force of the Rome Statute
Personae (art 12.2b) – persons who are nationals of a state party to the Rome Statute (= active nationality
jurisdiction)
Loci (art 12.2a) – crimes committed in the territory of a state party (= territorial jurisdiction)
Materiae (art 5) – genocide, crimes against humanity, war crimes and crimes of aggression
C: ADMISSIBILITY – COMPLEMENTARITY
1) Are national authorities investigating the same case as the ICC? (art 17(1)(a)RS)
yes proceed to assessment of the genuineness of the proceedings (state’s willingness and
ability)
no Case is admissible before the ICC
2) Have national authorities investigated the same case as the ICC (art 17 (1)(b) RS)
Kenya Situation:
for a national proceeding to concern the same case, the national investigations must cover
the same individuals and substantially the same conduct as alleged in the proceedings
before the Court.
The mere preparation to initiate such investigations to do so in the future for suspects other
than the specific individuals before the ICC, would be insufficient
In the pre-trial stage, there must be a potential same case. In the trial stage, there must be
a concrete same case
Libya Situation:
The same case test requires that the case that the State is investigating sufficiently mirrors
the one the Prosecutor is investigating
yes have the national authorities decided not to prosecute, as that term should be
understood in this context?
o Yes Proceed to assessment of the genuineness of the proceedings (state’s
willingness and ability)
o No See scenario 3
No ICC case is admissible
3) Only basis on which case can still be admissible is when there has been a national prosecution on the
same issue, but with the intention to shield the accused or if it cannot be established that the case was
conducted impartially/independently with the intent to bring the accused to justice.
Kenya situation: the term being investigated requires that a State actually be taking
concrete steps, and that general assurances of an intent to start investigating are not enough
, Libya: in general, complementarity is concerned with proceedings which will lead to the
suspect evading justice. However, in extreme cases, where due process violations are so
egregious that the proceedings cannot be regarded as providing any genuine justice, then it
could be said that the accused is not in fact being brought to justice.
ADMISSIBILITY – GRAVITY
A case must be of sufficient gravity to justify further action by the Court
Flotilla case:
Involves a generic assessment of whether the groups of persons capture those who may
bear the greatest responsibility for the alleged crimes committed and
Gravity must be assessed from both a quantative and qualitative viewpoint and factors
such as scale (number of victims and crimes), nature of crimes, manner of their
commissions (systematic, cruelty, abuse of power etc) and their impact
Prosecutor decides discretion of prosecutor
D: INTERESTS OF JUSTICE
The final factor that must be considered in situation or case selection is whether there are nonetheless
substantial reasons to conclude that an investigation or prosecution would not be in the interest of justice:
age or infirmity of accused, whether the persons rights have been seriously infringed by a State, whether
the person has already been prosecuted for other related crimes and the interests of victims
Afghanistan Situation:
Negative criterion: invoked only if they are of view that an investigation is not in the
interest of justice
Relevant factors: time elapsed between alleged crimes and request, scarce cooperation and
examination is based on information rather than evidence, likelihood that both relevant
evidence and potential relevant suspects might still be available within reach of the
prosecution’s investigative efforts.
Interest of justice is not part of PTC decision under art 15(4)
CRIME OF GENOCIDE
1) ACTUS REUS
a. Act in the article e.g. killing
2) PROTECTED GROUP
a. Victims are part of a protected group national, ethnical, racial or religious (list is exhaustive)
b. In whole or in part substantial part = must be significant enough to have an impact on the group
as a whole. Can also be in a particular region (if the intent is to destroy them in that specific area)
3) MENS REA – MENTAL GROUP
a. Intent: general intent for underlying act (art 30) & special intent for genocide (Al Bashir)
i. General intent (art 30): knowledge-based meant to engage in the conduct and be aware
of the consequences of the conduct. Could also be a consequence of your non-action
1. Meant to engage in conduct
2. Aware of context of consequences of conduct
3. Aware of genocidal policy
ii. Special intent: to destroy In whole or in part a protected group as such
1. Purpose-based approach: collective intent AND individual intent
a. Collective intent: manifested in overall genocidal plan or campaign
b. Individual intent: knowledge of the plan know that your actions are
supporting that
iii. Destruction of buildings is not itself a genocidal act, but can help prove intent
b. To destroy: the physical (mass killing) or biological (destruction of reproductive capacity)
destruction of a group.
i. Transfer of members of a group that results in splitting up the group is genocide, if done
with the intent to physically destroy the group
c. In whole or in part (Al Bashir)
i. Substantive: must be significant enough to have an impact on the group as a whole
ii. Opportunity: intent to destroy the group within a geographically limited area
iii. Qualitative: a specific part of the group is essential to its survival
d. As such: victims are singles out BECAUSE of their membership of a national, ethnical, racial or
religious group discriminatory purpose
e. Proof of special intent: tribunals have deduced intent from circumstantial evidence, including the
actions and words of the perpetrator
4) CONTEXTUAL ELEMENT
a. Conduct took place in the context of a manifest pattern of similar conduct directed against that
group OR
i. The pattern must be a clear one and not one of a few isolated crimes occurring over a
period of years
b. conduct that could itself effect such destruction
i. This could occur where a group is particularly small or where the accused has access to
powerful means of destruction (such as use of nuclear of biological weapon) with genocidal
intent
