The rome statute of the ICC at its twentieth anniversary

The Rome Statute of the ICC at Its Twentieth Anniversary Queen Mary Studies in International Law Edited by Malgosia Fitzmaurice Sarah Singer volume 33 The titles published in this series are listed at brill.com/qmil The Rome Statute of the icc at Its Twentieth Anniversary Achievements and Perspectives Edited by Pavel Šturma leiden | boston The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov Typeface for the Latin, Greek, and Cyrillic scripts: “Brill” See and download: brill.com/brill-typeface ISSN 1877-4822 ISBN 978-90-04-37939-8 (hardback) ISBN 978-90-04-38755-3 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag All rights reserved No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA Fees are subject to change This book is printed on acid-free paper and produced in a sustainable manner Contents On the Authors  vii Introduction  xi Part A Way to the Rome Statute and Beyond Ad Hoc Tribunals and Their Significance for Developing the Activities of the ICC  3 Anna Richterová The System of Operation of International Criminal Justice Fora, in Particular of the International Criminal Court – Will the Future Be Governed by Politics, Orders or Law?  13 Tamás Lattmann The Rome Statute of the ICC and the Recent Works of the International Law Commission  27 Pavel Šturma Part Contribution of the icc to the Definition and Interpretation of International Crimes On the Activation of ICC Jurisdiction over the Crime of Aggression  45 Claus Kreß International Criminal Court, War Crimes and Crimes against Humanity  65 Josef Mrázek Contribution of the International Criminal Court to the Prosecution of Sexual and Gender-Based Crimes: between Promise and Practice  83 Kateřina Uhlířová vi Contents Mental Element (Mens Rea) of the Crime of Aggression and Related Issues  106 Milan Lipovský Part Preliminary Examination and Investigation Making the Wrong Enemies? The ICC Prosecutor’s Dilemma When Targeting Powerful States at the Preliminary Examination Stage  125 Iryna Marchuk and Aloka Wanigasuriya The International Criminal Court and Syria: the Absence of Jurisdiction and the Pressing Need for International Criminal Justice  148 Jan Lhotský 10 The Principle of Complementarity in Practice  163 Kristýna Urbanová 11 Al-Bashir and the ICC – Tag, Hide-and-Seek … or Rather Blind Man’s Bluff?  177 Ondřej Svaček Trials Part 12 All Roads Lead to Rome – Lifting the Veil on the ICC’s Procedural Pluriformity  193 Simon De Smet 13 Experience from the Special Tribunal for Lebanon  207 Ivana Hrdličková Bibliography  223 Index  251 On the Authors Simon De Smet is a Legal Officer in the Trial Division of the International Criminal Court He also is an Affiliate Lecturer at the Law Faculty of the University of Cambridge, where he teaches international criminal law He holds an LL.M degree from Columbia University and a Ph.D from the University of Cambridge His new book Rethinking Fact-Finding by International Courts is due to be published by Cambridge University Press later this year Ivana Hrdličková (Judge, President of the Special Tribunal for Lebanon), board member of the CEELI Institute (Prague), member of the ILAC (Sweden), expert and lecturer in public international law, international criminal law, the relation between international and islamic law, the development of the rule of law in post-­revolution societies and in transitional justice, strengthening the independence of judges, judicial ethics, human rights, money laundering and terrorism financing ­issues Author of various articles regarding these matters Claus Kreß is Professor for Criminal Law and Public International Law He is Director of the Institute of International Peace and Security Law at the University of ­Cologne His prior practice was in the German Federal Ministry of Justice on matters of criminal law and international law Since 1998 he has been a member of ­Germany’s delegations in the negotiations regarding the International Criminal Court He served as a War Crimes Expert for the Prosecutor General for East Timor (2001), as Head of the ICC’s Drafting Committee for the Regulations of the Court (2004), as a sub-coordinator in the negotiations on the crime of aggression, and as a Special Advisor to the Independent Israeli Public Commission to Examine the Maritime Incident of 31 May 2010 (‘Turkel Commission’) – Second Report (2011–12) His more than 150 publications cover both Criminal and Public International Law with an emphasis on the International Law on the Use of Force, the Law of Armed Conflicts and International Criminal Law Tamás Lattmann is a senior researcher at the Institute of International Relations (Prague) and associate professor of the University of New York in Prague His field of expertise covers international humanitarian law and human rights law, his current research focuses on IT warfare viii On the Authors Jan Lhotský After finishing his doctoral studies in international law, Jan worked in a law firm as well as in the European External Action Service in Brussels which is responsible for EU external relations He holds an E.MA human rights degree from Venice and published two monographs (International Criminal Court, Human Rights Protection in International Law) He was also a Visiting ­Professional at the chambers of the International Criminal Court in The Hague Jan is a head of the Czech Centre for Human Rights and Democracy Within public international law he focuses mainly on human rights and international criminal justice Milan Lipovský is a senior lecturer and researcher at the Department of International Law, ­Faculty of Law, Charles University in Prague, Czech Republic, member of the European Society of International Law, Czech Society of International Law, UNCE (Research Centre for Human Rights of the Charles University) He ­graduated from the Charles University in 2010 (Mgr.) and 2015 (Ph.D.) His focus is on international criminal law and human rights protection In 2017 he published monography (in Czech) on the crime of aggression in the Rome Statute of the International Criminal Court after the Kampala review conference Iryna Marchuk is Associate Professor at the Faculty of Law at the University of Copenhagen (Denmark) She obtained her Ph.D degree from the University of Copenhagen (2011) She held appointments as a visiting scholar at the Castan Centre for ­Human Rights Law at Monash University (2016) and the Lauterpacht Centre for International Law at the University of Cambridge (2009–2010) Josef Mrázek is a Senior Research Fellow at the Institute for State and Law of the Czech Academy of Sciences and Lecturer in Public International Law, West Bohemia University in Pilsen, Attorney at Law in Prague since 2003 Dr Juris, Charles University (1967), Candidate of Sciences in Law – CSc (PhD 1974), Doctor of Sciences in Law – Dr.Sc (the highest scientific degree) 1988 Member of the Czech Society of International Law, member of the Czech Branch of ILA, member of the Use of Force Committee ILA, for many years Head of International Public and Private Law at the Czechoslovak Academy of Sciences Served as advisor to the Foreign Ministry Author or co-author of about 300 publications on international public and private law On the Authors ix Anna Richterová has over 25 years’ experience in the judiciary as a prosecutor She began her career as a prosecutor with the District Prosecutor’s Office in Prague-East moving to regional level in Prague In the years 1999–2008 she worked as a Trial Attorney and later as a Senior Trial Attorney in the Office of the Prosecutor of the International Tribunal for the former Yugoslavia in The Hague, The Netherlands She was involved in all aspects of investigation and prosecution of persons responsible for war crimes and crimes against humanity In October 2008 she took up the position of a Deputy National Member for the Czech Republic at Eurojust in The Hague, The Netherlands Her work mainly concerned the facilitation and coordination of international legal cooperation with respect to a vast majority of cross-border and organised crime cases Since February 2016 she has served as a public prosecutor at the International Department of the Supreme Public Prosecutor’s Office of the Czech Republic Ondřej Svaček is a senior lecturer at the Department of International and European Law, ­Faculty of Law, Palacký University in Olomouc and the Department of ­International and European Law, Faculty of Law, Masaryk University in Brno He specializes in international criminal law, international human rights law and general issues of public international law (e.g law of State responsibility, jurisdictional immunities, creation of States) In 2017, he published monography concerning the law and practice of the International Criminal Court ­(Mezinárodní trestní soud (2005–2017) C.H Beck: Praha, 2017) Pavel Šturma is Professor and Head of the Department of International Law, Faculty of Law, Charles University in Prague, Czech Republic, coordinator of UNCE (Research Centre for Human Rights of the Charles University), and a senior research fellow at the Institute of Law of the Czech Academy of Sciences He is member of the UN International Law Commission (2012–2016, 2017–2021), president of the Czech Society of International Law and Editor-in-chief of the Czech ­Yearbook of Public and Private International Law Member of the Czech Branch of ILA, member of ASIL, ESIL and SFDI As an external advisor of the Ministry of ­Foreign Affairs, he was member of the Czech delegation to the Rome Conference on the International Criminal Court His more than 160 publications covers both general issues of Public International Law and International Criminal Law as well as Human Rights law x On the Authors Kateřina Uhlířová is a senior lecturer of International Public Law at Masaryk University ­Faculty of Law She received her law degrees (magna cum laude) from Masaryk University and University of Wales Aberystwyth ASIL Helton Fellow Her research is mainly in the areas of international criminal law, international human rights law and diplomatic law She interned as a Law Clerk at the Office of the President of the ICTY and at the War Crimes Chamber of the Court of Bosnia and Herzegovina She has published in ASIL Proceedings of the Annual Meeting, International Journal of Refugee Law, Australian Law Journal, Czech ­Yearbook of Public and Private International Law or Aberystwyth Journal of World ­Affairs (David Davies Prize Winning Article) She is an author of a monograph: Head of State Immunity in International Law: The Charles Taylor Case before the Special Court for Sierra Leone (Masaryk University, 2013) Kristýna Urbanová is a PhD candidate at Charles University in Prague, where she also teaches ­seminars on Public International Law and participates as a co-lecturer in subjects on International Criminal Law, International Economic Law and E ­ uropean Convention on Human rights She also actively practices law as ­Attorney with primary focus on International Investment Arbitration and regulatory litigation Kristýna also holds LLM degree from University of Cambridge (2016) and currently works as a visiting professional at the Appeals Chamber of the ­International Criminal Court Aloka Wanigasuriya is a PhD scholar at the Faculty of Law, University of Copenhagen (Denmark) Aloka is an Australian lawyer who holds a Master of Laws (LLM) degree in international human rights law from Lund University (Sweden) and a conjoint Bachelor of Arts (BA)/Bachelor of Laws (LLB) degree from Deakin University (Australia) Aloka has previously been affiliated with the Special Court for ­Sierra Leone, The Danish Institute for Human Rights, The Raoul Wallenberg Institute for Human Rights and Humanitarian Law and Monash University 238 BIBLIOGRAPHY Čepelka, Čestmír, ‘The Concept of Crimes against Humanity’, Czech 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Crimea 64n58 Crime(s) against humanity 28–33, 78–80 Draft articles on 81–82 of aggression 45–65 as a manifest violation of the un Charter 50 Sexual and gender based 85 War 71–78 Dolus eventualis 112, 117 Dolus indirectus 117 Examinations Preliminary 126 Gbagbo & Blé Goudé 206 General principles of law 40 Genocide network 8 Hybridization 221–223 icc 13, 69 and Russia 138–140 and the uk 130–134 and the usa 134–138 ictr 3, 15 icty 3, 15 iiim on Syria 151 Immunity functional Exceptions to 35 of State officials 33–40 ratione personae 34, 179–186 imt 15 imtfe 15 International Law Commission 27 isis 152, 153n26 Katanga 166 Kellogg-Briand Pact 46 Knowledge Constructive 118, 120 Kvocka 111n17 Lieber code 66 Mens rea in domestic legal systems 109–111 in the Rome Statute 115–122 of the crime of aggression 118–123 Muthaura 95 Nanking 87 Ntaganda 100 Nuremberg Principles 28 Obligation of cooperation with the icc 186–190 Ongwen 99, 198n18 Princeton process on the crime of aggression 50n15 Principle aut dedere aut judicare 29 of complementarity 142, 164–177 of legality 47 Passive personality 155 Resolution 3314 48 rc/Res 6 108 252 Rome Statute of the International Criminal Court 14, 27 Ruto & Sang 169, 196 scsl 17 South Africa 179 Srebrenica 11 Stakic 112n20 Special Tribunal for Lebanon 17, 208–223 Index Syria 149 Tadić 16, 68, 89, 111n18 Terrorism 217 Transitional justice 160 Trial in absentia 218 Universal jurisdiction 155 (un)willingness and (in)ability 170, 174 ... well-known fact that the final text of the Rome Statute of the icc is a result of work of the Preparatory Committee and the Diplomatic Conference on the Establishment of an International Criminal... influenced the drafting of the Rome Statute of the icc The jurisprudence of the icty has great influence on the work of other international tribunals It is not a binding source of international criminal... difficult issues of interpretation of rules of international law in and outside the Rome Statute, in particular on immunity of State officials On the other hand, the emerging case law of the icc seems