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A Brief Overview of the Crimes Prosecuted by the ICC, Defences to These Crimes, and the Scope of Liability for These Crimes

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Victim Advocacy before the International Criminal Court

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Abstract

This Chapter provides an outline for those appointed as victims’ lawyers of three essential matters that are fundamental to most prosecutions before the ICC—the definitions of the international crimes that may be prosecuted at the ICC; the principles of criminal responsibility that might apply in cases where the defendant has not personally carried out any of the crimes; and defences that may be invoked by the defendant in order to escape criminal liability. The reasons why it is important for victims’ lawyers to be able to ascertain the law relating to these three matters is discussed, followed by an outline of the main sources of the law in these areas. The relevant provisions of the ICC Statute, being by far the most important source of law, are then provided for each of the definitions of the crimes, defences, and the principles of criminal liability. For the minority of cases where the plain meaning of the ICC Statute does not provide the law that victims’ lawyers might need, further references are offered that will assist victims’ lawyers to find the law.

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Notes

  1. 1.

    Although ultimately it is the Pre-Trial Chamber that will approve the final charges to be laid at the confirmation of charges hearing. See Article 61 of the Rome Statute of the ICC (1998).

  2. 2.

    See The Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06 – 1432, Decision of 11.7.2008, Judgment on the Appeals of the Prosecutor and Defence against Trial Chamber I’s Decision on Victims’ Participation of 18.1.2008.

  3. 3.

    See discussion in this volume, S. Mouthaan, ‘The Modalities of Victim Participation’.

  4. 4.

    This was particularly a major issue for many victim advocates in the Lubanga trial. The confirmed charges concerned the conscription, enlistment and use of child soldiers, but not any charges relating to sexual offenses. Not surprisingly: ‘… victims’ advocates protested that rape and other sexual crimes should have been included.’ (Leyh, 2011, pp. 294–295).

  5. 5.

    See the discussion in this volume, S. Mouthaan, ‘The Modalities of Victim Participation’. It is unclear whether Pre-Trial Chambers will allow victims’ advocates to be heard at confirmation of charges hearings. Both Article 61 (confirmation of the charges before trial) of the Rome Statute of the ICC (1998) and Rule 121 of the Rules of Procedure and Evidence of the ICC (2002) are silent on whether victims are able to have an input into this proceeding.

  6. 6.

    Allowing such a statement would be subject to the Court’s discretion, but it seems clear to the writer that this statement would be directly relevant to the victims ‘personal interests’ being affected and constitute their ‘views and concerns’ as is required for victim participation, pursuant to article 68(3) of the Rome Statute of the ICC (1998).

  7. 7.

    See Regulation 55 of the Regulations of the ICC (2004).

  8. 8.

    See Rule 91(4) of the Rules of Procedure and Evidence of the ICC (2002).

  9. 9.

    ‘The Appeals Chamber notes that only victims … who suffered harm as a result of the commission of the crimes of which Mr Lubanga was found guilty, may claim reparations against Mr Lubanga’. The Prosecutor v Lubanga No. ICC-01/04-01/06 – 3129, Decision of 3 March 2015, judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012, at para 211. While individual reparations are likely to be so limited, this may not be true for collective reparations.

  10. 10.

    This document was drafted by Preparatory Committee sessions in 1999 & 2000, and confirmed by the Assembly of State Parties in September 2002.

  11. 11.

    Article 51(5) of the Rome Statute of the ICC (1998) also makes it clear that in any conflict between the Statute and the other document referred to in article 21 (a) of the Rules of Procedure and Evidence of the ICC (2002), the Statute will prevail.

  12. 12.

    See Schabas (2017, p. 191).

  13. 13.

    See Schabas (2017, p. 193), who quotes a passage from the Court’s decision in Situation in Uganda decided on 28/10/05: ‘judges of the International Criminal Court have cautioned against mechanistic application of the case law of the ad hoc tribunals’.

  14. 14.

    For example, article 28 of the Rome Statute of the ICC (1998) sets only a negligence standard for guilt due to command responsibility.

  15. 15.

    See the detailed discussion in Schabas (2017, pp. 97–101).

  16. 16.

    This was prosecuted in the past as ‘crimes against the peace’ and this term should be regarded as interchangeable with ‘aggression’.

  17. 17.

    See articles 15bis and 15ter of the Rome Statute of the ICC (1998) as to the circumstances when this crime might become actionable.

  18. 18.

    For a detailed analysis of this issue from both legal and policy perspectives see Pobjie (2017).

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Authors and Affiliations

  1. School of Law and Justice, Southern Cross University, East Lismore, NSW, Australia

    Sam Garkawe

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  1. Sam Garkawe
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Correspondence to Sam Garkawe .

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Editors and Affiliations

  1. Member, List of Counsel, International Criminal Court, The Hague, The Netherlands

    Elizabeth King

  2. President of Maastricht University, Maastricht, The Netherlands

    Rianne Letschert

  3. School of Law and Justice, Southern Cross University, East Lismore, NSW, Australia

    Sam Garkawe

  4. International Law, University of Essex, Colchester, UK

    Erin Pobjie

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Garkawe, S. (2022). A Brief Overview of the Crimes Prosecuted by the ICC, Defences to These Crimes, and the Scope of Liability for These Crimes. In: King, E., Letschert, R., Garkawe, S., Pobjie, E. (eds) Victim Advocacy before the International Criminal Court. Springer, Cham. https://doi.org/10.1007/978-3-030-56733-0_2

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  • DOI: https://doi.org/10.1007/978-3-030-56733-0_2

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  • Print ISBN: 978-3-030-56731-6

  • Online ISBN: 978-3-030-56733-0

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