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War Crimes and Related Law (Canada)
(February 2008)

Chapter 13 - The International Criminal Court

  1. Overview
  2. Jurisdiction
    (a) Overview
    (b) Temporal Jurisdiction
    (c) Jurisdiction by Location of Events
    (d) Jurisdiction by Nationality of Parties
    (e) ICC Jurisdiction by Default of Local State
    (f) Initiating Investigations and Deferral of Jurisdiction
  3. Immunity and ICC Default Jurisdiction
    (a) Overview
    (b) "Unwillingness"
    (c) "Inability"
  4. Procedures
    (a) Overview
    (b) Double Jeopardy
    (c) Defendants Parties
    (d) Ancillary Offences
    (e) Minors
    (f) Supervisory Offences
    (g) No Limitations
    (h) Mens Rea
    (i) Defences
    (j) Nuremberg Defence and Mistake of Law
    (k) No Trial in Absentia
    (l) Trial and Pre-Trial Chambers
    (m) Public Trials
  5. Applicable Substantive Law
  6. Penalties
  7. State-Party Co-operation
  8. Canadian ICC Obstruction Offences
________________________________________

Note: All references are to the Rome Statute of the ICC,
unless otherwise specified.

1. Overview

The International Criminal Court (ICC) was founded by the Rome Statute of the International Criminal Court, a treaty sponsored by the United Nations and to which Canada is a signatory. Although the court has the legal authority to act on the territory of any "state party" (ie. signatory) [Art 4.2], the actual permanent court is located in The Hague, Netherlands - a city with a long history of central involvement in international legal development.

While the court is the natural focus of any attention directed to the Rome Statute system, it's actual role is more that of a 'court of last resort'. The system first and foremost relies on the prosecution systems of the state parties. It is only when the courts of the defendant nationals are unable or unwilling to prosecute that the ICC itself may become involved.

The legislative and administrative body responsible for development and amendment of the Rome Statute, and management of the ICC, is the "Assembly of State Parties", constituted of all the ratifying states [Art 112, 121].

This chapter summarily reviews these procedures and other key features of the International Criminal Court, with particular attention to the circumstances which trigger ICC jurisdiction in preference to that of "local" state courts.


2. Jurisdiction

(a) Overview

Jurisdiction is the legal authority that any court has to hear evidence on and rule with respect to the issues before it. ICC jurisdiction has several aspects, which are all reviewed below.

If challenged, jurisdiction of the ICC over any particular fact situation may be decided as a preliminary issue under Art.19 of the Rome Statute, which sets out extensive procedures for this.

(b) Temporal Jurisdiction

The jurisdiction of the ICC is NOT retroactive, and only covers crimes committed after it came into force on 01 July 2002 with respect to its original signatories.

For later signatories, the court only has jurisdiction with respect to such state for acts and omissions done AFTER they adopt the Rome Statute into their local law [Art 11].

(c) Jurisdiction by Location of Events

If the acts or omissions subject of complaint occured on the territory of a state-party or on board a vessel or aircraft registered to a state-party, then the court has jurisdiction over those events. The court may also obtain such jurisdiction if a non-state-party consents to the court's jurisdiction by formal declaration [Art 12.2, 12.3].

(d) Jurisdiction by Nationality of Parties

The ICC has jurisdiction if the suspect is a citizen of a state-party. The court may also obtain such jurisdiction if a non-state-party consents to the court's jurisdiction by formal declaration [Art 12.2, 12.3].

(e) ICC Jurisdiction by Default of Local State

The ICC shall decline to proceed with a case if any of the following are the case [Art 17.1]:
  • "(t)he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;"

  • "(t)he case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;"

  • the suspect has already been tried for the acts or omissions (see below: "Double Jeopardy");

  • the case is "not of sufficient gravity to justify further action by the Court" (this is not a merits test, but a 'seriousness' test).
In determining the issue of "unwillingness" of a state-party above, the court shall consider if the local proceedings are [Art 17.2]:
  • a sham designed to shield the party from criminal responsibility;

  • subject of undue delay "inconsistent with an intent to bring the person concerned to justice"; and

  • the proceedings are not being conducted independently, impartially, or are being conducted in a manner "inconsistent with an intent to bring the person
    concerned to justice."
In determining the issue of "inability" of a state-party above, the court shall whether the local court is unable to conduct its proceedings by reason of "a total or substantial collapse or unavailability of its national judicial system" [Art 17.3].

As to whether local immunity laws condition ICC jurisdiction under these provisions, see section 3(b) in "Immunity", below.

(f) Initiating Investigations and Deferral of Jurisdiction

Formal investigations may be initiated by referral from a state-party or from the UN Security Council [Art 13].

As well, the prosecutor of the ICC may also initiate a preliminary investigation based on information received (this is how "private complaints" start when it is unsafe or useless to initiate them within the justice system of the complainant's own country). In such cases - after the "preliminary" investigation - the prosecutor may (if merited) request formal permission from the Pre-Trial Chamber to start a formal investigation [Art 15]. If the prosecutor decides not to request permission for a formal investigation they shall so inform the complainant (there is no provision for providing reasons).

In the case of a complaint initiated by state-party or by a private complainant, the prosecutor - on being satisfied after preliminary investigation that the complaint may have a reasonable basis - shall notify all state-parties and as well the state which would "normally exercise jurisdiction over the crimes concerned" (even if not a state-party) [Art 18]. The ICC may then defer jurisdiction to the prosecutorial authorities in any state which has jurisdiction over the matter, subject to permission from the Pre-Trial Chamber (obtained on request of the prosecutor) for the ICC to continue the investigation.

The UN Security Council may direct that investigation or prosecution in any case be deferred for 12-month (renewable) periods [Art 16].


3. Immunity and ICC Default Jurisdiction

(a) Overview

A significant issue in ICC jurisdiction is if - or when - the ICC has "default" jurisdiction over a case by virtue of the application of local state immunity provisions, such as head-of-state immunity. More particularly, can local immunity provisions constitute "inability" or "unwillingness" of a local state to adequately proecute a case?

Immunities from war crimes prosecution under Canadian law are discussed at length in Ch.3. There it is noted that the Rome Statute broadly dispels any doctrine of immunity from prosecution, in particular any immunity based on "official capacity":
Article 27

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
While (as per Art.27 quoted above) ICC proceedings have expressly barred any form of defendant immunity doctrine, a number of other factors render the issue of local state immunity issues essential to the viability - and indeed credibility - of the Rome Statute criminal justice endeavour. These factors include:
  • the primacy of local court systems in the Rome Statute regime;

  • the pivotal role of immunity in customary international law;

  • the potency of the Nuremberg defence in the hands of subordinate defendants (rendering their prosecution unlikely, leaving prosecution of their superiors all the more important).
While in Chapter 3 ("Immunities") I note arguments for and against head-of-state immunity in Canadian law, we have already seen it exercised at least once in a lower court (the BC George Bush private complaint) albeit in an uninformative and almost cursory fashion (as "diplomatic" immunity). So the question persists: if Canadian law is held ultimately to contain a head-of-state immunity [or a broader "politican" immunity as per Belgium v Congo)] can that invite direct ICC jurisdiction under the "ICC Jurisdiction by Default of Local State" provisions discussed under s.2(d) above. In this section I discuss the arguments pro and con, and explore some implications of both results.

Before we delve into this issue further, let's put it in clear context. We are assuming for the sake of analysis that Canadian law has a head-of-state immunity provision which would bar prosecution of foreign heads-of-state under Canadian war crimes law (the CAHWCA). The issue is whether that legal "fact" can trigger the ICC obtaining default jurisdiction over a case when the Crown either: prosecutes and loses due to immunity claims, or refrains from prosecuting due to immunity (collectively: "local failure to convict").

It is noted of course that ICC jurisdiction over any case presupposes satisfaction of any other jurisdictional criteria noted in s.2 ("Immunity") above.

As well, following from the discussion in Ch.8, s.3: "Procedures and Evidence: Attorney-General Consent", the federal A-G "personal written consent" provisions (without which no CAHWCA prosecution may be commenced or continued) can effectively operate as a case-by-case political immunity or "veto" over such prosecutions. These provisions provide a clear oppourtunity for the exercise of political bias against otherwise meritorious prosecutions. As such the below discussion of "unwillingness" can apply equally to the refusal (or more likely: "constructive refusal") of such consent.

That said, meritorious acquittals or decisions not to prosecute - based on the "merits" of the case - DO bar ICC jurisdiction. It is only when a local failure to convict is grounded on "inability" or "unwillingness" (as these terms are defined in Art 17) that it conditions ICC jurisdiction. I explore these in turn.

(b) "Unwillingness"

As noted above, in determining the issue of "unwillingness" of a state-party above, the court shall consider if the local proceedings are [Art 17.2]:
  • a sham designed to shield the party from criminal responsibility;

  • subject of undue delay "inconsistent with an intent to bring the person concerned to justice";

  • the proceedings are not being conducted independently, impartially, or are being conducted in a manner "inconsistent with an intent to bring the person concerned to justice."
Barring a fundamental corruption of the judicial process, in Canada "unwillingness" by its nature would normally only apply to the Crown decision to prosecute. This would occur either as a "normal" discretionary decision not to prosecute (as is done in hundreds of cases every day through out the country) or as a decision to withhold the A-G's consent to the private "commencement" of a charge under CAHWCA s.9(3) [see Ch.9, s.2: "Procedures and Evidence: Attorney-General Consent"]. Note that the A-G will always have carriage of the prosecution [CAHWCA s.9(3)].

If such a decision is made on the basis of "immunity", then the victims would be left somewhat in legal limbo as we to date do not have a clear statement from any higher Canadian courts as to whether there is a head-of-state immunity doctrine applicable to CAHWCA prosecutions. It would be far preferrable to have the matter decided by an authoritative Canadian court on an application for declaration or otherwise, if for no other reason than to dispel the unsavoury suspicion that the decision was politically-based (rather than merits-based).

Barring the Crown or an aggrieved complainant seeking a declaration on this issue (assuming they have legal standing to do so), the subsequent issue of ICC default jurisdiction would have to be deferred to the ICC itself under the specific procedures for this set out in the Rome Statute: Art 19. That court might then be faced with the ungratifying (and frankly unfair) task of assessing the Canadian law of immunity absent a declaration from Canadian courts (which it would undoubtedly accept were it made). Alternatively it could just assume Canadian legal immunity and proceed to determine if that doctrine alone constituted "inability" (see below). In either case I would think it highly tempting (and quite legitimate) for the ICC on such a motion to view Canada's failure to have the matter clarified in Canadian courts as evidence of bad faith (ie. political "unwillingness"), and to find for its own jurisdiction in such circumstances.

In sum - should the federal Crown decide not to proceed on (ostensible) grounds of head-of-state immunity to CAHWCA prosecutions (or ANY inappropriate refusal to consent to the same) - AND absent (an eminently obtainable) Canadian higher court determination of the issue, the case for ICC default jurisdiction is good as such behaviour is quite arguably "inconsistent with an intent to bring the person concerned to justice." Of course, if such a declaration is sought - and confirms an effective doctrine of immunity (or other legal justification), then we necessarily move onto our next consideration, that of "inability" to hear the merits of a prosecution.

(c) "Inability"

As noted, the above discussion leads us naturally to consideration of the second ground which may condition ICC default jurisdiction: "inability". So let us change our scenario to one where the issue of immunity has been decisively pronounced on by an authoritative Canadian court, either on a motion to dismiss charges in the criminal court, by declaration in the Superior Court, or otherwise.

Also as noted above, in determining the issue of "inability" of a state-party above, the court shall consider whether the local court is unable to conduct its proceedings by reason of "a total or substantial collapse or unavailability of its national judicial system" [Art 17.3].

So the issue is whether the existence and operation of an effective Canadian local doctrine of head-of-state immunity constitutes: "a total or substantial collapse or unavailability of its national judicial system". Barring some catastrophic breakdown in social order, the issue can be further narrowed down to whether immunity constitutes a "substantial ... unavailability of its national judicial system". Presumably this means 'unavailability' for the purposes as hand and not a broad-based navailability which would be more akin to the "collapse" already mentioned.

The best argument for immunity satisfying this jurisdiction-conditioning standard is simple "ordinary meaning". It is no stretch of interpretation to state that when a country has a legal doctrine of head-of-state immunity, that it's legal system is "substantially ... unavailable" for the purposes of the prosecution.

Further, as such issue would also be ultimately determined by the ICC through the Article 19 Rome Statute preliminary jurisdiction procedures, this leaves the matter in the hands of a court statutorily antagonistic to any form of immunity [Art 27] and also aware that the Canadian state-party has ratified a treaty which allows of "no reservations" [Art 120].

Further (and most compelling), the Rome Statute contains an express ban on such consideration:
Art 27.2
Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.
Art. 27.2 appears tailor-made to defeat any Canadian argument against ICC default jurisdiction. No doubt it was written with this specific situation in mind.

Niceties of law as to whether immunity is a jurisdictional doctrine, a defence - or some other legal beast - appear to be irrelevant. All render the justice system "unavailable" to hear the prosecution on its merits.

In sum then on the issue of "inability", it appears that the best argument is that an effective doctrine of Canadian head-of-state immunity does condition ICC default jurisdiction over the matter.


4. Procedures

(a) Overview

Following in the footsteps of its predecessor courts (the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and others) the ICC model is procedurally similar to the criminal justice system of Canada and most common law countries. It offers defendants most - if not all - of the conventional procedural and substantive safeguards that we find in Canadian courts.

For instance, the "presumption of innocence", criminal standard of proof ("beyond reasonable doubt") and the prosecutor's onus of proof are all part of ICC doctrine [Art 66]. Other basic procedural protections include the defendant's right to knowledge of the charges, speedy trial, counsel, legal aid, cross-examination, right to compel witnesses, language interpretation, right to silence, evidence disclosure [Art 67].

(b) Double Jeopardy

The principle of protection from double jeopardy regarding prior convictions or acquittals (see Ch.9: "Defences") is found in the Rome Statutes. However, consistent with the court's fundamental jurisdictional principles, double jeopardy is subject to exceptions where it is held that national court proceedings were a sham designed to shield the defendant from bona fide prosecution, or otherwise fundamentally flawed by bias or improper influence [Art 20].

(c) Defendants Parties

As in discussed in Ch.2: "Parties", the ICC only has jurisdiction over "natural persons" [Art 25]. This is distinct from Canadian courts which - having adopted the Criminal Code procedures in this respect - have jurisdiction over a broad array of corporations, organizations and even governments.

(d) Ancillary Offences

As is discussed in Ch.7: "Ancillary Offences", the ICC has jurisdiction to charge not only the main war crime offences but also some of their ancillary forms: counselling, aiding and abetting, conspiracy and attempt [Art 25.3].

(e) Minors

No prosecution may be made for acts or omissions done while a persons is under 18 years of age [Art 26].

(f) Supervisory Offences

As with the CAHWCA (which models from it), the Rome Statute details offences of military superiors who fail to prevent the commission of war crimes by their subordinates [Art 28].

Note however from the discussion in Ch.6 "Supervisory Offences"), that Canadian law expands similar liability to include civilian "superiors".

(g) No Limitations

There is no limitation period on the prosecution of war crime in the ICC [Art 29].

(h) Mens Rea

Traditional common law mens rea (mental intention) elements are required for ICC prosecutions [Art 30].

(i) Defences

Defences of insanity, intoxication, self-defence, duress, and mistake of fact are available in ICC proceedings [Art 31,32].

"Self-defence" applies to limited, proportional case-by-case responses against illegal aggression, and not to participation in "defensive operations" alone.

(j) Nuremberg Defence and Mistake of Law

Chapter 9 ("Defences") contains a detailed discussion of the "Nuremberg Defence" (that the defendant was "just following orders") and its relationship to the Canadian legal principle that mistake of law is no defence. The pivotal CAHWCA provisions on these issues are drawn almost verbatim from Arts. 32 and 33 of the Rome Statute, with presumably similar legal consequences.

(k) No Trial in Absentia

There is no trial in absentia in ICC process [Art 63].

(l) Trial and Pre-Trial Chambers

Akin to Canadian criminal procedure with "judicial pre-trials", pre-trial procedural matters may be heard and decided by the "Trial Chamber" and the "Pre-trial Chamber" [Art 64]. These can include a pre-trial conference to discuss procedural and evidence disclosure issues, joinder and a range of other issues.

(m) Public Trials

Generally ICC trials shall be held in public, with allowance for closing courts to protect witnesses or "sensitive information" [Art 64.7, 68].


5. Applicable Substantive Law

Like the Canadian implementation of the Rome Statute, the ICC has jurisdiction over the charges of genocide, war crimes and crimes against humanity. It is expected eventually to have jurisdiction over the as-yet-undefined "crime of aggression" (see Ch.14: "Aggression"). As is seen in Ch.5 "Main Offences", the Canadian definitions of these crimes explicitly adopt the Rome Statute definitions for interpretative aid.

In (Ch.1 "Overview") I made the point that when prosecutions are being conducted in local national courts it is ultimately the law of those courts (and international law as implemented and interpreted by them) that will ultimately govern any legal issue. This can lead to tricky (and sometimes inconsistent) resolutions of conflicting legal principles between treaty law, customary international law, local statute law and local common law.

The Rome Statute will face similar - if somewhat less complex - problems of resolving conflicting legal sources. To aid in this task the Rome Statute has actually codified the 'hierarchy' of laws for this purposes, as follows [Art 21]:
1. The Court shall apply:

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.
As well, the Rome Statute contains its own non-discrimination provisions similar to Canadian Human Rights Codes and s.15 of the Canadian Charter of Rights and Freedoms:
Art.21.3
The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

6. Penalties

Sentencing ranges are similar to those in Canadian courts (see Ch.10 "Penalties"), but with greater discretion left to the trial judge [Art 77].


7. State-Party Co-operation

The Rome Statute generally requires assistance and participation from the criminal justice systems of state parties regarding typical criminal law enforcement procedures [Art 86,87,88,93.1], including:
  • arrest and extradition [Art 59,89];
  • tracking of suspects or evidence;
  • taking of evidence;
  • investigation;
  • service of documents;
  • search warrants;
  • tracing and freezing proceeds of crime.
As well, if and when defendants are convicted by the ICC, arrangements will be made for them to be incarcerated in prison facilitaties of state parties [Art 103].


8. Canadian ICC Obstruction Offences

Canadian Criminal law has long recognized offences dealing with interference in the administration of justice in Canadian legal proceedings. When war crimes prosecutions are conducted in Canadian courts it is these primary Criminal Code obstruction offences that will protect the proceedings.

However when prosecutions are conducted in the ICC, the CAHWCA contains similar (but not identical) provisions protecting against such interference as it relates to the proceedings of the International Criminal Court.

The CAHWCA obstruction and the Criminal Code counterparts are set out here for reference:
  • obstruction [CC 139(1)][CAHWCA 16(1),17]
  • witness tampering [CC 139(3)][CAHWCA 16(2),23,26]
  • bribery [CC 119,120][CAHWCA 18]
  • perjury [CC 131][CAHWCA 19]
  • giving contradictory evidence [CC 136][CAHWCA 20]
  • fabricating evidence [CC 137][CAHWCA 21]
  • forging affidavits [CC 138][CAHWCA 22]
If any of these offences or a contempt of court offence (typically, violation of a court order) are committed outside of Canada by a Canadian citizen, they may still be prosecuted within Canada. This also applies to the ancillary forms of these offences, being: attempt, conspiracy, counselling and accessory after-the-fact [CAHWCA s.25].
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