Genocide is the intentional destruction of a people[a] in whole or in part. Raphael Lemkin coined the term in 1944,[1][2] combining the Greek word γÎνος (genos, "race, people") with the Latin suffix -caedo ("act of killing").[3]
https://en.wikipedia.org/wiki/Genocide
https://en.wikipedia.org/wiki/Statute_of_limitations
https://en.wikipedia.org/wiki/International_Criminal_Court#Jurisdiction_and_admissibility
https://en.wikipedia.org/wiki/War_crime
Subject-matter jurisdiction requirements
The Court's subject-matter jurisdiction means the crimes for which individuals can be prosecuted. Individuals can only be prosecuted for crimes that are listed in the Statute. The primary crimes are listed in article 5 of the Statute and defined in later articles: genocide (defined in article 6), crimes against humanity (defined in article 7), war crimes (defined in article 8), and crimes of aggression (defined in article 8 bis) (which is not yet within the jurisdiction of the Court; see below).[97] In addition, article 70 defines offences against the administration of justice, which is a fifth category of crime for which individuals can be prosecuted.
Genocide
Article 6 defines the crime of genocide as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".[98] There are five such acts which constitute crimes of genocide under article 6:[99]
- Killing members of a group
- Causing serious bodily or mental harm to members of the group
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
- Imposing measures intended to prevent births within the group
- Forcibly transferring children of the group to another group
The definition of these crimes is identical to those contained within the Convention on the Prevention and Punishment of the Crime of Genocide of 1948.
Crimes against humanity
Article 7 defines crimes against humanity as acts "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".[100] The article lists 16 such as individual crimes:[101]
- Murder
- Extermination
- Enslavement
- Deportation or forcible transfer of population[102]
- Imprisonment or other severe deprivation of physical liberty
- Torture
- Rape
- Sexual slavery
- Enforced prostitution
- Forced pregnancy
- Enforced sterilization
- Sexual violence
- Persecution
- Enforced disappearance of persons
- Apartheid
- Other inhumane acts
War crimes
Article 8 defines war crimes depending on whether an armed conflict is either international (which generally means it is fought between states) or non-international (which generally means that it is fought between non-state actors, such as rebel groups, or between a state and such non-state actors). In total there are 74 war crimes listed in article 8.[101] The most serious crimes, however, are those that constitute either grave breaches of the Geneva Conventions of 1949, which only apply to international conflicts,[101] and serious violations of article 3 common to the Geneva Conventions of 1949, which apply to non-international conflicts.[103]
There are 11 crimes which constitute grave breaches of the Geneva Conventions and which are applicable only to international armed conflicts:[101]
- Willful killing
- Torture
- Inhumane treatment
- Biological experiments
- Willfully causing great suffering
- Destruction and appropriation of property
- Compelling service in hostile forces
- Denying a fair trial
- Unlawful deportation and transfer
- Unlawful confinement
- Taking hostages
There are seven crimes which constitute serious violations of article 3 common to the Geneva Conventions and which are applicable only to non-international armed conflicts:[101]
- Murder
- Mutilation
- Cruel treatment
- Torture
- Outrages upon personal dignity
- Taking hostages
- Sentencing or execution without due process
Additionally, there are 56 other crimes defined by article 8: 35 that apply to international armed conflicts and 21 that apply to non-international armed conflicts.[101] Such crimes include attacking civilians or civilian objects, attacking peacekeepers, causing excessive incidental death or damage, transferring populations into occupied territories, treacherously killing or wounding, denying quarter, pillaging, employing poison, using expanding bullets, rape and other forms of sexual violence, and conscripting or using child soldiers.[104]
Crimes of aggression
Article 8 bis defines crimes of aggression. The Statute originally provided that the Court could not exercise its jurisdiction over the crime of aggression until such time as the states parties agreed on a definition of the crime and set out the conditions under which it could be prosecuted.[8][105] Such an amendment was adopted at the first review conference of the ICC in Kampala, Uganda, in June 2010. However, this amendment specified that the ICC would not be allowed to exercise jurisdiction of the crime of aggression until two further conditions had been satisfied: (1) the amendment has entered into force for 30 states parties and (2) on or after 1 January 2017, the Assembly of States Parties has voted in favor of allowing the Court to exercise jurisdiction. On 26 June 2016 the first condition was satisfied[106] and the state parties voted in favor of allowing the Court to exercise jurisdiction on 14 December 2017.[107] The Court's jurisdiction to prosecute crimes of aggression was accordingly activated on 17 July 2018.[107]
The Statute, as amended, defines the crime of aggression as "the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations."[108] The Statute defines an "act of aggression" as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations."[109] The article also contains a list of seven acts of aggression, which are identical to those in United Nations General Assembly Resolution 3314 of 1974 and include the following acts when committed by one state against another state:[110]
- Invasion or attack by armed forces against territory
- Military occupation of territory
- Annexation of territory
- Bombardment against territory
- Use of any weapons against territory
- Blockade of ports or coasts
- Attack on the land, sea, or air forces or marine and air fleets
- The use of armed forces which are within the territory of another state by agreement, but in contravention of the conditions of the agreement
- Allowing territory to be used by another state to perpetrate an act of aggression against a third state
- Sending armed bands, groups, irregulars, or mercenaries to carry out acts of armed force
Offences against the administration of justice
Article 70 criminalizes certain intentional acts which interfere with investigations and proceedings before the Court, including giving false testimony, presenting false evidence, corruptly influencing a witness or official of the Court, retaliating against an official of the Court, and soliciting or accepting bribes as an official of the Court.[111]
Territorial or personal jurisdiction requirements
For an individual to be prosecuted by the Court either territorial jurisdiction or personal jurisdiction must exist. Therefore, an individual can only be prosecuted if he or she has either (1) committed a crime within the territorial jurisdiction of the Court or (2) committed a crime while being a national of a state that is within the territorial jurisdiction of the Court.
Territorial jurisdiction
The territorial jurisdiction of the Court includes the territory, registered vessels, and registered aircraft of states which have either (1) become party to the Rome Statute or (2) accepted the Court's jurisdiction by filing a declaration with the Court.[112]
In situations that are referred to the Court by the United Nations Security Council, the territorial jurisdiction is defined by the Security Council, which may be more expansive than the Court's normal territorial jurisdiction.[113] For example, if the Security Council refers a situation that took place in the territory of a state that has both not become party to the Rome Statute and not lodged a declaration with the Court, the Court will still be able to prosecute crimes that occurred within that state.
Personal jurisdiction
The personal jurisdiction of the Court extends to all natural persons who commit crimes, regardless of where they are located or where the crimes were committed, as long as those individuals are nationals of either (1) states that are party to the Rome Statute or (2) states that have accepted the Court's jurisdiction by filing a declaration with the Court.[112] As with territorial jurisdiction, the personal jurisdiction can be expanded by the Security Council if it refers a situation to the Court.[113]
Temporal jurisdiction requirements
Temporal jurisdiction is the time period over which the Court can exercise its powers. No statute of limitations applies to any of the crimes defined in the Statute.[114] However, the Court's jurisdiction is not completely retroactive. Individuals can only be prosecuted for crimes that took place on or after 1 July 2002, which is the date that the Rome Statute entered into force.[115] If a state became party to the Statute, and therefore a member of the Court, after 1 July 2002, then the Court cannot exercise jurisdiction prior to the membership date for certain cases.[116] For example, if the Statute entered into force for a state on 1 January 2003, the Court could only exercise temporal jurisdiction over crimes that took place in that state or were committed by a national of that state on or after 1 January 2003.
Admissibility requirements
To initiate an investigation, the Prosecutor must (1) have a "reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed", (2) the investigation would be consistent with the principle of complementarity, and (3) the investigation serves the interests of justice.[117]
Complementarity
The principle of complementarity means that the Court will only prosecute an individual if states are unwilling or unable to prosecute. Therefore, if legitimate national investigations or proceedings into crimes have taken place or are ongoing, the Court will not initiate proceedings. This principle applies regardless of the outcome of national proceedings.[118] Even if an investigation is closed without any criminal charges being filed or if an accused person is acquitted by a national court, the Court will not prosecute an individual for the crime in question so long as it is satisfied that the national proceedings were legitimate. However, the actual application of the complementarity principle has recently come under theoretical scrutiny.[119][118]
Gravity
The Court will only initiate proceedings if a crime is of "sufficient gravity to justify further action by the Court".[120]
Interests of justice
The Prosecutor will initiate an investigation unless there are "substantial reasons to believe that an investigation would not serve the interests of justice" when "[t]aking into account the gravity of the crime and the interests of victims".[121] Furthermore, even if an investigation has been initiated and there are substantial facts to warrant a prosecution and no other admissibility issues, the Prosecutor must determine whether a prosecution would serve the interests of justice "taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime".[122]
https://en.wikipedia.org/wiki/International_Criminal_Court#Jurisdiction_and_admissibility
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