International Criminal Court

I have an opportunity on Tuesday 21st to attend a day of talks and discussion in Nuremberg.

The topic is the International Criminal Court. I don’t know much about it so I did some reading online. The books I have are too old.

The ICC came into existence on July 1st, 2002, when 60 states had ratified the Rome Statute of the International Criminal Court. Now, 92 states have done so.
The ICC has a website (this was hard to find).

You can download the important documents there.

The court deals with genocide, crimes against humanity, and war crimes (known as the ‘core crimes’). Germany wants crimes of aggression, such as starting a war of aggression, to be included, but they aren’t yet. There is also a PDF file with the elements of the crimes.

For a person to be prosecuted at the court, the crime must have been committed after July 1st, 2002, and either the territorial state where the crime was committed or the state of the defendant’s nationality must be a party. That means that a US citizen who committed one of these crimes in Afghanistan, for instance, could be prosecuted – the USA is not a State Party, but Afghanistan is.

There is a Coalition for the International Criminal Court, according to whom one hot topic is ‘Article 98’ agreements (after Article 98 of the Rome Statute):

bq. US-proposed bilateral agreements seeking to ensure the non-surrender of US nationals and contractors to the International Criminal Court. … alternately referred to as so-called ‘Article 98’ agreements, bilateral immunity agreements, impunity agreements or bilateral non-surrender agreements.

Some German documents here.

One of the speakers on Tuesday is Dr. Christoph Safferling of Erlangen University, talking about comparative procedural aspects in the Rome Statute – Anglo-American and Continental ideas of criminal prosecution (is that ‘Continental’ correct in English? The Germans sometimes call civil law kontinentaleuropäisches Recht, but I’m not sure we do). An Internet search produced a review of his book on the subject, which was completed before November 2000, when the finalized draft of the rules of procedure of the ICC appeared.

The book draws attention to some of the main differences between the Anglo-American and Continental legal systems which, despite these differences, `coexist under the same human rights concept’ (at 366). Safferling not only highlights the differences but also states the reasons for them. For example, when discussing the pre-trial stage, where the differences become most obvious, he describes the underlying rationale behind the use of a jury and considers whether there is a human right to trial by jury. He concludes that there is no such right and that the jury is a dubious institution which is out of the question for the ICC. Other areas of difference include the principle of objectivity, the decision to prosecute, the equality of arms principle, the separation of conviction and sentencing, questioning of witnesses, and pleas of guilty.

Other speakers are or may be Prof. Dr. Klaus Kastner (he was the President of the court in Nuremberg, but is now described as a professor at Erlangen University, Prof. Dr. Hans-Peter Kaul, judge, The Hague (speaking about ‘From the Treaty of Rome to the ICC’ – could this mean the Rome Statute?), Lee A. Casey, of Baker & Hostetler LLP in Washington DC, and Prof. Dr. Michael P. Scharf from Cleveland University School of Law.

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