Theoretical and Case Study on Crimes under the Rome Statue of the ICC - focusing on substantive and procedural issues in the recent case law
- LanguageKorean
- Authors Kyunggyu Park, Seonggyu Kim, Sae-Uk Kim
- ISBN979-11-91565-20-1
- Date December 31, 2021
- Hit372
According to the Article 21 of the Rome Statute, the ICC shall apply general principles of law derived by the Court from national laws of legal systems of the world, when the ICC fails to apply Rome Statute, Elements of Crimes, Rules of Procedure and Evidence, applicable treaties and principles of international law. Therefore, in finding general principles of law, it would be very helpful to conduct an in-depth study on the statutory and case law of the ICC.
On this basis, in chapter 2, an overview of criminal proceeding at the ICC is briefly presented. Then, this study focuces on four selected issues in the field of the substantive and procedural law of the Rome Statute. The four selected issues are : 1) scope of indirect co-perpetration, 2) whether an intra-party sexual crime against soldiers within a same force can be constituted as a war crime, 3) amending of the containing charges and 4) current trend of reparation at the ICC.
The ICC case law acknowledges indirect co-perpetration as a form of principal liability on the ground that the theory of control over the crime is the appropriate approach in distinguishing principal from accessory. However, this approach being criticized on the ground that the ICC applies the requirement of “common purpose” or “common plan” too loosely by recognizing the establishment such requirement even when indirect co-perpetrators had not agreed to commit a certain crime under the Rome-Statute. In doing so, the ICC acknowledges de facto dolus eventualis which is not an acceptable form of mens rea according to Article 30 of the Rome Statute. This controversy regarding of the scope of indirect co-perpetration at the ICC can be a useful reference in finding the appropriate boundary of indirect co-perpetration in the Korean criminal law.
Until the Ntaganda judgement, the issue of whether an intra-party sexual crime against soldiers within the same force can be constituted as a war crime has not been addressed by an international criminal tribunal. The Trial Chamber in the Ntaganda case ruled that victim does not have to be with the opposing side for an intra-party sexual crime to be constituted as war crime of rape or sexual slavery. However, the Chamber did so without questioning the status of non-Hema women who were victims of rape or sexual slavery. This clarifies that the instance of Japanese Military’s Sexual Slavery before and during Wolrd War II(also known as ‘Comfort Women’) is to be considered as war crime of sexual slavery regardless of whether the victim was with the opposing side in the war.
The Rome Statute regulates the matter of amending charges or re-characterization of facts and circumstance according to the phase of a criminal proceeding, namely 1) before the commencement of a confirmation hearing, 2) in the phase of confirmation hearing, 3) before the commencement of a trial and 4) at any stage of the trial. According to Regulation 55 of the Regulations of the Court, the Trial Chamber may change the legal characterisation of facts, without exceeding the facts and circumstances described in the charges and any amendments to the charges. If it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility. Interestingly, at the ICC the Legal Representative for Victim can also apply the legal re-characterisation of facts.
Furthermore, the ICC acknowledges ‘no case to answer-decision’ in two variants, ie ‘no case to answer decision’ with effect of prohibition against double jeopardy and ‘no case answer decision’ with effect of mere termination of procedure. This ICC-regime regarding amending of DCC provides valuable insights when studyung domestic scheme of amending charges.
To date, the ICC has order reparations in four cases: Lubanga, Katanga, Al Mahdi, and Ntaganda. The Ntaganda Reparation Order is widely viewed as having expanded upon the existing reparation principles and having paved way for a more efficient and clear reparations proceedings. This study concentrates on the take-aways of the recent reparation order made in the Ntaganda case, and explores the criticisms and suggestions for improvements regarding reparations at the ICC in general. Finally, the study of reparations at the ICC could prove to be an invaluable point of reference in structuring future reparation or compensation schemes in Korea for victims of crimes of humanity committed by high-level state officials.
On this basis, in chapter 2, an overview of criminal proceeding at the ICC is briefly presented. Then, this study focuces on four selected issues in the field of the substantive and procedural law of the Rome Statute. The four selected issues are : 1) scope of indirect co-perpetration, 2) whether an intra-party sexual crime against soldiers within a same force can be constituted as a war crime, 3) amending of the containing charges and 4) current trend of reparation at the ICC.
The ICC case law acknowledges indirect co-perpetration as a form of principal liability on the ground that the theory of control over the crime is the appropriate approach in distinguishing principal from accessory. However, this approach being criticized on the ground that the ICC applies the requirement of “common purpose” or “common plan” too loosely by recognizing the establishment such requirement even when indirect co-perpetrators had not agreed to commit a certain crime under the Rome-Statute. In doing so, the ICC acknowledges de facto dolus eventualis which is not an acceptable form of mens rea according to Article 30 of the Rome Statute. This controversy regarding of the scope of indirect co-perpetration at the ICC can be a useful reference in finding the appropriate boundary of indirect co-perpetration in the Korean criminal law.
Until the Ntaganda judgement, the issue of whether an intra-party sexual crime against soldiers within the same force can be constituted as a war crime has not been addressed by an international criminal tribunal. The Trial Chamber in the Ntaganda case ruled that victim does not have to be with the opposing side for an intra-party sexual crime to be constituted as war crime of rape or sexual slavery. However, the Chamber did so without questioning the status of non-Hema women who were victims of rape or sexual slavery. This clarifies that the instance of Japanese Military’s Sexual Slavery before and during Wolrd War II(also known as ‘Comfort Women’) is to be considered as war crime of sexual slavery regardless of whether the victim was with the opposing side in the war.
The Rome Statute regulates the matter of amending charges or re-characterization of facts and circumstance according to the phase of a criminal proceeding, namely 1) before the commencement of a confirmation hearing, 2) in the phase of confirmation hearing, 3) before the commencement of a trial and 4) at any stage of the trial. According to Regulation 55 of the Regulations of the Court, the Trial Chamber may change the legal characterisation of facts, without exceeding the facts and circumstances described in the charges and any amendments to the charges. If it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility. Interestingly, at the ICC the Legal Representative for Victim can also apply the legal re-characterisation of facts.
Furthermore, the ICC acknowledges ‘no case to answer-decision’ in two variants, ie ‘no case to answer decision’ with effect of prohibition against double jeopardy and ‘no case answer decision’ with effect of mere termination of procedure. This ICC-regime regarding amending of DCC provides valuable insights when studyung domestic scheme of amending charges.
To date, the ICC has order reparations in four cases: Lubanga, Katanga, Al Mahdi, and Ntaganda. The Ntaganda Reparation Order is widely viewed as having expanded upon the existing reparation principles and having paved way for a more efficient and clear reparations proceedings. This study concentrates on the take-aways of the recent reparation order made in the Ntaganda case, and explores the criticisms and suggestions for improvements regarding reparations at the ICC in general. Finally, the study of reparations at the ICC could prove to be an invaluable point of reference in structuring future reparation or compensation schemes in Korea for victims of crimes of humanity committed by high-level state officials.