UN Ad Hoc Tribunals

PRINCIPLE OF IUDICIS EST IUS DICERE SED NON DARE

● It is the judge’s role to state the law, not to give it

Ad hoc tribunals vs. ICC

Ad hoc ICC

● Deal with specific situations only
● have a limited mandate and jurisdiction.
● Temporary
E.g. Ad hoc tribunals for Yugoslavia and Rwanda
● The ICC is a permanent and autonomous
court.
● It investigates and, where warranted, tries
individuals charged with the gravest
crimes of concern to the international
community: genocide, war crimes, crimes
against humanity and the crime of
aggression

● It was the Nuremberg TRials after WWII

that marked the beginning of ad hoc
tribunals.

Key features of the ICC

● Fair trials
● An independent prosecution
● Upholding of defendants’ rights
● Victims' voices being heard
● Participation of victims and protection of witnesses
● Creation of two-way dialogue through outreach

Principle of complementarity
● The principle of complementarity provides that a case is inadmissible before the International
Criminal Court (ICC) if it is currently under investigation by a state with jurisdiction over it.
○ The concept of complementarity, however, allows for ICC jurisdiction in situations when
the state is unable or unwilling to proceed with an investigation or where the state
investigation is conducted in bad faith such as when it is used to shield the person
from criminal responsibility.

Principle of nullum crimen sine lege

● No Crime Without Law
● A person cannot or should not face criminal punishment except for an act that was criminalized
by law before he/she performed the act.

4 core crimes in the ICC

1) Genocide - focuses on collectiveness of the perpetration of the crime (vs. crimes against
humanity)
2) Crimes against humanity - attacks on civilian population
3) War crimes - e.g. use of child soldiers, and detention of prisoners of war?
4) Crimes of aggression (wala pa ito during the Nuremberg Trials) - use of armed force of a
sovereign against another sovereign
Organizational chart of the ICC
1) Presidency - administrative matters
a) Registry - provides the administrative support to all the organs
2) Chambers - appeals, trial, and pre-trial divisions
a) Pre-trial division - important role of determining/confirming the charges
b) Trial division - conviction/acquittal and other penalties
c) Appeals division -
i) Appeal either by: Prosecutor or the convicted person
3) Office of the Prosecutor (OTP) - receives “information/accusations”
a) Conducts investigation
b) Prosecutes

● Trust Fund for Victims - 2 mandates:

a) Implementation of reparations
b) Giving psychological assistance or other assistance to victims and their families

Procedure in the ICC

Duterte Administration’s war on drugs

● 2018 - Ph withdrew from ICC
● But, ICC may still conduct an investigation until 2019 covering the period between Nov. 1, 2011
and March 16, 2019.
● November 2021 - ICC temporarily suspended the investigation due to a deferral request from the
Ph
UN Ad Hoc Tribunals
● Judicial interventions - Chapter 7 UN Charter
○ Art. 39, 41, 42 -

Primary ad hoc tribunals

a) ICTY
● Historical background
○ Former Yugoslavia - aka The Socialist Federal Republic of Yugoslavia
○ Violent conflicts at the end of the Cold War
○ Invasions and military actions pave the way for grave humanitarian abuses
○ ICTY was created - jurisdiction over violations of IHL committed in the Yugoslavia from
1991 onwards
● Slobodan Praljak - he lost his appeal in ICTY, thereafter, he drank poison in open court.

b) ICTR
● Conflicts were brought by tensions between groups of Tutsis (minority) and Hutus (majority)
● To prosecute persons guilty of crimes against humanity and genocide in Rwanda
○ First conviction: Prosecutor vs. Akayesu (1998)

c) IRMCT - International Residual Mechanism for Criminal Tribunals

● Mandated to perform/continue the functions of ICTR and ICTY.

Other ad hoc tribunals

a) Extraordinary Chambers in courts of Cambodia (ECCC) aka Khmer Rouge Tribunal - for senior
positions | “most responsible” although not in senior positions
i) How about those who merely obeyed orders?
b) Special Court for Sierra Leone (SCSL) - war rape, mutilation, and mass murder
c) Serious Crimes Investigation Unit - East Timor
● What did ad hoc tribunals contribute to the ICL?
○ Definition of terrorism
○ Address the atrocities and were set up to PREVENT such atrocities
○ Helped shape the elements of genocide - Genocide vs. Crimes against Humanity -
additional for report

GROUP 2 - General Principles of ICL and Modes of incurring liability in ICL

A. General Principles

● Methods of interpretation of ICL

a) Art. 31(1) - ordinary meaning should be given to the terms of the treaty in their context,
in light of their object and purpose.
i) In good faith
b) Like cases are treated alike
c) Declarations/ advisory opinions are not given in advance
d) In dubio pro reo - version that is more favorable to the defendant
e) Policy considerations
f) Ejusdem generis
g) Lex specialis derogat generali
h) Expressio unius
i) Mandatory construction

1) Principle of jeopardy - Ne bis in Idem (Art. 10)

a) Prohibits person from being tried twice for the same conduct
b) Apply only to courts within the same legal system.
c) Does not automatically apply to all states
d) Tadic case - The accused had not been subject to a judgment in Germany on the merits
of the indictment, thus, there can be no double jeopardy.
e) Bemba case - Art. 20 must be read together with Art. 17 on Complementarity, which
precludes the ICC from hearing a case if it is being investigated or prosecuted by a willing
and able state.

2) Principle of Legality - Nullum crimen sine lege

a) Existence of a crime depends on the legislation that states that the particular act is an
offense, and for a specific penalty.
b) Countries tend to apply this principle
c) 4 basic notions:
i) Nullum crimen sine lege scripta -
ii) Nullum crimen sine proevia lege - must be provided for in a prior law
iii) Nullum crimen sine lege stricta - specificity - rules criminalizing acts should be
specific and clear
iv) Resort to analogy is prohibited - related to specificity - states that definition of the
crime should be strictly construed and may not be applied by analogy.
(1) Rationale: resorting to application by analogy would unduly extend the
scope of criminal provisions.
d) In relation to customary international law
i) Vast number of national jurisdictions
 ii) Treaty provision
e) Application to treaties - principle of legality is already applicable when
i) Treaty-bound
ii) Individual criminal responsibility

Modes of Incurring liability in ICL

● Individual criminal responsibility (Art. 25(3) Rome Statute)

○ Enumerated per level of perpetration

● Joint criminal enterprise

○ ICR can arise when several individuals with a common purpose embark on a criminal
liability that is carried out either jointly or by some members.
○ Anyone who contributes to the criminal activity in order to carry out a common criminal
purpose may be held criminally liable.

3 categories of JCE
1) JCE I - Basic - all possess the same criminal intent
a) Mens rea - accused and other participants must have intended to perpetrate the crime
(criminal INTENT)
b) Actus reus - criminal ACT - done by plurality of persons | common plan
2) JCE II - Systematic - there is an organized system of ill-treatment or commission of crimes
a) Actus reus - done by plurality of persons | common plan
b) Mens rea - personal knowledge of the system
3) JCE III - Extended - several persons that commits a crime that may be outside of their
common purpose (hence, extension of the original or main criminal purpose)
a) Actus reus - done by plurality of persons | common plan
b) Mens rea - accused intended to perpetrate the crime within the common purpose.

Perpetration

4 types:
a) Direct
b) Co-perpetration - Elements:
i) Objective - common plan | essential contribution from each member
ii) Subjective - awareness - essentially mental state

c) Indirect - there is hierarchical power relations

i) Indirect perpetrator is the MASTERMIND
ii) Direct perpetrators - those who ACTUALLY commit it upon direction/command of the
mastermind

d) Indirect co-perpetration -
i) Indirect co-perpetrator - does not necessarily have direct control over the direct perps,
but he acts jointly with another person – the mastermind

Instigation
1) Ordering
 2) Instigating
a) Under ICC - order | solicit | induce

Aiding and abetting

● Falls short of instigation, but is any other means of contributions in the activities
● He is not required to share the intent of perpetrator
● Difference in actus reus and mens rea in ICC, ICTY, and ICTR

Incitement to Genocide

1. Inciting publicly - to members of the general public at large

2. Inciting directly - directly urging a person to commit it

Incitement to genocide vs. instigation genocide

Instigation - directed to public in general

Incitement -

Instigation, aiding and abetting - actually doing something

Incitement - no need to actually do the crime

Attempt and abandonment -

Crimes of aggression
- Only committed by persons who have effective control to direct political or military action.

Omission
- Crime by not doing anything
- You have the duty to act | ability to act | but failed to act | as a result thereof, a crime was
committed

Command responsibility
● 3-prong test (Art. 28, Rome Statute)
1) Existence of superior-subordinate relationship
a) Determine status of superior
b) Identify the principal crime
c) Assess status of subordinate and relation to the principal crime
d) Tie the link between the superior, subordinate, and principal crime → causality test
2) Subjective element (mens rea) - strictly military commanders - member of armed forces
a) Actual knowledge
b) Reason to know
3) Superior’s failure to prevent or punish crimes

Quantum of proof - PBRD

CRIMES AGAINST HUMANITY

● There is no clear context where it was first developed.

○ But scholars say that it is in the context of slavery
● Evolved under ICL
○ First charged in the Nuremberg trials
○