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Heller, Kevin (2012)
Languages: English
Types: Article
Subjects: 4000
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    • 2. Rome Statute of the International Criminal Court art. 17, Jul. 17, 1998, U.N. Doc. A/CONF.183/ 9 [hereinafter Rome Statute].
    • 3. See Fre´de´ric Me´gret, Too Much of a Good Thing? ICC Implementation and the Uses of Complementarity, in The International Criminal Court and Complementarity 363, 372 (Carsten Stahn & Mohamed El Zeidy eds., 2011) (discussing the “'mirror' theory of implementation”).
    • 4. A heuristic is an experience-based technique-a “rule of thumb”-for solving a particular problem. See, e.g., John M.C. Hutchinson & Gerd Gigerenzer, Simple Heuristics and Rules of Thumb: Where Psychologists and Behavioral Biologists Might Meet, 69 Behav. Processes 97, 98 (2005).
    • 21. Terracino, supra note 17, at 436.
    • 22. The ejusdem generis canon-which translates from Latin as “of the same kind”-holds that when a list of examples is not exclusive, additional examples must be similar to the enumerated ones. Gabriel Hallevy, A Modern Treatise on the Principle of Legality in Criminal Law 156 (2010).
    • 23. Rome Statute, supra note 2.
    • 24. See Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity, 7 Max Planck Y.B. U.N. L. 591, 617 (2003) (arguing that “[c]ases where a state is declared unable because its national legislation differs from the substantive provisions of the Rome Statute should . . . be limited to situations where it . . . does not penalise a conduct proscribed under the Statute at all”). But cf. Kleffner, Impact, supra note 5, at 89 (arguing that “inability may result from the absence or inadequacies of substantive legislation”).
    • 25. The expression refers to the fact that, in such situations, the ne bis in idem bar flows “upward” from the state to the ICC.
    • 26. Rome Statute, art. 20(3)(a) (“No person who has been tried by another court for conduct also proscribed under article 6, 7, or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court . . . were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court.”). Articles 6, 7, and 8 concern genocide, crimes against humanity, and war crimes, respectively.
    • 27. See William A. Schabas, An Introduction to the International Criminal Court 70 (2001).
    • 28. Rome Statute, supra note 2, art. 20 (“No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.”).
    • 29. The expression refers to the fact that, in such situations, the ne bis in idem bar flows “downward” from the ICC to the state.
    • 30. Rome Statute, supra note 2, art. 20(3).
    • 31. U.N. Secretary-General, Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for the Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, art. 10, U.N. Doc. S/25704 (May 3, 1993); U.N. S.C. Res. 955, art. 9, U.N. SCOR, 49th Year, U.N. Doc. S/RES/955 (Nov. 8, 1994).
    • 32. French for “preparatory works.”
    • 33. John T. Holmes, Complementarity: National Courts versus the ICC, in 1 The Rome Statute of the International Criminal Court: A Commentary 667, 675 (Antonio Cassese et al. eds., 2002) [hereinafter Complementarity] (“the underlying premise of the complementarity regime was to ensure that the Court did not interfere with national investigations or prosecutions except in the most obvious cases.”).
    • 34. John T. Holmes, The Principle of Complementarity, in The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results 41, 50 (Roy S. Lee ed., 1999) [hereinafter Principle].
    • 35. Rome Statute, supra note 2, art. 17(3).
    • 36. See Sharon A. Williams & William A. Schabas, Article 17 Issues of Admissibility, in Commentary on the Rome Statute of the International Criminal Court: Observers' Notes 605, 623 (Otto Triffterer ed., 2d. ed. 2008).
    • 43. Id.
    • 44. Rome Statute, supra note 2, art. 17(1)(a).
    • 45. Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, Case No. ICC-01/09-02/11 OA, Judgment on Defence Appeal Challenging Admissibility of Case, ¶ 39 (Aug. 30, 2011), available at http://www.icc-cpi.int/iccdocs/doc/doc1223134.pdf.
    • 46. Williams & Schabas, supra note 36, at 624 (noting that, during the drafting of Article 17, Arbour claimed that the Court would never find a rich country unable to genuinely prosecute a crime).
    • 47. Czechoslovakia, France, and Lithuania. See Coalition for the International Criminal Court, Chart on the Status of Ratification and Implementation of the Rome Statute and the Agreement on Privileges and Immunities 11-21 (2010), available at http://www.coalitionfor theicc.org/documents/Global_Ratificationimplementation_chartApr2010_(3).pdf.
    • 48. Id. at 14 (noting that Parliament rejected a draft package of amendments submitted by the Ministry of Justice).
    • 49. Id. at 15 (noting that a draft of incorporation legislation has been languishing in Parliament since 2003).
    • 50. Id. at 4-5.
    • 51. Id. at 6.
    • 52. Id. at 30.
    • 53. Coalition for the International Criminal Court, Chart on the Status of Ratification and Implementation of the Rome Statute and the Agreement on Privileges and Immunities 31 (2010), available at http://www.coalitionfortheicc.org/documents/Global_Ratification implementation_chartApr2010_(3).pdf.
    • 54. Id. at 31-32.
    • 55. Id. at 35.
    • 56. See id. at 30.
    • 57. See id. at 6.
    • 58. Id. at 3.
    • 59. Coalition for the International Criminal Court, Chart on the Status of Ratification and Implementation of the Rome Statute and the Agreement on Privileges and Immunities 5-6 (2010), available at http://www.coalitionfortheicc.org/documents/Global_Ratification implementation_chartApr2010_(3).pdf.
    • 60. Id. at 7.
    • 61. Jolyon Ford, Kenya, in Unable or Unwilling? Case Studies on Domestic Implementation of the ICC Statute in Selected African Countries 57, 68 (Max du Plessis & Jolyon Ford eds., 2008).
    • 62. Lee Stone, Botswana, in Unable or Unwilling? Case Studies on Domestic Implementation of the ICC Statute in Selected African Countries, supra note 61, at 24.
    • 67. Kleffner, Impact, supra note 5, at 98.
    • 68. Morten Bergsmo et al., Complementarity After Kampala: Capacity Building and the ICC's Legal Tools, 2 Goettingen J. Int'l L. 791, 801 (2010).
    • 69. Informal Expert Paper, supra note 1, at 5.
    • 70. Bergsmo et al., supra note 68, at 798 (quoting International Criminal Court, ICC Review Conference, Appendix ¶ 16, ICC-ASP/8/Res. 9, at 16 (Mar. 25 2010)).
    • 71. William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int'l L. J. 53, 54 (2008).
    • 81. See Michael A. Newton, The Quest for Constructive Complementarity, in Stahn & El Zeidy, supra note 3, at 304, 320, 328-29.
    • 82. This criticism also applies, of course, to the hard mirror thesis. Because the HMT's primary weakness is its absence of support in the text and history of the Rome Statute, however, I discuss a states' lack of capacity to prosecute international crimes as international crimes here.
    • 83. See generally Open Society Justice Initiative, Promoting Complementarity in Practice-Lessons from Three ICC Situation Countries 2 (2010) [hereinafter OSJI].
    • 84. Antonio Cassese, International Criminal Law 54 (2d ed. 2008).
    • 85. See, e.g., Rome Statute, supra note 2, art. 8(2)(b) (listing war crimes in international armed conflict).
    • 86. Id., art. 7(1), (2)(a).
    • 96. See Prosecutor v. Omar Hassam Ahmad Al Bashir, Case No. ICC-02/05-01/09, Warrant of Arrest, ¶¶ 209-23 (Mar. 4, 2009).
    • 97. An individual who cannot be convicted of the crime, whether because of age, incapacity, duress, or the like. See Florian Jessberger & Julia Geneuss, On the Application of a Theory of Indirect Perpetration in Al Bashir: German Doctrine at the Hague?, 6 J. Int'l Crim. Just. 853, 857 (2008).
    • 98. See id. at 854.
    • 99. See, e.g., Kevin Jon Heller, The Rome Statute of the International Criminal Court, in The Handbook of Comparative Criminal Law 593, 607 (Kevin Jon Heller & Markus D. Dubber eds., 2011).
    • 100. See, e.g., Robert Cryer et al., An Introduction to International Criminal Law and Procedure 320 (2007).
    • 101. Morton Bergsmo & William H. Wiley, Human Rights Professionals and the Criminal Investigation and Prosecution of Core International Crimes, in Manual on Human Rights Monitoring: An Introduction for Human Rights Field Officers 1, 7 (Siri Ska˚re et al. eds., 2008).
    • 102. See, e.g., Gerhard Werle, Principles of International Criminal Law 296-97 (2005).
    • 103. See, e.g., Elements of Crimes, supra note 87, art. 6(a)(4) (requiring the genocidal conduct to have taken place “in the context of a manifest pattern of similar conduct directed against that group”).
    • 104. See, e.g., Andreas Paulus & Mindia Vashakmadze, Asymmetrical War and the Notion of Armed Conflict-A Tentative Conceptualization, 91 Int'l Rev. Red Cross 95, 102-08 (2009) (discussing requirements).
    • 105. Hassan B. Jallow, Challenges of Investigating and Prosecuting International Crimes, in From Human Rights to International Criminal Law 437, 451 (Emmanuel Decaux et al. eds., 2007).
    • 106. Bergsmo & Wiley, supra note 101, at 10.
    • 107. See, e.g., Henry Shue & David Wippman, Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions, 35 Cornell Int'l L.J. 559, 562 (2001-2002).
    • 108. Rome Statute, supra note 2, art. 28(b)(i).
    • 109. See, e.g., Werle, supra note 102, at 108-10.
    • 110. See, e.g., Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law 242-49 (2011).
    • 111. See id.; Katrina Gustafson, R v. Finta, in The Oxford Companion to International Criminal Justice 673, 675 (Antonio Cassese ed., 2009). It took the Supreme Court another decade to correct itself.
    • 112. See, e.g., Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 259 (2d Cir. 2009). These courts have addressed ICL in the context of Alien Tort Claims Act litigation, but not in criminal cases. The aiding-and-abetting standard would also apply, however, in a criminal case involving an international crime.
    • 113. OSJI, supra note 83, at 1; see also Marieke Wierda, International Center for Transitional Justice, Stocktaking: Complementarity 4 (May 2010) (noting that “[s]ome domestic legal systems may be willing to try Rome Statute crimes but may simply lack experience in trying such complex crimes”).
    • 114. OSJI, supra note 83, at 5.
    • 158. See, e.g., Broomhall, Checklist, supra note 72, at 153; Informal Expert Paper, supra note 1, at 31; Benzing, supra note 24, at 617; Kleffner, Impact, supra note 5, at 97.
    • 159. See Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgment and Sentence (15 May 2003), ¶ 564.
    • 160. Drumbl, supra note 119, at 56.
    • 161. Prosecutor v. Semanza, supra note 159, at ¶ 564.
    • 162. Burke-White, supra note 71, at 57.
    • 163. In Erdemovic´, for example, Judges McDonald and Vohrah argued that crimes against humanity were more serious than war crimes, see Prosecutor v. Erdemovic´, IT-96-22-Tbis, Joint Separate Opinion of Judges McDonald and Vohrah, ¶ 24 (7 Oct. 1997), while Judge Li took precisely the opposite position, see Prosecutor v. Erdemovic´, IT-96-22-Tbis, Separate and Dissenting Opinion of Judge Li, ¶ 22 (7 Oct. 1997). See Allison Marston Danner, Constructing a Hierarchy of Crimes in International Criminal Law Sentencing, 87 Va. L. Rev. 415, 467-70 (2001) (discussing debates at the ICTY).
    • 175. A study of sentencing practice in twenty-two states found that most states do not require lesser sentences for accessories. Thirteen of the twenty-two states (sixty percent) permitted accessories and principals to be punished equally, and a number of the others-such as Chile and Spain-punished accessories nearly as severely as principals. See Ulrich Sieber, I The Punishment of Serious Crimes: A Comparative Analysis of Sentencing Law and Practice 81 (2004).
    • 176. Benzing, supra note 24, at 616; cf. Robinson, Rome Statute, supra note 73, at 1865 (“If the defences available under national law are dramatically broader than those available under the Rome Statute, then it is conceivable that a State could find itself unable to secure a conviction of a person who would clearly be liable under the Rome Statute.”).
    • 177. See, e.g., Thomas Weigend, Germany, in Heller & Dubber, supra note 99, at 272 (discussing the German approach to mistake).
    • 178. See Rome Statute, supra note 2, art. 32 (recognizing a mistake only when it “negates the mental element required . . . by a crime”).
    • 179. See John O. Haley, Japan, in Heller & Dubber, supra note 99, at 405.
    • 180. Rule 145(2)(a) of the Rules of Evidence and Procedure entitles the Court to take into account mitigating factors such as “circumstances falling short of constituting grounds for exclusion of criminal responsibility.” Rules of Evidence and Procedure, ICC-ASP/1/3 (3 Sept. 2002). Article 32's insistence on limiting mistakes of law to those that negate mens rea makes it unlikely, however, that the Court will recognize other mistakes as mitigating.
    • 181. See Kleffner, Impact, supra note 5, at 103 (noting, with regard to defenses, that “States can reasonably be expected to bring their laws into conformity with the decisions of the ICC in order to avoid cases being declared admissible in future.”). 2.
    • 185. Harmon & Gaynor, supra note 157, at 684.
    • 186. Drumbl, supra note 119, at 56.
    • 187. James Meernik & Kimi King, The Sentencing Determinants of the International Criminal Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis, 16 Leiden J. Int'l L. 717, 735 (2003).
    • 188. See Erdemovic´ Case Information Sheet, available at www.icty.org/case/erdemovic/.
    • 189. See Kvocˇka Case Information Sheet, available at www.icty.org/case/kvocka/.
    • 190. Robert Sloane, The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law, 43 Stan. J. Int'l L. 39, 69 (2007). Joseph Serugendo received a six-year sentence after pleading guilty to direct and public incitement to genocide and persecution as a crime against humanity. See Prosecutor v. Joseph Serugendo, Case No. ICTR-2005- 84-I, Judgment and Sentence, 12 June 2006, at 19. Elizaphan Ntakirutimana received a ten-year sentence after being convicted for aiding and abetting genocide. See Prosecutor v. Ntakirutimana, Case No. ICTR-96-17-A, Appeals Judgment, 13 Dec. 2004, ¶ 579.
    • 191. Harmon & Gaynor, supra note 157, at 685.
    • 192. Drumbl, supra note 119, at 56.
    • 193. Harmon & Gaynor, supra note 157, at 685.
    • 194. Prosecutor v. Semanza, supra note 159, at 36.
    • 195. See, e.g., Prosecutor v. de Deus, Case No. 2a-2004, Judgment, 12 Apr. 2005, at 15 (imposing a two-year sentence for murder as a crime against humanity); Prosecutor v. Aghostinho Cab, Case No. 4- 2003, Judgment, 16 Nov. 2004, ¶ 25 (imposing a four-year sentence for murder as a crime against humanity and the crime against humanity of other inhumane acts).
    • 196. Drumbl, supra note 119, at 58.
    • 197. Id.
    • 198. See Sieber, supra note 175.
    • 199. Argentina, Austria, Belgium, Brazil, Canada, Chile, China, England, Finland, France, Germany, Greece, Italy, Ivory Coast, Mexico, Poland, Russia, South Africa, Spain, Sweden, Turkey, and the United States.
    • 200. States would not always charge the same ordinary crimes. Torture, for example, would be charged as “moral mistreatment” in Poland, and as “abuse of authority with the use of violence” in Russia. See Ulrich Sieber, II The Punishment of Serious Crimes: A Comparative Analysis of Sentencing Law and Practice 9 (2004). The specific crime, however, is less important than the maximum punishment that crime could entail. Indeed, the point of the sentence-based complementarity heuristic is to de-emphasize the nature of the charged crime in favor of an emphasis on sentence. 25 years
    • 222. Prosecutor v. Dragan Nikolic´, Sentencing Judgment, Case No. IT-94-2-S, ¶ 172 (18 Dec. 2003).
    • 223. Argentina, Canada, England, Finland, Germany, Greece, South Africa, Turkey, the United States, Belgium (20 years) and Italy (21 years) imposed a term of years instead. Sieber, supra note 175, at 94.
    • 224. See, e.g., Richard H. Speier et al., Nonproliferation Sanctions 55 (2001).
    • 225. Cf. Nancy Amoury Combs, Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach 41 (2007) (noting that “[d]omestic prosecutions can reduce trial time by charging domestic crimes, such as murder, in lieu of international crimes”).
    • 226. See Yves Beigbeder, International Justice Against Impunity: Progress and New Challenges 82 (2005).
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