Jurisdiction of ICC

Jurisdiction of International Criminal Court (ICC).

Subject-Matter Jurisdiction.

Temporal Jurisdiction.

Personal Jurisdiction.

Jurisdiction Ratione Temporis.

Gaddafi Case. 

Jurisdiction of ICC

The jurisdiction of ICC according to Rome Statute is as below;

Subject-matter jurisdiction

 

Crimes within the jurisdiction of the Court

According to Article 5 of Rome Statute

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to   the   international   community   as   a   whole.   The   Court   has   jurisdiction   in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression.

Genocide
 

According to Article 6 of Rome Statute

For  the  purpose  of  this  Statute,  ‘genocide’  means  any  of  the  following  acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately  inflicting  on  the  group  conditions  of  life  calculated  to  bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

 
Crimes against humanity
 

According to Article 7 of Rome Statute

1. For  the  purpose  of  this  Statute,  ‘crime  against  humanity’  means  any  of  the following  acts  when  committed  as  part  of  a  widespread  or  systematic  attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture; 

(g) Rape,  sexual  slavery,  enforced  prostitution,  forced  pregnancy,  enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution  against  any  identifiable  group  or  collectivity  on  political, racial, national, ethnic, cultural, religious, gender;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other  inhumane  acts  of  a  similar  character  intentionally  causing  great suffering, or serious injury to body or to mental or physical health.

War crimes
 

According to Article 8 of Rome Statute 

1. The  Court  shall  have  jurisdiction  in  respect  of  war  crimes  in  particular  when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, ‘war crimes’ means:

(a) Grave  breaches  of  the  Geneva  Conventions  of  12  August  1949,  namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(i) Wilful killing;

(ii) Torture or inhuman treatment, including biological experiments;

(iii) Wilfully causing great suffering, or serious injury to body or health;

(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;

(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;

(vii) Unlawful deportation or transfer or unlawful confinement;

(viii)   Taking of hostages.

Territorial Jurisdiction

According to Article 12 of Rome Statute 

1. A State  which  becomes  a  Party  to  this  Statute  thereby  accepts  the  jurisdiction  of the Court with respect to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: 

(a) The State on the territory of which the conduct in question occurred or, if the  crime  was  committed  on  board  a  vessel  or  aircraft,  the  State  of registration of that vessel or aircraft; 

(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph  2,  that  State  may,  by  declaration  lodged  with  the  Registrar,  accept  the exercise  of  jurisdiction  by  the  Court  with  respect  to  the  crime  in  question.  The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

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. As with territorial jurisdiction, the personal jurisdiction can be expanded by the Security Council if it refers a situation to the Court.

Jurisdiction Ratione Temporis

According to Article 11 of Rome Statute 

1. The  Court  has  jurisdiction  only  with  respect  to  crimes  committed  after  the  entry into force of this Statute.

2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

Gaddafi Case

Facts

After the Tunisian and Egyptian revolutions in early 2011, protests in Libya began with the gathering of about 500 demonstrators in front of the police headquarters in Benghazi on 15 February 2011 due to the arrest of Fathi Terbil, a Libyan lawyer and human rights activist. Security forces broke up the protest. In the two following weeks, the Libyan Security Forces allegedly carried out an attack against the civilian population, killing, injuring and imprisoning hundreds of civilians, especially in Benghazi and Misrata. It is alleged that there had been a State policy, designed to restrain demonstrators from protesting, even by the use of lethal force.

Legal Procedure

On 26 February 2011, the United Nations Security Council adopted Resolution 1970 and hereby referred the situation in Libya to the Prosecutor of the International Criminal Court (ICC), who decided to open an investigation on 3 March 2011.

On 16 May 2011, the ICC Prosecutor requested the issuance of arrest warrants forMuammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi. Pre-Trial Chamber I of the ICC issued all three arrest warrants on 27 June 2011. Saif Al-Islam Gaddafi is suspected to be criminally responsible as an indirect co-perpetrator for murder and persecution as crimes against humanity, within the meaning of article 7(1) of the Rome Statute.

On 18 November 2011, Gaddafi was captured by rebel fighters as he was trying to flee Libya to Niger.

An ICC appeals chamber confirmed an earlier decision rejecting Libya’s bid to prosecute Gaddafi in the country.

In May 2013, the ICC pre-trial chamber I rejected the objection of inadmissibility regarding Al-Islam. The Court has reaffirmed its competence to judge Gaddafi’s son for crimes against humanity, arguing that current investigations by the national Libyan authorities were not covering the same facts and behaviours as those under the ICC’s mandate. Today, Libya has not made any steps towards the surrendering of Al-Islam to the Court.

In October 2013, the Court has nonetheless decided that Al-Senussi will be judged in Libya. It has indeed considered that the current investigations in front of the Libyan tribunals are in accordance with the principle of complementarity.

But the trial of Saif al-Islam Gaddafih sentenced to death in absentia, did not meet international standards and he should face murder charges at the International Criminal Court (ICC),

He was sentenced to death in July 2015 by a Tripoli court for war crimes, including killing protesters during the revolution. Zintani forces refused to hand him over, saying they did not trust Tripoli to guarantee he does not escape.

The U.N. report on the trial of 37 defendants including Saif cited serious violations of due process, such as prolonged incommunicado detention without access to families or lawyers, and allegations of torture that were not properly investigated.

The proceedings "fell short of international norms and standards for fair trial and also breached Libyan law in some respects", it said. No prosecution witnesses were called to testify in court, undermining the defendants' ability to challenge evidence.

Saif, former intelligence chief Abdullah al-Senussi and former Prime Minister Al-Baghdadi a-Mahmoudi were among nine defendants sentenced to death by firing squad.

"The Libyan Government has been unable to secure the arrest and surrender of (Gaddafi), who remains in Zintan and is considered to be outside the control of the internationally-recognized Libyan authorities,

Libya's Court of Cassation is to review the procedures in the case but not the facts and evidence. "As such the review does not constitute a full appeal as required by international standards,

It called on Libyan authorities to ensure the surrender of Saif to the Hague-based ICC, "in compliance with Libya’s international obligations". The ICC does not allow the death penalty.