the rome statute of the international criminal court

7/24/2019 The Rome Statute of the International Criminal Court

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The Rome Statute of the International Criminal Court (the Rome Statute or the Statute)entered into force on 1 July 2002, with the satisfaction of Article 12 of the Statute!1

"# until 2$ Se#tem%er 200$, 1&' States hae sined the Statute and '* States hae%ecome the +arties! "nder such circumstances, China, as one of the #ermanent mem%ers ofthe Security Council of the "nited ations and a non-#arty State #layin a reat role ininternational a.airs, needs to ac/uire a %etter understandin and also maes a detailed

study on the Statute! ne of the most uni/ue characters of the International Criminal Court(the ICC or the Court)as re3ected in the #rinci#le of com#lentaritywill %e discussed andanalysed in the followin essay!

+reious Sectione4t Section

I. The meaning and the roles of the principle of complementarity

+arara#h 10 of the #ream%le of the Rome Statute em#hasi5es that 67 the InternationalCriminal Court esta%lished under this Statute shall %e com#lementary to national criminal8urisdictions9: and Article 1 of the Rome Statue #roides 6An International Criminal Court ishere%y esta%lished! It shall %e a #ermanent institution and shall hae the #ower to e4erciseits 8urisdiction oer #ersons for the most serious crimes of international concern, as referredto in this Statute, and shall %e com#lementary to national criminal 8urisdictions! The

8urisdiction and functionin of the Court shall %e oerned %y the #roisions of this Statute9!As the ICC was esta%lished throuh an international treatythe Rome Statuteand most ofthe countries in the world inoled in its draftin, the Court, on the one hand, has8urisdiction oer the core crimes of international concern and, on the other, its #ower islimited %y com#lementarity, i!e! the national 8urisdiction comes ;rst and ICCoweer, no such con3icts would occur in the case ofthe International Criminal Tri%unal for the ?ormer @uoslaia (ICT@) and the InternationalCriminal Tri%unal for Rwanda (ICTR), as the esta%lishment of the two Tri%unals is a measuretaen %y the Security Council of the "! The Statutes of the two Tri%unals #roide that 6theInternational Tri%unal shall hae #rimacy oer national courts9!hereas the #rinci#le ofcom#lementary #roided in the Rome Statute means that national courts hae the #riority toe4ercise 8urisdiction oer the crimes #rohi%ited in the Statute, i!e! the ICC cannot e4ercise its8urisdiction oer the crimes unless the State concerned is una%le or unwillin to inestiateor #rosecute the crimes!*

There are four scenarios in accordance with Article 1*(1) in which the ICC cannot admit acaseB (a) the case is %ein inestiated or #rosecuted %y a State which has 8urisdiction oerit: (%) the case has %een inestiated %y a State which has 8urisdiction oer it and the Statehas decided not to #rosecute the #erson concerned (in these two cases, the ICC has to#reclude the #ossi%ility that the State is unwillin or una%le enuinely to carry out theinestiation or #rosecution %efore it can admit the case): (c) the #erson concerned hasalready %een tried for conduct which is the su%8ect of the com#laint (the #rinci#le of ne bisin idem): and (d) the case is not of sucient raity to 8ustify further action %y the Court!Thus, the ey consideration for the Court to admit a case is whether a State is una%le or
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unwillin to inestiate or #rosecute a case! The criteria for ina%ility are clearly #roided inArticle 1*(&) in a more o%8ectie wayBIn order to determine ina%ility in a #articular case, theCourt shall consider whether, due to a total or su%stantial colla#se or unaaila%ility of itsnational 8udicial system, the State is una%le to o%tain the accused or the necessary eidenceand testimony or otherwise una%le to carry out its #roceedins!The situation of ina%ility doesnot only refer to the situation of national armed con3icts runnin for years or natural

disasters causin the total or su%stantial colla#se of its national 8udicial system, e!! thechaos and war on the territory of the former @uoslaia and of Rwanda durin the 1''0s, %utalso to that in which the national 8udicial systems hae totally or su%stantially colla#sed orare unaaila%le so that States are una%le to carry out criminal #roceedins! The ina%ility inthe latter case may refer to the lac of su%stantie law or the e4istin leislation that doesnot meet the standards of the reconi5ed international human rihts!There are three ty#es of unwillinness mentioned in Article 1*! The ;rst is that the#roceedins were or are %ein undertaen or the national decision was made for the#ur#ose of shieldin the #erson concerned from criminal res#onsi%ility for crimes within the8urisdiction of the Court! hen determinin whether a State is unwillin, the ICC will mainlymae a 8udment on the intention of a State %ehind its trial #rocedure or decision-main!The second is that 6there has %een an un8usti;ed delay in the #roceedins which in thecircumstances is inconsistent with an intent to %rin the #erson concerned to 8ustice9!>oweer, the Statute does not ie a de;nition on what an un8usti;ed delay is %ut leaes itto the ICC to mae a decision! The third is that 6the #roceedins were not or are not %einconducted inde#endently or im#artially, and they were or are %ein conducted in a mannerwhich, in the circumstances, is inconsistent with an intent to %rin the #erson concerned to8ustice9! This is %ecause the Rome Statute re/uires all the States concerned, includin non-#arty States, to follow the human rihts standards and #roceedins #roided in the Statute,includin the #resum#tion of innocent, non-retroactiity ratione personae, ne bis in idem,the rihts to hae #u%lic hearins, choose lawyers at the accused


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res#onsi%ility to #rosecute international crimes, then it has to ensure that its law includesthese crimes and that its courts hae 8urisdiction to deal oer them!'


II. Complementarity requires the amendment of national legislation

Defore the ado#tion and entry into force of the Rome Statute, a num%er of crimes and leal

#rinci#les that were em%odied in the Statute had %een reconi5ed under international law,international treaties, conentions and customary law! ?or e4am#le, the crime of enocide is#rohi%ited in Article = of the 1'$G Eenocide Conention! ar crimes are #rohi%ited inArticles $' =0 12'1$ of the ?our 1'$' Eenea Conentions and Articles G=-G* of the1'** ?irst Additional +rotocol to the Eenea Conentions, and some of the crimes ascom#onents in crime aainst humanity are #rohi%ited in Article $ of the 1'*& A#artheidConention and Article of the 1'G$ " Torture Conention! Therefore, for these crimes,accordin to the #rinci#le ofpacta sunt servanda, all State #arties to the treaties mentioneda%oe, no matter whether they are +arties to the Rome Statute or not, are clearly ofo%liation to ado#t necessary and corres#ondin national leislations in conformity withthese treaties!As for the rest of the crimes, #rinci#les and 8urisdictional reimes which are not included inthe #reious international treaties %ut included in the Statute, States also hae o%liation to

ado#t necessary and corres#ondin leislations under the #rinci#le of com#lementarity!

Theoretically s#eain, the thrust of the #rinci#le of com#lementarity also demands Statesto #unish the crimes listed in the Rome Statute %y ado#tin the same su%stantie law of theStatute! +arara#h $ of the Statuteou Din, which means 6courtesy ;rst and #enalty second9! If there is an alleationthat the crimes listed in the Statute ha##en, the ICC shall let the States which hae the8urisdiction oer the crimes address the issue ;rst %y #rosecutin and #unishin those whoare res#onsi%le for the crimes! Dy doin so, the ICC #ut national 8udicial soereinty at the;rst #lace so as to encourae the States to e4ercise their national criminal 8urisdiction!>oweer if the States concerned fail to do so or are una%le or unwillin to do so, the ICC hasthe riht to e4ercise its own 8urisdiction oer the crime in accordance with the #rinci#le ofcom#lementarity, actin aainst the will of the States! Therefore, the #rinci#le of
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com#lementarity only res#ects the 8udicial soereinty of the willin and a%le States! At thesame time, wheneer the ICC e4ercises its 8urisdiction, it im#lies a declaration ofunwillinness and ina%ility of the States with the 8urisdiction oer the crimes!

The #recondition for a State to e4ercise her national criminal 8urisdiction is to reconi5e thatthe crimes listed in the Rome Statute are crimes also #unisha%le under her nationalleislation! If a State refuses to ado#t national law %y followin the su%stantial law of the

Statue and fails to #unish the alleed o.enders, the #ur#ose and aims of the ICC will %edefeated and the #enalty side of the #rinci#le of com#lementarity will %e a##lica%le to theState concerned! If a State %eliees that the result of a##lyin the su%stantie law of theRome Statute is the same as that of a##lyin the domestic law, this is a ery unsafe andmisleadin conce#tion!

In order to aoid es#ecially %ein %lamed with 6ina%ility9 or 6unwillinness9 and to meet there/uirement of the #rinci#le of com#lementarity, a State is of the o%liation to amend %othits national su%stantie law and #rocedure law!

As for the im#lementation of the su%stantie law, there are mainly three ways in the recentStates< #racticesB

(1) raftin a new leislation, which is the safest and easiest way!

(2) Chanin its e4istin criminal law %y ado#tin the de;nitions of the crimes in the

Statute!

(&) A##lyin the domestic law in #rosecutin international crimes as ordinary

o.ences!

It is su%mitted that, theoretically s#eain, the standard to determine whether a State isunwillin is mainly 8uded from its su%8ectie consciousness! Thus, if a State #rosecutes a#erson who committed crimes #rohi%ited %y the Statute under ordinary domestic o.ences,and durin the trial, the #rocedure is undertaen inde#endently and fairly, without anyunduly delay nor any su%8ectie #ur#ose of shieldin the #erson concerned from criminalres#onsi%ility for crimes within the 8urisdiction of the Court referred to in Article =, the ICCcould not made a decision sayin that such a State is unwillin to inestiate or #rosecute!

>oweer, in considerin to meet the standards of com#lementarity, such an a##roach ismore risy than the ;rst two in the sense of the #ossi%ility of %ein named as a State ofina%ility or unwillinness, since the derees of condemnation and raity %etweeninternational crimes and ordinary crimes in domestic law are totally di.erent!

As to #rocedure law, Article 1*(2)(c) #roides 6The #roceedins were not or are not %einconducted inde#endently or im#artially, and they were or are %ein conducted in a mannerwhich, in the circumstance, is inconsistent with an intent to %rin the #erson concerned to8ustice9! The ICC will decide whether the situation of unwillinness e4ists 6hain reard tothe #rinci#les of due #rocess reconi5ed %y international law9!

The term 6due #rocess9, with its s#ecial meanin in common law, has to %e that reconi5ed%y international law, i!e! the #rocedure that is only in conformity with national #rocedural lawcannot %e rearded as a due #rocess, and it is the ICC that will determine whether a State


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It is necessary to loo at the decision made %y the Seneal Court of A##eal in aar/uashin the indictment aainst >issene >a%re ;rst, #rior to the e4amination on thedomestic law of China! In the case, the court #ronounced that 6The su%8ect matter of thiscase is criminal 8ustice, which is %uilt on two %asic sets of rulesB ;rstly, su%stantie ruleswhich de;ne crimes and ;4 their #enalties and secondly, #rocedural rules which determine8urisdiction, the institution of #roceedins and the functionin of courts9, and that

6Senealese law does not at #resent contain any #roision for the #unishment of crimesaainst humanity, #ursuant to the #rinci#le enshrined in Article $ of the Criminal Code thatcrimes and #unishments must %e laid down %y law: the Senealese courts hae no8urisdiction oer the acts at issue9!11

A Chinese court will face e4actly the same situation as the Senealese Court, withoutamendin her domestic laws, when a case related to chares of international crimes is%rouht to its attention! Article ' of the Criminal Faw of the +eo#le


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and of ordinary crimes in China


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law to inestiate and #rosecute incum%ent senior oernment ocials in its national lealsystem, the ICC would not e4ercise its 8urisdiction oer a case concerned! If a State selectsto do the o##osite %ased on immunity, the releant case would %e admitted %efore the ICCfor the reason of ina%ility or unwillinness to inestiate or #rosecute! Since the ICC has8urisdiction oer non-#arty States, China, as a non-#arty State who has no duty to amend hernational law on immunity, miht %e rearded as a State of ina%ility!


V. Complementarity and the procedure of challenges to the jurisdiction of the Court

China, on the one hand, welcomes the #rinci#le of com#lementarity in the Rome Statute,main national 8urisdiction a #riority and reardin the #rinci#le of com#lementarity as themost im#ortant uidin #rinci#le in the Statute of the ICC which should %e re3ected in all thesu%stantie #roisions of the Statute!20n the other, China is ery much concerned with the#rocedure of challenes to the 8urisdiction of the Court! >er ma8or concern on the #rinci#le ofcom#lementarity is with the challenes to the 8urisdiction of the Court or the admissi%ility ofa case #roided in Article 1'! If the a##lication of com#lementarity is under controersy, or aState is determined as the one of 6ina%ility9 or 6unwillinness9, the State may challene the8urisdiction of the Court or the admissi%ility of a case %efore the ICC! >oweer, China

%eliees such #rocedure of challenes may cause #ro%lems!Article 1'(1) #roides that 6The Court shall satisfy itself that it has 8urisdiction in any case%rouht %efore it! The Court may, on its own motion, determine the admissi%ility of a case inaccordance with Article 1*9! If determined %y the ICC to %e una%le or unwillin, a State mayo to the Court, challenin its determination! "sually, in an ordinary criminal case, if8urisdiction of the court or the admissi%ility of a case is challened in the court, the issue will%e contested %etween the two #artiesdefendant and #rosecutor! Dut in the #rocedure#roided in Article 1', the su%8ects of the #rocedure will %e the ICC as one #arty and aSoerein State as another! It is true that eery court shall hae inherent #ower to decide itsown 8urisdiction, yet the case is not only related to the matter of 8urisdiction, %ut also to theina%ility or unwillinness of a State! It is a dis#ute %etween a soerein State and aninternational orani5ation! Strictly s#eain, it is a /uestion of #u%lic international law, notinternational criminal law!

Accordin to Article 1', the challenes may %e made %y an accused or a sus#ect, a Statewhich has 8urisdiction oer a case and a State from which acce#tance of 8urisdiction isre/uired under Article 12, i!e! a non-#arty State! As Article 1'(&) #roides that the +rosecutormay see a rulin from the Court reardin a /uestion of 8urisdiction or admissi%ility, the+rosecutor may also %e a #arty of the litiation! It is not clear in the #roisions of the Statutewhothe +rosecutor or the State challenin the 8urisdictionwill %e res#onsi%le for the%urden of #roof! If the State is res#onsi%le for adducin eidence, then will the #resum#tionthat eery State is su##osed to %e a%le and willin to inestiate and #rosecute the seriousinternational crimes still %e tena%leM

The main #ur#ose of the #rocedure of challenes is to ;nd out whether the State concernedis a%le or willin to inestiate and #rosecute a sus#ect! In this circumstance, the State hasto su%8ect her whole leal system to the reiew %y the Court, includin su%stantie and

#rocedure law! Some States, lie China, may reard this #roceedin as an interference withits criminal 8udicial soereinty, since China always reards her leal system as a matterwithin her a%solute soereinty! As for the as#ect of su%stantial law, if a State uses thea##roach of ordinary domestic o.ences to #rosecute the crimes within the 8urisdiction of theICC, there is a reat #ossi%ility that the case will %e admitted %y the ICC! As to the#rocedural law, if a State is not a #arty of the ICC+R, it has no o%liation to leislate in hernational law in accordance with the Conenant! Therefore, the criteria of human rihtsa##lied to defendants in its national #roceedins will not meet the needs of the 6minimumuarantee9 of the Conention! If the challenin #rocedure of the ICC %ecomes a discussion
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on the situation of a State


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lanuae used in court: Riht to %e %rouht %efore a 8udeB Anyone arrested or detained ona criminal chare shall %e entitled to %e %rouht #rom#tly %efore a 8ude or other ocerauthori5ed %y law to e4ercise 8udicial #ower: Riht to %e tried without undue delayB theaccused shall %e entitled to trial within a reasona%le time or to release! It shall %e theeneral rule that #ersons awaitin trial shall %e detained in custody, %ut release may %esu%8ect to uarantees to a##ear for trial, at any other stae of the 8udicial #roceedins and

to uarantees of the security of ictims and witnesses as well! Riht to hae a #u%lichearinB the accused shall %e entitled to a fair and #u%lic hearin %y a com#etent,inde#endent and im#artial tri%unal esta%lished %y law! Dut for the reasons of morals, #u%licorder (order #u%lic or national security in a democratic society, or the interest of the #riatelies, the #ress and the #u%lic may %e e4cluded from all or #art of a trial! >oweer, #u%lichearin shall always %e a eneral rule and a closed trial shall %e an e4ce#tion! Riht todefendB the accused shall %e entitled to defend himself in #erson or throuh leal assistanceof his own choosin and to e4amine a witness! If he does not hae sucient means to #ayfor the leal assistance, the court will #ay for him! The accused shall hae the #riilee tocommunicate with counsel of his own choosin without %ein interfered %y any%ody: Rihtto remain silentB the accused has riht to remain silent, not to %e com#elled to testifyaainst himself or to confess uilt! The confession of the accused shall not %e taen as theonly eidence to coniction: Riht to a##ealB eeryone conicted of a crime shall hae theriht to his coniction and sentence %ein reiewed %y a hiher tri%unal accordin to law:Riht to com#ensationB anyone who has %een the ictim of unlawful arrest or detention shallhae an enforcea%le riht to com#ensation: All #ersons shall %e e/ual %efore lawB eeryoneshall %e e/ual %efore the courts and tri%unals, in #articular, the #rosecutors and the accusedshall %e e/ual durin the trial! The #rosecutor shall not %e entitled to any #riilee in thecourse of the whole trial: Riht to %e #resumed innocent until #roed uiltyB eeryonechared with a criminal o.ence shall hae the riht to %e #resumed innocent until #roeduilty accordin to law: Riht of ne bis in idemB no one shall %e lia%le to %e tried or #unishedaain for an o.ence for which he has already %een ;nally conicted or ac/uitted inaccordance with the law and #enal #rocedure of each country!

11>a%re, >issene, Seneal, Su#reme Court, 20 Oarch 2001 (www!icrc!orihl-

nat!nsf)!

12Criminal Faw of the +eo#le


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1GI%id!, n!1*!

1'The Reulations of the +eo#le!H! Or an Euanya, >ead of the Chinese eleation to the Rome

Conference, Nice-Oinister of the ?orein A.airs of China! >e saidB 6As the most im#ortantuidin #rinci#le of the Statute for the International Criminal Court, the #rinci#le of

com#lementarity should %e fully re3ected in all su%stantie #roisions of the statute! TheICC should also carry out its future wor in strict accordance with this #rinci#le! The courtcan e4ercise its 8urisdiction only with the consent of the countries concerned and shouldrefrain from e4ercisin such 8urisdiction when a case is already %ein inestiated,#rosecuted or tried %y a releant country9!

QAssociate #rofessor, the International Faw Center (formerly International Faw

Section of the Faw Institute) of the Chinese Academy of Social Sciences! This #a#er is ane4#ression of the author


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include pro(isions !i(in! stron! deference to national courts, an important role for the

Security 'ouncil, due process ri!hts dra#n from the /S ill of i!hts, and the definitions

and elements of the &'' crimes.

AN INDEPENDENT COURT

he &'' is an independent %udicial institution !o(erned by the treaty that established it. &t is

accountable to the $ssembly of States )arties $S) to the ome Statute of the &'', #hich

is responsible for mana!in! and o(erseein! the 'ourt, includin! appro(in! its annual bud!et

as #ell as electin! and disciplinin! &'' officials. he &'' is located in he :a!ue, the

etherlands.

he &'' is not a / body; it is not under the %urisdiction of the


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Genocide &ntentionally committin! an =act of !enocide= in order to destroy, in

#hole or in part, a national, ethnical, racial or reli!ious !roup. $cts of !enocide include

"illin! members of a !roup, seriously #oundin! members of a !roup, deliberately

inflictin! on a !roup conditions of life calculated to brin! about its physical destruction

in #hole or in part, imposin! measures to pre(ent births, and forcibly transferrin!

children of a !roup to another !roup for eample, the mass murder of Je#s durin! the

:olocaust and of utsis in #anda in 199@.

Crimes Agains H!mani" $cts in(ol(in! the multiple commission of one or more

acts such as murder, etermination, ensla(ement, persecution, the forcible transfer of

a population, torture, or rape. Such acts must be part of a a #idespread or systematic

attac" a!ainst any ci(ilian population, and b in adherence #ith a State or

or!aniAational policy to commit such attac" for eample, the ethnic cleansin! ofosnia and :erAe!o(ina and of Boso(o in the 19904s included crimes a!ainst

humanity.

#ar Crimes 'rimes in (iolation of #ell-accepted la#s of #ar, in particular #hen

committed as part of a plan or policy or as part of a lar!e-scale commission of such

crimes for eample, the tar!etin! of ci(ilians in Sara%e(o by snipers durin! the

osnian conflict.

he ome Statute also includes the crime o$ aggressionbut did not initially pro(ide a

definition of the crime or the conditions under #hich the 'ourt #ould eercise %urisdictiono(er it. he 010 e(ie# 'onference, held in Bampala, /!anda, a!reed on a definition and

decided ho# the &'' could initiate and try cases.

he 'ourt could eercise its %urisdiction o(er the crime of a!!ression as early as January 1,

017 on the a!reement of the 'ourt4s !o(ernin! body, the $ssembly of States )arties $S),

pro(ided that certain other conditions are met. he a!!ression amendment does not apply

to countries that ha(e not %oined the &''.

HO# CASES %UALIF& FOR THE ICC

he ome Statute of the &nternational 'riminal 'ourt, a treaty ne!otiatedat the /nitedations, established the &'' and no# !o(erns it. he &'' has %urisdiction o(er nationals and

the territory of countries that ha(e ratified the ome Statute. he &''4s %urisdiction o(er

territory and people can also etend beyond those of States )arties if the / Security

'ouncil adopts a resolution referrin! a situation to the 'ourt or if a non-State )arty lod!es a

declaration of acceptance of %urisdiction #ith the &'' e!istrar.
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he &'' does not ha(e retroacti(e %urisdiction - it can only hear cases alle!in! crimes that

too" place after July 1, 00.

he 'ourt4s )rosecutor may be!in an in(esti!ation #hen

$n &'' State )arty refers a situation to the 'ourt;

he / Security 'ouncil refers a situation to the 'ourt; or

$ )re-rial 'hamber of &'' %ud!es !rants an application of the )rosecutor to open an

in(esti!ation on her o#n initiati(e.

he &'' can only loo" into situations that are =the most serious crimes of concern to the

international community as a #hole.= &n !eneral, this means that the &'' #ill only ta"e a

case if multiple or (ery massi(e atrocities ha(e been deliberately planned.

Universal jurisdictionis a legal doctrine which permits domestic courts to try and punish perpetrators ofsome crimes so heinous that they amount to crimes against the whole of humanity, regardless of where

they occurred or the nationality of the victim or perpetrator

The Doctrine of Superior/Command Responsibility

Command or superior responsibility is often misunderstood. First, it is not a form of objective

liability whereby a superior could be held criminally responsible for crimes committed by

subordinates of the accused regardless of his conduct and regardless of what his knowledge of

these crimes. Nor is it a form of complicity whereby the superior is held criminally responsible for

some sort of assistance that he has given to the principal perpetrators. nstead, superiorresponsibility is a form of responsibility for omission to act! a superior may be held criminally

responsible under that doctrine where, despite his awareness of the crimes of subordinates, he

culpably fails to fulfill his duties to prevent and punish these crimes.

"he commission of one or more crimes attributable to a subordinate is a pre#re$uisite for the

application of that doctrine. n addition, the following re$uirements have been identified as forming

part of the doctrine of superior responsibility under customary international law!

%i& ' relationship of superior#subordinate linking the accused and those who committed the

underlying offences at the time of the commission of the crime(

%ii& "he knowledge on the part of the superior that his subordinates have committed or taken a

culpable part in the commission of a crime or are about to do so( and


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%iii& ' failure on the part of the superior to take necessary and reasonable measures to prevent or

to punish those crimes.

"his doctrine might apply, in principle, to military commander %at whatever level in the military

structure&, civilian officials %regardless of the nature of their function, including heads of state or

ministers& or paramilitary leaders. )hilst, under customary international law, the elements of the

doctrine are the same as a matter of law %though not necessarily at the evidential level&

regardless of the nature of the authority which the superior e*ercised, the CC +tatute is drawing

certain differences between military and non#military superiors.

"he person to whom the doctrine is relevant must be superior, hierarchically, to those who have

committed the crimes in the sense that there must have e*isted between them a hierarchical

relationship within a common chain of authority or command. "hat relationship may be de

jure%i.e., it is recognised and sanctioned in the relevant internal or domestic legal regime&

or de facto%where the relationship of authority is one based, not on legal regulations, but on a

state of affair&. "here is contradictory jurisprudence as to the time that is relevant to establishing

the e*istence of such a link %the time when the crimes were committed or the time when the

superior is said to have failed in his duty&.

+uperior responsibility could apply, in theory, to any person who is able to e*ercise effective

control over one or more people. "he re$uirement of effective control, which must be met in

relation to all and any sort of superior means that he must have had the material ability, at the

time relevant to the charges, to prevent or punish the crimes of subordinates. -ere influence or

charisma, even if significant, would not meet that standard. n all cases, there must be an

e*pectation of obedience to orders on the part of the superior and a parallel e*pectation of

subjection to his authority on the part of those who are under his authority.

"he superior must also have been sufficiently aware of the commission of a crime by subordinates

andor of the real and concrete likelihood that a crime was about to be committed. /nder

customary law, the superior must be shown to have known %i.e., he actually knew& or had

reason to know %i.e. the superior possessed some general information putting him on notice of

the commission of crimes of his subordinates or that such information as was available to him put

him on notice of the strong likelihood that they were about to be committed& of the underlying

crimes. "he CC +tatute has added one form of culpable mens rea%owing to the circumstances at

the time, should have known& for military or military#like superiors, whereby a superior might be


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liable where he might not have known of the crimes %whether in actual or had reason to know

form& but should have known of those. "he e*act scope of this new form of mens reais uncertain

and has been subject to serious criticism, although it could be constructed in such a way as to

reduce the risks involved with this form of mens rea.

"o be liable under that doctrine, the superior must also have failed to prevent or punish crimes

committed by subordinates. ' failure to fulfil either or both of these separate obligations %duty to

prevent and duty to punish& could render a superior liable. Not every sort of failure would trigger

his superior liability. "o meet his obligations, a superior is re$uired to adopt necessary and

reasonable measures. "he dereliction of duty attributable to the superior must be gross so that

not any kind of failure to fulfil his duty would automatically render a superior responsible under

that doctrine. "here is some doubt in the literature and jurisprudence as to whether the dereliction

must be causally linked in some ways with the crimes of the subordinates. "he te*t of the CC

+tatute makes it clear, however, that liability would be engaged where the crimes have been

committed as a result of the superior0s failure.

n sum, the doctrine of superior or command responsibility could be defined as follows! ' superior,

whether de jureor de facto, may be held criminally responsible under that doctrine in relation to

crimes committed by subordinates where, at the time relevant to the charges, he was in a

relationship of superior#subordinate with the perpetrators, knew or had reason to know %or, in the

case of military superiors at the CC, should have known& that these crimes had been committed

or were about to be committed and, with and despite that knowledge, wilfully and culpably failed

to prevent or punish these crimes.

What is the difference betweenhumanitarian law and human rights law

!"#!"#$!!%

#xtract from IC$C publication %International humanitarian law& answers to your questions%

International humanitarian law and international human rights law hereafter referred to as human rights( are

complementary. )oth strie to protect the lies* health and dignity of indiiduals* albeit from a different angle.

+umanitarian law applies in situations of armed conflict see ,-(* whereas human rights* or at least some of them*

protect the indiidual at all times* in war and peace alie. +oweer* some human rights treaties permit goernments


16/45

to derogate from certain rights in situations of public emergency. /o derogations are permitted under I+0 because it

was

conceied for emergency situations* namely armed conflict.

+umanitarian law aims to protect people who do not or are no longer taing part in hostilities. The rules embodied in

I+0 impose duties on all parties to a conflict. +uman rights* being tailored primarily for peacetime* apply to

eeryone. Their principal goal is to protect indiiduals from arbitrary behaiour by their own goernments. +uman

rights law does not deal with the conduct of hostilities.

The duty to implement I+0 and human rights lies first and foremost with !tates. +umanitarian law obliges !tates to

tae practical and legal measures* such as enacting penal legislation and disseminating I+0. !imilarly* !tates are

bound by human rights law to accord national law with international obligations. I+0 proides for seeral specific

mechanisms that help its implementation. /otably* !tates are required to ensure respect also by other !tates.

1roision is also made for an enquiry procedure* a 1rotecting 1ower mechanism* and the International "act2"inding

Commission. In addition* the IC$C is gien a ey role in ensuring respect for the humanitarian rules.

+uman rights implementing mechanisms are complex and* contrary to I+0* include regional systems. !uperisory

bodies* such as the 3/ Commission on +uman $ights* are either based on the 3/ Charter or proided for in specific

treaties for example the +uman $ights Committee* which is rooted in the International Coenant on Ciil and

1olitical $ights of 4566(. The +uman $ights Commission and its !ubcommissions hae deeloped a mechanism of

special rapporteurs and woring groups* whose tas is to monitor and report on human rights situations either by

country or by topic. !ix of the main human rights treaties also proide for the establishment of committees e.g. the

+uman $ights Committee( of independent experts charged with monitoring their implementation. Certain regional

treaties #uropean and American( also establish human rights courts. The 7ffice of the 3/ +igh Commissioner for

+uman $ights 3/+C+$( plays a ey part in the oerall protection and promotion of human rights. Its role is to

enhance the effectieness of the 3/ human rights machinery and to build up national* regional and international

capacity to promote and protect human rights and to disseminate human rights texts and information.

&uman rights instruments

"he many te*ts now in force include!

a& /niversal instruments

the /niversal 1eclaration of 2uman 3ights, adopted by the /N 4eneral 'ssembly in 5678

the Convention on the 9revention and 9unishment of the Crime of 4enocide of 5678

the nternational Covenant on Civil and 9olitical 3ights of 56 :: o the nternational Covenant on +ocial and

;conomic 3ights of 56::

the Convention on the ;limination of 'll Forms of 1iscrimination against )omen of 5685

the Convention against "orture and


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the 'merican Convention on 2uman 3ights of 56:6

the 'frican Charter of 2uman and 9eoples 3ights of 5685

The hard core"he international human rights instruments contain clauses that authori?e +tates confronted with a serious public

threat to suspend the rights enshrined in them. 'n e*ception is made for certain fundamental rights laid down in each

treaty, which must be respected in all circumstances and may never be waived regardless of the treaty. n particular,

these include the right to life, the prohibition of torture and inhuman punishment or treatment, slavery and servitude,

and the principle of legality and non#retroactivity of the law. "hese fundamental rights that +tates are bound to

respect in all circumstances even in the event of a conflict or disturbances are known as the hard core of human

rights.

'oints of convergence

+ince humanitarian law applies precisely to the e*ceptional situations which constitute armed conflicts, the content of

human rights law that +tates must respect in all circumstances %i.e. the hard core& tends to converge with the

fundamental and legal guarantees provided by humanitarian law, e.g. the prohibition of torture and summary

e*ecutions %see p. @5( 'rt. A=, 9rotocol ( and 'rt. :, 9rotocol &.

International human rights law (IHRL) and international humanitarian law (IHL) are often perceived as

legally synonymous, aiming to achieve similar objectives through legal protection. Yet while they share

important features, these two bodies of law have distinct origins and in many ways constitute distinct

projects.

At its core,IHRLseeks to regulate the relationship of the government to its population in order to spur the

government to do what is necessary to ensure the safety and well-being of its population while allowing

the population to pursue their desires unencumbered by unwarranted government intrusion.IHL also

known as the law of armed conflict is more limited, applying only during armed conflict and seeking

generally to inject a modicum of humanity into wartime by regulating the means and methods of warfare

and protecting those not, or no longer, directly participating in hostilities. While IHRL has a fundamental

mission of transforming the relationship between the government and the population, IHL aims primarily to

limit the effects of hostilities on populations, whether civilians, detainees, the wounded, the sick, or those

otherwisehors de combat. In contradistinction to IHRL, IHL continually weighs the humanitarian interests

of the population against the interests of parties to armed conflict attempting to achieve their military

objectives.These fundamental distinctions between IHL and IHRL can confuse and confound humanitarians

operating in armed conflicts, natural disasters, and other emergency situations. Some of the difficulty may

result from the turn by many humanitarian organizations whose initial ambit was limited to emergency

relief amid the tumult of armed conflict to incorporate (often vague) human rights approaches into their

work without identifying the short- and long-term costs and benefits of doing so. Adopting a dual-hat

approach to humanitarian action, these organizations attempt to combine life-saving assistance alongside

building the states capacity to promote and protect rights.
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Programming that blends humanitarian and human rights objectives is on its face laudable, yet it raises

strategic issues for humanitarian policy-makers. As Naz K. Modirzadeh recentlyargued,the co-

application of IHL and IHRL during armed conflict could have significant deleterious effects for civilian

protection, including diluting the clarity of IHL, reintroducing a hierarchy of rights, and undermining

sovereignty and long-term rights development. Balancing these considerations is one of the many

challenges facing humanitarian actors today.

3epublic of the 9hilippinesSU'R()( C*URT

-anila

+,), -o, !.##"$#SC0$1 September $!!.2

T&( RU3( *- T&( WR4T *5 +)'+R*

S(CT4*- ", Petition. "he petition for a writ of amparo is a remedy available to any person whoseright to life, liberty and security is violated or threatened with violation by an unlawful act or omissionof a public official or employee, or of a private individual or entity.

"he writ shall cover e*tralegal killings and enforced disappearances or threats thereof.

S(C, $, Who May File. "he petition may be filed by the aggrieved party or by any $ualified personor entity in the following order!

a. 'ny member of the immediate family, namely! the spouse, children and parents of theaggrieved party(b. 'ny ascendant, descendant or collateral relative of the aggrieved party within the fourth civil

degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph(or

c. 'ny concerned citi?en, organi?ation, association or institution, if there is no known memberof the immediate family or relative of the aggrieved party.

"he filing of a petition by the aggrieved party suspends the right of all other authori?ed parties to filesimilar petitions. Bikewise, the filing of the petition by an authori?ed party on behalf of the aggrievedparty suspends the right of all others, observing the order established herein.

S(C, 6, Where to File. "he petition may be filed on any day and at any time with the 3egional"rial Court of the place where the threat, act or omission was committed or any of its elementsoccurred, or with the +andiganbayan, the Court of 'ppeals, the +upreme Court, or any justice ofsuch courts. "he writ shall be enforceable anywhere in the 9hilippines.

)hen issued by a 3egional "rial Court or any judge thereof, the writ shall be returnable before suchcourt or judge.
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)hen issued by the +andiganbayan or the Court of 'ppeals or any of their justices, it may bereturnable before such court or any justice thereof, or to any 3egional "rial Court of the place wherethe threat, act or omission was committed or any of its elements occurred.

)hen issued by the +upreme Court or any of its justices, it may be returnable before such Court orany justice thereof, or before the +andiganbayan or the Court of 'ppeals or any of their justices, or

to any 3egional "rial Court of the place where the threat, act or omission was committed or any of itselements occurred.

S(C, %, No Docket Fees. "he petitioner shall be e*empted from the payment of the docket andother lawful fees when filing the petition. "he court, justice or judge shall docket the petition and actupon it immediately.

S(C, 1, Contents of Petition. "he petition shall be signed and verified and shall allege thefollowing!

a. "he personal circumstances of the petitioner(b. "he name and personal circumstances of the respondent responsible for the threat, act or

omission, or, if the name is unknown or uncertain, the respondent may be described by anassumed appellation(

c. "he right to life, liberty and security of the aggrieved party violated or threatened withviolation by an unlawful act or omission of the respondent, and how such threat or violation iscommitted with the attendant circumstances detailed in supporting affidavits(

d. "he investigation conducted, if any, specifying the names, personal circumstances, andaddresses of the investigating authority or individuals, as well as the manner and conduct ofthe investigation, together with any report(

e. "he actions and recourses taken by the petitioner to determine the fate or whereabouts of

the aggrieved party and the identity of the person responsible for the threat, act or omission(and

f. "he relief prayed for.

"he petition may include a general prayer for other just and e$uitable reliefs.

S(C, 7, Issuance of the Writ. /pon the filing of the petition, the court, justice or judge shallimmediately order the issuance of the writ if on its face it ought to issue. "he clerk of court shall issuethe writ under the seal of the court( or in case of urgent necessity, the justice or the judge may issuethe writ under his or her own hand, and may deputi?e any officer or person to serve it.

"he writ shall also set the date and time for summary hearing of the petition which shall not be laterthan seven %A& days from the date of its issuance.

S(C, ., Penalty for Refusing to Issue or Serve the Writ. ' clerk of court who refuses to issuethe writ after its allowance, or a deputi?ed person who refuses to serve the same, shall be punishedby the court, justice or judge for contempt without prejudice to other disciplinary actions.

S(C, 8, How the Writ is Serve. "he writ shall be served upon the respondent by a judicial officeror by a person deputi?ed by the court, justice or judge who shall retain a copy on which to make a


20/45

return of service. n case the writ cannot be served personally on the respondent, the rules onsubstituted service shall apply.

S(C, , Return! Contents. )ithin seventy#two %A@& hours after service of the writ, the respondentshall file a verified written return together with supporting affidavits which shall, among other things,contain the following!

a. "he lawful defenses to show that the respondent did not violate or threaten with violation theright to life, liberty and security of the aggrieved party, through any act or omission(

b. "he steps or actions taken by the respondent to determine the fate or whereabouts of theaggrieved party and the person or persons responsible for the threat, act or omission(

c. 'll relevant information in the possession of the respondent pertaining to the threat, act oromission against the aggrieved party( and

d. f the respondent is a public official or employee, the return shall further state the actions thathave been or will still be taken!

i. to verify the identity of the aggrieved party(

ii. to recover and preserve evidence related to the death or disappearance of theperson identified in the petition which may aid in the prosecution of the person orpersons responsible(

iii. to identify witnesses and obtain statements from them concerning the death ordisappearance(

iv. to determine the cause, manner, location and time of death or disappearance as wellas any pattern or practice that may have brought about the death or disappearance(

v. to identify and apprehend the person or persons involved in the death ordisappearance( and

vi. to bring the suspected offenders before a competent court.

"he return shall also state other matters relevant to the investigation, its resolution and theprosecution of the case.

' general denial of the allegations in the petition shall not be allowed.

S(C, "!, Defenses not Pleae Dee"e Waive. 'll defenses shall be raised in the return,otherwise, they shall be deemed waived.

S(C, "", Prohi#ite Pleaings an Motions. "he following pleadings and motions are prohibited!

a. -otion to dismiss(b. -otion for e*tension of time to file return, opposition, affidavit, position paper and other

pleadings(

c. 1ilatory motion for postponement(


21/45

d. -otion for a bill of particulars(

e. Counterclaim or cross#claim(

f. "hird#party complaint(

g. 3eply(

h. -otion to declare respondent in default(

i. ntervention(

j. -emorandum(

k. -otion for reconsideration of interlocutory orders or interim relief orders( and

l. 9etition for certiorari, mandamus or prohibition against any interlocutory order.

S(C, "$, $ffect of Failure to File Return. n case the respondent fails to file a return, the court,justice or judge shall proceed to hear the petition e* parte.

S(C, "6, Su""ary Hearing. "he hearing on the petition shall be summary. 2owever, the court,justice or judge may call for a preliminary conference to simplify the issues and determine thepossibility of obtaining stipulations and admissions from the parties.

"he hearing shall be from day to day until completed and given the same priority as petitions forhabeas corpus.

S(C, "%, Interi" Reliefs. /pon filing of the petition or at anytime before final judgment, the court,justice or judge may grant any of the following reliefs!

%a& "emporary 9rotection


22/45

"he motion shall state in detail the place or places to be inspected. t shall be supported byaffidavits or testimonies of witnesses having personal knowledge of the enforceddisappearance or whereabouts of the aggrieved party.

f the motion is opposed on the ground of national security or of the privileged nature of theinformation, the court, justice or judge may conduct a hearing in chambers to determine the

merit of the opposition.

"he movant must show that the inspection order is necessary to establish the right of theaggrieved party alleged to be threatened or violated.

"he inspection order shall specify the person or persons authori?ed to make the inspectionand the date, time, place and manner of making the inspection and may prescribe otherconditions to protect the constitutional rights of all parties. "he order shall e*pire five %=& daysafter the date of its issuance, unless e*tended for justifiable reasons.

%c& 9roduction


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"he respondent who is a private individual or entity must prove that ordinary diligence as re$uired byapplicable laws, rules and regulations was observed in the performance of duty.

"he respondent who is a public official or employee must prove that e*traordinary diligence asre$uired by applicable laws, rules and regulations was observed in the performance of duty.

"he respondent public official or employee cannot invoke the presumption that official duty has beenregularly performed to evade responsibility or liability.

S(C, "8, )ug"ent. "he court shall render judgment within ten %5>& days from the time thepetition is submitted for decision. f the allegations in the petition are proven by substantial evidence,the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate(otherwise, the privilege shall be denied.

S(C, ",%&&eal. 'ny party may appeal from the final judgment or order to the +upreme Courtunder 3ule 7=. "he appeal may raise $uestions of fact or law or both.

"he period of appeal shall be five %=& working days from the date of notice of the adverse judgment.

"he appeal shall be given the same priority as in habeas corpus cases.

S(C, $!,%rchiving an Revival of Cases. "he court shall not dismiss the petition, but shallarchive it, if upon its determination it cannot proceed for a valid cause such as the failure ofpetitioner or witnesses to appear due to threats on their lives.

' periodic review of the archived cases shall be made by the amparo court that shall, motu proprioor upon motion by any party, order their revival when ready for further proceedings. "he petition shallbe dismissed with prejudice upon failure to prosecute the case after the lapse of two %@& years fromnotice to the petitioner of the order archiving the case.

"he clerks of court shall submit to the


24/45

S(C, $%, Su#stantive Rights. "his 3ule shall not diminish, increase or modify substantive rightsrecogni?ed and protected by the Constitution.

S(C, $1, Su&&letory %&&lication of the Rules of Court. "he 3ules of Court shall applysuppletorily insofar as it is not inconsistent with this 3ule.

S(C, $7,%&&lica#ility to Pening Cases. "his 3ule shall govern cases involving e*tralegalkillings and enforced disappearances or threats thereof pending in the trial and appellate courts.

S(C, $., $ffectivity. "his 3ule shall take effect on >A, following its publication inthree %D& newspapers of general circulation.

Case Digest: Navia, et al. v. Pardico9,R, -o, "8%%7. : ;une "< $!"$

(D9+RD* -+=4+(- D4*U4S4-9< 'etitioners< v, =4R94-4+

'+RD4C*< for and in behalf and in representation of >(-&UR =, '+RD4C*results in theunintended conse$uence of permanently perceiving all women as weak. "his has not always beenaccepted by many other strands in the Feminist -ovement.

's early as the A>s, the nationalist movement raised $uestions on the wisdom of a women0smovement and its possible divisive effects, as Hclass problems deserve unified and concentratedattention while the women $uestion is vague, abstract, and does not have material base.H @5

n the early 8>s, self#identifying feminist groups were formed.@@"he Hemancipation theoryH posits thatfemale crime has increased and has become more masculine in character as a result of thewomenIs liberation movement.@D

Feminism also has its variants among -uslims. n @>>6, -usawah %He$ualityH in 'rabic& waslaunched as a global movement for e$uity and justice in the -uslim family. t brought togetheractivists, scholars, legal practitioners, policy makers, and grassroots women and men from all overthe world.@7"heir belief is that there cannot be justice without e$uality, and its holistic framework
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integrates slamic teachings, universal human rights, national constitutional guarantees of e$uality,and the lived realities of women and men.@=

"here is now more space to believe that portraying only women as victims will not always promotegender e$uality before the law. t sometimes aggravates the gap by conceding that women havealways been dominated by men. n doing so, it renders empowered women invisible( or, in some

cases, that men as human beings can also become victims.

n this light, it may be said that violence in the conte*t of intimate relationships should not be seenand encrusted as a gender issue( rather, it is a power issue.@:"hus, when laws are not gender#neutral, male victims of domestic violence may also suffer from double victimi?ation first by theirabusers and second by the judicial system.@Ancidentally, focusing on women as the victimsentrenches some level of heteronormativity.@8t is blind to the possibility that, whatever moralpositions are taken by those who are dominant, in reality intimate relationships can also happenbetween men.@6

accept that for purposes of advocacy and for a given historical period, it may be important tohighlight abuse of women $ua women.D>"his strategy was useful in the passing of 3epublic 'ct No.

6@:@. t was a strategy that assured that the problem of battered women and children in the conte*tof various intimate relationships becomes publicly visible. 2owever, unlike advocacy, laws have thetendency to be resilient and permanent. ts e*istence may transcend historical periods that dictateeffective advocacy. Baws also have a constitutive function # the tendency to create falseconsciousness when the labels and categories it mandates succeed in reducing past evils but turn ablind eye to other issues.

For instance, one of the first cases that laid down the re$uisites for determining whether there was aviolation of the e$ual protection of the law clause of the Constitution was the 56D6 case of 9eople v.Cayat.D5t laid down the re$uirements of reasonable classification which re$uires that it %a& must reston substantial distinctions, %b& must be germane to the purposes of the law, %c& must not be limited toe*isting conditions only, and %d& must apply e$ually to all members of the same class.D@;ven as earlyas 5656, the Court in 3ubi v. 9rovincial oard of -indoroDDrecogni?ed the concept of reasonable

classification holding that Hthe pledge that no person shall be denied the e$ual protection of the lawsis not infringed by a statute which is applicable to all of a class. "he classification must have areasonable basis and cannot be purely arbitrary in nature.HD7

Met, it is in these two cases that the Court concluded the following!

's authority of a judicial nature is the decision of the +upreme Court in the case of /nited +tates vs."ubban JalingaO %565=O, @6, 9hil., 7D7&. "he $uestion here arose as to the effect of a tribal marriagein connection with article 7@D of the 9enal Code concerning the husband who surprises his wife inthe act of adultery. n discussing the point, the court makes use of the following language!

* * * we are not advised of any provision of law which recogni?es as legal a tribal marriage of so#

called non#Christians or members of uncivili?ed tribes, celebrated within that province withoutcompliance with the re$uisites prescribed by 4eneral


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"he description of the label and the stereotype that only women can be considered victims may alsoevolve in the same way."phi)e should hope that the situation of patriarchy will not be permanent.etter cultural structures more affirming of human dignity should evolve.D6

n a future case, the fact that there may be battered men should not cause the nullification ofprotections given to women and children.

"he Constitution states that! Hthe +tate values the dignity of every human person and guarantees fullrespect for human rights.H7>"he guarantee of full respect should not mean that protections alreadygiven to those who suffer historical or cultural prejudices should be automatically rescinded if onlythe scope of the law is found wanting.


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"he intimate spaces created by our human relationships are our safe havens from the helter skelterof this world. t is in that space where we grow in the safety of the special other who we hope will bethere for our entire lifetime. f that is not possible, then for such time as will be sufficient to createcherished memories enough to last for eternity.

concur in the ponencia. 'gainst abominable acts, let this law take its full course.

)+R=4C )+R4* =4CT*R 5+)*RC+ 3(*-(-'ssociate Eustice

the rome statute of the international criminal court

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