International Criminal Law

By Marilyn J. Kaman, Craig Resnick, Mark Winston, and Bruce Zagaris

In 2006, globalization, free trade, and technological developments raised significant challenges to the international criminal justice regime. This update reviews developments in three main areas in which states and international organizations must cooperate despite differing laws, enforcement priorities, and cultures: the International Criminal Court; cybercrime; and online gambling.

The International Criminal Court. The year 2006 marked completion of the International Criminal Court’s (ICC) first triennium and the conclusion of the first terms of office for its judges. As of January 1, 2007, there were a total of 104 state parties to the Rome Statute, the treaty that established the ICC. During 2006 the Court adopted a preliminary version of its Strategic Plan and all organs of the Court—the Office of the Prosecutor, the Judicial Divisions, the Presidency, and the Registry—engaged in institution-building activities. The Court continues to be seized of situations in the Democratic Republic of the Congo, Uganda, and the Central African Republic, as well as the situation in Darfur. The Office of the Prosecutor dismissed situations under investigation relating to Venezuela and Iraq. A state that was not party to the Rome Statue, Côte d’Ivoire, lodged with the Court a declaration of acceptance of the Court’s jurisdiction for crimes committed on its territory since September 19, 2002.

On January 12, 2006, the Office of the Prosecutor submitted a sealed application for an arrest warrant against Thomas Lubanga Dyilo, a Congolese national and the alleged founder and leader of the Union des Patriotes Congolais (UPC) and its military wing, the Forces Patriotiques pour la Liberation du Congo (FPLC). Lubanga is charged with war crimes; as president of the UPC and as commander-in-chief of the FPLC, he allegedly had ultimate control over UPC and FPLC policies and practices of conscripting children under 15 to participate actively in hostilities. The Lubanga matter represents the first time that charges have been brought based solely on this type of crime. It is also the first time in international criminal law that victims have been able to participate in the proceedings.

On October 14, 2005, Pre-Trial Chamber II unsealed the Court’s first warrants of arrest against members of Uganda’s Lord’s Resistance Army (LRA). The LRA is an armed rebel group that claims to fight for the freedom of the Acholi people in Northern Uganda but which has, according to the Office of the Prosecutor, mainly attacked the Acholis, who have been killed, abducted, enslaved, and raped for more than 19 years. The accused have been charged with crimes against humanity and war crimes. One of the five accused was killed, but the remaining accused are still at large.

In March 2005, pursuant to its Chapter VII powers, the United Nations Security Council adopted Resolution 1593, referring the situation in Darfur since July 1, 2002, to the ICC. The Office of the Prosecutor opened its investigation into Darfur in June 2005, despite the difficulties presented by the ongoing conflict. Because security conditions to protect victims and witnesses have not been present, investigative activities have occurred elsewhere, including the neighboring country of Chad.

Regarding the situation in Venezuela, the Office of the Prosecutor concluded that, based upon available information, a reasonable basis did not exist for believing that crimes within the Court’s jurisdiction had occurred. Regarding the situation in Iraq, the Office of the Prosecutor observed that the ICC has jurisdiction only with respect to the actions of nationals of states that are party to the Rome Statute and that, while a reasonable basis existed to believe that crimes within the jurisdiction of the Court had occurred, the situations involved did not appear to meet the gravity threshold of the Rome Statute. National proceedings had been instituted by the relevant states.

Six judges have been elected to nine-year terms. In July 2006 the Appeals Chamber issued its first decision on the merits. The Court adopted the first version of its Strategic Plan, providing a common framework for the Court’s activities for the next ten years.

The Registry provides judicial and administrative support to all organs of the Court, with specific responsibilities in the areas of victims, witnesses, defense, and outreach. During 2006 the Regulations of the Registry were finalized and approved. The regulations address key issues, including proceedings before the Court, responsibilities of the registrar relating to victims and witnesses, counsel issues, and legal assistance and detention matters.

Cybercrime. In 2006 the United States became the 16th country to ratify the Council of Europe Cybercrime Convention, which entered into force in the United States on January 1, 2007. The convention requires signatories to criminalize conduct defined as computer crime, adopt domestic procedural laws to investigate computer crime, and render international enforcement cooperation in combating acts of computer crime such as attacks on the confidentiality, integrity, and availability of computer data and systems; forgery and fraud; production, dissemination, and possession of child pornography; and intellectual property infringements such as wide-scale distribution of pirated copies of protected works.

The international enforcement significance arises out of the obligation of the signatories to criminalize substantive crimes and engage in broad international assistance. Internet service providers and data holders will now be required to retain records and furnish data to law enforcement officials on request. Banks and other institutions holding information useful to criminal investigations also may have to respond to law enforcement requests.

The Council of Europe Cybercrime Convention is one example of efforts by international organizations and governments to develop enforcement regimes that bridge the gap between technology and international enforcement cooperation. The developments also show new degrees of cooperation among the private sector, law enforcement, and international organizations.

Online gambling. In recent years, online gambling has been a booming industry in the United States and across the globe. Many lawmakers have expressed a concern with this growing industry. As a result, in September 2006 the U.S. Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA). It prohibits any person engaged in the business of betting or wagering from accepting credit cards, electronic fund transfers, checks, and other similar payment devices. Under the act, banks and other financial institutions will be required to prohibit any transfer of funds from the accounts of their U.S.-based customers to any website that is involved with illegal gambling. Many of the larger online poker websites have interpreted the new legislation as banning Internet poker and have reacted quickly to the signing of the act. Other companies maintain that Internet poker has always been legal in the United States and that the new bill has done nothing to change that.

The international ramifications of the passage of the act, and the apparently increased enforcement of existing federal and state laws pertaining to online gambling, remains to be seen. The U.K. government is seeking to enlist international support for legalized regulated online gambling. The World Trade Organization (WTO) also has become involved in the issue, prompted, in part, by a complaint brought by Antigua and Barbuda that U.S. restrictions on online gambling violate international trade rules. The WTO has established a panel to investigate and has ruled in favor of the Antiguan government that the United States has violated its obligation not to discriminate against cross-border betting services. The European Union (EU) is expected to bring a new complaint against UIGEA and alleged discriminatory prosecution of past acts of EU Internet providers in the United States. 

For More Information About the Section Of International Law

- This article is an abridged and edited version of one that originally appeared on page 317 of The International Lawyer, Summer 2007 (41:2).

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Judge Marilyn J. Kaman is editor-in-chief of International Law News and co-chair of the United Nations International Institutions Committee; she may be reached at . Craig Resnick, CPA, may be reached at . Mark Winston is with Aon Consulting's Financial Advisory & Litigation Consulting Services and practices in New York; he may be reached at . Bruce Zagaris is senior advisor to the International Criminal Law Committee and a partner at Berliner Corcoran and Rowe in Washington, D.C.; he may be reached at .

Copyright 2008

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