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Crimes of atrocity have profound and long-lasting effects on any society. The dif-
ference between triggering and preventing these tragic crimes often amounts to
the choice between national potential preserved or destroyed. It is also important
to recognise that they are not inevitable: the commission of these crimes requires
a collective effort, an organisational context and long planning and preparation.
Thus, the idea of strengthening preventative action has taken on greater relevance,
and is now encompassed in the emerging notion of ‘responsibility to prevent’.
International courts and tribunals contribute to this effort by ending impunity for
past crimes. Focusing investigations and prosecution on the highest leadership
maximises the impact of this contribution. The ICC has an additional preventative
mandate which is fulfilled by its timely intervention in the form of preliminary
examinations. Moreover, when atrocity crimes are triggered, its complementarity
regime incentivises states to stop violence and comply with their duties to investi-
gate and prosecute, thus strengthening the rule of law at the national level. The
new role granted to victims by the Rome Statute is key to the ICC’s successful
fulfilment of these functions. This new book of essays, which includes the author’s
unpublished inaugural lecture at Utrecht University, examines these issues and
places particular emphasis on the additional preventative mandate of the ICC, the
ICC complementarity regime, the new role granted to victims and the prosecu-
tion of the highest leadership through the notion of indirect perpetration.
Essays on International
Criminal Law
Hector Olásolo
Hector Olásolo has asserted his right under the Copyright, Designs and Patents Act 1988,
to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted, in any form or by any means, without the prior permission of Hart Publishing,
or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights
organisation. Enquiries concerning reproduction which may not be covered by the above
should be addressed to Hart Publishing Ltd at the address above.
ISBN: 978-1-84113-052-1
To those who after having tried everything, and despite my deep resistance, have
been the only ones to give me the strength necessary to face each day the power of
the addiction and the affliction of the illness, and move forward with my restora-
tion process: to God the Father and his Son Jesus Christ.
To Dilia Paola Gómez Patiño for making a true act of faith by staying at my side
and trusting that my healing was possible even under the worst circumstances.
To my parents Valentin and Mercedes for not ceasing in three decades despite
my continuous rejection of their efforts in offering me this marvellous gift that
they themselves received thirty-three years ago.
To Nadime Patiño for her beauty, kindness, care and prayers in the Kennedy
neighbourhood south of Bogota (Colombia).
To my brothers and sisters of the fourth and seventeenth Neo-catechumenal
communities of the parishes of St. Agnes in the Hague and San Mateo in Bogota
that have offered me support and spiritual and personal guidance.
To the music of St. Roberto Belarmino Church in the Kennedy neighbourhood
of south of Bogota and of San Pablo in Logroño (Spain) that permitted my ears to
pay attention to the Word.
To the millions of human beings who have been, and continue to be as of the
writing of these lines, victims of international crimes by the continuing wars for
political, economic, military and cultural power, they are the ones who really
deserve recognition, and it is to them whom I publically apologise for the enorm
ous limitations that are still present today in international criminal law in provid-
ing them effective material support.
To those, who, as my teacher, boss and friend, Judge of the International
Criminal Court Sylvia H. Steiner, have a vital commitment to international crim-
inal law that is not in a exclusively formal nature, but, despite all obstacles, aims at
offering greater effective material protection.
And to Michelle Coleman, Enrique Carnero-Rojo, Alejandro Kiss and Lachezar
Yanev for their invaluable help in so many aspects of the preparation of this book.
v
SUMMARY CONTENTS
The Author xv
Table of Abbreviations 000
Table of Cases 000
Foreword: The Law in the Twenty-First Century, Luis Moreno Ocampo,
Prosecutor of the International Criminal Court xvii
Preliminary Reflection: The Preventative Role of the International
Criminal Court, Judge Elizabeth Odio Benito, Judge and former
Vice-President of the International Criminal Court xxi
Introduction to Professor. Héctor Olásolo, Essays on International
Criminal Law, Leila Nadya Sadat, Henry H Oberschelp Professor of
Law and Director, Whitney R Harris World Law Institute, Washington
University School of Law xxv
1: The Role of the International Criminal Court in Preventing Atrocity
Crimes through Timely Intervention: From the Humanitarian
Intervention Doctrine and Ex Post Facto Judicial Institutions to the
Notion of Responsibility to Protect and the Preventative Role of the
International Criminal Court 1
2: The Admissibility of ‘Situations’ 20
3: The Admissibility Analysis of the ‘Situation’ in the Republic of Kenya
before the International Criminal Court 41
4: The Lack of Attention to the Distinction between Situations and
Cases in National Laws of Cooperation with the ICC: Special
Attention to the Spanish Case 60
5: Complementarity Analysis of National Sentencing 74
6: The Application of the Notion of Indirect Perpetration through
Organised Structures of Power at the International Level: From the
Stakić Case at the ICTY to the Case against the Sudanese President,
Omar Al Bashir, at the ICC 102
7: Shedding Some Light on the Nature of the Notion of Joint Criminal
Enterprise and its Extended Form. 121
8: Victims’ Participation according to the Jurisprudence of the
International Criminal Court 143
vii
Summary Contents
Bibliography 201
Index 215
viii
CONTENTS
The Author xv
Table of Abbreviations 000
Table of Cases 000
Foreword: Law in the Twenty-First Century, Luis Moreno Ocampo,
Prosecutor of the International Criminal Court xvii
Preliminary Reflection: The Preventative Role of the International Criminal
Court xxi
Judge Elizabeth Odio Benito, Judge and former Vice-President of the
International Criminal Court
ix
Contents
x
Contents
xi
Contents
xii
Contents
IV. Complementarity in Action in Situations and Cases before the ICC 187
V. Cooperation in Action at the National Level 190
A State Cooperation with the ICC through Changes in National
Legislation 191
VI. Conclusion 192
xiii
THE AUTHOR
Professor Héctor Olásolo was born in Madrid in 1972 and completed his primary
and secondary studies in Logroño (La Rioja). In 1990 he attended the University
of Salamanca, where he completed his undergraduate education 1996. Between
1997 and 2002 he completed research stays at Harvard, Columbia and Bolonia
Universities. In New York, between January 1999 and June 2002, he served as a
legal advisor to the Spanish delegation to the Preparatory Commission for the
International Criminal Court at the United Nations. In 2002 he completed his
Master’s degree at Columbia University, where he was appointed as a Kent Scholar
and taught as a Teaching Fellow at the Human Rights Institute. In February 2002,
he received a special award doctorate from the University of Salamanca.
From July 2002 to August 2004, Professor Olásolo worked in the legal advisory
and appellate sections of the Office of the Prosecutor of the International Criminal
Tribunal for the former Yugoslavia. He was appointed as legal officer of the
Pre-Trial Division of the International Criminal Court in August 2004 and from
September 2005 also held a senior honorary lecturer position at Utrecht
University. On 1 February 2009, he was appointed Professor of International
Criminal Law and International Criminal Procedure at Utrecht Univeristy’s
Willem Pompe Insitute, and on 31 May 2011, he became the first Chairman of the
Ibero-American Institute of The Hague for Peace, Human Rights and International
Justice, positions in which he currently serves.
In addition to being the director of the Utrecht Law School Clinical Programme
on Conflict, Human Rights and International Justice (www.uu.nl/legalclinic),
which since 2009 provides pro bono legal services to Hague-based international
courts and tribunals, Professor Olásolo teaches courses on international criminal
law and procedure at the bachelor and master levels, including a moot-court type
course specifically focused on the International Criminal Court (www.uu.nl/h.
olasolo).
For the last ten years, Professor Olásolo has actively participated in training
programmes for legal actors (judges, prosecutors, defence attorneys, victims’ rep-
resentatives, police and military personnel) in criminal, international and pro-
cesses relating to the prosecution of international crimes, and for that he has spent
periods of time in such diverse countries as Germany, Argentina, Canada, Chile,
Colombia, Spain, the United States, the Netherlands, Italy, Mexico, Nicaragua,
Peru, Serbia, Switzerland, Uruguay and Venezuela.1
For more information regarding Professor Héctor Olásolo Alonso see: www.uu.nl/h.olasolo.
1
xv
The Author
xvi
FOREWORD
xvii
Foreword
xviii
Foreword
xix
PRELIMINARY REFLECTIONS
Scholars and commentators frequently state that the adoption of the Treaty of
Rome for the establishment of a permanent International Criminal Court in July
1998 marked a historic milestone in the development of International Human
Rights Law, International Humanitarian Law and in particular, International
Criminal Law. Nevertheless, the interpretation of the penal provisions encom-
passed in the Statute has been difficult.
The Court has achieved considerable progress since it become operational in
March 2003. However, these advances have faced manifold challenges: (inter alia)
the lack of timely political will of the States Parties in enforcing the warrants of
arrest issued by the Court; the complex nature of international criminal law,
which is still in the making and lacks a general theory; and the different legal back-
grounds and training of judges.
Professor Héctor Olásolo has in recent years written thought-provoking essays
which provide theoretical and practical problems arising from the interpretation
and application of the Rome Statue in situations and cases thus far before the
Court. In each one of the chapters compiled in this publication the author delves
into the doctrine, offering his vision on the scope of the ICC provisions, while
contrasting them with national legislation and critically examining the most
recent jurisprudence of the Pre-Trial, Trial and Appeals Chambers of the ICC.
As a young scholar, Professor Héctor Olásolo is already a known and respected
author of books, essays and articles in which he continually explores the pan-
orama of international criminal law, what he has referred to as a passionate call-
ing. This passion, coupled with his professional experience in international
criminal tribunals – including his work as a Legal Officer at the International
Criminal Court – have led him to offer us with this collection of chapters, some of
them unpublished until now. His compilation provides an enormous source of
easy reference to students, academia and legal actors in the field of international
law.
A look at the titles compiled in this volume demonstrates the present challenges
to international criminal justice. The range of the themes examined is broad in
scope. Issues covered by this publication include, inter alia: the criteria for admis-
sibility of situations and cases; the application of such criteria to national jurisdic-
tions; the right of victims to participate in proceedings; the complexity in defining
xxi
Preliminary Reflections
xxii
Preliminary Reflections
has a crucial function in its global responsibility to protect victims before their
fundamental rights are violated.
The long-standing doctrine of humanitarian intervention was abandoned for
different reasons ranging from global geopolitics and international real-politik. In
2005, the international community renewed its commitment and agreement to
act through the United Nations as part of its ‘responsibility to protect’ civilians
from atrocities when their governments fail to do so (World Summit, 14–16
September 2005).
In his chapter, Professor Olásolo clearly exposes the fundamentals of inter
national law that enshrine the responsibility to protect, while emphasising that
prevention is a natural role that must be fulfilled by the Court as part of its man-
date. He provides an original perspective on how a series of preventive actions
and timely intervention can be offered by the ICC to the international community
in order to prevent the commission of international crimes.
From section III and until the end of the chapter, he portrays distinct scenarios
of the two dimensions of the Court’s preventive mandate: general prevention and
timely intervention. ‘Atrocious crimes are not inevitable’, says Professor Olásolo.
This is an affirmation that I share and that draws from a profound confidence in
the mission of the Court. The ICC can intervene with concrete warnings to future
atrocities (section IV) and during the commission of such crimes (section V).
As I write this commentary, atrocities which could have been prevented are
ongoing in different parts of the world. Some of these situations have been
referred to the Court by the United Nations Security Council for investigation by
the ICC Prosecutor. These ongoing similar situations around the world could
provide a historic opportunity for the ICC to open these new perspectives within
the preventive mandate of the International Criminal Court. This would undoubt-
edly make the ICC a unique institution, to become a judicial mechanism that
integrates three fundamental areas of international law (criminal, humanitarian,
human rights) effective in protecting life, liberty, and freedom of all human
beings. A court that fulfils its mandate as clearly provided for at the second para-
graph of the preamble of the Rome Statute which reads ‘[m]indful that during
this century millions of children, women and men (who) have been victims of
unimaginable atrocities that deeply shock the conscience of humanity’.
One day, this will become possible through cooperation between the ICC and
the international community and efforts of scholars like Professor Olásolo, whose
contribution prompts debate among those interested in international criminal
justice. I thank him for his efforts in renewing our conviction and commitment to
the International Criminal Court and in a universal system of criminal justice that
protects humanity against serious crimes.
Elizabeth Odio Benito
Judge and Former Vice-President, International Criminal Court
The Hague, May 2011
xxiii
Introduction to Professor
Héctor Olásolo, Essays on
International Criminal Law
This collection, written by a brilliant and prolific scholar and practitioner of inter-
national criminal justice, is an insightful and important contribution to the exist-
ing literature. Authored by an individual steeped in the jurisprudence of the Ad
hoc Tribunals, as well as the legal traditions of Spain and much of the Spanish
speaking world, the book serves as a bridge from the world of the Ad hoc Tribunals
to the new world of the International Criminal Court (ICC) as well as from the
International Criminal Court to national legal systems, particularly Spain and
Colombia. The chapters it contains take as their premise the central role of the
International Criminal Court in the system of international criminal justice that
developed over the past two decades since the fall of the Berlin wall, but places the
current operations of the ICC in historical and juridical context.
Each chapter in this collection is copiously footnoted and thoroughly
researched, making it an important reference tool for scholars and practitioners
in the field. Additionally and importantly, the chapters explore, without polemic,
areas of controversy and dissent and thoughtfully and scrupulously set forth argu-
ments for and against particular doctrinal choices. Where Professor Olásolo
inserts his own views, as he properly does, those are clearly and forthrightly
labelled as such. Well written and concise, the chapter address some of the most
interesting current issues in the practice of the ICC: the question of complemen-
tarity before the Court itself (chapters 2 and 3); its application before national
legal systems (chapters 4 and 5); forms of joint and indirect perpetration (chap-
ters 6 and 7); the role of victims in criminal proceedings before the ICC (chapter
8) and finally, the role of legal clinics in continental Western Europe, and more
particularly the operation and establishment of the Utrecht Legal Clinic on
Conflict, Human Rights and International Justice (chapter 9).
The scholar will find much of interest and importance in the chapters on doc-
trine and its application, particularly in the extraordinarily helpful analysis of the
Court’s early case law as well as the jurisprudence of the ICTY. Professor Olásolo’s
experience as not only a scholar but practitioner of international criminal law is
evident in his creative thinking about what kinds of preparatory acts might
give rise to liability in the ICC for attempt, for example, and in thoughtfully ana-
lysing the relationship between national measures of transitional justice such as
conditional amnesties and the admissibility criteria of the ICC Statute. His careful
analysis of the text of the ICC Statute as well as its ancillary instruments,
xxv
Introduction to Professor Héctor Olásolo
combined with his thorough knowledge of the law and his participation in the
Statute’s negotiation as a member of the Spanish delegation, make his analyses
particularly cogent and rigorous.
Finally, this book is obviously of tremendous current value. As this introduc-
tion was being written, the Security Council unanimously adopted Resolution
1970, which, among other things, referred the situation in Libya to the
International Criminal Court, demonstrating the international community’s
belief in the Court’s preventive value (as well as its possible punitive effect). This
kind of role for the Court was identified in the first chapter of this collection, on
‘The Role of the International Criminal Court in Preventing Atrocity Crimes
through Timely Intervention’, which thoughtfully and presciently analyses the
relationship between the ‘responsibility to protect’ doctrine and the operations of
the Court.
Books such as this are long in the making and represent a tremendous effort on
the part of their authors. This book – representing the fruit of Professor Olásolo’s
thinking over several years – is no exception. It is a superb contribution not only
to the literature on the International Criminal Court, but to the operations of
international criminal justice itself. Containing constructive criticisms as well as
imaginative thinking about how the ICC might respond in future cases, it demon-
strates not only the author’s ability as a legal scholar, but his commitment to a
world in which the commission of atrocity crimes becomes less and less frequent,
and their prevention and punishment becomes increasingly effective.
Leila Nadya Sadat
Henry H Oberschelp Professor of Law and Director, Whitney R Harris World
Law Institute,
Washington University School of Law; Alexis de Tocqueville Distinguished
Fulbright Chair,
Université de Cergy-Pontoise
Paris, Spring 2011
xxvi