International Criminal Law (ICL):Introduction

Prof. B. J. Geller, JD, PhD (Cantab.), LLD

(ELTE, Budapest, Hungary)

ProloguePrologue

1936 Francisco Franco becomes head 1936 Francisco Franco becomes head of State in Spainof State in Spain

Frederico Garcia Lorca is killedFrederico Garcia Lorca is killedArthur Koestler: Darkness at NoonArthur Koestler: Darkness at Noon Jounod: Warrior Without a WeaponJounod: Warrior Without a Weapon

„„Wer sich vorstellt, daß das, was Wer sich vorstellt, daß das, was er liebt zerstört wird, der wird er liebt zerstört wird, der wird Unlust empfinden; stellt er sich Unlust empfinden; stellt er sich aber vor, daß es erhalten wird, so aber vor, daß es erhalten wird, so wird er Lust empfinden.wird er Lust empfinden.” ”

(Spinoza: (Spinoza: EthikEthik, Neunzehnter , Neunzehnter Lehrsatz, 154)Lehrsatz, 154)

ContentsContents

II. . The Concept of ICL and its Place in The Concept of ICL and its Place in the Legal Systemthe Legal System

II. II. Sources of ICLSources of ICL

III. Short History of ICLIII. Short History of ICL

IV. International CourtsIV. International Courts

V. Individuals and States as V. Individuals and States as SSubjects of ubjects of ICLICL

I. I. The Concept of ICL and its The Concept of ICL and its Place in the Legal SystemPlace in the Legal System

ICL part of Public International Law ICL part of Public International Law (PIL)(PIL)

arguably subjects of PIL can only be arguably subjects of PIL can only be StatesStates

if ICL is part of PIL:if ICL is part of PIL:

a) Can ICL prescribe rules for a) Can ICL prescribe rules for individuals, punish individuals individuals, punish individuals (natural (natural persons)?persons)?

b) Can ICL punish States?b) Can ICL punish States?

ICL is a “cousin” of International ICL is a “cousin” of International Humanitarian Law (IHL)Humanitarian Law (IHL)

The core part (core crimes) of ICL is The core part (core crimes) of ICL is concerned with sanctioning gross IHL concerned with sanctioning gross IHL violationsviolations

ICL is a diplomatic mule ICL is a diplomatic mule

(creating fathers(creating fathers:: diplomats, diplomats, international lawyers, criminal lawyers) international lawyers, criminal lawyers)

ICL in a wide and in a narrow ICL in a wide and in a narrow sensesense

ICL in a wide sense comprises of:ICL in a wide sense comprises of:

a) ICL in a narrow sense ( the a) ICL in a narrow sense ( the subject of my lectures)subject of my lectures)

b) the Law of Co-operation in b) the Law of Co-operation in International Criminal MattersInternational Criminal Matters

c) trans-national crimesc) trans-national crimes

International Co-operation in International Co-operation in Criminal MattersCriminal Matters

a) recognition of foreign judgmentsa) recognition of foreign judgments

b) extradition b) extradition

c) transfer of criminal proceedings c) transfer of criminal proceedings

d) transfer of prisoners d) transfer of prisoners

e) executing proceedings in an other e) executing proceedings in an other State (deposing witnesses, seizing State (deposing witnesses, seizing evidence etc.)evidence etc.)

Transnational CrimesTransnational Crimes

drug traffickingdrug trafficking trafficking in humans trafficking in humans etc.etc.

If regulated by international treaty If regulated by international treaty may become ICLmay become ICL

ICL in a narrow senseICL in a narrow sense

a) Substantive ICLa) Substantive ICL

b) International Criminal Procedure b) International Criminal Procedure

(does not really exist, comprises of (does not really exist, comprises of procedural rules of the international procedural rules of the international tribunals and the basic International tribunals and the basic International Human Rights (IHR) standards for Human Rights (IHR) standards for criminal proceedings accepted by criminal proceedings accepted by civilised nations)civilised nations)

Substantive ICLSubstantive ICLComprises of acts which are Comprises of acts which are so so vital to vital to

the international community as a the international community as a whole that whole that the international the international community of civilised nations community of civilised nations regards them as criminal and worthy regards them as criminal and worthy of punishment.of punishment.

Approximately 300 sources of law Approximately 300 sources of law enumerate more than 20enumerate more than 20 iinternational crimes.nternational crimes.

Some international crimes are Some international crimes are jus cogensjus cogens (compulsory international law, a State (compulsory international law, a State

cannot opt out)cannot opt out),, some are not.some are not. (a) aggression (crime against peace))(a) aggression (crime against peace)) b) genocideb) genocide c) crimes against humanityc) crimes against humanity d) war crimesd) war crimes e) crimes against UN and associated personnel e) crimes against UN and associated personnel f) theft and illegal trade in nuclear substancesf) theft and illegal trade in nuclear substances g) mercenaries (part of war crimes ?) g) mercenaries (part of war crimes ?) h) apartheid (part of crimes against humanity?)h) apartheid (part of crimes against humanity?) i) producing and stockpiling, trafficking in illegal i) producing and stockpiling, trafficking in illegal

weapons weapons j) torturej) torture k) illegal experiments on humans k) illegal experiments on humans l) terrorisml) terrorism m) slavery m) slavery

If compulsoryIf compulsory,, is ICL supranational is ICL supranational??

Is it true?Is it true?

No legislatureNo legislature

Yes: Yes: UN General Assembly Resolutions (G.A.R.) are not UN General Assembly Resolutions (G.A.R.) are not bindingbinding

No:No:- - G.A.R. 177 (II) (1946) of 12 December 1946 G.A.R. 177 (II) (1946) of 12 December 1946

recognising the Statute of the International recognising the Statute of the International Military Tribunal and its judgments created a Military Tribunal and its judgments created a precedent precedent

- Security Council Resolutions (S.C.R.) are binding - Security Council Resolutions (S.C.R.) are binding (e.g. S.C.R. 827 (1993) ICTY; S.C.R. 955 (1994) (e.g. S.C.R. 827 (1993) ICTY; S.C.R. 955 (1994) ICTR)ICTR)

No compulsory court systemNo compulsory court system

Yes:Yes:- - USA can opt out of the International Criminal Court USA can opt out of the International Criminal Court - Guantanamo Bay X-Ray Camp: no legal recourse Guantanamo Bay X-Ray Camp: no legal recourse

for inmatesfor inmates((except except

No:No:Rome Statute of the International Criminal Court Rome Statute of the International Criminal Court

(RS) Art. 13 (b) S.C. refers the case to the(RS) Art. 13 (b) S.C. refers the case to the Prosecutor.Prosecutor.

No law enforcementNo law enforcement:: Yes, States need to co-operate.Yes, States need to co-operate.

TheTherere is is a a supranational character atsupranational character at least as regards core crimesleast as regards core crimes ((a) aggression (crime against peace)); b) genocide; a) aggression (crime against peace)); b) genocide; c) crimes against humanity; d) war crimesc) crimes against humanity; d) war crimes))..

Principles which follow:Principles which follow:

a) a) Obligatio erga omnes Obligatio erga omnes (binding obligation for everybody) (binding obligation for everybody)

bb) Martens Clause ) Martens Clause c) c) Universality principleUniversality principled) d) No immunityNo immunity e) Aut dedere aut judicare/puniree) Aut dedere aut judicare/punire

Obligatio erga omnesObligatio erga omnes

Barcelona Traction Company case Barcelona Traction Company case (1970)(1970)(Case Concerning the Barcelona Traction, Light (Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), and Power Company Limited (Belgium v. Spain), Judgement of 5th February 1970, ICJ Reports Judgement of 5th February 1970, ICJ Reports 1970, 3.)1970, 3.)

Belgian shareholders own company in Spain which Belgian shareholders own company in Spain which is bankrupted by the Spanish government's is bankrupted by the Spanish government's actions. The ICJ makes a difference between actions. The ICJ makes a difference between duties towards another State and duties towards duties towards another State and duties towards the international community as a whole.the international community as a whole.

Martens ClauseMartens Clause

- IV Hague Convention 1907, preamble (Reader, p. - IV Hague Convention 1907, preamble (Reader, p. 7); 7);

- I Additional Protocol to the Geneva Conventions - I Additional Protocol to the Geneva Conventions (1977), Art. 1. (2) (Reader, p. 76);(1977), Art. 1. (2) (Reader, p. 76);

- II. Additional Protocol to the Geneva Conventions - II. Additional Protocol to the Geneva Conventions (1977), Preamble (Reader, p. 110)(1977), Preamble (Reader, p. 110)

(Russian journalist Fjodor Fjodorovich Martens (Russian journalist Fjodor Fjodorovich Martens (1845–1909) representative of the Tsar already in (1845–1909) representative of the Tsar already in the II Hague Convention 1899)the II Hague Convention 1899)

Universality PrincipleUniversality Principle

(passive personality principle; Lotus (passive personality principle; Lotus case (PCIJ, 1927))case (PCIJ, 1927))

Relative universalityRelative universality

Absolute universalityAbsolute universalityArial SharonArial SharonCongo v. Belgium (ICJ, 2000)Congo v. Belgium (ICJ, 2000)

No ImmunityNo Immunity

Pinochet case Pinochet case a) Immunity ratione personaea) Immunity ratione personae

(blanket personal immunity for (blanket personal immunity for acting state representatives) acting state representatives)

b) Immunity ratione materiaeb) Immunity ratione materiae(immunity for actions perfomed whilst (immunity for actions perfomed whilst in office but only ‘state acts’)in office but only ‘state acts’)

‘‘Act of stateAct of state’’ doctrine doctrine

Aut dedere aut judicare/punireAut dedere aut judicare/punire

Lockerbie case Lockerbie case (1989-2000) (1989-2000) State sponsored terrorismState sponsored terrorismS.C.R. 731 (1992)S.C.R. 731 (1992)S.C.R. 748 (1992)S.C.R. 748 (1992)

Montreal Convention on the Montreal Convention on the SSafety of afety of Civil Aviation (1971)Civil Aviation (1971) Art. 7. Art. 7.

(not (not ius cogensius cogens))

II. II. Sources of International LawSources of International Law

Substantive sources:Substantive sources:agreement (consensus) of Statesagreement (consensus) of States

(presumption that States are equal)(presumption that States are equal)Pacta sunt servanda (agreements have to be kept)Pacta sunt servanda (agreements have to be kept)

Formal Sources:Formal Sources: Statute of the International Court of JusticeStatute of the International Court of Justice (ICJ) 38. cikk (1) (ICJ) 38. cikk (1)

- treaties,- treaties,- customary law,- customary law,- general principles of law recognised by civilised nations- general principles of law recognised by civilised nations- decisions of international and national tribunals- decisions of international and national tribunals- teachings of the most outstanding legal writers - teachings of the most outstanding legal writers

(Ch: M. Bassiouni questions the teachings of legal writers as a valid (Ch: M. Bassiouni questions the teachings of legal writers as a valid source of ICL because this might violate the principle of legality; source of ICL because this might violate the principle of legality; but see later crimes against humanity within non-international but see later crimes against humanity within non-international armed conflict)armed conflict)

ICC ICC Article 21Article 21 Applicable lawApplicable law

1. The Court shall apply: 1. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of (a) In the first place, this Statute, Elements of Crimes and its Rules of

Procedure and Evidence; Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the (b) In the second place, where appropriate, applicable treaties and the

principles and rules of international law, including the established principles and rules of international law, including the established principles of the international law of armed conflict; principles of the international law of armed conflict;

(c) Failing that, general principles of law derived by the Court from national (c) Failing that, general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.with international law and internationally recognized norms and standards.

2. The Court may apply principles and rules of law as interpreted in its 2. The Court may apply principles and rules of law as interpreted in its previous decisions.previous decisions.

3. The application and interpretation of law pursuant to this article must be 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or political or other opinion, national, ethnic or social origin, wealth, birth or other status.other status.

III. III. History of ICLHistory of ICL

ICL’s two historical origins:ICL’s two historical origins:1) war 1) war 2) piracy 2) piracy

11474 first documented international criminal trial 474 first documented international criminal trial of Peter von Hagenbachof Peter von Hagenbach

- Hansiatic Cities 28 member court- Hansiatic Cities 28 member court- terrorised civilians around Breisach- terrorised civilians around Breisach- his defence: on the order of the Prince of Burgundy - his defence: on the order of the Prince of Burgundy - not accepted, sentenced to death- not accepted, sentenced to death

1872 Gustave Moynier1872 Gustave Moynier

first formal proposal for an international criminal courtfirst formal proposal for an international criminal court

1915 extermination of Armenians by the Turkish government (1915 extermination of Armenians by the Turkish government (AAre re citizens protected from their own government?)citizens protected from their own government?)

14 May 1915 Common declaration of French British and Russian 14 May 1915 Common declaration of French British and Russian governmentsgovernments

1920 Treaty of Sevres1920 Treaty of Sevres

1919 Treaty of Versailles1919 Treaty of VersaillesArt. 227. (II William)Art. 227. (II William)Art. 228-230 (individual criminal Art. 228-230 (individual criminal

responsibilityresponsibility))Art. 304 (b) Art. 304 (b) (Mixed (Mixed TribunalsTribunals))

League of Nations League of Nations

1926 AIDP1926 AIDP

Turkish massacre of Kurds in the Turkish massacre of Kurds in the district of Dersim in 1937-1938district of Dersim in 1937-1938

NurembergNuremberg 1941: Roosevelt and Churchill declaration1941: Roosevelt and Churchill declaration

1942: Soviet Union1942: Soviet Union

13 January 1942: 9 States issue 13 January 1942: 9 States issue St. James Palace St. James Palace DeclarationDeclaration

Commission for the Investigation of War CrimesCommission for the Investigation of War Crimes United Nation’s War Crimes Commission (UNWCC))United Nation’s War Crimes Commission (UNWCC))

London Agreement of 8 August 1945: Statute of the London Agreement of 8 August 1945: Statute of the International Military Tribunal International Military Tribunal

12 December 1946: UN G.A.R. 177 (II) (1946).12 December 1946: UN G.A.R. 177 (II) (1946).

Art. 6 a)-c)Art. 6 a)-c)crimes against peacecrimes against peacewar crimes war crimes crimes against humanity crimes against humanity

Problems or achievements: Problems or achievements: not internationalnot internationalretroactive (ex post facto), violation of retroactive (ex post facto), violation of

nullum crimen/nulla poena principlenullum crimen/nulla poena principleintroduction of individual liability introduction of individual liability

Vernon Freemen, az USA katonai Vernon Freemen, az USA katonai főügyész hivatalának kiemelkedő főügyész hivatalának kiemelkedő jogásza egy feljegyzést írt a jogásza egy feljegyzést írt a következő címmel:következő címmel:

„„Háborús bűncselekmény e a jelen háború Háborús bűncselekmény e a jelen háború tervezése és megindítása?tervezése és megindítása?”. Freeman ”. Freeman ezt a kérdést nemlegesen válaszolta ezt a kérdést nemlegesen válaszolta meg, a ma már ismerős érvelés alapján, meg, a ma már ismerős érvelés alapján, miszerint a nemzetközi jog nem követeli miszerint a nemzetközi jog nem követeli meg, hogy valamely egyezmény meg, hogy valamely egyezmény megsértőjét büntetőjogilag felelősségre megsértőjét büntetőjogilag felelősségre vonják, kivéve, ha az adott szerződés vonják, kivéve, ha az adott szerződés büntetőszankciók alkalmazását írja elő büntetőszankciók alkalmazását írja elő megsértőivel szemben. megsértőivel szemben.

((Compare with BVerfGE 95, 96 (140) and Eur. Court H. R., Compare with BVerfGE 95, 96 (140) and Eur. Court H. R., Streletz, Kessler and Krenz v. Germany judgment of 22 Streletz, Kessler and Krenz v. Germany judgment of 22 March 2001March 2001))

Two other levels of courts:Two other levels of courts:– Allied Control Council Law No. 10 (1945)Allied Control Council Law No. 10 (1945)– German courtsGerman courts

19 January 1946:19 January 1946: International Military Tribunal for the Far International Military Tribunal for the Far

East (IMTFE)East (IMTFE)Proclamation by General MacArthur as Proclamation by General MacArthur as

Supreme Commander for the Allied Supreme Commander for the Allied Powers Powers

Bridge over the River Kwai (Guizo Mori)Bridge over the River Kwai (Guizo Mori)G. Faludy: My Happy Days in HellG. Faludy: My Happy Days in Hell

Some Other CasesSome Other Cases Nicaragua v. USA (ICJ,1986)Nicaragua v. USA (ICJ,1986)

(G.A.R. 3314 (XXIX) 14 December 1974)(G.A.R. 3314 (XXIX) 14 December 1974)

Finta v. Canada (1994)Finta v. Canada (1994)

Advisory Opinion of he ICJ on Nuclear Advisory Opinion of he ICJ on Nuclear Weapons (1996)Weapons (1996)

Lockerbie (1989-2000)Lockerbie (1989-2000) Pinochet (1998-1999)Pinochet (1998-1999) Genocide Convention 1948 (Prof. Lemkin) Genocide Convention 1948 (Prof. Lemkin) (Reader, p. 125)(Reader, p. 125)

The Core CrimesThe Core Crimes

((Crimes against peace Crimes against peace (aggression)(aggression)))

War crimesWar crimes Crimes against humanityCrimes against humanity GenocideGenocide (Terrorism(Terrorism Torture)Torture)

((Crimes against peace Crimes against peace (aggression)(aggression)))

The 1945 Charter of the International The 1945 Charter of the International Military Tribunal at Nuremberg defined Military Tribunal at Nuremberg defined war crimes as "violations of the laws war crimes as "violations of the laws or customs of war," including murder, or customs of war," including murder, ill-treatment, or deportation of ill-treatment, or deportation of civilians in occupied territory; murder civilians in occupied territory; murder or ill-treatment of prisoners of war; or ill-treatment of prisoners of war; killing of hostages; plunder of public killing of hostages; plunder of public or private property; wanton or private property; wanton destruction of municipalities; and destruction of municipalities; and devastation not militarily necessary. devastation not militarily necessary.

Crimes against humanityCrimes against humanity

After World War I, the Allies, in connection After World War I, the Allies, in connection with the Treaty of Versailles, established in with the Treaty of Versailles, established in 1919 a commission to investigate war crimes 1919 a commission to investigate war crimes that relied on the 1907 Hague Convention as that relied on the 1907 Hague Convention as the applicable law. the applicable law.

In addition to war crimes committed by the In addition to war crimes committed by the Germans, the commission also found that Germans, the commission also found that Turkish officials committed “crimes against Turkish officials committed “crimes against the laws of humanity” for killing Armenian the laws of humanity” for killing Armenian nationals and residents during the period of nationals and residents during the period of the war. the war.

IMT StatuteIMT Statute Article 6(c): Article 6(c): “Crimes against humanity: murder, “Crimes against humanity: murder, extermination, enslavement, extermination, enslavement, deportation, and other inhumane acts deportation, and other inhumane acts committed against civilian populations, committed against civilian populations, before or during the war; or before or during the war; or persecutions on political, racial or persecutions on political, racial or religious grounds in execution of or in religious grounds in execution of or in connection with any crime within the connection with any crime within the jurisdiction of the Tribunal, whether or jurisdiction of the Tribunal, whether or not in violation of the domestic law of not in violation of the domestic law of the country where perpetrated.”the country where perpetrated.”

GenocideGenocide the conception of Polish scholar Raphael the conception of Polish scholar Raphael

Lemkin, who first proposed at an Lemkin, who first proposed at an international conference in 1933 that a international conference in 1933 that a treaty be created to make attacks on treaty be created to make attacks on national, religious, and ethnic groups an national, religious, and ethnic groups an international crime. international crime.

Lemkin, who served in the U.S. War Lemkin, who served in the U.S. War Department, fashioned the term genocide Department, fashioned the term genocide from the Greek word genos, meaning race from the Greek word genos, meaning race or tribe, and the Latin term for killing, cide.or tribe, and the Latin term for killing, cide.

Although Lemkin’s conception included Although Lemkin’s conception included the physical extermination of targeted the physical extermination of targeted groups, this was, in his view, only the groups, this was, in his view, only the most extreme technique of genocide. most extreme technique of genocide.

In his 1944 book, Axis Rule in Occupied In his 1944 book, Axis Rule in Occupied Europe, Lemkin proposed that genocide Europe, Lemkin proposed that genocide should be understood as signifying “a should be understood as signifying “a coordinated plan of different actions coordinated plan of different actions aiming at the destruction of essential aiming at the destruction of essential foundations of the life of national groups, foundations of the life of national groups, with the aim of annihilating the groups with the aim of annihilating the groups themselves. themselves.

1948 Convention on the Prevention 1948 Convention on the Prevention and Punishment of the Crime of and Punishment of the Crime of Genocide Genocide ::

““any of the following acts committed with any of the following acts committed with intent to destroy, in whole or in part, a intent to destroy, in whole or in part, a national, ethnical, racial or religious group, national, ethnical, racial or religious group, as such: killing members of the group; as such: killing members of the group; causing serious bodily or mental harm to causing serious bodily or mental harm to members of the group; deliberately members of the group; deliberately inflicting on the group conditions of life inflicting on the group conditions of life calculated to bring about its physical calculated to bring about its physical destruction in whole or in part; imposing destruction in whole or in part; imposing measures intended to prevent births within measures intended to prevent births within the group; forcibly transferring children of the group; forcibly transferring children of the group to another group.”the group to another group.”

conspiracy to commit genocide, direct and conspiracy to commit genocide, direct and public incitement to commit genocide, public incitement to commit genocide, attempt to commit genocide, and attempt to commit genocide, and complicity in genocide.complicity in genocide.

It was not until September 2, 1998—a It was not until September 2, 1998—a half-century after the United Nations half-century after the United Nations General Assembly adopted the General Assembly adopted the Genocide Convention — that the first Genocide Convention — that the first verdict interpreting the convention was verdict interpreting the convention was rendered by an international tribunal. rendered by an international tribunal. On that day the Rwanda Tribunal found On that day the Rwanda Tribunal found Jean-Paul Akayesu guilty on nine counts Jean-Paul Akayesu guilty on nine counts for his role in the 1994 Rwandan for his role in the 1994 Rwandan genocide.genocide.

In its verdict in the Akayesu case, the In its verdict in the Akayesu case, the Rwanda Tribunal found that the Rwanda Tribunal found that the systematic rape of Tutsi women in systematic rape of Tutsi women in Taba Province constituted the Taba Province constituted the genocidal act of “causing serious genocidal act of “causing serious bodily or mental harm to members of bodily or mental harm to members of the [targeted] group.”the [targeted] group.”

Recent case law has also helped Recent case law has also helped clarify when genocidal intent can be clarify when genocidal intent can be established by virtue of a established by virtue of a perpetrator’s intent to destroy a perpetrator’s intent to destroy a protected group “in part.” protected group “in part.”

This requirement is satisfied, in the This requirement is satisfied, in the words of the ICTY Appeals Chamber, words of the ICTY Appeals Chamber, “where evidence shows that the “where evidence shows that the alleged perpetrator intended to alleged perpetrator intended to destroy at least a substantial part of destroy at least a substantial part of the protected group.” the protected group.”

Applying this standard in the case of Applying this standard in the case of Radislav Krstic, who commanded the Radislav Krstic, who commanded the Bosnian Serb Drina Corps during the Bosnian Serb Drina Corps during the infamous Srebrenica massacre of July infamous Srebrenica massacre of July 1995, an ICTY trial chamber concluded 1995, an ICTY trial chamber concluded that the intent to destroy the Bosnian that the intent to destroy the Bosnian Muslims of Srebrenica by killing their Muslims of Srebrenica by killing their men constituted the intent to destroy a men constituted the intent to destroy a substantial part of a national group substantial part of a national group protected by the Genocide Convention, protected by the Genocide Convention, “the Bosnian Muslims.” “the Bosnian Muslims.”

The trial chamber reasoned, in part, that The trial chamber reasoned, in part, that “Bosnian Serb forces could not have failed to “Bosnian Serb forces could not have failed to know, by the time they decided to kill all the know, by the time they decided to kill all the men, that this selective destruction of the men, that this selective destruction of the group would have a lasting impact upon the group would have a lasting impact upon the entire group[; they] had to be aware of the entire group[; they] had to be aware of the catastrophic impact that the disappearance of catastrophic impact that the disappearance of two or three generations of men would have two or three generations of men would have on the survival of a traditionally patriarchal on the survival of a traditionally patriarchal society.” Krstic was convicted of genocide, society.” Krstic was convicted of genocide, though the Court’s Appeals Chamber later though the Court’s Appeals Chamber later reduced this to a conviction for aiding and reduced this to a conviction for aiding and abetting genocide.abetting genocide.

By early 2006, the Rwanda war By early 2006, the Rwanda war crimes tribunal had convicted 24 crimes tribunal had convicted 24 defendants of genocide or genocide-defendants of genocide or genocide-related charges. By contrast, a small related charges. By contrast, a small proportion of those indicted by the proportion of those indicted by the Yugoslavia tribunal has been Yugoslavia tribunal has been convicted of genocide-related convicted of genocide-related offences. offences.

In view of the magnitude of the carnage there—In view of the magnitude of the carnage there—some 1.5 million out of Cambodia’s 7 million some 1.5 million out of Cambodia’s 7 million citizens are believed to have died as a result of citizens are believed to have died as a result of Khmer Rouge policies—there has been a keen Khmer Rouge policies—there has been a keen desire to affix the term “genocide” to their desire to affix the term “genocide” to their crimes. Since, however, both the perpetrators crimes. Since, however, both the perpetrators and the majority of victims were Khmer, reaching and the majority of victims were Khmer, reaching this conclusion has required agile legal reasoning. this conclusion has required agile legal reasoning. Some scholars have invoked the concept of auto-Some scholars have invoked the concept of auto-genocide, arguing that it is possible to satisfy the genocide, arguing that it is possible to satisfy the 1948 convention’s definition even when the 1948 convention’s definition even when the perpetrators sought to kill a substantial portion of perpetrators sought to kill a substantial portion of their own ethnic/national group. their own ethnic/national group.

IV. International CourtsIV. International Courts

• 1) ICTY• 2) ICTR• 3) Special Court for Sierra Leone• 4) Iraqi Special Tribunal• 5) Extraordinary Chambers Cambodia• 6) Secial Panels for Serious Crimes in East

Timor• 7) UNMIK (Kosovo)(Geiss – Bulinckx: International and internationlized criminal tribunals a

synopsis (88 ICRC Rev. No. 861 (2006) 49)

• Special Court for Sierra Leone- 2002 agreement between UN and SL- IHL and national law- life imprisonment

• Iraqi Special Tribunal- 2003 Statute by Iraqi Gov.- ICL, IHL, Iraqi law- Death penalty (illegal ?, Prof. Bohlander: ZStW (2005), 677)

Extraordinary Chambers Cambodia

- 2003, Cambodian law, agreement between UN and Cambodia

- ICL, IHL, national law

Secial Panels for Serious Crimes inEast Timor

- 2000, S.C.R.,

- IHL, PIL, national law

ICTYICTY• S.C.R. 827 (1993)• ad hoc tribunal limited in space and time (1991-)• Grave breaches of the GC (1949) (Art. 2)• Violations of the laws or customs of war (Art. 3) • Genocide (Art. 4)• Crimes against humanity (Art 5) • Chambers, Trial and an Appeals Chamber (The Chambers

consist of 16 permanent judges and a maximum at any one time of twelve ad litem judges. The 16 permanent judges are elected by the UN General Assembly for a term of four years. They can be re-elected. The ad litem judges are drawn from a pool of 27 judges.)

• Prosecutor• Registry• Life imprisonment

ICTRICTR• S.C.R. 955 (1994)• ad hoc tribunal limited in space and time (1994)• Grave breaches of the GC (1949) (Art. 2)• Violations of Article 3 common to the Geneva

Conventions and of Additional Protocol II (Art. 4) • Genocide (Art. 2)• Crimes against humanity (Art. 3) • Three Trial Chambers and an Appeals Chamber are

composed of 16 independent judges. • Prosecutor• Registry• Death penalty

The ICC

1994 UN Law Commission prepared a Draft for the General Assembly

1995 UN Prep. Com. for the establishment of an ICC

17 July 1998 UN Diplomatic Conference voted on the Statute of the ICC

1 July 2002 RS came into force

Article 126Entry into force– 1. This Statute shall enter into force on the first day of

the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.

The 60th ratification was deposited on 11 April 2002.

III) Structure of the ICC

Characteristics– Independent international organisation– Not a body of the UN, established by treaty– 6 official languages, working languages: EN, FR

Organs – Presidency– Chambers– Office of the Prosecutor (Luis Moreno-Ocampo)– Registry– Other organs

Judges

18 judges (now 16)– WEOG – 7– GRULAC – 4– Asian and African States: 3-3– East-European States: 1

A and B lists– A: criminal lawyers– B: international humanitarian lawyers

Presidency

President: Judge Sang-Hyun SONG (Republic of Korea), President

Judge Sanji Mmasenono MONAGENG (Botswana), First Vice-President

Judge Cuno TARFUSSER (Italy), Second Vice-President

Task: administrative leadership

Chambers

Pre-Trial Chamber Trial Chamber Appeals Chamber

The Appeals Division is composed of five judges: Judge Akua Kuenyehia (Ghana), President of

Division Judge Sang-Hyun Song (Republic of Korea) Judge Erkki Kourula (Finland) Judge Anita Ušacka (Latvia) Judge Sanji Mmasenono Monageng (Botswana)

The judges assigned to the Trial Division are :  Judge Kuniko Ozaki (Japan), President of Division Judge Joyce Aluoch (Kenya)

Judge Howard Morrison (United Kingdom) Judge Robert Fremr (Czech Republic) Judge Chile Eboe-Osuji (Nigeria) The following judges are continuing in office to

complete their trials, in accordance with article 36(10) of the Rome Statute:

Judge Fatoumata Dembele Diarra (Mali) Judge Sylvia Steiner (Brazil) Judge Bruno Cotte (France)

Jurisdiction

Complementary Only if State

– unable– unwilling (Art. 17) (PROBLEM: ne bis in idem)

State Party– on her territory– by citizen (Art. 12 (1) (2))

State not Party– by declaration (Art. 12 (3))

Exercise of Jurisdiction (Art. 13)

State Party refers case to Prosecutor S.C. refers case to Prosecutor Prosecutor starts investigation

Truth and Reconciliation Commissions

Bearing Kirsch’s comments in mind, three principal provisions in the Rome Statute could arguably allow for criminal trials and truth commissions to coexist. At first sight, Articles 16 and 17 seem well situated to accommodate truth commissions combined with amnesties. The former stipulates that ‘‘No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect.’’ It could thus be argued that the Security Council, provided it has determined the existence of a threat to peace, a breach of the peace or an act of aggression, could request the ICC to defer temporarily an investigation or prosecution when states employ truth commissions combined with amnesties. In addition, 17(1)(a) and (b) declare a case inadmissible where ‘‘The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’’ or where ‘‘The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.’’ It appears plausible to contend that, under certain circumstances, the meting out of amnesties in combination with truth-telling could lead to the inadmissibility of a case before the ICC.

Yet it has been submitted that, should transitional justice mechanisms be

taken into consideration by the ICC, Article 53, empowering the ICC Prosecutor

to refrain from initiating an investigation or a prosecution ‘‘in the interests of

justice’’, could be brought into play as well.

1. … In deciding whether to initiate an investigation, the Prosecutor shall consider whether: … (c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. (emphasis added) … 2. If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: … (c) A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime, he shall inform the Pre-Trial Chamber and the State making a referral under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.’’ (emphasis added)

Article 20 Ne bis in idem

1. Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.

2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court.

3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

DARFUR case (2002) SudanDARFUR case (2002) Sudan S.C.R. (31 March 2005) S.C.R. (31 March 2005) Office of the Prosecutor Office of the Prosecutor

conducted preliminary examination (April-May 2005) conducted preliminary examination (April-May 2005) opened the investigation (1 June 2005)opened the investigation (1 June 2005)

20-month investigation:20-month investigation: war crimes, crimes against humanity war crimes, crimes against humanity

allegedly comitted upon hundreds of villages allegedly comitted upon hundreds of villages and towns in West Darfur by Sudanese and towns in West Darfur by Sudanese Armed Forces, 2 million people are displaced.Armed Forces, 2 million people are displaced.

Ahmad Muhammad Harun (State Minister of Ahmad Muhammad Harun (State Minister of Interior) and Ali Kushayb (colonel of colonels) Interior) and Ali Kushayb (colonel of colonels) allegedly bear criminal responsibilityallegedly bear criminal responsibility

Prosecutor concluded that the case is admissible.Prosecutor concluded that the case is admissible. 27 Februar 2007: Prosecutor requests the Pre-Trial 27 Februar 2007: Prosecutor requests the Pre-Trial

Chamber to issue summonses. Chamber to issue summonses. 2 May 2007 Chamber issues warrants of arrest for 2 May 2007 Chamber issues warrants of arrest for

crimes againt humanity and war crimes. crimes againt humanity and war crimes.

Dyilo (Congo) caseDyilo (Congo) case Crime: enlisting and conscripting children Crime: enlisting and conscripting children

under the age of 15 years into the FPLC under the age of 15 years into the FPLC (Forces Patriotiques pour la Libération du (Forces Patriotiques pour la Libération du Congo) and using them to participate in Congo) and using them to participate in hostilities from September 2002 to 13 hostilities from September 2002 to 13 August 2003.August 2003. Pre-Trial Chamber issues warrant of arrest Pre-Trial Chamber issues warrant of arrest

against Thomas Lubanga Dyilo (commander) 10 against Thomas Lubanga Dyilo (commander) 10 February 2006.February 2006.

17 March 2006 TLD transferred to the Hague17 March 2006 TLD transferred to the Hague March and November 2006 hearings.March and November 2006 hearings.

However, following Uganda’s ratification However, following Uganda’s ratification of the Rome Statute on 14 Juneof the Rome Statute on 14 June

2002, President Museveni referred the 2002, President Museveni referred the situation concerning the LRA to thesituation concerning the LRA to the

International Criminal Court (ICC) in International Criminal Court (ICC) in December 2003.December 2003.

ICC Prosecutor to spare the rebels,3 ICC Prosecutor to spare the rebels,3 arrest warrantsarrest warrants

against Joseph Kony, the LRA leader, and against Joseph Kony, the LRA leader, and four of his closest henchmen were issuedfour of his closest henchmen were issued

soon thereafter.4soon thereafter.4

V. Criminal Responsibility V. Criminal Responsibility of the Stateof the State

States can be held legally responsible for breaching their obligations States can be held legally responsible for breaching their obligations under the Genocide Convention. Parties to the convention can bring a under the Genocide Convention. Parties to the convention can bring a case before the International Court of Justice (which handles disputes case before the International Court of Justice (which handles disputes between States) alleging that another State party has violated the treaty. between States) alleging that another State party has violated the treaty. But no State turned to the ICJ to enforce the treaty against a State said But no State turned to the ICJ to enforce the treaty against a State said to be responsible for genocide until 1993. That case was brought by a to be responsible for genocide until 1993. That case was brought by a State that had endured atrocities—Bosnia and Herzegovina—against a State that had endured atrocities—Bosnia and Herzegovina—against a State allegedly responsible—the former Yugoslavia—and not by other State allegedly responsible—the former Yugoslavia—and not by other States determined to enforce the law of universal conscience on behalf States determined to enforce the law of universal conscience on behalf of desperate victims beyond their borders. In a controversial judgment of desperate victims beyond their borders. In a controversial judgment rendered on February 26, 2007, the ICJ concluded that Bosnia’s legal rendered on February 26, 2007, the ICJ concluded that Bosnia’s legal team had established the occurrence of genocide only in respect of the team had established the occurrence of genocide only in respect of the Srebrenica massacre. But, the Court found, Bosnia failed to prove the Srebrenica massacre. But, the Court found, Bosnia failed to prove the Serbian State’s legal responsibility for this genocide.Serbian State’s legal responsibility for this genocide.

Serbia nonetheless became the first State in history judged to have Serbia nonetheless became the first State in history judged to have violated the Genocide Convention. Its failure to arrest and transfer to the violated the Genocide Convention. Its failure to arrest and transfer to the ICTY Ratko Mladic, who was twice indicted for genocide by the ICTY, ICTY Ratko Mladic, who was twice indicted for genocide by the ICTY, violated Serbia’s treaty-based duty to punish genocide. Serbia was found violated Serbia’s treaty-based duty to punish genocide. Serbia was found in violation of another core duty under the genocide treaty—to prevent in violation of another core duty under the genocide treaty—to prevent genocide. In the Court’s reckoning, this obligation meant that Serbia genocide. In the Court’s reckoning, this obligation meant that Serbia should have used its significant influence with the Bosnian Serbs who should have used its significant influence with the Bosnian Serbs who carrried out the Srebrenica genocide to prevent them from doing so. carrried out the Srebrenica genocide to prevent them from doing so.

ICC ICC Article 28Article 28 Responsibility of commanders and other superiorsResponsibility of commanders and other superiors In addition to other grounds of criminal responsibility under this Statute for In addition to other grounds of criminal responsibility under this Statute for

crimes within the jurisdiction of the Court:crimes within the jurisdiction of the Court: (a) A military commander or person effectively acting as a military (a) A military commander or person effectively acting as a military

commander shall be criminally responsible for crimes within the jurisdiction of commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were circumstances at the time, should have known that the forces were committing or about to commit such crimes; and committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and (ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for commission or to submit the matter to the competent authorities for investigation and prosecution. investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in (b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit clearly indicated, that the subordinates were committing or about to commit such crimes; such crimes;

(ii) The crimes concerned activities that were within the effective responsibility (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.matter to the competent authorities for investigation and prosecution.

Article 30Article 30 Mental elementMental element 1. Unless otherwise provided, a person shall be 1. Unless otherwise provided, a person shall be

criminally responsible and liable for punishment for a criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the crime within the jurisdiction of the Court only if the material elements are committed with intent and material elements are committed with intent and knowledge.knowledge.

2. For the purposes of this article, a person has intent 2. For the purposes of this article, a person has intent where: where:

(a) In relation to conduct, that person means to engage (a) In relation to conduct, that person means to engage in the conduct; in the conduct;

(b) In relation to a consequence, that person means to (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in cause that consequence or is aware that it will occur in the ordinary course of events.the ordinary course of events.

3. For the purposes of this article, "knowledge" means 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a awareness that a circumstance exists or a consequence will occur in the ordinary course of consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed events. "Know" and "knowingly" shall be construed accordingly. accordingly.

Article 32Article 32 Mistake of fact or mistake of lawMistake of fact or mistake of law 1. A mistake of fact shall be a ground for 1. A mistake of fact shall be a ground for

excluding criminal responsibility only if it excluding criminal responsibility only if it negates the mental element required by negates the mental element required by the crime.the crime.

2. A mistake of law as to whether a 2. A mistake of law as to whether a particular type of conduct is a crime within particular type of conduct is a crime within the jurisdiction of the Court shall not be a the jurisdiction of the Court shall not be a ground for excluding criminal ground for excluding criminal responsibility. A mistake of law may, responsibility. A mistake of law may, however, be a ground for excluding however, be a ground for excluding criminal responsibility if it negates the criminal responsibility if it negates the mental element required by such a crime, mental element required by such a crime, or as provided for in article 33.or as provided for in article 33.

Article 33Article 33 Superior orders and prescription of lawSuperior orders and prescription of law 1. The fact that a crime within the jurisdiction of the 1. The fact that a crime within the jurisdiction of the

Court has been committed by a person pursuant to Court has been committed by a person pursuant to an order of a Government or of a superior, whether an order of a Government or of a superior, whether military or civilian, shall not relieve that person of military or civilian, shall not relieve that person of criminal responsibility unless:criminal responsibility unless:

(a) The person was under a legal obligation to obey (a) The person was under a legal obligation to obey

orders of the Government or the superior in orders of the Government or the superior in question; question;

(b) The person did not know that the order was (b) The person did not know that the order was unlawful; and unlawful; and

(c) The order was not manifestly unlawful.(c) The order was not manifestly unlawful.

2. For the purposes of this article, orders to commit 2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly genocide or crimes against humanity are manifestly unlawful. unlawful.