International Criminal Law Notes

Introduction to International Criminal Law

Atrocity Crimes
  • Defined as acts of extreme cruelty or heinousness.
  • Coined by David Scheffer.
  • Includes genocide, crimes against humanity, and war crimes.
  • Also includes the crime of aggression (previously known as the crime against peace), forming the four core international crimes.
  • Students should read and understand Articles 6-8 bis of the Rome Statute, which pertains to the International Criminal Court (ICC).

Ad Hoc International Criminal Tribunals

History
  • Following World War II, the Nuremberg Charter was created to prosecute Nazis for war crimes, crimes against humanity, and crimes against peace. This was the Charter of the International Military Tribunal (IMT) of 1945.
  • A similar tribunal, the International Military Tribunal for the Far East (IMTFE), was established in Japan in 1946 to prosecute those responsible for crimes during WWII.
  • These tribunals aimed to deliver justice for atrocity crimes. Previous attempts to prosecute such crimes after WWI had failed because home countries often acquitted the accused.
  • The Cold War halted further progress in international prosecution of atrocity crimes.
Post-Cold War Developments
  • The end of the Cold War led to the creation of two ad hoc tribunals: one for the former Yugoslavia (ICTY) and another for Rwanda (ICTR).
  • Both tribunals were established through Security Council Resolutions under Chapter VII of the UN Charter.
  • Under Article 39, the UNSC can make a 'Chapter VII Resolution' when there is a threat to peace, breach of peace, or act of aggression.
  • Article 41 allows the UNSC to decide on sanctions and measures not involving armed force.
  • The need for a permanent court led to the adoption of the Rome Statute, establishing the International Criminal Court (ICC).

The ICTY: International Criminal Tribunal for the Former Yugoslavia

Creation
  • Established by Security Council Resolution S/RES/827 (1993) due to grave violations of international humanitarian law in the former Yugoslavia, particularly in Bosnia and Herzegovina.
  • These violations included mass killings, systematic detention and rape of women, and ethnic cleansing to acquire territory.
  • The Security Council determined that the situation in the former Yugoslavia constituted a threat to international peace and security.
  • The establishment of the ICTY was seen as a means to restore and maintain peace.
  • Resolution S/RES/827 (1993) established the ICTY to prosecute individuals responsible for serious violations of international humanitarian law within the territory of the former Yugoslavia between January 1, 1991, and a date to be determined by the Security Council upon the restoration of peace.
  • All states were required to cooperate fully with the ICTY and implement the resolution, including complying with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute.
Organizational Structure
  • Composed of Chambers (Trial and Appeals), the Office of the Prosecutor, and the Registry.
Crimes Included in the Statute
  • Article 2: Grave Breaches of the Geneva Conventions of 1949
  • Article 3: Violations of the Laws or Customs of War
  • Article 4: Genocide
  • Article 5: Crimes against Humanity
  • Articles 2 and 3 are considered war crimes.
Validity of Security Council Creation: The Tadic Case
  • In Prosecutor v. Dusko Tadic, Tadic, a member of Bosnian Serb paramilitary forces, was accused of atrocities against civilians in the Prijedor region, including operating detention camps and participating in beatings, murder, torture, and persecution.
  • Tadic challenged the ICTY's jurisdiction, arguing that the UNSC was not authorized to create such a tribunal and that the ICTY did not have precedence over national courts.
  • The ICTY asserted its competence based on the principle of "Kompetenz-Kompetenz" (jurisdiction to determine its own jurisdiction).
  • This principle is an inherent part of any judicial or arbitral tribunal's jurisdiction, necessary for exercising judicial functions.
  • The ICTY emphasized that ascertaining its competence is the primary obligation of any judicial body in international law.

The ICTR: International Criminal Tribunal for Rwanda

Background
  • The Rwandan Genocide in 1994 involved the systematic murder of the Tutsi minority by Hutu militias.
  • Between April and mid-July, at least 500,000 Tutsis and thousands of Hutus were killed.
  • The ICTR was established to prosecute those responsible for these atrocities.
Crimes Included in the Statute
  • Article 2: Genocide
  • Article 3: Crimes against Humanity
  • Article 4: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (containing war crimes).

Similarities Between ICTY and ICTR

  • Both were defined in Security Council resolutions.
  • Both were created under Chapter VII of the UN Charter, requiring a finding of a breach of or threat to peace.
  • Security Council approval was necessary (with the possibility of veto by a P5 member).
  • Both operated outside the conflict territories: ICTY in The Hague, Netherlands, and ICTR in Arusha, Tanzania.
  • Both were limited to specified crimes, such as grave breaches of laws of war and crimes against humanity.
  • Both were limited to specified territories and acts after a specific date.
Structure
  • Both consisted of three trial chambers and one appeals chamber.
  • The ICTR was semi-separate from the ICTY, sharing the same appeals chamber but having different trial chambers (located in The Hague for ICTY and Arusha for ICTR).
Procedures and Practices
  • The Prosecutor investigates and brings charges to the Pre-Trial Chamber.
  • The Pre-Trial Chamber decides whether to issue a warrant.
  • The Trial Chamber (three judges) conducts the trial.
  • The Appeal Chamber (five judges) hears appeals.
  • Both tribunals faced challenges including a narrow scope of jurisdiction, limited cooperation, delays, exorbitant budgets, and pressure to conclude their work.
Jurisdiction
  • ICTY Statute
    • War crimes, including grave breaches of the 1949 Geneva Conventions and violations of the laws or customs of war.
    • Genocide.
    • Crimes against humanity.
  • ICTR Statute
    • Genocide (Article 2).
    • Crimes against humanity (Article 3).
    • War crimes: violations of Article 3 common to the Geneva Conventions and of Additional Protocol II of 1977.
  • The ICTY statute pertained to international armed conflict, while the ICTR statute related to non-international armed conflict.
Current Status
  • Both tribunals are now closed, but some appeals are still pending.
  • The International Residual Mechanism for Criminal Tribunals (IRMCT) was established to handle ongoing appeals, ensure victims' rehabilitation and witnesses' protection, try remaining fugitives, and oversee convicts serving sentences.

The ICC: International Criminal Court

Creation
  • 1994: The General Assembly appointed an ad hoc committee.
  • 1995: The ad hoc committee submitted a report merging provisions on the creation and jurisdiction of the ICC.
  • A Preparatory Committee was created by the General Assembly to draft texts for a diplomatic conference.
  • The Rome Conference took place from June 16 to July 17, 1998.
  • On July 17, 1998, the Rome Statute of the International Criminal Court was adopted.
  • The Statute went into effect on July 1, 2002.
  • Currently, there are 125 parties to the Rome Statute.
  • Referrals by the Security Council include situations in Darfur (Sudan) and Libya.
Structure of the Rome Statute
  • Part 1: Creation of the International Criminal Court.
  • Part 2: Crimes over which the Court has jurisdiction.
  • Part 3: General Principles of criminal law.
  • Part 4, 11, 12: Constitution, administration, and financing of the ICC.
  • Part 5-10: Procedure before the Court and cooperation.
Jurisdiction of the ICC
  • Three Key Aspects
    • Temporal Jurisdiction
    • Jurisdiction over certain crimes (subject matter jurisdiction)
    • Jurisdiction over specific states (based on territoriality and active nationality principle).
Subject Matter Jurisdiction
  • The Court has jurisdiction over the crimes of genocide (Art. 6), crimes against humanity (Art. 7), war crimes (Art. 8), and aggression (Art. 8 bis).
  • The crime of aggression is a newer crime, and many countries have not opted in, as it directly criminalizes heads of state who have declared war.
Temporal Jurisdiction
  • Begins from when the Rome Statute came into effect, i.e., July 1, 2002.
  • Article 24 states that no person shall be criminally responsible under the Statute for conduct before its entry into force.
  • Article 22 (Nullum crimen sine lege) states that a person shall not be criminally responsible unless the conduct constitutes a crime within the Court's jurisdiction at the time it takes place.
  • The Court can only prosecute crimes of aggression that took place after 2018, when Art. 8 bis came into effect.
Jurisdiction over States
  • The ICC exercises jurisdiction based on the territory or active nationality of a state that has accepted the Court's jurisdiction.
  • Both states do not need to be states parties if the crime was committed in a state or by a national of a state subject to the Court's jurisdiction.
  • For the crime of aggression (Art. 8 bis), both states must have accepted the Court's jurisdiction (Art. 15 bis) unless the UNSC has referred the matter.
Mode of Acceptance of Jurisdiction
  • Given in Art. 12 of the Statute.
    • Becoming a party to the Statute: when a state signs and ratifies the Statute, it automatically accepts the Court's jurisdiction.
    • Ad hoc acceptance (Art. 12 para. 3): if a state cannot ratify the Statute, it can accept the ICC's jurisdiction from a particular time period, as done by Ukraine and Palestine.
Trigger Mechanism
  • Refers to when the Court begins an investigation and issues arrest warrants.
  • Article 13 details three methods:
    • Referral by a state party (individual or collective), can be self-referral or referral by others.
    • Referral by the Security Council.
    • Proprio Motu investigation by the Prosecutor (requires approval from the Pre-Trial Chamber).
Referral by State Parties
  • States that have accepted the jurisdiction of the Court can refer matters to the Prosecutor.
    • Example: Ivory Coast (self-referral).
    • Example: Ukraine (referral by several countries).
Referral by Security Council
  • Even if neither party has accepted the ICC's jurisdiction, the Security Council can make a finding under Chapter VII of the UN Charter.
  • Examples: Libya and Sudan (Darfur region).
  • The UNSC is less likely to make referrals involving more powerful countries.
Jurisdiction at a Glance
  • Exercise of Jurisdiction
    • State Referral (Territory OR Nationality (Active))
    • Security Council
    • Proprio Motu (Pre-Trial Chamber Investigation)
Composition of the ICC
  • The Presidency: Represents the ICC externally and organizes judicial chambers.
  • The Judicial Divisions:
    • Pre-Trial Division.
    • Trial Division.
    • Appeals Division.
  • The Office of the Prosecutor: Conducts investigations and prosecutes cases.
  • The Registry: Provides administrative and operational support.
Functions of the ICC
  • Prosecuting individuals for international crimes (genocide, crimes against humanity, war crimes, and crimes of aggression)
  • Providing reparations to victims.
  • Promoting international criminal justice.
  • Providing legal assistance to national courts.
  • Cooperating with national governments and organizations.
Principle of Complementarity
  • The ICC only intervenes when national courts are unable or unwilling to genuinely investigate and prosecute international crimes.
Penalties (Article 77)
  • Imprisonment for a specified number of years (up to 30 years).
  • Life imprisonment when justified by the extreme gravity of the crime.
  • A fine under the criteria provided for in the Rules of Procedure and Evidence.
  • Forfeiture of proceeds, property, and assets derived from the crime.

International Crimes

Genocide Definition
  • The intentional and systematic intention to destroy or eliminate a people.
  • UN definition: denial of the right of existence of entire human groups.
  • Definition first used at the Nuremberg Trials after WWII.
  • Genocide made an international crime by the UN in 1948 (Genocide Convention).
Definition under the Rome Statute
  • Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group:
    • Killing members of the group.
    • Causing serious bodily or mental harm to members of the group.
    • Deliberately inflicting conditions of life calculated to bring about its physical destruction.
    • Imposing measures intended to prevent births within the group.
    • Forcibly transferring children of the group to another group.
Protected Interests
  • Controversy over whether the “destruction” of a group means only physical/biological destruction or also social destruction.
  • Courts, especially the ICTY, have considered destroying group identity as a form of genocide.
  • Transferring children from one group to another may be a form of social destruction.
Protected Groups
  • The ICTR recognized that groups can be “perceived” to be different ethnicities, even without objective distinctions (Akayesu case).
  • Established the idea of genocide of “stable groups.”
Mental Element of Genocide
  • Intent to destroy a group in whole or in part should be specific and the goal of the perpetrator.
  • When targeting individual members of a group, the intent to kill them needs to be because they belong to that particular group.
  • Genocidal acts can be aimed against members of a larger group who live in a particular area.
  • The ICC Statute does not attribute genocidal intent of one party to another in the case of joint criminal enterprise.
Overview and definition of Crimes Against Humanity
  • Certain acts that are purposefully committed as part of a widespread or systematic policy, directed against civilians, in times of war or peace.
  • Can be committed during both peacetime and wartime.
Definition under the Rome Statute
  • Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
    • Murder
    • Extermination
    • Enslavement
    • Deportation or forcible transfer of population
    • Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
    • Torture
    • Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity
    • Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law
    • Enforced disappearance of persons
    • The crime of apartheid
    • Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Key definitions for crimes against humanity
  • "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack
  • "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population
  • "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children