International Criminal Courts and Tribunals Study Notes
Course Logistics and Final Examination Information
Final Exam Schedule: The final examination is scheduled for Wednesday, April 29, 2026, from 1:00 PM to 3:50 PM.
Examination Format: * The exam is comprehensive in nature. * It consists of 100 questions including Multiple Choice (M/C) and True/False (T/F).
Required Materials: Students must obtain a Scantron from the Student Union Information Desk or the Student Government Office (Suite 346) prior to the exam date.
Open Notes Policy: This is an open-notes examination. Students are permitted to bring unlimited printouts of class materials and personal notes.
Class Schedule Update: There will be no in-person class on Wednesday, April 15. A video lecture will be posted as a replacement.
Interactive Exercise: Vladimir Putin Indictment Scenario
Scenario Overview: Vladimir Putin was recently indicted by the International Criminal Court (ICC) for crimes against humanity, specifically regarding the deportation and transfer of Ukrainian children.
Small Group Roles (Groups of 5): * Representative of Russia. * Representative of the USA. * Representative of Ukraine. * The ICC Prosecutor. * The UN General Assembly.
Objective: Groups must debate whether to assist the ICC in arresting Putin based on specific legal and political considerations.
Key Questions for Consideration: * What is the Law of Armed Conflict (LOAC)? * What defines International Criminal Law? * What are the specific definitions of war crimes and crimes against humanity? * What is the underlying purpose of prosecuting individuals for human rights violations during war? * What challenges are faced when attempting to pierce state sovereignty (the concept of "Principle vs. Power")? * What is "Victor’s Justice?" * Do certain offenses transcend sovereign boundaries? * How do international criminal tribunals balance the need for efficiency with the requirement for independence?
Fundamental Principles of the Law of Armed Conflict (LOAC)
Distinction: The requirement to distinguish between combatants and civilians/civilian objects.
Proportionality: The principle that the anticipated loss of life or damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage anticipated.
Necessity: Military necessity requires that force be used only to achieve a legitimate military objective.
Unnecessary Suffering: Prohibits the use of weapons or methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
The International Criminal Tribunal for the former Yugoslavia (ICTY): 1993–2017
Establishment: Formed pursuant to United Nations Convention Article VII authorities; the updated statute was released in 2009.
Competence and Jurisdiction: * Scope: The court can prosecute serious violations of international humanitarian law committed in the territory of the former Yugoslavia beginning January 1, 1991. * Grave Breaches of Geneva Conventions of 1949: * Wilful killing. * Torture or inhumane treatment. * Wilfully causing great suffering or serious injury to body or health. * Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. * Conscripting a prisoner of war or civilian into military service. * Depriving a prisoner of war or civilian of a fair trial. * Unlawful deportation, transfer, or confinement of a civilian. * Taking civilians as hostages. * Violations of Laws or Customs of War: * Unnecessary suffering. * Wanton destruction not justified by military necessity. * Seizure of, wilful damage to, or destruction of cultural, religious, or educational civilian sites. * Plunder of private property. * Genocide: Prohibits acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. Specific acts include: * Killing members of the group. * Causing serious bodily or mental harm. * Deliberately inflicting conditions of life calculated to bring about physical destruction. * Measures intended to prevent births. * Forcibly transferring children to another group. * Jurisdiction covers intentional acts, conspiracy, incitement, attempt, and complicity. * Crimes Against Humanity: Defined as acts directed against a civilian population during armed conflict (International Armed Conflict or Non-International Armed Conflict), including murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political/racial/religious grounds, and other inhumane acts.
Liability and Responsible Parties: * Official position (e.g., Head of State) does not alleviate liability. * Acting under orders is not a valid defense. * Superiors are responsible for the acts of their subordinates.
Jurisdiction Particulars: * The ICTY has concurrent jurisdiction with national courts but maintains primacy. * Double jeopardy is prohibited. * Temporal limitation: Crimes must have occurred after January 1, 1991. * Geographic limitation: Territory of the former Yugoslavia.
Structural Organization: * Chambers: Three trial chambers and one appellate chamber. * The Prosecutor: Responsible for investigations and indictments. * The Registry: Handles administration.
Composition of the Court: * Maximum of 16 permanent judges; only one from each state. * 12 ad litem judges; only one from each state. * Trial chambers consist of 3 permanent and 6 ad litem judges. * Appeals Chamber consists of 7 permanent members (5 sit on any particular appeal). * Judges serve 4-year terms and are eligible for re-election. * Nominations are provided by states (up to 2 per state); the final list of nominees must be between 28 and 42 individuals, selected by absolute majority vote.
The Prosecutor’s Role: * Appointed by the Security Council on nomination by the Secretary-General. * Initiates investigations, conducts on-site inquiries, and seeks state support. * Seeks indictments, arrest warrants, and transfer orders from the Trial Chamber.
Rights of the Accused: * Right to counsel during questioning. * Right to equal protection and a public hearing. * Protection from undue delay. * Right to cross-examination and presence at trial. * Right against self-incrimination.
Verdicts and Penalties: * Rendered by a 3-judge panel. * Penalties are limited to imprisonment and return of property. * Sentences are served in designated states.
State Cooperation Requirements: Member states must assist in identifying/locating persons, taking testimony, producing evidence, service of documents, arrest, and transfer of accused individuals.
Administrative Notes: Members enjoy diplomatic privileges and immunities; the budget is handled by the UN.
The International Criminal Tribunal for Rwanda (ICTR): 1994–2015
Establishment: Formed under Chapter VII of the UN Security Council.
Temporal Jurisdiction: Offenses committed between January 1, 1994, and December 31, 1994.
Crimes and Competence: * Genocide and Crimes Against Humanity are defined identically to the ICTY. * Common Article 3 of the Geneva Conventions and Additional Protocol II: Includes violations such as violence to life/health, murder, torture, mutilation, collective punishments, hostage-taking, act of terrorism, outrages upon personal dignity (rape, humiliating treatment), pillage, and executions without regular courts.
Tribunal Commonalities: Both the ICTY and ICTR shared the same prosecutor for many years and have identical rules regarding individual liability, concurrent jurisdiction/primacy, and composition of chambers.
The Rome Statute and the International Criminal Court (ICC)
Foundation: Adopted July 17, 1998; entered into force July 1, 2002.
Nature: A permanent court separate from (but tied to) the UN, seated at The Hague, Netherlands.
Jurisdiction Philosophy: Universal jurisdiction tied to specific subject matter (limited to the most serious crimes of concern to the international community). * Specific Crimes (Art. 5-8): Genocide, Crimes Against Humanity, War Crimes, and the Crime of Aggression.
Definitions under the Rome Statute: * Genocide (Art. 6): Intentional acts to destroy national, ethnical, racial, or religious groups (Killing, bodily/mental harm, inflicting conditions for destruction, preventing births, transferring children). * Crimes Against Humanity (Art. 7): Acts committed as part of a widespread or systematic attack against a civilian population with knowledge of the attack. Includes murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence (rape, forced pregnancy, sterilization), persecution, apartheid, and other inhumane acts. * War Crimes (Art. 8): Specifically when committed as part of a plan or policy or large-scale commission; includes grave breaches of the 1949 Geneva Conventions. * Crime of Aggression (Art. 8bis): Planning/execution by a person in control of a state's military/political action that constitutes a manifest violation of the UN Charter (use of armed force against sovereignty/territorial integrity).
Criminal Liability: Includes joint commission, ordering/inducing, aiding/abetting, group enterprise, incitement (for genocide), and attempt.
Applicable Persons: Includes military commanders and supervisors for subordinate actions; superior orders are not a defense.
Mens Rea: Requires intent and knowledge (meaning to commit the act and meaning to cause the outcome or understanding the likely effect).
Amendments: Any state party, a majority of judges, or the prosecutor can propose new offenses via 2/3 majority approval.
Complementary Nature: The ICC is a court of last resort. Cases are inadmissible if: * A state is willing and able to prosecute. * A state decides not to prosecute (unless it is unwilling/unable). * Double jeopardy applies.
ICC Structure and Personnel
Organs: The Presidency; Appellate, Trial, and Pre-Trial Divisions; Office of the Prosecutor; The Registry.
Judiciary: * 18 judges total, serving 9-year terms (not eligible for re-election). * 1/3 of the judiciary is elected every 3 years. * Elected by secret ballot (2/3 majority) of member states. * Must be a national of a member state party. * The Presidency (President, 1st VP, 2nd VP) is elected by judges for 3-year terms.
Judicial Independence: Judges cannot engage in occupations or actions that interfere with duties or impartiality.
Office of the Prosecutor: * An independent organ elected by secret ballot of member states. * Prosecutor and Deputy Prosecutors serve 9-year terms (no re-election). * The Prosecutor has discretion to initiate investigations but must receive authorization from the Pre-Trial Chamber.
ICC Process, Rights, and Penalties
Initiation: A state party or the prosecutor initiates cases. If the prosecutor declines, the referring state or Security Council must be informed and can request a review by the Pre-Trial Division.
Warrants: Issued by the Pre-Trial Chamber at the prosecutor's request.
Rights Ensured (Art. 67): * Right against self-incrimination. * Right against coercion, duress, or arbitrary arrest. * Right to an interpreter and legal assistance. * Right to remain silent and to be questioned with counsel present. * Right to a public trial in the defendant's presence. * Right to cross-examine witnesses and protection from undue delay.
Penalties (Art. 77): * Imprisonment up to 30 years or life sentences (if justified by gravity). * Fines. * Forfeiture of property/assets.
International Cooperation: * States are expected to comply with arrest warrants, searches, seizures, and witness protection. * If a state refuses, the court may refer the matter to the Assembly of States Parties or the Security Council.
Recent Notable ICC Indictments
Vladimir Putin (2023): Accused of war crimes involving the unlawful deportation and transfer of Ukrainian children. Note: Russia is not a member state, but Ukraine is.
Benjamin Netanyahu (2024): Accused of war crimes (starvation), crimes against humanity, and directing attacks on civilians. Note: Israel is not a member state, but Palestine is.
Rodrigo Duterte (2025): Accused of crimes against humanity for murder and attempted murder; arrested by the Philippines.
Scholarly Perspectives and Theoretical Frameworks
Gary J. Bass (War Crimes Tribunals, 2009): * Legal norms in war date back to antiquity. * Laws of war are ambitious and precarious because they aim to limit how states fight. * The Challenge of "Victor’s Justice": Law may only matter when backed by politics. Prosecution may be seen as applying foreign ideology to serve national interests (e.g., American prosecution at the Tokyo Trials). * Tribunals face a trade-off between effectiveness/legitimacy and state power/impartiality. * Prosecution threats can sometimes hinder diplomatic solutions to catastrophes.
Baroni (2000) on the ICTY and Peace: * International Humanitarian Law (IHL) is the "human rights component of the law of war." * Shift since WWII from state-centric focus (internal sovereignty) to individual accountability. * Three Roles of the ICTY: 1. Truth: Establishing humanitarian facts to prevent the revival of animosities. 2. Individualization of Guilt: Prevents atrocities from being blamed on collective groups or "ethnic rivalries," thereby reducing resentment and vengeance. 3. Deterrence: شامل Specific deterrence (deterring the individual) and General deterrence (signaling accountability to society). Even with few convictions early on, it establishes a "culture of compliance." * Challenges: The ICTY face limited state support and questions about whether alternative justice (truth commissions/amnesty) might be more effective.