International Criminal Law: Historical Foundations and Ad Hoc Tribunals

Course Logistics and Announcements

• Upcoming Content:

  • There will be no more in-person content classes after this one.

  • Next week’s content on international human rights law will be an online lecture only. Students are strongly encouraged to view it as it is still part of the curriculum.

  • Next week’s in-person class will be a revision lecture. It will involve a week-by-week review of key concepts and themes covered throughout the term.

• Exam and Question Protocol:

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  • Questions submitted via iLearn will not be answered if they were already addressed during the revision lecture. Students who cannot attend should listen to the lecture recording before emailing.

Fundamentals of International Criminal Law (ICL)

• Definition and Scope:

  • ICL is closely linked to the maintenance of international peace and security because crimes often arise in the context of armed conflicts.

  • Unlike State Responsibility (e.g., the ILC Draft Articles on State Responsibility), ICL focuses exclusively on individual criminal responsibility. It targets people, not states.

• The Two Limbs of International Criminal Law:

  1. Substantive Limb:

     • Defines the crimes and their elements, such as actus reus (the guilty act).

     • Covers the core crimes recognized under the Rome Statute of the International Criminal Court (ICC):

       • Genocide

       • War Crimes

       • Crimes Against Humanity

       • Crime of Aggression (added more recently to the ICC Statute).

     • Discusses conditions under which an individual can be tried and the hierarchy of jurisdiction between international and domestic courts.

  2. Procedural Limb:

     • Sets the rules for legal proceedings.

     • Covers pre-trial processes, trial processes, appeal conditions, the rights of the accused, rules of evidence, sentencing, and victims' rights.

     • These rules are usually codified in the constitutive instruments of the court or tribunal (e.g., the Rome Statute).

• Nature of the Branch:

  • Newness: Modern ICL is relatively young, developing primarily after $1945$. Jurisprudence is less developed compared to domestic law.

  • Hybridity: It draws from three main sources:

    • International Humanitarian Law (IHL): Especially regarding war crimes and the Geneva Conventions of 1949.

    • International Human Rights Law (IHRL): Particularly regarding the rights of the accused.

    • Domestic Law: For procedural and substantive standards.

• Evolving Concepts:

  • There is ongoing discussion regarding the inclusion of Ecocide (the massive destruction of the environment) as a core crime.

  • Pacific Island states have proposed amendments to the Rome Statute to include ecocide, though it is not yet officially recognized as a core crime.

Post-World War II Developments: The International Military Tribunals

• Nuremburg Tribunal (International Military Tribunal - IMT):

  • Established by the London Agreement in $1945$ to try the leadership of the Nazi regime.

  • Philosophical Shift: Allied powers (US, Soviet Union, France, and UK) moved away from Winston Churchill's initial proposal of summary execution for Axis leaders. Instead, they opted for an international trial to uphold the rule of law.

  • Chief Prosecutor Quote (US): "The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated."

  • Crimes under Article 6 of the IMT Charter:

    1. Crimes against Peace: Planning/initiating war in violation of treaties (now known as the crime of aggression).

    2. War Crimes: Violations of the customs of war (e.g., murder, ill-treatment, deportation for slave labor).

    3. Crimes against Humanity: Murder, extermination, deportation committed against a civilian population as part of a widespread or systematic policy.

  • The Absence of Genocide: The term "Genocide" was coined in $1944$ by Raphaël Lemkin, but it was not yet codified as a specific crime in the IMT Charter. Holocaust-related atrocities were tried under "Crimes against Humanity."

• International Military Tribunal for the Far East (IMTFE):

  • Seated in Tokyo, established by a proclamation from General Douglas MacArthur.

  • Tried $28$ defendants on $55$ counts for crimes against peace, conventional war crimes, and crimes against humanity.

• Nuremberg Principles (Distilled by the UN General Assembly):

  • Individuals committing international crimes are responsible and liable for punishment.

  • Lack of domestic penalty for an international crime does not exempt an individual from international responsibility.

  • No Immunity: Being a head of state or high government official does not provide immunity.

  • Superior Orders: Following orders is not a valid justification for escaping responsibility.

• Criticism of Victor's Justice: Some critics argue these tribunals only tried the losers (Axis), while Allied actions (e.g., bombings in Germany) remained unexamined.

Ad Hoc International Criminal Tribunals

• International Criminal Tribunal for the former Yugoslavia (ICTY):

  • Establishment: Created by UN Security Council Resolution 827 ($1993$) under Chapter VII of the UN Charter.

  • Seat: The Hague, Netherlands.

  • Context: Violent dissolution of Yugoslavia in the early $1990s$, involving mass atrocities and concentration camps.

  • Jurisdiction:

    • Territorial: Former Yugoslavia.

    • Temporal: Started in $1991$, open-ended (because hostilites were ongoing during creation).

  • Legal Authority: Binding on states via Article 25 of the UN Charter.

  • Significant Case - Prosecutor v. Tadić ($1995$): The defendant challenged the Security Council's authority to create a tribunal. The court ruled it was legally established as a non-forcible measure under Article 41.

  • Significant Case - Slobodan Milosević: Highlighted the trial of a former head of state.

  • Status: Closed in $2017$; remaining work moved to a "residual mechanism."

• International Criminal Tribunal for Rwanda (ICTR):

  • Establishment: UN Security Council Resolution 955 ($1994$).

  • Seat: Arusha, Tanzania.

  • Context: The $1994$ Genocide involving Tutsis and Hutus. Estimated $500,000$ to $1,000,000$ deaths in three months.

  • Jurisdiction:

    • Territorial: Rwanda and neighboring states for acts by Rwandan nationals.

    • Temporal: Only the year $1994$ ($1$ January to $31$ December).

  • Crimes: Genocide, crimes against humanity, and violations of Common Article 3 of the Geneva Conventions and Additional Protocol II (applicable to non-international armed conflict).

  • Significant Case - Jean Kambanda: Prime Minister who pleaded guilty to genocide.

  • Significant Case - Jean-Paul Akayesu: First case to recognize sexual violence as an act of genocide.

• General Criticisms of Ad Hoc Tribunals:

  • High costs (ICTY cost approximately US$2,700,000,000).

  • Long delays and limited victim participation.

  • Remoteness: Being seated far from the actual location of the crimes (e.g., Arusha for Rwandan crimes) makes the affected communities feel disconnected from justice.

  • Selectivity: Criticism that the ICTY did not investigate NATO bombing campaigns in $1999$.

Hybrid and Permanent Courts

• Hybrid (Internationalized) Tribunals:

  • A mix of domestic and international law and personnel (e.g., mixed panels of domestic and international judges).

  • Designed to be closer to the affected population.

• International Criminal Court (ICC):

  • The first permanent international criminal court.

  • Operates on the principle of complementarity: States have primary responsibility/priority to try individuals. The ICC only intervenes if the state is "unwilling or unable."

Questions & Discussion

• Question: What makes a decision of the Security Council binding on states?

• Answer: Article 25 of the UN Charter states that members of the UN agree to accept and carry out the decisions of the Security Council.

• Question: Why was there a gap in ICL development between the $1940s$ and $1990s$?

• Answer: The Cold War created tensions between the US and the Soviet Union, leading to a stalemate in the Security Council and a lack of appetite for permanent international criminal mechanisms during that period.