Comprehensive Study Notes on International Criminal Tribunals and the ICC

Background and Context of International Criminal Tribunals

• International Criminal Law development was significantly shaped by the events of World War II.

• Key historical milestones include the creation of the Nuremberg and Tokyo tribunals.

• Ad hoc tribunals were later established by United Nations Security Council Resolutions, specifically the International Criminal Tribunal for the former Yugoslavia ($ICTY$) and the International Criminal Tribunal for Rwanda ($ICTR$).

• International criminal law encompasses several types of judicial bodies beyond ad hoc tribunals, including hybrid (internationalized) tribunals and the permanent International Criminal Court ($ICC$).

Hybrid or Internationalized Tribunals

• Hybrid tribunals emerged as a response to the perceived shortcomings of ad hoc tribunals.

• They are characterized by a combination of national and international elements in their structure, staffing, and applicable law.

• Key Objectives of Hybrid Tribunals:

  • Bringing justice closer to the affected community by being locally based (as opposed to being in The Hague).

  • Encouraging active participation of victims and local communities in the judicial process.

  • Fostering state ownership of the justice process by embedding tribunals within domestic judicial frameworks.

  • Increasing legitimacy of the process through local involvement.

  • Enhancing efficiency regarding time, resources, costs, and management.

• Indicators of Hybridity:

  • They exist on a spectrum between purely international tribunals (created under international law like the $ICTY$) and purely domestic tribunals.

  • Establishment: Often established via an agreement between a host state and an international organization (typically the United Nations).

  • Subject Matter Jurisdiction: Combines international crimes with crimes defined under domestic law.

  • Staffing: Composed of a mix of national and international lawyers and judges.

Examples of Hybrid Tribunals

• Special Court for Sierra Leone ($SCSL$):

  • Established in response to the violent civil war that began in $1991$ and lasted over a decade.

  • Specifically addressed the widespread use of child soldiers.

  • Established jointly by the United Nations and the Government of Sierra Leone in $2002$.

  • Located in Freetown, Sierra Leone (bringing justice to the affected community).

  • Jurisdiction: Covered serious violations of International Humanitarian Law ($IHL$) and crimes under Sierra Leonean law.

    • International crimes included crimes against humanity, violations of Article $3$ common to the Geneva Conventions, Additional Protocol $II$, and other serious violations of the laws of armed conflict.

    • Domestic crimes included offenses under the Prevention of Cruelty to Children Act of $1926$ and the Malicious Damage Act of $1861$.

  • Staffing: Included both local and international staff; the majority of judges were international, appointed by the UN Secretary-General.

  • Milestones:

    • Convicted $9$ individuals in total.

    • First internationalized tribunal to classify the use of child soldiers and attacks on peacekeepers as war crimes.

    • First to classify forced marriage as a crime against humanity.

    • First modern international criminal tribunal since Nuremberg to convict a former head of state ($Charles\,Taylor$) for crimes against humanity. (Note: Slobodan Milosevic was tried by the $ICTY$ but died before judgment).

• Extraordinary Chambers in the Courts of Cambodia ($ECCC$):

  • Established to try those responsible for atrocities during the Khmer Rouge regime (mid-to-late $1970s$).

  • Established by agreement between the UN and Cambodia in $2004$ after lengthy negotiations beginning in $1999$.

  • Negotiations broke down in $2002$ due to UN fears that the court would not be impartial; Cambodia eventually agreed to UN support via the United Nations Assistance to the Khmer Rouge Trials ($UNAKRT$).

  • Located within the Cambodian legal system as part of its internal court structure.

  • Jurisdiction:

    • The crime of genocide under the $1948$ Convention.

    • Crimes against humanity (Rome Statute definition).

    • Grave breaches of the Geneva Conventions ($IHL$).

    • Crimes under Cambodian law (homicide, torture, religious persecution).

  • Temporal Jurisdiction: Retroactive but limited to April $1975$ to January $1979$.

  • Prosecution Targets: Senior leaders of Democratic Kampuchea and those most responsible for crimes.

    • Pol Pot (leader of the Khmer Rouge) died before the chambers were established.

    • Kaing Guek Eav (known as $Duch$), the supervisor of the $S21$ prison (a former high school in Phnom Penh converted into a torture center), was the first tried.

  • Distinctive Features:

    • Hybrid prosecution team (one national, one international prosecutor).

    • Majority of national judges.

    • Civil law legal tradition influence (due to French political history), where co-investigating judges handle investigations.

    • Explicit right for civil parties to participate.

  • Current Status: Caseload completed; residual functions began on $01/01/2023$ for an initial period of $3$ years.

• Special Tribunal for Lebanon ($STL$):

  • Established after the $02/14/2005$ attack in Beirut that killed Prime Minister Rafiq Hariri and $21$ others.

  • Lebanese government requested a tribunal of international character.

  • UN Security Council Resolution $1664$ ($2006$) authorized negotiations; the statute entered into force via Resolution $1757$ in $2007$.

  • Mandate: Prosecute those responsible for the Hariri attack and connected attacks.

  • Applicable Law: Applies the Lebanese Criminal Code regarding terrorism; it has no jurisdiction over international crimes (unlike other hybrid tribunals).

  • Structure: Mixed composition; majority of judges are international.

The International Criminal Court (ICC)

• The $ICC$ is a permanent, treaty-based international criminal court, representing a milestone in international justice.

• Established on $07/17/1999$ in Rome (Rome Statute adoption) by a conference of $160$ states.

• Membership:

  • $125$ states are currently parties to the Rome Statute.

  • Ukraine is the latest state to join (October $2024$).

  • Notable non-parties include China, India, Russia, and the United States. Only two Permanent Members ($P5$) of the Security Council (UK and France) are parties.

• Structure:

  • Office of the Prosecutor: Independent organ led by current prosecutor Karim Khan ($United\,Kingdom$) and two deputies, elected for $9$ year terms.

  • Responsible for examinations, investigations, and prosecutions.

• Case Stages:

  1. Preliminary examination (evidence/jurisdiction assessment).

  2. Investigation.

  3. Pre-trial stage (arrest warrants/confirmation of charges).

  4. Trial.

  5. Appeal.

  6. Enforcement of sentence (served in agreeing member states).

ICC Jurisdiction and Admissibility

• Subject Matter Jurisdiction (The Four Core Crimes):

  • Genocide (Article $6$): Specific acts (killing, mental harm, etc.) committed with the special intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.

  • Crimes Against Humanity: Part of a widespread or systematic attack against a civilian population with knowledge of the attack (e.g., murder, enslavement, deportation).

  • War Crimes: Actions (killing, torture, property destruction) with a nexus to an internal or international armed conflict.

  • Crime of Aggression (Article $8\,BIS$): A leadership crime involving planning or executing a manifest violation of the UN Charter by the use of armed force against another state's sovereignty.

• Temporal Jurisdiction: Applies only to crimes committed after the Rome Statute's entry into force in July $2002$. For new members, jurisdiction begins once the statute enters into force for them, unless they make a specific declaration to extend it.

• Modes of Referral (Article $13$):

  1. Referral by a state party (e.g., Venezuela referral in September $2018$ by Canada, Colombia, and others).

  2. Referral by the UN Security Council acting under Chapter $VII$ of the UN Charter (e.g., Darfur, Sudan in $2005$; Libya in $2011$).

  3. Prosecutor's proprio motu power (initiating investigations of their own accord under Article $15$, requiring authorization from the Pre-trial Chamber).

     • Philippines Example: Investigation into the "war on drugs" ($2011$-$2019$) under President Rodrigo Duterte. Pre-trial Chamber authorized investigation in September $2021$. After a deferral request and subsequent resumption in January $2023$, an arrest warrant was applied for on $02/10/2025$, and Mr. Duterte surrendered in March $2025$.

• Preconditions (Article $12$): Required for state or proprio motu referrals (not for UNSC referrals).

  • Territorial link: Crime occurred on state party territory.

  • Nationality link: The accused is a national of a state party.

  • Non-state parties can accept jurisdiction on an ad hoc basis under Article $12(3)$ (e.g., Ukraine in $2014$ prior to full membership).

Admissibility and Complementarity

• Principle of Complementarity: The $ICC$ is a court of last resort; domestic states have priority jurisdiction.

• Grounds for Inadmissibility (Article $17$):

  1. The case is being investigated or prosecuted by a state (unless the state is unwilling/unable).

  2. The state investigated and decided not to prosecute (unless due to unwillingness/inability).

  3. The person has already been tried (ne bis in idem).

  4. The case lacks sufficient gravity.

• Same Person, Same Conduct Test: National proceedings must cover the same individual and substantially the same conduct as the $ICC$ case.

• Unwillingness Indicators: Proceedings intended to shield a person, unjustified delays, or lack of independence/impartiality.

• Inability Indicators: Total or partial collapse of the national judicial system, inability to obtain the accused, or inability to gather evidence.

• Gravity Assessment: Established in the Alassane case; assessed case-by-case using qualitative and quantitative elements (the number of victims alone is not determinative).

Applicable Law and Cooperation

• Hierarchy of Sources (Article $21$):

  1. The Rome Statute, Elements of Crimes, and Rules of Procedure and Evidence.

  2. Applicable treaties and principles/rules of international law (including $IHL$).

  3. General principles of law derived from national legal systems.

  • All law must be applied consistently with internationally recognized human rights.

• State Cooperation (Article $86$ & $88$):

  • State parties have a general obligation to cooperate fully.

  • States must ensure domestic procedures exist for cooperation (e.g., evidence collection, freezing of assets).

  • Metaphor by Antonio Casa: The $ICC$ is a "giant without arms and without legs," requiring states to be its limbs to function (arrests, evidence collection).

  • Security Council Cooperation: When the UNSC refers a case under Chapter $VII$, it can bind even non-state parties to cooperate with the court under Article $25$ of the UN Charter.