Chapter 7: International Criminal Law

Introduction

International criminal law is a body of rules designed to prohibit certain categories of conduct commonly viewed as serious and to make perpetrators of such conduct criminally accountable for their acts. States are under obligation to prosecute and punish perpetrators of some of those crimes. International criminal law also regulates international proceedings for prosecuting persons accused of such crimes. Principally, it deals with genocide, war crimes, crimes against humanity, and war of aggression. Criminal law generally deals with prohibitions addressed to individuals and penal sanctions for violation of those prohibitions imposed by individual states. However, in contrast to municipal law, international criminal law comprises elements of both international law and municipal law, in that although its sources are those of international law, its consequences are penal sanctions imposed on individuals for criminal responsibility as under municipal law. International criminal law has emanated from sources of public international law such as treaties, customs, and general principles of law recognized by nations.

History and Sources of International Criminal Law

History: International criminal law is relatively a new branch of international law. Classical international law did not focus on international crimes, because individuals were considered as objects (rather than subjects) of international law. Individuals were not endowed with any rights or duties, with the exception of piracy, under international law that could be enforced by any state under its municipal law. Nevertheless, some precedents in international criminal law can be found before the First World War, when the trials were held in specially constituted tribunals. During the 19th century and before the First World War, only war crimes were punishable for which the vanquished state, not an individual, was deemed guilty. However, it was only after the First World War that a truly international criminal tribunal was envisaged to try perpetrators of crimes committed during the war. The Treaty of Versailles contained certain provisions on the subject (Articles 227-230).

After the Second World War, revolutionary changes came in this area. The Allied powers set up two International Military Tribunals (Nuremberg Tribunal in 1945 and Tokyo Tribunal in 1946) to try the criminals who committed war crimes, crimes against humanity, crimes against peace, and conspiracy to commit these crimes. The UN General Assembly in 1946 affirmed the principles of the Nuremberg Tribunal and the decision of the Tribunal (Res. 95/1). The trials of perpetrators of these crimes not only helped in enunciating clear principles on the subject but also added new categories of crimes. The 1948 Genocide Convention further expanded the list of international crimes. The four Geneva Conventions and the two Additional Protocols of 1977 to these Conventions also enlist “grave breaches,” which, if committed, are regarded as war crimes. The conclusion of numerous other treaties have made the following acts international crimes: aircraft hijacking, unlawful acts against the safety of civil aviation, trafficking in women and children, trafficking in narcotic drugs, counterfeiting of currency, kidnapping of diplomats and taking of hostages.

The 1990s’ witnessed the establishment of international criminal tribunals. In 1993, the UN Security Council established the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1994. These are the most important ad hoc tribunals created to try the perpetrators of crimes, followed by the establishment of the International Criminal Court (ICC), a permanent institution created under the Rome Statute adopted in 1998. The ICC is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. The need for a separate court arose out of the fact that the International Court of Justice does not have the competence to try individuals.

Sources: International criminal law is a subset of international law. As such, its sources are the same as those that comprise international law. Article 38(1) of the Statute of the International Court of Justice enumerates those sources as treaties, customary international law, general principles of law as well as two subsidiary measures (judicial decisions and the most highly qualified juristic writings). The ICC Statute in Article 21 contains an analogous, though not identical, set of sources on which the ICC may rely. There is, however, a strong connection between international human rights law and national criminal law. Whereas the international human rights law has provided basic sources of law such as international treaties and conventions, the regional and municipal courts have helped in laying down criminal law norms pertaining to the fundamental rights of suspects and accused persons, rights of the victims and witnesses, and the requirements of a fair trial. The municipal law has thus contributed to the content of international crimes and the procedure for the trial of these crimes. Therefore, both International human rights law and national law have been instrumental in the evolvement of a body of international criminal law.

International Criminal Tribunals

The end of the Second World War heralded the constitution of international military tribunals to try war- related crimes. With the end of the Cold War in the early 1990s, the world also witnessed the establishment of international criminal tribunals that would deal with crimes resulted mainly from internal armed conflicts. These conflicts, fed on nationalism and fundamentalism, resulted from the disintegration of multi-ethnic societies, which committed serious violations of international humanitarian law and basic human rights.

a) The Nuremberg and Tokyo trials held at the end of the Second World War (1945-48) focused on the war-related crimes. They helped in enunciating clear principles on the law of war crimes. The Charter of these tribunals had four counts of offences:

• Crimes against peace, i.e., beginning a war of aggression by planning, preparation or initiation, or in violation of treaties, such as the Hague Conventions of 1899, 1907, the Treaty of Versailles, violation of Mutual Non-aggression Pact by Germany with France, Belgium and Poland, and the 1928 Kellogg-Briand Pact.
• War crimes, i.e., crimes under the laws of war, which included violation of customary and conventional rules and regulations relating to warfare.
• Crimes against humanity, i.e., inhuman treatment (murder or persecution) on racial or religious grounds during war and in occupied territories.
• Conspiracy to commit these crimes. The tribunals were constituted to punish heads of States, ministers and high military and administrative functionaries responsible for initiating the war and authorizing the perpetration of atrocities.

b) In 1991, the civil war erupted in the Socialist Federal Republic of Yugoslavia (SFRY). It led to a wide scale of killings of the civilians, systematic detention and rape of women, pillage and destruction of civilian property, arbitrary arrests, and ‘ethnic cleansing’ resorted by different groups in the six republics of Yugoslavia, particularly, in Bosnia-Herzegovina. In May 1993 the Security Council, acting under Chapter VII of the Charter, established the first International Criminal Tribunal for the Former Yugoslavia (ICTY). The key objective of the ICTY was to try those individuals who were responsible for appalling acts such as murder, torture, rape, enslavement, destruction of property, and other crimes listed in the Tribunal’s Statute. By bringing perpetrators to trial, the ICTY aimed to deter future crimes and render justice to thousands of victims and their families, thus contributing to a lasting peace in the former Yugoslavia.

In November 1994, the Security Council, acting under Chapter VII of the UN Charter, established the International Criminal Tribunal for Rwanda (ICTR). At that time, the civil war was underway in Rwanda between the Tutsi and Hutu tribes where the death toll was estimated to have reached 800,000. The ICTR was called upon to adjudicate the crime of genocide, crimes against humanity, and violations of Article 3 common to the Geneva Conventions and of the II Additional Protocols to these Conventions. These crimes were allegedly perpetrated in Rwanda or by Rwandan citizens in the territory of nearby states between January and December 1994. The Security Council Resolution (Res. 955) defined the acts amounting to genocide and made the following acts as punishable:

1. genocide;
2. conspiracy to commit genocide;
3. direct or public incitement to commit genocide;
4. attempt to commit genocide; and
5. complicity in genocide.

c) On December 22, 2010, the Security Council created the International Residual Mechanism for Criminal Tribunals, which was later referred as the Mechanism for International Criminal Tribunals (“Mechanism” or “MICT”). The Security Council created the “Mechanism” as a “small, temporary and efficient structure” to carry out a number of essential functions of both ICYT and ICTR after their closure. It was planned to operate for an initial period of four years and for subsequent periods of two years, unless the Security Council decides otherwise. It will be subject to a two-year review beginning in 2016. The Mechanism started operating on 1 July 2012 in Arusha, Tanzania and on 1 July 2013 in The Hague/the Netherlands. The MICT had taken over much of the operations of the ICTR by spring 2015, and the ICTR officially closed on December 31, 2015. The ICTY, however, closed in December 2017.

The International Criminal Court (ICC)

The attempts to establish an international permanent criminal court started by the Committee of Jurists in 1920 to try crimes against international public order and the universal law of nations. In 1952, a new Committee was assigned the task and its report was placed before the General Assembly in 1954. However, the Cold War conditions made the establishment of an international criminal court politically unrealistic. In 1994, the Commission completed a comprehensive draft statute and submitted it to the General Assembly. The draft statute was referred to the Preparatory Committee on the Establishment of an International Criminal Court, which prepared the draft treaty on the establishment of an international criminal court. The draft treaty subsequently led to adoption of the Rome Statute of the International Criminal Court by the Diplomatic Conference of Plenipotentiary held in Rome between 15 June and 17 July 1998. The Rome Statute came into force on July 1, 2002. Therefore, The ICC can only prosecute crimes committed on or after July 1, 2002. The court’s first judges were elected in February 2003. The Court’s official seat is in The Hague/the Netherlands.

The ICC consists of 18 judges. The number may be increased on a proposal of the Presidency, indicating the reasons for the increase. Judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices. Judges are elected from two lists of candidates. List A comprises candidates who have “established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate, or in other similar capacity, in criminal proceedings.” List B comprises candidates who have “established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court.” The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties. No two judges shall be nationals of the same state. In the selection of judges, the States Parties shall take into account the need for

1. the representation of the principal legal systems of the world;
2. equitable geographical representation; and
3. a fair representation of female and male judges. Judges shall hold office for a term of nine years and shall not be eligible for re-election.

The Court is composed of the following organs (Art.34):

• the Presidency;
• an Appeals Division, a Trial Division, and a Pre- Trial Division;
• the Office of the Prosecutor;
• the Registry.

Jurisdiction of the ICC

There are three jurisdictional requirements under the Rome Statute that must be met before a case may start against an individual. They are

• Subject-matter jurisdiction (which acts constitute crimes),
• Territorial or personal jurisdiction (where the crimes were committed or who committed them), and
• Temporal jurisdiction (when the crimes were committed).

1. The ICC has been created with an avid aim that the most serious crimes of concern to the international community as a whole must not go unpunished (Preamble, Paragraph 4). Crimes so enlisted are: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (Art. 5/1). They are defined in the Rome Statute’s latter articles from 6 to 8. Apart from these primary crimes, Article 70 defines offences against the administration of justice when committed intentionally for which an individual can be prosecuted.
2. According to Article 12(2), the Court may exercise jurisdiction only in cases where (a) the alleged crime is committed on the territory of a State party to the Statute, including on board a vessel or aircraft, the State of registration of that vessel or aircraft; or (b) The State of which the person accused of the crime is a national of a State party to the Statute. Thus, the Court can exercise jurisdiction over nationals of a State, which is not a party to the Statute. If the acceptance of a State which is not a Party to this Statute is required under Article 12(2), that State may, by declaration lodged with the Registrar, accept the jurisdiction by the Court with respect to the crime in question (Art. 12(3)). The Court has jurisdiction only over natural persons (Art. 25). A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment under the Statute if that person carries other requirements. The Court will exercise jurisdiction over persons who shall be responsible for their crime.
3. The Court has jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute, i.e., on or after July 1, 2002. If a state becomes a party to the Statute after July 1, 2002, the Court may exercise its jurisdiction with respect to crimes committed only after that date, unless that state has made a declaration under Article 12/3, accepting the jurisdiction in respect to the crime in question (Art. 11). The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations (Art. 29).

The ICC Statute lays down the law applicable to a case, in a hierarchical manner, as follows: (a) in the first place, the Statute of the ICC, Elements of Crimes, and its Rules of Procedure and Evidence; (b) in the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict; (c) failing that, general principles of law derived by the Court from national laws of legal systems of the world. This will include the national laws of states that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with the ICC Statute and with international law and internationally recognized norms and standards (Article 21).

Terrorism as an International Crime

The terrorist attacks in the USA on September 11, 2001 have brought to the center stage the crime of terrorism and it has since become a major concern of the international community. The term terror comes from the Latin verb terrere meaning “to frighten.” In modern times “terrorism” usually refers to the killing of innocent people by a private group usually to achieve some political goals. There is no universally agreed, legally binding, criminal law definition of terrorism. Various legal systems and government agencies use different definitions of terrorism in their national legislation.

Common definitions of terrorism refer only to those violent acts which are intended to create fear (terror) and intimidation, perpetrated for a religious, political, or ideological goal, committed by non-government agencies or groups, and which deliberately target or disregard the safety of civilians. In this regard, terrorism primarily refers to violence against civilians or non-combatants, including public officers, law enforcement agencies and military personnel.

The 1999 International Convention for the Suppression of the Financing of Terrorism does provide a definition, which in the first place refers to acts that have been prohibited under other nine treaties listed in the Annex. The 1999 Convention provides a formula to enlist a terrorist act and defines terrorism as: “Any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act” (Art. 2/1 (b)). One can conclude that terrorism as an international crime has the following elements:

• the act must constitute a criminal offence under most national legal systems, such as murder, kidnapping, hostage-taking, bombing, torture, etc.;
• the act must be aimed at compelling a state, an international organization, or a nonstate entity to do or to abstain from doing any act, either by spreading terror among the population or by means of violent action or threat thereof directed against a state, a state official, an intergovernmental organization, a public or private body;
• the act must be motivated by political, religious, or otherwise ideological reasons and not by private motives.

The United Nations has long been active in the fight against international terrorism. April 11, 2000. The UN and its agencies have developed a wide range of international legal agreements that enable the international community to take action to suppress terrorism and bring those responsible to justice. Nineteen universal instruments (sixteen instruments and three amendments) against international terrorism have been elaborated within the framework of the United Nations system relating to specific terrorist activities.