International Criminal Law

International reaction to atrocities

Internal conflicts have spill over effect which endanger international peace and security. International reaction to hostilities has been in the form of: Reprisals Countermeasures-suspension or termination of commercial treaties, sanctions, trade embargoes, freezing or seizure of assets Sanctions have largely failed due to the widening gap between the poor and the rich, nationalism, religious fundamentalism, ethnic and religious hatred. Sanctions usually hurt the poor. Failure by the UNSC to react quickly to international atrocities and failure to command respect for international law has led to resort to use of force by states States have tended to react to international atrocities only where their interests are at stake. Communal obligations do not influence much at international level.

Other reactions to international atrocities include:

Revenge Forgetting Judicial redress Making of treaties imposing jurisdiction on state parties Establishment of TRCs Establishment of ICTs Promotion of human rights monitoring bodies, international courts etc.

Modes of redress
Territoriality/nationality principle Passive nationality principle Universal jurisdiction principle

Rationale is based on the gravity of the offences committed and exercise of jurisdiction does not offend the principle of sovereignty.
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International Crimes

Notion of international criminal law. Body of rules designed to proscribe international crimes and impose upon states obligations to prosecute and punish at least some of those crimes. (substantive law)

It also regulates the international proceedings for prosecution of international crimes. International criminal law is a branch of public international law. Has the same sources as other sources of International law. Initially piracy was the only recognized international crime. In addition to piracy we now have crimes against humanity, crimes against peace (added by IMT-Nuremberg and IMTFETokyo.

In 1948 Genocide, 1980s Torture. International terrorism has been categorized as an international crime under certain conditions.
NB International crimes do not include illicit traffic in narcotic drugs.

What are international crimes?

Breaches of international rules entailing personal criminal liability of individuals concerned as opposed the responsibility of states of which the individuals may act as organs.

They comprise of: Violation of international customary rules as well as treaty provisions where such treaties codify customary international law;
Rules intended to protect values considered important by the whole international community and binding on all states and individuals; Universal interest in suppressing these crimes and prosecution of the alleged perpetrators by any state regardless of territorial or national link with the perpetrator or the victim. If the perpetrator has acted as a state official, the state concerned is barred from claiming immunity from jurisdiction of foreign states.
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War crimes.
Serious violations of customary or applicable treaty rules belonging to the corpus of international humanitarian law (serious breaches of the Hague and Geneva law). ICTY in Tadic case delineated the essential elements of war crimes:

Serious infringement of international rule Rule violated must belong to the corpus of customary international law or applicable international treaty. Violation must entail individual criminal responsibility under customary or conventional law. The conduct must be criminalized (Nullum crimen sine lege, nulla poena sine lege principle

War crimes may be perpetrated in the course of either international or internal armed conflict-There must be a link to international or internal armed conflict
They may be perpetrated by military personnel against enemy servicemen or civilians or by civilians against either members of the enemy armed forces or enemy civilians. Crimes against servicemen of ones own military are not war crimes. What are war crimes? Article 8 of the ICC statute enumerates war crimes. The statute however does not purport to codify customary international law. The list is in statu nascendi

Crimes against humanity. Cover the following: Odious offences that constitute serious attack on human dignity or grave humiliation or degradation of one or more human beings. Must not be isolated or sporadic events must either be governmental policy; systematic practice of atrocities, tolerated and condoned or acquiesced by the government or de facto authority The acts are prohibited and are punishable regardless whether perpetrated during war or in peacetime The victims may be civilians or persons hors de combat.
Crimes of this category are characterized by their seriousness and their savagery or by their magnitude. Dutch Special Court of Cassation in the judgment against Waffen SS Murder extermination, torture rape, political, racial or religious persecution and other inhuman acts reach the threshold of crimes against humanity if they are part of a practice. Under article 7 of the ICC statute crimes against humanity include : Murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment and torture.

For one to be guilty of crimes against humanity, it must be established that there was intention to bring about a certain result. Where the accused was acting as an agent of the system it is irrelevant that he did not anticipate the consequences. It is sufficient that he was aware of the risk that his action might bring about to his victims on account of the violence and arbitrariness of the system to which he delivered his victims.
GENOCIDE Intentional killing, destruction or extermination of groups or members of a group. Initially was a crime against humanity but acquired its own status as international crime in 1948 when the UN GA adopted the Genocide Convention.
It defines genocide Punishes other acts associated with genocide such as conspiracy and complicity. Prohibits genocide whether perpetrated in war or peacetime. Considers genocide as an international crime carrying individual criminal responsibility.

Definition of groups under the convention can be problematicAkayesu Case

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Other international Crimes:

Aggression- article 6 (a) of the IMT Charter Torture Terrorism PROSECUTION & PUNISHMENT FOR INTERNATIONAL CRIMES Past attempts: IMT-Nuremberg and Tokyo Recent attempts ICTR and ICTY
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Permanent International Criminal Court. (ICC). The UN for a long time considered the idea of establishing a permanent international criminal court since the end of WW I. In 1993 and 1994 it set up two ad hoc tribunals namelyICTY and ICTR.
A serries of negotiations to establish a permanent international criminal court that would have jurisdiction over serious international crimes regardless of where they were committed started in 1994 and led to the adoption of Statute of the international Criminal Court (ICC) in Rome in 1998-The Rome Statute. The statute was to enter into force upon ratification by sixty states. This threshold was reached in July, 2002.

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 When can the court exercise jurisdiction?

As soon as a state becomes a party to the statute, it accepts the jurisdiction of the court over crimes set out under the statute and committed after its entry into force. Under article 25 the court has jurisdiction over individuals and not states. The court may exercise its jurisdiction at the instigation of the Prosecutor or a state party, provided one of the following states is bound by the statute:

The state on whose territory the crime was committed; or

The state of which the person accused of the crime is a national

A state that is not a party to the statute may make a declaration to the effect that it accepts the courts jurisdiction. Under Chapter VII the UNSC may refer a situation to the prosecutor for investigation. It may also request that no investigation or prosecution commence or proceed for a renewable period of 12 months.
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 The exercise of jurisdiction over war crimes is limited under article 124 of the statute.

It permits a state on becoming a party to a statute to declare that it does not accept the jurisdiction of the court for a period of seven years with respect to war crimes that have allegedly been committed by its own nationals or on its own territory.

But under 1949 Geneva Conventions and its additional protocols, states must prosecute persons accused of war crimes before their own national courts or extradite them for trial elsewhere. (aut dedere aut judicare principle) Nothing in the ICC statute therefore releases states from their obligations under existing instruments of international humanitarian law or under customary international law. By virtue of the principle of complimentarity, the jurisdiction of the ICC is intended to come into play only when a state is genuinely unable or unwilling to prosecute alleged war criminals over which it has jurisdiction. To benefit from the complimentarity principle, states must enact enabling legislation to prosecute such criminals.
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What should states do to ensure effectiveness of ICC?

Ratify the ICC statute as soon as possible to give it universal jurisdiction, States to refrain from making use of article 124-opting out clause, States to carry out thorough review of national legislation to ensure that they can take advantage of the complimentarity principle, States should assist each other and the ICC in connection with proceedings relating to crimes that come within the courts jurisdiction. This will entail enactment/amendment of necessary legislation to ensure any necessary transfer of those accused of such crimes.

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The ICC and the US. Why the US signed but has not ratified.
Clinton approved signature of the statute in order for the US to continue taking part in discussions on ICC matters. But stated that he would not recommend that his successor submits the treaty to the Senate for advice and consent until US fundamental concerns are satisfied. What are these fundamental concerns of the US?
The ability of the ICC to bypass the UNSC would undermine the settled system of international governance and the US role in it.

ICC prosecutor and judges will be chosen in a manner the US considers undemocratic and would have unde authority to determine the ICCs jurisdiction and thus may be tempted to launch politically motivated prosecutions.
The statute poses the risk of unfair trial proceedings

All in all opponents of the ICC within US content that operations of the ICC as currently structured is a menace to the sovereignty of the US.
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